Bharat Gangji Gala vs Gujarat Pollution Control Board
2022 Latest Caselaw 9191 Guj

 C/WPPIL/85/2022                                 CAV JUDGMENT DATED: 18/10/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/WRIT PETITION (PIL) NO. 85 of 2022

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BHARAT GANGJI GALA Versus GUJARAT POLLUTION CONTROL BOARD ============================================= Appearance:

MR AJ YAGNIK(1372) for the Applicant(s) No. 1,2,3,4 MS MANISHA LAVKUMAR, SENIOR ADVOCATE for Opponent No.1

MR PARTH BHATT, for Opponent No.4 MR MIHIR JOSHI, SENIOR ADVOCATE for Opponent No.5 =============================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 18/10/2022 CAV JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This petition has been filed on 11.10.2022 and

even before scrutiny of the papers could take place, a

request for matter being listed on 12.10.2022 or

13.10.2022 was moved in open Court and it came to be

rejected on ground of there being no urgency. In the

meanwhile, a writ petition under Article 32 came to be

filed by the petitioners before the Hon'ble Apex Court in

Writ Petition (Civil) Diary No.32929 of 2022 and it seems

to have been mentioned before the Hon'ble Apex Court on

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13.10.2022 for being taken up. Learned counsel who

represented the petitioners before the Hon'ble Apex

Court conceded to the fact that petitioners had already

approached this Court by filing a Special Civil Application

under Article 226 of the Constitution of India namely the

present application. However, it was submitted before the

Hon'ble Apex Court that matter was not getting listed.

Hence, the Hon'ble Apex Court granted liberty to the

petitioners to withdraw the petition filed before it and

gave further liberty to the petitioners to make an

appropriate mention before this Court to have the

pending matter listed at an early date. Petitioners do not

seem to have submitted before the Hon'ble Apex Court

about the date of filing of this writ petition [Writ Petition

(PIL) No.85 of 2022] being 11.10.2022, when the writ

petition filed before the Hon'ble Apex Court was

mentioned namely on 13.10.2022. In this background,

petitioners filed yet another request for grant of

circulation of this writ petition on 14.10.2022 and the

request was accepted and matter was ordered to be listed

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on 17.10.2022. In fact, this writ petition was registered

on 14.10.2022 only.

2. Today when the matter was taken up for

consideration, the learned advocates appearing for both

the parties submitted that consideration of interim prayer

and main prayer are one and the same. Hence, by passing

the following order, we took up the matter for final

disposal :

"Learned advocates appearing for the parties submit that consideration of interim prayer and main prayer are one and the same and as such, matter is taken up for final hearing.

Shri A.J.Yagnik, learned counsel appearing for the petitioners has placed on record the gazette Notification dated 09.05.2022 issued by the Ministry of Environment and Forest, to which, Ms. Manisha Lavkumar Shah, learned Senior Advocate has seriously objected for the same. Gazette Notification dated 09.05.2022 is placed on record. To a pointed question posed by this Court to Mr. A.J. Yagnik, as to why Notification dated 09.05.2022 was not placed on record at the first instance, namely at the time of filing of the petition, he would fairly submit that it had gone unnoticed. His submission is placed on record.

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

This matter is listed at Serial No. 6 in Board-I, there was no attempt made by any advocate representing the parties for this matter being taken up at 11:00 am (the time of commencement of Court proceedings). Shri A.J.Yagnik, learned counsel appearing for the petitioners commenced his argument at 11:56 am and xxx xxx xxx."

3. We have heard the arguments of Mr.Anandvardhan

J. Yagnik, learned counsel appearing for the petitioner,

Ms.Manisha Lavkumar, learned Senior Advocate

appearing for respondent No.1, Mr.K.M.Antani, learned

Assistant Government Pleader appearing for respondent

Nos.2 and 3, Mr.Parth Bhatt, learned counsel appearing

for respondent No.4 and Mr.Mihir Joshi, learned Senior

Counsel appearing for respondent No.5. Perused the

records.

4. At the outset, it requires to be noticed that

petitioners have filed this petition for the following

reliefs:

"(A) To hold and declare that the public notice dated 26.09.2022 annexed at

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

Annexure-B issued by the respondent Gujarat Pollution Control Board notifying the scheduled date of public hearing, for the project of 120 MW Captive Co-generation Power Plant for 1100000 TPA Light Soda Ash, 500000 TPA Dense Soda Ash, 200000 TPA Sodium Carbonate under Category "A" schedule to be undertaken by respondent no. 5 herein at Bada Village of Mandvi Taluka of Kutch District, on 17.10.2022 as being de hors the provisions of the Environment Impact Assessment Notification, 2006 and more specifically Clause 3 of Appendix IV of the EIA Notification 2006 in so far as it does not provide for minimum of 30 days period between the date of issuance of public notice for hearing and date of hearing and the actual date of public hearing and hence the same being illegal, arbitrary, irrational, violative of fundamental rights and Be further Pleased to quash and set aside the same.

