Bombay High Court
The Conservation Action Trust And Anr vs Union Of India And 2 Ors on 2 November, 2018
Author: G.S.Kulkarni
Bench: Naresh H. Patil, G.S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.58 OF 2017
The Conservation Action Trust & Anr. .. Petitioners
Vs.
Union of India & Ors. .. Respondents
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Mr.Aspi Chinoy, Senior Advocate, with Ms.Gulnar Mistry, Ms.Rhishikesh
Bidkar and Ms.Rajashree Ram i/b. M/s.Hariani & Co. for petitioner in PIL
No.58/17.
Mr.Ketan Parekh i/b. Mr.K.R. Parekh & Co. for petitioner in PIL No.6/17.
Mr.Mihir Desai, Senior Advocate, with Mr.Mihir Joshi i/b. Sarang
Ugalmugle for petitioners in PIL(St.) No.8/18.
Mr.V.A. Thorat, Senior Advocate (Special Counsel for State) with
Ms.Geeta Shastri, AGP and Ms.Prachi Tatake in all PILs.
Ms.Sharmila Deshmukh for Respondent No.3 in PIL No.58/17 & PIL(L)
8/18.
Mr.S.R. Rajguru with Mr.Anil Singh, ASG, with Mr.Anand Singh for
Respondent No.1-UOI in PIL No.58/17 & PIL(L.) No.8/18.
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CORAM : NARESH H. PATIL, C.J.
& G.S. KULKARNI, J.
DATE: 2st November, 2018.
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ORAL ORDER:(Per G.S.Kulkarni,J.)
1. Heard the learned Counsel for the petitioners and the learned Counsel for respondents.
2. This petition filed in public interest principally challenges the order dated 23 February 2015 of the Government of India, the Ministry of Environment, Forest and Climate Change (for short 'MoEF') which grants environmental and CRZ clearance to Chhatrapati Shivaji Maharaj Memorial (for short 'the said project') in the Arabian sea in proximity to South Mumbai. There is also a prayer that Clause 4(ii)(j)(D) of the Coastal Zone notification,2011 as amended by notification dated 17 February 2015 of the MoEF, be held to be illegal.
3. This petition was urgently moved on behalf of the petitioners contending that there are newspaper reports indicating that the work on site in regard to the construction of the proposed project has started on 24 October 2018 and reclamation of the land has begun for the project. It is thus prayed for that urgent interim reliefs in terms of prayer clause (D) of the petition, namely of a stay be granted to the order dated 23 February 2015 of the MoEF, granting CRZ and environmental clearance to the said ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 3 pil58-17.doc project and the respondents be restrained from taking further steps thereunder. Prayer clause (d) reads thus:-
(d) that pending the hearing and final disposal of the Petition the Environmental clearance dated 23 February 2015 be stayed by an interim order of this Hon'ble Court and the respondent no.2 be restrained by an interim order of this Hon'ble Court from acting on the basis of the purported CRZ & Environmental clearance dated 23 February 2015 or from taking any steps to proceed with the proposed Memorial Project.
4. Mr.Chinoy, learned Senior Counsel for the petitioners in support of today's application has raised two contentions. Firstly it is contended that incorporation of clause (D) in the Notification dated 17 February 2015 issued by the MoEF whereby the CRZ Notification dated 6 January 2011 is amended, is itself illegal. The relevant extract of the Notification reads thus:-
(b) in paragraph 4, in sub-paragraph (ii) after item (i) the following item shall be inserted namely:
"(j) Construction of memorials/monuments and allied facilities by the concerned State Government in CRZ-IV (A) areas, in exceptional cases, with adequate environmental safeguards, subject to the following, namely;
(A) ..........
(B)........
(C) ....
