Bombay High Court
Mumbai Metropolitan Region ... vs Union Of India And 3 Ors on 19 December, 2019
Bench: S.C. Dharmadhikari, R.I. Chagla
1073-WP-1646-19-1266-19.DOC
Jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1646 OF 2019
Mumbai Metropolitan Region Development ...Petitioner
Authority
Vs.
Union of India & Ors. ...Respondents
Mr. Ashutosh A. Kumbhakoni, Advocate General with Mr. Saket
Mone, Mr. Subit Chakrabarti, Mr. Vishesh Kalra and Mr.
Abhishek Salian i/b. Vidhi Partners for the Petitioner.
Mr. N.R. Prajapati with Ashutosh Mishra for Respondent No.1 -
UoI.
Ms. Sharmila Deshmukh with Ms. Jaya Bagwe for Respondent
No.2.
Ms. Geeta Shastri, Addl G.P. for Respondent Nos.3 and 4.
Mr. Pheroze Mehta and Ms. Rishika Harish, Amicus Curiae
present.
CORAM: S.C. DHARMADHIKARI &
R.I. CHAGLA, JJ.
ORDER RESERVED ON 04 TH DECEMBER, 2019
ORDER PRONOUNCED ON 19TH DECEMBER, 2019.
O R D E R ( Per R.I. Chagla, J. )
1. Heard. Rule. Respondents waive service.
2. The Petitioner's application for interim relief shall now be considered.
1/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::1073-WP-1646-19-1266-19.DOC
3. The Petitioner by this Writ Petition is seeking a writ of mandamus directing the Respondent authorities to permit the Petitioner to execute the proposed construction of Car Maintenance Yard at Malvani for the Mumbai Metro Line - 2A to be situated at Survey No.263, CTS No.6A (Part) admeasuring about 16.40 Ha. and construction of piers at Valnai at Survey No.39, CTS No.1(Part) admeasuring an area of 2.3 Ha. The Petitioner is constructing the Metro Line 2-A with total length of 18.589 kms having 17 stations. This line will interchange with Mumbai Metro Line Nos.1, 7 & 9. The project is thus of immense public importance. The Petitioner has sought permission of this Court in view of Clause (viii) of paragraph 83 of the order passed by this Court in Public Interest Litigation No.87 of 2006 dated 17th September, 2018; condition No.(x) of recommendations of the Principal Chief Conservator of Forests (Head of Forest Force), Maharashtra State dated 8th January, 2019; condition (x) of the recommendations of the Additional Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State dated 11th January, 2019; condition (v) imposed by MCZMA, while granting recommendation in favour of the Petitioner in respect of the project in issue, in its 113th Meeting held on 8th to 11th August, 2016.
2/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::1073-WP-1646-19-1266-19.DOC
4. Mr. Kumbhakoni, the learned Advocate General appearing for the Petitioner has brought to our notice the various clearances and permissions of the Respondent authorities that have been obtained by the Petitioner for commencing and carrying out the said project. He has submitted that the Metro Rail Project has been dropped in the final EIA Notification of 2006 after appreciating that the same is eco-friendly, Mass Public Transport System, which is also a public utility and thus in larger public interest. This is by way of communication issued by the Ministry of Environment & Forests, Climate Changes, Government of India, dated 20th November, 2015 to the effect that, the Metro Rail Project is not covered by the EIA Notification of 2006. Mr. Kumbhakoni has also pointed out that the establishment of the car shed for the Mumbai Metro Line - 2 contemplates diversion of mangroves forest land as well as cutting of 86 mangroves. The Respondent No.1 after duly examining the proposal for diversion of mangroves forest land, has accorded stage 1 'in principle' approval under Section 2 of the Forest (Conservation) Act, 1980 on 14th February, 2019 subject to the terms and conditions therein. The piers are to be constructed in an area covered by the CRZ - I i.e. 24 piers and CRZ-II I.e. 4 piers. The State Level EIA Authority has granted CRZ Clearance, vide its Order dated 11th 3/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC September, 2019. For the construction of 28 piers not a single mangrove is being cut or damaged. However, the permission of this Court may be necessary as it may be contended that these piers are being erected in a 50 metres buffer zone located around the existing mangrove patch. He has submitted that in terms of Clause 7 of the CRZ Notification dated 6th January, 2011, a buffer zone of 50 Metres along the mangroves is to be provided, only in case the mangroves area is more than 1000 sq. mtrs. In the present case, the mangrove patch is far less than 1000 sq. mtrs.
