National Green Tribunal
Diago Francis Rodrigues vs State Of Goa Through Captain Of Ports on 13 August, 2020
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE BENCH)
PUNE
(Video Conferencing)
**********
Original Application No. 45 of 2015 (WZ)
IN THE MATTER OF:
Vanashakti & Anr
A public trust having
Its office at
19/21 Unique Industrial Estate
Twin Towers Lane, Prabhadevi,
Mumbai : 400 025 ......Applicant
Versus
State of Maharashtra & Ors. ......Respondent(s)
Counsel for Applicant(s):
Mrs. Gayatri Singh, Sr. Advocate alongwith
Mr. Zaman Ali and Ms. Ananya Kanoria, Advocates
Counsel for Respondent(s):
Mr. D.M. Gupte, Advocate for R-2, MCZMA
Mr. Yogesh Hatagade, Advocate for R-5
Mr. Raghunath B. Mahabal alongwith
Mr. Sachin Gore, Advocates for R-7
Mr. Rahul Garg, Advocate for MoEF&CC
With
Original Application No. 143/2015 (WZ)
(I.A. No. 64/2020 & 65/2020)
Mr. Diago Francis Rodrigues (Deceased)
Aged 68 years
R/o H.No. 105
Querim - Tiracol
Pernem, Goa ......Applicant
Verses
State of Goa & Ors. ......Respondent(s)
Counsel for Applicant(s):
Mr. Pronoy Kamat along with Mr. Prasad Shahpurkar
and Ms. Sweta B. Borkar, Advocates
1
Counsel for Respondent(s):
Mrs. Fawia M. Mesquita, Advocate for R-1 to 3
Mr. D.M. Gupte, Advocate for R-4
Mr. Yogesh Hatagade, Advocate for R-5
Mr. Raghunath B. Mahabal alongwith
Mr. Sachin Gore, Advocates for R-7
Mr. Rahul Garg, Advocate for MoEF&CC
With
Original Application No. 199/2017 (WZ)
(M.A. No. 411/2017 & 412/2017)
In the Matter of
Parshuram Uparkar
Indian Inhabitant
Residing at residing at 2/283
Bhagirathi Niwas, Telealia
Taluka Kankavali, Dist. Sindhudurgh ...... Applicant
Verses.
Union of India & Ors. ......Respondent(s)
Counsel for Applicant(s):
Mr. Akash Rebello, Mr. Bhuvan Singh &
Mr. Kartik Tiwari, Advocates
Counsel for Respondent(s):
Mr. Vijay Kulkarni, Advocate for R-3
Mr. Yogesh Hatagade, Advocate for R-5
Mr. Raghunath B. Mahabal alongwith
Mr. Sachin Gore, Advocates for R-7
Mr. D.M. Gupte, Advocate for MCZMA
Mr. Rahul Garg, Advocate for MoEF&CC
ORDER
PRESENT:
HON'BLE MR. JUSTICE SHEO KUMAR SINGH (JUDICIAL MEMBER) HON'BLE DR. SATYAWAN SINGH GARBYAL (EXPERT MEMBER) Reserved on: 13.08.2020 Uploaded on: 20.08.2020
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?2
1. By way of filing this application, the applicant in Original Application No. 45/2015 has prayed as follows:-
a) "Pass an Order restraining the Respondent-Company No. 7 from carrying out any dredging and/or in any manner interfering with broadening and deepening the mouth of the Kiranpani section of the Terekhol creek, including through the method of blasting.
b) Pass an order restraining the Respondent Company No. 7 from dumping material debris onto the mangroves in and around the Kiranpani section of the Terekhol creek.
c) Pass an order restraining the Respondent Company from repairing/expanding and/or constructing/new warlis/jetties.
d) Pass an order restraining the Respondent Company from constructing the Multi-Purpose Terminal near the Kiranpani section of the Terekhol creek."
2. The facts giving rise to the present application are that Aronda is situated in Sindhudurg District on the Maharashtra side of Kiranpani Creek which separates Goa and Maharashtra. It is located in an ecologically sensitive area. Annexed hereto and marked as Annexure A-1 is a Map showing the location of Kiranpani Creek in Aronda. The Kiranpani creek separates Goa and Maharashtra and is used as a common fishing ground by the fisherfolk of both states. Fishing villages dot the borders of the Creek. Tais Creek is officially recognised as a fishing zone and has been used for fishing purposes for several decades. The mouth of the creek where the bay begins is a shallow area which has natural rock formations which reduces the force of the seawater ingress during the tides and cyclones. The natural rock formation in the said Creek prevents water from gushing in and flooding the villages. There are 3 villages located on either side of the Creek, 2 on Goa side known as Keri and Palem villages and the other on Maharashtra side known as Around village, whose major source of livelihood is fishing. Approximately 20,000 people and more are dependent on fishing boats use the shoreline and creek areas 3 for fishing. Due to the rocks and narrow of the Creek, no big ships or barges can be used in this channel. This is not a navigational channel.
The jetty is proposed where the Creek is shallow, with expensive mudflats and lush mangroves which makes it unfit for large vessels to move in. For the last two decades no large vessel has landed on this Jetty. In response to a query under the RTI, reply was sent by Office of the Superintendent of Customs Shore Guard, Vengurla stating that the last boat that sailed was sailing boat (Galbat), which used to come in during high tides. The bunds along the Creek border were repaired in the year 2000 by the Khar Land Development Authority for protecting the human habitation and agricultural areas from sea water intrusion. The creek constitutes the border of the two states, viz. State of Maharashtra and State of Goa and at its widest breadth is not more than two kilometres. The distance between the borders of the two states at the proposed multi-purpose terminal is less than 1 kilometer.
3. On 01.11.2011 a Deed of Lease was signed between Maharashtra Maritime Board and White Orchid Estate Pvt. Ltd., Respondent No. 7 herein. A perusal of the said Deed shows that the Creek area on the Eastern side of the allotted waterfront described in the Schedule includes 500 sq. mts. Of intertidal land area and 1360 sq. mt. of undersater area between HTL and LTL. The Applicants crave leave to refer to and rely upon the said Deed as and when found necessary. The traditional rights of the fishing community have been interfered with by the MMB which did not have any authority to transfer rights which do not belong to it.
The MMB is not the owner of the inland waters. The waterfront land is under the supervision of the MMB who could not have leased the land and inland waters to Respondent No. 7. Part of the area is agricultural land, which has been illegally converted to non-agricultural land in 4 violation of the Land Revenue Code and Section 63-IA of the Bombay Agricultural Tenancy Act, and the remaining part which include inland waters have been traditionally used for fishing. The area falls under Khaguti forests where the fisher folk reside. The said fisher folk are also forest dwellers and no alternation on their rights could be done without first obtaining consent of the Gram Sabhas and without first setting their rights under the Scheduled Tribes and other Tradition Forest Dewellers (Recognition of Forest Rights) Act, 2006 and as held in the Supreme Court case in the Nyamgiri case (Orissa Mining Corporation Ltd. V/s MoEF, 2013)
4. Somewhere around 2011, land reclamation began in the vicinity of the Creek on the Maharashtra side. As a result of the dumping of debris, the mudflats and mangroves along the Creek were destroyed and the khar land bund was broadened and transformed into a motorable road.
Several complaints regarding the said destruction were made by the Grampanchayat in 2011. Subsequently, several resolutions were passed by the Gramsabha opposing the NOC given by the Panchayat and opposing the construction/repair of the jetties by Respondent No. 7 by an overwhelming majority. The Applicants crave leave to refer to and rely upon the said resolutions. Copies of the resolutions were also sent to the concerned authorities. Despite the objections by the Gram Sabha, the Respondent No. 7 continued the work of dumping of debris and reclaiming the coastal zones. Dredging work also commenced. Complaints were also made to the Maharashtra Maritime Board (MMB) regarding the dumping of debris/cement blocks. However, no action was taken in this regard.
5. On the pretext of being concerned about fisherfolk's rights, the original lease deed was modified by a Deed of Modification signed on 11.04.2012.
5By this modification, Respondent No. 7 was permitted to construct a Multi-Purpose Terminal. Contrary to the Environment Protection Act and Rules, the real effect and intention of this action was to confine the fishermen to the interior areas of the creek and thereby, prevent their access to the one leading to the bay. Despite not obtaining the clearances, the Respondent No. 7 has commenced activities for constructing the Multi-Purpose Terminal by dumping debris, reclaiming land for constructing jetties. Three jetties have been constructed, admittedly without the necessary permission. These jetties are being constructed on the western side. Hereto annexed is the satellite imagery of 11.06.2014 which shows the area in red where the 3 jetties are being constructed. The construction of these jetties commenced in 2012 when debris started being dumped onto mangroves.
6. On 26.12.2013, the Maharashtra Pollution Control Board (MPCB) granted consent to operate under Section 26 of the Water (Prevention and Control) Act. The said consent order could not have been given without first obtaining CRZ and environmental clearance. Surprisingly, the earlier consent orders and the last order allow hazardous material to be carried on heavy barges, even though the said passage in the creek is not a navigational channel. The fishing community through their organisation, Aronda Bachao Sangharsh Samiti, again protested when they were informed about the consent order but to no avail as is evident from the fact that the Respondent No. 7 has first constructed jetties and is now seeking to use by dredging the channel on the false premise that it is being done for "maintenance".
7. Maharashtra Maritime Board (MMB) has by its Order dated 01.12.2014 granted permission to Respondent No. 7 for dredging the channel. This is despite the fact that the said Creek area has always been used for fishing 6 purposes and is not suited to accommodate large ships. There is no navigation channel in the Kiranpani section of the Terekhol Creek, which can cater to large mechanised shipping vessels. The creek is shallow with mudflats, ideal for fishing and therefore, MMB could not have granted any permission for dredging in the creek. All this has been done without obtaining any clearance under the CRZ notification, 2011 and other necessary permissions. Despite the opposition and objections raised by the Gram-panchayats of the villages near the Creek the illegal work has continued unabated. Several meetings were held with the concerned departments and assurances were given that work would be stopped.
Once the work of deepening and widening the channel commences in full swing, the boats of the fishing community would be put out of operation since they will not be able to fish in creek waters.
8. In the month of December, 2014 the Respondent No. 7 attempted to blast open the mouth of the Creek in an attempt to allow mass ingress of sea water into the Creek. Since the fisher fold on the Goa side objected to this work, it was temporarily stopped. Blasting of the Creek would have let to ingress of high levels of water leading to floods in the border villages which stand the risk of being submerged. Not only would it have exposed the villages to great danger of inundation and flooding especially those long the sides of the Creek, but would have also destroyed mudflats and mangroves, fishing ground etc. thereby preventing traditional fishing activities from being carried out. The bridge across the creek will also be submerged as it was built with calculations made on previous water flow and pressure in the creek. No permission has been taken by the Project Proponent for carrying out blasting activities in the Creek. The channel being naturally shallow the creek is not fit for beg vessels being a rocky bay combined with mudflats and mangroves. The blasting activities pose 7 a big threat to the villages close to the creek as the present activities will lead to water gushing into the villages completely destroying the habitat in the area. The construction activities have adversely impaired regular tidal water exchanges into the wetlands along the creeks. Further, it also has a bearing on egress and ingress of fishing boats to the sea through the creek, interfering with the intertidal currents/waves of water in the sea. The wall has been built in CRZ areas thereby depriving the fisherfolk access to their boat mooring points.
9. In addition to that the applicant has taken a ground that the Maharashtra Maritime Board (MMB) could not have entered into a lease deed with Respondent Company and could not grant the additional land which is result for fishing advertise and which could not have been handed over to the private party, adversely affecting their right, and that the area on the eastern side was allotted to fishering activities and a wall has been constructed along the Creek preventing the fisherfolk from hurry access to the fishing area.
10. It is further alleged that (a) having illegally commenced construction of a Port and part-operation thereof without applying and/or obtaining mandatory (i) Environment Clearance (EC) under the Environment Impact Assessment Notification, 2006 ("EIA, 2006") from Central Government and (ii) CRZ Clearance under the Coastal Regulation Zone Notification, 2011 ("CRZ, 2011") from Central Government after obtaining recommendations from State Authorities, (b) carrying out illegal dumping and land-filling activities for reclaiming vast tracts of highly sensitive inter-tidal (CRZ-I & CRZ-III) areas, mudflats and mangroves at the proposed port location in direct violation of CRZ Notification, (c) directly affecting traditional fishing rights of local fishermen, including the Applicants here, by preventing them from fishing in the open creek, 8 which is admittedly a fishing zone and consequently, damaging their nets and fish-breeding grounds on account of large scale illegal reclamation,
(d) attempting to carry out large-scale dredging activities at the mouth of the creek without undertaking an environmental impact assessment under the EIA Notification, 2006.
11. It has been submitted by the learned counsel for the Respondent No. 5 that:
1. "Kiranpani Port is one of the minor ports listed in Part-X of the First Schedule to The Indian Ports Act, 1908 under the Control of Government of Maharashtra. The Kiranpani Port is thus an existing Port under the control of Government of Maharashtra from where the handing of Cargo viz. loading, unloading operations were and are being carried out since the enactment of The Indian Ports Act, 1908.
2. Respondent No. 5 is a Board established and constituted under the provisions of The Maharashtra Maritime Board Act, 1996 for the purpose of administration, control and management of the minor ports and matter connected therewith and incidental thereto in the State of Maharashtra.
3. The Government of Maharashtra has declared a policy for construction of multipurpose jetties on 19/08/2005 to promote transportation of cargoes through short-sea shipping. As per the said Policy r/w sec 24 of MMB Act, 1996, The Respondent No.5 being statutory authority is authorized to enter into a contract for leasing waterfront, Jetty, waterway and corresponding infrastructural facilities for development of a Multi-Purpose Terminal for a term not exceeding 5 years which could be extended for further period upto 30 years.
4. As per the Policy dated 19/8/2005, the Respondent no.5 considered the Project of Respondent no. 8 for the purpose of setting up the Multipurpose Terminal for handling cargo ("Project"). The said policy provides that the intending developer of the said Project should apply to Respondent no.5.
Accordingly the respondent no.8 vide letter dated 19/11/2010 approached the Respondent no. 5 for a permission to utilized the existing cargo Jetty lying idle at Aronda on rental basis for handling cargos. The proposal for utilizing the existing cargo Jetty lying idle at Aronda was examined by Regional Port Officer ("RPO"), Vengula group of Ports and submitted his report with necessary recommendations. The Respondent no. 5 9 accordingly vide its letter dated 02/12/2012 granted permission to Respondent no. 8 as provision of Maharashtra Maritime Board Act, 1996 and the Indian Port Acts, 1908 for export of shipment of approximate 2,00,000 MT of Iron Ore for a period of 11 month. Thereafter the Respondent no. 8 submitted a proposal for development of Multipurpose Terminal in Terekhole Creek in terms of the Policy dated 19/08/2005. Along with the said report Respondent no. 8 also submitted Techno-Economy Feasibility Study Report, non-refundable processing fees of Rs.5 Lakh and financial for the Last 3 years of associates concern M/s Supreme Parivar, Mumbai. The proposal of the Respondent no.8 was approved on the 60th Board Meeting of the board of Directors of Respondent no. 5 in terms of the Policy, the Respondent no. 5 on 27/7/2011 published advertisement inviting for setting up of the said Project in tow newspapers. The respondent no. 5 neither received any proposal in response nor received any objection from any of the applicants herein.
