Kerala High Court
One Earth One Life vs Ministry Of Environment,Forests And ... on 6 March, 2024
Author: V.G.Arun
Bench: V.G.Arun
W. P. (C) No. 3097 of 2016
-1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
WP(C) NO. 3097 OF 2016
PETITIONER/S:
ONE EARTH ONE LIFE
AGED 57 YEARS
REPRESENTED BY ITS LEGAL CELL DIRECTOR, SRI.TONY
THOMAS K., IRUMBAKACHOLA, MANNARKAD P.O.,
PALAKKAD DISTRICT.
BY ADVS.
SRI.RAJAN VISHNURAJ
SRI.P.CHANDRASEKHAR
SRI.V.HARISH
RENJITH THAMPAN (SR.)
RESPONDENT/S:
1 MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE
CHANGE
FORESTS AND CLIMATE CHANGE, PARYAVARAN BHAVAN,
CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003,
REPRESENTED BY ITS SECRETARY.
2 STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY
DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE,
PALLIMUKKU, PETTAH P.O., THIRUVANANTHAPURAM - 695
024.
BY ADVS.
SHRI.BABU P.L., CGC
MANU S., DSG OF INDIA
S. BIJU
V. TEKCHAND, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 3097 of 2016
-2-
JUDGMENT
A. J. Desai, C. J.
The question involved in this public interest litigation is
'whether a notification can be issued by the Government different
than the draft notification issued for the purpose involved
therein?'.
2. The petitioner, an organization registered under the
Travancore-Cochin Scientific, Literary and Charitable Societies
Registration Act, 1955, working with the sole intention to protect
and improve the forests and safeguard the environment,
challenged Ext. P1 notification dated 22.12.2014 issued by the
Ministry of Environment, Forests and Climate Change on various
grounds, but mainly on the ground that the notification is contrary
to the draft notification issued on 11.09.2014 and the observation
in the notification that no objections or suggestions were received
by the Department in response to the draft notification is factually
incorrect.
3. Though notice was issued by this Court, no counter
affidavit came to be filed on behalf of the respondents for a
considerably long time. Thereafter, a Division Bench of this Court
passed the following order on 08.09.2020:-
"Though orders were passed in the year 2018
directing the respondents to respond to the prayers sought for
and though on several occasions, time was also granted by
this court, no counter affidavit has been filed to the writ
petition from 2016 onwards.
2. Mr.R.Prasanthkumar, learned Central Government
Counsel for the respondents seeks some more time to file
counter affidavit. Though considerable time has been granted
for the above said purpose, even a statement/counter
affidavit is not filed.
3. Mr.V.Harish, learned counsel for the petitioner
submitted that on account of non-grant of stay of the
impugned notification, several buildings have been
constructed without any environmental clearance. It is also
brought to the notice of this court that under similar
circumstances, taking note of the failure in filing the counter
affidavit despite considerable time being granted, High Court
of Karnataka has granted interim stay of the impugned
notification No.3252(E) dated 22.12.2014. Learned counsel
for the petitioner also submitted that when the present writ
petition came up for hearing, after perusal of the files
produced by the Ministry of Environment, Forest and
Climate Change, New Delhi, a Hon'ble Division Bench of
this court noticed that there was a letter of the Ministry of
Environment, Forest and Climate Change, addressing the
Law Ministry, accepting the mistake in the impugned
notification and on the directions of the Division Bench,
copy of the said letter was also furnished to the learned
counsel for the petitioner.
4. On the above said aspect, learned counsel for the
petitioner is directed to produce a copy of the letter of
Ministry of Environment, Forest and Climate Change, New
Delhi addressed to the Law Department. He is further
directed to produce a copy of the order of stay granted by the
High Court of Karnataka."
4. Thereafter, the matter was again called by the Division
Bench on 17.09.2020 and the following order passed by which a
stay came to be granted against the modification to the definition
of built up area brought about by Ext. P1 notification dated
22.12.2014;
"The writ petition is filed by a voluntary organisation
challenging an amendment to the Environmental Impact
Assessment Notification dated 22.12.2014 produced as Ext.
