National Green Tribunal
Mr. Damodar Tandel vs The Government Of Maharashtra Through ... on 11 May, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 02 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Appeal No. 15/2017(WZ)
(Old Application No. 108/2016(WZ))
Mr. Damodar Tandel & Anr. Appellant(s)
Versus
Govt. of Maharashtra through Chief Secretary & Ors. Respondent(s)
Date of hearing: 11.05.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant(s): Mr. Asim Sarode, Advocate
Respondent: Mr. D.M. Gupte, Advocate, for MCZMA
Mr. Chirag Mody with Mr. Shivshankar Swaminathan, Advocates.
for R-1 3, & 4
Mr. Milind Mahajan, Advocate, for R-2
Mr. Rajesh Chopda, Advocate, for R-6
ORDER
[ The Issue
1. This appeal has been filed against the grant of Environmental and CRZ Clearance (EC) dated 23.02.2015 for construction of Chhatrapati Shivaji Maharaj Memorial along with equestrian statue of Chhatrapati Shivaji Maharaj in the Arabian Sea of the Coast of Mumbai, Maharashtra by M/s PWD, Mumbai (PP). During pendency of this appeal, there was an amendment to the EC on 15.06.2018 inter alia on account of increase in 1 the height of the statue. Amended appeal has been filed to challenge the said amended EC also.
Procedural History - matter before Bombay High Court in pursuance of order of Hon'ble Supreme Court
2. The appellant earlier filed OA No. 108/2016 on 30.08.2016 which was held to be not maintainable in view of specific remedy of appeal and thus the application was allowed to be converted into an appeal vide order dated 31.01.2017, subject to limitation. The OA filed on 30.08.2016 against EC dated 23.02.2015 was barred by limitation. Further, amended EC dated 15.06.2018 has not been challenged by way of any independent appeal but only by filing an amended appeal.
3. Learned Counsel for the PP has brought to our notice an order of the Bombay High Court dated 02.11.2018 in PIL No. 6/2017, Prof. Mohan Prabhakar Bhide vs. The State of Maharashtra & Ors. dismissing a PIL against the project, raising contention that this will be wastage of public fund. Further, the matter was considered by the Hon'ble Supreme Court and order dated 03.03.2020 was passed in SLP (C) No. 9043/2019 and W.P. (C) No. 1402/2019, transferring the matter to the Bombay High Court and recording oral assurance given by the State not to proceed with the project without seeking variation of such understanding from the High Court. The order of the Hon'ble Supreme Court is reproduced below:
"The impugned order is an interim order declining interim relief and that too almost two years back. We generally do not entertain petitions against interim orders. We are told that when this matter was listed earlier there was some oral assurance given to the Court and learned counsel for the State submits that those understandings will not be disturbed with liberty to the parties, if so advised, to seek variation of those oral understandings.
We are of the view that it is a fit case where the High Court may bestow its attention to the Writ Petition filed itself rather than a matter of interim relief being debated before us.2
We, thus, dispose of the Special Leave Petitions in the aforesaid terms and the High Court would take a call on the main matter.
The Writ Petition (C) No.1402/2019 is transferred to the Bombay High Court to be heard along with PIL No.58/2017. The petition is transferred to be treated as a petition under Article 226 of the Constitution."
Consideration of the statutory appeal by the Tribunal
4. Though the above matter is still pending before the High Court, since this is a statutory appeal, we have to take a decision in the matter, without prejudice to the order of the High Court in the said matter.
5. According to the impugned EC dated 23.02.2015, details of the project, including studies carried out, issues considered and impact of the project including compliance with the CRZ Notification are as follows:
"
i. The Government of Maharashtra intends to establish a memorial and statue of Chhatrapati Shivaji Maharaj, off Nariman Point, Mumbai. The memorial is aimed at not only providing a place for people to visit, but also create an internationally acclaimed landmark of our country.
ii. The project was accorded TOR vide letter no. F.No.11-4/2015- IA-III dated 05.02.2015.
iii. The memorial shall be a 190 m high statue ofthe Chhatrapati Shivaji Maharaj.
iv. The identified location is an oval shaped Rocky out crop at latitude 18°55" 33.8" N and longitude 72" 4725.0" E, of approximately 650 m x 325 m in size. The identied location is 1.2 km southwest of Raj Bhavan, 3.6 km southwest of the Girgaon jetty an 2.5kam west of Nariman point.
v. The statue will be built on rocky outcrop, which is exposed only during low ide an hence sheet pile walls are proposed to be erected along the boundary of the' project site prevent sliding and wall of 13 m height is proposed to protect the area from sea water. There should not be any 'impact on marine life at the time of driving sheet piles and also boundary wall should be designed for Tsunami/ Storm Surge.
vi. The proposed project area is under the jurisdiction of Port of Mumbai.
3vii. Following Clearances/Permissions have already been obtained:
Terms of Reference (TOR) from MOEFCC
Government Resolution passed for the project
NOC from Mumbai Port Trust
NOC from Western Naval Command
NOC from Fisheries Dept.
NOC from BNHS
viii. Following Studies have been carried out:
Geotechnical Study Conducted and report prepared by Indian Institute of Technology (IIT, Mumbai) EIA and Wave Behavior Study and Report made by National Environmental Engineering Research Institute (NEERI, Nagpur) and National Institute of Oceanography (NIO, Goa).
Environmental Management Planning, Disaster and Safety Management Plan prepared by Fine Envirotech Engineers, Mumbai.
ix. The areas assigned for different infrastructure facilities as follows:
Sr. Description Area (sq.m.)
No.
