National Green Tribunal
Vanashakti vs Union Of India Through The Secretary ... on 1 December, 2022
Item No. 1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 106/2022(WZ)
Vanashakti & Ors.
.....Applicant
Versus
Union of India, through the Secretary, MoEF & CC & Ors.
....Respondent(s)
Date of hearing: 01.12.2022
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Akash Rebello along-with Mr. Zaman Ali, Advocate
ORDER
1. In the present application, following prayers have been made by the Applicants:-
" A. That this Hon'ble Tribunal be pleased to pass a direction that the impugned notification is illegal, ultra-vires, and violates Articles 14 and 21 of the Constitution of India; and declare that the Coastal Regulation Zone Notification dated 6th January 2011 (and as amended from time to time) continues to be valid and binding;
B. That this Hon'ble Tribunal be pleased to pass a direction restraining the Respondents, its officers or any person claiming through or under them from acting on the impugned notification; and direct the said Respondents to act in accordance with the Coastal Regulation Zone Notification dated 6th January 2011 (and as amended from time to time);
C. In the alternative to the above, Bifurcation of CRZ-III into CRZ-IIIA and IIIB, and relaxation of 200 meter NDZ to 50 meters in CRZ- IIIA
a) That this Hon'ble Tribunal direct that the following provisions are arbitrary, illegal, and ultra-vires:
(i) The words "and CRZ-III shall be further classified into following categories" in Regulation 2.3 Page 1 of 8
(ii) Regulation 2.3.1
(iii)The words "-B" occurring in CRZ-III-B in the entire notification
(iv) The words "All CRZ-III areas with population density of less than 2161 per square kilometre, as per 2011 census base, shall be designated as CRZ-III B and" in Regulation 2.3.2
(v) the words "with population density" to "and in CRZ III-B" in Regulation 2.3.2.
b) that this Hon'ble Tribunal pass a direction restraining the Respondents from acting upon the following:
(i) The words "and CRZ-III shall be further classified into following categories" in Regulation 2.3
(ii) Regulation 2.3.1
(iii)The words "-B" occurring in CRZ-III-B in the entire notification
(iv)The words "All CRZ-III areas with population density of less than 2161 per square kilometre, as per 2011 census base, shall be designated as CRZ III B and" in Regulation 2.3.2
(v) the words "with population density" to "and in CRZ 111-B" in Regulation 2.3.2.
Reduction in the CRZ for tidal influenced water bodies from 100m to 50m:
c) that this Hon'ble Tribunal direct that:
(i). the terms "to the land area between HTL to 50 meters or width of the creek" in Regulation 1.0 (ii) and "Provided that the CRZ limit of 50 meters or width of the creek whichever is less, shall be subject to revision and final approval of the respective CZMPs as per this notification, framed with due consultative process, public hearing etc. and environmental safeguards enlisted therein, and till such time the CZMP to this notification is approved, the limit of 100 meters or width of the creek whichever is less, shall continue to apply" in Proviso to Regulation 1.0 (ii) are arbitrary, illegal, and void;
(ii). an area upto 100 meter from HTL or width of the creek be continued to be declared as a CRZ area in line with the judgment in Indian Council for Environment-Legal Action & ors. v/s Union of India & Ors. [O996) 5 SCC 281]
(iii). without prejudice to c) (i) and (ii) above, that 50mt.
width of the creek is a minimum area of CRZ and not an outer limit that has to be fixed in the CZMP. The actual area of CRZ has to be determined on a case to case basis in the CZMP based on various factors which may require that the CRZ in the case Page 2 of 8 of a tidal influenced water body may extend beyond 50m;
d) that this Hon'ble Tribunal pass directions:
(i). restraining the Respondents from Acting upon the terms "to the land area between HTL to 50 meters or width of the creek" in Regulation 1.0 (ii) and "Provided that the CRZ limit of 50 meters or width of the creek whichever is less, shall be subject to revision and final approval of the respective CZMPs as per this notification, framed with due consultative process, public hearing etc. and environmental safeguards enlisted therein, and till such time the CZMP to this notification is approved, the limit of 100 meters or width of the creek whichever is less, shall continue to apply" in Proviso to Regulation 1.0 (ii)
(ii). In the alternative to d (i), above, directing the Respondents to treat the CRZ limit of that 50m/width of the creek is a minimum area of CRZ that has to be fixed in the CZMP. The actual area of CRZ has to be determined on a case to case basis in the CZMP based on various factors which may require that the CRZ in the case of a tidal influenced water body may extend beyond 50m;
e) that this Hon'ble Tribunal formulate guidelines for preparation of CZMP that the criteria in paragraph 20(vi) shall govern the extension of CRZ beyond 50 meters.