5. By a Deed of Lease dated 01/11/2011, the Respondent No. 5 demised unto to Respondent No. 8 for a period of 5 years water front admeasuring 500 Mtrs. Alongside the Multipurpose Terminal along with land i.e. bed of sea admeasuring 500 Sq. Mtrs. Inter tidal area between High Tide Level and Low Tide Level and 13650 Sq. Mtrs. Under water area between Low Tide Level and Sea limits of Therkol Creek as shown in the plan and certified by the Hydrographer, on the terms and conditions set out in the said Lease Deed.
6. Thereafter, by a letter dated 03/01/2012, the Respondent No. 8 informed that the water front besides allotted water front is reserved for fishing activities; therefore, it would come in the way for development of the Multipurpose Terminal at the allotted water front. Hence requested that water front on the right side of the creek bridge i.e. Western side be allotted and further requested that 3 existing wharves/Jetties presently lying idle could be used for loading, unloading after carrying out the repairs and strengthening of the same and the Respondent No. 8 was agreeable to carry out the repairs and strengthening of the same at its cost subject to the permission being granted by Respondent No. 5.
7. Thereafter Report was called from the Regional Port Officer ("RPO"), Vengula group of Ports by Respondent No. 5 & vide Report dated 09/01/2012 RPO informed that 500 mtrs water front can be bifurcated in two parts, one is admeasuring 175 mtrs. on the left side of the creek bridge and 325 mtrs. on the right side of the creek bridge; reserving waterfront of 200mtrs to both sides of the creek bridge and 325 mtrs of water front on the right side of the creek bridge that could be allotted to the 10 Respondent No. 8 there exists 4 old wharves / jetties / berths in idle condition, out of which 3 can be used after carrying out repairs and strengthening and the fourth one was in dilapidated condition.
8. A copy of letter dated 18/02/2012 address by the petitioner to the Collector of Sindhudurg was received by Respondent no. 5. The Respondent no.5 forwarded the said letter to RPO seeking information on the issues raised by the petitioner. The said RPO submitted his replies and stated that there was no need for holding public hearing since no permanent construction was being carried out. The said RPO further stated that as per certification dated 26/02/2012 given by the Aronda Grampanchayat, 4 whavers were in existence and operational since Portuguese era within the jurisdiction of Kiranpani Port and that the said Aronda Grampanchayat has no objection to restart the said Kiranpani Port. The said policy dated 19/08/2005 contains no provision for issuance of a fresh advertisement if there is no change in location of the proposed multipurpose jetty.
9. Pursuant thereto, a Deed of Modification dated 11/04/2012 was executed between Respondent No. 5 and Respondent No. 8 wherein Respondent no. 5 agreed to reallocate the leasehold waterfront area as shown in the plan and certified by the Hydrographer and accordingly the said waterfront of 520 has been bifurcated into a waterfront of 175mtrs. on the eastward side of the Creek Bridge and waterfront of 325 mtrs. on westward side of the creek bridge; and permitted to use existing wharves subject to Respondent no. 8 carrying out repairs and strengthening of said 3 jetties at its own cost after obtaining requisite permissions for repairs and strengthening to make them usable. Subsequently, it was decided that Respondent No. 5 would carry out the repairs to the said 3 wharves / Jetties and the cost would be paid by the Respondent No. 8. Accordingly, repair to one Jetty out of 3 Jetties was completed and the same was handed over to Respondent No.8 by Respondent No. 5 on 15/04/ 2013. Thus, on the water front of 175 mtrs on the eastern side of the creek bridge there existed one Jetty and on the portion of the water front of 325 mtrs. on the western side of the creek bridge contained total 4 existing wharves / Jetties out of which, one was in a dilapidated condition and three were in a repairable condition of which repair to one was completed and repairs to other two was to be undertaken.
10. It is to be noted that before undertaking the repairs and strengthening of the said 3 existing wharves, the respondent no. 5 vide letter dated 06/06/2012 sought clarification from the Environment Department as to whether the permission from the 11 Environment Department was necessary for such repairs and strengthening of wharves. The Director of Environment, Environment Department by his letter dated 02/07/2012 confirmed that there is no provision in CRZ notification 2011 to obtain permission for repairs and strengthening of wharves in existence prior to the year 1991. Copies of these letters are at Exh.7 and 7A of the Affidavit of Respondent no. 5 at page 322.
11. When the repairs and strengthening of 3 wharves was being carried out at waterfront, there were no mangroves existing there, hence the destroying mangroves does not arise at all.
12. The submission of the applicant that the Lease Deed and Deed of Modification both are contrary to the policy dated 20/08/2010 is untenable. Responded no. 5 submits that the said policy dated 20/08/2010 is not applicable in the present case since the waterfront allotted to the Respondent no.8 is under policy dated 19/08/2005. Secondly, the sadi Lease Deed itself had an inbuilt provision for carrying out variation/ amendment/modification. Thirdly the waterfront which was earmarked under lease deed was found to be partly occupied by the local fisherman and reserved for fishing activities; hence, considering the interest of the fisherman and at the request of the Respondent no. 8 and on obtaining report from the RPO, Deed of Modification for slight changes in waterfront allocation was executed and only waterfront of 175 meters from existing Jetty on the Eastern side of Creek bridge was retained and in lieu of the curtailed portion, waterfront of 325 mtrs. on westward side of the creek bridge was allotted.
13. The submission of the Applicant that there were no wharves and 3 jetties have been illegally constructed without permission is not true and correct. In support thereof, the applicant is relied on some Google maps."
12. The learned counsel for the applicant of 143/2015 and 199/2017 have argued that initially there was only one jetty and wharves on the western side which was an inter tidal land that was used by local fisherman as mooring points for their small fishing boats but after signing of the above lease deed, Respondent No. 7 commenced large scale dumping and land filling activities on inter tidal lands and mangroves areas in CRZ-I and CRZ-III for the purpose of reclamation to set up the backup area under the guise of repairing and maintenance of the earlier wharves and one 12 jetty. When the fisherman witnessed the above illegal work including destruction of mangroves and construction of three jetties local fisherman of the Aronda Village through its Gram Sabha filed complaint before the Respondent authorities of taking necessary actions an oppose in the constructions.
13. It is stated that this activities were undertaken by the Respondent without the Terekhol River/Kiranpani creek being declared as a navigational channel under Indian Ports Act, 1908, without assessing the ecological and environmental impact on the sensitive CRZ-I intertidal area and No Development Zone (NDZ) and CRZ-III area and without decline for environment clearance under EIA Notification, 2006 and the CRZ clearance under CRZ Notification, 2011 from the Government of India and State authorities.
14. It is further alleged that proposed port is sought to be constructed, was declared as a navigational channel by Home Department of State of Maharashtra on 06.05.2015 and CRZ Notification, 2011 prohibits setting up ports in high eroding coastal stretches. The object of CRZ, 2011 is to conserve and protect coastal stretches to ensure livelihood security to the fisher communities and other local communities living in the coastal areas, its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, etc. As per the Coastal Zone Management Plan (CZMP) Maps of Sindhudurg District released by MCZMA, the project site (Western Side of the bridge) is an inter-tidal land and earmarked as "CRZ- I(B.)". The plot is also partially earmarked as a No Development Zone (NDZ) under CRZ-
III. Admittedly, the mouth of the Kiranpani creek/Tiracol River has been 13 identified by Goa CZMA (R-9) as a shallow rocky shoreline, which is extremely dynamic in nature and the geomorphic feature is in a constant state of imbalance wherein the sand deposits are not stable and that the spit has not attained maturity. Therefore, it is a high eroding stretch of the Goa/Maharashtra Coast. Therefore, Clause 3(viii) of CRZ, 2011 under the list of "prohibited activities within CRZ" gets attracted, which specifically prohibits setting up of ports and harbours in high eroding stretches of the coast. Therefore, all works undertaken by R-7 in the CRZ area are ex facie illegal and by stretch of no imagination could the Respondent authorities have discharged R-7 for its actions by not initiating appropriate penal actions under the Environment (Protection) Act, 1986 ("EPA, 1986") and Water Act, 1974.
15. It is stated by the applicants stated that no permission was issued in favour of Respondent No. 7 by the CRZ carrying out land recommendation dredging, destruction of intertidal areas, mud flats, mangroves and construction, expansion, modernisation and operation of Kiranpani Port and site where the reclamation has been carried out is an inter-tidal area, which has been accorded the highest protection under CRZ Regulations as CRZ-I(B). The CZMP Map or CRZ Maps prepared by Maharashtra CZMA (R-2) clearly demarcates the project site as CRZ-I(B) and partially as a No Development Zone (NDZ) under CRZ-III.
Reclamation of land for construction and operation of port and harbours, jetties and wharves are specifically regulated under Clause 3 (iv) (a) of CRZ, 2011. Therefore, obtaining a CRZ Permission is a pre-requisite for commencement of any work of reclamation, even if it is for the purposes of construction or modernization or expansion of ports, harbours, jetties, etc. Photographs of work of reclamation undertaken by R-7 alongwith all port related work activities are being reproduced herein.
1416. In the meantime, Mr. Parshuram Uparkar, the applicant has also filed in another application before this Tribunal which was registered as Original Application No. 199/2017 in which it has been stated that:
"4. Respondent No. 8 submitted a proposal to construct and operate a Multi Purpose Terminal (MPT) in Terekhol creek near Aronda. On 22.07.2011, an Advertisement for Tender was issued by Respondent No. 5 inviting proposals for setting up an MPT at Aronda. Consent to Operate fordredging was granted on 15.03.2011 even before the advertisement. On 1.11.2011, the First Lease Deed was entered into between Respondent Nos. 5 and 8 for lease of waterfront on the eastern side of the bridge. On 03.01.2012, Respondent No. 8 wrote Respondent No.5 a letter for allotment of alternative waterfront, as the eastern side of the creek area was reserved for fishing. Respondent No. 8 also sought permission to repair and strengthen 3 purported jetties on the western side of the creek. It is interesting to note that the said 3 jetties never existed, and in fact Respondent No. 8 had started construction on 4 new jetties in early 2012.
5. On 22.02.2012, a Show Cause Notice was issued by MPCB to respondent No. 8 pointing out various illegalities in construction of the new jetties, and lack of MoEF and CRZ clearances (Exhibit N at pg.169). Respondent No. 8 was directed to cease construction, dredging, and other works until investigation by MPCB was completed. Surprisingly, without any fresh tender (and despite the show cause notice) on 11.04.2012, a Deed of Modification was entered into between Respondent Nos. 5 and 8 for a new area on the western side of the creek. The said lease also allotted to Respondent No.8, 3 additional purported wharves. Even more astonishingly, on 06.11.2012 consent to operate for cargo handling operations was granted for upto 2 million MT per year by Respondent No.4.
6. On 18.02.2013, the Petitioner filed PIL 49 of 2013 before the Hon'ble High Court. Status quo came to be maintained on the site by Order dated 08.05.2013. Pursuant to the said Order, NEERI was appointed by the High Court to verify the situation on ground and found that there was only 1 pre-existing jetty on the site. 4 new jetties had been freshly constructed on the western side.
7. In late 2014/early 2015, Respondent No. 8 illegally and in breach of statements before the Hon'ble High Court carried out further construction, conducting dredging, and imported coal through the illegal jetties. The Petitioner filed a Contempt Petition before the Bombay High Court. Notice was issued in the Contempt Petition and the same is currently pending. Respondent No. 8 claimed that it had received Customs Permission. Accordingly, the Petitioner under RTI received letter dated 31.07.2013 for Customs which is annexed at Exhibit "1'. By Order dated 31.07.2017, recording the consent of parties the Supreme Court transferred the present matter to this Hon'ble Tribunal. Some photographs of activities after the filing of this Petition are attached.15
a) Illegal construction of jetties by passing of pre-
existing warlis/erosion bunds as jetties.
8. The second NEERI Report clearly establishes that there was only one pre-existing jetty prior to 2012 and Respondent No. 8 had infact constructed 4 further jetties. Respondent No. 8 has sought to pass off pre-existing warlis/erosion bunds as jetties. These "warlis" also known as "erosion bunds" or "groynes" are embankments constructed and maintained by the Kharland Department, State of Maharashtra. This can also be seen from the before and after satellite photographs annexed by the Petitioner. The existence of the Warlis can also be seen from the various maps - the hydrographers map the map of warlis. In the guise of modernizing a pre-existing port, Respondent No. 8 has have illegally constructed 4 illegal jetties.
b) No permission obtained under GOI Notification dated 14/11/2006
9. As stated above, Kiranpani had only one jetty. It had not been in use for decades i.e. since 1995, and was only used for coastal trade by wind powered vessels in Mangalore roof tiles, sand, and limestone. According to customs records, only 2,400-4,600 tonnes of cargo was handled per year. On the other hand, the present project contemplated 2 million tonnes per year of cargo (including coal, sulphur, bauxite, mill scale, iron ore fines, and sugar) being handled. The project therefore involved modernizing and expanding the port at Aronda, requiring dredging, modernization of existing jetty, construction of 4 additional jetties, reclamation and landfilling of paddy fields etc. All these activities have been/sought to have been done by the Respondent No. 8.
10. It is clear that all these activities would require permission under the GOI Notification dated 14/11/2006. The said circular requires permission for new projects as well as for "expansion and modernization of existing projects". Port projects are clearly covered in Regulation 7(e) of the Notification. Furthermore, as the impugned project is undisputedly located within 10 km of an inter- state boundary (the boundary between Goa and Maharashtra), the said project would fall in category 'A' and needs permission of the MoEF under Regulation 2 read with the General Conditions. However, no permission has been granted, let alone applied for. Indeed a Show Cause notice dated 22.02.2012 was issued to Respondent No. 8 by MPCB (Respondent No. 4), point out failure to obtain MoEF and CRZ permissions. This is also clear from the action taken report of MPCB (Exhibit O at Pg.171). Equally the consent to operate contemplates environmental clearance. However, despite these findings by MPCB no action has been taken for 8 years - MPCB's is apparently still "investigating" the matter.
11. The environmental clearance process under Notification dated 14/11/2006 has been held to be mandatory by the Supreme Court in Hanuman Asorkar v. Union of India (2019) 15 SCC 401, 16 and the Bombay High Court in Gram Panchyat v. Union of India 2012 (114) BLR 2695.
