Factual Inquiry Outside Scope Of Article 226: Gujarat HC On PIL Against Port Expansion "Damaging" Mangroves, Says Litigant May Move NGT

Disposing of a PIL petition on Environmental and Coastal Regulation Zone (CRZ) clearances for port expansion projects in Kandla affecting mangroves, the Gujarat High Court said that since the issues raised require a factual inquiry not possible under Article 226 of the Constitution, the petitioners may approach the National Green Tribunal for its redressal. 

The court however said that it has not deliberated upon the question of whether the limitation in filing an appeal under the National Green Tribunal Act has been condoned by it, adding that as the limitation issue was not before it therefore it has not deliberated upon it. 

A  division bench of Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its October 4 order said, "From the above contentions of the petitioners that this is a case of violation of CRZ notification issued under Section 3 of the Environment Protection Act, 1986, which would also result in penal consequences under Section 15 of the Act, we are of the considered opinion that the issues raised would require factual inquiry which would not be possible within the scope of Article 226 of the Constitution of India".

"To examine the contention raised by the petitioners, not only the entire record pertaining to grant of clearance would have to be examined but some more evidence would be required, which may include recording of oral evidence as well. In this situation, on the contention of the learned counsel for the petitioners that environmental clearance granted on 19.12.2016 and 18.02.2020 for the projects of respondent no.3 is liable to be cancelled on the mere assertion that the area falls within CRZ-1A category under the CRZ notification of 2011, enquiry within the scope of Article 226 of the Constitution of India would not be permissible nor possible," the bench added. 

Background

The order was passed in a PIL petition challenging the Environmental and CRZ clearances granted to two projects of respondent no.3–Deendayal Port Authority on the ground that the projects are to be carried out on lands containing Mangrove forests.

The petition raised concerns over potential ecological damage, particularly the destruction of mangrove forests categorized under CRZ-1A ((ecologically sensitive areas and critical for the conservation of biodiversity).

Deendayal Port Authority obtained environmental and Coastal Regulation Zone (CRZ) clearances for the development of several integrated facilities within the Kandla Port Trust area in Kutch, Gujarat. The first environmental and CRZ clearance was granted on December, 2016, and the second clearance on February, 2020, for three integrated facilities.

The petitioners filed a Public Interest Litigation petition (PIL) challenging these clearances, arguing that the projects would destroy mangrove forests and violate the CRZ Notification of 2011 and the clearances were granted illegally without appropriate public hearing and under less protective CRZ categories instead of the more restrictive CRZ-IA category.

The Counsel for the petitioner contended that the projects violated the CRZ Notification of 2011 by conducting the project on lands categorized as CRZ-1A, which include ecologically sensitive mangrove areas and further argued that the clearance granted in 2016 and 2020 was obtained illegally.

Regarding the delay, the counsel submitted that the petitioner became aware of the project in January 2022 when the tender was released, which is why they filed the writ petition in January 2023. The action of the authority is a violation of right to life under Article 21 of the constitution and cannot be dismissed on the ground of delay and latches. The petitioner relied on the judgment of the Supreme Court in Assam Sanmilita Mahasangha v. Union of India (2015) which said that “when it comes to violation of fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioners.”

Furthermore, it was contended that mere existence of a remedy under the NGT Act does not oust the jurisdiction of the High Court to entertain the Writ petition and relied on the decision of the Supreme Court in M.P. High Court Advocates Bar Assn. v. Union of India (2022) to submit that “nothing contained in the NGT Act either impliedly or explicitly ousts the jurisdiction of the High Courts under Articles 226 and 227 and the power of judicial review remains intact and unaffected by the NGT Act.”

Opposing the plea the port authority submitted that necessary permissions had been obtained from the relevant authorities, and these permissions were granted after thorough reviews of pertinent documents, including the CRZ map prepared by the Institute of Remote Sensing, Anna University. Further, a public hearing was exempted for the second environmental clearance because a public hearing had already been conducted by the Gujarat Pollution Control Board (GPCB) for the related projects in December 2013.

The clearance letter specifies that any appeal against the decision must be filed with the National Green Tribunal within 30 days, as per Section 16 of the National Green Tribunal (NGT) Act, 2010 and the petitioners delayed filing the writ petition without a valid explanation. Additionally, since the petitioners had the option to appeal under Section 16 of the NGT Act, 2010, the writ petition, filed in 2023 to challenge clearances granted in 2016 and 2020, should not be accepted, it said. 

Findings

Taking note of the contentions the bench said, "The crux of the challenge is that the projects of respondent no.3 are to be carried out on lands containing mangrove forests and the same falls within CRZ-1A category under the CRZ Notification of 2011, whereas CRZ clearance has been given under under CRZ-1(B), CRZ-III and CRZ-IV categories". 

After noting that the contentions raised require a factual inquiry the bench also observed that it is also not going into the maintainability of the petition as "inquiry as required is impermissible within the scope of Article 226 of the Constitution of India". 

Thereafter on the port authority's submission that the petitioners cannot approach National Green Tribunal to file appeal under National Green Tribunal Act, the bench said that it does not find any reason to deliberate on the same. 

It however said, "It may be open for the petitioners to approach the National Green Tribunal for redressal of their grievances as the primary issue raised is of grant of clearance in violation of CRZ Notification of 2011. We may not be understood in holding that the limitation for filing appeal under Section 15 of the National Green Tribunal Act, 2010 has been condoned by us. As the question of limitation under the National Green Tribunal Act, 2010 is not before us, we do not find any reason to deliberate on the subject". 

"With the above, the Writ petition stands disposed of with the observation that it would be open for the petitioners to avail appropriate remedy available in law," the bench added. 

Case Title: Jakhariya Saleman Manek & Anr. v/s Ministry of Environment Forest and Climate Change

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