P1 issued by the Ministry of Environment, Forest and
Climate Change, Government of India, New Delhi.
2. The grievance of the petitioner is that vide Ext.P1,
the first respondent has modified the definition of 'built up
area' providing exemptions to clause 8(a) and (b) from the
application of general conditions contained under the
Notification in question. It is also the case of the petitioner
that the impugned order is in contravention of sub-Rule (3)
of Rule 5 of the Environment (Protection) Rules, 1986
('Rules, 1986' for brevity). With the above backdrop, the
petitioner seeks to quash Ext.P1 notification to the extent to
which it inserts an amended Note that tinkers the impact and
scheme of the amending Notification No. SO1533(E) dated
14.09.2006 issued under sub-Rule (3) of Rules, 1986, by
inter alia modifying/diluting the definition of 'built up area'
and thus, providing exemption to clause (8)(a) by way of
Note 1 and further to the extent to which the amended
Notification exempts the entries under clause 8(a) and (b)
from the application of general conditions contained under
the original EIA Notification, 2006, and for other
consequential reliefs.
3. When the matter came up for admission on
27.01.2016, respondents were granted four weeks' time to
file counter affidavit and thereafter, the case was being listed
periodically. On 05.10.2016, this court has granted three
weeks' time as a last chance to file counter affidavit, if any,
and further the Ministry of Environment was directed to
place on record the files relating to the decision making
process. Even though such a peremptory direction was
issued, no counter was filed in spite of periodical postings of
the case. On 14.06.2018, at the request of the respondents,
four weeks' time was again granted by this court and in spite
of the same, it was not filed. Thereupon, on 31.07.2018,
when the matter was posted, the Standing Counsel sought
further time for additional instructions for a period of three
weeks and the same was granted as a last chance. On
27.05.2019, the learned Standing Counsel for the
Government of India submitted before the Court that he has
received instructions and had undertaken to file the counter
affidavit within three weeks. Accordingly, the matter was
adjourned for a further period of three weeks. Subsequently,
when the matter was posted, there was no representation for
the respondents and therefore, the case was adjourned. The
case was posted before us on 29.05.2020 and it was
adjourned to 16.06.2020 at the request of the respondents.
On 16.06.2020, again time was sought for for filing counter
affidavit and accordingly, two weeks' time was granted, on
which day it was recorded that the counsel for the respondent
submitted that counter affidavit has been sent for filing and
due to Pandemic Covid -19, there is some delay.
Accordingly, time was extended by a further period of two
weeks to file the counter affidavit and the case was posted to
14.08.2020. On 14.08.2020, time was again sought and
posted the case to 08.09.2020. On 08.09.2020, a detailed
order was passed by this Court expressing dissatisfaciton due
to the non-compliance of the directions to file counter
affidavit. However, the matter was posted to this day. Today
also, no counter affidavit is filed. However a statement is
filed by the counsel and submitted that the statement filed is
not authenticated by the concerned authority and the same
was filed on telephonic instructions. Learned counsel for the
petitioner has produced additional documents along with I.A.
No. 2 of 2020, inter alia various orders passed by this Court,
the National Green Tribunal, Principal Bench, New Delhi
and other notifications/order issued by the Government of
India etc..
4. We have heard the respective counsel for the
purpose of interim orders since the interim orders was being
pressed for the Counsel for the petitioner on the ground that
in the guise of Ext. P1 notification, permits are granted in
absolute violation of the Environment (Protection) Act, and
the original EIA Notification issued in the year 2006. it is
also pointed out that the drastic amendment to section 8(a)
was brought without an appropriate draft notification, which
is a mandatory requirement under the notification issued by
the Government of India and therefore, Ext. P1 notification
to that extent cannot be sustained and so also, the same is in
violation of the sub-Rule (3) of Rule 5 of the) Rules, 1986.
