National Green Tribunal
Samita Rajendra Patil vs Jindal Steel Works Ltd. Through ... on 17 April, 2025
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO.122 OF 2015 (WZ)
WITH
I.A. NO.210/2022 (WZ) AND I.A. NO.329/2022 (WZ)
1. Samita Rajendra Patil,
Age : Adult, Occu. Social Activist,
R/o Sulbha Sadan, Prabhu Ali,
Pen
2. Sunil Kothekar,
Age : 43 years, Occu. Agriculturist,
R/o Village Kharmachela,
At post Gadab, Tal. Pen, District Raigad .....Applicants
Versus
1. Jindal Steel Works Ltd.,
Through Chairman Shri Sajjan Jindal,
Jindal Mansion, 5A, Dr. G. Deshmukh Marg,
Mumbai - 400 026
2. Jindal Steel Works Ltd.
Through Managing Director,
Jindal Mansion, 5A, Dr. G. Deshmukh Marg,
Mumbai - 400 026
3. Maharashtra Pollution Control Board,
Kokan Region, Raigad Bhavan,
Sector - 11, C.B.D. Belapur,
Navi Mumbai
4. Member Secretary,
MPCB, Kalpataru Point,
Opposite Cinemax, Sion Circle,
Mumbai - 400 022
5. Secretary,
Ministry of Environment, Forest and
Climate Change, Indira Paryavaran Bhavan,
CGO Complex, New Delhi - 110 003
6. Chief Conservator of Forest,
Van Bhavan, Bara Bungalow Bhavan,
Near Microwaver Tower,
Kopri Colony, Thane (E) - 400 603
7. The Principal Secretary (Forest),
Revenue and Forest Department,
Mantralaya, Mumbai - 400 032
8. The Secretary,
Environment Department,
Mantralaya, Mumbai - 400 032
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9. Commissioner,
Kokan Region, CBD Belapur,
Navi Mumbai - 400 614
10. The Collector,
Collector Office, Raigad, Alibag,
District Raigad - 402 201
11. The S.D.O.
S.D.O. Office, Pen,
District Raigad - 402 107
11. Tahsildar,
Tahsildar Office, Pen,
District Raigad - 402 107
13. The Superintendent of Police,
S.P. Office, Alibag, Dist. Raigad - 402 201
14. The Police Inspector,
Wadkhal Police Station,
District Raigad - 402 107
15. The Maharashtra Coastal Zone Management Authority,
Through Chairperson/Principal Secretary/Secretary,
Environment Department,
Mantralaya, Mumbai - 400 032
16. The Hon‟ble Minister,
Ministry of Forests,
Mantralaya, Mumbai - 400 032
17. The Hon‟ble Minister,
Environment, Mantralaya, Mumbai
18. National Coastal Zone Management Authority (NCZMA)
Through Secretary, Ministry of Environment and
Forest, New Delhi
19. Union of India
20. State of Maharashtra ....Respondents
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicants : Mr. Shriram S. Kulkarni, Advocate along with
Mr. Monish Vig and Mr. Aniruddha Kulkarni, Advocates
Respondents : Mr. Pinaki Misra, Senior Advocate, assisted by
Mr. Saket Mone, Mr. Ninad Laud, Mr. Ivo D‟Costa,
Ms. Anchita Nair and Mr. Umang Jaju, Advocates for
R-1 and R-2/PPs
Mr. Mukesh Verma, Advocate along with Mr. Pankaj Kumar
Singh, Advocate for R-3 and R-4/MPCB
Page 2 of 91
Mr. Milind Mahajan, Advocate along with Mr. Rahul Garg,
Advocate and Mr. Shubham Rathod, Advocate for
R-5/MoEF&CC
Mr. D.M. Gupte, Advocate for R-15/MCZMA
Mr. Amit Singh Chauhan, Advocate with Mr. Shaima
Masood, Advocate for CPCB
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Reserved on : 16.01.2025
Pronounced on : 17.04.2025
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JUDGMENT
1. This Original Application has been filed, seeking closure of respondent No.1 - Company - Jindal Steel Works Limited, which is running its plant at village Dolvi, Taluka Pen, District Raigad, for causing pollution and damage to the environment, with immediate effect, which appears to be the main relief sought, apart from other reliefs, which are contained in prayer clauses (a) and (c) to (l), which we will narrate subsequently.
2. The facts of this case, in brief, are that respondent No.1 is manufacturing steel and various other products, having its manufacturing unit in village Dolvi. This company has one private jetty. Recently, they have expanded their manufacturing unit and have constructed a coke plant and construction of conveyer belt upto its jetty is under progress, which is being said to be constructed without any permission. The premises of respondent No.1 company is located in large area adjoining Dharamtar creek upto villages Dolvi, Kharmachela and other villages covered by mangroves, which protect the environment in the area. Dharamtar creek has covered complete one side of the plant. A large area of their plant was covered by the then existing mangroves. Respondent No.1 has also constructed a coke oven plant by destroying mangroves and the same is in operation. Respondent No.1 is also causing expansion of the jetty and using one conveyer belt. The old Page 3 of 91 Google images taken from the satellite would show that the mangroves on large scale have been destroyed by respondent No.1 by the activities of its company. Their activity has also destroyed natural water/creek water/water channels. Exhibit-A (colly) are the copies of Google coloured images from the year 2010 to 2015, have been annexed to the application, showing the environmental damage caused by respondent No.1.
3. It is stated in the application that on 12.02.2015, the Executive Engineer, PWD informed under Right to Information Act that they have not granted any permission for construction of conveyer belt. Copy of the said information is annexed as Exhibit-C to the application.
4. On 06.10.2005, in a group of petitions i.e. Writ Petition No.3246 of 2004, the Hon‟ble Bombay High Court issued various directions, including to the present respondent - Government Authorities for protection and reservation of the fast depleting mangrove forest. Mangrove areas were directed to be identified (including from privately owned land) and declared/notified as forest. Thus, even the Government was under obligation to protect the mangroves and ought to have declared mangrove area of the Respondent Company‟s land as `protected forest‟. The Hon‟ble High Court also directed to remove all obstructions impeding the growth of mangroves and also impediments which restrict the flow of sea water in the mangrove area and ordered rejuvenation of mangrove growth whenever they were denuded. These directions were equally applicable to the State Government and other Authorities. Exhibit-D is a copy of the judgment and order dated 06.10.2005 passed by the Division Bench of the Hon‟ble Bombay High Court in Writ Petition No. 3246 of 2004 and to the knowledge of the applicants, till date, notification declaring mangroves area as forest has not been carried out.
5. On 23.02.2012, the State Government issued G.R. and created a separate department for mangroves at state level. The post of Chief Page 4 of 91 Conservator of Forests (Mangroves) was also created. The Environment Department, Police Department and various other departments were directed to provide necessary help to protect the mangroves. Exhibit-E is a copy of the G.R. dated 23.02.2012.
6. On 07.12.2013, Deputy Conservator of Forest submitted a list declaring the areas covered by the mangroves situated within Thane and Mumbai as Mangrove Forest. Exhibit-F is a copy of the letter dated 07.12.2023.
7. Similarly, on 12.12.2013, the Forester informed the Deputy Conservator of Forest, Thane and submitted a list of possession of mangroves from Mumbai area. Exhibit-G is copy of the said letter dated 12.12.2013, annexed to the application.
8. Similarly, survey inspection of mangroves situated in Pen Taluka and surrounding area ought to have been carried out by the State Government, but no mapping of mangroves is done till date. On the contrary, the applicants were informed that the respondents were not aware as to whether the conveyer belt was being constructed on the mangroves area. The respondent Authorities have failed to take action upon the existing coke oven plant of the respondent company, which has come up on the mangroves, which is evident from the Google map, referred above.
9. On 16.04.2012, a Notification was issued by the Ministry of Environment and Climate Change, thereby constituting the National Coastal Zone Management Authority (NCZMA) under the provisions of the Environment (Protection) Act, 1986. The said Authority has failed to take any action for implementation of CRZ Notification and to protect the environment in the area. Similarly, the Maharashtra Coastal Zone Management Authority (MCZMA) was constituted by the State Government vide order dated 06.03.2012, which has failed to discharge its duties.
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10. Earlier, in the year 2010, the substantial portion of the area of respondent No.1‟s company was covered by the mangroves and even the natural creek channels were also in existence. Now, the respondent company has encroached upon the natural creek channels, mangroves and destroyed the same expanding its plant, as is evident from the Google images of the period 2010 to 2015, referred to above.
11. Respondent No.1‟s company is having coke oven plant for manufacturing of steel and Exhibit-M (colly) are the photographs annexed to the application, which show enormous smoke generated round the clock causing air pollution. The adverse effect of coke plant on human health can be noticed from the direct impact of noxious gases on the organism and/or their indirect impact via the food chain and changes in the environment. Injurious heavy metals i.e. lead, mercury, cadmium can enter the food chain. The air pollution caused by the respondent No.1‟s company has also destroyed the agricultural land because the dust carries the waste material of the company which settled on the agricultural field.
12. It is further mentioned that respondent Nos.1 and 2 have dumped the by-product/waste product in the surrounding area which has caused the air pollution, water pollution and soil pollution. On large part of villages Kharmachi, Kharkaravi, Juibapuji, Dolwi, Kharchirbi, Wadkhal, Yave, Kolve, etc., located in Taluka Pen, which is covered by mangroves/kandalvan. The fishing activity is adversely impacted. Respondent No.1 also controls the creek water from entering in agricultural area, which is useful for soil conservation. The huge waste material/by-product produced by respondent No.1 and 2‟s activities is illegally dumped upon the mangroves spread over the large area of above villages.
13. The applicants have collected by-product/waste material lying in the open space, referred above and submitted the same to Italab Private Page 6 of 91 Ltd, which is an Industrial Testing and Analytical Laboratory. A bare perusal of analysis shows that the by-product/hazardous material is dumped in agricultural land, which has destroyed the fertility not only of the lands at site but also of adjoining lands. Exhibit-Q (colly) are the copies of the analysis certificates issued by the said Laboratory. A bare perusal of the photographs would show that enormous dumping has become a hill like area, which has choked the natural drains/nalas and the rain water gets accumulated, which either enters the agricultural fields with the said material or in the residential houses. It has also destroyed the aquatic flora and fauna and also affects their productivity. The respondent Company has forcibly entered and dumped their waste material in the field of one Sanjay Janardhan Patil, resident of village Dolvi, who possesses a land Survey No.168 (#A) admeasuring 36.9R.
14. It is further stated that on 29.03.2015, the District Soil Conservation Officer, Raigad Alibaug has issued a certificate to the effect that the crops cannot be taken in the land and that the same should be used for coconut, supari etc and for other forest crops. A copy of the said report is annexed as Exhibit-T. Respondent Company is using batteries in Coke Oven Plant, which emits ugly smell.
15. The District Soil Survey and Inspection Officer, Raigad, Alibaug examined the soil of the agriculturist namely Dnyaneshwar Kothekar and certified that the salt level in the land had increased and it was dangerous to all types of crops and recommended not to cultivate the crop. Copy of the said certificate is annexed as Exhibit-V.
16. The agricultural fields around salty water bodies are completely protected by a bandh which is popularly known as `Kharbandisti‟, which protects the agricultural fields from sea water entering in them. The said Kharbandisti is existing since the time immemorial, but the same has been damaged by the activities of respondent Nos.1 and 2 and rendered these agricultural fields unfertile. The expansion activity of respondent Page 7 of 91 No.1 is hit by CRZ guidelines. In the past, the company paid some paltry amount to some agriculturist to compensate the seasonal crop damaged but the company has completely failed to remediate the situation. Crores of rupees will be required to restore the environment to its original position at the site in question and according to the applicants‟ estimate, the same would be in the region of Rs.300 to Rs.400 crores, which is liable to be recovered from the company.
17. In view of above pleadings, the other prayers, which are made by the applicants, are that the Authorities i.e. respondent Nos.3 to 20 be directed to take necessary steps to restitute the environment; declare the mangroves situated within Taluka Pen as well as in District Raigad as protected forest and do mapping of the area covered by the mangroves and take necessary steps to restore and rejuvenate the same; take all necessary steps to stop dumping of by-product/waste material by respondent No.1 Company in District Raigad, more particularly from dumping on the agricultural lands/mangroves; direct to conduct joint survey with the applicants to earmark the places where the waste material is dumped by respondent No.1 and take all necessary steps to remove the same immediately; to direct respondent Nos.3 to 20 to remove the illegal installation of coke Oven Plant causing pollution and environmental damage and prohibit respondent No.1 Company from constructing any conveyer belt upto the Jetty and further remove the entire construction of the same; direct respondent Nos.3 to 20 to take all necessary steps for not causing any construction or expansion of Jetty or constructing any conveyor belt upto the same by destroying the mangroves; declare the mangroves within the premises of respondent No.1 as forest as per directions of the Hon‟ble High Court and appropriate amount of compensation be determined for causing the environment damage to be levied from respondent No.1 on the principle of `Polluter Pays‟.
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18. Stand of respondent Nos.1 and 2 :
Respondent Nos.1 and 2 has, vide their affidavit dated 24.02.2016, taken the stand that the application is clearly barred by limitation as the applicants have failed to aver the date on which the cause of action first arose, which is prerequisite for filing an application under Section 14 of the National Green Tribunal Act, 2010 ("NGT Act", for short). The applicants have resorted to plea of continuous cause of action, which is alien to the NGT Act. One PIL being PIL No.102 of 2014 raising identical issue is pending before the Hon‟ble High Court, in which on 15.03.2015, interim relief was refused in respect of the plant of the answering respondents, wherein identical issues were raised. Therefore, till the pendency of the said PIL, this Tribunal ought not to proceed with the hearing of this case and that in this regard, a Misc. Application has been moved which should be decided first before proceeding to decide this matter on merits.
19. Respondent No.1 is a large public sector company with an aggregate installed capacity of 14.3 million MTPA across various plants in the country. The applicants have raised the issue with respect to steel plant of respondent No.1 at Dolvi in Raigad District, which is renowned for its technology i.e. combining the Conarc technology for steel making and compact strip production (CSP) for producing hot rolled coils. This plant provides raw materials to feed the other JSW steel cold rolling and downstream facilities at Vasind, Tarapur and Kalmeshwar and supplies steel to industries of national importance including the air and gas automotive and machinery industries, infrastructure and construction sector, cold rollers industry, factories and consumer durables, etc. Therefore, it is apparent that the company is working for growth and development in the interest of the country. The plant was established in early 1990s and was commissioned in the year 1994 with production capacity of 3 million MTPA.
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20. It is submitted by the answering respondent that initially in the year 1984, Nippon Denro Ispat Limited was established by its founding Chairman Mr. M.L. Mittal with interests in iron, steel, mining, energy and manufacturing sectors and had set up various plants including the plant in Dolvi. The lands on which the Dolvi plant is situated were agricultural lands purchased with individual contract with consent of the farmers with prior permission of District Collector and State Government for bonafide industrial use. This land has been declared as industrial zone by the Government of Maharashtra as Nagothane Growth Centre as per notification of Urban Development Department, Government of Maharashtra dated 04.07.1992.
21. Submissions with respect to destruction of mangroves :
Respondent No.1, for the safety and security of its valuable plant, has constructed a boundary wall. The proposed expansion project is undertaken by respondent No.1 almost 100 mtrs away from the boundary wall. The boundary wall was made mandatory, especially after November, 2009 attack in Mumbai, which forced the Ministry of Industries to direct the industries such as respondent No.1, which involves critical and highly sensitive manufacturing process to protect its plant by construction of boundary wall and/or the adequate fencing. There is no destruction of the mangroves by any of the activities carried out by respondent No.1. Before the boundary wall was constructed, there was a bandh from the time immemorial developed by the farmers for protection of their agricultural land. The boundary wall has been constructed along the said bandh towards landward side. Earlier, there was paddy crop being grown and hence there was no question of any mangrove being there and consequently, question of destruction of mangroves does not arise.