(D) The Central Government may, if it considers necessary so to do, dispense with the requirement of public hearing referred to in sub-item (B) if it is satisfied that the project will not involve rehabilitation and resettlement of the public or the project site is located away from human habitation." (emphasis supplied) ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 4 pil58-17.doc Mr.Chinoy contends that clause (D) of the said notification which permits the Central Government to dispense with the requirement of public hearing on matters referred in sub item (B) (supra), is illegal on the ground that the draft notification dated 11 December 2014 issued by the Central Government did not incorporate such a clause, so that objections could be raised by the public at large on such a clause. Mr.Chinoy has drawn our attention to the draft notification dated 11 December 2014 by which the Central Government proposed to amend the CRZ notification dated 6 January 2011. Mr.Chinoy submits that the said draft notification has categorically excluded incorporation of such a clause to dispense with the requirement of a public hearing which now finds place in final notification dated 17 February 2015. It is thus submitted that without calling for objections and a public hearing, clause (D) could not have been incorporated. It is next submitted that the Central Government in any case by providing for clause (D) cannot dispense with the requirement of a public hearing in matters concerning the important issues as falling under clause (B) of the final notification dated 17 February 2015.
5. Mr.Chinoy has drawn our attention to the provisions of Section 3 of the Environment (Protection) Act,1986 (for short 'the ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 5 pil58-17.doc E.P.Act') and Rule 5 of the Environment (Protection) Rules,1986 (for short 'the E.P.Rules') and the draft CRZ notification dated 11 December 2014 to amend the principal notification dated 6 January 2011 and the final notification dated 17 February 2015 incorporating the amendment in the principal CRZ notification dated 6 January 2011. Mr.Chinoy would contend that even otherwise there is no order passed by the Central Government in terms of clause (D) of the notification dated 17 February 2015 so as to take a decision to dispense with the requirement of a public hearing. It is thus submitted that this is a clear case of breach of the provisions of law and thus, the further progress of the project needs to be stayed as prayed.
6. On the other hand Mr.Thorat, learned Senior Counsel for the State has contested the plea as urged on behalf of the petitioner. In support of his submission, Mr.Thorat has referred to the reply affidavit as placed on record of Mr.Sunil Annasaheb Wandhekar, Chief Engineer. Our attention is drawn to paragraphs 8(xv) to (xx) and paragrpah 9 of the reply affidavit to contend that the State has taken clearances for the project from different authorities. It is stated that there are twelve clearances by the public authorities, which include the Ministry of ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 6 pil58-17.doc Environment & Forests (MoEF), Fisheries Department, Bombay Natural History Society, Mumbai Port Trust, National Security Guard, New Delhi, Mumbai Police Department, Western Naval Command & ToR from MoEF and CC, Coast Guard, Mumbai Meritime Board, Indian Navy, Aviation Authority of India, Municipal Corporation for Gr.Mumbai as also Bombay Electricity Supply and Transport Undertaking. It is stated that in pursuance of the draft notification dated 11 December 2014 and after receipt of the suggestions/objections, the Ministry of Environment has issued the final notification dated 17 February 2015 amending the CRZ notification dated 6 January 2011. It is stated that in terms of the amended notification, construction of the memorial/monument/allied facilities by the State Government in the CRZ IV (A) area, has commenced, as an exceptional case with adequate environmental safeguards as a permissible activity. It is stated that final environmental and CRZ clearance dated 23 February 2015 is granted by the MoEF & CC, New Delhi after a detailed study and after ascertaining the compliance of all requirements and after following proper procedure. In regard to the petitioner's objection on paragraph (D) of the final amended CRZ notification dated 17 February 2015, it is staed that the project is away from human habitation and is situated in the Arabian Sea, 1.2 kms. ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 :::
pvr 7 pil58-17.doc Southwest of Raj Bhavan, 3.6 kms. Southwest of Girgaon and 2.6 kms. West of Nariman Point. It is stated that the project does not involve rehabilitation and resettlement of public. It is stated that the memorial is aimed at not only providing a place for people to visit, but also create an internationally acclaimed landmark of our country. It is further stated that MOEF & CC, New Delhi has also granted the amended Environment and CRZ clearance on 15 June 2018 for increase of the height of the statute upto 210 mts., on a recommendation of the Maharashtra Coastal Zone Management Authority (MCZMA) dated 16 February 2018. It is further stated that after due diligence and verifying all compliances, a contract agreement dated 28 June 2018 is executed by the PWD in favour of M/s.Larsen & Toubro Ltd. for completion of the said Statue and memorial within the stipulated period of 36 months. It is stated that the contract value is of Rs.2581 crores plus GST for the project work. It is further stated that the work has commenced as per the contract agreement on 19 October 2018.