Change of FSI norms in CRZ-II from this existing in 1991 to those presently existing
f) that this Hon'ble Tribunal direct that the following provisions are arbitrary, illegal, and ultra-vires; and restrain the Respondents from acting upon the following:
(i) the words "as on the date of this Notification , and in the event that there is a need for amendment of the FSI after the date of publication of this notification in the official Gazette, the Urban Local Body or State Government or Union territory Administration shall approach the Ministry of Environment, Forest and Climate Change through the concerned State Coastal Zone Management Authority (SCZMA) or Union Territory Coastal Zone Management Authority, as the case may be and the SCZMA shall forward the proposal to the National Coastal Zone Management Authority (NCZMA) with its views in the matter, and the NCZMA shall thereafter examine various aspects like availability Page 3 of 8 of public amenities, environmental protection measures, etc., and take a suitable decision on the proposal and it shall be the responsibility of the concerned Town Planning Authority to ensure that the Solid Wastes are handled as per respective Solid Waste Management Rules and no untreated sewage is discharged on to the coast or coastal waters." after the term "prevailing" in Regulation 5.2
(iii)
(ii) the words "as on the date of this Notification notification in the official Gazette and in the event that there is a need for amendment of the FSI after the said date of this notification, the Urban Local Body or State Government or Union territory Administration shall approach the Ministry of Environment, Forest and Climate Change through the concerned State Coastal Zone Management Authority (SCZMA) or Union Territory Coastal Zone Management Authority, as the case may be and the CZMA shall forward the proposal to the National Coastal Zone Management Authority (NCZMA) with its views in the matter, and the NCZMA shall thereafter examine various aspects like availability of public amenities, environmental protection measures etc,. and take a suitable decision on the proposal and it shall be the responsibility of the concerned Town Planning Authority to ensure that the Solid Wastes are handled as per respective Solid Waste Management Rules and no untreated sewage is discharged on to the coast or coastal waters." after the term "prevailing" in Regulation 5.2
(iv)
g) that this Hon'ble Tribunal direct that the term "prevailing" would mean FSI prevailing at the time of coming into force of CRZ 1991 in line with the judgment in Suresh Estates vs Municipal Corporation of Greater Mumbai & Ors. [(2007) 14 SCC 439].
Dilution of protection for mangroves and mangrove buffer
h) that this Hon'ble Tribunal direct that the following provisions are arbitrary, illegal, and ultra-vires:
(i). the term "etc." in Regulation 5.1.1. (i).
(ii). Regulation 5.1.1.(ii)
i) that this Hon'ble Tribunal pass directions restraining the Respondents from acting upon the following:
(i) the term "etc." in Regulation 5.1.1.0).
(ii) Regulation 5.1.1.(ii)
j) That this Hon'ble Tribunal direct that afforestation must be of an equivalent "area on which mangroves grow" and not merely of the number of mangroves Page 4 of 8 affected or destroyed or cut during the construction process and further direct the Respondents to conduct compensatory afforestation of three times the "area on which mangroves grow" and not merely the number of mangroves cut"
2. The Applicant No. 1 is a Public Trust and Applicant No. 2 is a Contractor of the said Public Trust. They have challenged various Provisions of the CRZ Notification, 2019 which has superseded the earlier CRZ Notification, 2011. The main challenge is to the following Provisions, which have been introduced in the CRZ Notification, 2019:-
" a) Bifurcation of CRZ-III Into CRZ-IIIA AND IIIB, And Reduction of 200 Meter NDZ To 50 Meters In CRZ-IIIA [Regulation 2.3.1 and 2.3.2]
b) Reduction In The CRZ For Tidal Influenced Water Bodies From 100M TO 50M [Regulation 1.0 (ii)]
c) Change Of FSI Norms In CRZ-II From Those Existing In 1991 To Those Presently Existing [Regulation 5.2 (iii) and 5.2 (iv)]
d) Procedure For Clearance Of Projects Including Dispensing With EIA, Risk Assessment Report, And Disaster Management Plans in certain cases [Regulation 8 (i) (b) and 8 (i) (c)]
e) Dilution of essential components in preparation Of CZMP (Annexure --IV)
f) Dilution of essential components in Application Form for CRZ Clearance (Annexure -- V)
g) Dilution Of Protection For Mangroves And Mangrove Buffer [Regulation 5.1.1.(i), Regulation 5.1.1.(ii)]
h) Changes In The Regulation Of Permissible Activities (Hotels, Port Development, Airport) In the CRZ [Regulation 5.1_2(i)(a), Regulation 5.2 (v), Regulation 5.4(ii)(a); Regulation 5.3 (g), Regulation 5.3 (v);
i) Deleting Items From The List Of Prohibited Activities In The CRZ (Waste Disposal, Land Reclamation, Fish Processing units, and dressing of Sand Dunes) [Regulation 4 (i) and (ix)]
j) Increase In The Number Of Petroleum And Chemical Products Permitted To Store In CRZ Areas Except For CRZ-I(A) [Annexure II Regulations (xvi) to (xxiii)]
k) Dilution Of CRZ - I By Removing The Term `Associated Biodiversity' In Respect Of Protection Of Coral Reefs [Regulation 2.1.1 (a) (ii)]
l) Reduction In CRZ From 50 Meters To 20 Meters On Islands [Regulation 10.2 (ii)]
m) Construction Of Statues / Monuments [Regulation 5.4 (xv)] Page 5 of 8