(B) To hold and declare that failure to provide for minimum of 30 days' time as mandated in Clause 3 of the Appendix IV of the Environment Impact Assessment Notification, 2006 between the date of issuance of public notice for hearing and date of hearing and the actual date of public hearing by the respondent no. 1 herein is bad in law, illegal, arbitrary, irrational, violative of fundamental rights and the EIA notification of 2006 and Be Further Pleased to quash and set aside the public notice dated 26.09.2022 annexed at Annexure-B.

(C) To hold and declare that the Communication dated 30.09.2022 annexed

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

at Annexure-C issued by the respondent Gujarat Pollution Control Board notifying the scheduled date of public hearing, for the project of 120 MW Captive Co-generation Power Plant for 1100000 TPA Light Soda Ash, 500000 TPA Dense Soda Ash, 200000 TPA Sodium Carbonate under Category "A" schedule to be undertaken by respondent no. 5 herein at Bada Village of Mandvi Taluka of Kutch District, on 17.10.2022 as being de hors the provisions of the Environment Impact Assessment Notification, 2006 and more specifically Clause 3 of Appendix IV of the EIA Notification 2006 in so far as it does not provide for minimum of 30 days period between the date of issuance of public notice for hearing and date of hearing and the actual date of public hearing and hence the same being illegal, arbitrary, irrational, violative of fundamental rights and Be further Pleased to quash and set aside the same."

5. A perusal of the averments made in the petition

would clearly indicate that sum and substance of the plea

put-forward by the petitioners in the petition or in other

words, the thrust of the contentions raised in the writ

petition revolves around the notification dated

14.09.2006, contending inter-alia said notification

mandates public consultation for projects falling within

Category-A and it also mandates public hearing has to be

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

held for the stake-holders to have necessary information

about the project so as to afford adequate opportunity to

represent and address the environmental concerns of the

proposed project and Paragraph 3.1 of Appendix-IV of the

notification dated 14.09.2006 mandates that a minimum

notice period of 30 days should be provided to the public

for furnishing their response from the actual date of

public notice and it was not provided since the impugned

notice is dated 26.09.2022 and the date of hearing is fixed

as 17.10.2022 at 11.00 a.m. which does not allow 30 days

time as contemplated under the impugned notice.

6. The petitioners who claim to be public spirited

persons and having their roots in the village where the

proposed project of the 5th respondent is coming up

though residing outside the village are claiming to be

owning and possessing ancestral property and/or

agricultural lands within the revenue limits of Bada

village, Mandvi Taluka, Kutch District, where the

proposed project is being set up and 4 th respondent

claims to be an Environment Researcher who is said to be

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working in the Kutch region since long and claims to have

contributed in several significant studies and projects

concerning environment and sustainable development,

cannot be heard to feign ignorance about the amendment

to the Environment Impact Assessment Notification

dated 14.09.2006, which has taken place on 09.05.2022.

On this aspect, we would be delving upon at a later stage.

7. The notification dated 09.05.2022 has been placed

on record by the learned counsel appearing for the

petitioners by tendering the same in the open Court today

before commencement of arguments and without even

seeking for amendment of the pleadings by laying the

foundational facts to put-forth the petitioners' case,

though notification dated 09.05.2022 is being assailed.

On the short ground that prayers sought for in the

petition has rendered itself infructuous in the light of the

notification dated 09.05.2022, Paragraph 3.3(a) after

Paragraph 3.3 has been inserted and the very edifice or

the foundation laid in the writ petition has got crumbled

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

by itself would be a good ground to dismiss the petition at

the threshold. However, we desist from doing so to avoid

any technical plea being put-forward and to stave off such

plea being raised, we have heard the arguments of the

learned advocates appearing for the parties at length, the

timings of which is noted and recorded in the proceedings

of this case, which reads :

"This matter is listed at Serial No.6 in Board- I, there was no attempt made by any advocate representing the parties for this matter being taken up at 11:00 am (the time of commencement of Court proceedings). Shri A.J.Yagnik, learned counsel appearing for the petitioners commenced his argument at 11:56 am and concluded it at 12:35 pm.

Ms.Manisha Lavkumar Shah, learned Senior Advocate appearing for respondent no.2 has addressed her arguments from 12:35 pm to 12:56 pm.

Mr.Paritosh Gupta, learned advocate appearing on behalf of Gupta and Law Associates submits that Vakalatnama is being filed today. Mr.Mihir Joshi, learned Senior Advocate appearing on his behalf has addressed argument on behalf of respondent no.5 by commencing his argument at 1:00 pm, and concluded the argument at 1:08 pm.

Mr.A.J.Yagnik, has commenced his reply argument at 1:10 pm and concluded at 1:15 pm."