7. On behalf of Union of India though an appearance was made when this Court considered the matter on 22 February 2018 we are informed that a copy of the petition itself is not sent to the Ministry of ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 8 pil58-17.doc Environment and Forests, New Delhi, which had inadvertently remained to be forwarded by the concerned. We are shown E-Mail of Shri.Niraj Kumar, Legal Assistant, Impact Assessment Division, MoEF & CC, received today at 10.18 a.m., informing that a copy of the petition be provided to the Ministry. We are deeply pained and disturbed at this casual and negligent approach on the part of all the concerned who were supposed to represent the interest of MoEF. We notice that this petition was extensively heard by the Division Bench on 22 February 2018 when the Union of India through MoEF & CC was represented by a Counsel. The arguments on behalf of the petitioners were noted and the Bench was pleased to make the following directions in paragraphs 6 and 7 which concerns the MoEF:-
6. Issue notice in both the petitions returnable on 3.4.2018.
In both the petitions, the learned Additional Government Pleader waives service for the State of Maharashtra. The learned counsel appearing for the Maharashtra Coastal Zone Management Authority also waives service. The learned counsel appearing for the Union of India waives service. We direct all the respondents to file an affidavit in reply within a period of one month from today.
7. While filing a reply, the Union of India shall specifically state whether any order in writing was passed by it under clause D of paragraph 4 (ii) (j) of CRZ notification dispensing with requirement of public hearing. If such order is already passed by the Central Government, a copy of the application made by the State Government as well as the copy of the order shall be placed on record along with the affidavit." (emphasis supplied) ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 9 pil58-17.doc
8. Today we are informed that the papers are not forwarded to the concerned office of MoEF & CC at New Delhi when in fact there are categorical directions of the Court to file affidavit by 22 March 2018 as also directions that the stand of the MoEF, Government of India be placed on record in terms of paragraph 7 of the said order (supra). We thus may observe that the Union of India is in breach of the orders of the Division Bench. We however propose to deal with this situation in a separate order.
9. On the backdrop the matter stands today, we are not in a position to adjourn the hearing of this petition in view of the urgent interim reliefs being pressed on behalf of the petitioners in the situation as noted above. We are principally required to address a legal issue as Mr.Chinoy, learned Senior Counsel for the petitioners contends. We accordingly proceed to consider the interim prayers of the petitioners.
10. Having heard the learned Counsel for the parties and having perused the record, we are not persuaded to accept this submission as urged on behalf of the petitioners, this for the reasons we set out hereunder.
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11. It is not in dispute that the principal notification (for short "CRZ Notification") is dated 6 January 2011. This notification is issued by the Government of India in exercise of power conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act,1986. By a notification dated 11 December 2014 the Government of India issued a draft notification to amend the principal notification dated 6 January 2011 to incorporate the following amendments and invited objections and suggestion from the public at large:-
MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE NOTIFICATION New Delhi, the 11th December, 2014 S.O. 3202 (E) - The following draft notification to amend the notification of the Government of India in the erstwhile Ministry of Environment and Forests number S.O. 19(E), dated the 6 th January, 2011, which the Central Government proposes to issue in exercise of the powers conferred by sub section 1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986 (29 of 1986) read with sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, for the information of the public likely to be affected thereby and notice is hereby given that the said notification will be taken into consideration by the Central Government on and after expiry of sixty days from the date on which copies of the Gazette of India containing this notification are made available to the public;
Any person interested in making any objections or suggestions on the proposals contained in the draft notification may forward the same in writing within the period so specified to the Secretary, Ministry of Environment, Forests and Climate Change, Indira Paryavaran Bhawan, Jorbagh Road, New Delhi - 110003, or at e -mail address: [email protected].::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 :::
pvr 11 pil58-17.doc In the notification of the Government of India in the erstwhile Ministry of Environment and Forest under S.O.19 (E) dated the 6 th January 2011.
