National Green Tribunal
Banda Nagaraj Kumar vs The City And Industrial Development ... on 15 February, 2024
Item No.1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Appeal No.13/2024 (WZ)
I.A. No.35/2024(WZ)
Banda Nagaraj Kumar
.....Appellant
Versus
CIDCO & Ors.
....Respondent(s)
Date of hearing: 15.02.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Ms. Ronita Bhattacharya, Advocate
Respondent(s) : Mr. Aniruddha Kulkarni, Advocate for R-3/MCZMA,
R-5/Envt. Deptt. & R-6/SEIAA
ORDER
1. This appeal has been preferred seeking quashing of the CRZ Clearance dated 20.11.2023 granted by the respondent No.3-MCZMA to the respondent No.8- Tirumala Tirupati Devasthanams through its Chairman for the purpose of construction of a temple for Lord Venkateswara Swamy on the plot bearing Survey No.3 in Sector-12 located at Ulwe Node, Panvel Taluka in Raigad District; a direction is prayed to be issued to the respondent No.1- CIDCO to restore the above- mentioned Survey Number; a direction be issued to the respondent No.1- CIDCO to restore the entire 18.7 hec. of area of the above-mentioned Survey Number, which was used for the purpose of casting yard of the Mumbai Trans Harbour Link Project, to its original status as it existed prior to the year 2019 before the construction work for the casting year commenced; and a direction be issued to the respondent No.1- CIDCO to Page 1 of 9 restore free flow of intertidal water from the Thane Creek to the above- mentioned Survey Number.
2. The appellant is claiming to be a senior citizen, author and a media professional, who focuses on the need to conserve and protect our hills, mangroves and wetlands etc. The project in question constitutes low-lying tidally influenced areas by the Thane Creek, which were admittedly being used as a temporary casting yard for the MTHL (Mumbai Trans Harbour Link) Project and after the completion of work was to be returned to the respondent No.1- CIDCO.
3. For this, the learned counsel Ms. Ronita Bhattacharya representing appellant has relied upon the Press Note dated 02.04.2022, which is annexed at page nos.133 to 134 of the paper book, wherein it is recorded that part of the plot in question given to Metro Metropolitan Regional Development Authority (MMRDA) on lease and license for the casting yard for the MTHL project. Following CIDCO's request, MMRDA has agreed to return the plot allotted to it (MMRDA) to CIDCO. The plot will be handed over back to CIDCO step by step between March and September 2023.
4. The 2nd proof to substantiate this has been annexed at page no.106 of the paper book onwards, which is a Social Impact Assessment Final Report dated December 2015, pertaining to MTHL Project and at page no.118 of the paper book, specifically our attention is drawn by the learned counsel for appellant to the following text:-
"In addition to the land required for RoW, the project would need about 22.94 hectare of land for use of casting year for a period of 7 years. The land for casting yard will be made available by CIDCO on lease basis."
5. It is further submitted by the learned counsel for appellant that the respondent No.2- MMRDA, while using the project site in question as the casting yard, had reclaimed and filled the low lying lands, which were Page 2 of 9 protected CRZ- I areas. Now, the construction work of MTHL Project is complete and the CIDCO should resume the possession of the said land and restore the same to its original position. But instead of doing that, the impugned clearance dated 20.11.2023 has been granted illegally in breach of the Regulation 7(iii) read-with Regulation 8 (ii)(b) of the CRZ Notification, 2019.
6. Regulation 7 (iii) of the CRZ Notification- 2019 reads as follows:-
"For all other permissible and regulated activities as per this notification, which fall purely in CRZ-II and CRZ-III areas, the CRZ clearance shall be considered by the concerned Coastal Zone Management Authority and such projects in CRZ -II and III, which also happen to be traversing through CRZ-I or CRZ-IV areas or both, CRZ clearance shall, however be considered only by the Ministry of Environment, Forest and Climate Change, based on recommendations of the concerned Coastal Zone Management Authority."
7. Regulation 8(ii)(b) of the CRZ Notification- 2019 reads as follows:-
"Coastal Zone Management Authority shall forward its recommendations to the Ministry of Environment, Forest and Climate Change for the projects or activities not covered in the EIA notification, 2006, but attracting this notification and located in CRZ- I or CRZ-IV areas.
8. Having cited above Regulations, it is argued by the learned counsel for appellant that these provisions have been violated by the respondent No.3- MCZMA because the MCZMA had granted the impugned clearance without any involvement of the MoEF&CC and the project admittedly falls under CRZ- 1A area in mangrove buffer zones.