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

8. It is the contention of Mr.Anandvardhan J. Yagnik,

learned counsel appearing for the petitioners that

notification dated 09.05.2022 is prospective in nature and

can be applied to the proceedings taken subsequent to the

amendment coming into force i.e. after 09.05.2022. He

would submit that in the instant case the first hearing

having been taken place on 06.04.2022 and the proposed

postponed hearing is scheduled to be held today i.e.

17.10.2022 at 11.00 a.m., during the interregnum an

amendment has been brought to the Environment Impact

Assessment Notification dated 14.09.2006 by notification

dated 09.05.2022 and Paragraph 3.3(a) has been inserted,

by virtue of which the proceedings already commenced

under the old notification would be governed by the

conditions stipulated in Appendix-IV, Paragraph 3.0 in

general and Paragraphs 3.1 to 3.4. He would submit that

under Paragraph 3.1 a minimum notice period of 30 days

is to be provided by the Member Secretary of the

concerned Pollution Control Board by advertising the

same in one major national daily and one regional

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vernacular State language newspaper which has not been

done or in other words, time-gap for public hearing is less

than 30 days. He would submit that if for any reason the

hearing is postponed, such postponement has to be

notified to the public through national and regional

vernacular dailies and fresh hearing has to be held

notifying the fresh date, time and venue as per procedure

under Paragraph 3.1 namely it is to be held by giving 30

days minimum notice period or in other words, as per

Paragraph 3.4 the procedure adopted as prescribed under

Paragraph 3.1 has to be adopted for postponed hearing

also. He would submit that by virtue of Paragraph 3.3(a)

having been inserted by notification dated 09.05.2022

which is a delegated legislation, it would not take away

the case of the petitioners or in other words, in respect of

the proceedings which had already commenced by way of

first public hearing which had already taken place. As

such, contending that amended notification would be of no

consequence to the proceedings already commenced, he

prays for the petition being allowed. He would also submit

C/WPPIL/85/2022 CAV JUDGMENT DATED: 18/10/2022

that though the notification dated 09.05.2022 does not

indicate it to be retrospective, even the principles of

retroactive would not be applicable particularly when the

first hearing has commenced much prior to the issuance of

the second notification. He would also contend that for

application of retroactive activity of a notification, such

notification itself should indicate that the facts or events

taken place earlier will be taken care of while

implementing the said notification and the subsequent

notification should clearly specify this fact. He would also

contend that having regard to the importance of public

hearing, such public hearing should be meaningful and

larger participation of all the stake-holders like the

petitioners should be allowed to participate in such public

hearing and with this avowed object, 30 days time has

been provided under the notification dated 14.09.2006

which cannot be erased by a subsequent amendment and

that too in respect of proceedings which had already

commenced. In support of his submissions, he has relied

upon the following judgment :

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(i) State Bank's Staff Union Madras vs Union Of India & Ors, reported in (2005) 7 SCC 584.

(ii) Vijay vs State Of Maharashtra & Ors, reported in (2006) 6 SCC 289.

(iii) Securities and Exchange Board of India vs. Rajkumar Nagpal and others, reported in 2022 SCC Online 1119.

9. Ms.Manisha Lavkumar Shah, learned Senior

Counsel appearing on behalf of respondent No.1 by

seeking leave of the Court to file affidavit-in-reply on

behalf of respondent No.1, has filed affidavit-in-reply on

being granted leave and by reiterating the contentions

raised thereunder, she has raised preliminary objection

with regard to the maintainability of this writ petition

contending that petitioner has attempted to mislead the

Hon'ble Court by suppressing the provisions related to

public hearing envisaged in notification dated 14.09.2006

which has since been amended on 09.05.2022,

particularly Paragraph 3.0 of the notification dated

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14.09.2006 which pertains to public hearing and the

procedural aspect thereunder. She would submit that

Paragraph 3.1 prescribes such procedure, whereas

Paragraph 3.3 prescribes the procedure relating to

exigency when the hearing stands deferred. She would at

the first instance contend that present writ petition was

filed on 11.10.2022 and affirmed on the same day, and it

was registered on 14.10.2022 and even before

registration of this petition could take place, petitioners

had submitted before the Hon'ble Supreme Court that

matter was not being listed which is factually incorrect

and as though depicting that petitioner is fair to the

Court, they have withdrawn the writ petition filed before

Hon'ble Apex Court on 13.10.2022 with liberty to make

appropriate mention before this Court and on the score of

material suppression of facts, this writ petition is liable to

be dismissed. By drawing our attention to Paragraph 3.3,

which has been substituted by a notification dated

09.05.2022, she would submit that in the instant case, the

public hearing was deferred when it was held on

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06.04.2022 and petitioner had constructive knowledge of

the said change of procedural law and despite the same,

by suppression of facts this writ petition has been filed.