22. It is further submitted that the land used for coke oven plant has been purchased by earlier ISPAT Industries somewhere in the year 1994- Page 10 of 91 95, which is also inside the plant premises and hence, no question of destruction of mangroves arises. No mangrove is destroyed in construction of conveyor belt. The land used for new conveyor belt is owned by Maharashtra Maritime Board, RCF, PWD and the State Government and respondent No.1 has obtained the requisite permissions/NOCs from these Authorities and is under process of carrying out the construction of the same. Recently panchanama was carried out based on the complaint dated 11.01.2016, particularly land coming under conveyor belt, being Survey No.191/1A, 186/A, 186/D, in which it is clearly mentioned that there was no destruction of mangroves in the conveyor belt. This is signed by Mr. C.R. Patil, Circle Inspector, Washi circle. A copy of the said panchanama and report dated 11.01.2016 is annexed as Exhibit-B.
23. Submission regarding damage caused to Khar Bandisti :
The answering respondent No.1 has spent more than Rs.2 Crores for the repair and maintenance of Khar Bandisti as a part of its Corporate Social Responsibility (CSR) activities. The Dharamtar creek is having around 25 kilometers of khar bandisti which is to be maintained by Khar Land Department of Government of Maharashtra. So, there is no damage caused to khar bandisti. Respondent No/1 has undertaken work of khar bandisti on request of the villagers where more than 500 acres of land is protected. From last four years, in the vicinity of Dolvi plant, respondent No.1 has undertaken rural development activities, infrastructure activities, water supply schemes, social, cultural and educational activities and various activities for the help of farmers have been undertaken.
24. As to the damage to mangroves caused by conveyer belt :
It is submitted by the answering respondents that respondent No.1 is desirous of expanding the capacity of the plant and hence requiring the conveyor belt with modern technology which can cater to the needs of Page 11 of 91 respondent No.1. Therefore, for construction of the cross country conveyor belt, respondent No.1 has obtained various permissions from the concerned Authorities and the land owners, on whose land the conveyor belt is likely to be constructed. The Maharashtra Maritime Board has granted permission on 09.05.2015 for use of their land for construction of the conveyor belt. Respondent No.1 has also executed a lease agreement with the Maharashtra Maritime Board in respect of Survey No.186/B and 186/C which permits use of said land for construction of conveyor belt.
25. With respect to survey No.118/1, 118/2, 119, 121 and 122 belonging to Public Works Department, Government of Maharashtra, respondent No.1 has executed a lease for use of the said land for construction of the conveyor belt with respective Departments. The conveyor belt does not pass through Survey No.117/1 and 117/2. Survey No.190/1A admeasuring 3460 sq.mtrs is a Government land. Therefore, respondent No.1 applied for permission for erecting overhead conveyor belt, passing through these lands. The Divisional Commissioner, Konkan Division has granted permission for it. It is further stated that Survey No.124/2 has no relevance as regards the cross country conveyor belt. Therefore, there is no unauthorized use of any land for laying the conveyor belt by respondent No.1. Recently, a panchanama was carried out based on the complaint dated 11.01.2016 with respect to the land coming under conveyor belt being Survey Nos.191/1A, 186/A, 186/D assigned by all the land owners of village Dolvi.
26. With respect to dispute with Mr. Sanjay Janardhan Patil, submission made by the answering respondents is that this Tribunal is not competent to decide the said dispute, which has no connection with environmental laws. However, without prejudice, it is mentioned that Mr. Patil, resident of village Dolvi had claimed right on Survey No.118/2. Page 12 of 91 However, the said survey number is owned by Public Works Department, Government of Maharashtra, which is reflected in 7/12 extract.
27. Submission with respect to destruction of mangroves for erection of new cross country conveyor belt:
In this regard, submission is made that respondent No.1 has constructed conveyor belt along the side of old conveyor belt. The land being used by respondent No.1 is owned by the Maharashtra Maritime Board, enclosed by a boundary wall. Hence, question does not arise of destruction of mangroves.
28. Submission regarding allegations as regards coke oven plant :
In this regard, the answering respondents have submitted that on 12.01.2009, the MoEF had granted Environmental Clearance in favour of Geetapuram Coke Company Ltd (formerly known as ISPAT Industries Ltd) for running the Coke Oven Plant at Dolvi, Ditrict Raigad. The said Environmental Clearance was thereafter transferred in the name of Amba River Coke Limited by MoEF on 02.02.2010. On 05.05.2015, the Maharashtra Pollution Control Board has issued Consent to Operate in favour of Amba River Coke Limited for running the Coke Oven Plant at Dolvi. Exhibit-C (colly) are the copies of the Environmental Clearance dated 12.01.2009, transfer of Environmental Clearance dated 02.02.2010 and the Consent to Operate dated 05.05.2014.
29. It is submitted by the answering respondents that all the relevant permissions are in place since 2009 and now in the guise of challenging some other issues, the applicants are raking up the issues of other company which they could not otherwise take up as the same stood time- barred.
30. Stand of respondent Nos.3 and 4 - MPCB :
Respondent Nos.3 and 4 - MPCB have submitted their affidavit-in- reply dated 22.12.2015, vide which it is submitted that the MoEF&CC granted Environmental Clearance dated 04.01.1995 to M/s Nippon Denro Page 13 of 91 Ispat Ltd for the construction of captive jetty for the transportation of iron ore to the plant and finished goods from plant. The Ministry of Surface Transport, Government of India has granted clearance vide letter dated 12.01.1997 for expansion of the existing jetty to the extent of 331.5 mtrs.
31. It is further submitted that the answering respondent granted Consent to Operate on 22.10.2013 to the respondent Company i.e. M/s JSW Dharamtar Port Pvt. Ltd Captive Jetty (331.5 mtrs.), Geetapuram, Taluka Pen, District Raigad for material handling captive purpose only (total length - 331.5 meters) for 13,50,000 MT/M maximum capacity, which was valid upto 31.08.2016. Copy of the said Consent to Operate is annexed as Annexure-I to the said affidavit.
31. It is submitted that thereafter, the answering respondent granted amended Consent to Establish on 30.10.2014 to M/s JSW Dharamtar Port Pvt. Ltd. (formerly known as M/s JSW Ispat Steel Ltd.), at village Dolvi, Taluka Pen, Dsitrict Raigad for expansion of existing captive jetty from 331.5 mtrs to 1750 mtrs (captive jetty only) for handling of multiple cargos, wherein one of the conditions is that respondent No.1 shall not take any effective steps for implementation of the project before obtaining Environmental Clearance as per the EIA Notification, 2006. Copy of the said Consent to Establish is annexed as Annexure-Ii to the affidavit.
32. It is further submitted that the answering respondent received a complaint of applicant No.1 Smt. Samita Rajendra Patil on 20.04.2015 in respect of destruction of mangroves, which was forwarded to the District Collector, Raigad on 29.04.2015. In the meantime, the Board also received complaint dated 11.07.2015 from one Surendra Dhavale, resident of Pimpal Bhat, Taluka Alibag, District Raigad regarding serious violation of EIA Notification, 2006 and CRZ Notification, 2011, such as construction of jetty by respondent No.1 without obtaining Environmental Clearance. The Sub-Regional Officer of the answering Board at Raigad-II Page 14 of 91 has investigated the said complaint on 29.07.2015 and reported as under:
(a) The length of existing jetty was measured to be total length of 471.5 meters.
(b) The work of expansion of jetty by way of constructing 150 meters length is in progress.
(c) The work of land filling near jetty is in progress.
(d) For material conveying from jetty to steel plant, two conveyer belts are provided.
(e) To control air pollution, the conveyor belts are enclosed by covered gallery and for dust suppression water sprinkling is done.
(f) For sewage treatment, septic tank & soak pit is provided etc.
33. Therefore, it is recorded that respondent Nos.1 and 2 were found to have constructed jetty of length of 471.5 meters, which is more than 331.5 meters as per the Consent to Operate granted on 22.10.2013, which was a violation of one of the conditions of Consent to Operate. The officers of the answering respondent at Raigad, during their visit, observed that respondent Nos.1 and 2 have provided air pollution control system to cast house of blast furnace plant and had also carried out monitoring of air emissions from stack and ambient sources of respondent Nos.1 and 2 and noted various non-compliances like inadequate air pollution control system and exceeding the emission standards. Hence, show-cause notice dated 02.11.2015 was issued, a copy of which is annexed as Annexure-V to the affidavit.
34. With respect to CRZ violations and impact on the health of villagers and agriculture land, the answering respondent submitted that the reports were called from the District Collector, District Health Officer and District Superintendent of Agriculture, which were awaited. It is submitted that a complaint was received about fish mortality in the pond of one of the social activists, which was investigated into by the Assistant Page 15 of 91 Commissioner, Fisheries Department, Raigad. In this regard, the Board was informed that the compensation was paid by respondent No.1 to Suresh Sitaram Mhatre. The answering respondent had instructed respondent Nos.1 and 2 to take precautionary measures to avoid repetition of such type of incidences. In regard to above non- compliances, the Board had issued notice for violation of Consent to Establish conditions i.e. start of construction of jetty expansion without obtaining prior Environmental Clearance by letter dated 21.12.2015. Recently, respondent No.1 has obtained Environmental Clearance for expansion of jetty length upto 1750 meters on 26.11.2015.
35. Stand of respondent No.13 - Superintendent of Police, Raigad :
Respondent No.13 - Superintendent of Police, Raigad has submitted affidavit-in-reply dated 26.02.2016, stating that a complaint was received from one Mis. Pradnya Pradip Ghosalkar, Circle Officer, Vashi against the officers of ISPAT Company namely Om Ramlal Pawar and Arun Mahadev Shirke that in village Dolvi, Taluka Pen, District Raigad regarding Survey Nos.117/1, 117/2, 118/1, 118/2, alleging that the officers and contractors of the said company have done land filling by soil thereby causing damage to the mangrove plants, which was registered as an offence under Section 15 of the Environment (Protection) Act, 1986 and under Section 4 of the Maharashtra Felling of Trees Act on 31.08.2011. The accused were chargesheeted and the case is pending before the Court of JMFC, Pen as S.C. No.95/2012.
36. Further it is mentioned that one complaint made by Dattatray Harishchandra Salunkhe, Circle Officer, Pen was received in respect of the water channel in which the iron pipes were placed and filling of soil for preparing road was done. Due to this development work, there was damage to Mangrove plants. This complaint was in respect of Gat No.94 of village Kharmachela, taluka Pen, district Raigad. No permission was sought for this development work by the officers and the contractors of Page 16 of 91 JSW Company. Hence, five accused were named therein and the offence is registered on 10.04.2015, which is under investigation and the chargesheet would be filed in the court of JMFC, Pen after investigation.
37. Stand of respondent No.12 - Tahsildar, Pen, District Raigad :
Respondent No.12 - Tahsildar, Pen has submitted an affidavit dated 21.03.2016 on 22.03.2016, stating therein that the issue involved is of CRZ violations by the respondent company and the same pertains to MCZMA. The Projected Forest Notification for the mangroves has been published in the Gazette of Maharashtra dated 23.04.2013 for Pen Taluka, copy of which is annexed as Exhibit-1 to the affidavit. The Government of Maharashtra has published the Gazette Notification declaring mangroves in Pen Taluka as `Reserve Forest‟ vide notification dated 20.08.2015. Copy of the same is annexed as Exhibit-2 to the affidavit. Therefore, the allegation that the Authorities are not taking action is wrong. It is stated that JSW ISPAT Steel Ltd Company (earlier known as Nippon Dendro Ispat Ltd), pursuant to the order of amalgamation by the Hon‟ble Bombay High Court dated 03.05.2013 in Company Scheme Petition Nos. 157, 158, 159 and 160, all of 2013, owned and possessed the land admeasuring 496.53 H.R. situated at villages Dolvi, Vave, Kolve, Kharmachela, Kharghat, Kharkaravi, Beneghat of Taluka Pen and village Jui Bapuji of Taluka Alibag in District Raigad and the land admeasuring 493.94.60 H.R. was purchased by the said company from the farmers with individual contracts whereas the land admeasuring 2.54.0 H.R. has been given on lease to the respondent company by order of the District Collector, copy of which is annexed as Exhibit-3 to the affidavit. Out of the said total 496.53.3 H.R. land, Non-
Agricultural (N.A.) permission as per Section 44 of the Maharashtra Land Revenue Code, 1966, vide order dated 07.09.1993, has been granted for an area admeasuring 129.61.70 H.A. Copy of the said order is annexed as Exhibit-4 to the affidavit.Page 17 of 91
38. The Director of Industries, Government of Maharashtra granted permission under Section 63(I)(A) of the Bombay Tenancy and Agricultural Lands Act, 1948 on 22.02.2013 for industrial purpose, as per which respondent No.1 got permission to purchase the agricultural land to the extent of 302.649 Ha., to establish Coke Oven (2.5 MTPA), blast furnace (4.5 MTPA), Sinster Plant (7.0 MTPA), Steel Melt Shop (4.0 MTPA), Cement Plant and Slag Processing Unit (2.7 MTPA) and MSDS (Main Step Down Station) at villages Kharmachela, Kharchirbi, Kharghat and Kharjambhela in Taluka Pen, District Raigad. Copy of the said order is annexed as Exhibit-5. The validity of the said Section 63(I)(A) has been extended for a period upto 21.02.2016 vide order dated 18.02.2015, a copy of which is annexed as Exhibit-6 to the affidavit. The MoEF has granted Environmental Clearance for expansion of Integrated Steel Plant from 5 MTPA to 10 MTPA and Power Plant from 300 MW to 600 MW of respondent company vide order dated 25.08.2015, a copy of which is annexed as Exhibit-7 to the affidavit. It is stated that the land admeasuring 2.54.0 Ha.R. has been given on lease to respondent company by order of the District Collector dated 20.07.1995 for a period of 30 years after getting sanction from the Government of Maharashtra. Besides that, land admeasuring 2.58.70 Ha.R. has been granted to the respondent company on occupancy right by order of the Collector, Raigad dated 31.01.1995, copy of which is annexed as Exhibit-8 to the affidavit. The allegation of the applicants that the company is illegally expending its activities falls flat in view of the permissions.
39. With respect to mapping of mangroves, it is submitted by the answering respondent that the respondent Authorities have been working on this from past several years. The Government of Maharashtra, vide Memorandum dated 21.12.2012, authorized the Divisional Commissioner, Konkan Division under Section 29 of the Indian Forest Act, 1927 to declare the land as `Protected Forest‟. Accordingly, the Page 18 of 91 Divisional Commissioner, Konkan Division has published notification on 23.04.2013 for Pen Taluka. Copy of the said notification is annexed as Exhibit-1 to the affidavit. For `Reserve Forest‟ Notification, the list of survey numbers having mangroves was sent in the month of September, 2014, which was sent back with some queries from the office of the Divisional Commissioner and after replying the same in the month of July, 2015, the Government of Maharashtra has published the said notification on 20.08.2015, a copy of which is annexed as Exhibit-2 to the affidavit.
40. It is submitted that on 05.08.2011, an FIR bearing No.4/2011 was registered at Wadkhal Police Station against the officers of the respondent company for destruction of mangroves by the Circle Officer, Pen. A copy of the said FIR is annexed as Exhibit-9. Criminal case bearing No.95/2012 was tried by the Judicial Magistrate First Class, Pen, but the accused of the respondent company were acquitted. Copy of the order is annexed as Exhibit-10. In the month of April, 2015, another FIR being FIR No.1/2015 was filed against the respondent no.1 for destruction and cutting of mangrove. Copy of said FIR is annexed as Exhibit-11.