(a) In paragraph 3, -
(i) for item (ix), the following item shall be substituted namely:-
"(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities except for construction of memorials/monuments and allied facilities only in exceptional cases by the concerned State Government on a case to case basis";
(ii) for item (xiii), the following item shall be substituted, namely:-
"(xiii) Dressing or altering the sand dunes, hills, natural features including landscape change for beautification, recreation and other such purpose except utilising the rocks/hills/natural features for development of memorials/monuments and allied facilities by the concerned State Government";
(b) In paragraph 4, in sub-paragraph (ii) after item (I) the following item shall be inserted namely :-
"(j) Construction of memorials/monuments and allied facilities by the concerned State Government in CRZ-IV (A) areas in exceptional cases with adequate environmental safeguards, subject to the following, namely:-
"(i) The concerned State Government shall submit justification for locating the project in CRZ area along with details of alternate sites considered and weightage matrix on various parameters including environmental parameters to State CZMA for their examination and recommendation to MoEF to obtain Terms of Reference (ToRs) to prepare an environmental impact assessment report;
(ii) On grant of ToRs, the concerned State Government shall submit the draft Environmental Impact Assessment report (EIA) with Environmental Management Plan (EMP), draft Risk Assessment report with Disaster Management Plan (DMP) including on site and off site emergency plan and evacuation during emergency to the State Pollution Control Board for conduct of public hearing for the proposed project in accordance with the procedure laid down under the Environment Impact Assessment notification;
(iii) The concerned State Government shall submit final
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EIA, EMP, Risk Assessment and DMP after addressing the relevant issues raised by the public during the public hearing, to State CZMA for their examination and recommendation to MoEF."
12. The Central Government after following due procedure and considering the objections and suggestions issued notification dated 17 February 2015 interalia incorporating the amendments which were notified in the draft notification dated 11 December 2014. We may refer to this notification dated 17 February 2015 incorporating amendments to principal CRZ Notification dated 6 January 2011 which reads thus:-
MINISTRY OF ENVIRONMENT, FORESTS AND CLIMATE CHANGE NOTIFICATION New Delhi, the 17th February, 2015.
S.O.556 (E) - Whereas, a draft notification further to amend the notification of the Government of India in the erstwhile Ministry of Environment and Forests number S.O. 19 (E) dated the 6 th January, 2011 (hereinafter referred to as the Coastal Regulation Zone, notification, 2011) was published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (ii) vide notification number S.O.3202 (E) dated the 11th December 2014, as required under sub rule (3) of rule 5 of the Environment (Protection) Rules 1986 inviting objections and suggestions from all persons likely to be affected thereby within a period of sixty days from the date on which copies of Gazette containing the said notification were made available to the public;
And whereas, copies of the said notification were made available to the public on 11th December, 2014;
And whereas, objections and suggestions received in response to the said draft notification have been considered by the Central Government.
Now, therefore, in exercise of the powers conferred by sub- section (1) and clause (v) of sub section (2) of section 3 of the said ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 13 pil58-17.doc Environment (Protection) Act (29 of 1986) read with clause (d) of sub rule (3) of rule 5 of the said Environment (Protection) Rules 1986, the Central Government hereby makes the following further amendments in the Coastal Regulation Zone notification, 2011, namely :-
In the said Coastal Regulation Zone notification, 2011,-
(a) in paragraph 3, -
(i) for item (ix), the following item shall be substituted, namely:-
"(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities except for construction of memorials/monuments and allied facilities only in CRZ-IV (A) areas, in exceptional cases, by the concerned State Government on a case to case basis.
(ii) for item (xiii) the following item shall be substituted, namely:-
"(xiii) Dressing or altering the sand dues, hills natural features including landscape change for beautification, recreation and other such purpose except utilising the rocks hills/natural features in CRZ-IV (A) areas for development of memorials/monuments and allied facilities by the concerned state government."
