Says SWPL can approach National Green Tribunal against decision of MoEF
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PANAJI
The Bombay High Court at Goa dismissed a petition filed by South West Port Ltd, the logistics arm of JSW Infrastructure that operates at Mormugao Port, which had sought directions from the HC to direct MoEF to process its application for permission to enhance capacity of berths 5A and 6A which it operates.
The Court also took offence to what they termed is the suppression of facts by SWPL, but didn’t specifically initiate any action against the company.
SWPL had applied for an environmental clearance and CRZ permission from the Ministry of Environment and Forests, but MoEF has kept the process on hold citing an order of the National Green Tribunal, which banned States from issuing CRZ permissions until the Coastal Zone Management Plans are in place.
SWPL sought that the High Court direct MoEF to process the permission or modify or alternatively clarify the NGT order, saying that, that order of the NGT was not applicable to it.
The High Court, however, dismissed the petition on grounds that SWPL has alternate remedies available to it -- in that it can approach the NGT itself against the MoEF’s decision, or ask the NGT to clarify whether its own order is applicable to SWPL’s project.
“Against this denial, a remedy is provided to the petitioner (SWPL) to approach the Tribunal. If it is the stand of the MoEF that it cannot decide the application in view of the order passed by the Tribunal, the petitioner can file a review before the Tribunal, being aggrieved by the said decision. The argument that the order passed by the Tribunal does not apply to the Petitioner can be made by the Petitioner before the Tribunal. That the MOEF is needlessly denying to process the application of the Petitioner based on the order of the Tribunal, can also be made before the Tribunal,” the High Court ruled saying that SWPL had an alternate remedy available before it.
“The petitioner has efficacious and alternate remedies to seek both the reliefs before the Tribunal or to challenge the decision of the Tribunal before the Supreme Court if the Petitioner is aggrieved by the decision of the Tribunal. No serious impediment is pointed out to us by the Petitioner that it cannot approach the Tribunal,” the High Court ruled.
When it was pointed out that SWPL had already approached the NGT but withdrew its petition on the grounds of maintainability, the High Court said that “There is no finding by the Tribunal that it does not have jurisdiction. This order is not an impediment for the Petitioner to approach the Tribunal, once we clarify the legal position.”
When it was pleaded that the High Court can issue a writ under Section 226 of the Constitution irrespective of alternative remedies being available, the High Court said that each case would have to be decided on its own merits.
That the High Court has powers to entertain a writ petition in spite of availability of alternate remedy and challenge to the orders of the Tribunal can be entertained, cannot be disputed,
however the exercise of the Equity jurisdiction of the Court to entertain a Petition in spite of availability of the alternate remedy, will ultimately have to be decided in the factual backdrop of each case…. Not only there are no special circumstances in favour of the petitioner to deviate from the self-imposed limitations, the circumstances are to the contrary,” the HC said.
HC slams SWPL for suppression of facts
PANAJI: The Bombay High Court at Goa has taken offence to South West Port “suppression of facts” pointing out that if not for the intervenors -- the Goa Foundation and Old Cross Fishing Canoe Owners Co-operative Society Ltd -- they would not have known of the extent of regulatory issues SWPL is facing. “By plain reading of the petition, even a casual reader will get an impression that the petitioner is carrying on its operations from Berth Nos. 5A and 6A diligently, with all permissions and if the application for enhancement is granted, it will be more efficient,” the High Court noted. However, the Court noted how the official record produced by the intervenors show a contrary picture.