41. It is further stated that the Collector, Raigad received a complaint from Bapdev Shetkari Mandal, Kharmachela on 02.01.2015, which was sent to the office of Tahsildar, Pen for enquiry. Another letter received from the same person was received on 04.04.2015. Thereafter, a meeting was called on the issue on 13.04.2015, 15.04.2015 and 16.04.2015, but the complainant preferred to stay away and refused to accept the notice of the meetings, which shows that the complainant has no seriousness for protection of the environment as stated in the application. The answering respondent Authorities have got the construction work stopped on the natural nallah and got the pipe removed from the respondent company after the complaint was received on the issue. An FIR was filed against the respondent company, a copy of which is annexed as Exhibit- Page 19 of 91
42. A complaint made by Bapdev Shetkari Mandal cannot be said to be an evidence of destruction of Kharbandisti. This letter was sent to the company to seek their report, which did not prove anything. In paragraph No.12 of the affidavit, it is stated that the permission from the Director of Industries, Government of Maharashtra was obtained by the respondent company to purchase the agricultural lands for bonafide industrial purpose. In paragraph No.13, the sale-deeds are stated to have been got executed by respondent No.1 from the villagers. Hence, question of consent does not arise and thereafter, lastly it is mentioned that there is no illegal construction or the land filling, which led to the destruction of mangroves and that the Government Authorities have taken appropriate action as and when required.
43. Respondent Nos.3 and 4 - MPCB, have filed affidavit-in-reply dated 22.04.2016, wherein they have submitted about the MoEF having granted Environmental Clearances (ECs), which have already been cited by us above while dealing with the affidavit of MoEF and thereafter, it is submitted that Consent to Establish (CTE) on 02.09.2009 to respondent Nos.1 and 2 for coke production and Consent to Operate (CTO) on 24.02.2016 to coke oven plant, which was valid upto 31.05.2017, were given. Copies of the CTE and CTO are annexed as Annexure-II (colly) with the said affidavit. Further it is mentioned that it granted CTE dated 30.10.2014 to respondent Nos.1 and 2 for jetty expansion project from 331.5 meters to 1750 meters. Copy of the said CTE is annexed as Annexure-III to the affidavit. It is further stated that the MoEF&CC granted EC and CRZ Clearance on 26.11.2015 to respondent Nos.1 and 2 for expansion of Dharamtar Jetty Facility at village Dolve, District Raigad. Copy of the same is annexed as Annexure-IV to the affidavit. The officials of the answering respondent, in order to verify compliance of the consent conditions, visited the coke oven plant of respondent Nos.1 and 2 from time to time and observed that the air pollution control system provided Page 20 of 91 to cast house of blast furnace plant is inadequate and the analysis results of the stack monitoring carried out by the answering respondent of pallet plant & coke oven plant on 01.07.2015 and 10.08.2015 respectively would show that the parameters like TPM of pallet plant & coke oven plant are exceeding the limits and in view of non-compliances, a show-cause notice dated 02.11.2014 was issued, a copy of which is annexed as Annexure-V to the affidavit. Reply to the said show-cause notice was submitted by respondent Nos.1 and 2 vide letter dated 10.12.2015, stating therein that due to upgradation work of blast furnace being in process since 16.10.2015, the entire operations of blast furnace was under shut down and maintenance. Further it was apprised that during the process of upgradation work in the blast furnace, all the existing pollution control devices were being augmented and the additional air pollution control devices with one of the best ever technology were being installed. It was informed that the plant was not in operation from 10.10.2015 to 23.03.2016, which was verified by the answering respondents. The answering respondents collected samples of dumped waste in the premises of respondent Nos.1 and 2 on 20.10.2015 and the analysis report of the samples indicated it to be non-hazardous in nature.
44. It is further mentioned that on the basis of the complaints made by Kusumble Vibhag Samajik Shetkari Sanghatana and the applicant, the answering respondent requested the District Superintendent of Agricultural Officer and the District Health Officer to send their reports in respect of impact on agriculture and health of surrounding residents due to operation of project in question, which was awaited till then. A show- cause notice for prosecution was issued to the respondent company on 21.12.2015 for starting construction of jetty expansion without obtaining prior Environmental Clearance. Copy of the same is annexed as Annexure-VIII to the affidavit. The answering respondent also requested Page 21 of 91 Maharashtra Maritime Board to verify as to whether the respondent Nos.1 and 2 had carried out any expansion of jetty before 26.11.2015 (date of obtaining EC & CRZ clearance), but the same was awaited till then.
45. The affidavit in rejoinder dated 13.05.2016 has been filed by the applicants against the reply-affidavit of respondent Nos.3 and 4 in Misc. Application No.37 of 2016, which contains that the waste material/ by- product generated during the manufacturing process by respondent Nos.1 and 2 is dumped at various places spread over from Pen to Alibaug regarding which a complaint was lodged by Kusumbale villagers, which is not denied by MPCB. The photographs are also annexed by the applicants showing the soil pollution on large scale caused by the respondent company. It is recorded in this rejoinder that the Minister of State (Independent Charge) of Environmental Forest issued FORWARD on 27.12.2010 wherein adverse impact of "Coke Oven Plants" is mentioned as follows:
"Injurious heavy metals (e.g. lead, mercury and cadmium) can enter the food chain and hence, the human organism by way of drinking water and vegetable and animal products. India's industrial competitiveness and environmental future depends on industries such as Coke Oven Plants adopting energy and resource efficient technologies. Recycling and reuse of materials is critical."
46. Having cited above, it is mentioned that therefore, the waste material generated is hazardous substance within the meaning of Section 2(e) of the Environment (Protection) Act and MPCB and the company as well as the Central Government are under statutory obligation to control the same. Hence, it was necessary to have a joint inspection conducted by the MPCB and Central Government Authorities along with the applicant from Pen to Wadkhal and collect various samples of the soil. The MPCB has flouted the provisions of the Act as it still has opined that the material such as cadmium, nickel and lead were not hazardous. Page 22 of 91 Despite the fact that no opinion of a Senior Scientific Officer was taken to that effect by the MPCB. The company started dumping the waste material on agricultural land as also Government land spread over between Pen and Wadkhal, which destroyed the mangroves. The company‟s waste material gets mixed with the water, with the soil. The Assistant Commissioner (Fishing) has reported that the dust has polluted the water. Despite the applicants having raised issues of air, soil and water pollution, the MPCB has not come with these issues nor has it taken steps to restitute the damage caused to the environment. Whether the company possessed the environmental clearance or not is not the matter in issue. The MPCB ought to have physically ascertained the grievance of the villagers.
47. The rejoinder to the affidavit-in-reply filed by respondent Nos.3 and 4 - MPCB in Application No.122 of 2015 has been filed by the applicants, wherein it is submitted that though the MPCB has expressed its opinion that the waste material/by-product dumped on large scale on Government lands/agricultural lands was not found hazardous, but the ECs enclosed at Annexure-I at internal page 3 (x) contemplates "all the other solid waste..... shall be properly disposed off in environmental friendly manner.... . Similarly the conditional permission is to be observed as per para 9 at internal page 5 as per the provisions of the Act as well as Hazardous Waste Management and Handling Rules 1989 and amendments thereto and subsequent amendments. It is stated that similarly, prior permission of Forest Department is contemplated regarding likely impact of proposed coke oven plant and surrounding reserve forest. Further, the conservation plan for conservation of wild fauna in consultation with the State Forest Department shall be prepared and implemented. Therefore, a bare perusal of various terms and conditions have obviously been breached by the respondent. Page 23 of 91
48. It is further stated in the said rejoinder that bare perusal of the EC dated 26.11.2015 would show that Annexure-IV internal page 2 (xiii) refers that "the NIO, Goa has carried out CRZ demarcation study along with preparation of CRZ map in 1:4000 scale. As per this report, the project falls in CRZ-I and CRZ-III area, part of proposed stack yard and other port associated facilities including conveyor belt are in CRZ-I and CRZ-II. In the northern side of the Jetty, around 20 mtrs wide mangroves are noticed all along the river, which would be left untouched since the proposed activities are 50 mtrs or more away from the mangroves. Only approach to berths will pass over the mangroves. The structures do not block any light penetration and thus mangroves can thrive and grow below. Beyond mangroves towards the landward side, most of the area is agricultural lands/fallow lands. As per the land use map, the proposed and surrounding areas comprise of agriculture/barren lands, patches of mangroves, small creeks, built up area and terrestrial vegetation. Further it is mentioned that as per the EIA report wherein studies regarding marine ecology, distribution of benthic organism, air and water noise environment are done, impact on flow hydrodynamics and the river morphology would be limited to the blocking effect of the piles on the river water course.
49. It is further stated that para (xv) records that no breakwater/training bunds are proposed as part of the project. The configuration of the proposed jetty does not obstruct flow of water to the creek system around the project. Para (xvi) states about 800 KLD water will be required for full operation which will be met from the existing allocation of JSW Steel Ltd from K.T. Bandhara, Nagothane. As per para (xvii), waste water generated will be 40 KLD which will be treated in the STP of 50 KLD capacity. Treated water will be reused for flushing, gardening and sprinkling in the jetty premises. Para (xviii) states that total solid waste generated at the site is estimated to be around 0.3 tones/day. The waste will be segregated into biodegradable, non-biodegradable and Page 24 of 91 recyclables and disposed as per the norms to the authorized vendors and recyclers."
50. It is submitted that apart from above conditions, it is evident that company is not supposed to destroy the mangroves for causing any construction and that the construction/structure should not block any light penetration. It is also submitted that the conditions put up in para 4 (A) prohibit destruction of mangroves, destruction of fishing activity, etc. Therefore, a request is made to this Tribunal that a visit be made to the site in question to ascertain the destruction of mangroves and how aquatic life is disturbed while constructing the jetty.
51. It is further mentioned that the MPCB having found that the solid waste generated was not disposed off scientifically. Therefore, it issued a show-cause notice while, at the same time, it has expressed a view that the dumped waste was not hazardous, which is erroneous. The MPCB has also noted that existing jetty expansion commenced prior to EC destroying the mangroves and yet, it did not find the reply of the respondent company an eyewash without any substantial action being taken against them.
52. Respondent Nos.3 and 4 - MPCB have filed their affidavit-in-reply dated 25.07.2016 to the rejoinder of the applicant dated 21.04.2016 and 13.05.2016, stating therein that the respondent industry had upgraded the air pollution control equipment provided to the blast furnace plant. Thereafter, the answering respondent had monitored the Sinter Plant, Pallet Plant, Hot Strip Mill Plant, Lime Calcination Plant, Coke Oven Plant and Sponage Iron Plant in the months of May, 2016, June, 2016 and July, 2016 and the results would reveal that the emissions were meeting the standards prescribed in the consent. The answering respondent had received a complaint from the applicants dated 06.06.2016 regarding dumping of hazardous waste material at various locations namely Vadkhal, Dolvi, Vave, Kolve, etc and had communicated Page 25 of 91 the acceptance to the applicant for joint inspection at the aforesaid site. As regards allegation of construction of jetty expansion without obtaining prior EC, it is submitted that a show-cause notice dated 21.12.2015 was issued to respondent company and thereafter on 29.03.2016, the respondent Board issued a letter to the Maharashtra Maritime Board requesting to verify the status as to whether the respondent industry had carried out expansion of jetty before 26.11.2015. The Maharashtra Maritime Board, vide letter date 04.05.2016, responded, which was submitted before the Consent Appraisal Committee (CAC), but was found to be not clear. Hence, the matter was deferred in the CAC. Copies of these letters are annexed as Annexure-II and Annexure-III respectively.
53. With regard to the condition stipulated in EC for conservation plan for conservation of wild fauna in consultation with the State Forest Department, to be prepared and implemented, it is submitted that the Forest Department is responsible to ensure compliance of the same. Similarly, the other conditions imposed in the EC and reflected in the EIA Report, such as studies of marine ecology, distribution of benthic organism, air, water and noise impact on flow hydrodynamics and the river morphology limited to blocking effect of the piles on the river water course, a proposal of break water/training bunds as part of the project, etc., the EAC and EIAA at Central level, has already taken into consideration all the aspects. The applicant has reproduced various conditions of EC without exactly pointing out any specific violations to have been committed. With respect to the proposed jetty along with Amba river falling in CRZ-I and CRZ-III area, it is submitted that it is for the MCZMA to consider and initiate necessary action if required and similarly, the complaint regarding destruction of mangroves comes under the purview of MCZMA.
54. Respondent Nos.3 and 4 - MPCB have also filed an affidavit in reply dated 26.09.2016 to the rejoinder-affidavit dated 21.04.2016 and Page 26 of 91 13.05.2016 filed by the applicant, stating therein that inspection was carried out by the officials of the answering respondent in presence of Naib-Tahasildar, Pen, Taluka Agricultural Officer, Pen and official from Kharland Department, Pen and a report was prepared during the course of inspection on 07.08.2016, during which the representatives of respondent industry were not allowed to remain present as their presence was objected to by the applicant. It is also mentioned in it that the Naib-Tahasildar, Pen and Taluka Agricultural Officer, Pen, who were present during inspection, have been requested to provide details of ownership of the land where the waste was dumped and its impact on agriculture, if any and the response was awaited till then.
55. Respondent No.15 - MCZMA has filed its reply-affidavit dated 23.09.2016, stating therein that pursuant to this Tribunal‟s order dated 02.07.2016, site inspection was made by the Joint Committee on 20.08.2016. In the first part of the visit, the applicants accompanied the team in order to visit the site outside the premises of JSW plant i.e. conveyor Belt between railway track and MMB jetty, conveyor belt receiving station behind MMB office and a creeklet near Kasumata temple. The site of Kharmachela could not be visited from outside becaue of the long distance. The team visited the JSW plant premises all along the compound wall and creeklets entering inside the premises along with the representatives of M/s JSW Ltd. The team concluded that whole plant premises needs to be measured, mapped and superimposed on approved SAC map in 1:4000 scale by one of the MoEF authorized agency for better understanding.
56. Further it is mentioned that Dolvi plant is located on the east side of bank of Dharamtar creek/Amba river and on the north side of creeklet of village Kharmachela. During visit, it was noted that the plant site is tentatively superimposed on said SAC map by the ADTP office, which shows that the plant site is located in CRZ-I and III area. The company Page 27 of 91 representative, during the visit, claimed that there is existence of kharland bandhara constructed by the farmers running along the Amba creek and compound wall has been constructed along the landward side bandhara/mangroves vegetation. They have shown a letter indicating this from the Kharland Development Board. All the boundaries would be clear only from the Mojni Nakashi (measurement plan) by the TLR office, Alibaug, District Raigad.
57. Further it is mentioned that at Conveyer Belt transfer point, the team observed that the Conveyer Belt transfer landing points were constructed on piles. The said conveyer belt transfer system was constructed on piles by reclamation in the year 2016 as a part of new conveyer belt approved by MoEF. As seen from the google image, reclamation has been carried out since construction of new conveyer belt started around October, 2015 and reclamation has been carried out in the year 2009-2016. Further it is mentioned that at compound wall of the premises, constructed between creeklet and plant premises, company representative informed that length of compound wall is around 4 kms long and approx.. 4 mtrs in height. Further, as seen from google images, said compound wall as constructed by reclamation tentatively in the year 2009-10.In the 100 mtrs belt along the boundary, the area was lined by the kachha road, plantation belt and various maintenance or storage activities including temporary residential/working blocks. The company was asked by the team about the details of construction of compound wall and year of its construction, ongoing activities and various permissions obtained for the same.
58. It is further mentioned that nalla/creeklet at Kasumata temple, it was observed that nalla/creek is running inside the premises of the plant and outside premises of plant, the nalla/creeklet is separated by metallic sheets. However, flow of tidal water of the nalla/creeklet is undisturbed. Further, no mangrove vegetation is observed within the plant premises Page 28 of 91 along the same nalla/creeklet. Both the banks are devoid of any vegetation with some seedlings of mangrove plants and these banks are used for internal transport by the company. It is further stated that at the conveyer belt site, the team observed that existing conveyer belt crossed over creeklet and Pen-Alibag Highway and a railway track, connecting the plant to the jetty. The existing (old) conveyer belt is constructed on stilts along the Dharamtar creek and is in use. At various locations, the gaps between these pillars are also found to be filled up by the material where plantlets of Avicennia and Salvadora are observed during the visit. Despite a clear condition of handling the material through this belt, it was found to be deposited on the mangrove plants along the creek.
