National Green Tribunal
Kashinath Jagannath Thakur vs Environment Department Government Of ... on 21 April, 2023
Item No. 2 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(WITH HYBRID OPTION)
Original Application No. 55/2022(WZ)
Kashinath Jagannath Thakur
.....Applicant
Versus
Environment Department, Govt. of Maharashtra
....Respondent(s)
Date of hearing: 21.04.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Ms. Madhavi Rahirkar h/f Mr. Nitin Deshpande, Advocate
Respondent(s) : Mr. Dinesh Patil, Advocate for R-1/Grampanchayat, Shirki
Mr. D.M. Gupte, Advocate for R-3 to 8
Mr. Aniruddha Kulkarni, Advocate for R-9/MCZMA
ORDER
1. This application has been preferred with the prayers that the ongoing construction of Anganwadi by Respondent No. 1/Shirki Grampanchayat at Gat no. 15, Village Shirki, Taluka: Pen, District Raigad be stayed forthwith; and direction be issued for removal of all constructions which have already been done and to restore the degraded CRZ-I mangrove area.
2. In brief the facts of this case are that Villages: Shirki & Bori, Taluka: Pen, District: Raigad, Maharashtra are located near to the Shirki creek, having vast areas covered with variety of mangroves under plantation. As per the CRZ Notification, 2011, mangroves within 50 meters from the High Tide Line (HTL) fall within the No Development Zone (NDZ) and are classified under CRZ-I. No developmental and construction Page 1 of 11 activities, except the ones, mentioned in the CRZ notification, are permissible in the said zone. Despite knowing this, the Respondent No. 1/The Grampanchayat, Shirki has started construction of Anganwadi by cutting hundreds of tall and fully grown mangroves in Gat no. 15, Village Shirki. The said plot of land is Government land. In-spite of making representation by the Applicant to the Respondent Authorities, no action has been taken and the construction is going on in full swing. The Respondent No. 1 has not obtained CRZ clearance from the Respondent No. 9/Maharashtra Coastal Zone Management Authority (MCZMA). The Respondent No. 1 started cutting of mangroves on large scale on 01.05.2022 and started digging the said land as well for laying down the foundation for the proposed Anganwadi facility. A perusal of CZMP attached shows that Gat No. 15, Village Shirki lies in CRZ-I area, the same is annexed as Annexure A/4 at page nos. 21-22 of the paper book. The cause of action first arose on 01-05-2022 when the Respondent No. 1 started cutting hundreds of mangroves and started construction of Anganwadi, hence above prayers have been made.
3. The matter was first heard by us on 30.05.2022 and direction was issued to send notices to all Respondents and a Joint Committee was constituted with the direction to submit factual and action taken report within a period of six weeks.
4. Pursuant to that order, the Joint Committee has submitted its report, which is annexed at page nos. 63 to 71 of the paper book, relevant part of which is quoted here-in below:-
"3.0 Observation and findings:
This report is outcome containing factual and action taken report of the said joint committee based on the preliminary information received from the applicant, followed by site inspection, information given by Page 2 of 11 SDO-Pen through MCZMA and subsequent discussions of the joint committee. The observations & findings of the joint committee are given as below:
Sr. Site Observations No. 01 Survey No. 152, Survey no. 152, is the location as Village Bori mentioned in the original application Grampanchayat and Hon'ble NGT order dated Shirki (Tal. Pen, 30/05/2022, the aforementioned Dist. Raigad) survey no. 152 falls in the Village: Bori.
There is a creek and creeklet complex with tidally influenced mudflats, saline blanks and grass patches were observed in this Survey No. 152.
At the site, mangroves (dominated by Sonneratia apetala followed by Avicennia Marinam, Acanthus ilicifolius and presence of associates species Salvadora persica and Thespesia populnea are observed along the creek and creeklet in addition to the saline blanks with grasses.
There is no any construction of Anganwadi observed on this site.
02. Gat No. 15 Gat no. 15, is the site location shown by Village Shirki the representative of Applicant to the (Tal. Pen, joint committee. As per the remarks in Raigad) the panchanama made by the Forest Department, Wadkal, the aforementioned Gat no. 15 is in the Village Shirki. Whereas, as per the land records, the alleged area is a part of Survey No. 150 & 151, where mangrove vegetation was observed near the Anganwadi site (Photograph-1). Construction of Anganwadi by the Grampanchayat Shirki was observed on the aforementioned Gat no. 15 on the creekward side of a salt bund (khar-bandhara) (as shown in the Photographs-2 & 3).