1. Total area cover (Rock surface area) 15.96 ha
2. Area of pedestal at ground floor 16237.00
3. Area of pedestal at first floor 10024.00
4. Area of pedestal at second floor 5302.00
5. Area of residences for staff security 6000.00
6. Roads and platforms 28410.09
7. STP and WTP 409.00
8. Public toilets 300.00
9. Helipad 790.00
10. Jetty (2 main, 1 jetty for VIP and 1 jetty 100x 12 for service) x. The central core of the pedestal has to support the statue "of Chhatrapati Shivaj Maharaj, which is about 160 in in height from the base xi. It consists of three layer pedestal of concrete (M60 grade) with stone cladding of natural stone (Granite). The natural stone granite is suggested by the Department of Earth Science of IIT Bombay, Mumbai.
xii. The height of pedestal is 32.5 m. The first level of pedestal is about 140 mx 140 mx 10 m in dimension; second level of pedestal is about 110 mx 110 mx 10 m, the dimension of third level of pedestal is 80 mx 80 m x 10 m.
xiii. The material for pedestal is proposed as M60 concrete with optimum use of silica fume or fly ash which in turn solves the problem of dumping of fly ash and fume on the fertile land, and provides more strength and durability to the structure.
4xiv. First sheet pile walls will be erected along the boundary of the project site. Sufficient number of piles will be driven in the rocky outcrop to prevent sliding. The construction of sheet piles is planned during the non-monsoon period and is expected to be complete in 6 months xv. Ready mix concrete of M60 grade will be pumped from the Raj Bhavan side through 300 mm diameter HDPE pipeline with help of pump of capacity 4000 Hp.
xvi. The steel and 40,000 m2 natural granite stones will be transported from Mumbai Port the project site through barges. The armour layer of breakwater will be made of tetrapool to withstand the expected design wave height. A temporary jetty will be constructed for unloading the materials and machinery transported through the barge.
xvii. The berthing jetty will be on concrete piles. The fortified wall will be made of concrete structure.
xviii. The following issues w.r.t. tourists were collected and analyzed:
A survey was carried out at the existing tourist location of Gateway of India to work out potential tourists visiting the proposed Memorial Three days tourist count was taken with the help of well trained enumerators data collected with break up of International tourists and Domestic tourists, Local (MMR Region) and Outside MMR Region It is assumed that the tourists presently visiting Gateway of India would be the potential tourists for the proposed Memorial.
It is assumed that the tourists from Mumbai, repeatedly visiting Gateway of India (at present), may not visit Memorial every time.
Number of tourists visiting Elephanta Caves at present, could be considered a potential visitors for proposed Memorial.
According to survey carried out for 3 days for a peak season, the number of tourists on week- days are nearly 50% of number of tourist on Sundays and Holidays. Thus tourists count for Tuesday, Wednesday, Thursday and Friday are considered as 50% of tourists on Sunday.
According to the past data collected from Maharashtra Tourism Development Corporation (MTDC) the Seasonal variation is nearly 8% less than Annual Average Daily Tourist (AADT) from the month of February to September an 9.5 % higher than AADT from the month of October to December. Thus seasonal variation of 8.64%% has been considered for arriving at AADT. According to MTD Elephanta Caves, who can be considered as potential tourists visiting the proposed Memorial.5
Future tourist growth is considered as 10% per year based on the past trends..
xix. Annual average daily tourists at proposed Memorial would be 10,000.
xx. Total parking for 1343 nos. of cars, 216 nos. of taxi, 2nos. of mini buses, one tourist bus and one LCV are proposed.
xxi. MCGM has proposed dedicated multi level parking facility at Kala Ghoda and at S.F Mukharjee Chowk xxii. Following issues have taken into account w.r.t. Traffic Dispersal:
Free shuttle service (Mini bus) facilities are proposed for dispersal of tourist from; Chhatrapati Shivaji Terminal (CST) to take off points, Church Gate to take off points, Kala Ghoda to take off points This will avoid direct entry of cars to the take off points and will be helpful to existing parking also.
xxiii. Future Impact of Metro services were also analysed which are as follows:
Metro services are expected to operate in next 5 years. It is expected that local tourist will shift their mode of transport from cars to metros. However, growth of 10% is considered to prepare a master plan for traffic dispersal system.
This will help partly to reduce the parking requirements in future xxiv. Disaster Management Plan (DMP) was also analysed which is as follows:
Considering the large volume of tourists, disaster management plans are prepared for individual parking lots as well as for Memorial area This includes fire safety equipment public address system, signage's showing evacuation route, safety information, emergency contact numbers, mobile cardiac van, internal security arrangements, local police chowky, etc. Linking this DMP with DMP of State unit.
xxv. Evacuation Plans were also analysed which are as follows:
In case of disaster on Island following are the alternatives for evacuation of tourists:
1. Air lifting by Helicopter service
2. Deployment of Navy Boats 3 Fire Safety Equipment i. Fire Water Storage tank: Water storage tanks would be installed near each of the four corners 6 of the memorial. Pipelines would be connected from these tanks to every nook and corner of the Memorial so that necessary actions could be taken as soon as possible. These tanks would be automatically replenished with water from the sea ii. Fire Alarm System: Fire Alarm system consisting of smoke detectors, heat detectors shall be provided in the Corridors, and every part of the buildings. Manual call points hooter, public address system, main and repeater panels shall be provided as per the rules and regulations.
xxvi. CRZ demarcation has been carried out by NIO, Goa and the project site falls under CRZ-IV, Jetty for the transportation of the passengers will be in CRZ-1B. No mangroves are present near the site xxvii. There shall be zero discharge of waste water and garbage into the sea at the memorial site.
xxviii. There will be no dredging at the site xxix. The cost of the project is Rs. 1900 Crores xxx. Approvals: The Maharashtra Coastal Zone Management Authority (MCZMA) has recommended the proposal vide letter No. CRZ 2014/CR 25/TC 4 dated 23.01.2014.
xxxi. Wildlife issues: There are no eco-sensitive area within 10 km radius of the site.
xxxii. Forest land: No Forest land involved in the project xxxiii. There is no court case against tie project.
xxxiv. Public Hearing: The State Govt. has requested for exemption of public hearing as the construction of memorial for public at large and not a commercial activity, The EAC recommended to exempt the Public Hearing based on the submissions of the Govt. of Maharashtra."