59. It is further submitted that at the site of jetty area, it was observed that reclamation has been made and as per the representatives of JSW, it is covering about 90 ha land of mostly paddy fields acquired from the private owners. The reclamation has been carried out at jetty near approach road and on reclamation tracks, containers are being parked. The company informed that the reclamation was carried out with the approval of MoEF, which is for storage of materials and company‟s vehicle parking purpose.
60. It is further mentioned that it was observed that the NIO, Goa has carried out CRZ demarcation study and prepared CRZ map on 1:4000 scale in July, 2014 for the site along Amba river near Dharamtar jetty and as per this report, the proposed jetty along with Amba river is in CRZ-I, part of proposed stack yard and other port associated facilities are in CRZ-I and III area. The conveyer belt is in CRZ-I area. The company has to submit periodic reports on environmental management plan to the respective agencies.
61. It is further mentioned that while granting EC and CRZ clearance dated 26.11.2015 for expansion of Dharamtar jetty facility, the stipulated Page 29 of 91 conditions such as no mangroves shall be cut during project implementation and utmost care shall be taken to conserve them. The company has to comply with it. In view of the likely impact of the proposed construction methodology, National Centre for Sustainable Coastal Management (NCSCM) may carry out a study for suggesting measures for mangrove protection. There shall be no disposal of dredged material into the sea, but would be reused for reclamation and for shore enrichment based on its characteristics. The team asked company representative whether study has been carried out by NCSCM. The company representative informed that the said study has been requested to be done by NCSCM. Copy of the visit report dated 20.08.2016 is annexed as Exhibit-A to the affidavit.
62. Respondent Nos.1 and 2 have filed affidavit-in-rejoinder dated 25.11.2016 to the affidavit-in-reply filed by respondent No.15 - MCZMA, wherein it is submitted that the answering respondents are not aware of any site visit conducted by respondent No.15 outside the factory premises on 20.08.2016. It is stated that it is crystal clear that there is no approved CZMP available for the region as per the provisions of CRZ Notification dated 06.01.2011, where the plant of respondent is located. Therefore, to say that the plant site is tentatively superimposed on the SAC map by ADTP, shows that the plant is located in CRZ-I and III area, is absolutely in contradiction to the conclusion that the team had taken during the alleged site visit. There were no actual measurements of the plant premises, nor mapping of the premises by MoEF authorized agency which was superimposed approved CZMP map on 1:4000 scale. The site premises cannot be tentatively superimposed on SAC map of ADTP which is not in scale as per the requirements of the CRZ Notification, 2011. It should be confirmed by an authorised agency as per the provisions of Notification, 2011. The SAC map of ADTP itself seems to be erroneous because it has not considered and does not show the Bandhara (Bund) Page 30 of 91 which existed since long time along the bank of the creek and has been maintained by the Kharland Development Board, Government of Maharashtra, as is evident from the letter dated 13.12.2014. Thus, based on such tentative approach and statement, it is not possible to ascertain whether the plant/factory premises fall under CRZ or not.
63. It is further stated that the construction of new conveyer belt started only after obtaining Environmental Clearance from MoEF on 26.11.2015, copy of which is annexed as Exhibit-A. It is stated that the existing boundary wall which was constructed in the year 1997 was further strengthened and extended in the year 2011 along with the periphery of the premises due to security reasons to protect the industrial premises as per the letter of District Administration dated 20.04.2010, copy of which is annexed as Exhibit-B to the affidavit. It is further stated that the total length of the boundary wall is approximately 17 kilometers and the height of the wall is approximately 4 meters. The plantation has been done to develop green belt along the periphery with the plant of the answering respondent which is as per the requirement of Environmental Clearance granted by MoEF. All the construction activities of the plant have been done beyond 100 meters on the landward side from the Kharland Bandhara as per the Environmental Clearance conditions. There is no maintenance of storage activities including residential/working blocks within 100 mtrs from the bund within the premises because all temporary residential/working blocks for the workers have been provided outside the plant premises near the jetty on the land owned by the answering respondents. The photographs of the same are annexed as Exhibit-C colly to the affidavit.
64. It is further mentioned that there existed no mangroves inside the premises of the plant. The raw material, which was required for running the steel plant of the answering respondents, was being transported through the existing old conveyer belt, which is in existence for long time Page 31 of 91 and does not form part of the present Original Application. No material is being deposited on the mangroves plant along the creek.
65. It is further submitted that the answering respondents started construction for expansion of jetty including the conveyer belt and the storage area only after obtaining environmental clearance from MoEF dated 26.11.2015 in accordance with the terms and conditions of the EC and in accordance with the terms and conditions of the permissions granted from time to time. The periodic reports, which are required to be furnished to MoEF as per EC dated 26.11.2015, will be continued to be sent. It is stated that the answering respondents are conscious about environment protection and believe in sustainable development in the fast growth of the country.
66. Affidavit-in-rejoinder dated 13.01.2017 has been filed by applicant No.1, wherein it is submitted that the applicants did not oppose the presence of respondents during site inspection made by the officials of MPCB, rather respondents had refused the entry of the applicants into the premises of respondent Nos.1 and 2. On 07.08.2016, the applicant had shown following places to the office bearers of MPCB:
"(a) Site within the limits of Valve village adjacent to the Vadkhal Alibag Road near Indian Oil Petrol Pump (reddish waste);
(b) Site within the limits of Valve village adjacent to the Vadkhal Alibag Road near Indian Oil Petrol Pump (grayish waste);
(c) Site within the limits of Valve village adjacent to the Vadkhal Alibag Road near Indian Oil Petrol Pump (reddish waste similar to the sand);
(d) Soil sample on the boundaries of the canal flowing beneath the road towards Kasumata Temple;
(e) The accumulated blackish waste under the conveyor belt transfer point behind the land office of M/s JSW Ltd. Company (Alibag road);
(f) The accumulated reddish waste under the conveyor belt transfer point behind the land office of M/s JSW Ltd Company (Alibag Road);Page 32 of 91
(g) The grayish waste sample used for land filling between the RCF Railway line and Jetty Conveyor Belt;
(h) The grayish waste similar to the soil accumulated by the company near the agricultural land of Shri Sanjay Janardhan Patil. The said waste is similar to the waste stored near the Goa Gate of M/s JSW at village Dolvi;
(i) The grayish waste dumped near the agricultural land outside the Kharmachela Gate of JSW company;
(j) The sample of the water accumulated near the Indian Oil Petrol Pump on Vadkhal Alibag Road within the limits of Valve village;
(k) The reddish water flowing from the company towards the creek below the road towards Kasumata Temple;
(l) The oily water flowing from the company towards the creek below the road towards Kasumata Temple;
(m) The water in the agricultural land of Shri Sanjay Janardhan Patil at village Dolvi.
(n) The water accumulated on the agricultural land outside the Kharmachela Gate of M/s JSW Co. Ltd.;
(o) The drainage water flowing near the Kharmachela Gate of M/s JSW Co. Ltd."
67. Thereafter, it is submitted in the said rejoinder that the Joint Inspection Report dated 07.082016 seems to be adverse and therefore, the respondent Nos.1 and 2 have joined hands with the MPCB office bearers and therefore, the report is not being placed on record. Further it is mentioned that it has come to the knowledge of the applicant that by-product/waste product in the manufacturing of steel is created on the large scale, which is required to be disposed of in eco-friendly manner. The rules for disposal of solid waste management are flouted by the respondent company, and as such, the waste is being deposited on both sides of the road passing through the factory to Wadkhal upto Alibag and as a consequence thereof, the mangroves are getting destroyed. The flora fauna and the aquatic life is also affected. Similarly, the company has deposited the waste on the agricultural Page 33 of 91 lands which has rendered the lands unfertile due to construction of illegal jetty and ships, barge are creating the waves and destroying the kharbandisti and the sea water is entering every day in the land belonging to the agriculturists. Despite a complaint having been made to the various Authorities, the kharbandisti in Kharmachela village was not re-constructed/repaired. Hence, an FIR was lodged with Wadkhal Police Station. The company is interested in buying the land of the villagers, which has been destroyed due to the activities of respondent company rendering fertility to negligible.
68. Respondent NO.5 - MoEF&CC has filed their reply-affidavit dated 13.01.2017, stating therein that the first Environmental Clearance for the project of 3.0 million MTPA Integrated Steel Plant was accorded on 31.12.1996 to M/s Nippon Denro Ispat Limited. The said company was taken over by M/s JSW Steel Ltd in 2011 and renamed as JSW Ispat Steel Ltd. The subsequent Environmental Clearance for expansion from 3.0 MMTPA to 5.0 MMTPA Integrated Steel Plant along with installation of Pellet Plant - 4.0 MMTPA and 300 MW Captive Power Plant was accorded on 21.11.2012 to M/s JSW Ispat Steel Ltd. The coke oven plant is a part of this Integrated Steel Plant.. M/s JSW Ispat Steel Ltd proposed to expand the Integrated Steel Plant from existing 5.0 MMTPA to 10.0 MMTPA and applied for Environmental Clearance on 03.12.2012, which was accorded for expansion of Integrated Steel Plant on 25.08.2015 subject to stipulation of various environmental safeguards, a copy of the same is annexed as Annexure-R/1 to the reply-affidavit. Further it is stated that the project of jetty has been granted Environmental Clearance on 04.01.1995 for jetty of 250 mtrs length, which was further expanded to 331.5 mtrs for which the Project Proponent has obtained the Environmental Clearance from the Ministry of Surface Transport on 12.01.1997. Further it is mentioned that JSW Dharamtar Port Pvt Ltd submitted a proposal for expansion of jetty from Page 34 of 91 331.5 mtrs to 1750 mtrs including a cross country conveyor. The MCZMA has recommended the proposal to MoEF&CC on 24.02.2015, which was granted by the MoEF&CC on 26.11.2015 and subsequently an amendment was issued on 26.03.2016. Public hearing was conducted on 22.05.2014. The Environmental Clearance does not allow any felling of mangroves. The Project Proponent has submitted that the construction of the jetty would be carried out deploying `Cantilever Construction Method‟, which produces a minimum disturbance to the existing ground or sea bed. The Environmental Clearance mentioned that „in the northern side of the jetty, around 20 mtrs wide mangroves are noticed all along the river, which would be left untouched since the proposed activities are 50 mtrs or more away from mangroves. The structure do not block any light penetration and thus mangroves can thrive and grow below.‟ Further it is mentioned that with respect to the allegations of illicit mangroves cutting and pollution being caused by illegal dumping of waste, the Ministry would file detailed affidavit after obtaining report from the Regional Office of the Ministry at Nagpur.
69. On 26.05.2021, respondent Nos.1 and 2 have submitted written notes of arguments encapsulating all the points in brief involved in the present matter and the submissions are made from their side on those points.
70. The applicants have submitted their affidavit dated 02.12.2021 in which all the previous averments have been re-asserted and it is made clear that even after lapse of six months since the order 27.05.2021 had been passed, the Committee has not come for any visit and large scale destruction of mangroves and dumping of hazardous chemical waste, rampant air and water pollution continued to happen unabated.
71. The Joint Committee has submitted its report dated 21.01.2022, relevant portion of which is quoted herein below:
Page 35 of 91 Page 36 of 91 Page 37 of 91 Page 38 of 91 Page 39 of 91
72. It is apparent from the above report that it was not a final report because three months‟ additional time has been prayed to be granted therein for filing the final report.
73. Applicant No.1 has filed objections dated 01.03.2022 against the interim Joint Committee report, wherein a reference is made of inspection having been carried out by MPCB and MCZMA pursuant to the directions given by the Hon‟ble High Court in the year 2016. Thereafter, MCZMA has filed an affidavit in the matter on 23.09.2016. Relevant averments made in the said affidavit in paragraph Nos.8, 9, 10 and 11 have been quoted and thereafter, the applicant filed reply/objection to the Joint Committee report, wherein it has been stated that since 2016, the company has dumped the hazardous waste material for reclaiming the land below the conveyor belt and the jetty, whereas the present progress report (Joint Committee report) refers in paragraph No.12 of the affidavit as below:
"Similarly, during the field visit the team observed sporadic and haphazard dumping of municipal solid waste within the 50 m of mangrove buffer zone of the conveyor belt area of M/s JSW Ltd. i.e. from the stretch between the Maharashtra Maritime Board, Jetty till the approach road of Alibaug-Mumbai Highway. It is gathered through the district administration that the particular land is government owned and the municipal solid waste has been dumped illegally by nearby gram panchayat viz. Dolvi and Vadkhal in the 50 m of Mangrove Buffer area. During the meeting, District Administration and Mangrove Department were requested to take suitable action against the village panchayat for destruction of mangroves, construction of illegal approach road and illegal dumping of municipal solid waste in the mangrove buffer area."
74. Thereafter, it is mentioned that the Committee is misled by the local officials that they found municipal solid waste within 50 m of the mangroves buffer zone and mainly by Dolvi and Vadkhal gram Page 40 of 91 panchayats. According to the applicant, the company on their own has dumped their hazardous waste material on mangroves at the time of construction of conveyer belt and the same is observed by the MCZMA in the reply filed in 2016, mentioned above. Later on with the passage of time, municipal solid waste is dumped on it. Therefore, the company and local officials have misled the Committee by showing the dumped municipal solid waste. Therefore, it was necessary to dig at that site and find out what material was beneath the garbage and which had originally been dumped on the mangroves. Some photographs filed by the applicant annexed as Exhibit-B would clearly show that the hazardous material was dumped by the company and the conveyer belt is constructed on the same. The company has dumped the slag on the same hazardous material. Thereafter, the company has allowed the locals to dump the municipal solid waste thereon. Therefore, it is necessary that an independent and impartial officer of this Tribunal should be appointed to inspect the locations where the hazardous material is dumped at various places. The entire area from Bombay-Goa highway upto Alibaug and Nagothane is used as a dumping ground by the company to dump solid waste in haphazard manner on mangroves, agricultural fields, Government land, etc. Many of the villagers have sold their agricultural fields to the company because the company has provided employment to some of the villagers and has given them various types of contract of civil works. The company should be immediately prohibited from discharging the untreated hazardous effluents in the sea, creek and natural water. Again it is reiterated in this that there is illegal construction of the bridge abutting the village Kharmachela by dumping the waste material on mangroves and destroyed the same and constructed the creek channels. On 15.10.2019, the permission has been obtained from the Hon‟ble High Court on the pretext that the company wants to lay right on private land and it was misrepresented by Page 41 of 91 the company that it was a private land and no mangroves would be required to be felled.
75. It is further mentioned that the applicant had filed a Writ Petition No.1107 of 2020, seeking various reliefs and the Hon‟ble High Court had clarified by way of interim arrangement that construction of the bridge will be subject to the outcome of petition. Further it is mentioned that damage is caused by the company on account of destruction of kharbandasti and dumping solid waste material. Therefore, soil testing of the land is required to be done. On 01.11.2021, the company had dumped chemical waste on the mangroves regarding which the applicant had made a complaint to various Authorities on the same date, which is annexed as Exhibit-F. Thereafter, a letter was received from the Sub- Divisional Officer, Pen and Forest Ranger, Wadkal stating that they will be doing panchanama on 23.11.2021. The proof thereof is annexed as Exhibit-G. The panchanama was prepared but the people who had put signature thereon did not have concern with Kharmachela village and these people had threatened the applicant regarding which an FIR has been lodged by the applicant in Wadkhal Police Station. A proof thereof is annexed as Exhibit-H.