At the aforementioned Gat no. 15, the reported construction of 50 x 21 feet was almost completed at the level of khar bandhara (with the foundation done by reclamation) and keeping the Page 3 of 11 approach passage from the existing khar-bandhara (as shown in the Photograph-4).
The construction of Anganwadi is surrounded by mangrove sediments interspersed by the network of pneumatophores, mangrove trees almost touching to the foundation and walls from all sides is observed at the site (as shown in the Photographs-5 &
6).
There are grown trees of Sonneratia apetala of approximate 5-7 mt height with Avicennia marina and associate species like Salvadora persica and Thespesia populnea were observed in close vicinity of the construction site. It is difficult to ascertain whether mangrove trees were present in the past and cut exactly at the site of construction as the construction per se is almost completed.
As per the approved CZMP of 2011 for the given area, the location falls in CRZ III category and thus no construction is allowed in this zone. Copy of superimposed map of the area under reference is given at Annexure-2 for kind reference.
Further, no permissions were granted from MCZMA for the construction of Anganwadi, which is a critical step for any developmental activity in CRZ as per the CRZ Notification, 2011.
4.0 Conclusion and Recommendations: i. Survey no. 152 as mentioned by the Applicant in the original application and Hon'ble NGT order dated 30/05/2022 falls in the Village: Bori, Tal: Pen, Dist: Raigad, wherein no construction of Anganwadi was observed by the joint committee. The aforesaid survey no. 152 is surrounded by a creek & creeklet complex with tidally influenced mudflats, saline blanks, grass patches and mangroves.
Whereas, Gat no. 15, is the site location shown by the representative of the Applicant to the joint committee falls in the Village: Shirki, Tal: Pen, Dist: Raigad, wherein construction of Page 4 of 11 Anganwadi of about 50 x 21 feet (1,050 sq.ft) was completed by the Grampanchayat, Shirki (where mangrove vegetation was observed near the Anganwadi, Kindly refer s. no. 2 of the Table, as above). Further, as per the remarks made in the panchanama by the Forest Department, Wadkal, the aforementioned Gat no. 15 falls is in the Village: Shirki, Tal: Pen, Dist: Raigad. However, as per information provided by the representative of the Applicant that the alleged area (Gat no. 15) is a part of Survey No. 150 & 151 as per old land records of the area under reference.
ii. In view of discrepancy w.r.t. survey no. mentioned by the Applicant in the Hon'ble NGT order and the survey no. where the actual construction of Anganwadi was constructed, the joint committee opined that relevant extract in the form of record(s) may be examined by the Land Revenue Department/SDO of concerned area w.r.t. making suitable corrections/amendments in the aforesaid Gat no. and survey no. where the alleged construction of Anganwadi was done by the Grampanchayat, Shirki.
iii. Further, nevertheless to mention about discrepancy in the Gat no.
& survey no. of the alleged area, the joint committee observed the construction of Anganwadi of about 50 x 21 feet (1,050 sq.ft) by the Grampanchayat, Shirki in the mangrove area (falls within CRZ III and 50 m mangrove buffer area, Kindly refer s. no. 2 of the Table, as above) wherein the said construction activity is surrounded by trees of Sonneratia apetala of approximate 5-7 mt height with Avicennia marina and associate species like Salvadora persica and Thespesia populnea.
iv. The area under reference where the Anganwadi nas been constructed by the Grampanchayat Shirki. Village. Shirki, Taluka Pen. District Raigarh was superimposed with the approved CZMP of Maharashtra. Based on the analysis and superimposition of approved CZMP of Maharashtra. the aforesaid construction of Anganwadi is within the CRZ-Ill and 50 m mangrove buffer area. Grampanchayat Shirki has not obtained permission from MCZMA for construction of Anganwadi. Hence, as per the CRZ Notification. 2011 the aforesaid construction is not permitted and it is in violation of CRZ Notification, 2011.
v. Mangrove Cell (Govt. of Maharashtra) may prepare a time-bound mangrove restoration plan along with budgetary estimate for replantation of mangroves and shall submit the same to SDO-Pen for effective replantation of mangroves through the Grampanchayat Shirki.
vi. As per Coastal Regulation Zone Notification. 2011 s. no, ii of V of paragraph 8 five times the number of mangroves destroyed/cut during the construction process shall be replanted. Accordingly, about 5,250 so ft of area (alleged construction area of 1.050 sq.ft x
5) to be replanted with native species of mangroves by the Grampanchayat Shirki under the supervision of Mangrove Cell (Govt. of Maharashtra) and SDO-Pen.