6. The Expert Appraisal Committee (EAC) recommended the project subject to 'Specific' and 'General' conditions as follows:
"SPECIFIC CONDITIONS:
i. Consent for. Establishment" shall be obtained from State Pollution Control Board under Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.7
ii. All the construction shall be in accordance with CRZ Notification, 2011 and it amendments thereto.
iii. All the recommendations/conditions of the Maharashtra Coastal Zone Management Authority (MCZMA) vide letter no. CRZ2014/CR 25/TC 4 dated 23.01.2014, shall be strictly complied with.
iv. The evacuation management system shall be inter-alia based on maximum holding of the island, handling capacity of jetty and infrastructure and the maximum number of tourist who are proposed to be at the Memorial site at any point of time.
v. The maximum, number of Visitors to the memorial should be based on maximum carrying capacity as well as evacuation capacity on any unforeseen situation, after accounting for vessels who may be deployed in the transit of passengers/ process of tourists who are in the process of coming to the memorial or returning from it. Evacuation of people shall be deployed in transit of tourist to and from the Site, meaning thereby emergency evacuation by 3000 tourists/visitors from the memorial shall be a standalone facility.
vi. There shall be no dredging as informed by the Project Proponent.
vii. Transport of construction material to Raj Bhawan site:
Trucks chosen for transport should have low noise and low emissions and comply with the norms. However, best maintained trucks would have noise levels between 85 to 95 dBA per truck. Alternate route of transportation should also be explored. Transportation by sea route may also be considered.
viii. Pumping ready mix concrete from Raj Bhawan: Noise barriers are required to be installed to reduce the noise level due to pump operation, within the prescribed limits.
ix. Boats used for passenger transport shall use cleaner fuel such as CNG.
x. The parking facility shall be based on the peak time parking. Multi level parking shall be generated so as to reduce the parking and traffic congestion at Gatewy of India and Nariman Pont.
xi. Action plan shall have stand alone facilities including dedicated earmarked barge, helicopters, and medical relief agencies. The plan shall have details of division of labor among all stakeholders connected with the evacuation plan, and periodic safety drills should be undertaken.
8xii. NOC from the Western Naval Command be obtained for evacuation/emergencies as well as for the final height of the proposed memorial structure.
xiii. PP Shall make arrangements for collection and disposal of solid waste generated at boarding points and also at the Memorial. Composting of bio-degradable waste shall be carried out and non-degradable waste shall be transported to land for further disposal and treatment in accordance with the regulations.
xiv. The RO rejects shall be disposed at a point where sufficient dilution is available.
xv. The wastewater generated at the Memorial shall be treated and recycled for gardening/flushing etc. and in no case it shall be discharged into the sea. There shall be Zero discharge of waste from the Memorial project into the sea as indicated by the Project Proponent.
xvi. Lights which are least attractive to the birds, like red and blue light, can be considered.
xvii. Areas would be made available on higher floors for the assembly of large crowds, vertical transfers (airway) will be made available in flood/storm/Tsunami situations.
xviii. Clearances from Fire Department shall be obtained for the project, who shall regularly inspect the devices.
xix. Adequate number of free boats, helicopters shall be in standby or immediate availability mode so as to evacuate the visitors from the memorial on any unforeseen situation.
xx. Detailed on-site and off-site Emergency Management Plan shall be put in place under the supervision of District Collector. Periodical review and mock drill shall be conducted under the supervision of District Collector xxi. At least a ten bedded hospital shall be established including three beds for VIPs and other for general tourists.
xxii. There should not be any impact on marine life at the time of driving sheet piles and also boundary wall should be designed for Tsunami/ Storm Surge.
xxiii. The project proponent shall set up separate environmental management cell for effective implementation of the stipulated environmental safeguards under the supervision of a Senior Executive.
xxiv. Corporate Environment Responsibility:
a. The Company shall have a well laid down Environment Policy approved by the Board of Directors 9 b. The Environment Policy shall prescribe for standard operating process/procedures to bring into focus any infringements/ deviation/violation of the environmental or forest norms/conditions.
c. The hierarchical system or Administrative Order of the company to deal with environmental issues and for ensuring compliance with the environmental clearance conditions shall be furnished.
d. To have proper checks and balances, the company shall have a well laid down system of reporting of non- compliances/ violations of environmental norms to the Board of Directors of the company and/or shareholders or stakeholders at large B. GENERAL CONDITIONS:
i. Appropriate measures must be taken while undertaking digging activities to avoid any likely degradation of water quality.
ii. Full support shall be extended to the officers of this Ministry/ Regional Office at Nagpur by the project proponent during inspection of the project for monitoring purposes by furnishing full details and action plan including action taken report in respect of mitigation measures and other environmental protection activities.
iii. A six-Monthly Monitoring report shall need to be submitted by the project proponents to the Regional Office of this Ministry at Nagpur regarding the implementation of the stipulated conditions.
iv. Ministry of Environment, Forests & Climate Change or any other competent authority may stipulate any additional conditions or modify the existing ones, is necessary in the interest of environment and the same shall be complied with.
v. The Ministry reserves the right to revoke this clearance if any of the condition Stipulated are not complied with the satisfaction of the Ministry vi. In the event of a change in project profile or change in the implementation agency, a fresh reference shall be made to the Ministry of Environment, Forest & Climate Change.
vii. The project proponents shall inform the Regional Office as well as the Ministry the date of financial closure and final approval of the project by the concerned authorities and the date of start of land development work.
viii. A copy of the clearance letter shall be marked to concerned Panchayat/local NGO, if any, from whom any suggestion/ representation has been made receive while processing the proposal.10
ix. Full support should be extended to the officers of this Ministry's Regional Office at Nagpur and the offices of the Central and State Pollution Control Board by the project proponents during their inspection for monitoring purposes, by furnishing; full details and action plans including the action taken reports in respect of mitigative measures and other environmental protection activities.
x. The funds earmarked for environmental protection measures shall be kept in separate account and shall not be diverted for other purpose. Year-Wise expenditure shall be reported to this Ministry and its concerned Regional Office.