Learned counsel representing the central Government
Counsel submitted that further time is required to place the
counter affidavit and make submissions in respect of the
contentions advanced by the petitioner
5. We have evaluated the rival submissions and is of
the opinion that the subject matter requires serious
consideration, since we find that there is some force prima
facie in the contentions advanced by the petitioner.
Therefore, the balance of convenience requires that undue
advantage is not taken by the builders by carrying out
constructions, in the guise of that part of Ext.P1 notification,
which is seriously under challenge being violative of the
Notification of the Government of India and the Rules, 1986.
Therefore, we are of the opinion that in order to protect the
environmental issues, an interim order is granted effective
from today onwards. Therefore, there will be a stay of Ext.
P1 notification to the extent of modification by the definition
of built up area provided to clause 8(a) by way of Note 1 to
the effect that the projects or activities shall not include
industrial shed, school, college, hostel for Educational
Institutions, but such buildings shall ensure environmental
management, solid and liquid waste management, rain water
harvesting and may use recycled materials, such as fly ash,
bricks, for a period of two months."
5. Thereafter, the matter was listed for final hearing.
Ultimately, on 10.01.2024, a counter affidavit was filed by the
respondents to which there is no rejoinder.
6. The case put forth by the petitioner is that the 1st
respondent Ministry of Environment, Forests and Climate Change,
by issuing a draft notification dated 11.09.2014, had called upon
the persons interested in making any objection or suggestion to the
proposed amendment to the original notification dated 14.09.2006
issued by the Central Government with respect to the requirement
of getting environment clearance for different types of
construction. It is the case of the petitioner that, in spite of
receiving several suggestions and objections to the draft
notification, the respondent Department issued final notification
under Rule 5 of the Environment (Protection) Rules, 1986, stating
that no objections or suggestions were received by the
Department.
7. Learned Senior Counsel appearing for the petitioner
would submit that, for the first time, by filing a counter affidavit in
the month of January 2024, the respondents tried to clarify that
there was a typographical error in issuing the notification dated
22.12.2014, stating that no objections or suggestions were
received. He would submit that, even though suggestions or
objections were received, as admitted by the respondent
Department, there is no discussion about the same in the final
notification. He would further submit that, even otherwise, the
final notification is totally different from the draft notification
earlier issued on 11.09.2014. He would submit that, in the draft
notification, it is specifically mentioned that the project or
activities covered under the notification will be residential
buildings, commercial buildings, hotels, hospitals, hostels, office
blocks, Information Technology / Software Development Units /
Parks, whereas by the final notification, certain buildings like
industrial sheds, schools, colleges and hostel for educational
institutions are excluded, which was not the intention of the
Department while issuing the draft notification. He therefore
would submit that, on both these grounds, the notification dated
22.12.2014 is required to be quashed and set aside.
8. He would further submit that, under Section 23 of the
General Clauses Act, 1897, if any changes are to be made after
previous publication of rules or bye-laws, certain conditions are
required to be followed and the most important condition is to
invite objections from the public at large. He would submit that,
publishing a draft notification inviting objections or suggestions
and thereafter, issuing final notification totally different from the
draft notification, would vitiate the process, since there was no
occasion for the public to know about the changes made to the
final notification. It is submitted that, even in the absence of any
objections or suggestions to the draft notification, the Government
cannot issue a different final notification.
9. Relying upon a decision of the Bombay High Court in
Avinash Ramakrishna Kashiwar and Others v. State of
Maharashtra and Others [AIR 2015 NOC 535] in PIL No. 72
of 2013 dated 10.12.2014, learned Senior Counsel would submit
that the Bombay High Court, on a similar set of facts, quashed and
set aside a final notification which was different from the draft
notification. Reliance is also placed upon a decision of this Court
in Kerala State Road Transport Corporation v. Saju Varkey
and Others [2018 (4) KHC 617]. He therefore would submit that
the writ petition requires to be allowed on these grounds.