Page 5 of 11 vii. Appropriate action may be taken by 'the DCZMA, RaigadIMCZMA against Grampanchayat Shirki for construction of Anganwadi within the CRZ III area and 50 m mangrove buffer area without prior permission."
5. At this stage, it would be pertinent to clarify that originally the application which was moved by the Applicant, in that, Survey No. 152 was stated to be the location where the construction was said to be going on, but later on, he got it amended because he was not knowing the exact number and got it amended to Gat No. 15 where the construction was going on. Earlier Survey No. 152 of Village Bori was mentioned but later on after correction, Gat No. 15 of Village Shirki has been mentioned.
6. In the report of the Joint Committee, which was strongly objected by the Respondent No. 1 on the ground that it did not find any construction to be there in Survey No. 152, while it found construction at Gat No. 15, which was not within its domain to verify. We are of the view that there could be mistake on the part of the Applicant with respect to Gat number. Both Survey Numbers were near to each other, therefore, it could be possible that the Applicant might have committed mistake in pin-pointing the Gat number, but it is evident as per the Joint Committee Report that it has found construction of Anganwadi by the Gram Panchayat at Gat No. 15 of Village Shirki on the creekward side of a salt bund, which is 50 x 21 feet and it has almost been completed and that the same was surrounded by mangrove sediments. The said area falls in CRZ-III category, where no construction was permissible nor was any permission granted by the Respondent No. 9/Maharashtra Coastal Zone Management Authority (MCZMA). The photographs of the said construction are also annexed.
Page 6 of 11
7. From the side of Respondent No. 1/Gram Panchayat, Shirki, reply affidavit dated 10.08.2022 has been filed in which refuting the averments made by the Applicant, it is submitted that Gat No. 15 where the construction of Anganwadi is going on, prior to that, there was a Crematorium (Mhasan Vata) for people of Hindu religion. The said construction was very old. He has annexed Extract No. '8' at page no. 54 of the paper book, which shows that the Gram Panchayat, Shirki was the owner of the Gat No. 15. To establish that the Crematorium is very old built in the year 1994 i.e. after CRZ Notification, 1991 came into force, he has also annexed 7x 12 extract of Gat No. 15, where-in Crematorium (Mhasan Vata) is recorded. These documents are submitted in Marathi language.
8. Further, it is submitted that the Anganwadi is now constructed exactly on the same spot and the foundation where the earlier Crematorium existed, therefore, no question arises of cutting any mangroves or other trees because no mangroves can grow on cement and concrete place.
9. Further, it is emphasized that the Anganwadi is to be utilized for public welfare, as small children of the Village and in its vicinity are to be going there for the study purpose. It is also stated to be false that the said location is within 15 to 20 feet from the flowing creek water. The Applicant has moved this complaint with a motive to gain political benefit. It is further mentioned that there is mention made in the 7/12 extract about this area falling in CRZ area. Therefore, it is submitted by him in this reply affidavit that this application deserved to be dismissed. Page 7 of 11
10. From the side of Respondent No. 6/Range Forest Officer, Wadkhal, Respondent No. 7/Divisional Forest Officer, Alibaug and Respondent No. 8/Addl. Principal Chief Conservator of Forests, a reply affidavit dated 19.09.2022 has been filed, where-in it is submitted that the construction of Anganwadi is being done by Shirki Grampanchayat in the area of Gat no. 15 of Village Shirki. Taluka: Pen, District: Raigad. During the time of site visit, it was noticed that no destruction of Mangrove at Bori was found, regarding which Panchanama was also prepared and at that time, the Applicant was not present but his representative was present, who has duly signed the same. The Applicant's contention is incorrect. The Applicant creates all kind of hurdles in all the developmental work of Village Shirki. The villagers also disclosed that the Grampanchayat had obtained permission of the Government before the construction of Anganwadi. There were no mangroves on the plot where the construction is ongoing. The land in question is not in possession of Forest Department. The site in question is within 50 mtrs. of mangroves, but since it is not forest area, the Forest Department is not empowered to take any action for such construction.