4. These stipulations would be enforced among others under the provisions of water Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution Act 1981, the Environment (Protection) Act, 1986, the Public Liability (Insurance) Act, 1991 and EIA Notification, 1994 including the amendments and Rules made thereafter.
5. All other statutory clearances such as the approvals for storage of diesel from Chief Controller of Explosives, Fire Department, Civil Aviation Department, Forest Conservation Act, 1980 and Wildlife (Protection) Act, 1972 etc. shall be obtained, as applicable by project proponents from the respective competent authorities.
6. The project proponent shall advertise in at least two local Newspapers widely circulated in the region, one of which shall be in the vernacular language informing that the project has been accorded Environmental and CRZ Clearance and copies of clearance letters are available with the State Pollution Control Board and may also be seen on the website of the Ministry of Environment, Forests && Climate Change at http://www.envfor.nic.in. The advertisement should be made within Seven days from the date of receipt of the Clearance letter and a copy of the same should be forwarded to the Regional office of this Ministry at Nagpur.
7. This Clearance is subject to final order of the Hon'ble Supreme Court of India in the matter of Goa Foundation Vs. Union of India in Writ Petition (Civil) No.460 of 2004 as may be applicable to this project.
8. Status of compliance to the various stipulated environmental conditions and environmental safeguards will be uploaded by the project proponent in its website.
9. Any appeal against this clearance shall lie with the National Green Tribunal, if preferred, within a period of 30 days as prescribed under Section 16 of the National Green Tribunal Act, 2010
10. A copy of the clearance letter shall be sent by the proponent to concerned Panchayat, Zilla Parisad/Municipal Corporation, Urban Local Body and the Local NGO, if any, from whom suggestions/ representations, if any, were received while processing the proposal.11
The clearance letter shall also be put on the website of the company by the proponent.
11. The proponent shall upload the status of compliance of the stipulated Clearance conditions, including results of monitored data on their website and shall update the same periodically. It shall simultaneously be sent to the Regional Office of MoEF&CC, the respective Zonal Office of CPCB and the SPCB.
12. The environmental statement for each financial year ending 31 March in Form-V as is mandated to be submitted by the project proponent to the concerned State Pollution Control Board as prescribed under the Environment (Protection) Rules, 1986, as amended subsequently, shall also be put on the website of the company along with the status of compliance of Clearance conditions and shall also be sent to the respective Regional Offices of MoEF&CC by e-mail."
7. The impugned EC notes the information considered for amendment in the revised proposal as follows:
"2. The proposal was considered by the EAC in its 22nd meeting held on 11-13 October, 2017 and 30 th. meeting held on 18-20 April, 2018. The project proponent submitted following information:
(i) The proposed project is to erect a memorial in the form of an equestrian statue of Chhatrapati Shivaji Maharaj on a reclaimed island in the Arabian Sea in . the Back Bay area. The proposed location is at 1.2 km southwest of Raj Bhavan 3.6 Km southwest of Girgaon jetty and 2.6 km west of Nariman point
(ii) The proposed monument is to be constructed on an oval shaped rock out crop identified for the purpose by the Govt. of Maharashtra. The basalt outcrop located at 18'55'33"N and 72°47'25"E is situated at the intersection of the Back Bay and the Arabian Sea, usually submerged at high tide and the rock emerges at low tide.
(iii) The site location is owned by Mumbai Port Trust who has accorded NOC for the site vide their letter no DC/C- Statue-Shivaji M/(122)/3846 dated 30 th August, 2015.
(iv) There is no eco sensitive area / National Park / Sanctuaries located within 10 Km of project area. There is no. forest land involved in the project.
(v) The proposed site falls in CRZ IV 'A' area.
(vi) The case of CRZ and Environmental Clearance for the project was considered by the EAC in its meeting held on 9 th February 2015 and recommended for grant of Environmental and CRZ Clearance. Accordingly, Environmental & CRZ Clearance was issued by MoEFCC vide File No.11-4/2015-IA-111) dated 23 rd February, 2015.
12(vii) During detail planning of the project, certain changes have been made by Government of Maharashtra in the earlier plan. For earlier proposal EC was already obtained. Due to the change in the proposal, application for amendment in Environmental clearance has been submitted.
(viii) The monument includes 126 m high equestrian statue of Chhatrapati Shivaji Iviaharaj placed on a two tiered pedestal of 84 m height reaching to an overall height of 210 rh above mean sea level. The pedestal would accommodate a series of elevators to approach the base of the statue and also house a museum and a virtual reality based immersive experience for visitors.
(ix) An appropriate Corrosion Resistant Bronze alloy will be considered for the skin of the sculpture. Nickel-Copper- Zinc of a suitable composition may be considered based on its and other characteristics during casting and welding processes. The material of pedestal is proposed as M60 concrete with optimum use of silica fume and fly ash which in terms solves the problem of dumping of fly ash on the fertile land and provides more strength and durability to the structure.
(x) A fortified wall of 14 m from CD will be erected all around the island to protect the area from sea water.
(xi) Revetment around the island and set of breakwaters in North (228 m) and South (382 m) will be constructed to ensure wave tranquility at berthing locations. The armour layer of Breakwater is proposed of tetrapod or rock.
(xii) A total of about 13.15 ha (Phase-1: 7.18 ha & Phase-11 for future expansion: 5.97 ha) has been proposed to be developed with various other ancillary facilities like Art museum, Amphitheatre & Helipad Complex, Exhibition gallery, Landscaping and open space of viewing and galleries, cafeteria, lavatories, stalls and offices, Security installations for safety and disaster management system, Wastewater treatment (S.TP, Capacity 2X130 KLD = 260 KLD), solid waste management facility and environmental safeguards facilities, Berthing jetty for embarkation and disembarkation of tourists, 10 bedded hospital and 120 bedded Staff Quarter beside the memorial.