(b) In paragraph 4, in sub paragraph (ii) after item (i) the following item shall be inserted namely:-
(j) Construction of memorials/ monuments and allied facilities by the concerned State government in CRZ-IV (A)areas in exceptional cases with adequate environmental safeguards subject to the following namely, (A) The concerned State government shall submit justification for locating the project in CRZ-IV (A) area alongwith with details of alternate sites considered and weightage matrix on various parameters including environmental parameters, to State CZMA who will examine the project and make recommendations to the central government (MOEF) for grant of Terms of Reference (TORs) for preparation of an environmental impact assessment report by the State Government;
(B) On grant of ToRs by the central government, the concerned State Government shall submit the draft Environmental Impact Assessment Report (EIA) with environmental management plan (EMP), draft Risk Assessment Report with Disaster Management Plan (DMP) including on-site and off-site emergency plan and evacuation plan during emergency, to the State Pollution Control Board for conduct of public hearings for the proposed project in accordance with the procedure ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 14 pil58-17.doc laid down under the Environment Impact Assessment Notification.
(C) The concerned State Government shall, after addressing the relevant issues raised by the public during the public hearing referred to in sub-item (B) submit the final EIA, EMP,Risk Assessment and DMP, to the State CZMA for their examination and recommendations to MoEF.
(D) The central government may, if it considers necessary so to do, dispense with the requirement of public hearing referred to in sub-
item (b) if it is satisfied that the project will not involve rehabilitation and resettlement of the public or the project site is located away from human habitation". (emphasis supplied) The objection of the petitioners is to clause (D) (supra) namely the powers conferred on the Central Government to dispense with the requirement of public hearing for matters falling in sub-item (B) if it is satisfied that the project will not involve rehabilitation and resettlement of the public or the project site is located away from human habitation. Prima facie on a plain reading of clause(D), ipso facto, in our opinion, the incorporation of clause (D) does not appear to be invalid or illegal. This firstly for the reason that in amending the original CRZ notification,the Central Government has exercised powers conferred by sub-section (1) and Clause (v) of sub- section (2) of Section 3 of the E.P.Act read with clause (d) of sub-rule (3) of rule 5 of the E.P.Rules. Albeit Clause (D) of the notification dated 17 February 2015 (supra), the Central Government does not lack power to incorporate such addition in view of clear provision of sub-rule (4) of Rule ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 15 pil58-17.doc 5 of E.P.Rules,1986 which reads thus:-
5. Prohibition and restriction on the location of industries and the carrying on processes and operations in different areas-
(1) ...................
(2)........
(3)......
4. Notwithstanding anything contained in sub-rule (3) whenever it appears to the central government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (c)."
Sub rule (4) therefore, confers a power on the Central Government, in public interest to dispense with the requirements of a public notice under clause (a) of sub-rule (c). In the teeth of sub-rule (4) of Rule 3 mere incorporation of clause (D) in the notification dated 17 February 2015 prima facie cannot be said to be an illegality.
13. Further there is also a power as conferred on the Central Government under Section 5 of the E.P.Act to issue directions in writing which is inclusive power. It is well settled that such power can be utilised by the Government in public interest. Thus we do not find that incorporating clause (D) in the notification dated 17 February 2015 is without authority and/or a specific procedure for inviting public objections to incorporate this clause was required to be followed. Another ::: Uploaded on - 02/11/2018 ::: Downloaded on - 03/11/2018 02:13:02 ::: pvr 16 pil58-17.doc reason for which we do not find favour to the submissions as urged on behalf of the petitioners is that, in undertaking the present project the State Government has in terms stated that the project does not involve rehabilitation and resettlement of the public and the project site is located away from human habitation. If this be the position, prima facie, we do not find that there is anything arbitrary on the part of the Central Government in incorporating such provision. We thus find much substance in the contention as urged on behalf of the State. It also cannot be overlooked that the project is considered by the State Government to be of national importance.
14. For the above reasons, we reject the prayers of the petitioners for ad-interim reliefs.
(G.S. KULKARNI,J.) (CHIEF JUSTICE)
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