n) Deletion of Special Provisions For Koliwadas And Gaothans In Greater
o) Deletion of Special Provisions for Mumbai"
3. The learned Counsel for the Applicant has drawn our attention to page no. 13 of the paper book in order to show that by the new Notification i.e. CRZ, 2019, the CRZ for tidal influence water bodies has been reduced from 100m. to 50m., which is in violation of the Judgment of Hon'ble Supreme Court passed in Writ Petition (C) No. 664 of 1993 (Indian Council for Enviro Legal Action vs. Union of India & ors.) [(1996) 5 SCC 281], where-in grievance was raised before the Hon'ble Supreme Court, relating to Notification dated 19.02.1991, declaring Coastal Stretches as Coastal Regulation Zones which regulated the activities in the said Zones. There was also a challenge to the validity of the Notification dated 18.08.1994, where-by the first Notification dated 19.02.1991 had been amended, resulting in further relaxations of the provisions of 1991 Notification and such relaxation, it was alleged, would help defeat the intent of the main Notification itself. By the said Notification, No Development Zone was relaxed to 50m. from earlier 100m. as has been done now in the new CRZ Notification, 2019 and it is argued that this reduction of CRZ was held to be illegal by the Hon'ble Supreme Court of India, which is evident from what is stated in para 39 of the said Judgment, quoted here-in-below:-
"39. Justifying this amendment, it was contended by the Union of India that in case of creeks, rivers or backwaters, it is not possible to have a uniform basis for demarcating NDZ. The zone shall be regulated based upon each individual case. It is no doubt true that them can be no uniform basis for demarcating NDZ and it will depend upon the requirements by each State authority concerned in their own Management Plans but no reason has been given why in relation to tidal rivers, there has been a reduction of the ban on construction from 100 metres to 50 metres. Even the Vohra Committee which had been set up to look into the demands of Hotel and Tourism Industry had not made such a proposal and, therefore, it appears to us that such a reduction does not appear to Page 6 of 8 have been made for any valid mason and is arbitrary. This is more so when it has been alleged that in some areas like Goa, there are mangrove forests that need protection and which stretch to more than 100 metres from the river bank and this contention had not been denied. In the absence of any justification for this reduction being given the only conclusion which can be arrived at is that the relaxation to 50 metres has been done for some extraneous reason. It was submitted, at the time of arguments by the Additional Solicitor General that construction has already taken place along such rivers, creeks etc. at a distance of 50 metres and a. more, but no such explanation has been given in the reply affidavit. Even if this be so such reduction will permit new construction to take place and this reduction cannot be regarded as a protection only to the existing structures. In the absence of a categorical statement being made in an affidavit that such reduction will not be harmful or result in serious ecological imbalance, we are unable to conclude that the said amendment has been made in the larger b. public interest and is valid. This amendment is, therefore, contrary to the object of the Environment Act and has not been made for any valid reason and is, therefore, held to be illegal."
4. He has drawn our attention to the change in FSI norms in CRZ-II from those existing in 1991 Notification to the date of Notification of the new Notification of CRZ, 2019 i.e. 18th January, 2019. He has drawn our attention to the table given in para 25 of the said Petition and at serial no. 2 in Column no. 4, the total permissible FSI is linked to road width (greater than 12m. Road width only), for a road of width above 27 meters, FSI is allowed 6.75 which is too high. According to him, if this would be the FSI allowed then there would be huge crowd created in the coastal zone areas and that will result in huge pollution as well, which cannot be the intent of the Environment (Protection) Act, 1986 and should be considered to be in violation of the said Act.
5. Then he has drawn attention to the report of Naik's Committee, the relevant portion of which at page no. 260 of the paper book, which recommended that land area between HTL to 100m. or width of the water body, whichever is less, on the landward side along the tidally influenced water bodies, should be treated to be CRZ area but the provision in this Page 7 of 8 regard included in the CRZ Notification, 2019, is in contravention to this recommendation of the Committee.
6. Based on the above arguments, we find that matter requires consideration at length. Therefore, we admit this application.
7. Issue notices to the Respondents, returnable within four weeks.
8. Applicant is directed to provide copy of the application and relevant documents to the Respondents within a week.
9. Respondents are directed to submit their reply affidavit before 31.01.2023.
10. Applicant is also directed to take necessary steps for service upon the Respondents by both ways and also through available e-mail.
Put up this matter on 31.01.2023.
11. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM December 01, 2022 Original Application No. 106/2022(WZ) P.Kr Page 8 of 8