(xiii) The project details are as follows:
(a) The propose changes and its impact on environment as under:-
S. Project Original Revised Remarks/
No. feature proposal proposal additional
impacts on
environment
1. Overall 190m (including 210m Overall height
height pedestal 30 m (including increased. No
and statue: 160 pedestal 84 m additional impact
m) and statue 126) on environment
wrt MSL NOC from AAI for
increased height
13
received on 27 th
July 2017
2. Area of Area: 15.6 Ha Planned in two N o ad d i ti o n al
proposed phases: Phase im p ac t o n
island e n v i r on m en t h as
reclamation
I: 7.18 ha and been envisaged.
Phase II: 5.97 Location is same
Ha
3 Sea Wall height 13m 14 m S e a wal l h e ig h t
in c r e as e d 1 m e te r
ac h i e v ing n o
s p l as h z on e ( 1 4
m ) . N o ad d itio n al
im p ac t o n
e n v i r on m en t h as
b e en e n v i s ag e d .
4 Pedestal Three layer Two tired H e ig h t a n d s iz e of
Design pedestal: structure p e de s tal
in c r e as e d. No
First level of stepping back
ad d itio n al im p ac t
pedestal: to create on e nv i r o nm e n t
140m X 140m X stepped tier has b e en
10m effect. The size envisaged
Second level of of the pedestal
pedestal: is maximum
110m X 110m X 160mX60m in
10m plan
Third level of
pedestal: 80m x
80m X 10m
5. Transportation Ready mix Ready mix Mode of
of Construction concerete of M60 concrete tr a n s p o r tati o n of
material c o n s tr u c ti o n
grade will be mounted
m ate r i al h as b e en
pumped from barges will be c h an g e d.
the Raj Bhawan used for A d eq u ate m e a s u re
side through 30 transport of to p r e ve n t
mm diameter M60 grade c o n tam in atio n d u e
HDPE pipeline concrete till the to m ate r i al
tr a n s p o r t an d
with help of island h a n dl ing has
pump of reclaimed. After al re ad y b e en
capacity 4000 reclamation of p r op o s e d. H en ce
HP island, the no a d d i tio n al
material will be im p ac t on
e n v i r on m en t is
transported on
envisaged
barges from to
the batching
plant to be
installed on the
proposed
island.
6 Breaker water The armour The armour T h e arm o u r l ay e r
layer layer of layer is m ate r i al is
c h an g e d. No
breakwater will proposed of
ad d itio n al im p ac t
be made of suitable on e nv i r o nm e n t
tetrapod secondary has b e en
layer units envisaged
7. Fortified wall The fortified The fortified C o ns tr u c ti o n
wall will be wall will be m ate r i al of
f o r ti f i e d wal l h a s
made of made of laterite
b e en ch a ng e d . No
concrete stone with lime ad d itio n al im p ac t
structure cement mortar on e nv i r o nm e n t
has b e en
envisaged.
(b) Earlier area assigned for infrastructure facilities are as under:-
Sl. Description Area (sqm) 14 Total Area Cover (Rock Surface Area) 156000.00 1 Area of pedestal at ground floor 16237.00 2 Area of pedestal at first floor 10024.00 3 Area of pedestal at second floor 5302.00 4 Area of residence for stall security 6000.00 5 Roads and platforms 28410.00 6 STP & WTP 409.00 7 Public toilets 300.00 8 Helipad 790.00 9 Jetty (2 main, 1 jetty for VIP and 1 jetty 100 x 12 10 for services)
(c) Revised proposed area assigned for infrastructure facilities are as follows:-
Sl. Description Area (sqm)
Phase-I Phase-II Total
Site area 71822.56 59720.44 131543.0
1
Ground 18353.09 17255.62 35608.71
2
coverage
Built up area 11245.72 -- 11245.72
3
of ancillary
buildings
Built up area 48624.17 -- 48624.17
4
of pedestal
Total built up 59869.9 17255.62 77125.52
5
area
Green area 18154.68 24389.78 42544.46
6
Hard scaped 35314.79 18075.04 53389.83
7
area
VIP jetty (1 1386.32 -- 1386.32
8
no.)
Visitors jetty 1083.30 -- 1083.3
9
(1 no.)
Oceanarium -- 10431.07 10431.07
10
Convention -- 6824.55 6824.55
11
centre
(xiv) Approximately 198 KLD of water will be required.
Source of Water will be Sea water treated in desalination plant/Municipal Supply. There will be Zero discharge for this project.
(xv) No dredging is involved in the project. (xvi) Material requirement for the project is estimated as:
Cement -105000 MT, Sand - 75000 M 3 , Stone chips - 150000 M3 , Steel reinforcement - 33000 MT, Quarry run stone - 80,000 MT.. Filter layer stone - 7000 M 3 , Armour layer stone 2,22,000 MT, Sand/Soil for reclamation - 1000000 M 3 , Steel liner for piling - 18000 MT. The 15 quantity may change on detailed engineering as the design will be done by the contractor after award of the work. (xvii) Steel, granite, laterite, sand will be transported in barges. Ready mix concrete mounted barges will be used to transport M60 grade concrete from Mumbai Port Trust (MbPT) Jetty to the Island till reclamation of the island. After that construction material will be transported in barges to the batching plant on the proposed island.
(xviii) Disaster Management Plan, fire evacuation plan, adequate safety measures have been appropriately addressed in the proposal, (xix) There is no R&R issue involved.
(xx) There is no additional impact on Environment is envisaged due to the changes in project features. (xxi) Maharashtra Coastal Zone Management Authority in its 122 nd meeting held on 30 th October, 2017 recommended the proposed changes made in proposal of 'Proposed construction of Chhatrapati Shivaji Maharaj Memorial along with equestrian statue of Chhatrapati Shivaji Maharaj' in the Arabian Sea of the coast of Mumbai, Maharashtra vide letter No. CRZ-2017/CR-330/FC 4 dated 16 th February, 2018.
(xxii) The cost of the project is estimated at Rs. 2300 Crores for Phase-I and Rs. 3600 Crores for Phase I + Phase II.