She would further elaborate her submissions by

contending that first hearing was notified on

03/04.03.2022 to be held on 06.04.2022 which was in

consonance with Paragraph 3.1. Hearing to be held on

06.04.2022 was deferred in the background of then

prevalent law and order situation at the venue of public

hearing and as opined by the Collector, Kutch, and

thereafter the deferred hearing was notified on

13.09.2022 - 01.10.2022 to be held on 17.10.2022 as per

Paragraph 3.3(a) of the notification dated 09.05.2022

which prescribes 15 days' notice period. Hence, she

would contend that at no stage there was infraction in the

procedural law of holding public hearing as is necessary

and mandated under the notification dated 14.09.2006

read with 09.05.2022. She would also contend that

foundation of the entire case of petitioners is based on

notification dated 14.09.2006 and now arguments have

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sprung or canvassed from the petitioners' side assailing

the legality of notification dated 09.05.2022 without even

seeking amendment of the pleadings and petitioners'

counsel has sought to propound his arguments by

attacking the notification dated 09.05.2022 without there

being iota of plea or foundation being laid in the

pleadings. Notwithstanding the absence of plea and in

light of the arguments now canvassed, she would contend

that procedural aspect has alone been modified under the

notification dated 09.05.2022 and post adjourned

hearing. She would submit that amended notification

dated 09.05.2022 has come into force by virtue of which

Paragraph 3.3(a) having been inserted after Paragraph

3.3. She would also submit that there is no infraction of

law and public interest does not suffer and in any event

the only contention raised by the petitioners relates to

reducing the notice period of public hearing. She would

also submit that petitioner would not be in position to

contend of any prejudice, inasmuch as, the time

prescribed under the notification dated 09.05.2022 was

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available and as such there is no merit in this petition and

she prays for dismissal of the petition. She would also

draw attention of the Court to para 100 of the judgment

of the Hon'ble Apex Court in the case of Securities

Exchange Board of India versus Rajkumar Nagpal

and Others (supra), to contend that the notification

dated 09.05.2022 now sought to be impugned by way of

oral arguments is without merit. She would also contend

that first public notice was published on 02.03.2022 for

public hearing to be held on 06.04.2022, and thereafter

rescheduled hearing was notified on 26.09.2022 to be

held on 17.10.2022 and as such a sufficient time gap is

maintained and therefore petitioners cannot plead there

was any lack of opportunity or lack of time to put-forth

their views in the public hearing that was being held on

17.10.2022.

10. Mr.Mihir Joshi, learned Senior Counsel

appearing for respondent No.5 would support the

arguments canvassed by Ms.Manisha Lavkumar Shah,

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learned Senior Advocate and he would contend that only

grievance of the petitioners is that there is insufficient

time and he would submit that between first public notice

till the public hearing scheduled to be held today, 7

months gap is there and it can be easily inferred that

petitioners knew 7½ months back itself about the project.

Hence, he would contend that grievance of the petitioners

with reference to the adjourned hearing of there being

time constraint, is baseless and frivolous, particularly

when in the first public hearing 30 days has been clearly

maintained. Hence he prays for dismissal of the petition.

11. In reply, learned advocate Mr.A.J.Yagnik, would

submit that contention of Mr.Mihir Joshi, learned Senior

Counsel, about the grounds urged by the petitioners

being frivolous is without any basis and he prays for

allowing the petition by granting the prayers sought for in

the petition and prays for quashing of the notice dated

26.09.2022.

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DISCUSSION AND FINDINGS :

12. Having heard the learned advocates appearing

for parties and after bestowing our careful and anxious

consideration to the rival contentions raised at the bar,

we notice that fifth respondent has proposed to set up a

Soda Plant at Bada Village, Mandavi Taluka, Kutch

District. The said project falls within the category "A" of

the notification dated 14.09.2006 (Annexure 'A'). The said

notification mandates public consultation for setting up

industries requiring prior Environment Clearance (EC). A

mandatory public hearing has to be held for the

stakeholders to have necessary information about the

project and adequate opportunity to represent and

address their environmental concern with regard to the

project is the underlying object of the said public hearing.

Paragraph 7 of the notification prescribes the stages in

the prior Environmental Clearance (EC) process to be

adopted for new project and stage 3 of Paragraph 7

indicates the manner in which the process of "public

consultation" is to be conducted. Paragraphs 3.0, 3.1 to

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3.4 prescribes the procedure for issuance the notice of

public hearing which reads thus :

"APPENDIX IV

(See Paragraph 7)

PROCEDURE FOR CONDUCT OF PUBLIC HEARING

1.0 xxxx

2.1 to 2.4 xxxx

3.0 Notice of Public Hearing

3.1 The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date, time and exact venue for the conduct of public hearing within 7(seven) days of the date of receipt of the draft Environmental Impact Assessment report from the project proponent, and advertise the same in one major National Daily and one Regional vernacular Daily / Official State Language. A minimum notice period of 30 (thirty) days shall be provided to the public for furnishing their responses;

3.2 The advertisement shall also inform the public about the places or offices where the public could access the draft Environmental Impact Assessment report and the Summary Environmental Impact Assessment report before the public hearing. In places where the newspapers do not reach, the Competent Authority

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should arrange to inform the local public about the public hearing by other means such as by way of beating of drums as well as advertisement / announcement on radio / television.