12. Therefore, all activities undertaken in respect of the impugned project including the modernization of the pre-existing jetty, construction of new jetties and backup area, dredging activity etc. are illegal for want of MoEF permission.
c) No permission obtained under the CRZ Notification
13. Equally, CRZ permission has neither been applied for nor granted. It is not disputed that the said project falls within the CRZ-I. It is in the intertidal area. This can be seen from the latest CZMP that is attached hereto as Exhibit '2' where this area has been classified as CRZ I-B. The backup area where landfilling has occurred is classified as the NDZ in CRZ-III. Under CRZ 2011, the construction of ports/jetties/foreshore facilities, (Regulations 3 (i), 3 (iv), 4, and 4.2) as well as dredging requires CRZ permission, in addition to the above MoEF approval. In the Show Cause notice dated 22.02.2012, it is noted that the project does not have any CRZ permissions and that the same are required. Violations of CRZ are punishable under Section 15 of the Environment Protection Act.
d) Destruction of Mangroves
14.The construction of the project involved destruction of mangroves. Under Order dated 6.10.2005 of the Hon'ble Bombay High Court prevailing at the time in BEAG v. State of Maharashtra mangroves cannot be destroyed. The action of felling mangroves was therefore illegal. Furthermore, the project is located within 50m of mangroves that are in a buffer zone. These areas are classified under CRZ-I as per the final judgment of the Bombay High Court dated 17.09.2018 in BEAG v. State of Maharashtra. As such, no permission for the project could have been granted.
e) Non-application of mind by the Maharashtra Pollution Control Board ("MPCB") in granting permission under the Water Act and Air Act
15. Consent to operate for dredging was granted by MPCB on 15.03.2011, even before the advertisement of the Tender in the newspapers. The consent to operate required that all environmental permissions be obtained - as stated above, these were not obtained. MPCB had issued a show cause notice on 22.02.2012 seeking to take action against Respondent No.8 and its officers for violating the consent to operate. Despite this further consent to operate were granted on 06.11.2012 and on 26.12.2013. Till date no action has been taken despite violation of CRZ that entails penal consequences under Section 15 of the Environment Protection Act. Even though these permissions have now lapsed, given the gross illegalities, this is a fit case where this Tribunal must declare that the various permissions illegal; and direct action to be taken against Respondent No.8 and its officers."
1717. The applicant has stated that the illegally constructed jetties and the illegally landfill area must be demolished and area must be restored to its original state and the cost of the Respondent No. 8 in this application.
18. It is argued that the Officer of Tree Commissioner of Custom Division, Ratnagiri, Central Revenue Building, Jail Road, Ratnagiri has reported that the vessel plying to and fro at Aronda Kiranpani were all non-
mechanised, except vessels pertaining to Gogte Mines, which were mechanised and used to ply for repairing, painting and dry dock uses.
The main Cargo involved was Mangalore roofing tiles, Sand and Lime Stone. The vessel moment was also for dry dock, repairs and painting of vessel. On an average 60 to 80 vessels per year each of 40 to 60 tonnage, were plying to and fro Kiranpani Port, Aronda during 1974 to 1995.
Further Mangalore, Honavar, Coondapur, Mumbai Port, Harnai, Ratnagiri & Vengurla were the main ports with which the trade was in operation during the above period and nothing of arriving & departing vessels are found in the office record of the Kiranpani Custom House, during the period 1974 to 1995.
19. It is to be noted that PIL No. 490/2013 was filed before the Hon'ble High Court of Bombay where direction was issued to CSIR, NEERI team to visit the site and give its inspection report, particularly pertaining to three aspects mentioned in the order at Para 26.
20. On July 19, 2013, the Director of the CSIR submitted its report. The relevant paras are quoted as below:-
"This has reference to PIL No. 49 of 2013 regarding para No. 25-26 wherein Hon'ble High Court has directed CSIR-NEERI team to visit the site and give its inspection report particularly pertaining to three aspects mentioned in the order in Para 26. Duly signed report submitted by the inspecting team is forwarded herewith for kind perusal of Hon'ble High Court. I take this opportunity to thank District Judge. Sindhudurg for her participation in the inspection team. The inspecting team has 18 suggested few additional studies. It is prayed that Hon'ble High Court may also kindly peruse those recommendations.
Reference is drawn to the 1-lon'ble High Court order dated May 8, 2013 on para no. 25 arid 26 wherein NEERI has been directed to inspect; the site under the supervision of the Judicial Officer, appointed by the District Court, Sindhudurg and submit a report to the Court on the following aspects:
(i) Number of jetties which are in existence at the old 'site and at the new site. Report to indicate whether the said jetties are in existence prior to 2010 or have been constructed thereafter
(ii) Whether- new construction has been done or only repair work or strengthening work of the old jetties has been done
(iii) Whether any environmental damage has been caused as a result of the said repair work Further, it was clarified that the NEERI shall inspect and investigate on the above aspects and, if possible, go through the record from Inc concerned authorities and submit a report.
In compliance to the directives of the Hon'ble High Court conveyed through Maharashtra Maritime Board letter no. MMB/Planning/whiLe Orchid/PIL 49 of 2013/1154 dated May 15, 2013 (received on May 21, 2013), Director NEERI constituted a team of two scientists comprising Dr. Harshvardhan Singh and Dr. S.K. Goyal to visit the site and prepare a report as directed by the Hon'ble High Court. Site Observations:
Accordingly, the NEERI team visited the site on June 06, 2013 and carried out joint inspection of Aronda Jetty site, Kiranpani port, Sindhudurg District, Maharashtra with Petitioner (Shri Parshuram Uparkar), Respondent No. 5 (represented by Capt. Jai Rohilla) & Respondent No. 3 (represented by Shri Rajan Teli) under the supervision of Hon'ble Judicial Officer, Sau. H.R. Jadhav, Jt. Civil Judge (J.D.) & J.M.F.C., Sawantwadi.
The observations of the team on the abovementioned items (as given in Para 26) are as follows:
(1) Number of jetties which are in existence at the old site and at the new site. Report to indicate whether the said jetties are in existence prior to 2010 or have been constructed thereafter.
Reply: During the inspection visit NEERI asked all three parties (Petitioner, Respondent No. 5 & Respondent No. 3) to define the old site & new site and requested to provide the boundary coordinates (latitude & longitude) but none could define it properly. Then NEERI requested Hon'ble Judicial Officer for her opinion. Hon'ble Judicial Officer instructed all the three parties to submit their written clarification with respect to old site and new site to NEERI directly.
19Subsequently, all the patties submitted related papers to NEERI by June 17, 2013. After going through the papers/documents/reports (in English), provided by the Petitioner, Respondent Nos. 5 and 8, it can be inferred here that old site is the site as mentioned in Deed of Lease between Maharashtra Maritime Board and White Orchid Estate Pvt. Ltd. Dated 1" day of November 2011 and new site is the site as Mentioned in Deed of Modification between Maharashtra Maritime Board and White Orchid Estate Pvt. Ltd. Dated 11th day of April 2012.
The Aronda site shown by all the three parties to NEERI belongs to new site as mentioned in above paragraph and comprises one jetty (Jetty No.
1) on the left side of Creek Bridge (upstream side) and four jetties (Jetty No. 2, 3, 4 and 5) on the right side of the Creek Bridge (downstream side), while viewing from Maharashtra to Goa side (Exhibit 1).
Regarding the existence of jetties prior to 2010 or construction thereafter, letter written Cy Shri M. V. Sane, Superintendent of Customs, Vengurla (letter no. F.No. CI-IR/ Kiranpani/11-12 Vengurla 31st May 2013, copy enclosed as Annexure I) is referred, which clearly states that coastal trade of vessels through sea route from Kiranpani port, Aronda was in operation during 1974 to 1994-95. It may be concluded that jetty / jetties wore existing at the site for a long time. However, remote sensing studies using pan chromatic data can establish whether the jetties were in existence prior to 2010 or have been constructed thereaf ter. The study will require about one month time as the satellite imagery has to be procured from National Remote Sensing Agency (NRSA), Hyderabad (Govt. of India Organization). For the study, boundary coordinates of old as well as new site are required.
Whether no w construction h as been done or only repair work or strengthening wo rk of the old jetties h ave been done.
Reply: Out of five jetties shown to NELERI as mentioned earlier:
in point no. (i), our observations are:
Jetty No. 1 (Left side of the creek bridge) : Minor repair work.
Jetty No. 2 (Right side of the creek bridge) : Strengthening work Jetty No. 3 & 4 (Right side of the creek bridge) : Minor repair work Jetty No. 5 (Right side of the creek bridge) : No repair work and it is in dilapidated condition.
iii) Whether any environmental damage has been caused as a result of result of the said repair work Reply: In this context the visual observations can not be conclusive to assess environmental damage. However, if there is any change on the environment front in the said case, it can be assessed by analyzing few parameters in water and 20 sediment in the activity zone and the reference in the upstream of activity zone to draw correlation for any environmental damage. Normally such study requires one month period which include collection of samples, its analysis and data interpretation.
During the same period remotely sensed data can also establish the number of water front structures (jetties) before and after 2010. Reco mmendations:
Use of remote sensing imageries prior 2010 and after 2010 will provide appropriate scientif ic answer to point no. 1 as no conclusive data is available.
The study is recommended.
One set of field sample collection for analysing water and sediment quality is recommended for assessment of environmental damage if any."
21. Point no. 1 which was referred to the NEERI relates to number of jetties which are in existence at the old site and at the new site, report to further indicate whether the said jetties or in existence prior to 2010 or have been constructed thereafter and in reply thereof the NEERI had submitted that the Aronda site shown by the all three parties to NEERI belongs to new site as mentioned in the paragraph and comprises one jetty no. 1 on the left side of creek bridge (upstream side) and four jetties no. 2, 3, 4 & 5 on the right side of the creek bridge (downstream side) while view from Maharashtra to Goa side. Further to establish and to calculate as to existence of the jetties prior to 2010 or have been constructed thereafter, it was reported that the study will require about one month time as the satellite imagery has to be procured from National Remote Sensing Agency and time as such for granted by the Court.
22. Point 2 as referred by the Hon'ble High Court was that whether new construction has been done or only repair work or strengthening work of the old jetties have been done and it was replied that in our observation, Jetty no. 1 and Jetty no. 3 & 4 there was a minor repair work and with 21 regard to Jetty no. 2 which was right side of the creek bridge there was strengthening work and with regard to Jetty no. 5, right side of the creek bridge, no repair work and it is dilapidated condition.
23. Third question which was referred to the NEERI was as to whether any environmental damage has been caused as a result of the said repair work. It was reported that the visual observation cannot be conclusive to assess environmental damage. However, if there is any change on the environment front in the said case, it can be assessed by analysing few parameters in water and segments in the activity zone and the reference in the upstream of activity zone to draw co-relation for any environmental damage and normally such study requires one month period which include collection of samples, its analysis and data interpretation and time was sought from the Hon'ble High Court to submit the 2nd report on the basis of assessment of environmental damage which was granted by the Court.
24. NEERI submitted its 2nd report before Hon'ble High Court which was placed on record which is as follows:
"Reference is drawn to the Hon'ble High Court Order dated May 08, 2013 on pars no. 25 and 26 wherein NEERI was directed to inspect the site under the supervision of the Judicial Officer, appointed by the District Court, Sindhudurg and submit a report to the court on the following aspects :
(i) Numberof jetties which are in existence at the old site and at the new site. Report to indicate whether the said jetties are in existence prior to 2010 or have been constructed thereafter.
(ii) Whether new construction has been done or only repair work or strengthening work of the old jetties have been done.
(iii)Whether any environmental damage has been caused as a result of the said repair work.
NEERI submitted the report to Hon'ble Bombay High Court covering the above aspects on June 19, 2013 (received at High Court on June 22 20, 2013). NEERI requested court for accord of approval of remote sensing studies and environmental studies to address above mentioned points in detail.
Further reference is drawn to the hearing of PIL 49 of 2013 dated July 09, 2013 (copy of the order was received at NEERI on July 18, 2013; sent by the advocate of the Petitioner), wherein under S.N. 7 NEERI has been directed to carry out studies as suggested and therefore, for the purpose of establishing whether jetties are in existence prior to 2010. The NEERI may also give their opinion on the further 3 sub- questions of question (i) as mentioned in pervious order which are framed as under:
a) Were there any structures prior to 2010? if so how many?
b) Were these pre-2010 structures, warlis/erosion bunds or wharves/jetties?
c)How many pre-2010 structures were in the nature of warlis (if any), or jetties (if any)?
As per S.N. 8 of the new order, the report was to be submitted by NEERI within 6 weeks (by August 23, 2013) from the date of issue of the letter. In response, Director, NEERI vide letter no. D/15/2013 dt. August 19, 2013 prayed to Hon'ble Bombay High Court that the time limit be extended to one more month (by September 23, 2013) in the interest of preparation of proper scientific report by NEERI.
In compliance to the directives of the Hon'ble High Court dt. July 09, 2013 (received on July 18, 2013), CSIR-NEERI immediately contacted National Remote Sensing Center (NRSC), Hyderabad for procurement of high resolution satellite data IKONOS 2 for remote sensing studies. NEERI received the data on August 19, 2013. Simultaneously NEERI team visited Aronda Jetty Site, Kiranpani port, Taluka Sawantwadi, Dist. Sindhudurg, Maharashtra during July 30-August 03, 2013 and collected water, sediment and biotic samples of Terekhol river for assessment of environmental damage.
Replies to issues as directed by Hon'ble High Court dt. 08.05.13 and 09.07.13 are: Issue No. (i) :
Vide directives of Hon'ble High Court dt. 08.05.13, NEERI was asked to submit a report on issue no. (i) as under
"Number of jetties which are in existence at the old site and at the new site. Report to indicate whether the said jetties are in existence prior to 2010 or have been constructed thereafter"23
Vide directives of Hon'ble High Court dt. 09.07.13 the above question has been further sub-divided in the three other sub-questions viz.
a) Were there any structures prior to 2010? if so how many?
b)Were these pre-2010 structures, warlis/erosion bunds or wharves/jetties?
c)How many pre-2010 structures were in the nature of warlis (if any), or jetties (if any)?
Reply :
Aronda Jetty Site, Kiranpani port is located in Sawantwadi Taluka of Sindhudurg district in the state of Maharashtra along the Maharashtra coast of Terekhol river.
Due to non-receipt of exact coordinates of old site and new site from the concerned parties, NEERI has selected an area of interest comprising 100 m buffer of existing road joining erosion bunds/warlis and approx. 500 m distance in East & West side of Kiranpani port office (Fig. 2). The area of interest comprises tentaively the old site and new site as defined in old lease dt. 01.11.2011 and new lease dt. 11.04.2012 between Maharashtra Maritime Board (MMB) and White Orchid Estate Pvt. Ltd.