3. The committee considered the proposal for amendment in Environmental and CRZ Clearance issued earlier to the project and recommended the necessary amendment subject to the additional conditions. Based on the information furnished by the Project proponent and the EAC recommendations, the Ministry hereby accord amendment to Environmental and CRZ Clearance Letter No. F.No.11-412.015-1A,111 dated 23 rd February, 2015 with following additional conditions.
(i) All the conditions stipulated in the Environmental and CRZ Clearance letter No. 11-4/2015-IA.III dated 23rd February, 2015 shall remain unchanged.
(ii) The project shall be dove tailed with the Coastal Zone Management plan to be drawn up by the State Government, in compliance to NGT orders. Full compliance to the NGT orders shall be ensured.
(iii) The marine biodiversity management plan earlier recommended by the Committee to cater to disturbances during the various phases of the project shall be drawn up and implemented in consultation and with the approval of the State Biodiversity Board.
(iv) A plan shall be drawn up in consultation with the fisheries department for the management of fishes and fishing operations during the various phases of the project. The same will also be implemented in consultation with the fisheries department.
(v) The project proponents will certify that there is no legal restriction on the proposed project activities at the proposed site.
16(vi) The outfall from the desalination plant shall be decided based on modelling study and in consultation with SPCB.
4. This amendment in the Environmental and CRZ Clearance letter No. 114/2015-'AM dated 23rd February, 2015 is subject to final order of the Hon'ble Bombay High Court in PIL No. 06/2017 and Hon'ble National Green Tribunal (Western Zone) in 0.A No. 108 of 2016.
5. As per the Ministry's Office Memorandum F.No.22- 65/2017-1A.111 dated 1st May 2018, the project proponent is required to prepare and implement Corporate Environment Responsibility (CER) Plan. As per para 6(11) of the said O.M. appropriate funds shall be earmarked for the activities such as infrastructure creation for drinking water supply, sanitation, health, education, skill development, roads, cross drains, electrification including solar power, solid waste management facilities, scientific support and awareness to local farmers to increase yield of crop and fodder, rain water harvesting, soil moisture conservation works, avenue plantation, plantation in community areas. The activities proposed under CER shall be restricted to the affected area around the project. The entire activities proposed under the CER shall be treated as project and shall be monitored. The monitoring report shall be submitted to the regional office as a part of half yearly compliance report, and to the District Collector. It should be posted on the website of the project proponent.
6. This issues with the approval of competent authority."
8. We have heard learned Counsel for the parties at length.
Analysis and Finding
9. Main contention raised on behalf of the appellant is that the project involves huge cost and clearances are influenced by extraneous considerations. Project is on the rocky outcrop and area of 159600 square meters will be exposed even during the high tide. This will block the flow of water during high tide, and hence can change the waves, currents and shoreline. There will be movement of tourists through fishing areas, adversely affecting the health of aquatic life. Huge waste will be generated which will consume the oxygen. Reclamation activity will adversely affect the environment. Illumination during construction and post-construction 17 would adversely affect marine birds. Many birds and animals are affected by stray light intruding into the night world, confusing the natural patterns, deterring them from established foraging areas, and affecting their breeding cycles (causing premature breeding). Additional 10,26000 litres per day of water will be required for sanitation and drinking for local tourists. An additional arrangement for the supply of 10,89,600 litres per day will have to be made by MCGM or Memorial Authority.
10. Replies have been filed by the PP as well as MoEF&CC. According to the PP, before the grant of EC, NEERI prepared a comprehensive report on environmental impact assessment covering mitigation measures required and also post project monitoring programme. National Institute of Oceanography (NIO) also prepared a detailed report outlining the impact assessment of the project on marine environment and suggesting requisite mitigation measures. Since the two reports comprehensively and conclusively deal with all environmental issues, and EC having been granted on consideration thereof, on recommendations of the EAC, there is no infirmity in the EC. The components of the project - museum, gallery, aquarium, common facilities will not have any adverse impact.
Justification for location of the project in the CRZ area has been duly considered and found suitable from environmental point of view. Purpose of this project is to spread awareness about the policies, principles and administration of Chhatrapati Shivaji Maharaj. There is effective traffic management plan which is part of the Environmental Management Plan.
There is no plan to undertake dredging work. Public hearing has been dispensed with on the request of Maharashtra Government in view of large public interest which is permissible as per amendment dated 17.2.2015 to CRZ notification, 2011. Project will provide employment opportunities to citizens. In further affidavit filed on 16.07.2018, the PP brought on record 18 the amended EC envisaging increase the height of the project from 210 Mtrs. to 212 Mtrs.
11. The stand of the MoEF&CC is that the project was duly appraised by the EAC as per minutes of 145th meeting held on 09.02.2015. The said minutes inter-alia show:
"3.3.2 PP made a presentation and informed that:
i. The Government of Maharashtra intends to establish a memorial and statue of Chhatrapati Shivaji Maharaj, off Nariman Point, Mumbai. The memorial is aimed at not only providing a place for people to visit, but also create an internationally acclaimed landmark of our country. ii. The memorial shall be a 190 m high statue of the Chhatrapati Shivaji Maharaj.
iii. The identified location is an oval shaped Rocky out crop at latitude 18°55' 33.8" N and longitude 72° 47'25.0" E, of approximately 650 m x 325 m in size. The identified location is 1.2 km southwest of Raj Bhavan, 3.6 km southwest of the Girgaon jetty and 2.6km west of Nariman point.
iv. The statue will be built on rocky outcrop, which is exposed only during low tide and hence sheet pile walls are proposed to be erected along the boundary of the project site to prevent sliding and wall of 13 m height is proposed to protect the area from sea water. There should not be any impact on marine life at the time of driving sheet piles and also boundary wall should be designed for Tsunami/ Storm Surge.
v. The proposed project area is under the jurisdiction of Port of Mumbai. vi. Following Clearances/Permissions have already been obtained:
Terms of Reference (TOR) from MOEFCC. Government Resolution passed for the project NOC from Mumbai Port Trust NOC from Western Naval Command NOC from Fisheries Dept. NOC from BNHS vii. Following Studies have been carried out:
Geotechnical Study Conducted and report prepared by Indian Institute of Technology (IIT, Mumbai) EIA and Wave Behavior Study and Report made by National Environmental Engineering Research Institute (NEERI, Nagpur) and National Institute of Oceanography (MO, Goa). Environmental Management Planning, Disaster and Safety Management Plan prepared by Fine Envirotech Engineers, Mumbai.
viii. The areas assigned for different infrastructure facilities as follows:
Description Area (sq.m.)