3.3 No postponement of the date, time, venue of the public hearing shall be undertaken, unless some untoward emergency situation occurs and then only on the recommendation of the concerned District Magistrate / District Collector / Deputy Commissioner, the postponement shall be notified to the public through the same National and Regional vernacular dailies and also prominently displayed at all the identified offices by the concerned SPCB or Union Territory Pollution Control Committee;

3.4 In the above exceptional circumstances fresh date, time and venue for the public consultation shall be decided by the Member -Secretary of the concerned SPCB or UTPCC only in consultation with the District Magistrate / District Collector / Deputy Commissioner, and notified afresh as per procedure under 3.1 above."

13. A plain reading of Paragraph 3.1 would indicate

that minimum period of 30 days is to be provided

between the date of notice of public hearing and actual

date of public hearing. The fifth respondent has

submitted a request letter on 15.11.2021 along with

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Environment Impact Assessment Report and compliance

for holding public hearing by inviting objections from the

general public and upon receiving the said request,

respondent No. 1 has instructed its Regional Office to fix

the public hearing as requested by respondent No. 5.

Accordingly, public advertisement was published on

04.03.2022 in English Daily 'Times of India' and Gujarati

Daily 'Divya Bhaskar' on 03.03.2022 (Annexure R-1). The

hearing was held as scheduled on 06.04.2022 well after

30 days as prescribed under the Paragraph 3.1 of the

notification dated 14.09.2006. On account of law and

order situation having stood grim, Collector, Kutch

resolved to defer the public hearing as is evident from the

proceeding drawn by the Collector on 06.04.2022

(Annexure R-2). By virtue of power vested under

Paragraph 3.3, said recourse was taken to by the

Collector.

14. Before postponed hearing could be convened,

the notification dated 14.09.2006 came to be amended by

notification dated 09.05.2022. The reasons and the object

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with which amendment to Paragraph 3.3 of Appendix-IV

being brought amongst other amendments, is traceable in

the said notification itself which it reads thus :

"MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE NOTIFICATION New Delhi, the 9th May, 2022

xxxxxx

And whereas, on certain occasions, the public hearings have been postponed due to various reasons often being beyond the control of the Project Proponent and as per the provisions of the EIA Notification 2006, the whole process for the public hearing is to be started afresh resulting in undue delay in completing the EC process;

And whereas, one of the factors which results in delay or postponement of the public hearings is the nonavailability of the District Magistrate or his representative not below the rank of an Additional District Magistrate to preside over the proceedings of the public hearing;

And whereas, the Central Government has been receiving representations to streamline the public hearing process;

And whereas, the Central Government taking into account the public interest involved, deems it necessary to streamline the process of the public hearing by reducing undue delays and facilitating

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public participation without interrupting the access to the information pertaining to the project and also make a provision for the District Magistrate to authorise an officer not below the rank of Sub-Divisional Magistrate to preside over the Public Hearing to avoid such delay;"

15. Pursuant to the same, fresh public notice was

issued on 26.09.2022 and on 30.09.2022, the

Jurisdictional Talati-cum-Mantri, Village Bada Panchayat

was informed by office of 1st respondent by calling upon

the said office to publish the "Gujarati Executive

Summary" on the notice board of village for attention of

the villagers, apart from publishing the same in two

newspapers. The procedure prescribed under Paragraph

3.3(a) of the notification dated 09.05.2022 came to be

followed or resorted to under public hearing notice dated

26.09.2022. The public hearing was scheduled to be held

on 17.10.2022 at 11:00 hrs. According to the respondent

No.1, 15 days' period is prescribed under Paragraph

3.3(a) which provides for 15 days notice, which is sought

to be contended by the petitioners as being contrary to

Paragraph 3.1. It is to be borne in mind that hearing at

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the first instance came to be held on 06.04.2022 as per

public hearing notice dated 02.03.2022. However, said

public hearing could not take place or in other words the

public consultation process did not get fructified and

before public hearing could start, there was severe

protest against the project and as such the Collector

opined that due to huge amount of turbulence by the

public and none of them being ready to listen and public

who had gathered were coming near the dais with black

flags on their arms and despite efforts of the police

personnel present at the site not yielding result, Collector

was of the opinion that atmosphere was not conducive to

conduct public hearing. Hence, public hearing came to be

deferred.