Since the extent/boundary of old site is not clearly mentioned in old lease & subsequent replies of all the parties, therefore it will not be appropriate to comments on structures belonging to old site. New site as per new deed was shown to NEERI Team during visit to Aronda on June 06, 2013 and extent/boundary of new site is from Jetty no. 1 (east side of river bridge) to Jetty no. 5 (west side of river bridge). Thus the structures have been identified in the area of interest and at new site as defined above. New site is the part of area of interest.
Remote Sensing Stuff For identification of structures, remote sensing study has been carried out as a powerful tool in providing reliable information on various natural resources at different levels of spatial details. With the availability of high resolution remote sensing data, newer areas of remote sensing applications have been identified, techniques of data processing have been improved and computer based image processing systems have become more effective.
Salient features of methodology are:
Acquisition of Satellite data
Data processing
Geo-referencing and rectification
Structure identification
24
Image analysis was performed on ERDAS Imagine 13 System on high- configured computer. This software package is a collection of image processing functions necessary for pre-processing, rectification, band combination, filtering, statistics, classification etc. Apart from contrast stretching, there are large numbers of image processing functions that can be performed on this station. Arc Map 10.1 is used for final layout presentation.
To carryout remote sensing studies for identification of structures, two sets of high resolution IKONOS 2 satellite data (before 2010 and after 2010) were procured from NRSC Hyderabad. Before 2010, the available IKONOS 2 satellite data was of 16 May 2005 whereas after 2010 latest available IKONOS 2 satellite data was of 05 February 2013. The details of IKONOS images are as follows Sr. No. Sensors Date of Pass Resolution
1. IKONOS 2 16 May 2005 4m multispectral & lm panchromatic IKON 05 Feb 2013 4m multispectral & 1m
2. OS 2 panchromatic For identification of structures in both the satellite images, False Colour Composite (FCC) of area of interest comprising new site were generated (Fig. 2). Fig. 3a shows the structures present as on May 16, 2005 (pre-
2010) whereas Fig. 3b shows the structures present as on Feb 05, 2013 (post-2010). Some structures observed in both the images are matching with structures as shown in Fig. 4 entitled 'Map showing longitudinal Section of Terekhol River' (Produced by Govt. of Maharashtra, Water Resources Department, Kharlancl Development Circle, Thane, Sindhudurg Kharland Development Division, S'Nagari). Details of matching structures of Figs. 3a & 3b with Fig. 4 are provided in Tables 1 & 2 along with ref. no. and approx. length of structures. On the basis of detailed remote sensing studies as mentioned above, point wise replies w.r.t. sub-questions i) a, b, c are :
a) Were there any structures prior to 2010? if so how many?
Yes.
In the area of interest, there are twelve (12) Erosion Bund/Warlis, one (1) jetty and one (1) Ferry as mentioned in Fig. 3a and Table 1. In the area of new site, there are nine (9) Erosion Bund/Warlis, one (1) jetty and one (1) Ferry as mentioned in Fig. 3a and Table 1.
b) Were these pre-2010 structures, warlis/erosion bunds or wharves/ jetties?
In the area of interest, there are twelve (12) Erosion Bund/Warlis and one (1) jetty as mentioned in Fig. 3a and Table 1.
25In the area of new site, there are nine (9) Erosion Bund/Warlis and one (1) jetty as mentioned in Fig. 3a and Table 1.
c) How many pre-2010 structures were in the nature of warlis (if any), or jetties (if any)?
In the area of interest, there are twelve (12) Erosion Bund/Warlis and one (1) jetty as mentioned in Fig. 3a and Table 1.
In the area of new site, there are nine (9) Erosion Bund/Warlis and one (1) jetty as mentioned in Fig. 3a and Table 1.
Overall reply to issue no. (i) as per Hon'ble High Court order dt. 08.05.13 titled as "Number of jetties which are in existence at the old site and at the new site. Report to indicate whether the said jetties are in existence prior to 2010 or have been constructed thereafter" is :
For identification of jetties, area of old site could be understood as the site belonging to east side of river bridge and area of new site is the site from Jetty no. 1 to Jetty no. 5.
In the area of old site, there is only one (1) jetty marked as Jetty no. 1 and was in existence prior to 2010 as mentioned in Fig. 3a and Table 1.
In the area of new site, there are five (5) jetties out of that only one (1) jetty indicated as Jetty no. 1 is in existence prior to 2010 as mentioned in Fig. 3a and Table 1. Remaining four (4) jetties have been constructed thereafter as mentioned in Fig. 3 b and Table 2, out of which Jetty no. 5 is in dilapidated condition at present.
It is important to mention here that pre-2010 is as on May 16. 2005 (this satellite data was available only prior to 2010) and post -2010 is as on Feb 05, 2013. Details of all structures prior to 2010 and thereafter are indicated in Figs. 3a & 3b and mentioned in Tables 1 & 2. Reply to issue no. (ii) as per Hon'ble High Court order dt. 08.05.13 titled as "Whether new construction has been done or only repair work or strengthening work of the old jetties have been done." Jetty No. 1 (East side of the river bridge): Repair work Jetty No. 2, 3 and 4 (West side of the river bridge): Construction work Jetty No. 5 (West side of the river bridge): Minor construction work and it is in dilapidated condition at present Reply to issue no. (iii) as per Hon'ble High Court order dt. 08.05.13 titled as "Whether any environmental damage has been caused as a result of the said repair work"
Detailed environmental study has been carried out in the activity zone (Aronda Jetty, Kiranpani Port). To draw correlation for any environmental damage, primary data for water quality, sediment quality & biotic characteristics was collected by NEERI team during July 31-August 02, 2013 in the upstream & downstream of activity zone. On the basis of water quality, sediment quality and biotic characteristics as described in Annexure 1, 2 and 3, it is observed that there is marginal variation in the environmental quality with respect to water, sediment & biotic characteristics of upstream & downstream of 26 jetties located in Terekhol river. Therefore, it may be inferred that no environmental damage has been caused as a result of the said repair work."
25. Details of the structure present on 16.05.2005 as narrated by the NEERI are found as follows:
Table 1 Structures Present in 16 May 2005 IKONOS Data (Pre-2010) Erosion Bund/Warli Matching Structures Approximate Length w.r.t. Fig. 4 (meter) Erosion Bund / Warli 1 Warli Sa.No.302 m 9m Erosion Bund / Warli 2 Warli Sa.No.397 m 10 m Erosion Bund / Warli 3 Warli Sa.No.430 m 9m Erosion Bund / Warli 4 Warli Sa.No.547 m 6m Erosion Bund / Warli 5 WarliSa.No. 825 m 8m Erosion Bund / Warli 6 WarliSa.No. 885 m 11 m Erosion Bund / Warli 7 WarliSa.No. 930 m 11 m Erosion Bund / Warli 8 WarliSa.No. 945 m 10 m Erosion Bund / Warli 9 Warli Sa.No.992 m 11 m Erosion Bund / Warli 10 Warli Sa.No.1035 m 10 m Erosion Bund / Warli 11 Warli Sa.No. 1087 9m m Erosion Bund /Warli 12 - 9m Jetty - 10 M Ferry - 10 M
26. The structures present on 05.02.2013 as found by the NEERI are as follows:
Table 2 Structure Present in 05 Feb 2013 IKONOS Data Erosion Bund/Warli Matching Structures Approximate Length w.r.t. Fig.4 (meter) Erosion Bund / Warli 1 Warli Sa.No.302 m 9m Erosion Bund / Warli 2 Warli Sa.No.397 m 10 m Erosion Bund /Warli 3 Warli Sa.No.430 m 9m 27 Erosion Bund / Warli 4 Warli Sa.No.547 m 6m Jetty 1 10 m Jetty 2 30 m Jetty 3 10 m Jetty 4 10 m Jetty 5 - 11 m Ferry 10 m Bridge - 317 m
27. The water quality OF Terekhol River which was examined by the NEERI in compliance of the order of Hon'ble High Court in the above Writ Petition was reported as follows:
"The stretch of Terekhol river under study is near village Aronda and it also acts as a state boundary between Maharashtra and Goa. There is a road over bridge constructed above the river joining the two states. Towards the Maharashtra side bank of river, there is one jetty upstream and four jetties downstream of the bridge. About 1.5 km long river stretch was monitored. River mouth meeting the Arabian sea was about 2 km from the river stretch under study. Towards the jetty side river bank, there was not much vegetation observed during field investigation and office of the Maharashtra Maritime Board (MMB), Kiranpani Port is located near the bridge; while towards Goa side of river bank, it has hilly terrain with human settlements along the bank. To assess the baseline water quality of stretch of Terekhol river under study, field investigations were carried out during the period July 31 to August 02, 2013. Sampling was carried out over a period of 3 days due to the weather conditions, rainfall and tidal variations.
Methodology of Water Quality Assessment Based on the reconnaissance, the type of waterbody and its relative importance (keeping in view the present issues related to the Terekhol river and associated jetties), water sampling locations were identified along 1.5 km river stretch and across the river width. Sampling was carried out across the Terekhol river by identifying sampling locations at the jetty side along the bank, in the middle of the river and at the other end of the bank (Goa side), using NISHKIN water sampler. The locations selected along the stretch of river were upstream and downstream of the jetties. The sampling location upstream of all jetties was selected and considered to be representative or equivalent to the water environment prior to commissioning of jetties. Therefore changes in the water quality due to the jetties have been compared with upstream characteristics to arrive at impacts due to these jetties.28
In all 27 locations were identified along the river flow comprising 9-9 locations along both side of banks and remaining 9 in the middle of river to assess the quality of water along the cross section of river. The samples taken at each cross section such as, first towards the jetty side of river (labeled as A), from middle of river (labeled as B) and towards the other side of river opposite of jetties (labeled as C) are shown in Fig. 1.1. Therefore in all 27 (9x3) sampling locations were identified to assess the water quality of Terekhol river. Samples collected were preserved for analysis of various parameters as per Standard Methods for Examination of Water and Wastewater (APHA, AWWA, 2005).
Samples to be subjected to bacteriological analysis were collected in sterilized bottles and stored in icebox. Field parameters viz., temperature, pH and dissolved oxygen (DO) were analyzed at site immediately after sample collection. The water samples were analyzed for various physico-chemical and bacteriological parameters for assessing the status of existing quality of Terekhol river.
Water Quality All the analyses have been carried out as per Standard Methods for Examination of Water and Wastewater (APHA, AWWA 2005) and the data obtained for various parameters are presented in Tables 1.1-1.5 and the results of river water quality are discussed in subsequent sections :
Physico-chemical Characteristics The river stretch showed water quality in terms of turbidity in the range 4-21 NTU and total suspended solids in the range 2- 18 mg/I. Buffering capacity in terms of alkalinity was found to be in the range of 25-53 mg/I, with pH in the range of 7.4-7.8 indicating near neutral pH. Sodium Adsorption Ratio (SAR) was found to be in the range 1.3 to 3.5, whereas Sodium Percentage was found in the range 48 to 80. Oil & Grease and phenols were in the range 1-11 mg/I and 0.14-0.29 mg/I respectively.
Dissolved oxygen available in water at any given time is a result of amount of oxygen consumed by aquatic organisms and replenishment through natural processes. In the river water within study area, dissolved oxygen was found in the range of 5.3 to 7.6 mg/I. Biochemical oxygen demand (BOD) is defined as the amount of oxygen required by microorganisms for stabilizing biodegradable organic matter present in water under aerobic conditions. The test is widely used to determine the quantitative load of biochemically oxidizable organic matter and degree of organic pollution. The BOD values were in the range 3 to 9 mg/I in the samples collected from river water.
Nutrients determine the primary production potential of the water body. Nitrogen and phosphorus compounds form major source of nutrients for growth of phytoplankton. Nitrate is an essential nutrient for the growth of many photosynthetic autotrophs and has been identified as the growth limiting 29 nutrient. Nitrate levels in the water were in the range of 0.004 to 0.020 mg/I. Inorganic elements such as metals even at trace levels invite attention due to their persistence in water bodies. Some of the heavy metals viz. cadmium, chromium, copper, lead are toxic and can affect the prey and predator equilibrium in water body. The heavy metals viz. cadmium, chromium, lead, copper, iron, manganese, zinc, arsenic, aluminium, boron and barium were estimated in the water samples using Inductively Coupled Plasma-Optical Emission Spectroscopy (ICP-OES) and results are presented in Table 1.4. Amongst all the heavy metals, Iron was in the range 0.215 to 0.920 mg/I and aluminium in the range 0.655-2.391 mg/I, while nickel, cadmium, cobalt, mercury and barium were not detected.
Bacteriological Characteristics The presence of coliform group of organisms in water is recognized as evidence of faecal pollution. River water samples were analyzed for total and faecal coliforms by membrane filtration technique. Samples were also analyzed for the presence of foremost pathogens namely Enterococci spp., Vibrio spp., Salmonella spp., Shigella spp. mostly responsible for many water borne disease outbreaks. The results of bacteriological analysis are presented in Table 1.5.
During the study period the river water samples showed total coliform counts in the range of 20-290 CFU/100 ml and the faecal coliform counts in the range of 5-55 CFU/100m1. Enterococci spp. Vibrio spp., Salmonella spp. and Shigella spp. were also observed in some of the locations (B1, B2, A3, A4 & A9).
Assessment of Water Quality On the basis of sampling locations identified for water quality monitoring and the physico-chemical and bacteriological characteristics, the Terekhol river water quality has been assessed for the impacts due to the 5 jetties present along the river bank. The water quality assessment has been carried out by comparing the characteristics of water upstream of jetties (A1, B1, C1) considering it to be equivalent to river environment prior to construction of jetties, with the water samples collected from downstream locations (A2, B2, C2 to A9, B9 09) and are detailed hereunder:
The total suspended solids upstream was in the range 2-8 mg/I, while at the downstream the range varied from 2-18 mg/I. Suspended solids could be attributed to sampling carried out during monsoon season leading to increased turbidity due to mixing.
Total dissolved solids (TDS) and Chlorides varied from 88-102 mg/I and 3436 mg/I in upstream whereas it varied from 68-142 mg/I and 20-58 mg/I in downstream, respectively. Higher values of 142 mg/I TDS and 58 mg/I 30 chlorides was found at location A9 which may be due to the proximity to shore and tidal effects (Figs. 1.2 & 1.3). Alkalinity and total hardness varied from 26-34 mg/I & 24-36 mg/I in upstream and 25-53 mg/I & 16-44 mg/I in downstream, respectively indicating marginal variations. Adequate buffering capacity is available, which is also reflected by near neutral pH.
Sodium Adsorption Ratio (SAR) and Sodium percentage are indicators of acceptability of water for irrigation purpose and were in the range of 1.5-2.5 and 54-71 in the upstream and 1.3-3.5 and 48-80 in the downstream, respectively. The higher values estimated downstream of jetties is possibly due to the proximity to the sea and tidal effects which is also reflected by the sodium concentration.
Total nitrogen and total phosphates were in the range 4.2-15 mg/I and 0.570.67 mg/I in upstream and 0.8 to 14.7 mg/I and 0.58-0.81 mg/I in downstream, respectively indicating marginal variations.