76. The Panchanama dated 23.11.2021 would show a spot near the creek where the company had dumped the waste material and slag and on both sides of the dumped waste material, mangroves are found. The waste material is dumped on the old Kharbandasti to prohibit creek water from entering the agricultural fields. Copy of the said panchanama dated 23.11.2021 is annexed as Exhibit-I. It is also alleged that a complaint was made on 25.11.2021 by the applicant against panchanama having been prepared in advance and subsequent panchanama was made in respect of different locations. Further it is mentioned that an e-mail was also sent by the applicant to all the Authorities informing that the construction of the bridge on north-south Page 42 of 91 direction on survey no.94 was ongoing. The waste material was dumped on the southern side and mangroves were destroyed. A copy of the said e-mail is annexed as Exhibit-J. Further it is mentioned that one Mahesh Sudhakar Pore had made a complaint dated 21.10.2021 and the applicant had e-mailed the complaint on the same date of the similar nature requesting for removal of waste material to ascertain the destruction of mangroves.
77. Respondent Nos.1 and 2 have filed an affidavit dated 27.07.2022, wherein it is submitted that the applicant has raised for the first time an issue with regard to construction of bridge abutting Kharmachela village, which is sub-judice before the Hon‟ble Bombay High Court in Writ Petition (Cr.) 1107/2020 filed by the applicant, which shows that the applicant is indulging in forum shopping and because of that reason, this Tribunal may not interfere in this matter. Lastly it is also mentioned that the applicant is making fishing and roving inquiry beyond the pleadings.
78. The applicant has submitted an affidavit-in-reply dated 20.08.2022 to the affidavit of respondent No.1 dated 18.07.2022, wherein it is mainly submitted that this Tribunal may call upon the Committee to disclose as to why they did not permit the applicant to accompany them to the places to show the destruction or damage caused to the environment, which is spread over 15 kms from villages Dolvi, Gadab, Kharmachela, Kharkarawi, Kharchirbhi, Kharghat, Khardhombi, Wave, Vadkhal, Kolwe, Beneghat, etc.
79. The applicant has filed an affidavit dated 23.11.2022 relating to the subsequent events, stating therein that the livelihood of the agriculturist of village Kharmachela is adversely affected due to kharbandisti having been destroyed by the activities of respondent Nos.1 and 2. The khar land department has put the self-operated doors near the creek to the natural canal, which, during the low tide opens and Page 43 of 91 during high tide, closes. The company has removed this age old system by putting the pipes on or about 20.08.2022 and therefore, complaints were lodged. It is also recorded that the applicant found that company‟s huge ships destroyed the compound wall, thereby saline water entered the agricultural fields destroying the fertility. Respondent No.1 should have taken steps to restore the kharbandisti and should have used natural soil and not the slag. Even if the villagers had not raised any objection to those slags, same should not have been dumped in their land. It is also stated that the pipeline should have been put by removing the existing Ugadi i.e. the age old doors put by the department. Therefore, respondent No.1 should remove the pipeline and construct the Ugadi in rectangular shape to avoid the flood situation in future.
80. The Joint Committee submitted its final report in January, 2023, relevant part of which is quoted herein below:
"Directions of Hon'ble NGT orders dated 27/05/2021 & 04/03/2022 and their compliance status on each of such aspects are summarized as follows. As per the Hon'ble NGT order dated 27/05/2021, the joint committee was directed to look into the issues raised by the Applicant in the aforesaid order dated 27/05/2021 including compliance of the Water and Air Acts and HoWM Rules, destruction of mangroves and damage to agriculture, if any; status of scientific disposal of solid waste. It may also estimate the extent of environmental damage and the amount of compensation required and restitution plan (in case of non-compliance). If the violations are found, the joint committee may also suggest the amount of compensation to be recovered apart from other restoration measures. In compliance to the Hon'ble NGT order dated 27/05/2021, the joint committee also considered the separate representation on additional issues received from the applicant through MPCB during September, 2021 w.r.t. alleged dumping of waste materials at additional four villages and loss in fish catch productivity in the Dharamtar Creek. However, the project proponent has not submitted any representation to the joint committee during 2021.
The Hon'ble Tribunal vide order dated 04/03/2022, considered the progress report of the joint committee submitted in January, 2022 and also objections filed by the applicant. Further, directed the joint committee to verify the factual position as pointed out by the applicant w.r.t. management & disposal of waste material and Page 44 of 91 discharge of untreated effluent from coke oven plant into Dharamtar Creek. Also, the Hon'ble Tribunal issued additional directions to the joint committee for compliance w.r.t. remedial action for restoration of mangroves and its buffer zones, the creek, compliance of EC as well as CRZ conditions, point source of waste dumping at villages mentioned by the applicant, environmental impact of industrial activities in the surroundings with reference to habitation, agricultural fields, sea shore and creek hydrology. In compliance to the Hon'ble NGT order dated 04/03/2022, the joint committee also considered the separate representation on additional issues received from the applicant during the joint committee visit in April, 2022 w.r.t. citing criteria of land & its acquisition where expansion activities are carried-out, non-compliance w.r.t. green belt development, illegal construction of bridge, inadequate storage facility for handling waste material (slag) & its dumping at thirteen villages, repairing of damaged kharbandisti bhand using slag etc. In compliance to the Hon'ble NGT order dated 27/05/2021, the joint committee also heard the representation given by the project proponent during the joint committee visit in April, 2022 w.r.t. earlier court cases filed by the same applicant & its judgment, various initiatives taken by the project proponent for improvement of existing environmental management system and proposed best available technologies to be implemented in various processes to achieve towards sustainability.
The joint committee deliberated in detail about each aspect of the alleged issues and identified various assessment/studies to be carried out through respective concerned agencies viz. National Centre for Sustainable Coastal Management (NCSCM), Maharashtra Remote Sensing Applications Centre (MRSAC), DC- Raigad, Land Revenue Dept., SDO-Pen, MoEF&CC, District Health Officer (DHO), Mangrove Cell, Agriculture Dept., Khar Land Dept., Fisheries Dept., Maritime Board etc. Accordingly, an action plan was also formulated along with Terms of Reference in order to comply with the Hon'ble NGT order dated 27/05/2021. Further, a revised action plan was also formulated in order to comply with the Hon'ble NGT order dated 04/03/2022. Based on the various assessment/studies reports submitted by the respective agencies as per the action plan & ToR of the joint committee and subsequent deliberations during review meetings, the following table depicts the compliance status of each of the alleged issues as per the Hon'ble NGT order dated 27/05/2021.Page 45 of 91 Page 46 of 91 Page 47 of 91 Page 48 of 91 Page 49 of 91 Page 50 of 91 Page 51 of 91 Page 52 of 91 Page 53 of 91 Page 54 of 91
81. Objections against the Joint Committee‟s final report have been filed by respondent Nos.1 and 2 vide their affidavit dated 08.08.2023, wherein it is recorded that the main reason of moving the present Original Application is to point out destruction of mangroves and their alleged proximity to the project of the answering respondent. However, the distance of the mangroves, as stood then, was expressly considered and reflected in the EC dated 26.11.2015 as below:
"(xiii) The NIO, Goa has carried out CRZ demarcation study along with preparation of CRZ map in 1:4000 scale. As per this report, the project falls in CRZ-I and CRZ-III area. The proposed jetty along with Amba River is in CRZ-I, part of the proposed stack yard and Page 55 of 91 other part associated facilities including conveyor belt are in CRZ-I and CRZ-III. In the northern side of the Jetty, around 20 m wide mangroves are noticed all along the river, which would be left untouched since the proposed activities are 50 m or more away from the mangroves. Only approach to berths will pass over the mangroves. The structures do not block any light penetration and thus mangroves can thrive and grow below.
Beyond mangroves towards the landward side, most of the area is agricultural lands/fallow lands..." (Emphasis added by the answering respondents)
82. Further it is mentioned that the said EC was not challenged and hence has attained finality and hence in view of this Tribunal‟s judgment dated 27.05.2016 in Narinder Shukla & Ors. V. Jagish Saphiya OA No.135/2015, this Original Application cannot be entertained if the challenge to EC has already been rejected, in order to overcome the limitation.
83. Further it is mentioned that the EC for expansion of the Steel Plant dated 25.08.2015 was also challenged by the same applicant in appeal No.30 of 2016 before this Tribunal, which was dismissed as time-barred on 23.05.2017. In the said appeal, same grounds were raised as have been raised in the present Original Application pertaining to destruction of mangroves. Copies of the judgments and orders, referred to in this affidavit are annexed as Annexure-R1/2 and R1/3, respectively.
84. Further it is mentioned that in Writ Petition (St.) No.4894 of 2020, the Hon‟ble High Court of Bombay had opportunity to review the aspect of expansion of the conveyor streams leading to the jetty in the context of the effect of the same on mangroves and explicitly gave permission to the answering respondent to operate in the buffer zone for mangroves vide its order dated 09.07.2020. The said order was passed after considering the host of documents, including significant site inspection report of the Page 56 of 91 Mangrove Cell, which ipso facto belied the findings of the Joint Committee. Copy of the said order is annexed as Annexure-R1/4.
85. It is further mentioned that the Hon‟ble High Court of Bombay, while examining as to whether the property bearing Survey No.50/D is a forest, in Writ Petition No.1494 of 2022, by order dated 15.02.2022, had directed that no coercive action would be taken against the answering respondent. Thus, the issue of alleged forest land is sub judice before the Hon‟ble High Court.
86. Reliance is placed by the answering respondent upon the judgment of the Hon‟ble Supreme Court in State of A.P. V. Raghu Ramakrishna Raju Kanumuru; (2022)8 SCC 156, wherein it is laid down for the Tribunal to refrain from hearing the matter of which the Hon‟ble High Court is in seisin. Therefore, the answering respondents submitted that the above issue need not be touched by this Tribunal.
87. It is further mentioned that the Hon‟ble Bombay High Court has already taken cognizance of the issue of the alleged destruction of the mangroves for the very same project. Therefore, it would be inappropriate for the present proceedings to go on and for the Joint Committee to make observations on the alleged destruction of the mangroves in the teeth of the findings of the Hon‟ble Bombay High Court.
88. It is submitted that the present application suffers from non- joinder of necessary parties against Coke Oven Plant being operated by distinct juristic entity called Amba River Coke Ltd (ARCL) (formerly Geetapuram Coke Company Ltd and the change in the name is reflected in the Environmental Clearance modification dated 02.02.2010. Hence Amba River Coke Ltd (ARCL) should have been made party in the present application before any direction could be passed in regard to Coke Oven Plant.
89. Thereafter, by way of same affidavit, respondent Nos.1 and 2 have dealt with the objections to the main/final Joint Committee report issue- Page 57 of 91 wise. The first issue with which it has dealt with relates to destruction of mangroves of Dharamtar creek due to activities of the respondent company and its associated activities. It is submitted that the Original Application alleges that the cause of destruction of mangroves was due to the construction carried out by the answering respondent beyond jetty, the Environmental Clearance of which notes that no mangroves were within 50 mtrs of the construction site (Condition No.xiii of Jetty EC dated 26.11.2015). There was already conveyer belt system from Dharamtar Jetty connected to Steel Plant for the material transportation service. The MoEF&CC has granted Environmental and CRZ Clearance dated 25.08.2015 for the expansion of steel plant from 5 MTPA to 10 MTPA of finished products granted to the respondent company. The Environmental and CRZ Clearance dated 26.11.2015 for the expansion of Dharamtar Jetty Facility from 331.5 meters quay to 1750 meters is granted to JSW Dharamtar Port Pvt. Ltd. (affiliate of JSW Steel Ltd. - respondent No.1). The Environmental and CRZ Clearance dated 26.11.2015 was amended for augmentation of additional conveyor streams vide amendment dated 10.01.2020. JSW Dharamtar Port Pvt. Ltd. (affiliate of JSW Steel Ltd. - respondent No.1) has applied for the amendment of existing Environmental and CRZ Clearance dated 26.11.2015 by filing Form - I on 16.08.2018 with the MoEF&CC for augmentation of additional conveyer streams, which was granted on 10.01.2020 and was part of the Environmental and CRZ Clearance dated 26.11.2015.
90. The recommendation of the MCZMA for CRZ clearance dated 16.02.2019 required the answering respondent to "obtain an NOC from the Mangrove Cell confirming the activities are not in mangrove or its 50 m buffer zone". In compliance with this requirement, the Mangrove Cell, Mumbai inspected the site on 30.04.2019 and reported that there were "no mangrove trees in the proposed area".
Page 58 of 91
91. It is submitted that the inspection was conducted by different statutory bodies, initially in 2015, prior to grant of the Jetty EC and second in 2019 by the Mangrove Cell, categorically stating that there were no mangroves at the proposed site. Hence, there was no question of destruction of the mangroves. Copy of the recommendation of MCZMA for CRZ Clearance issued to MoEF&CC dated 16.02.2019 and that of the site inspection report dated 12.06.2019 of the Mangroves Cell, Mumbai are annexed as Annexure-R1/5 and Annexure-R1/6, respectively.
92. It is further mentioned that the report of Mangrove Cell, Mumbai was one of the many documents expressly considered by the Hon‟ble High Court of Bombay while granting permission to the answering respondent vide its order dated 09.07.2020.
93. Further it is mentioned that both the Steel Plant EC dated 25.08.2015 and the Jetty EC dated 26.11.2015 were granted after a detailed scrutiny by the Expert Appraisal Committee (EAC) of the MoEF&CC. Further an amendment to the EC for augmentation of additional conveyor streams was also granted on 10.01.2020, which involved extensive public hearing. The EAC minutes indicate that it was alive to the issue of mangroves and sought specific information regarding the location of the mangroves with respect to the proposed construction while considering the matter. Copies of these minutes dated 24/26.06.2015, 27/29.05.2019 and 20/22.08.2019 are also annexed as Annexure-R1/7, Annexure-R1/8 and Annexure-R1/9.
94. Further it is emphasized that the EAC minutes dated 24/26.06.2015 demonstrates the level of scrutiny undertaken in the above process, which is evident from the following observations:
"Provide details of the plots without mangroves : The PP presented Google map showing the Plots of the Dharamtar Jetty facility. As per the village cadastral level map presented before EAC, the proposed Jetty facility is lying on the land parcels."Page 59 of 91
It is further emphasized that the EAC has considered the issue in great detail in multiple meetings and determined that the construction would not cause any destruction or cause any adverse effect to the mangroves in the area. It is submitted that the wisdom of the EAC cannot be substituted by the wisdom of this Tribunal as per the law laid down in Rajeev Suri Vs. DDA; (2022) 11 SCC 1, wherein it is held that once an expert body has applied its mind to an EC application, a challenge to the decision must reveal total absence of mind by the body. The relevant extract from the judgment in the case of Rajeev Suri (supra) has been quoted in paragraph No.24 of the affidavit of the answering respondent.
95. It is also emphasized that the MCZMA and MoEF&CC have been regularly scrutinizing the activities of the answering respondents at regular intervals, such as 2015, 2016, 2019 and 2020 and no violation is ever reported. Therefore, it shows that no violation pertaining to destruction of mangroves was found.
96. It is further mentioned that loss of mangroves as alleged, if at all is due to the dumping of waste by nearby Panchayats around the conveyor gallery, as observed by the Joint Committee in the Final Report, which is affirmed by the study of the Maharashtra Remote Sensing Application Centre (MRSAC) and National Centre for Sustainable Coastal Management (NCSCM), because in the final report at page 283, it is recorded "a large area near conveyor belt is occupied by dumping of domestic and solid waste, due to this, there was significant loss of mangrove."
97. It is further mentioned that the mangrove area might have been adversely impacted due to natural causes such as cyclone and the impact of tides and waves etc, which has been acknowledged by the Range Forest Officer (Mangroves Cell), Alibag in his letter dated 03.03.2022 in which it has been noted that local fishermen and farmers Page 60 of 91 had informed him that those mangroves had also been destroyed by the washing out of the shoreline soil due to cyclones.
98. Further it is mentioned that the conveyor belt is an aerial structure built on 34 slender pillars. The conveyor belt is extremely small and cannot cause the alleged loss of mangroves of 1.89 Ha. The construction has been carried out in a way so that no mangroves get destroyed. The structures do not block any light penetration, hence mangroves could grow below, which is evident from page 272 of the Final Report. It is submitted that it is significant to note that the Jetty EC expressly imposed this as condition (xi) which, in turn, has been scrupulously complied with. The said condition (xi) reads as follows:
"(xi) The construction of the jetty would be carried out deploying `Cantilever Construction Method' also known as `Cantilever Gantry Method'. The method produces a minimum disturbance to the existing ground or sea bed."