10. On the other hand, learned Central Government Counsel
would submit that, since there was a mistake on the part of the
authority while issuing the final notification dated 22.12.2014, in
stating that no objections or suggestions were received to the draft
notification, they tried to correct the same by informing the
Ministry of Law and Justice. However, the Legislative
Department of the Ministry of Law and Justice by communication
dated 29.09.2016, informed that it is not possible to amend the
notification. By taking us through the counter affidavit, he would
submit that the objections received by the Department have been
considered and thereafter, the notification has been issued. In
answer to the contention regarding the change in the final
notification, he would submit that, earlier, almost all the buildings
having specified built up area were required to obtain
environmental clearance certificate. However, buildings like
industrial sheds, schools, colleges and hostel for educational
institutions have been exempted by final notification. He would
submit that, the change was brought about considering the nature
of activity carried out in these buildings. Therefore, there is no
adverse effect on the public at large as far as the environment is
concerned. He would submit that, under Rule 5 of the
Environment (Protection) Rules, 1986, the Government is
empowered to modify the Rules and therefore, the petition may be
dismissed.
11. We have heard the learned Advocates appearing for the
respective parties.
12. The draft notification issued on 11.09.2014 reads as
under:-
"MINISTRY OF ENVIRONMENT, FORESTS AND
CLIMATE CHANGE
NOTIFICATION
New Delhi, the 11th September, 2014
S.O. 2319(E). The following draft notification further
to amend the notification of the Government of India in the
erstwhile Ministry of Environment and Forests number S.O.
1553(E), dated 14th September, 2006 which the Central
Government proposes to issue, in exercise of the powers
conferred by sub-section (1) and clause (v) of sub-section (2)
of section 3 of the Environment (Protection) Act, 1986 (29 of
1986), is hereby published, as required under sub-rule (3) of
rule 5 of the Environment (Protection) Rules, 1986 for the
information of the public likely to be affected thereby, and
notice is hereby given that the said notification will be taken
into consideration by the Central Government on or after the
expiry of sixty days from the date on which copies of the
Gazette of India containing this notification are made
available to the public;
Any person interested in making any objection or
suggestion on the proposals contained in the draft
notification may do so in writing within the period so
specified through post to the Secretary, Ministry of
Environment, Forests and Climate Change, Indira
Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi-
110 003 or electronically at email address: [email protected]
Draft Notification
In the Schedule to the said notification, for items 8(a) and
8(b), and the entries relating thereto, the following items and
entries shall be substituted, namely:-
(1) (2) (3) (4) (5)
"8 Building / Construction projects / Area
Development projects and Townships
8(a) Building and ≥20000 sq.mtrs The built up area for
Construction and the purpose of this
Projects Notification is
<1,50,000
defined as 'the built
sq.mtrs of
up or covered area
built-up area#
on all the floors put
together including
basement(s) and
other service areas,
which are proposed
in the
building/construction
projects.
Note:
(i) The projects or
activities covered are
residential buildings,
commercial
buildings, hotels,
hospitals, hostels,
office blocks and
information
technology / software
development units /
Parks
(ii) "General
Condition" is not
applicable.
8(b) Townships Covering an ++All projects under
and Area area ≥ 50 ha Item 8(b) shall be
Development and or built up appraised as Category
projects area ≥1,50,000 B1
sq.mtrs++
Note:
"General Condition" is
not applicable."
[F. No. 19-2/2013-IA.III]
AJAY TYAGI, Jt. Secy."
13. In the said notification, in the second paragraph, the
public at large was invited to raise objections or suggestions.
Accordingly, the Department had received many objections and
suggestions from various institutions or individuals throughout the
country, evident from the counter filed by the respondents.
