MUMBAI: The Bombay High Court dismissed a petition by Grauer and Weil (India) Limited that challenged March 5 closure directions issued to it’s Growel’s 101 Mall in the western suburbs, by the MPCB. The court observed that the company “took law into its own hands” and constructed a mall without prior environmental clearance.
The High Court division bench of Justices MS Sonak and Jitendra Jain on Wednesday directed the pollution control board to “immediately enforce its closure order.” “Operating a mall that is put up without obtaining any environmental clearance is extremely serious,” it said.
The HC ruled that compliance with environmental legislation enacted in the public interest cannot be allowed to be defeated. The mall company sought to argue that the MPCB can exercise closure powers only in extreme urgencies.
“Petitioner virtually considers itself above the law and has shown scant regard for environmental concerns,” said the order authored by Justice Sonak, available on Thursday.
The Maharashtra Pollution Control Board (MPCB) directed closure in two weeks, under the Water and Air pollution prevention statutes saying the Kandivli east mall also lacked its consent to operate. The company, represented by advocate Ayush Agarwal, said the MPCB flouted “principles of natural justice” and citing “a case of extreme urgency” sought a stay of the closure order.
Agarwal submitted that though the company “may not have obtained environmental clearance for constructing the mall or may not have any consent to establish or operate the mall, still the impugned closure directions should not have been issued because the Petitioner applied under some amnesty scheme in 2016, and this application is still pending.”
The HC found “no clarity” about an amnesty scheme’s applicability and added, “No amnesty scheme entitles establishment or operations without consent under the Air and Water pollution control legislation.”
Besides, the High Court stated, “there can be no unnatural expansion of the principles of natural justice entirely divorced from the realities of the situation. Once the Petitioner admitted to constructing a mall without obtaining any environmental clearance and further admitted to not obtaining consent to establish/operate such a mall, we fail to see how such a Petitioner can complain about any alleged violation of principles of natural justice.”
“The alleged pendency of an application under some amnesty scheme does not operate as some deemed environmental clearance or entitle the lawbreaker to continue to break the law indefinitely, ” the HC said and a plea under an amnesty scheme “certainly does not entitle the Petitioner to reap commercial profits at the cost of environmental concerns.”
The HC said the contention that MPCB Regional Directors “can exercise powers only in extreme urgencies” can’t be countenanced and it “almost suggests that the Regional Director had to wait for some environmental disaster and only then exercise the powers delegated to him or her.”
“This Court’s extraordinary, equitable, and discretionary jurisdiction is to promote justice and not perpetuate such gross illegalities,” the High Court noted.
The High Court observed, “If justice is the byproduct of even a flawed exercise of authority by MPCB [which, in this instance, it is not], the discretionary jurisdiction under Article 226 cannot be exercised to obliterate justice and establish environmental injustice.”