Reference is also made of condition (xxvi) of the Jetty EC, directing the answering respondent to undertake to engage the NCSCM to evaluate, monitor and ensure that the construction methodology of the jetty does not disturb existing mangroves. The said condition (xxvi) reads as follows:
"(xxvi) The PP shall engage NCSCM, Chennai to carry out the monitoring at their own cost to ensure proper implementation of the construction methodology and construction of the Jetty without disturbing the existing mangroves natural resources and other environmental safeguards."
99. It is further mentioned that in compliance with the aforesaid condition, a team of NCSCM visited the site on 07/09.01.2017 and submitted its report in March, 2017, which stated that there was increase of mangrove area by 10.27 km2 in the year 2016. As regards Page 61 of 91 the construction and the mangroves, the observations of the team are as follows:
"6.2.....
(a) Construction Construction of new berth as a part of on-going expansion is causing minimal disturbance to the existing river bank or sea bed since all necessary precautions are being observed by the Port.
About 20 m width strip of mangroves were observed all along the Amba estuary. Initial observations indicated that mangrove were intact near the construction.
(e) Mangroves
6 species of mangroves were identified from the banks of the
Amba estuary and the port extension area during this survey. The mangroves of Amba River were healthy and initial observation indicated that the construction work for the expansion of the birth is causing minimal obstruction of flow to the mangroves in vicinity of the Dharamtar port."
100. Further it is mentioned that it is apparent that an independent agency affiliated to MoEF&CC has, in categorical terms, confirmed the mangroves to have been found intact.
101. It is further mentioned that inspection was carried out based on the complaint dated 11.01.2016 of the land under the conveyor belt, being survey nos.191/1A, 186/A, 186/D. The panchanama of the aforesaid inspection was signed by the land-owners and villagers of Dolvi, who were cultivating the said land earlier and it is mentioned therein that no destruction of mangroves was found due to conveyor belt.
102. It is further submitted that the Joint Committee has observed based on time-series analysis of satellite images during 2011 to 2021 and by superimposition of land revenue records and field validation, that the total alleged loss of mangrove areas due to M/s JSW and its Page 62 of 91 associated activities is 1.89 Ha. It is further mentioned that the Joint Committees‟ report dated 30.01.2023 does not mention the activities which can be attributed to the project proponent for the alleged loss or destruction of the mangroves of 1.89 Ha. Further it is mentioned that satellite images are not completely reliable as has been held by the Hon‟ble Supreme Court in the case of Noida Memorial Complex Near Okhla Bird Sanctuary; (2011) 1 SCC 744, wherein it is observed that "a satellite image may not always reveal the complete story, and that it is important to examine other contemporaneous data such as government and revenue records in order to arrive at the truth. However, the Joint Committee‟s report and the satellite images do not contemplate that the reason for alleged destruction of mangroves of 1.89 Ha are attributable to the answering respondent. Therefore, it is clear that it is not established as to who is responsible for the alleged destruction of mangroves in the intervening period. Therefore, it would be improper to fasten liability thereof upon the answering respondent for the entire period from 2011 to 2021 based on an assumption.
103. It is further mentioned that the Joint Committee has alleged that the destruction has occurred between years 2015-18 and 2021, yet saddled the answering respondent with liability for the entire period for ten years without any specific attribution to the answering respondent for the remaining six years. This is all the more relevant because the Joint Committee has acknowledged that other factors such as municipal solid waste played its part. It is further mentioned that the answering respondent has proactively planted mangroves over an area of 380 Ha to conserve and rejuvenate the mangrove species and also to socially uplift the area through creation of sustainable livelihood through self-help groups, nursery development and creating crab and fish catchment areas. It is submitted that due to the plantation of mangroves, the area is saved from soil erosion. It is submitted that the answering respondent Page 63 of 91 had proposed a Mangrove Conservation Plan which included the conservation and management practices to be followed for protection and preservation of the mangrove eco-system.
104. With respect to the loss of natural creek area by the activities of the Project Proponent/respondent Nos.1 and 2, it is submitted by the answering respondents that the Joint Committee has observed based on a time-series analysis of satellite images during 2011 to 2021 followed by superimposition of land revenue records and field validation that the total alleged loss of natural creek area, due to the answering respondent and its associated activities, is 0.77 Ha. In this regard, it is submitted that a minor change in the flow of the creek being attributed to the activities of the answering respondent is incorrect. As per the report of the Sub-Divisional Officer, Alibaug dated 17.01.2022, there was no encroachment of natural creeks and channels due to various developmental/expansion activities of the answering respondents. The minor changes in the course of the creek might have happened due to natural cause and the answering respondent has no control over the flow of the creek as the water enters from outside the boundary of the industry. Neither the Final Report of the Joint Committee nor the Sub- Committee of the MRSAC and NCSCM have expressed any specific activity which can be attributed to the answering respondent for the loss of creek. Therefore, the same may be treated as natural phenomenon. As per the report of the MRSAC and NCSCM, on the ground truthing, the tidal flow was observed in the creek at various locations, which could be due to saline water coming from the main sea during high tide.
105. It is further submitted that as per the scientific study conducted by G. Narayana Swamy in 1980, the tidal influence on the sediment has been observed across all seasons in Dharamtar creek. The sediment load of the surface waters was found to be comparatively high when the Page 64 of 91 currents were strong during monsoon and during the slack period sediment load was low.
106. With respect to the adverse effect due to emission from Coke Oven Plant, it is submitted by the answering respondent that the Joint Committee has found the Project Proponent to be largely compliant in keeping emissions within norms, but it has noted that few values are above the norms. For the sake of convenience, those values are quoted in paragraph No.49 of the affidavit by the answering respondent, are reproduced hereinbelow:
"Source Emission monitoring of stocks attached to the coke oven plant viz. common stack attached to coke oven battery-I & II (coke oven plant-I) and common stack attached to coke oven battery charging & pushing side (Ground de-dusting system of coke even plant-I) allegedly revealed concentration of particulate matter in the monitored stacks was exceeding the MPCB prescribed norms. Similarly, the concentration of particulate matter in the stack attached to the kiln of the Lime Calcination Plant-2 was allegedly above the prescribed norms."
107. It is submitted by the answering respondent that they have made every effort to keep the emissions pertaining to particulate matter under control by adopting latest technology and upgrading the same from time to time. The Joint Committee, in its methodology, has carried out the study for a period of 24 hours which is not strictly in accordance with the methodology as prescribed in the revised National Ambient Air Quality Standards (NAAQS) dated 18.11.2009, which prescribes monitoring of regular parameters to be carried out for 24 hours twice a week, to have 104 observations in a year. A copy of the revised NAAQS is annexed as Annexure-R1/12.
108. It is submitted by the answering respondent that in the case in hand, the monitoring of ambient air quality was carried out for only 24 hours (Pg.40 of the Final Report), the methodology so adopted is Page 65 of 91 inconsistent with the revised NAAQS laid down in the year 2019. The State Pollution Control Board was liable to establish that such decrease in ambient air quality was attributable to the Project Proponent‟s activities, which has not been done in this case.
109. It is further mentioned that at the time of inspection, road repairs/ upgradation was in progress on the National Highway, which had aerial distance from the plant in question of less than 500 mtrs. Therefore high PM10 levels noticed were very likely on account of the said road repair/upgradation works and cannot be attributed to the answering respondent. The monitoring location of the site is also adjacent to Mumbai-Goa national highway and is at a distance of 730 mtrs from the plant. Therefore, value noticed was likely to include surrounding environment factors which are not attributable to the answering respondent. The monitoring equipment was placed on an unpaved playground, which was devoid of grass and other vegetation. Therefore, considerable vehicular emissions around the said equipment, the ground where the equipment was placed was in use by school children for sports and other activities. The answering respondent has been periodically carrying out self-monitoring from MoEF accredited labs and found the emissions within the permissible limits.
110. It is further submitted by the answering respondent that the Joint Committee has observed that at the outlet of ETP of coke oven plant, non-compliance of standards prescribed by MPCB were noticed, particularly for BOD and TDS as they were marginally high, which was a temporary phenomenon due to changes associated with the temperature. It is also clarified that the water treated in the Effluent Treatment Plant of the Coke Oven Plant is completely reused in the process for wet quenching of hot coke for cooling purpose. A show-cause notice was issued to the answering respondent on 18.11.2022, which was responded to by the Project Proponent on 23.11.2022. But no response Page 66 of 91 has been received from the MPCB thereafter, which shows implicit admission of the MPCB that they were satisfied with the reply submitted by the answering respondent.
111. With respect to the violations of provisions of CRZ Rules and CRZ Clearance conditions and with respect to the construction of conveyor belt and development/expansion of Jetty in 50 meters mangrove buffer areas, it is submitted by the answering respondent that the Joint Committee records a finding that the CRZ conditions had been violated with respect to construction of the conveyor belt and jetty, which took place in the year 2015-16 within 50 mtrs of mangroves based on time series analysis of satellite images and found it to be violation of the MCZMA letter dated 31.12.2019. In this regard, it is submitted that it was irrational to expect the answering respondent to comply with the direction in 2015-16, which was imposed in 2019. It is submitted that the Joint Committee failed to consider that the authorities on inspection, at the time of E process, found that both the jetty and conveyor belt were not within 50 mtrs of the mangroves because the MoEF has expressly recorded in that regard as above. In the final EC granted on 26.11.2015, Paragraph No.3(xiii) thereof laid down a condition as follows:
"(xiii) The NIO, Goa has carried out CRZ demarcation study along with preparation of CRZ map in 1:4000 scale. As per this report, the project falls in CRZ-I and CRZ-III area. The proposed jetty along with Amba River is in CRZ-I, part of the proposed stack yard and other port associated facilities including conveyor belt are in CRZ-I and CRZ-III. In the northern side of the Jetty, around 20 m wide mangroves are noticed all along the river, which would be left untouched since the proposed activities are 50 m or more away from the mangroves. Only approach to berths will pass over the mangroves. The structures do not block any light penetration and thus mangroves can thrive and grow below.
Beyond mangroves towards the landward side, most of the area is agricultural lands/fallow lands...."
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112. It is submitted that the above would reveal that the MCZMA, Expert Appraisal Committee (EAC) and the MoEF&CC were cognizant of the existence of mangroves and yet, they have permitted the overhead construction of the conveyor belt to connect the jetty and the steel plant without disturbing the sunlight and ventilation to the mangroves so that the mangroves could grow without hindrance.
113. Further it is mentioned that the documents would reveal that at the time of grant of EC and CRZ clearance, there were no mangroves within 50 mtrs of the construction site of the extended jetty and conveyor belt and hence, it was not necessary for the answering respondent to approach the Hon‟ble High Court for permission though it is suggested by the Joint Committee that the Project Proponent ought to have approached the Hon‟ble High Court.
114. It is also emphasized by the answering respondent that the above finding of the EAC was not based on conjecture, but based on cogent and objective data i.e. a report by the National Institute of Oceanography (NIO), Goa an independent Government organization being domain expertise demarcated the high tide line and CRZ boundaries along Amba river near Dharamtar jetty in July, 2014. It is further submitted that mangroves thrive in saltwater ingresses and it was quite possible that mangroves subsequently (i.e. post 2015) grew in the area, reducing the distance between the project and the mangroves. The report of the Range Forest Officer (Mangroves Cell), Alibag, through his letter dated 03.03.2022, stated that there was growth of mangroves over a period of time which indicates that the buffer zone seen today is based on more recent growth due to the accumulation of alluvial soil by cyclones and was not existing at the time of construction of the conveyor belts. The buffer area is not static and changes with the loss or growth of mangroves for a particular co-ordinate.
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115. It is further mentioned that when additional conveyor streams were sought to be added to the jetty, the MoEF, considering the same in 2019, brought it to the notice of the answering respondent that the proposed new construction would be within 50 mtrs of mangroves and at that time, explicitly directed the answering respondent to approach the Hon‟ble Bombay High Court for permission pursuant to the judgment of the Hon‟ble High Court in PIL No.87/2006 dated 17.09.2018 (confirming the interim order of the Hon‟ble High Court dated 06.10.2005 in WP (L) No.3246 of 2004).
116. It is further clarified that the marked difference in the approach of the MoEF&CC for grant of EC and CRZ Clearance for construction of additional conveyor belts makes it clear that the factual situation on the ground in 2015 was very different as there were no mangroves within 50 mtrs of the construction area. The Joint Committee‟s findings based on satellite imagery cannot be countenanced in the face of contemporaneous consideration of the precise issue and ground truthing by the MoEF at the time of issuing the Environmental and CRZ Clearances . Besides that, the final report has also failed to provide specific reason attributable to the answering respondent for alleged loss or destruction of the mangrove.
117. On the above premise, it is submitted that the view taken by the Joint Committee that the permission of the Hon‟ble High Court of Bombay was needed, is completely baseless. Denial is made that any expansion of the conveyor belt was done before obtaining prior leave of the Hon‟ble High Court. New conveyor streams were only constructed after obtaining the leave of the Court on 09.07.2020, as has been noted by the Joint Committee as well. The answering respondent cannot be penalized today since they have done all that was required to do in law, as has been held by the Hon‟ble Supreme Court in the case of Page 69 of 91 Muralilal Jhunjhunwala Vs. State of Bihar; 1991 Supp.2 SCC 647 (para 5).
118. As to the status of compliance of order dated 06.10.2005 of the Hon‟ble Bombay High Court in W.P. (L) No.3246 of 2004 (PIL No.87 of 2006), it is submitted with regard to allegation regarding destruction of mangroves in an area bearing Survey No.50/D, that there has been no destruction as stated above. The said land is alleged to be reserved forest, but the applicant has conceded that the land is not a forest since prayer (h) of the present O.A. seeks declaration to the effect that the area in question is a forest. Further it is mentioned that whether the said land is a reserved forest, is pending adjudication before the Hon‟ble High Court in Writ Petition No.1494/2022, wherein the Hon‟ble High Court, vide order dated 15.02.2022, directed that no coercive action would be taken against the petitioner in the said writ petition.
119. It is further submitted that the answering respondent has filed the said Writ Petition challenging the communication dated 10.03.2021, directing the answering respondent to pay a sum of Rs.7,76,96,458 for alleged illegal land filling and for encroachment of government land and for non-forest use with respect to the land bearing survey No.50/D. Having cited relevant paragraphs of the said writ petition and the grounds raised therein, it is submitted that it is clear from the above part of the pleadings that the issue involved was whether the land Survey No.50/D is a forest, is sub-judice before the Hon‟ble High Court. Therefore, as of now, this Tribunal should refrain from considering the said issue.
120. With respect to the remedial action for restoration of mangroves and its buffer zones, creek and its banks, canals, it is submitted by the answering respondent that the Joint Committee has attributed damage of mangroves trees to the answering respondent to the extent of 1.89 Ha area, which is denied by the answering respondent. But as a responsible Page 70 of 91 corporate citizen, the answering respondent undertakes to plant 5 times the number of mangroves alleged to be destroyed, under the supervision of Mangroves Cell of Maharashtra and the District Revenue Department. It is also made clear that the answering respondent has already proactively planted mangrove saplings over an area of 380 ha to conserve and rejuvenate the mangrove species and also to socially uplift the area. During last seven years, the answering respondent has planted more than 19 lakhs mangroves saplings bringing 380 hectares of degraded mangroves area under green cover.
121. As regards flow of the creek, though it is denied by the answering respondent that the changes in the flow of the creek are attributable to the activities of the answering respondent, as a responsible citizen and as corporate social responsibility, the answering respondent undertakes the responsibility to prepare a time-bound restoration plan under the supervision of the Mangrove Cell, Government of Maharashtra and the District Revenue Department as recommended by the Joint Committee.