Thus, the buffer zone of 50 metres along the mangroves may not apply. However, considering the orders passed by this Court including judgment dated 17th September, 2018 disposing of Public Interest Litigation No.87 of 2006 for preservation of mangroves, the present permission is sought.
5. The Amicus Curiae appointed by this Court has highlighted certain orders passed by this Court for the preservation of mangroves. The first of the orders passed by the Division Bench of this Court in Writ Petition No.3246 of 2004 is dated 6th October, 2005. The relevant paragraphs 6 and 8 are reproduced herein below:-
4/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::1073-WP-1646-19-1266-19.DOC
6. This Order is passed to prevent further destruction of mangroves and to ensure the conservation and rejuvenation of mangroves in the State of Maharashtra.
8. The State Government is directed to designate a Senior Officer not below the rank of concerned District Magistrate and Collector and Deputy Commissioner of Police/Superintendent of Police to oversee the implementation of the following directions. They would entertain complaints from citizens in respect of mangrove destruction. The name, address and contact information of such officers shall be advertised prominently in one English newspaper and two Marathi newspapers, apart from the official websites of the Maharashtra Government and the Forest Department.
That there shall be a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra. We take note of the fact that in T.N. Godavarman Thirumulkpad vs. Union of India and Ors. etc. [Writ Petition (C )No. 202 of 1995 and 171 of 1996], an affidavit was filed on behalf of the State of Maharashtra by the Chief Conservator of Forests (Administration), in which on the basis of a report of an Expert Committee, it was stated that in the Mumbai Urban Area alone, 1,534 hectares of land were, inter alia, classified as mangrove areas.
(ii) All construction and rubble/garbage dumping on the mangrove areas shall be stopped forthwith;
(iii) Regardless of ownership of the land, all construction taking place within 50 metres on all sides of all mangroves shall be forthwith stopped ;
(iv) No development permission whatsoever shall be issued by any authority in the State of Maharashtra in respect of any area under mangroves.
5/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::1073-WP-1646-19-1266-19.DOC
(v) The Municipal Commissioner of Greater Mumbai shall forthwith issue the necessary directions to the Municipal Corporation of Greater Mumbai Building Proposals Department not to entertain any applications for development (as defined in the Maharashtra Regional and Town Planning Act, 1966) on or in respect of the mangrove lands, regardless of the nature of ownership;
(vi) The State Government and the Maharashtra Coastal Zone Management Authority (MCZMA) are directed to file monthly report on the above action plan to this Court. The first report will be submitted within four weeks from today. The report shall specifically state, in addition to the progress/ action taken,
(a) the number of complaints received, if any,
(b) the action taken thereon, if any, ( c) the number of offenders named, and
(d) the details of prosecutions / action launched/taken against such offenders.