16. It is in this factual scenario, the postponed

hearing was required to be held and no doubt under the

unamended notification dated 14.09.2016 even for the

postponed hearing Paragraph 3.4 or Paragraph 3.1 of the

said notification was applicable or could be attracted

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namely 30 days notice was required to be given for public

hearing. Whereas, in the instant case, after the first

hearing took place on 06.04.2002 which did not culminate

in effective public hearing being concluded and same

having been postponed, as per the opinion of the

Collector resulted in fresh proceedings being initiated. At

that point of time, the fresh notice was issued on

26.09.2022 and the hearing date was fixed as 17.10.2022

by giving more than 15 days' time. It would be benefit to

note at this juncture itself that the Central Government

having felt that on certain occasions, the public hearing

having been postponed due to various reasons, often

being beyond the control of the project proponent and the

whole process of public hearing is to be started afresh

was resulting in undue delay in completing the

e-environmental clearance process deemed fit to amend

the notification dated 14.09.2006. Amongst other reasons

which was held as deemed to be necessary to amend the

notification of 14.09.2006 and to remove such lacuna to

streamline the process of public hearing by reducing

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undue delay and also facilitating public participation

without interrupting the access to the information

pertaining to the project, the Government of India in

exercise of power conferred by Section 1 and clause (v) of

sub-section (2) of Section 3 of the Environment

(Protection) Act, 1986, read with sub-rule (iv) of Rule 5 of

the Environment (Protection) Rules, 1986, brought about

amendment to the notification dated 14.9.2006 by

incorporating certain amendments. Paragraph 3 of the

notification dated 14.9.2006 was also amended as under :

"3.3(a) In the event of any such postponement referred to in sub-paragraph 3.3, the time duration for convening the rescheduled public hearing should not be less than forty-five days from the date of first advertisement already published in accordance with para 3.1 for initial date of public hearing and it shall be ensured that a minimum notice period of fifteen days shall be provided to the public before the re-

scheduled date of the public hearing, for furnishing the responses in writing: Provided that SPCB or UTPCC along with concerned authorities, as mentioned at para 2.2, shall ensure that all requisite documents are available to public in accordance with sub- paragraphs 2.3 and 2.4 from the date of first advertisement published for the initial date of

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public hearing till convening of the rescheduled public hearing."

17. In Maxwell Interpretation, 11 th Edition, page 216,

'it has been held a change in law of procedure operates

retrospectively and unlike the law relating to the vested

right is not only prospective'. The Hon'ble Apex Court in

the case of Anant Gopal Sheorey vs. The State of

Bombay [AIR 1958 SC 915] has held 'no person has a

vested right in any course of procedure. He has only the

right of prosecution or defence in the manner prescribed

for the time being by or for the Court in which the case is

pending and if by an Act of Parliament the mode of

procedure is altered he has no other right than to

proceed according to the altered mode'. In the instant

case, paragraph 3.1 referred to hereinabove supra of the

notification dated 14.9.2006 prescribes for minimum

notice period of 30 days for public for furnishing their

response from the date of notice. Paragraph 3.3 would

indicate that there can be postponement of the date, time

and venue of the public hearing if there were to be

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untoward emergency situation occurring and it can only

be on the recommendation of the concerned District

Magistrate / District Collector / Deputy Commissioner.

The unamended paragraph 3.4 of the same notification

also indicates that even in respect of postponed public

hearing where fresh date, time and venue for public

consulting is being undertaken, the procedure as

prescribed under paragraph 3.1 requires to be followed.

However, Paragraph 3.3 as noticed hereinabove came to

be amended by adding 3.3(a). A plain reading of the

same would indicate that in the event of any

postponement referred to in sub-paragraph 3.3 were to

occur, time duration for convening the first rescheduled

public hearing has been fixed as not being less than 45

days from the date of first advertisement. In the instant

case, the first advertisement for public hearing was

issued on 02.03.2022 and the rescheduled public hearing

as per the impugned notice dated 26.09.2022 has been

fixed as 17.10.2022 and as such, it meets this

requirement of 45 days. The amended paragraph also

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prescribes for minimum notice period of 15 days should

be provided to the public before the rescheduled date of

hearing taken place to enable the stake-holders to

furnish their responses in writing. This mandate is also

complied in the instant case as evident from the notice

dated 26.9.2022, and we say so for the simple reason that

if period of 15 days as prescribed under Paragraph 3.3(a)

is reckoned from the date of notice to the date of public

hearing viz. 17.10.2022, the prescribed 15 days' period is

met. It is to be further noticed that Pollution Control

Board along with concerned authorities are required to

ensure that all requisite documents are available to

public in accordance with sub-paragraphs 2.3 and 2.4 of

the EC Notification Appendix 4 from the date of first

advertisement published for the initial date of public

hearing till convening of the rescheduled public hearing.

In other words, it would indicate that it would be in

retrospective effect. It is this amendment of insertion of

Paragraph 3.3(a) which has been brought about is sought

to be assailed by Mr. A.J.Yagnik by making a futile

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attempt and we say so for reasons more than one. Firstly,

it requires to be noticed that the Constitution Bench of

the Hon'ble Apex Court in the case of Assistant

Commissioner of Urban Land Tax vs. Buckingham

and Carnatic Co. Ltd. [(1969) 2 SCC 55] quoted with

approval the following procedure:

"23. In Harvard Law Review, Vol. 73, p. 692 it was observed that :

'It is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called 'small repairs'. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislature's or administrator's action had the effect it was intended to and could have had, no such right would have arisen. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individual's interest in benefiting from the defect'."