122. With respect to Environmental Compensation (EDC), it is submitted that the manner of calculation of the environmental compensation (EDC) is hugely flawed and is contrary to various findings of the Joint Committee itself. It is submitted that the Joint Committee has assessed the EDC to the tune of Rs.3,28,99,438, in terms of valuation of mangroves services cost for alleged destruction of mangroves of 1.89 ha due to various activities of M/s JSW during assessment period 2011 to 2021 is worked out considering the average inflation rate of 6.1454%, but Joint Committee has failed to establish conclusively that there has been destruction of mangroves due to the activities of the answering respondent, hence the said amount is not liable to be levied from the Project Proponent. The Joint Committee has alleged that destruction of mangroves took place within a period of 10 years. Merely because a map of 2011 is used as a baseline and is contrasted with a Page 71 of 91 map of 2021 cannot ipso facto imply that the alleged destruction or loss of mangroves, if any, occurred right after 2011. This is further corroborated by the fact that any construction activity took place only post obtaining ECs and CRZ clearance in 2015-2018 and 2019, confirmed from the Final Report. Therefore, the amount arrived at is patently arbitrary and unfair to use a factor of 10 years in arriving at the figure of Rs.3,28,99,438.
123. With respect to the Environmental Damage Compensation (EDC) for contravening mandatory provisions of environmental laws i.e. construction of conveyor belt in mangrove buffer area before obtaining prior leave from the Hon‟ble High Court and submission of undertaking thereto is worked out to be Rs.5,89,50,000/-, it is submitted that the formula used to calculate the compensation for contravening mandatory provisions of the environmental laws is without sanction of law inasmuch as it is not based on any statute or sanction of law. There is nothing to suggest that the same has been approved by the CPCB. It is merely based on In-house Committee Report of CPCB, that has not been ratified or formally adopted either by the CPCB or the MPCB. The said report has been referred by the NGT, Principal Bench in Paryavaran Suraksha & Anr. Vs. Union of India & Ors. In O.A. No.593 of 2017 for calculating compensation, for specific instances such as consent condition violations, accidental discharge, etc.. It has never been approved by any court or statutory body to be adopted as a formula to calculate compensation for alleged construction of jetty and conveyor belt in 50 meter mangrove buffer zone. The formula is inapplicable to the current fact situation, despite the fact that the Joint Committee proceeded to calculate compensation using the same formula. It is submitted that merely because a formula, for calculating damages for discharge of effluent, exists, the same cannot be used for calculating damages for another entirely distinct activity. Further it is mentioned that the period Page 72 of 91 of alleged violation of 1965 days between 21.02.2015 (submission of application for EC and CRZ Clearance) and 09.07.2020 (grant of leave to construct additional conveyor streams within 50 mtrs of mangroves) is without cogent basis. The answering respondent had obtained all necessary clearances before constructing the expanded jetty and conveyor belt in 2015, which has been noted by the Joint Committee in Table 1 at page 23 of the Final Report. The EC and CRZ Clearance dated 26.11.2015 specifically noted that there were no mangroves within 50 mtrs of the area of construction , hence there was no need to obtain leave of the Hon‟ble High Court. An express leave was granted by the Hon‟ble High Court on 09.07.2020 in favour of the answering respondent for an entirely different facet of the project, when the answering respondent has constructed additional conveyor streams because the EAC had observed that there had been some mangrove growth in the area proposed for the additional streams bringing them within 50 mtrs of the project and hence, the answering respondent was directed to approach the Hon‟ble High Court to seek permission for construction. The Hon‟ble High Court granted permission to the Project Proponent in Writ Petition (St) No.4894 of 2020 (JSW Dharamtar Port Pvt Ltd and Anr. Vs. Union of India through Ministry of Environment, Forest and Climate Change and Ors.).
124. With respect to the environmental compensation for various non- compliances of the directions issued under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 being worked out to Rs.1,60,80,000/- , it is submitted that the said amount has been calculated without giving an opportunity of hearing and rebutting. There are generic conclusions that the consent conditions were violated and directions of MPCB were not complied with, which is enumerated in the e-mail dated 17.11.2022 of the MPCB (page 595 of the Final Report). The Joint Committee or MPCB have not pointed out contravention of provisions of law under the Page 73 of 91 Air Act, 1981 or the Water Act, 1974, under which such environmental compensation may be levied. The show-cause notices were issued by the MPCB and same were replied adequately as no adverse order was passed against the answering respondent.
125. Applicant No.1 has filed additional submissions and suggestions on the Joint Committee report by way of an affidavit dated 08.08.2023, stating therein that from perusal of paragraph No.3.0 pertaining to the industry, internal page 22.23, it would indicate that on 04.01.1995, Jetty was constructed by erstwhile company with EC. Similarly, EC was also received from 3.0 MMTPA Integrated Steel Plant on 31.12.1996. The Jetty was expanded to 331.5 mtrs on 12.01.1997. The table shows that JSW Ispat Steel Ltd expanded the jetty to 1741 mtrs without EC for which they received the ToR. The jetty is transferred to respondent Nos.1 and 2 on 01.07.2012. Respondent Nos.1 and 2 expanded the jetty from 331.5 mtrs to 1750 mtrs on 28.11.2013. Thus, there is expansion of jetty in the year 2013. Respondent company got EC for expansion of Dharamtar jetty facility from 331.5 mtrs to 1750 mtrs on 26.11.2015. It is evident from Annexure-8 that apart from destruction of mangroves near conveyor belt and the jetty, the Committee has found that conveyor belt is constructed crossing the buffer area during 2015, 2016, 2017, 2018 and 2021. The Committee found that the mangrove buffer area is used for development/expansion/operation of jetty. It is evident that the conveyor belt as well as the jetty are in existence in mangroves buffer area. In view of this position, the same is contrary to the provisions laid down under CRZ Notification, 2011, which prohibits existing industries in such area, except for such facilities provided under Regulation 8 that no new construction shall be permitted in CRZ-I except (i) (a) to (f) and the construction of jetty as well as conveyor belt could never be permissible vide CRZ Notification, 2011.
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126. It is also mentioned that 2011 Notification is superseded by subsequent Notification dated 18.01.2019, which also prohibits expansion of existing industries, operation or processes because para 5 of the said Notification permits certain activities in CRZ-IA with certain exceptions. In the case like laying a pipeline, transmission line, conveyance systems or mechanisms and construction of road on stilts, etc., that are required for public utilities. Therefore, it was necessary for the Joint Committee to recommend closure of the expansion of factory and conveyor belt as well as jetty, which is not done. The Conveyor Belt or Jetty, etc. is obviously not a public utility and would not amount to foreshore facility under the Notification of 2011. The conveyor belt is constructed from 2015-2018 in Survey No.117 to 122 and the same are situated in CRZ-I and most of the part is in No Development Zone (NDZ) and till date, no permission is received to construct the same.
127. With respect to bridge, it is submitted by the applicant that respondent Nos.1 and 2 constructed a bridge on Survey No.94 situated at Kharmachela, which is a Khajan land as per the revenue record. Respondent Nos.1 and 2 have used their slag for filling up said survey number and mangroves area are cut and they have also filled the saline backwater passing through the Nala. The Notification, 2011 shall apply to the land area between HTL to 100 meters or width of the creek, whichever is less on the landward side along the tidal distance upto which development along such tidal influenced water bodies is to be regulated, shall be governed by the distance upto which the tidal effects are experienced. The expression "tidally influenced water bodies" means water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like. In the light of above position of law, the activity of construction of bridge on Survey No.94 by using the slag/industrial waste is ex-facie illegal and contrary to the Notification, 2011. Similarly, Page 75 of 91 Para 5.1.1 CRZ-IA (iii) permits construction of roads and roads on stilts by way of reclamation in CRZ-I areas, only in exceptional cases for defence, strategic purposes and public utilities. Similarly, if the construction of such roads passes through mangrove areas or is likely to damage the mangroves, a minimum three times the mangrove area affected or destroyed or cut during the construction process shall be taken up for compensatory plantation of mangroves.
128. It is further submitted that respondent Nos.1 and 2 want to construct the bridge on Survey No.94, which is a Government land and 7/12 extract shows the same to be a khazan land and comprises mangroves as well. Therefore, the bridge is not permissible to be erected there. The Hon‟ble High Court is completely misguided on the point of Survey number as well as on the point of destruction of mangroves and hence, a substantive petition is pending in respect of the same. If the construction of bridge is directly in conflict with Notification of 2019, the same is liable to be removed and the damage caused to the environment needs to be restituted.
129. It is further submitted that Para 4 of Notification, 2019 as well as Para 3 (viii) of Notification, 2011 3 prohibits using industrial solid waste for the purpose of land filling. It further provides that if it is used, then the concerned Authority shall implement scheme for phasing out any existing practice within a period of one year from the date of commencement of this notification. In view of this position of law, the industrial waste cannot be used whether hazardous, non-hazardous for land filling. As against it, the applicant finds that the industrial waste is used in construction of the bridge, road, filling, destruction of mangroves, but the Committee has not commented on the same by merely saying that the permission is granted by the Hon‟ble High Court, though the Hon‟ble High Court never granted any permission to the Page 76 of 91 Project Proponent to undertake the construction or expansion contrary to law.
130. With respect to industrial waste, it is submitted that disposal of industrial waste in an unscientific manner in mangrove area near conveyor belt, jetty, buffer zone, agricultural land, etc. has been done by the Project Proponent. But the Committee has brushed it aside observing that the industrial waste is not hazardous and it is deposited on the agricultural land in view of consent given by the owner. It was necessary for this Tribunal to direct the respondents to accompany the applicants to identify the locations of the industrial waste deposited by the Project Proponent and to remove the same and to calculate the damages caused to the environment as well as to the agricultural fields. The Committee did undertake the site visit, but that was done by sub-committees, which were appointed by the main Committee and different departments which were forming part of that Committee, against whom the applicant has raised grievance. Hence, the report is completely meaning less.
131. With respect to destruction of mangroves at villages Kharmachela, Kharghat and Khardhombi in June-July, 2023 by the respondent - Project Proponent, it is submitted that the Committee has not visited the said site and hence, no comments could be made regarding that.
132. Respondent No.1 - Project Proponent has filed reply-affidavit dated 31.10.2023 to the applicants‟ additional submissions dated 08.08.2023, which is nothing but reiteration of their stand in their earlier affidavits, referred to above.
133. Another additional affidavit dated 27.02.2024 has been filed by the applicants and by and large in it, all those details have been given of the show-cause notice issued by the MPCB to the Project Proponent at various occasions/dates and having pointed out the same, it is submitted that issuance of these show-cause notices indicates that the Page 77 of 91 Project Proponent has been indulging in violation of the environmental norms and hence, they are liable to be enforced/levied heavy EDC.
134. Respondent No.5 - MoEF&CC has submitted reply-affidavit dated 02.03.2024, which speaks of only Final report having been submitted by the Joint Committee. Nothing extra has been stated therein.
135. Additional affidavit dated 06.06.2024 has been filed by respondent Nos.1 and 2 - Project Proponent, wherein it is stated that on 31.12.2024, the MCZMA, upon concluding that respondent No.1‟s project falls within the buffer zone of a mangrove area, amended condition (ii) of its approval dated 16.02.2019 in its 142nd meeting and by minutes dated 31.12.2019 directed respondent No.1 to seek the permission of the Hon‟ble High Court in PIL No.87 of 2006. Copy of the said minutes is annexed as Annexure-R1/1. Further it is mentioned that respondent No.1, in terms of directions issued by the MCZMA in the minutes of its 142nd meeting dated 31.12.2019, filed Writ Petition No.4894 of 2020 before the Hon‟ble High Court seeking its leave to carry out construction activities within 50 mtr buffer zone from mangrove area, which was granted by order dated 09.07.2020.
136. It is submitted that Coke Oven Plant-2 originally formed a part of the EC dated 25.08.2015, which was thereafter transferred to M/s Dolvi Coke Projects Ltd by EC dated 01.02.2018, which, in turn, was transferred from M/s Dolvi Coke Projects Ltd to respondent No.1, in view of the merger of the two entities by EC dated 22.11.2021. Copies of relevant documents/ECs are annexed as Annexure-R1/3 and Annexure- R1/4.
137. Thereafter, respondent No.1 - Project Proponent has filed written submissions dated 06.06.2024, which are at pages 3715 to 3725 of the paper-book. Thereafter, the applicant has filed Convenience Compilation dated 26.11.2024, which are at pages 3725.A to 3725.T of the paper- book and further Convenience Compilation dated 11.01.2025 has been Page 78 of 91 filed by respondent Nos.1 and 2, which is at pages 3726 onwards of the paper-book and another case compilation was filed by respondent Nos.1 and 2 dated 11.01.2025, which is at pages 4028 to 4038 to 4193 of the paper-book.
138. We may mention here that these Convenience Compilations contain the gist of the points raised to be determined by this Tribunal because on last few days of hearing, looking to the matter being old, we had directed the parties to sit together and frame the points on which they wanted finding of this Tribunal, but instead of that, they have filed separate Convenience Compilations on those points on which they want this Tribunal to render findings.
139. We have gone through these Convenience Compilations at the time of arguments made before us when each of these points were read out by the learned counsel for the respective parties and relevant papers were tried to be shown to convince us about their respective points. We find that these Convenience Compilations are nothing but contain the same pleadings in short, which are referred to and narrated by us hereinabove.
140. After the closure of the arguments, the aplicants have sent us an e-mail dated 21.01.2025 wherewith a clarification is made to the query put up by this Tribunal during the arguments as to whether the respondent company had submitted an undertaking before the Hon‟ble High Court in compliance with order dated 09.07.2020 and in paragraph No.5 in this clarification, it is submitted that no such undertaking has been given by the respondent company. When we presided over the court on 22.01.2025, learned counsel for the applicants pointed out that he had sent a written communication about the undertaking not having been given by the company - Project Proponent, to which learned counsel for the respondent company has rebutted by saying that, that was a wrong statement given by the applicants. In fact, an undertaking was submitted, pursuant to which we had directed him to place before us a Page 79 of 91 copy of the said undertaking submitted before the Hon‟ble High Court, through e-mail and we find that the same has been communicated through e-mail dated 22.01.2025, wherewith an undertaking, which has been submitted before the Hon‟ble High Court, has been annexed, which is dated 14.07.2020. The same is taken on record. We believe that copy of the same has been served on the applicant as we had directed on the dais about the same.
141. We have gone through the pleadings and record and have heard the arguments of the learned counsel for the parties.
142. We, first of all, would like to deal with the issues/points raised by the applicants in their Convenience Compilation. The first point raised by the applicants is pertaining to the waste material and in that regard, it is submitted that respondent No.1 is steel manufacturing company, which also generates the industrial waste on large scale, which is being dumped anywhere and everywhere causing pollution. The said waste needs to be disposed of in environment friendly manner. Narration is also made of the show-cause notice issued by the MPCB on 02.11.2015 to respondent No.1 regarding parameter of TPM of pallet plant, coke oven plant and hot strip mill plant exceeding limits. Reference is made of the analysis report of samples of waste material dated 24.11.2015, which are found to contain hazardous components. Reference is also made of the joint inspection report submitted by the MPCB on 26.09.2016, wherein it is recorded that the samples were taken on 07.08.2016 from various places, such as Vadkhal, Kasumata temple, etc. Reference is also made of the MPCB having filed an affidavit on 23.11.2017 containing the results of the samples collected by them during joint visit and the maximum samples of the waste material dumped at Wadkhal, Wadkhal- Alibaug road, land filling between RCF railway line and jetty conveyor belt, all were found exceeding the limits. It is also stated that the MPCB clearly stated that the waste material was dumped and used for landfill Page 80 of 91 by the industry before 2016 should also be considered hazardous and the waste disposed of by the industry after 2016 when amendments were made in HWR (MH & TM), Rules 2016, may be considered hazardous and the same needed to be sent to authorized recycler or secured landfill at CHWTSDF or in the industry premises. On 30.08.2016, MPCB gave notice to the respondent company with regard to waste dumped at various locations. Respondent No.1 - company has responded on 01.01.2016 and contested the show-cause notice on frivolous grounds. The MCZMA has also filed an affidavit and found that the conveyor belt site is in mangroves and comprises the waste material. Similarly, reclamation was carried out at the site of jetty area. The Joint Committee Final Report has supplied the information about total generation of slag and where the same is deposited and it is further stated that as per CRZ Notification, 2011, the industrial solid waste cannot be dumped for the purpose of landfilling in CRZ area. Hence, it is submitted that the entire industrial waste, which is more than 91,85,903 tonnes excluding the reused slag, needs to be disposed of in eco-friendly manner. The Joint Committee is silent on the said issue, nor the MoEF or any other Authority has made it clear as to how it is to be disposed of. Hence, the entire responsibility lies on the company to remove the same and pay the penalty. It is argued that there is consent of the farmers in permitting the company to fill their agricultural lands with industrial waste, which leads to soil pollution, hence, it is liable to be removed and according to the applicants, it is hazardous.