Organic matter in terms of BOD & COD were in the range 5-8 mg/I & 24-28 mg/I in upstream and 3-8 mg/I & 22- 34 mg/I in downstream, respectively. Higher values of BOD could be attributed to the rainfall and subsequent runoff, flood water received from mountain streams and rivulets: and there is marginal variation in upstream and downstream water samples (Fig. 1.4).
Higher oil & grease in the range of 1-11 mg/I upstream and 1-10 mg/I downstream could be attributed to the runoff in rainy season and operation of motor boats for fishing activities being carried out upstream of sampling locations (A1, Bl, C1) as observed during field investigations.
Concentrations of phenols were in the range 0.20-0.25 mg/I in upstream and 0.14-0.29 mg/I in downstream water samples. Phenol concentration in the entire stretch monitored could be attributed to agricultural runoff during rainy season and presence of human settlements in the vicinity of the river and the possible associated anthropogenic activities.
The heavy metals monitored Cr, Cu, Pb, Fe, Mn, Zn, Al and B were in the range 0.005-0.008 mg/I, 0.009-0.96 mg/I, 0.003-0.006 mg/I, 0.462-0.661 mg/I, 0.092-0.125 mg/I, 0.045-0.052 mg/I, 0.704-1.021 mg/I and 0.135- 0.168 mg/I in the upstream and ND-0.028 mg/I, 0.004- 0.023 mg/I, 0.002-0.018 mg/I, 0.215-0.832 mg/I, 0.066- 0.146 mg/I, 0.028-0.081 mg/I, 0.655-2.391 mg/I and 0.123-0.180 mg/I in the downstream water samples respectively. Ni, Cd, Co, Hg and Ba were not detected in any of the samples. The concent-ation upstream and 31 downstream indicates marginal variations which could be attributed to the surface runoff due to rains from different places joining the river.
The bacteriological water quality of river Terekhol indicates that the total and faecal coliform count varied between 90-180 and 15-45 CFU/100 ml in upstream and 20-290 and 5-55 CFU/100 ml in downstream water samples, respectively (Fig. 3.3.5). Among most of the locations, counts of foremost pathogenic species were not detected. However, the locations, B1, B2, A3, A4 and A9 showed existence of selective pathogenic species. The villages situated in the vicinity may be contributing the fecal contaminants, the effect of which has been observed in the water samples. In addition to this, locations A3 and A4 are in the vicinity of road bridge connecting Maharashtra and Goa; where the anthropogenic activities from the bridge may have resulted in microbial contamination of the water bodies in the proximity of the bridge. The pathogens were also observed at location A9. Location A9 is downstream of a rivulet that was probably carrying the pathogenic load and contaminating the river.
On the basis of overall assessment of the river water quality, the river water falls under class E with respect to the tolerance limits for Inland Surface Water as per IS 2296:1982 (Appendix A) except for parameter Sodium percentage, which could be attributed to the tidal effects, as the sampling locations were close to the sea (approx. 2 km).
It is concluded on the basis of water quality monitoring carried out during the study period with respect to physico-chemical and bacteriological characteristics, that there is no significant variation in the water quality upstream of all jetties, when compared with the water quality along and downstream of the five jetties.
Further it is also concluded that there is no impact on the water quality of the Terekhol river due to the jetties on the basis of the physico-chemical and bacteriological water quality."
28. During the pendency of above two petitions when the information was broad within the knowledge of the applicant he has filed a separate application with the prayer to pass an order of permanent injunction restraining/preventing the Respondent No. 1 to 6 from carrying out any dredging and/or removing of sand bar, rocks at the mouth of the Tiracol 32 creek or in the river Terekol under the garb of maintenance dredging or on any other ground.
29. The applicant of O.A. No. 143/2015 has further submitted that Tiracol-
Kiranpani creek separates Goa and Maharashtra and is used a common fishing area by the fisher folk on both states which is recognized as a fishing zone and has been used for fishing purposes for several decades.
The mouth of the creek where the bay begins is a shallow area which has natural sand bar and rock formation which reduces the force of the sea water ingress during tides and cyclones. The natural sand bar and rock formation in the said creek prevents sea water from gushing in and flooding the villages. Large part of this area on the mouth of the river is no development zone as per coastal regulations notified by respondent no. 6.
30. The applicant submits that if such dredging and removal of sand bar is proposed by respondent no. 7 for bringing large vessels in the river to transport hazardous material. If such dredging is done and vessels are allowed to enter in the river the surrounding area of Tiracol - Kiranpani river will be severely polluted and the fishing activity has will get adversely affected besides damaging bunds along the creek border which are for protecting the human habitations and preventing intrusion of sea water in agricultural areas.
31. The Applicant submits that the Respondent No. 5 is planning to proceed with the dredging and removal of the sand bar in the Terekhol creek and setting up of the port at Kiranpani in order to benefit the Respondent No.
7. The Applicant submits that the Respondent No. 4 and 5 are falsely claiming that Kiranpani port was a existing minor port amongst group of ports in Vengurla where there was handing of cargo viz loading, 33 unloading operations allegedly carried out since the enactment of the Indian Ports Act, 1908. The Applicant submits that this contention is false since there was no such activities carried out after India became independent in 1947 or prior to 1947. The Applicant submits that the respondent no. 5 has contended that for the purpose of coastal security the police officers of respondent No. 4 have requested for undertaking maintenance dredging in Terekhol creek to create sufficient depth to enable their petroling speed boats to move in/ out of the channel at all states of the tide and therefore on the ground of National security proposal has been made to MCZMA who has recommended the proposal of dredging in the region falling in the Maharashtra region. It is further alleged by Respondent No. 5 that Ministry of Shipping has also issued circular and request has been made to the State of Goa. Further it is stated that as a policy decision for construction of multipurpose jetties to promote transportation of cargos through short sea shipping. The Government of Maharashtra has authorized Respondent No. 5 to grant permission for development of a multipurpose terminal within the limits of minor ports on the coastline of Maharashtra and Kiranpani Port is declared as port for import and export under section 7 of the Customs Act. Further it is stated that consent has been granted by the Maharashtra State Pollution Control Board. The Respondent No. 5 has also stated that Respondent No. 7 has been granted permission by Fisheries Department and that by notification dated 06.05.2014 the Respondent No. 4 has notified Terekhol Creek as navigational channel and therefore removal of sand bar/ mud from the mouth of river is necessary and it is for the purpose of National security. The Applicant submits that these contentions are raised basically to allow Respondent No. 7 to bring barges/ vessels inside the creek to start loading and 34 unloading of the cargo including coal and the contentions of Respondent No. 5 are false. The Respondent No. 4 and 5 have deliberately created documents and situation to justify their illegal acts taking shelter of national security and development of the port. The Applicant submits that the mouth of the river Terekhol falls within the jurisdiction of State of Goa and there is Coast Guard and Indian Navy to protect the coastline of the state of Maharashtra and Goa. Therefore the reason of recommendation of police department is a well planned strategy to mislead the people and the authorities in order to favour the Respondent No. 7. The Applicant submits that the Respondent No.4 and 5 are not entitled to carry out any activities of dredging or otherwise in the Terekhol creek as the same falls within the jurisdiction of the state of Goa and the other part of the river falls in the state of Marashtra. Therefore, this is a interstate issue and under the provisions of law state of Maharashtra cannot take decision unilaterally and Respondent No. 5 cannot start any dredging activity or removal of sand bar and that the Deputy Collector, Pernem has submitted two reports including final report dated 05.01.2016 to this Hon'ble Tribunal with the assistance of Goa Coastal Zone Management Authority, Department of Mines and Captain of Ports. In this report it is clearly mentioned that the mouth of the river is ecologically sensitive and without scientific study the sand bar or the sand cannot be removed or dredging cannot be done. In this report it is clearly mentioned that the ken beach culminates in to a sand spit which is a characteristic geological feature of teracol estuzy and images of the last 10 years reveals that the orientation and the area of the spit keep changing drastically and the mouth of the river is an area that is extremely dynamic in nature and in constant state of imbalance. There is natural shifting of the shoreline as per Google map and any such activity 35 is likely to affect the flora and fauna and the people in the locality including the fishermen and therefore intervention in such geological set up needs proper scientific study. However it is found that the respondent no. 4 and 5 have not made any scientific study and are attempting to remove the sand bar and conduct dredging in order to facilitate movement of barges/ vessels in the creek so as to facilitate Respondent No. 7 to handle the cargo which is a commercial activity. The applicant submits that if such removal of sand bar, dredging, removal of natural hard rocks formation than it will cause damage to ecology and affect the fishermen community. The Respondent No. 4 and 5 have claimed that they have approached the state of Goa for further procedure. The applicant apprehend that the state of Goa and its departments/authorities are likely to get along with the Respondent No. 4 and 5 and attempt to remove the sand bar. The State of Goa and its authorities have not taken immediate action in the matter and the local people had to agitate for action against the Respondent No. 7. Hence the respondent 1 to 6 are required to be restrained from proceeding with any such activity in the Terekhol Creek by this Hon'ble Tribunal.
32. The CRZ regulation applies to the land area between HTL to hundred meters of the width of the creek, whichever is less on landward side and along the tidal influenced water bodies. Since the area falls under CRZ, clearance is required under paragraph 4.2 of the CRZ notification and no such permission can be granted to the Respondent No. 7.
33. During the pendency of this application the applicant of O.A. No. 143/2015 expired and his legal representative moved an application, I.A. No. 64/2020 and 65/2020 with the facts that the intimation of the death of the applicant may be recorded and heirs of legal representative may be taken on record. Though I.A. No. 64/2020 is filed at a very belated stage 36 but since the matter is still pending, thus the documents of the application which has been filed by the applicant of I.A. No. 64/2020 and 65/2020 are taken into record and the applicants are given an opportunity of hearing. It would not be just and proper to reject only on the ground that the former applicant died and no one filed an application.
34. I.A. Nos. 64/2020 and 65/2020 are disposed off accordingly, permitting the applicant to proceed with the matter, participate in the matter and also an opportunity of hearing to the applicants and they have argued on the matter.
35. Now the question is with regard to admissibility and acceptability of the report submitted by the NEERI. Initially the matter was filed before the Hon'ble High Court of Bombay and a dispute arose as to whether the construction prior to 2010 or after 2010 and it is alleged by the applicant that it was constructed after 2006 for which Environmental Clearance (EC) were required and it was the version of the respondent that it was prior to that and no EC was required and further the construction as narrated by the learned counsel for the applicant were existing prior to the EIA Notification and thus, Environmental Clearance (EC) was not required. Hon'ble High Court with the concurrence of the parties and there was no objection on the point, found it just and proper to appoint CSIR, NEERI and referred the matter for expert opinion. NEERI has submitted the report against which there is no objection and thus, we have no option but to proceed with and decide these matters in accordance with the report submitted by the NEERI. It is reported by the NEERI that at the time of the inspection petitioner Shri Parshuram Uparkar, Respondent No. 5-Capt. Jai Rohilla and Respondent No. 8 represented by Shri Rajan Teli under the supervision of the one Judicial Officer nominated by High Court was present at the time of inspection 37 and on certain matters regarding defining the old site and new site, the parties were directed to submit the report and nothing adverse was reported.
36. Subsequently, parties had submitted related paper to NEERI by June, 2013 and after going through the papers and documents submitted by the parties it can be inferred that old site is the site as mentioned in deed of lease between Maharashtra Martine Board (MMB) and White Orchid Estate Pvt. Ltd. dated 01.11.2011 and new site is the site as mentioned in deed of modification between Maharashtra Martine Board (MMB) and White Orchid Estate Pvt. Ltd. dated 01.04.2012. The Aronda site shown by all the three parties to NEERI belongs to new site and as mentioned in above paragraph and comprises which Jetty i.e. called Jetty No. 1 on the left side of creek-bridge (Upper Stream side). It is to noted that regarding the existence of jetties prior to 2010 or construction thereof, superintendent of Custom was consulted which has reported that coastal trade of vassals through sea route from Kiranpani Port, Aronda was in operation during 1974 to 1994-95. It may be concluded that jetties were existing at the site for a long time. In the first report, it was submitted that there was only minor repair and strengthening were while Jetty No. 5 which was the right side of the creek-bridge there was no repair work due to the fact that which was in dilapidated condition. In the second report which was based on remote sensing studies for identification of the structures, two sets of high resolution IKONOS two satellite data before 2010 and after 2010 were procured from NRSC, Hyderabad and as reported by the NEERI the date of pass i.e. 16.05.2005 and 05.02.2013 there was same picture i.e. 4m multispectral and 1m panchromatic and this is for the both type of jetties.
3837. Learned counsel for the parties, on the basis of some satellites imageries photographs argued that there are some constructions and no Environmental Clearance (EC) was taken by the authority concerned.
The NEERI has concluded that Jetty No. 1 i.e. East side of the River Bridge there was a certain repair work and Jetty No. 2, 3 and 4 which is west side of the River Bridge there are some construction work and Jetty No. 5 which is situated in the West side of the River Bridge minor construction work and it is in dilapidated condition at present. Further, NEERI has inferred that there was no environment damage caused as the result of the said repair work.
38. Learned counsel for the respondent had submitted that on the basis of these satellites imageries and on the basis of the report submitted by the NEERI there was no damage to the environment, thus, no further action is required. He has further argued that no construction was raised by the respondent, thus, no further action is required to be taken by the Tribunal, especially on the basis of the report that there was no environmental damage. He has further argued that the construction which is raised before 2010 the Tribunal has no jurisdiction to proceed and decide the matter in light of the provision contained in National Green Tribunal Act. He has relied on case decided of this Tribunal in M.A. No. 247/2012 in Appeal No. 76/2012 decided on 14.03.2013-Nikunj Developers vs. State of Maharashtra & Ors. which is also reported in Manu (GT) 0030/283 which is quoted below:
"5. The stand taken by the non-applicant is that there is no cause much less a 'sufficient cause' shown by the applicant, for condonation of delay. There is complete inaction and negligence on part of the applicant, right from 2nd of June, 2012, till 20th September, 2012, the date on which the appeal was filed. Even if it is taken to be correct that the brother of applicant no. 3 was ill and he died as a result of his illness on 13 th June, 2013, even then there is no reason stated post 13th June, 2012 as to why the appeal was not filed till 20th September, 2012. In the 39 alternative, the submission is that even if it is assumed that there is sufficient cause shown by the applicant for condonation of delay, still this Tribunal shall have no jurisdiction to condone the delay because the appeal has been filed beyond the prescribed period of 90 days, which includes even the extended period of 60 days. Thus, in their submission, the appeal filed by the appellant is liable to be dismissed, being barred by limitation.
