M/s Babu Sitaram Naik, Quepem, Goa vs John Fernandes and Others

S.C. Dharmadhikari, J.—This civil miscellaneous application has been restored to file by an order dated 02.07.2008. The grievance was that on November 7, 2007, this Court in the present miscellaneous civil application permitted the applicant to replace earlier undertaking dated 23.10.2007 by another undertaking of 01.11.2007. This Court was of the view that the applicant can submit a fresh undertaking as proposed by him and the authorities would then examine all other aspects. In other words, shifting was subject to compliance with the rules and regulations applicable for establishment of the plant, approval of the competent authorities, including in relation to the location where the machinery is to be shifted. It appears that the original petitioners were approached to this Court for review/recall of the order dated 1.11.2007 as their grievance is that they were not heard when the order is passed. This is how another Division Bench was pleased to direct that the Miscellaneous civil application be heard and restored the same to the file of this Court.

In the light of this order, we have heard Mr. S.G.Dessai, learned Senior Counsel appearing for the applicant/original respondent No. 1. Mr. A.N.S. Nadkarni, learned Counsel appearing for the Pollution Control Board and Mr. V.P. Thaly, learned Counsel for the original petitioners.

The order passed by this Court on the basis of the undertaking, copy of which is annexed to the miscellaneous civil application as Exh.R-25, records an undertaking of the first respondent. The undertaking is clear inasmuch as the first respondent undertook to relocate the existing crusher unit in the property which was subject matter of the petition to the new location as per the plan annexed to the undertaking. First respondent undertook to this Court not to operate the existing crusher unit and until the crusher unit is shifted to the new location specified in the annexed plan. The location of the new site was also set out in the undertaking. Based upon the undertaking, the Court passed an order on 23.10.2007 that in the light of the said undertaking which is accepted, the writ petition does not survive. The Court clarified in the order that shifting the plant shall be subject to compliance with Rules and Regulations applicable for establishing of such a plant and approval by competent authority.

The request of the applicant now is that even the proposed relocated site is not feasible for activity that is contemplated by him. There are various reasons set out by him and that is why he desires that the undertaking be modified only to the extent of the proposed site which was identified by the plan annexed to the undertaking. The first respondent may be permitted to apply for shifting his business activities to another site which he would identify and demarcate on such document as is required for issuance of licence or permit to do the same.

Mr. Dessai has clarified that the applicant does not seek any modification of the orders passed by this Court accepting the undertaking of the first respondent not to carry on any activities at the existing site which was subject matter of the writ petition. He does not want to be relieved from it either. What the applicant seeks, is modification of the undertaking based upon which the order has been passed by this Court to the extent that the first respondent should be at liberty to identify another location where he would be shifting the activities. The identification of the proposed new site, according to Shri Dessai, would not be possible and the applications for shifting the site would not be processed because of the specific undertaking to this Court. It is for this reason and as by way of abundant caution that limited modification is sought.

However, Mr. A.N.S. Nadkarni, Advocate appearing for the Pollution Control Board submits that no permission has been issued by the Pollution Control Board and, therefore, there is no need for any apprehension. Further, according to Mr. A.N.S. Nadkarni, N.O.C. of Pollution Control Board is not enough. The applicant must have further licences and permits before the stone crusher unit become operational and functional. Presently, there are no such permits and licences. Mr. Nadkarni has clarified that with regard to the site which the applicant is proposing for all that he has in his possession is a consent to set up and establish the unit but not to operate it.

We do not wish to enter into this controversy. We do not propose to relieve the first respondent/ original applicant from the undertaking given to this Court that he will not carry on the stone crushing activities at the site which is subject matter of writ petition. In all fairness, such a modification is not even sought. However, we see no substance in the apprehension of the petitioners with regard to the first respondent being granted liberty to apply for shifting his stone crusher activities from the site proposed by him in the undertaking to some other site. The undertaking read as a whole and together with the order passed by this Court does not prevent the applicant from identifying another site and proposing same to the authorities for his business activities. His proposal is not going to be enough and cannot constitute a permission or licence to set up the activities. Even at such proposed site, the first respondent/applicant will have to comply with all requisite conditions and till Necessary no objection certificates/ permits/ licenses are issued, there is no question of his starting stone crushing activities. Therefore, to the extent that instead of the site proposed in the undertaking, the applicant would be at liberty to apply for shifting his activities to some other site as identified and proposed by him in a proper plan, we do not see any reason to modify the order and the undertaking which has been accepted. Liberty is granted to the applicant to apply for shifting his activities to a site other than proposed by him in the undertaking subject to his complying with all rules and regulations and conditions. Barring this liberty, we do not modify the undertaking or the order based thereon. Needless to clarify if the petitioners find that the permits and licences which may be granted in favour of the applicant to establish a stone crusher unit are causing Environmental and Ecological Hazards and are also nuisance to the residents, nothing prevents the original petitioners from instituting such proceedings as are permissible in law to challenge them. Needless to further clarify that it will constitute a fresh cause of action. With these clarifications, the Miscellaneous Civil Application is disposed of.