18. The Hon'ble Apex Court in the case of State

Bank's Staff Union (Madras Circle) vs. Union of

India and Others [(2005) 7 SCC 584] while generally

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explaining the expressions 'retrospective', 'retro active'

and 'retro activity', has held to the following effect :

"24. Craies on Statute Law (7th Edn.) at p. 396 observes that:

"If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right."

Thus public interest at large is one of the relevant considerations in determining the constitutional validity of a retrospective legislation.

25. The above position was elaborately noted in Virendra Singh Hooda and Ors. v. State of Haryana & Anr. (2004 (12) SCC

588).

26. Curative Statutes are by their very nature intended to operate upon and affect past transactions. Curative and validating statutes operate on conditions already existing and are therefore wholly retrospective and can have no retrospective operation."

19. In the recent judgment, the Hon'ble Apex Court in

the case of Securities and Exchange Board of India

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vs. Rajkumar Nagpal and Others [2022 SCC OnLine

SC 1119] has held:

"100. We are of the opinion that the SEBI Circular has retroactive application. In Principles of Statutory Interpretation by Justice G.P. Singh (14th edition, 2016 at page

583), it is stated that:

"The rule against retrospective construction is not applicable to a statute merely because "a part of the requisites for its action is drawn from a time antecedent to its passing". If that were not so, every statute will be presumed to apply only to persons born and things which come into existence after its operation and the rule may well result in virtual nullification of most of the statutes."

20. In this background, when the notification dated

09.05.2022 is examined though not in fact has been

challenged in this Special Civil Application by laying

foundation in the form of pleadings, yet on account of an

argument having been canvassed during the course of

oral submissions and the learned advocate appearing for

the petitioners having tried to build a new case by

assailing this notification, we have considered the

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submissions as of the learned advocate appearing for the

petitioners and the rebuttal arguments addressed by the

learned advocates appearing for the respondents as noted

hereinabove and find the contention raised is without any

substance. We also notice that sum and substance of the

grievance of the petitioners is lack of time in the

postponed hearing being held on 17.10.2022. The said

contention is also bereft of merit for the simple reason

that original notice of public hearing was published way

back on 02.03.2022 whereunder the public hearing was

fixed on 06.04.2022 which was held but it did not ripen

itself or blossom into a full-fledged public hearing on

account of there being commotion and the authorities

having anticipated law and order problem resulted in

said hearing being postponed. It is this postponement

which has led to the issuance of fresh notice under the

amended notification under which the time gap of 30 days

fixed for the public hearing came to be modified by

insertion of paragraph 3.3 (a) by reducing the notice

period to 15 days and maintaining 45 days prescribed in

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Paragraph 3.1 from the date of first advertisement

already published which the petitioners cannot be heard

to contend that even in case of postponing hearing, they

are entitled to 30 days' notice period as prescribed under

paragraph 3.1. The said contention is without any

substance and is liable to be rejected and accordingly, it

stands rejected.

REASONS FOR IMPOSING COSTS ON PETITIONERS :

21. Petitioners herein are not rustic villagers or being

ignorant of the prevalent law and we say so for the reason

that verifying affidavit of the writ petition has been sworn

to by petitioner No.4 who is said to be an Environmental

Researcher and has been working in Kutch region since

long and claims to have contributed in several significant

studies and projects concerning environment and

sustainable development. We have no reason to disbelieve

the said statement and even if it is accepted at its face

value, the irresistible conclusion which we are perforced

to arrive is that petitioner No.4 is conversant with all

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environmental laws and is attempting to espouse the

public cause knowing well the environmental laws. It is in

this background the averment made in the petition has

been looked into and examined by us. When seen in this

background, we cannot lose sight of the fact that

petitioner Nos.1, 2 and 3 in general and petitioner No.4

in particular being ignorant or not aware of the

amendment brought about to the notification dated

14.09.2006. It is for this precise reason, we posed a

specific question to the learned advocate appearing for

the petitioners as to the reason for not placing on record

the notification dated 09.05.2022 which was placed just

before commencement of the arguments, the too, without

any pleadings for which he had replied that it had gone

unnoticed by the petitioners, which is very hard to be

digested in the background of what we have narrated

about the background of the petitioners and they having

pleaded details of prevalent laws at micro level in their

Special Civil Application. In other words, petitioners seem

to have adopted a trick and stratagem to obtain

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ad-interim ex-parte orders to stall the public hearing

which was scheduled to be held on 17.10.2022 and that

too pleading in their Special Civil Application about their

being violation of conditions stipulated under notification

dated 14.09.2006, which notification had been amended

by notification dated 09.05.2022 which they were aware

and yet had suppressed. Even question posed to the

learned counsel as to why petitioners had not placed this

amended notification at earlier point of time, his answer

was this had gone unnoticed and reason not being

petitioners having forgotten or same not being in their

knowledge. In other words, they knew about notification

dated 09.05.2022 having come into effect even as on date

of filing of Special Civil Application on 11.10.2022, yet

suppressing this and projecting only 14.09.2006

notification holds the field, they intended to snatch an

order from this Court and by this process they intended

to stall the entire process of public hearing and proclaim

themselves as messiah of public cause which is otherwise.