6. Now, firstly, we have to examine the interpretation of the expression 'sufficient cause', as it emerges from the various judgments of the courts, particularly the Supreme Court of India. The use of expression 'sufficient cause' in Section 16 of the NGT Act is not a legislative innovation but is a derivative reference from other enactments. Section 5 of the Limitation Act, 1963, also uses the same expression 'sufficient cause'. An applicant praying for condonation of delay in instituting the appeal under Section 16 of the NGT Act is required to show a sufficient cause, if the appeal is filed beyond a period beyond 30 days from the date of communication of the Environmental Clearance order as prescribed.
7. The expression 'sufficient cause' is not to be construed in isolation. The attendant circumstances and various other factors have to be taken into consideration by the Courts/Tribunals while dealing with the question of condonation of delay. Thus, it is important at this stage to deal with the meaning and connotation, that this expression has received in various judicial pronouncements, in some elucidation.
8. The term 'sufficient cause' has to be considered keeping in view the facts and circumstances of each case. The expression 'sufficient cause' implied by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner, which subserves the ends of justice - that being the life-purpose for the existence of the institution of Courts. This view was expressed by Supreme Court in Collector, Land Acquisition, Anantnag and Anr. v. Katiji and Ors. AIR 1987 SC 1335.
9. The term 'sufficient cause' must receive a liberal meaning and has to be incorporated so as to introduce the concept of reasonableness, as it is understood in its general connotation. Certainly, the Limitation Act is a substantive law and its provisions have to be adhered to in a manner that once, a valuable right accrues in favour of one party, as a result of unexplained sufficient or reasonable cause and directly as a result of negligence, default or inaction of the other party, such a right cannot be taken away lightly and in a routine manner.
10. The Courts have also taken the view that the expression 'sufficient cause' be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for every day's delay.40
11. 'Sufficient cause' must necessarily be tested on the touchstone of doctrine of reasonableness. It may not be a very appropriate approach to apply principles of limitation with absolute rigidity resulting in irreparable injustice to the parties; a balanced approach may better serve the ends of justice.
12. In P.K. Ramachandran vs. State of Kerala and Anr., J.T. 1997 (8) 189, the Supreme Court took the view that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
13. However, the Courts have also taken the view that the approach of the Courts must be to do even-handed justice on merits in preference to the approach which scuttles the decision on merits, thus, showing greater inclination to accept a liberal approach.
14. The equitable principles have also been applied to the law of limitation but with great circumspection. The clear language of law will always prevail over the equitable principles as equity cannot defeat the law. At this stage we may notice some of the principles which have been reiterated with approval by the Supreme Court in the case of Rajghunath Rai Bareja and another vs Punjab National Bank and Ors. (2007) 2 SCC 230 where the Court held as under:
"30. Thus, in Madamanchi Ramappa and Anr. v. Muthaluru Bojjappa [1964]2SCR673 this Court observed:
"What is administered in Courts is justice according to law, and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law".
31. In Council for Indian School Certificate Examination v. Isha Mittal and Anr. : (2000)7SCC521 this Court observed:
"Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."
32. Similarly in P.M. Latha and Anr. v. State of Kerala and Ors. [2003]2SCR653 this Court observed:
"Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law"
33. In Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. [2003]3SCR409 this Court observed:
It is now well settled that when there is a conflict between law and equity the former shall prevail....41
34. Similarly in Nasiruddin and Ors. v. Sita Ram Agarwal [2003]1SCR634 this Court observed:
In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom....
35. Similarly in E. Palanisamy v. Palanisamy (Dead) by Lrs. and Ors. AIR2003SC153 this Court observed:
...Equitable considerations have no place where the statute contained express provisions....
36. In India House v. Kishan N. Lalwani [2002]SUPP5SCR522 this Court held that:
...The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations....
39. In Hiralal Ratanlal v. STO [1973] 2 SCR 502, this Court observed:
In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.
15. In a more recent judgment, the Supreme Court, in Balwant Singh (Dead) Vs. Jagdish Singh and Ors. (2010) 8 SCC 685, while dealing with the expression 'sufficient cause', elaborately stated the principles of condonation of delay. It also elucidated the approach to be adopted by a Court in such cases and held as under:
"It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have 42 to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see if it could have been avoided by the party by the exercise of due care and attention."
18. ........According to the non-applicant, the Tribunal will have no jurisdiction to condone the delay in view of the language of Section 16 of the NGT Act, which reads as under:
"16. Tribunal to have appellate jurisdiction. - Any person aggrieved by,-
********* h. an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986;
********* may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:43
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."
19. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to condone the delay has a clear inbuilt limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and the legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision.
20. As stated in the cases Hiralal Ratan Lal and India Houses (supra) the period of limitation statutorily prescribed, has to be strictly adhered to and cannot be relaxed and or departed from, on equitable consideration. Further, in construing a statutory provision, the first and the foremost rule of construction is that of literary construction. We do not see any reason to expand the scope of the provision and interpret the proviso to Section 16 in the manner that Tribunal can be vested with the power of condoning the delay beyond 90 days. Such interpretation would be contrary to the specific language of the Section and would defeat the very legislative intent and object behind this provision.
21. This controversy need not detain us any further as it is no more res integra and stands answered by the judgment of the Supreme Court in the case of Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others (2010) 5 SCC 23 where the court held as under:
"29. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company : (2001) 8 SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The two- Judge Bench referred to earlier decisions in Mangu Ram v. Municipal Corporation of Delhi: (1976) 1 SCC 392, Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain Yadav v. L.N. 44 Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai : (1992) 4 SCC 264 and held:
12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to Sub- section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with"
Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application "in accordance with" that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court".
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.
30. In Singh Enterprises v. C.C.E., Jamshedpur and Ors. (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed:
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction 45 to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order.
However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.
22. The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd. : (2008) 3 SCC 73.
"31. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed:
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.46
32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
XXXXX XXXXX XXXXX XXXXX XXXXX
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to 47 provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory."
23. Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression 'not thereafter' while the provision under our consideration uses the terms 'not exceeding'. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.
24. The use of negative words has an inbuilt element of 'mandatory'. The intent of legislation would be to necessarily implement those provisions as stated.
25. Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing than negative words for reading the provisions as 'mandatory'. It is possible that in some provision, the use of affirmative words may also be so limiting as to imply a negative. Once negative expression is evident upon specific or necessary implication, such provisions must be construed as mandatory. The legislative command must take precedence over equitable principle. The language of Section 16 of the NGT Act does not admit of any ambiguity, rather it is explicitly clear that the framers of law did not desire to vest the Tribunal with powers, specific or discretionary, of condoning the delay in excess of total period of 90 days. At this stage, we may also refer to Principle of Statutory Interpretation by Justice G.P. Singh, 13th Edition, where it is stated as under:
"(c) Use of negative words another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD:
"Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." As observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". Section 80 and Section 87-B of the Code of Civil Procedure, 1908; section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1965; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972 (as amended in 1956); section 10A of Medical Council Act, 1965 (as amended in 1993) and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not less than three months' notice' is also for the same reason mandatory.48
But the principle is not without exception. Section 256 of the Government of India, 1953, was construed by the Federal Court as directory though worded in the negative form. Directions related to solemnization of marriages though using negative words have been construed as directory in cases where the enactments in question did not provide for the consequence that the marriage in breach of those directions shall be invalid. Considerations of general inconvenience, which would have resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely director. An interesting example, where negative words have been held to be directory, is furnished in the construction of section 25-F of the Industrial Dispute Act, 1947, where compliance of clause (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory. These cases illustrate that the rule, that negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular requirement."
26. The provision of Section 16 of the NGT Act are somewhat similar to Section 34 of Arbitration and Conciliation Act, 1996. Thus, adopting an analogous reasoning, as was adopted in Chhattisgarh State Electricity Board (supra), we would have no hesitation in coming to the conclusion that we have no jurisdiction to condone the delay when the same is in excess of 90 days from the date of communication of the order to any person aggrieved.
27. Thus, the application must fail on this ground alone. We are of the considered view that the Tribunal has no jurisdiction to condone the delay of 19 days in filing the present appeal, the same being in excess of 90 days computed from the admitted date of communication of order, that is 2nd June, 2012."
39. Learned counsel for the respondent had submitted that the construction was not raised by the respondent and there was no environmental damage, thus, the respondent cannot be held responsible for construction or payment of environment compensation.
40. Learned counsel for the applicant has cited 2004 (3) SCC 445, Piedade Filomena Gonsalves vs. State of Goa & Ors. dated 11th March, 2004 and argued that when there was one raising construction without permission 49 from competent authorities within 200 meters and High Tide Line (HTL) in violation of Coastal Regulation Zone (CRZ) Notification, it was held that such notifications have been issued for protecting environment and ecology in the coastal area, thus, construction raised in violation cannot be lightly condoned.
41. In 2016 (10) SCC 701 Anil Hoble vs. Kashinath Jairam Shetye & Ors., it was held that:
"In Coastal Areas/Wetlands/Coastal Regulation Zone Notification, there is a CRZ Policy dated 19.02.1991 and unauthorized construction falling within prohibited area, endangering river and coastal ecosystem must adversely affect the water bodies and no permission can be granted by the Goa Coastal Zone Management Authority (GCZMA) contrary to the rules."
42. It is further argued that in Goa Foundation vs. Panchayat Condolim, W.P. No. 422/1998 order dated 13.10.2006, it was held that:
"The State authorities to take necessary action against such unauthorized structures and constructions put up on the land falling within CRZ (III) area in Goa must be demolished according to the CRZ Notification."
"11. The relevant clause in the said Notification, dealing with land area falling within CRZ (III) area reads thus:
"....
CRZ (III)
(i) The area up to 200 m from the high tide line is to be earmarked as "No Development Zone". No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the Notification including facilities essential for such activities.
An authority designated by the State Government/Union Territory Administration may permit construction of facilities for water supply, drainage and sewerage for requirements of local inhabitants. However, the following used (sic users) may be permissible in this zone: agriculture, horticulture, gardens, pastures, parks, play fields, forestry and salt manufacture from sea water.
(ii) Development of vacant plots between 200 and 500m of high tide line in designated areas of CRZ (III) with prior approval of Ministry of Environment and Forests (MoEF) permitted for 50 construction of hotels/beach resorts for temporary occupation of tourists/visitors subject to the conditions as stipulated in guidelines.
(iii) Construction/Reconstruction of dwelling units between 200 and 500m of the high tide line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 per cent of the plot size; the overall height of construction shall not exceed 9m and construction shall not be more than 2 floors-ground floor plus one floor. Construction is allowed for permissible activities under the Notification including facilities essential for such activities. An authority designated by State Government/Union Territory Administration may permit construction of public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of schools and dispensaries, for local inhabitants of the area, for those panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities.
(iv) Reconstruction/Alterations of an existing authorized building permitted subject to (i) to (iii) above."
43. Similarly in 2013 (8) SCC 760, Vaamika Island (Green Lagoon Resort) vs. Union of India & Ors., it was held that:
"Illegal construction in one of the Island of said lake though has been declared to be an ecology sensitive area both nationally and internationally but as a matter of policy illegal construction in prohibited area ICRZ one area cannot be interfered with and any construction in violation of CRZ one Notification cannot be permitted by the authorities concerned."
44. There is no objection on behalf of any one either of the Respondent or the applicant with regard to the report submitted by the NEERI. CSIR, National Environmental Engineering Research Institute, a renowned body and there is nothing to disbelief the report submitted by the NEERI.
45. Thus, we accept the report submitted by the NEERI and proceed on in accordance with the report. As perusal of the report submitted by the NEERI (1st report), it is noted that Jetty No. 1, which is left side of the creek bridge, there was minor repair work. Similarly, in jetty no. 2 there 51 is a strengthening work, Jetty No. 3 & 4, there is minor repair work and in jetty no. 5 no repair work as it is in dilapidated condition. The assessment which was done by the NEERI was on the basis of resolution which was met available and it was of 16.05.2005 and 05.02.2013 and with regard to the question as to whether there is any structure prior to 2010, if so how many it was reported that in the area of interest, there are 12 (twelve) erosion bond/valleys (one jetty and one fairy). Similarly in the area of new site, there are 9 (nine) erosion valleys, one jetty and one fairy.
46. In the area of new site, there are five jetties out of that only one jetty indicated as jetty no. 1 is existence prior to that.
47. Learned counsel for the respondent has submitted that since the parameter of identification of the structure was supplied data which was available in NRSE, Hyderabad and it was of 2005 and 2013 thus on the basis of it, it has been reported that some structure are of pre 2010 and some structure are of post 2010 but since the imagination are of 2005 and 2013 then it can be said that out of these one canady structure was of pre 2005 and on second category of structure was of post 2005 which was visible in 2013. On the basis of the remote sensing studies which was available, the exact position cannot be read when it was constructed or repaired in between 2005 to 2013 and on the basis of it has been further narrated by the NEERI that it is important to mention here that pre 2010 is as on May 16, 2005, the satellite data was available only prior to 2010 and post 2010 is as on 05.02.2013 details of all structures prior to 2010 and thereafter are indicated in the figures given by the NEERI. In the conclusion, it has been submitted that no environmental damage has been caused as a result of the said repair work.
5248. Original Application No. 143/2015 is only with the prayer to restrain Respondent from carrying out any dredging and or removing of sand bar rocks at the mouth of the tree creek and in the river tree call and under the garbage maintenance raising or any other grounds.
49. It is submitted that the authorities in the State of Maharashtra cannot pass any order for dredging purposes in the territorial zone of Goa State.
State of Maharashtra, State Pollution Control Board and the Maritime Board at Maharashtra has stated that they have never permitted for dredging in the area falling within the zone of Goa.
50. Learned counsel for the applicant in those applications (O.A No.143/2015 O.A. No. 199/2017) has stated that the Terracol Kiranpani River creek separates Goa and Maharashtra after a stretch of about 2 kms. from Aronda Village of Maharashtra on Mansaid and after village Terracol in the State of Goa and it is used as a common fishing area by the fisherfolk on both States which is recognizing as fishing zone and has been used for fishing purposes for several decades. There are three villages located either side of the creek namely Teracol, Querim and Palem Village in the State of Goa and on the other side of the river/creek after about 2 kms.
from mouth of the river, there is Aronda Village which is in Maharashtra State. Since, this area falls within the Coastal Regulation Zone in the State of Goa and it is mandatory under the CRZ Regulation of 1991 and 2011 as well as now under 2018 Regulations that prior to clearance from Respondent No. 6- Goa Coastal Zone Management Authority is required before any work commences in CRZ area.
51. It has been stated that the State of Maharashtra has proposed a jetty at Kiranpani on the river side of the Maharashtra towards Village Aronda which is at a distance of about 2 kms. from the mouth of the river which 53 is in the State of Goa and the Respondent No. 7 company is in the business of the coal transportation and wants to use this river for transportation of big vessels, sheep and barges.
52. Learned counsel for the Respondent has submitted that the apprehension of the applicant that Maharashtra Government has proposed a jetty or Respondent No. 7 is in business and want to use this river is mere apprehension as nothing have been done by the State of Maharashtra or the Respondent No. 7 and thus, there is no cause of action on the part of the applicant to file this application.