However, if we see the language of the final notification dated
22.12.2014, it has been specifically stated that no objections or
suggestions were received in response to the earlier notification
dated 11.09.2014. Final notification dated 22.12.2014 reads as
under:-
"MINISTRY OF ENVIRONMENT, FORESTS AND
CLIMATE CHANGE
NOTIFICATION
New Delhi, the 22nd December, 2014
S.O. 3252(E).-Whereas, a draft notification further to
amend the notification number S.O 1555(E), dated the 14 th
September, 2006 (hereinafter referred to as the principal
notification), was published, as required under sub-rule (3)
of rule 5 of the Environment (Protection) Rules, 1986 in the
Gazette of India, Extraordinary, Part II, Section 3, sub-
section (ii) vide number S.O. 2319, (E) dated the 11 th
September, 2014 (hereinafter referred to as the said
notification), inviting objections and suggestions from all
persons likely to be affected thereby within a period of sixty
days from the date on which copies of Gazette containing the
said notification were made available to the public;
And whereas, copies of the said notification were
made available to the public on 11th September, 2014;
And whereas, no objections or suggestions have been
received in response to the said notification within the
specified period of sixty days;
Now, therefore, in exercise of the powers conferred
by Sub-section (1) and clause (v) of Sub-section (2) of
Section 3 of the said Environment (Protection) Act, 1986 (29
of 1986) read with clause (d) of sub-rule (3) of rule 5 of the
Environment (Protection) Rules, 1986, the Central
Government hereby makes the following amendments in the
said notification, namely:-
In the principal notification, in the Schedule, under
Column (1), for item 8 relating to Building / Construction
Projects / Area Development Projects and Townships and
sub-items 8 (a) and 8 (b) and the entries relating thereto,
specified there under, the following item, sub-items and
entries shall be substituted, namely:-
(1) (2) (3) (4) (5)
"8 Building or Construction projects or Area
Development projects and Townships
8(a) Building and ≥20000 sq.mtrs The term "built up
Construction and <1,50,000 area" for the purpose
Projects sq.mtrs of of this notification
built-up area the built up or
covered area on all
floors put together
including its
basement and other
service areas, which
are proposed in the
building or
construction
projects.
Note 1:- The projects
or activities shall not
include industrial
shed, school, college,
hostel for educational
institution, but such
buildings shall
ensure sustainable
environmental
management, solid
and liquid waste
management, rain
water harvesting and
may use recycled
materials such as fly
ash bricks.
(ii) "General
Conditions" shall not
apply.
8 Townships Covering an A project of Township
and Area area of >50ha and Area
Developmen and or built up Development Projects
t projects area > 1,50,000 covered under this
sq.mtrs. item shall require an
Environment
Assessment report and
be appraised as
Category 'B1' Project.
Note.- "General
Conditions" shall not
apply.
[F. No. 19-2/2013-IA-III]
MANOJ KUMAR SINGH, Jt. Secy."
In the above notification, it is specifically stated in paragraph 3
that no objections or suggestions were received.
14. It is true that the authority had requested the Ministry of
Law and Justice to permit them to amend the notification,
however, the same was refused by Ext. P11 communication dated
29.09.2016. If the authority had received such communication,
instead of amending the notification, the authority should have
considered the objections and suggestions in detail and could have
issued a fresh notification which is not the case on hand.
15. As far as the proposal made in column 5 of both
notifications is compared, there is a vast difference in the final
notification, by which certain buildings are exempted from getting
environmental clearance certificates. People at large were not
aware about the intention of the authority to modify the draft
notification and therefore, in our considered opinion, there is a
breach of Section 23 of the General Clauses Act, 1897, which
reads as under:-
"23. Provisions applicable to making of rules or
bye-laws after previous publication.--
Where, by any [Central Act] or Regulation, a power to
make rules or bye-laws is expressed to be given subject to the
condition of the rules or bye-laws being made after previous
publication, then the following provisions shall apply,
namely:--
(1) the authority having power to make the rules or
bye-laws shall, before making them, publish a draft of the
proposed rules or bye-laws for the information of persons
likely to be affected thereby;
(2) the publication shall be made in such manner as
that authority deems to be sufficient, or, if the condition with
respect to previous publication so requires, in such manner as
the [Government concerned] prescribes;
(3) there shall be published with the draft a notice
specifying a date on or after which the draft will be taken into
consideration;
(4) the authority having power to make the rules or
bye-laws, and, where the rules or bye-laws are to be made
with the sanction, approval or concurrence of another
authority, that authority also, shall consider any objection or
suggestion which may be received by the authority having
power to make the rules or bye-laws from any person with
respect to the draft before the date so specified;
(5) the publication in the [Official Gazette] of a rule
or bye-law purporting to have been made in exercise of a
power to make rules or bye-laws after previous publication
shall be conclusive proof that the rule or bye-law has been
duly made."