(vii) The State of Maharashtra is directed to file in Court and furnish to the petitioners copies of the maps referred to in paragraph 10 of the affidavit dated 16th August, 2005, filed by Mr.Gajanand Varade, Director, Environment Department, State of Maharashtra (Page 346 on the record), within four weeks from today;
(viii) The areas shown as mangrove area in the satellite study report "Mapping of mangroves in the Maharashtra State using Satellite Remote Sensing"
dated August, 2005, prepared by the Maharashtra Remote Sensing Application Centre (MRSAC) for the MCZMA which was submitted to this Court on 29th August, 2005, form part of Phase I of the mapping by MRSAC. The MRSAC will, in Phase-II, carry out mangroves study using high resolution for detailed mapping of mangroves with a view to 6/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC identify more precisely mangrove areas in Mumbai and Navi Mumbai. After receiving the said satellite data, transfer of mangrove details on city survey / village maps (cadastral map) will be carried out within a period of 6 months from today;
(ix) After the aforesaid process in clause (viii) is completed, the areas so identified which are government owned shall be declared and notified as "protected forests" in accordance with law after carrying out ground survey etc. The areas so identified that are privately owned shall be declared and notified as "forests" in accordance with law, after carrying out ground survey etc. The said declaration/notification will be completed within a period of 8 weeks of the completion of Phase-II mapping;
(viii) The areas shown as mangrove area in the satellite study report "Mapping of mangroves in the Maharashtra State using Satellite Remote Sensing"
dated August, 2005, prepared by the Maharashtra Remote Sensing Application Centre (MRSAC) for the MCZMA which was submitted to this Court on 29th August, 2005, form part of Phase I of the mapping by MRSAC. The MRSAC will, in Phase-II, carry out mangroves study using high resolution for detailed mapping of mangroves with a view to identify more precisely mangrove areas in Mumbai and Navi Mumbai. After receiving the said satellite data, transfer of mangrove details on city survey/village maps (cadastral map) will be carried out within a period of 6 months from today;
(ix) After the aforesaid process in clause (viii) is completed, the areas so identified which are government owned shall be declared and notified as "protected forests" in accordance with law after carrying out ground survey etc. The areas so identified that are privately owned shall be declared and notified as "forests" in accordance with law, after carrying out ground survey etc. The said declaration/notification will be completed within a period of 8 weeks of the completion of Phase-II 7/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC mapping;
(x) The mangrove areas that are on government owned lands will be handed over to the Forest Department within a period of 12 weeks from the declaration of the same as "protected forests";
(xi) From the list of "mangrove areas" so identified, Government owned lands will automatically be declared/notified as "protected forests". Likewise, privately owned lands from the list of mangrove areas so identified, the same will be declared/notified as "forests";
(xii) The Secretary, Revenue Department, shall from the said date of taking over possession of the Government owned land by the Forest Department, update all the revenue records to ensure that the said Government lands are shown as "protected forests" in the said revenue records within a period of 12 weeks from the same being declared as "protected forests". In the case of lands that are private owned, the secretary, Revenue Department, shall update all the revenue records to ensure that the said private lands are shown as "forests" in the said revenue records within a period of 12 weeks of completion of the steps in clause (x) above;
(xiii) In respect of Government lands, the Forest Department and other authorities of the State of Maharashtra shall take the following necessary steps of protection, conservation and regeneration of the areas that would be declared/notified as "protected forests: in terms of clause (x) above;
(a) Removal of all obstructions that are impeding the growth of mangroves as also the impediments which restrict the flow of sea water in the mangrove areas;
(b) Wherever mangrove growth is found to be sparse and denuded (i.e. with forest density less than 0.4 which means canopy less than 40%) within these identified areas, taking necessary steps for 8/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC rejuvenation;
(c) On identification of the areas as forest, the Municipal Corporation of Greater Mumbai would remove garbage and debris within these areas within a period of three months as per the instructions of the Forest Department. These areas shall be rejuvenated with mangroves;
(d) The Forest Department is directed to take necessary action against the offenders in accordance with law for damaging or destroying mangroves.
6. Further in paragraph 9 of the above order it was provided that the officer designated in paragraph 8 shall submit a report on the action plan every three months to this Court. The first of such reports shall be submitted within four weeks from the date of declaration / notification as "protected forest".