Sr. no.
1 Total area cover (Rock surface area) 15.96 ha
2 Area of pedestal at ground floor 16237.00
19
3 Area of pedestal at first floor 10024.00
4 Area of pedestal at second floor 5302.00
5 Area of residences for staff security 6000.00
6 Roads and platforms 28410.09
7 STP and WTP 409.00
8 Public toilets 300.00
9 Helipad 790.00
10 Jetty (2 main, 1 jetty for VIP and 1 100 12
jetty for service)
ix. The central core of the pedestal has to support the statue of
Chhatrapati Shivaji Maharaj, which is about 160 m in height from the base.
x. It consists of three layer pedestal of concrete (M60 grade) with stone cladding of natural stone (Granite). The natural stone granite is suggested by the Department of Earth Science of IIT Bombay, Mumbai.
xi. The height of pedestal is 32.5 m. The first level of pedestal is about 140 m x 140 m x 10 m in dimension; second level of pedestal is about 110 m x 110 m x 10 m; the dimension of third level of pedestal is 80 m x 80 m x 10 m.
xii. The material for pedestal is proposed as M60 concrete with optimum use of silica fume or fly ash which in turn solves the problem of dumping of fly ash and fume on the fertile land, and provides more strength and durability to the structure. xiii. First sheet pile walls will be erected along the boundary of the project site. Sufficient number of piles will be driven in the rocky outcrop to prevent sliding. The construction of sheet piles is planned during the non-monsoon period and is expected to be completed in 6 months.
xiv. Ready mix concrete of M60 grade will be pumped from the Raj Bhavan side through 300 mm diameter HDPE pipeline with help of pump of capacity 4000 Hp.
xv. The steel and 40,000 m2 natural granite stones will be transported from Mumbai Port to the project site through barges. The armour layer of breakwater will be made of tetrapod to withstand the expected design wave height. A temporary jetty will be constructed for unloading the materials and machinery transported through the barge. xvi. The berthing jetty will be on concrete piles. The fortified wall will be made of concrete structure.
xvii. The following issues w.r.t. tourists were collected and analyze:-
A survey was carried out at the existing tourist location of Gateway of India to work out potential tourists visiting the proposed Memorial.
Three days tourist count was taken with the help of well trained enumerators, data collected with break up of International tourists and Domestic tourists, Local (MMR Region) and Outside MMR Region.
It is assumed that the tourists presently visiting Gateway of India would be the potential tourists for the proposed Memorial.20
• It is assumed that the tourists from Mumbai, repeatedly visiting Gateway of India (at present), may not visit Memorial every time.
Number of tourists visiting Elephanta Caves at present, could be considered as potential visitors for proposed Memorial. According to survey carried out for 3 days for a peak season, the number of tourists on week- days are nearly 50% of number of tourist on Sundays and Holidays. Thus tourists count for Tuesday, Wednesday, Thursday and Friday are considered as 50% of tourists on Sunday.
According to the past data collected from Maharashtra Tourism Development Corporation (MTDC) the Seasonal variation is nearly 8% less than Annual Average Daily Tourist (AADT) from the month of February to September and 9.5 % higher than AADT from the month of October to December. Thus, seasonal variation of 8.64% has been considered for arriving at AADT. According to MTDC's past data, 25% of tourists from Gate Way of India visit Elephanta Caves, who can be considered as potential tourists visiting the proposed Memorial. Future tourist growth is considered as 10% per year based on the past trends.
xviii. Annual average daily tourists at proposed Memorial would be 10,000.
xix. Total parking for 1343 nos. of cars, 216 nos. of taxi, 2nos. of mini buses, one tourist bus and one LCV are proposed. xx. MCGM has proposed dedicated multi level parking facility at Kala Ghoda and at S.P. Mukharjee Chowk.
xxi. Following issues have taken into account w.r.t. Traffic Dispersal:
Free shuttle service (Mini bus) facilities are proposed for dispersal of tourist from; Chhatrapati Shivaji Terminal (CST) to take off points, Church Gate to take off points, Kala Ghoda to take off points.
This will avoid direct entry of cars to the take off points and will be helpful to existing parking also.
xxii. Future Impact of Metro services were also analysed which are as follows:
Metro services are expected to operate in next 5 years. It is expected that local tourist will shift their mode of transport from cars to metros. However, growth of 10% is considered to prepare a master plan for traffic dispersal system This will help partly to reduce the parking requirements in future.
xxiii. Disaster Management Plan (DMP) was also analysed which is as follows:
Considering the large volume of tourists, disaster management plans are prepared for individual parking lots as well as for Memorial area This includes fire safety equipments, public address system, signage's showing evacuation route, safety information, emergency contact numbers, mobile cardiac van, internal security arrangements, local police chowky, etc. Linking this DMP with DMP of State unit 21 xxiv. Evacuation Plans were also analysed which are as follows:
In case of disaster on Island following are the alternatives for evacuation of tourists:
1. Air lifting by Helicopter service
2. Deployment of Navy Boats
3. Fire Safety Equipment i. Fire Water Storage tank: Water storage tanks would be installed near each of the four corners of the memorial. Pipelines would be connected from these tanks to every nook and corner of the Memorial so that necessary actions could be taken as soon as possible. These tanks would be automatically replenished with water from the sea.
ii. Fire Alarm System: Fire Alarm system consisting of smoke detectors, heat detectors shall be provided in the Corridors, and every part of the buildings. Manual call points hooter, public address system, main and repeater panels shall be provided as per the rules and regulations.
iii.CRZ demarcation has been carried out by NIO, Goa and the project site falls under CRZ-IV, Jetty for the transportation of the passengers will be in CRZ-1B. No mangroves are present near the site.
iv. There shall be zero discharge of waste water and garbage into the sea at the memorial site.
v. There will be no dredging at the site.
vi. The cost of the project is Rs. 1900 Crores. vii. Approvals: The Maharashtra Coastal Zone Management Authority (MCZMA) has recommended the proposal vide letter no. CR.Z2014/CR 25/TC 4 dated 23.01.2014.
viii. Wildlife issues: There are no eco sensitive area within 10km radius of the site.
ix. Forest land: No Forest land involved in the project. x. There is no court case against the project.