16. Sub-sections (1) to (4) of Section 23 makes it clear that
the public should be aware about the changes in the Rules, bye-
laws etc. In the present case, the public was not aware about the
difference between the draft and the final notifications.
17. Rule 5 of the Environment (Protection) Rules, 1986 is
relevant to the case on hand, wherein also there is a requirement of
public notice. The said Rule, as it then stood, reads as under:-
"5. Prohibitions and restrictions on the location of
industries and the carrying on processes and operations
in different areas.- (1) The Central government may take
into consideration the following factors while prohibiting or
restricting the location of industries and carrying on of
processes and operations in different areas:-
(i) Standards for quality of environment in its various
aspects laid down for an area.
(ii) The maximum allowable limits of concentration
of various environmental pollutants (including noise) for an
area.
(iii) The likely emission or discharge of
environmental pollutants from an industry, process or
operation proposed to be prohibited or restricted.
(iv) The topographic and climatic features of an area.
(v) The biological diversity of the area which, in the
opinion of the Central Government needs to be preserved.
(vi) Environmentally compatible land use.
(vii) Net adverse environmental impact likely to be
caused by an industry, process or operation proposed to be
prohibited or restricted.
(viii) Proximity to a protected area under the Ancient
Monuments and Archaeological Sites and Remains Act,
1958 or a sanctuary, National Park, game reserve or closed
area notified as such under the Wild Life (Protection) Act,
1972 or places protected under any treaty, agreement or
convention with any other country or countries or in
pursuance of any decision made in any international
conference, association or other body.
(ix) Proximity to human settlements.
(x) Any other factor as may be considered by the
Central Government to be relevant to the protection of the
environment in an area.
(2) While prohibiting or restricting the location of
industries and carrying on of processes and operations in an
area, the Central Government shall follow the procedure
hereinafter laid down.
(3) (a) Whenever it appears to the Central
Government that it is expedient to impose prohibition or
restrictions on the locations of an industry or the carrying on
of processes and operations in an area, it may by notification
in the Official Gazette and in such other manner as the
Central Government may deem necessary from time to time,
give notice of its intention to do so.
(b) Every notification under clause (a) shall give a
brief description of the area, the industries, operations,
processes in that area about which such notification pertains
and also specify the reasons for the imposition of prohibition
or restrictions on the locations of the industries and carrying
on of process or operations in that area.
(c) Any person interested in filing an objection
against the imposition of prohibition or restrictions on
carrying on of processes or operations as notified under
clause (a) may do so in writing to the Central Government
within sixty days from the date of publication of the
notification in the Official Gazette.
(d) The Central Government shall within a period of
one hundred and twenty days from the date of publication of
the notification in the Official Gazette consider all the
objections received against such notification and may within
five hundred forty five days from such day of publication
impose prohibition or restrictions on location of such
industries and the carrying on of any process or operation in
an area.
(4) Notwithstanding anything contained in sub-rule
(3), whenever it appears to the Central Government that it is
in public interest to do so, it may dispense with the
requirement of notice under clause (a) of sub-rule (3)."
18. Considering the above aspect, we are of the considered
opinion that the decisions relied upon by the learned Senior
Counsel appearing for the petitioner in Avinash (supra) and
Kerala State Road Transport Corporation (supra) are
applicable.