53. The applicant has further stated that he approached the authorities of Goa to stop the dredging work and since no action was initiated by the Government of Goa, thus, the applicant approached to this Tribunal. In reply thereof the learned counsel for the Respondent has submitted that since there was no dredging on the part of the State of Maharashtra or by the Respondent No. 7 thus, it was not required by the State of Goa to take any necessary action and that was the reason that Goa State has not taken any action or initiation to do anything in accordance with the application moved by the applicant.
54. It has further been submitted by the applicant that later on Respondent no. 7 has filed affidavit stating that the company has applied for permission from the State of Goa for dredging and therefore the cause of action does not survive. It is also argued that after the Bombay terrorist attack, the security majors were tightened and the Coastal Police were requested to monitor the things and movement of the terrorist activities through sea route and for this purpose, Respondent no. 5 has stated that for the purpose of national security, the Maharashtra Coastal Police has requested for dredging and decision is taken for allowing dredging.
5455. The Respondent No. 5 has contended that for the purpose of coastal security, the Police Officer of the Respondent no. 4 have requested for undertaking maintenance dredging in Terricol creek to create sufficient depth to enable their patrolling speed boats to move in/out of the channel at all States of the tide and therefore on the ground of national security proposal has been made to MCZMA who has recommended the proposal of dredging in the region falling in the Maharashtra region. It has been submitted by the Respondent that they have never permitted the dredging within the territory of Goa and no dredging have been concluded in the State of Goa. Thus, the version of applicant that State of Maharashtra has permitted to dredging in the sea territory of Goa is not tenable and on this ground also, the cause of application is not mature.
56. The applicant has further submitted that the mouth of the river Terricol falls within the jurisdiction of the State of Goa and there is a Coastal Guard and Indian Navy to protect the coast line of the State of Maharashtra and Goa. The State of Goa has established a special Coastal Police Station at Terracol at the month of January, 2017 Terracol, to keep a watch on all the duties rendered in the water. Since, the mouth of the river Terracol where the dredging has been proposed to exclusive in the jurisdiction of the State of Goa and after around 2 kms., the river is divided between the State of Maharashtra and Goa. Hence, the Maharashtra Police also initiated the dredging in the State of Goa. Since the State of the Maharashtra and the Respondent had denied the activities of dredging in the territory of Goa. Thus, this contention is not to be accepted.
5557. It is further contended by the Respondent that there are many operators in the creek area apart from Respondent No. 7, there are five numbers of jetties/landing platform/query/PIR/wharf/landing stage in that area which are used by local fishermanfolk. They may have greater need to clear the neighbouring area of mangroves. KPPL or his agents did not do any illegal activity such as dredging and cutting up of mangroves and there are so many small boats doing the manual sand removal from the river creek area.
58. The applicant has cited PIL No. 87/2006 (Bombay Environmental Action Group V/s State of Maharashtra 2018 SCC online Bombay page 2680, decided on 17th September, 2018 and quoted following relevant paragraph:-
3. In paragraph (i)4 of the petition, mangroves have been described. Paragraph (i)4 reads thus:--
"(i) What are 'mangroves'?
20. Mangroves are intertidal (growing between the high tide and low tide line) evergreen forests growing on the soft marshy lands of a creek, estuary or a bay in the tropical and sub tropical regions. The expression 'mangrove' does not apply to a single species of plants, but to a complete ecosystem which is a conglomeration of several species of flora, fauna and biotic features in an area, and their interaction with each other. Mangroves are a peculiar habitat because they are found on the boundary between the land and the sea. They are found almost entirely in the tropical and sub tropical regions, that is, between 30 degrees north and 30 degrees south latitude, and are an extension of the tropical rain forests towards the sea. They are found largely in the estuarine regions where a river meets the sea, the intertidal regions of shallow bays and creeks. As extensions of the tropical rain-forests in to the sea, mangroves are functionally as important as the tropical rain-forests. Moreover, they are additionally important for the protection of the seashores from erosion, wave action, high-winds and cyclones. Mangroves being intertidal forests are equal to tropical forests, however their importance is not merely in their forest value but due to their strategic location between the land and the sea. Mangroves are the life line of any coastal area and perform invaluable protective functions for the environment. The importance of mangroves is set out below:"
564. The petition sets out the functions and importance of mangroves which can be briefly summarized as under:--
A] The mangroves play important role in protecting sea shores from erosion, high winds and cyclone.
B] Mangroves are strategically located between the land and sea and therefore, their importance is not merely in their forest value. The mangroves act as a buffer between the land and sea and play a very important role in fighting tidal erosion. The presence of mangroves does away with the need for expensive sea walls. The loss of mangroves endangers the stability of the land.
C] The mangroves facilitate reclamation of land from the sea.
D] Sometimes mangroves act as flood control by absorbing excess water from the sea.
E] Similarly, mangroves protect the land from storms and hurricanes.
F] Apart from the fact that mangroves act as natural sewage water filter systems, the same act as natural pollution coastal checks. They absorb natural waste.
G] The presence of mangroves on the fringes of the city like Mumbai which has one of the lowest open space ratios in the world ensures that some open spaces are kept open.
H] The mangroves are breeding grounds for a number of marine organism, such as shrimps, crabs and fish. The presence of mangroves keeps the fish relatively free from industrial and other pollution; and I]The mangroves are also centres of biodiversity and are the most productive ecosystems. In Maharashtra, they house panthers, otters, jackals, wild cats, reptiles and birds of numerous varieties. It is pointed out that Thane creek is a home to about 1.5 million birds of 206 different species.
5. It is pointed out that Maharashtra has about 18 species of mangroves out of total 55 found in India. It is pointed out that out of 5 coastal districts Mumbai, Thane (now Thane and Palghar), Raigad, Ratnagiri and Sindhudurg, the mangroves in Thane district have undergone maximum destruction. It is pointed out that though comparatively there is no destruction of mangroves in District Sindhudurg, the said district is less favourable to the growth of mangroves because of its geological condition. It is pointed out that in Mumbai also there has been a large destruction of mangroves. It is pointed out that city of Mumbai has been reclaimed from the sea by joining seven islands and it is consistently under pressure from surrounding sea. It is pointed out as to how mangroves in Mumbai have vanished. It is pointed out that in dumping 57 grounds at Gorai and Deonar, water supply to mangroves has been blocked which resulted in destruction of mangroves. It is pointed out that rapid erosions have been noticed in the said area.
(i) 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 v. Union of India [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.
(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 declaration of the same as "protected forests".
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".
36. A notification dated 19 February 1991 was issued by the Government of India which is known as CRZ notification of 1991 in exercise of powers under Section 3(1) and Section 3(2)(v) of the said Act of 1986. The notification lays down what constitutes a "Coastal Regulation Zone" (for short "CRZ"). The material part of the said CRZ notification declaring CRZ reads thus:--
"Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its 58 behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposes with effect from the date of t his Notification, the following restrictions on the setting up and expansion of industries, operations or processes etc. in the said Coastal Regulation zone (CRZ). For purposes of this Notification, the High Tide Line (HTL) will be defined as the line upto which the highest high tide reaches at spring tides."
37. Clause 3 provides that all other activities except those which are prohibited will be regulated as provided therein. Annexure-I to the CRZ notification deals with Coastal Area Classification and Development Regulations. CRZ-I is defined thus:--
"Category I (CRZ-I):
(i) Areas that are ecologically sensitive and important, such as national parks marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reefs, ares close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty historical heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.
(ii) Area between the Low Tide Line and the High Tide Line."
38. Thus, mangroves fall in CRZ-I category. Annexure-I further lays down that no new structure shall be permitted within 500 meters from the High Tide Line (HTL) and no construction activities except as listed in sub-clause (xii) of clause 2 of the CRZ notification are permitted in CRZ-I area. Sub-clause (xii) of clause 2 reads thus:--
"(xii) facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification; and"
39. The CRZ notification of 1991 was further amended by a notification dated 18th August 1994. The relevant modification is in clause (a) which reads thus:
"(a) in paragraph 1, for the portion beginning with the words "For purposes of this notification, the High Tide Line"
and ending with the words "width of the creek, river or back water whichever is less", the following shall be submitted, namely:--
"For the purposes of this notification, the High Tide Line means the line on the land upto which the highest water line reaches during the spring tide and shall be demarcated 59 uniformly in all parts of the country by the demarcating authority so authorised by the Central Government in consultation with the Surveyor General of India.
NOTE:--
The distance from the High Tide Line shall apply to both sides in the case of rivers, creeks and back waters and may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans. However, this distance shall not be less than 50 metres or the width of the creek, river or back-water whichever is less. The distance upto which development along rivers, creeks and back-waters is to be regulated shall be governed by the distance upto which the tidal effect of sea is experienced in rivers, creeks or back-waters, as the case may be, and should be clearly identified in the Coastal Zone Management Plans."
40. Sub-clause (3) (i) of clause 3 of the CRZ notification of 1991 mandated that all coastal States shall prepare a Coastal Zone Management Plan (for short "CZMP") identifying and classifying CRZ areas within their respective territories in accordance with Annexures - I and II to the CRZ notification. Accordingly, CZMP for Maharashtra was submitted to the Government of India on 22 November 1995. By a letter/order dated 27th September 1996, the Ministry of Environment and Forest of the Government of India communicated to the Chief Secretary of the Government of Maharashtra grant of approval to the CZMP subject to conditions incorporated therein. Condition No.(xiii) reads thus:--
"(xiii) All mangroves with an area of 1000 square metres or more would be classified as CRZ-I with a buffer zone of at least 50 metres."
41. The Mangroves were already included in CRZ-I in the CRZ notification of 19th February 1991. By the aforesaid order dated 27 September 1996, in case of mangroves with an area of 1000 square metres or more, a buffer zone of at least 50 metres along the mangroves was ordered to be included in CRZ-I in addition to mangroves.
42. An order was issued on 19th January 2000 by the Government of India providing that 50 meter buffer zone around mangroves of area of 1000 square meters and above, will not be required on the landward side, provided a road abutting such mangroves was constructed prior to February, 1991. Thus, under the 1991 notification, mangroves were included in CRZ-I. In the CRZ notification of 1991, there was no provision for a buffer zone. The said provision came for the first time by virtue of the order dated 27 th September 1996 which was amended by the order dated 9th January 2000.
43. The CRZ notification of 6th January 2011 was issued under section 3(1) of the said Act of 1986 which superseded the earlier CRZ notification of 1991. Relevant part of paragraph 7 reads thus:
60"7. Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:--
(i) CRZ-I,-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50 meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries "
44. Clause (xi) of paragraph 3 provides that all construction activities in CRZ-I are prohibited activities except those specified in paragraph 8. Paragraph 8 lays down the norms for regulation of the activities permissible in CRZ that:
"I. CRZ-I,-
(i) no new construction shall be permitted in CRZ-I except,-
(a) projects relating to Department of Atomic Energy;
(b) pipelines, conveying systems including transmission lines;
(c) facilities that are essential for activities permissible under CRZ-I;
(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;
(e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL.
(f) development of green field airport already approved at only Navi Mumbai;
(ii) Areas between LTL and HTL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:--
(a) exploration and extraction of natural gas;
(b) construction of dispensaries, schools, public rain-shelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned CZMA.
(c) necessary safety measure shall be incorporated while permitting such developmental activities in the area falling in the hazard zone;
(d) salt harvesting by solar evaporation of seawater;
(e) desalination plants;
(f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports;61
(g) constructionof trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water."
45. In the Guidelines for preparation for CZMP incorporated in the said notification of 2011, it is stated thus:
"3. Buffer zone along mangrove areas of more than 1000 sq mts shall be stipulated with a different colour distinguishing from the mangrove area.
4. The buffer zone shall also be classified as CRZ-I area."
46. In 1991 CRZ notification, it was provided that all mangrove areas will fall in CRZ-I. By virtue of the order dated 27 September 1996, in case of mangrove areas of 1000 square meters or more, 50 meter buffer zone abutting it was also included in CRZ-I. By order dated 9 January 2000, it was provided that 50 meter buffer zone will not be required to be maintained, provided a road abutting the mangroves was constructed prior to February 1991 (prior to the date on which CRZ notification of 1991 was issued). Under the 2011 notification, all mangroves area fall in CRZ-I irrespective of its area and in case the said area is 1000 square meters or more, even a buffer zone of 50 meters along the said area shall be a part of CRZ-I. Thus, the buffer zone of 50 meters abutting mangroves having an area of 1000 square meters or more was also included in CRZ-I from 27th September 1996.
47. The CRZ notifications are in the nature of orders or directions issued under the said Act of 1986. Hence, if there is any violation of the provisions of the CRZ notifications regarding mangroves area or its buffer zone or if there is any failure to comply with the same, it will attract the penal provisions under Section 15 of the said Act of 1986 which is attracted in case of the failure to comply with the provisions of orders or directions issued under the said Act of 1986. The conditions imposed in the letter dated 27 September 1996 will have to be construed as an order or direction under the said Act of 1986 as CZMP is required to be approved by the Central government in view of the clause 3(i) in the CRZ notification of 1991. Hence, if there is any violation of the condition in the letter dated 27 September 1996 about the 50 meter buffer zone, it will attract penal provision of Section 15 of the said Act of 1986."
48. Article 48-A in Chapter IV under the title Directive Principles of State Policy of the Constitution of India reads thus:--
"48-A. Protection and improvement of environment and safeguarding of forests and wild life.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."62
48. Article 48-A lays down that it is the duty of the State to make an endeavour to protect and improve environment and to safeguard forests. As stated earlier, environment includes plants. Mangroves are essential part of the environment. The land covered by mangroves is be covered by the concept of forest. Under Article 51(A) (g) of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment including forests, rivers and wildlife and to have compassion for living creatures. In view of the constitutional mandate under Article 51 (A)(g), it is the fundamental duty of every citizen to protect and improve natural environment including forest which will include mangroves. If this is the obligation of every citizen, the public bodies which are constituted by the citizens are bound by the fundamental duties under Article 51(A). Thus, it is the duty of the State and citizens to ensure that the mangroves are preserved and protected.
50. In the case of Nature Lovers Movement v. State of Kerala , in paragraph 2, the Apex Court observed thus:
"2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preachings contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life."
51. In the case of Association for Environment Protection v. State of Kerala , the Apex Court observed thus:
"2. The ancient Roman Empire developed a legal theory known as the "doctrine of the public trust". It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."