3.3.3 The EAC after deliberations recommended the project for the grant of Environmental and CRZ Clearance with the following conditions:
All the construction shall be in accordance with CRZ Notification, 2011 and its amendments thereto.
i. All the recommendations/conditions of the MCZMA shall be strictly complied with.
ii. The evacuation management system shall be inter-alia based on maximum holding capacity of the island, handling capacity of jetty and infrastructure and the maximum number of tourist who are proposed to be at the Memorial site at any point of time. iii. The maximum number of visitors to the memorial should be based on maximum carrying capacity as well as evacuation capacity on any unforeseen situation, after accounting for the vessels who may be deployed in the transit of passengers/ tourists who are in the process of coming to the memorial or returning from it. Evacuation of people shall be devised in a manner taking into account the availability of boats, discounting the boats deployed in transit of tourist to and from 22 the site, meaning thereby emergency evacuation by 3000 tourists/visitors from the memorial shall be a standalone facility.
iv. There shall be no dredging as informed by the Project Proponent.
v. Transport of construction material to Raj Bhawan site:
Trucks chosen for transport should have low noise and low emissions and comply with the norms. However, best maintained trucks would have noise levels between 85 to 95 dBA per truck. Alternate route of transportation should also be explored. Transportation by sea route may also be considered.
vi. Pumping ready mix concrete from Raj Bhawan: Noise barriers are required to be installed to reduce the noise level due to pump operation, within the prescribed limits. vii. Boats used for passenger transport shall use cleaner fuel such as CNG.
viii. The parking facility shall be based on the peak time parking.
Multi level parking shall be created so as to reduce the parking and traffic congestion at Gateway of India and Nariman Point. ix. Evacuation plan shall have stand alone facilities including dedicated earmarked boats/barge, helicopters, medical relief agencies. The plan shall have details of division of labor among all stakeholders connected with the evacuation plan, and periodic safety drills should be undertaken. x. NOC from the Western Naval Command be obtained for evacuation/emergencies as well as for the fmal height of the proposed memorial structure.
xi. PP shall make arrangements for collection and disposal of solid waste generated at boarding points and also at the Memorial. Composting of bio-degradable waste shall be carried out and non-degradable waste shall be transported to land for further disposal and treatment in accordance with the regulations.
xii. The RO rejects shall be disposed at a point where sufficient dilution is available.
xiii. The wastewater generated at the Memorial shall be treated and recycled for gardening/flushing etc. and in no case it shall be discharged into the sea. There shall be zero discharge of waste from the Memorial project into the sea as indicated by the Project Proponent. xiv. Lights which are least attractive to the birds, like red and blue light, can be considered.
xv. Areas would be made available on higher floors for the assembly of large crowds, vertical transfers (airway) will be made available in flood/storm/Tsunami situations. xvi. Clearances from Fire Department shall be obtained for the project, Who shall regularly inspect the devices. xvii. Adequate number of free boats, helicopters shall be in standby or immediate availability mode so as to evacuate the visitors from the memorial on any unforeseen situation. xviii. Detailed on-site and off-site Emergency Management Plan shall be put in place under the supervision of District Collector. Periodical review and mock drill shall be conducted under the supervision of District Collector.
23xix. At least a ten bedded hospital shall be established including three beds for VIPs and other for general tourists. xx. There should not be any impact on marine life at the time of driving sheet piles and also boundary wall should be designed for Tsunami/ Storm Surge."
12. It is not necessary to refer to the replies filed by the State Bio-
diversity Board and MCZMA, in support of the PP.
13. We find that the project is preceded by scientific studies and all environmental safety measures and mitigation measures have been taken based on expert studies. Learned Counsel for the appellant fairly stated that neither he himself has expertise to challenge the studies undertaken nor there is any material to question the said studies. Thus, no fault can be found with the impugned EC dated 23.02.2015 as amended on 15.06.2018. The EAC has addressed environmental concerns while recommending grant of EC in the light of studies undertaken by the NEERI and NIO. Except bald contention about the adverse impact on biodiversity and environment on account of water consumption and water discharged, which aspects have been duly covered by the EMP, no meaningful argument has been addressed to point out any infirmity in the process for grant of EC. Funds have been duly earmarked for health, sanitation, skill development, soil conservation, plantation. Mitigation measures are to be duly implemented as per 'General' and 'Specific' conditions. The apprehension expressed by the appellant is thus ill founded. Exemption from public hearing has been granted in view of the fact that no displacement has to take place by the project and no rehabilitation or resettlement is involved as the site is in the sea. Such exemption is admittedly permissible for Memorials and Statutes, not involving issues of displacement and resettlement, as per notification No. S.O. 556(E), dated 17.2.2015, issued by the MoEF&CC, amending CRZ notification, which 24 notification is not challenged. There is an integrated plan to protect coastal integrity, maintaining biotic and abiotic components on landward side as well as in the coast front. The project has been viewed to be in larger national and public interest to project the values of one of our greatest national Heroes.
The appeal is accordingly dismissed without prejudice to the proceedings pending before the Bombay High Court, mentioned earlier.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM May 11, 2022 Appeal No. 15/2017(WZ) DV 25