19. Paragraphs 16 and 17 of the decision in Avinash's case
are relevant for our consideration, which are reproduced
hereunder:-
"16. It will also be relevant to refer to the
observations of the Apex Court in the case of the Municipal
Corporation Bhopal, M.P. v. Misbahul Hasan and Others
reported in (1972) 1 Supreme Court Cases 696. The Apex
Court while construing the provisions of Section 24 of the
M.P. General Clauses Act, 1955 which is pari materia with
Section 24 of the Bombay General Clauses Act, has
observed thus:-
"13. The legislative procedure envisaged
by Section 24, set out above, is in consonance with
notions of justice and fair-play as it would enable
persons likely to be affected to be informed so that
they may take such steps as may be open to them to
have the wisdom of a proposal duly debated and
considered before it becomes law. This mandatory
procedure was not shown to have been complied
with area."
17. It could thus be seen that it appears to be settled
position of law that the requirement of previous publication
inviting objections and suggestions is not an empty
formality. It is with an intention to enable persons likely to
be affected, to be informed, so that they may take steps as
may be open to them and the objections/suggestions made
would be required to be taken into consideration by the
authorities before issuing a final notification. In the present
case, the draft notification provided for establishment of
headquarter of the sub-division at Sadak-Arjuni. However,
the final notification provides for establishment of the
headquarter at Morgaon-Arjuni. It could thus be seen that
insofar as the establishment of headquarter is concerned, the
final notification is totally different from the draft
notification."
20. Paragraph 14 of the decision in Kerala State Road
Transport Corporation's case is also relevant to the case on
hand, which is reproduced hereunder:-
"14. The provisions of Sections 99, 100 and 102
indicate that the procedure to be followed, while introducing
a scheme, or modifying an existing one, is one that is
designed to ensure transparency and fairness in a matter
involving pre-existing rights of private transport operators. It
follows, therefore, that there cannot be any finalization of a
scheme, which is different from the one that was proposed,
and in respect of which objections were invited. The
introduction of a restrictive element (in the instant case, the
stipulation that the maximum distance limit would apply to
the saved permits), while finalising a draft that did not
contain such a stipulation has, therefore, to be seen as
breaching the aforesaid statutory safeguard. A question
arises, however, as to whether, in these cases, the petitioners
had a pre-existing right, relatable to Ext.P5 scheme, to
operate ordinary and OLS services without any restriction as
regards distance? Although the learned counsel for the
respondent KSRTC would vehemently contend that the said
rights accrued to the private operators, not through Ext.P5
scheme, but only through Ext.P9 G.O., we are of the view
that the rights/privileges granted to the petitioners through
Ext.P9 G.O. cannot be seen as divorced from Ext.P5."
In such circumstances, we are of the considered opinion that
the writ petition requires consideration. Accordingly, the same is
allowed. Notification dated 22.12.2014 is hereby quashed and set
aside. Needless to say, the respondent authority may issue fresh
notification, in accordance with law. It is made clear that the
petition is entertained only on the above ground. Other
contentions raised in this writ petition have not been examined on
merits.
Pending Interlocutory Applications, if any, shall stand
closed.
Sd/-
A. J. DESAI
CHIEF JUSTICE
Sd/-
V. G. ARUN
JUDGE
Eb
APPENDIX OF WP(C) 3097/2016
PETITIONER EXHIBITS
EXHIBIT P1. A TRUE PHOTCOPY OF THE GAZETTE
NOTIFICATION NO.3252(E) DATED
22.12.2014.
EXHIBIT P2. A TRUE PHOTOCOPY OF THE DRAFT
NOTIFICATION NO.S.O.2319(E) DATED
11.09.2014.
EXHIBIT P3. A TRUE PHOTOCOPY OF THE MINUTES OF THE
39TH MEETING OF THE 2ND RESPONDENT HEL
ON 18.06.2015.
EXHIBIT P4. A TRUE PHOTOCOPY OF THE LETTER OF
REJECTION OF EC DATED 16.10.2007 ISSUED
BY THE 1ST RESPONDENT.
EXHIBIT P5. A TRUE PHOTOCOPY OF THE OFFICE
MEMORANDUM DATED 09.06.2015.