52. In the case of M.C. Mehta v. Kamal Nath , in paragraph 34 and 35, the Apex Court held thus:
"34. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests 63 and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
53. In the case of Fomento Resorts & Hotels Limited v. Minguel Martins , in paragraphs 53 to 55 and 65, the Apex Court held thus:
"53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non- renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical 64 premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long- established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
65. We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems."
54. Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
55. In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
"10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every 65 citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
59. It is further submitted by the learned counsel for the Respondent that the Hon'ble High Court has already issued direction in PIL as mentioned above in para no. 89 which is as follows:-
"89. For the reasons recorded above, we dispose of the PIL by passing the following order:--
(A) The following directions issued in the interim order dated 6th October 2005 shall continue to operate as final directions in following terms;
(I) That there shall be a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra;
(II) Dumping of rubble/garbage/solid waste on the mangrove areas shall be stopped forthwith;
(III) Regardless of ownership of the land having mangroves and the area of the land, all constructions taking place within 50 metres on all sides of all mangroves areas shall be forthwith stopped. The area of 50 meters shall be kept free of construction except construction of a compound wall/fencing for its protection.;
(IV) No development permission whatsoever shall be issued by any authority in the State of Maharashtra in respect of any area under mangroves. All authorities including the Planning Authorities shall note that all mangroves lands irrespective of its area will fall in CRZ-I as per both the CRZ notifications of 1991 and 2011. In case of all mangrove areas of 1000 sq. meter or more, a buffer zone of 50 meters along the mangroves will also be a part of CRZ-I area. Though buffer zone of 50 meters in case of mangroves area of less than 1000 meters will not be a part of CRZ-I, it will be subject to above restrictions specified in clause III above;
(V) The State of Maharashtra is directed to file in this Court and furnish to the petitioner copies of the maps referred to in paragraph 10 of the affidavit dated 16 August, 2005, filed by Mr. Gajanand Varade, Director, Environment Department, State of Maharashtra (Page 346 on the record), within four weeks from today. The soft or hard copies of the maps be supplied to the Petitioner within the same period;
66(B) The following direction issued in terms of clause 8(viii) of the order dated 6th October 1005 has been substantially complied with: "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"; (C) The directions in sub-clauses(ix) to (xiii) of clause 8 of the order dated 6th October 2005 shall continue to operate as final directions in respect of mangrove areas only on the government lands and the lands held by Planning Authorities like CIDCO, MMRDA etc. In respect of the lands admeasuring 2823.8493 Hectares as stated in the affidavit dated 14 th February 2018 of Shri Milind Panditrao, the direction regarding transfer of the lands to the Forest Department and consequential directions regarding making revenue entries shall be complied with within a period of three months from the date on which this Judgment and Order is uploaded. The State Government shall identify the mangroves lands which were vested in it by virtue of section 3(1) of the Private Forest Act and shall take appropriate steps in respect of such lands for transferring such lands to Forest Department within a period of 18 months from today. It will be also open for the State Government to take recourse to section 21 of the Private Forest Act in appropriate cases; (D) We direct the State Government to constitute a Committee headed by the Divisional Commissioner, as agreed by the State Government. The Committee and sub-committees shall be formed in accordance with the observations made in paragraph 68 above. The committee shall be responsible for the preservation and conservation of mangroves, for restoration of reclaimed mangroves areas set out in paragraph 73 above and for implementation of the directions in this Judgment. The Committee shall be constituted within a period of one month from today. The sub-committees as observed in paragraph 68 shall be constituted within two months from today. The Committee shall hold regular meetings and the minutes of the meeting shall be made available on public domain as observed in paragraph 68 above. As directed under the order dated 6th October 2005, the Principal Secretaries of (1) Environment, (2) Revenue and (3) Forest Department of the Government of Maharashtra shall be overall in-charge for ensuring total compliance with the directions issued under this Judgment and Order. They will monitor the working of the Committee headed by the Divisional Commissioner.
67(E) The State Government shall create a Grievance Redress Mechanism for enabling the members of the public to lodge complaints about the activity of destruction/removal of the mangroves. An opportunity must be made available to file complaints about any acts or omission which may ultimately result in destruction or causing damage to the mangroves area. The State Government shall make arrangements for receiving complaints on dedicated website, on toll free numbers and in physical form to the officers or offices nominated by the State Government in all districts and especially in the areas where there are mangroves. A facility shall be made available for uploading the photographs of the affected area by e-mail and by whats app or similar media by use of cell phone. The State Government must also create a machinery to ensure that the said complaints are immediately transferred to the Committee headed by the Divisional Commissioner. The Committees will ensure that immediate action is taken of stopping the illegal destruction or acts amounting to causing damage to the mangrove areas, if necessary with the police help. Necessary register shall be maintained of the complaints received and action taken thereon. The State Government must lay down the procedure by which complainant is kept posted about the action taken on his or her complaint. On the request made by the complainant, the identity of the complainant shall be masked and the names of the complainant shall not be disclosed to the violators;
(F) The Grievance Redress Mechanism shall be set up within a period of three months from today. Adequate publicity shall be given to the availability of the Grievance Redress Mechanism in leading newspapers as well as local newspapers. Information about availability of the Grievance Redress Mechanism shall be prominently displayed in the offices of District Collectors, Sub-Divisional Officers, Tahasildar in the Coastal Districts as well as in the offices of the Maharashtra Pollution Control Board and the Maharashtra Maritime Board in the coastal districts. The information shall be displayed prominently in the offices of the Municipal Corporations/Municipal Councils provided any coastal area forms part of the limits of such Municipal Corporation or such Municipal Council. Publicity shall be given at regular intervals of at least six months to the details of the grievance redress mechanism in leading newspapers having good circulation in the coastal areas;
(G) We direct that it is the obligation of the State to replant destructed mangroves and to restore mangroves areas which are illegally reclaimed. The said areas shall be restored to its original condition. In what manner restoration shall be done must be decided by the Committee headed by the Divisional Commissioner after consulting experts in the field. The Committee shall identify the vulnerable mangroves areas in the State and direct its constant surveillance by the Police/Forest Guards/Security Guards of the Maharashtra Security Corporation. The Committee shall ensure that 68 barricades are erected for preventing the entry of vehicles in such vulnerable area. The Committee shall also consider of installing CCTVs along the vulnerable stretches to keep a vigil. The Committee shall also cause to undertake satellite mapping of mangroves area in the state at periodical intervals of not more than six months by using resolution as suggested in paragraph no. 28 of the note submitted by the learned senior counsel appearing for the petitioner. Any changes seen shall be considered by the Committee and remedial measures shall be taken. The State Government shall sanction necessary amount for that purpose;
(H) The State Government shall ensure that criminal law is set in motion against all those who commit offences punishable under section 15 of the said Act of 1986 as observed in the Judgment. The Committee shall monitor implementation of this direction;
(I) The State Government shall issue a direction under section 154 of the MRTP Act to all concerned Planning Authorities and Regional Boards under the MRTP Act to show mangroves areas and 50 meter buffer zone around it while making or revising Development Plans/Regional Plans. Such a direction shall be issued within a period of three months from today;
(J) Quarterly Compliance reports shall be filed by the Committee reporting compliance with the aforesaid directions. The first of such reports shall be filed on or before 1st December 2018;
(K) Rule issued in PIL No. 87 of 2006 is disposed of on above terms;
(L) For reporting compliance, PIL shall be listed on 1st December 2018. It will be appropriate if PIL is placed for monitoring the compliance before this Bench or a Bench of which one of us is a party. The Prothonotary and Senior Master shall seek appropriate directions in this behalf from Hon'ble the Chief Justice;
(M) Writ Petition No. 2208 of 2004 stands disposed of. No separate directions are required to be issued in this Petition. Writ Petition No. 2741 of 2004 stands disposed of by a separate order passed today;"
60. Since the above guidelines and orders have been issued to be applicable in the entire State of Maharashtra and in several other Writ Petitions and PIL filed before the Hon'ble Supreme Court and High Court several directions have been given to protect the mangroves. Thus there is no need to file again and again the petitions or the original application before the Tribunal and it is intended to pressurise and blackmail the opposite 69 parties wherever a project is initiated in the name of mangroves or petitions of original application filed before the Tribunal or the Court.
Thus, this tendency should be discouraged. We are of the view that since there is direction from the Hon'ble High Court in Paragraph 89 as quoted above, there is no need to pass any further order in this application.
61. In reply to the contention raised by Shri Akash Rebello, learned counsel for the applicant and other applicants in original applications, Shri Raghunath Mahabal representing the Respondent No. 7 & 8 had submitted that several cause of action cannot be included in one application and for different cause of action separate applications have to be filed and on this ground alone the application is not maintainable.
Since, we have heard the argument of the parties, we are proceeding on merit. He further submitted that there is no quantitative computation of damage caused and there is no letter of authority filed for and on behalf of the villagers or fisherfolks claiming compensation and no formal claim has been filed seeking exemption of court fee as pre rules. Thus, the application moved by the applicant is not maintainable in accordance with the Provision contained in Rule 14 of the National Green Tribunal Act, 2010. He has further submitted that the consent to operate was valid upto 30.11.2015 and EC was not required as per EIA Notification, 2011 was the existing port prior to 1991 and KPPL was able to operate port and handle cargo and he has further submitted that Respondent is not going to start the operation unless the formal consent to operate is granted by Maharashtra Pollution Control Board (MPCB) and land lease is renewed by MMB. The Respondent has not applied for environmental clearance as no EC is required for existing level of operation. Thus, on the basis of the fact that at present there is no lease deed operating and there is no consent to operate, the application is not maintainable. The Remote 70 Sensing imageries for identification of structure was taken and was available with NRSC, Hyderabad on the date 16.05.2005 and 05.02.2013 and it can only be ascertained their existence either pre 2005 or post 2005 and it may be also inferred that this construction could have been during 2005 to 2013 and it is not said that these are the constructions made by the Respondent. Thus, the liability cannot be fastened on the Respondent. It is also argued that in PIL No. 49/2013, there was status quo ordered by the Hon'ble High Court and further repairing work the Maharashtra Maritime Board (MMB) vide letter dated 02.07.2012 moved to MCZMA and it was reported that no EC is required and permission from MCZMA for repair was granted and communicated to the authorities concerned. It was also argued that a bridge was under construction from 2008 and the sand bags might be by the persons who had constructed the bridge but since there is no evidence and destruction on this point, we need not infer any fact on the basis of this.
62. Further, it has also been argued that there is no violation of any Environmental Rules as reported by Goa Port Authority and the Maharashtra Maritime Board and there is nothing like damage to the mangroves or damage to the environment.
63. On the basis of the averment made by both the parties and on the basis of the records available, we may summarise the facts as follows:-
a) Report submitted by CSIR, National Environmental Engineering Research Institute is confirmed and accepted.
b) As per report of NEERI, there is no environmental damage. Thus, liability cannot be fastened for payment of environmental compensation under Environmental Act.71
c) Report and version submitted by Respondent No. 1, Captain of Ports, Government of Goa with the facts that (a) Respondent No. 1 has not given any permission to carry out any dredging activity/activities in and around any portion of the river or at the mouth of the river Tiracol or the port in question and (b) there are no dredging activities going on in and around any portion of the river or at the mouth of the river Tiracol or the port in question from the time of filing of the present application conclusively is accepted. Since, there is no dredging by any authority within the territorial jurisdiction of Port at Goa, thus, no inference can be drawn that Maharashtra Government has passed any order for dredging within the territory of Ports of Goa or with regard to damage of mangroves within the area of Goa.
d) The Respondent No. 7 had consent to operate valid upto 30.11.2015 and EC was not required as per EIA Notification, 2011 for the existing port prior to 1991 and Respondent is not going to start the operation unless the formal consent to operate is granted by Maharashtra Pollution Control Board (MPCB) and land lease is renewed by MMB and since, Respondent has not applied for Environmental Clearance, thus, in the condition that at present there is no consent to operate and that there is no valid lease, thus, there is nothing to say that the Respondents are operating in the area or causing any damage in the area. Thus, no order can be passed because there is no consent to operate and there is no valid lease in favour of the Respondent.
e) Pursuant to a deed of modified modification dated 11.04.2012, Respondent No. 5 agreed to reallocate the lease hold water front 72 area and permit to use existing wharves subject to Respondent No. 7 carrying out repairs and strengthening of said three jetties at its own cost after obtaining requisite permission for repair/ strengthening to make them useable. Subsequently, it was decided that Respondent No. 5 would carry out the repairs to the said three wharves/jetties and the cost would be paid by the Respondent No.
7. Accordingly, repair to one jetty out of three jetties was completed and the same was handed over to the Respondent No. 7 by the Respondent No. 5.
f) Vide Gazette Notification No. 39/2014 that Custom (N.T.) dated 07.05.2014, the Kiranpani Port was declared as a Port for Import and Export under Section 7 of the Custom Act and the consent dated 26.11.2013 was granted by Maharashtra Pollution Control Board (MPCB) to Respondent No. 7 for cargo handing on existing jetties.
g) That no permission has been granted by Maharashtra Maritime Board (MMB) to the Respondent No. 7 for carry out any construction/repair to the jetties.
h) The maintenance of the jetty and repairing of the same, if any damage is caused while in use was decided between the contracting parties was fixed between them and the conditions of contract between the two contracting parties are not to be interfered with by this Tribunal.
i) As per Maharashtra Minor Ports Navigational (Maintenance of Navigational Channel) Rule, 2000, the Maharashtra Government had notified the Navigational Channel in Tiracol creek vide Notification dated 06.05.2015.
73j) As per report submitted by Respondent No. 1-Captain of Ports, Government of Goa that there was no dredging and as per report submitted by Maharashtra Maritime Board (MMB), there is no construction work by the Respondent No. 7 and there was no permission by the Respondent No. 5 for any construction and it is not proved that there is any construction and further it has not been proved by any cogent evidence that either Respondent No. 5- Maharashtra Maritime Board has constructed anything or permitted to construct by Respondent No. 7 and it is also not proved by any cogent evidence that any construction was raised by Respondent No. 7, thus, liability cannot be fastened on the Maharashtra Maritime Board- Respondent No. 5 or to the Respondent No. 7.
k) Anything done in exercise of Sovereign power by the Government of India or State in the safety and security of the State in a situation like terrorist attack in Bombay cannot be inferred without any proof that there was any environmental damage. Thus, there is no question to proceed for environmental compensation. Accordingly, relief as prayed in the applications as mentioned above are not maintainable.
l) We appreciate learned senior counsel Shri R. Mahabal and Shri Rebello, learned advocates for the parties for their way of systematic presentation on Video Conference through Computer, explaining the things, photographs, bridge on Google Maps, which made us easy to understand the things.
m) For the protection of mangroves, the directions of Hon'ble High Court of Bombay as quoted above will be complied.
7464. In view of above, the Original Applications No. 45/2015 (WZ), Original Application No. 143/2015(WZ) (I.A. Nos. 64/2020 & 65/2020) and Original Application No. 199/2017(WZ) (M.A. No. 411/2017 & M.A. No. 412/2017) are disposed of accordingly.
A Copy of this order be kept in the record of other Original Applications.
Sheo Kumar Singh, JM Dr. Satyawan Singh Garbyal, EM 20th August, 2020 Original Application No. 45/2015 (WZ) Original Application No. 143/2015 (WZ) & Original Application No. 199/2017 (WZ) MN, AG 75