9. Further, it is submitted by the learned counsel for appellant that the Survey Number in question is a large expanse of thick mangrove forests, tidally influenced wetlands and mudflats, as such the land consists of ecologically fragile lands and falls under the category of CRZ- I land adjacent to the Thane creek. The use of the project site for the purpose of temporary casting yard for the MTHL has evidently resulted in construction work, felling of mangroves, reclamation and dumping of Page 3 of 9 debris and land filling of low-lying areas, which has resulted in some of the natural characteristics of the land in question being altered and compromised to the detriment of the ecological sensitivity of the region, which has also resulted in the alteration of the location of the HTL in the region by approximately 5 mtrs., which, in turn, has seemingly altered the expanse of land categorized to be CRZ- I and CRZ- II areas in the region. Notwithstanding such construction work, the project site continues to be CRZ-I area as it is still tidally influenced and mangroves & mudflats are present on the land in question.
10. It is further submitted by the learned counsel for appellant that the maps, prepared by the Maharashtra Remote Sensing Application Centre (MRSAC) for the Mangrove Cell of the Forest Department of State Government, also clearly record the project site to be CRZ IA area comprising of mudflats and mangrove clusters. Proof of which is annexed at Annexure A-7, which is a map prepared by the Maharashtra Remote Sensing Application Centre (MRSAC), wherein Mangroves Dense and mangroves Sparse are shown by Green and Red colours respectively and mudflats are shown by Grey colour and the Survey No.77 is shown covered by Grey area and its creek is also shown by Blue water.
11. At this stage, we enquired from the learned counsel for appellant, as to how the Survey No.77 is being equated with the Survey No.3, which is in question before us. In this regard, she has drawn our attention our attention to page nos.308-309 of the paper book, which is a report regarding investigation made on a complaint filed by the appellant pertaining to the CRZ violation at Ulwe for Tirupati Balaji Temple, Plot No.3. It is argued that since the complaint was made regarding Plot No.3 and the report contains reference of Gavhan S. Nos.77 and 127, they should both be treated to be the same Plot No.3, as reference is given Page 4 of 9 with respect to the Tirupati Balaji Temple, for which the construction is going to be there.
12. In the 167th Meeting of the MCZMA held on 23.05.2023, it was recorded that the proposed site of the temple project consisted of :-
"
Sr CRZ classification Area (Sqm)
No.
1 CRZ IA (50 m mangrove buffer zone area) 2748.18
2 CRZ II 25656.58
3 Outside CRZ area 11595.70
Total 40000.46
"
13. It is further submitted by the learned counsel for appellant that the respondent No.3-MCZMA considered the proposal for the project primarily on the basis of 1:4000 scale, prepared by the Institute of Remote Sensing- Chennai, under the CRZ Notification of 2011. Considering the fact that 71% of the proposed site of the project was admittedly in CRZ- IA and in CRZ- II area as per the said 1:4000 scale map, the respondent No.3-MCZMA declined to permit the project to be developed on such portions of the project site. However, respondent No.3- MCZMA did permit the project to be constructed on the 11,595.70 sq. mtrs. of land, which fell beyond the scope of CRZ land as per the 1:4000 scale map submitted by the Project Proponents. This permission was granted under the CRZ Notification- 2011, as the CZMP maps were prepared under the 2011 Notification only by them, which had been approved by that time and that the CZMP maps under the 2019 Notification were still pending. The said recommendations are annexed at page nos.135-136 of the paper book in the form of Minutes of 167th Meeting of the MCZMA held on 23.05.2023, pursuant to which, if at all, any letter was issued making the recommendation of the same, has not been annexed by the learned counsel for appellant, although she submits that it might have been issued but she is not in possession of the same. Page 5 of 9
14. Thereafter, the learned counsel for appellant has further submitted that respondent No.3- MCZMA has placed a conditional recommendation regarding the development and construction in CRZ- II area until the finalization of the CZMP maps under the CRZ Notification- 2019, which was entirely illegal. In this regard, she has emphasized the grievance with respect to Condition No.3 in the above-mentioned Minutes of the Meeting dated 23.05.2023, which says that no construction in CRZ-II area is allowed till finalization of CZMP under CRZ Notification 2019. It is urged by her that when the project in question was being considered under the provisions of CRZ Notification- 2011, how could the said condition be placed in that to the effect as mentioned above. Therefore, the said condition is ab-initio-void.