143. We may mention here that the Joint Committee had also been constituted by us, which has submitted an exhaustive report on this issue. We find in that report at pages 1381 to 1382 of the paper-book, an exhaustive consideration/analysis by the Joint Committee of the slag samples collected at various villages in tabular form with respect to various components, based on which it was found that all these Page 81 of 91 components contained in slag samples did not qualify the criteria of `hazardous waste‟ as per Rule 3(17) of the H&OW (M&TM) Rules, 2016.
144. In view of the Joint Committee‟s report, which has been submitted in the case in hand, wherein it has opined the waste generated by the industry is not hazardous as is being said by the applicants. Therefore, this having come on record by way of evidence that this slag had also been spread over agricultural fields with the consent of farmers on whose fields it had been dumped and their opinion has come forward urging about the same to be repeated, we are of the opinion that the same does not require to be repeated as of how. Thus, this issue raised by the applicants does not appear to carry weight.
145. The next point raised by the applicants pertains to respondent company being situated in CRZ area, the activities run by it should be ordered to be stopped immediately as that would affect the mangroves. In this regard, the applicants‟ contention as stated in their Convenience Compilation is that the MCZMA has filed an affidavit on 26.09.2016, paragraph No.2 of which refers the site visit of company, outside company, conveyor belt between railway track and MMB jetty, conveyor belt receiving station behind MMB Office and creek-let near Kaasumata Temple. The MCZMA did not visit Kharmachela site because of long distance, plant site is located in CRZ-I and CRZ-III areas; the conveyor belt transfer landing point is constructed on piles. The mangroves are found at the conveyor belt site. The reclamation is carried out near jetty area, the proposed jetty along with Amba river is in CRZ-I area, part of proposed stack yard and other part associated facilities are in CRZ-I and CRZ-III areas, conveyor belt is in CRZ-I area. While granting Environmental Clearance and CRZ Clearance, mangroves are cut, but the same are required to be conserved. Further it is mentioned that the MPCB has filed an affidavit dated 22.04.2016, enclosing copy of the EC dated 26.11.2015 issued in favour of respondent Nos.1 and 2 for Page 82 of 91 expansion of Dharamtar jetty facility in village Dolvi. The details of the project refers the proposals of Dharamtar jetty facility involving expansion of Dharamtar jetty facility in village Dolvi. Para XIII (3) contemplates that "the NIO Goa has carried out CRZ demarcation studies along with preparation of CRZ maps in 1:4000 scale and as per this, the project falls in CRZ-I and CRZ-III area". Further it is urged that MoEF has filed an affidavit dated 13.02.2017 and placed on record the permissions granted by them. Respondent Nos.1 and 2 have taken a stand that they were not aware of the site visit of MCZMA and contested the averments that the company is situated in CRZ-I and III area on the ground that the plant site is tentatively superimposed. It is also urged that it is false statement made by the company that construction of new conveyor belt commenced after receiving Environmental Clearance dated 26.11.2015. A bare perusal of the EC shows that it is in respect of expansion of Dharamtar jetty facility and not for construction of conveyor belt.
146. In regard to the Joint Committee report, it is submitted by the applicants that the sub-committee appointed by the Joint Committee focused on destruction of mangroves near conveyor belt and jetty area only and has not dealt with the issue of company being situated in CRZ-I and CRZ-III area, completely overlooking the reply of MCZMA. It is further submitted that the Hon‟ble Bombay High Court, in its judgment and order dated 17.09.2018 passed in Public Interest Litigation (PIL) No.87 of 2006 and connected matters, has considered the CRZ Notification dated 06.01.2011 and observed that all mangroves area fall in CRZ-I and buffer zone of 50 meters is required to be maintained. It also observed that the mangroves on the private land is a forest within the meaning of Private Forest Act. It has also observed that the State is duty bound to protect and preserve mangroves and the same cannot be destructed by the State for private, commercial or any other use unless Page 83 of 91 the Court finds it is necessary for the public good or public interest. The Hon‟ble High Court directed the State to replant destructed mangroves and restore mangroves areas, which are illegally reclaimed. It is stated that there is no order of the Hon‟ble High Court or of the State or MoEF or MCZMA or any Authority permitting the destruction of the mangroves or removal of the same in the present case. Therefore, in view of the directions of the Hon‟ble High Court, if MCZMA has found that the company is situated in CRZ-I and CRZ-III areas, then it is necessary to declare the said area as protected forest and all activities contrary thereto need to be stopped. Surprisingly, the Joint Committee is completely silent on this point.
147. The response to the above argument, given by respondent No.1 is that the chronology would reveal that it is only on 31.12.2019 that the MCZMA, upon concluding that the project of the respondent No.1 falls within the buffer zone of mangrove area, amended condition (ii) of its approval dated 16.02.2019 and by minutes dated 31.12.2019, directed respondent No.1 to obtain such permission from the Hon‟ble Bombay High Court in PIL No. 87 of 2006, whereupon respondent No.1, on 12.03.2020, filed Writ Petition No.4894/2020 before the Hon‟ble High Court seeking its leave to carry out construction activities within the 50 meters buffer zone from the mangrove area. Therefore, the view of the Joint Committee that respondent No.1 ought to have approached the Hon‟ble High Court even earlier to that is erroneous. The Joint Committee has lost sight of the fact that while the CRZ Notification imposes a buffer zone around mangroves only if they meet the threshold of an area of 1000 sq.mtrs, the regime came to be altered by way of judgment and order dated 17.09.2018 in a matter of Bombay Environmental Action Group vs. State of Maharashtra; 2018 SCC OnLine Bom 2680, whereby a buffer zone of 50 meters was made applicable to mangroves per se irrespective of whether or not the Page 84 of 91 threshold of 1000 sq.mtrs was met. While this new regime of buffer zone was introduced on 17.09.2018, the respondent No.1 had previously obtained an EC for the steel plant dated 25.08.2015 and for the jetty dated 26.11.2015, wherein no condition was imposed with respect to a buffer zone or to obtain permission from the Hon‟ble High Court since there was no occasion for the same. Therefore, need of obtaining permission of the Hon‟ble High Court has arisen only after 17.09.2018 to operate in the 50 mtr buffer zone around mangroves.
148. We are in agreement with the submissions made by the learned counsel for respondent No.1 that the need arose of approaching the Hon‟ble High Court to obtain permission for construction of conveyor belt inside the mangrove area pursuant to the judgment of the Hon‟ble Bombay High Court dated 17.09.2018. So earlier to that, there was no reason for respondent No.1 to approach the Hon‟ble High Court to obtain permission. It is also clear that the Environmental Clearance granted prior to that did not contain that condition as well.
149. We may also make it clear that it has come on record that respondent No.1 has taken a stand that the growth of mangroves happens because of the entry of saline water in the area and that initially when the ECs were obtained to run the project, there was no mangroves in the area, which is evident from the ECs granted and it appears to be correct view that subsequently, in course of time, due to entry of saline water, the mangroves developed in that area and when there was expansion of the project, such as setting up of Conveyor Belt for expansion purpose, the growth of mangroves had happened and that led to recommendation by the MCZMA for permission to be obtained from the Hon‟ble High Court, for which respondent No.1 did file a Writ Petition and obtained the same. To say, on the part of the applicants, that misrepresentation was made before the Hon‟ble High Court, is not open to them. If anything is said to be unjustified, the same should have been Page 85 of 91 stated before the Hon‟ble High Court once the Hon‟ble High Court has taken a decision of granting permission, rightly or wrongly, the same needs to be respected. This Tribunal would be out of jurisdiction to pass any order contravening the order of the Hon‟ble High Court.
150. Now with respect to the project lying in CRZ-I and CRZ-III area, our opinion is that the Environmental Clearances have been granted already on 12.01.2009, 0202.2010, 26.11.2015, 25.08.2015 and 10.01.2020. All these ECs prior to the judgment dated 17.09.2018 delivered by the Hon‟ble High Court, will be treated to have been granted after consideration of the point whether there were mangroves or not because the scrutiny would have been made in this regard before granting EC by the same EAC. So any view which has been taken by this expert body cannot be lightly set aside by this Tribunal. Therefore, to say that at that point of time, the project was not eligible to be set up in this area within CRZ-I area, does not appear to be correct view expressed by the applicants. Had that been the case, the EC would have been rejected. We may also make it clear that these ECs are now being challenged and the EC earlier challenged was also held to be time- barred. Therefore, all these ECs stand valid.
151. As regards the EC obtained post 17.09.2018 i.e. the EC dated 10.01.2020, the same has been obtained after permission from the Hon‟ble High Court, therefore, even that EC will have to be respected. The argument of the learned counsel for respondent Nos.1 and 2 that the applicants are now assailing these ECs in disguise by moving this Original Application because the challenge to the ECs had failed in respect of one EC and others were not challenged, is correct. Therefore, the applicants have gone to file this Original Application to assail these ECs, which is not permissible under law.
152. The next issue raised by the applicants is with respect to Conveyor Belt situated between Survey Nos.117 to 124 at village Dolvi, regarding Page 86 of 91 which it is submitted that the same is set up in the mangroves/buffer zone by destructing the mangroves. The Conveyor Belt was set up without EC between 2015 to 2018. The said Conveyor Belt cannot be constructed in mangrove area or within 50 mtrs buffer zone, hence is liable to be removed. Though this issue is partly covered by us while rendering finding above, even then we would like to mention here again that the Project Proponent has obtained EC for setting up this Conveyor Belt pursuant to the order of the Hon‟ble High Court despite the fact that the same was to be installed in mangroves area where there was likelihood of mangroves being destroyed, permission has been granted by the Hon‟ble High Court subject to condition that no mangroves would be destroyed. We also find that the Conveyor Belt is always installed at a height on pillars. So, there is no possibility of Conveyor Belt touching ground where the mangroves might have been there. Hence, to say that setting up of this Conveyor Belt had destroyed the mangroves appears to be farfetched. Even if there was any possibility of destruction, this kind of permission could be granted keeping in view that this project is of national importance and public utility. Moreover, the reply given by the Project Proponent indicates that they have taken all possible steps and adopted latest technology to minimize damage to the environment as well as to the mangroves. Even then they have undertaken that they being responsible corporate citizens, were ready to make plantation five times of 1.8 Ha, which is a welcome step and we do believe that the same would be done by the Project Proponent in course of time within a period of one year, although we find that they have already done plantation on the land admeasuring 3.80 Ha.
153. Now we come to the issue of Environmental Damage Compensation (EDC) to be levied from the Project Proponent. In this regard, the applicants have tried to convince us that the satellite imagery figures of the period 2011 to 2021 would show that the area was already full of Page 87 of 91 mangroves which got depleted because of the activities of respondent No.1 since they were running this plant emitting huge waste material, which is hazardous according to the applicants, but we find that the Joint Committee has suggested that at the site in question beneath the Conveyor Belt, dumping of solid waste was found to have been done by the local bodies and calculation of some EDC for damage of 0.71 Ha, has also been done against these local bodies. The Joint Committee has expressed view that in the remaining area i.e. 1.89 Ha, respondent No.1 industry is responsible for causing the dumping due to various activities. Therefore, we find that the evidence that there was some damage to mangroves, but actual cause of it is not determined. At this stage, the applicants have gone to state that in fact slag was dumped there by the Respondent No.1 at that site and above that slag, domestic waste was allowed to be dumped by the company. To find out whether there is dumping done of domestic waste could be ascertained by digging it open by appointing an independent agency. We are not inclined to accept this argument and are of the view that the Joint Committee is very categorical that the above area of 1.89 Ha plus 0.71 Ha is said to be destroyed by the local bodies and not by the activities of the Project Proponent.
154. As far as activities of the Project Proponent are concerned, we cannot hold them responsible as dumping of slag has been done by them with permission of the holders of land/fields with their consent. At this stage, we are of the view that we can at the most subject them to do mangrove plantation of approximately 15 Ha, which shall be completed within one year from the date of uploading of this judgment.
155. With respect to the creek having been diverted by the activities of respondent Nos.1 and 2 - Project Proponent, their learned counsel submitted that they being responsible corporate citizens will submit a time-bound restoration plan for the same, though nothing has come on Page 88 of 91 record against them that they have caused any damage to the creeks. We accept the proposal of time-bound restoration plan for the creek under supervision of the State of Maharashtra and District Revenue Department, which shall be completed within one year from the date of uploading of this order.
156. With respect to the violations pertaining to the air and water pollution, regarding which various notices have been issued and details thereof are given by the applicants and responses are also given by the respondent No.1 company, it is submitted by the learned counsel for the applicants that for these lapses, atleast respondents - Project Proponent should be held accountable and heavy amount should be levied from respondent No.1. As against this, learned counsel for respondent No.1 has argued that whenever these lapses were pointed out by the MPCB or any other Authority, they had taken adequate steps to take care of them and never ever they were imposed any fine/penalty by these Authorities. It is for the first time that the Joint Committee has arrived on this huge figure of Rs.1,60,80,000 to be deposited by the Project Proponent by way of EDC. It is stated by the learned counsel for the respondent Nos.1 and 2 that this amount should be directed to be paid by the Project Proponent and it be allowed to be spent towards CSR activity, as has been directed by the Principal Bench of this Tribunal in Review Application No. 6 of 2022 in O.A. No.226 of 2020 [Earlier O.A. No.68 of 2020(CZ)] (Om Puri Vs. Hindustan Zinc Ltd. & Ors.), vide order dated 14.11.2022. The relevant para No.10 of that judgment of the Principal Bench is quoted hereinbelow for reference :
"10. We have heard learned Counsel for the review applicant. It is submitted that since the PP has made the necessary deposit and is willing to execute the remediation plan as proposed above, instead of amount being treated as compensation, it may be treated as CSR Page 89 of 91 activity. Having regard to the fact situation, we allow this prayer and further direct that in the course of execution of the action plan, Micro Watershed Management Plan for protection of ground water and soil quality and health cards for the households may be duly focused. Further, for proper monitoring and evaluation, independent third-party validation of remedial measures may be obtained by the PP through a credible agency and its reports placed on the website of the PP on six monthly basis till completion of restoration measures."
157. Looking to the fact that the violations, which are reported to have been caused by the Project Proponent are of procedural nature and also looking to the fact that never ever prior to this date, the Project Proponent has been imposed any penalty for violations by the MPCB or any other Authority, we deem it appropriate to direct the Project Proponent - respondent Nos.1 and 2 that the said amount of Rs.1,60,80,000 shall be spent by them as CSR activity within one year and a report as to what CSR activities have been undertaken by them shall be given in detail to the Board of Directors of the respondent No.1 Company, which shall be published in their Annual Report and placed on the website of the PP on six monthly basis till completion of restoration measures.
158. With above directions, the Original Application is disposed of.
159. In view of disposal of the Original Application, pending Interlocutory Applications, if any, shall stand disposed of.
160. No order as to costs.
.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 17, 2025 Original Application No.122 of 2015 (WZ) npj Page 90 of 91 Page 91 of 91