11. From the side of Respondent No. 3/Tehsildar Pen, Respondent No. 4/Sub-Divisional Officer and Respondent No. 5/District Collector, Raigad, a reply affidavit dated 04.08.2022 has been filed, where-in it is submitted that Sub-Divisional Officer, Pen vide letter dated 01.07.2022 directed Respondent No. 8/Addl. Principal Chief Conservator of Forest to take appropriate action with regard to complaint of the Applicant regarding destruction of mangroves in said land bearing Gat No. 15. The Sub-Divisional Officer, Pen also called joint meetings of MCZMA, Tahsildar Pen, Block Development Officer Pen, RFO Mangoves Page 8 of 11 Cell Alibag, RFO Wadkhal and Gramsevak of Villages Bori and Shirki on 22.06.2022, 22.07.2022 and 01.08.2022 and directed all concerned to take appropriate action and submit a report. What happened thereafter, nothing is stated in this affidavit.
12. From the side of Respondent No. 9/Maharashtra Coastal Zone Management Authority (MCZMA), a reply affidavit dated 03.02.2023 has been filed, where-in it is submitted that Gat No. 15 falls within CRZ-III and 50 meters mangrove buffer area where no construction is permissible. A copy of superimposed map of the area is also annexed as Annexure 'A'. The Anganwadi has been constructed on the creek-ward side of a salt bund, which is surrounded by mangroves from all sides. The Respondent No. 1/Grampanchayat neither applied to the MCZMA for obtaining CRZ Clearance for the alleged construction of Anganwadi nor the same was granted, the said permission was a critical step before undertaking any activity in CRZ area. The construction of Anganwadi by the Respondent No. 1/Grampanchayat cannot be permitted and the same needs to be demolished, being in serious violation of CRZ Notification, 2011, although the Grampanchayt Shirki may undertake construction of the Anganwadi on any alternate site within the Grampanchayat jurisdiction.
13. From the side of Applicant, a reply affidavit dated 03.02.2023 has been filed, where-in it is submitted that Grampanchayat Shirki has other Government Lands available within their jurisdiction, which are not affected by CRZ Notification, which can be used for construction of the Angnawadi and that has inserted the same version, which has been stated above by the MCZMA in their affidavit.
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14. We have perused the record and have gone through the respective reply affidavits of all the parties concerned regarding which we have mentioned above and also perused the Joint Inspection Report and we are of the view that it is absolutely clear from the Joint Committee Report that the Angnawadi is constructed/being constructed at Gat No. 15, Village Shirki, which is falling in CRZ-III category area, which is stated to be No Development Zone (NDZ) being within 50 mtrs. of mangrove buffer zone and apparently no construction is permissible as per the provisions under CRZ Notification, 2011 without prior approval from the Maharashtra Coastal Zone Management Authority (MCZMA). The MCZMA has also made clear in their affidavit that no construction activity can be permitted in the said area and there is no option left but to order demolition of the said structure, as the same being illegal. Much emphasis has been laid by the learned Counsel for the Respondent No. 1 on the construction being raised on the same plinth on which earlier crematorium for people of Hindu religion was existing, no mangrove could have been grown on pakka construction where the crematorium was lying, therefore, it cannot be believed that any destruction of mangrove has been done by them while constructing the Angnawadi. They have taken permission from Revenue Authority for raising the said construction and that this project is of public interest where children would be attending school for their study, therefore, it should not be ordered to be demolished and some time should be allowed to seek regularization of the same. We direct the learned Counsel for the Respondent No. 1 to show the provision under which the regularization is permissible, no provision could be shown at his end nor has the learned Counsel for the MCZMA enlightened us on this point, as to whether there Page 10 of 11 is any such provision existing in the CRZ Notification, 2011, under which regularization can be permitted.
15. We find that the adjourning of the matter would not be any of consequence and we are of the confirmed opinion that the construction of Angnawadi needs to be demolished the same falling in the CRZ-III area and within 50 mtrs. of mangrove buffer zone where no construction is permissible at all. Accordingly, we direct the Respondent No. 1 to demolish the said construction within a period of one month, failing which the MCZMA would take necessary steps regarding its demolition as per the rules.
16. We accordingly dispose of this application. No order as to cost.
17. All connected applications, if any, also stand dispose of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 21, 2023 Original Application No. 55/2022(WZ) P.Kr Page 11 of 11