15. The record reveals with respect to the construction of temple in question that the respondent No.3- MCZMA appeared to have held another Meeting on 02.11.2023, Minutes of which are annexed at page nos.138-139 of the paper book, wherein it is recorded that the Project Proponent had submitted the proposal as per CRZ Notification, 2019 and approved CZMP, 2019. Out of total plot area of 40,000.46 sq. mtrs., developments including Main Temple, Archaka Quarters, Pushkarni, Kalyanakatta, Alankara-Vahana-Ratha Mandapam, Pilgrim Amenities, Office Building, Staff Quarters, Kalyana Mandapam etc. have been done in total construction area of 11,299.37 sq. mtrs. It is further recorded that the PP has submitted CRZ map in 1:4000 scale prepared by IRS, Chennai (MoEF&CC authorized agency) as per CRZ Notification, 2019. As per approved CZMP 2019, the site falls partly under CRZ-IA (2748.18 sqm), CRZ-II (7729.28 sqm.) and partly outside CRZ (29523.00 sqm.) and recommendations were made to the Local Planning Authority- CIDCO, subject to the conditions laid down therein, in which it also includes in the condition No.4 that no construction is allowed in Mangroves or in its Page 6 of 9 50 mtrs. buffer zone area, without Honble High Court's permission. It is also recorded in this Minutes that during the meeting, the consultant presented that construction of temple is proposed beyond CRZ area as per approved CZMP- 2019. However, Only Garden/landscaping and Compound wall is proposed within 50 mtrs. mangrove buffer zone area.
No mangrove cutting is involved in the project. Consultant also presented that compound wall will help in fencing/protection of the mangroves. The Authority instructed the PP to obtain the Mangrove Cell NoC for the said activity within 50 mtrs. of mangrove buffer zone. Pursuant to this meeting, the impugned recommendations were issued, which is dated 02.11.2023.
16. During argument, it transpired that the maps prepared by the IRS Chennai, which were relied upon by the respondent No.3- MCZMA in determining the area, which was falling outside the CRZ, has not been annexed by the learned counsel for appellant, as the same could not be found by her.
17. We were of the view that if as per the CZMP- 2019, the area of 11,595.70 sq. mtrs. was found to be outside the CRZ, how any construction of temple could have been prohibited there.
18. From the argument made by the learned counsel for appellant, it appears that the plot in question, which is larger in size, having an area of 40,000.46 sq. mtrs., out of which an area of 29523.00 sq. mtrs. is found to be outside the CRZ area, wherein it appears that the permission to construction the temple has been given, how the same could have been challenged. This area, which is said to be outside the CRZ area, can be ascertained only from the map, which has been relied upon by the respondent No.3- MCZMA, while taking the decision in question. Therefore, we direct the learned counsel Mr. Aniruddha Kulkarni Page 7 of 9 representing respondent No.3- MCZMA to place before us the said map on the next date.
19. To make it more specific as to which maps are required by us, we rely on the Regulation 8 of the CRZ Notification- 2019, which laid down the procedure for CRZ clearance for permissible and regulated activities, in which in Sub-Clause (i) (e) & (f), following are recorded:-
"Regulation 8(i)(e): CRZ map in 1:4000 scale, drawn up by any of the agencies identified by the Ministry of Environment, Forest and Climate Change vide its Office Order number J-17011/8/92-IA-III, dated the 14th March, 2014 using the demarcation of the HTL or LTL, as carried out by NCSCM.
Regulation 8(i)(f): Project layout superimposed on the CRZ map duly indicating the project boundaries and the CRZ category of the project location as per the approved Coastal Zone Management Plan under this notification."
20. The above two maps are required to be placed before us by learned counsel the respondent No.3- MCZMA on the next date.
21. We also would like to know from the respondent No.3- MCZMA as to whether the project was allowed under Regulation 8 (ii) Sub-Clause (b) or Sub-Clause (d) because the procedure adopted by the respondent No.3- MCZMA in granting approval is also challenged by the learned counsel for appellant, as it is alleged that the procedure has not been followed.
I.A. No.35/2024(WZ)
22. This I.A. has been filed by the learned counsel for appellant seeking condonation of delay, if at all, it is found to be there, details of which are mentioned in para no.11 of the said I.A. and it is argued by her that in fact, there is no delay on the part of appellant in filing the present appeal. But by way of abundant precaution, this I.A. has been moved, although all the reasons, on the basis of which there would be no delay counted in Page 8 of 9 filing the present appeal, have already been explained in the original memo of appeal.
23. Registry is directed to issue Notice to the respondents, who have not appeared today, on delay condonation application, returnable within 04(four) weeks.
24. Appellant is directed to take necessary steps for service to the respondents by both ways (Dasti as well as by Registered Post) and also on available e-mail/WhatsApp and submit service affidavit within one week.
25. Appellant is also directed to provide copy of the application and relevant documents to the respondents within a week.
26. Respondents are directed to submit their reply affidavits within four weeks and also circulate the same to the appellant as also other respondents by available e-mail.
27. Rejoinder, if any, is directed to be submitted within one week thereafter.
28. During argument, the learned counsel for appellant has also submitted before us brief arguments as well as several coloured copies of maps, which are taken on record.
Put up this matter for further consideration on 18.03.2024 Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 15, 2024 Appeal No.13/2024 (WZ) I.A. No.35/2024(WZ) P.Kr Page 9 of 9