Bombay High Court
Agriculture, Dairy Development , ... vs Union Of India Through The Ministry Of ... on 19 December, 2019
Bench: S.C. Dharmadhikari, R.I. Chagla
1078-WP-12462-2019.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12462 OF 2019
Agriculture, Dairy Development, Animal ...Petitioner
Husbandry and Fisheries Department,
Government of Maharashtra
Vs.
Union of India & Ors. ...Respondents
Mr. Saket Mone, Mr. Subit Chakrabarti, Mr. Vishesh Kalra and Mr.
Abhishek Salian i/b. Vidhi Partners for the Petitioner.
Mr. Parag Vyas with Dhanesh R. Shah for Union of India.
Mr. B.V. Samant, Asstt. Govt. Pleader Writ Cell Respondent Nos.3
and 4.
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.
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 upgradation of fishery facilities 1/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC located at Waredi Village, Taluka Pen, District Raigad. 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.6 of recommendation of MCZMA in its 129th Meeting held on 26th February, 2019; Condition No.VII of the CRZ clearance granted by the SEIAA in its 159th Meeting held on 2nd March, 2019.
4. It is submitted on behalf of the Petitioner that the permissions / clearances have been obtained by the Petitioner from the Respondent authorities for carrying out the proposed project. It is submitted that the proposed project being a fishing project is of great importance as it will greatly mitigate the hardships faced by the fishermen of Waredi and Kharsapoli villages. The proposed project is of public utility which stimulate the facility for Waredi. Further it is an important centre for marine fish production in India. The importance of the project has been highlighted in paragraph IV on page 16 of the Petition. The proposal to upgrade existing infrastructure at Waredi along with five other sites was approved by the Agriculture, Dairy Development, Animal Husbandry vide G.R. dated 23rd February, 2/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 2017. An amount of Rs.107 Crores was sanctioned under the Rashtriya Krishi Vikas Yojana 2016-17. From the total amount, Waredi has been allotted Rs.10,00,00,000/-. The State Level EIA Authority has granted CRZ Clearance, vide its order dated 16th September, 2019. Such clearance has been granted in furtherance of the recommendation granted by MCZMA in its 129th Meeting dated 26th February, 2019. It is submitted that no mangroves are proposed to be cut. However, permission of this Court is necessary as the proposed development is in a 50 Metres buffer zone located around the existing mangrove patch.
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:-
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.
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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.
(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 4/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 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 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;5/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 :::
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(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 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 6/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 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 rejuvenation;
(c) On identification of the areas as forest, the Municipal Corporation of Greater Mumbai would remove garbage and debris within these areas 7/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 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 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 8/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 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 development is being scrupulously followed or not for the preservation, protection of mangroves area which is ecologically fragile area.
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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 principle 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;"
10. It was further held in paragraph 85 (A) of the said Judgment that the directions which were issued in the order dated 10/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 ::: 1078-WP-12462-2019.DOC 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 proposed upgradation of fishery facilities located at Waredi Village, Taluka Pen, District Raigad. Thus, the present project is necessarily 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 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 construction of the proposed upgradation of fishery facilities located at Waredi Village, Taluka Pen, District Raigad.
11/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 :::1078-WP-12462-2019.DOC 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.) 12/12 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 00:20:39 :::