7. Thereafter, a subsequent order dated 27th January, 2010 came to be passed by the Division Bench of this Court. The relevant paragraphs of the said order are paragraph 6 and 8 which are reproduced below:-
6. We find much substance in the submission made by the learned counsel appearing for the petitioner, in so far as it pertains to effective and meaningful implementation of the order dated 6th October, 2005. The State may take its own time for implementing the order dated 6th October, 2005 but this Court was very much concerned and was 9/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC required to pass this order to prevent further destruction of mangroves and to ensure the conservation and rejuvenation of mangroves in the State of Maharashtra. It further directed that the Maharashtra State using Satellite Remote Sensing is directed to prepare phase-II of the mapping for carrying out mangroves study using high resolution satellite data of 65 cms. spatial resolutions / one meter spatial resolution for detailed mapping of mangroves with a view to identify more precisely mangrove areas. After receiving the said date transfer of mangrove details on city survey / village maps (cadestral map) would be done. Thereafter this Court directed and the learned Advocate General gave assurance that the said exercise is likely to take about six months. By mentioning that it has become imperative to pass interim order to protect the mangroves during the interregnum. It further clarified that this order shall not apply to all those cases which are specifically\ governed by injunction or stay order passed by the Courts.
8. So far as the grievance of the applicants, as regards permission which is sought to be granted by the authorities is concerned, we make it clear that nothing prevents the statutory or local and private bodies and their contractors to approach the competent authorities to seek permission for their respective projects as required in accordance with the law for the projects which are likely to affect mangroves area in the State of Maharashtra as specified in mapping of mangroves whereby mangrove areas stand delineated and the authorities on such an application being filed, would consider it strictly in accordance with law in the light of the interim orders passed by this Court from time to time and keeping in mind principle of sustainable development. If such permission is granted by the competent authority the same shall be subject to approval of this Court and the parties should obtain leave of the court before implementing the project in mangroves area. This will enable the Court to monitor whether the principle of sustainable 10/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC development is being scrupulously followed or not for the preservation, protection of mangroves area which is ecologically fragile area.
8. Thus, in paragraph 8 it is provided that permission can be sought by statutory or local and private bodies and their contractors from the authorities and the authorities can grant such permission to respective projects required in accordance with law which are likely to affect mangroves area in the State of Maharashtra. However, such permission granted shall be subject to the approval of this Court and the parties should obtain leave of this Court before implementing the project in the mangroves area.
This will enable the Court to monitor whether the principles of sustainable development is being scrupulously followed or not for the preservation, protection of mangroves area which is an ecologically fragile area.
9. This Court by judgment dated 17th September, 2018 disposed of the Public Interest Litigation No.87 of 2006. It was provided in paragraph 83 (viii) as under:-
(viii) In view of applicability of public trust doctrine, the State is duty bound to protect and preserve mangroves. The mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court finds it necessary for the public good or public interest;"11/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::
1073-WP-1646-19-1266-19.DOC
10. It was further held in paragraph 85 (A) of the said Judgment that the directions which were issued in the order dated 6th October, 2005 shall continue to operate as final directions and the terms have been set out therein. This includes that there shall be a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra. This would have to be read with paragraph 83(viii) which provides that mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court finds it necessary for the public good or public interest.
11. The present project is for the construction of Car Maintenance Yard at Malvani for the Mumbai Metro Line - 2A to be situated at Survey No.263, CTS No.6A (Part) admeasuring about 16.40 Ha. and which would also require the construction of piers at Valnai at Survey No.39, CTS No.1(Part) admeasuring an area of 2.3 Ha. is necessary for the public good and in public interest. Considering that similar permissions have previously been granted by this Court in fit cases where the project proponents have sought to execute projects of bonafide public utility, permission in this case would also be required to be 12/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 ::: 1073-WP-1646-19-1266-19.DOC granted. Further, the requisite permissions have also been obtained from the Respondent authorities
12. We accordingly by way of interim relief permit the Petitioner to execute the proposed construction of Car Maintenance Yard at Malvani for the Mumbai Metro Line - 2A to be situated at Survey No.263, CTS No.6A (Part) admeasuring about 16.40 Ha. and construction of the piers at Valnai at Survey No.39, CTS No. 1 (Part) admeasuring an area of 2.3 Ha. This would never the less be subject to the Petitioner strictly complying with the conditions imposed in the permissions granted by the Respondent authorities. It is made clear that this order shall not be construed as an opinion on the merits of the permissions granted by the Respondent authorities to the Petitioner for execution of the project.
( R. I. CHAGLA J. ) (S.C. DHARMADHIKARI, J.) 13/13 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:19:47 :::