Though we were inclined to dismiss the petition at the

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threshold by nipping at the bud and prevent the

misadventure undertaken by the petitioners and also by

applying the doctrine of suppressio veri and suggestio

falsi viz. suppressing the truth and suggesting the

falsehood, yet, we decided to receive the said notification

dated 09.05.2022 on record to examine even the remote

public interest does not suffer on account of any technical

error. Even after having posed the question to the

learned advocate appearing for the petitioners as noticed

hereinabove, petitioners did not choose to amend the

petition or the prayer sought for in the petition but on the

other hand, they insisted for interim prayer also being

granted, though they have addressed the arguments on

merits of the case.

22. The Hon'ble Apex Court in the case of Shri K.

Jayaram and others vs. Bangalore Development

Authority and others in Civil Appeal No.7550-7553

of 2021 disposed of on 8.12.2021, has observed:

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"12. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.

13. This Court in Prestige Lights Ltd. V. State Bank of India has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. It was held thus:

"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that

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when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter."

14. In Udyami Evam Khadi Gramodyog Welfare Sanstha and Another v. State of Uttar Pradesh and Others2, this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law."

23. Prerogative writs are issued for doing substantial

justice. Hence, petitioners approaching the writ court

must exercise due diligence; approach with clean hands

by placing all the material facts before the court without

concealing or suppressing anything. The courts would be

knowing the law and not the facts and if a litigant were to

suppress the facts and attempt to snatch an order from

the court, cannot go scot-free or in other words, such

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litigant requires to be dealt with deft and iron hands and

in such circumstances, the court would be perforced to

impose costs on such persons. Though in the normal

course, we would have desisted from making any

observation in this regard, the facts unfolded in the

present case including the conduct of the petitioners

would not inspire confidence in us except observing that

petitioners cannot be extended the benefit of doubt. The

pleas put-forth in the writ petition do not disclose about

petitioner Nos.1, 2 and 3 being rustic villagers or

illiterate persons or not being well conversant with the

procedural law and particularly petitioner No.4 who is

said to be an Environmental Researcher who is required

to exercise utmost care and caution while espousing a

public cause. The Hon'ble Apex Court in the case of K.D.

Sharma vs. Steel Authority of India Limited and

Others [(2008) 12 SCC 481] has observed thus:

"39. If the primary object as highlighted in Kensington Income Tax Commissioners is kept in mind, an applicant who does not come with candid facts and `clean breast' cannot hold a

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writ of the Court with `soiled hands'. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, maneuvering or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the Court, the Court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the Court does not reject the petition on that ground, the Court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of Court for abusing the process of the Court."

24. The judgment of Vijay vs. State of Maharashtra

referred to supra would not come to the rescue of the

petitioners in view of our opinion expressed with regard

to retrospective operation by applying the principles laid

down by the Hon'ble Apex Court in the case of SEBI vs.

Rajkumar Nagpal referred to supra.

25. In the case of Dnyandeo Sabaji Naik and

Another vs. Pradnya Prakash Khadekar and Others

[(2017) 5 SCC 496], Hon'ble Apex Court has held that

where any attempt by litigant to abuse the process of the

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law is made, it must be viewed seriously as sanctity of the

judicial process will be seriously eroded if such attempts

are not dealt with firmly. It has also been held that a

litigant who takes liberties with the truth or with the

procedures of the Court should be left in no doubt about

the consequences to follow, so that others would not

venture along the same path in the hope or on a

misplaced expectation of judicial leniency. It has been

further held:

"14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the

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system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner."

26. In fact, abuse of process of the court or anything

done in oblique motive has been held by the Hon'ble Apex

Court as interfering with the administration of justice and

the polluters of judicial firmament are required to be well

taken care of. It has been held :

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"The polluters of judicial firmament are required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice."

27. For these myriad reasons, we are of the considered

view that the petitioners are to be mulcted with costs.

28. For the reasons aforestated, we proceed to pass

following

ORDER

(i) Writ petition is hereby dismissed with costs;

(ii) Petitioners are directed to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) payable to respondent No.1 for being utilised for the welfare of project displaced persons, if any.

(ARAVIND KUMAR, CJ)

(ASHUTOSH J. SHASTRI, J) GAURAV/BH/AM