National Green Tribunal
National Fishworkers Forum vs Ministry Of Environment Forest And ... on 2 August, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Review Application No. 01/2021(WZ)
(I.A. No. 48/2021)
IN
Original Application No. 22/2021 (WZ)
National Fishworkers Forum & Ors. Applicant(s)
Versus
Ministry of Environment, Forests &
Climate Change & Ors. Respondent(s)
.........
Jawaharlal Nehru Port Trust, Administrative
Building, Sheva, Navi Mumbai Review Applicant
Date of hearing: 02.08.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Review Applicant: Mr. Tushar Mehta, Solicitor General of India with
Mr. Devansh Shah, Advocate in RA - JNPT
Original Applicant: Ms. Meenaz Kakalia, Advocate
ORDER
1. This application seeks review of order of this Tribunal dated 15.06.2021. However, in view of liberty given in the order sought to be reviewed, which was passed without notice for the reasons mentioned therein, we have reheard the matter. Since the said order is being re- iterated, the entire order need not be reproduced but substance thereof is being mentioned herein.
2. The issue raised in the original application, in substance, is compliance of judgment of the Hon'ble Supreme Court dated 31.10.1996 1 in Bittu Sehgal & Anr. v. UOI & Ors.1 prohibiting/regulating certain activities in the Dahanu Eco Fragile area. The Hon'ble Supreme Court, considering the expert committee reports referred to in the judgment, prohibited such activities in the said area as are inconsistent with the notification dated 20.6.1991, declaring the area to be eco sensitive. It was also directed that to deal with permissibility of activities therein, Dahanu Taluka Environment Protection Authority (DTEPA) be constituted by the Central Government under Section 3(3) of the Environment (Protection) Act, 1986 (EP Act). In compliance of the said judgment, the Central Government constituted DTEPA under Section 3(3) of the EP Act, headed by the former Judge of Bombay High Court. The DTEPA vide order dated 19.09.1998 upheld the objections to the setting up of a Port in the area in view of the potential to defeat the object of declaration of the area an Eco Sensitive Zone (ESZ).
3. Extracts from Notification dated 20.6.1991, judgement of the Hon'ble Supreme Court in Bittu Sehgal, supra and order of DTEPA dated 19.9.1998 are reproduced below for ready reference:
Notification dated 20.6.1991 "S.O. 416 (E):-Whereas a notification under Clause (v) of Sub- section (2) of Section 3 of the Environment(Protection) Act, 1986, inviting objections from the concerned quarters within a period of sixty days from the date of publication of the said notification, against Govt.'s intention to declare Dahanu Taluka, District Thane (Maharashtra) as an ecologically fragile area and to impose restrictions on the setting up of industries which have detrimental effect on the environment was published vide S.O. No. 80 (E), dated 8th February, 1991 and Corrigendum (S.O. 147 (E) issued on 27th February, 1991).
And whereas certain objections were received from Environmental Action Groups of Dahanu & Bombay, individuals of Dahanu, Govt. of Maharashtra, Dahanu Industries Association, Dahanu Taluka Krushak Samaj etc. These objections were duly considered and accordingly certain modifications have been incorporated in this notification. 1 (2001) 9 SCC 181 2 NOTIFICATION In exercise of powers conferred by clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, the Central Government, in consultation with the Government of Maharashtra, after considering the need for protecting the ecologically sensitive Dahanu Taluka, and to ensure that the development activities are consistent with principles of environmental protection and conservation, hereby declare Dahanu Taluka, District Thane (Maharashtra) as an ecologically fragile area and to impose restrictions on the setting up of industries which have detrimental effect on the environment.
The location for siting of industries and industrial units shall be in conformity with the Guidelines given in the Annexure.
However, the industrial projects already approved or in existence in the said Taluka before the date of issue of this notification, will not be affected by this notification. The existing industries shall have to conform to the statutory standards. The Government of Maharashtra will prepare a Master Plan or Regional Plan for the Taluka based on the existing land use of Dahanu Taluka within a period of 1 year from the date of this notification and get the plan approved by the Ministry of Environment & Forests. This Master Plan or Regional Plan will clearly demarcate all the existing green areas, orchards, tribal areas and other environmentally sensitive areas. No change of existing land use will be permitted for such areas in the Master Plan or Regional Plan for the Taluka. The total area within the Dahanu Taluka for location of permissible industries will be restricted to a maximum of 500 acres within the industrial areas earmarked in the Master Plan. The industrial units will be located at sites that are environmentally acceptable.
Industries, which are using chemicals above the limits/quantities, as prescribed in the Environment Protection Act Rules for hazardous chemicals, notified by the Government of India, should be considered hazardous industries. Hazardous waste may be disposed off in the identified areas after taking precautionary measures. The disposal areas have to be prescribed carefully monitored and enforced and the site(s) will be identified in the Master Plan and will be, as far as possible, within the premises of the 500 acres area identified for the Industrial estate.
The Government of Maharashtra will constitute a monitoring Committee to ensure the compliance of the conditions mentioned in the notification, in which local representatives may be included."
xxx .................................xxx ...............................xxx 3 Recommendations quoted in paragraph 14 of the judgment of the Hon'ble Supreme Court which were directed to be followed "6.5 Recommendations Management of ecologically-fragile areas to achieve the overall aspirational goal of sustainable development warrants legal interventions based on the precautionary principle, conservation of natural resources, and environmental protection. There is thus an adequate reason to take resource to Sections 3, 4 and 5 of the Environment (Protection) Act, 1986 for ensuring effective management of ecologically-fragile areas in the country.
In order to address the complex issues in planning and management of ecologically-fragile areas, it is prudent that the Central Government considers constituting an authority under the Environment (Protection) Act, 1986 and confers on this authority all the powers necessary to deal with the situation created in Dahanu region and other environmentally-sensitive regions in India. The authority should be headed by a retired Judge of the Supreme Court and may have other members -- with expertise in the field of hydrology, oceanography, terrestrial and aquatic ecology, environmental engineering, developmental and environmental planning, and information technology.
An Authority for Management of Ecological Fragile Areas as per the composition delineated above, with mandate for coordination and implementation of all activities of planning, development, allocation, implementation, research and monitoring in ecologically-fragile areas needs to be established to operationalise the precautionary principle in sustainable development. The mandate of the authority needs to include the following:
-- To identify ecologically-fragile regions and buffer zones in the country, and to delineate and implement appropriate regulations.
-- The deploy ecological units as the basis for regional planning in ecologically-fragile areas.
-- To delineate guidelines for regional planning in ecologically-fragile areas.
-- To ensure preparation of medium and long-term regional and master plans, and their implementation through existing institutions.
-- To examine, review and effect modifications in any project/plan/policy envisaged by the Government of India/State Government/Local-Self Government that has adverse bearing on ecological fragility of the region.
-- Monitoring of ecology and environmental media quality for effecting corrective measures.
-- Capacity building in existing institutions for management of ecologically-fragile regions.
-- To ensure community participation in the management of natural resources and protection of ecology."4
Directions in the Supreme Court judgement for constitution of an independent authority and monitoring implementation of the regional development plan "19. We are of the view that continuous monitoring at the level of the State Government and also by some independent statutory authority is necessary to protect the ecologically-fragile Dahanu Taluka. The State Government is under an obligation to implement the town/original plan as approved by the Government of India subject to the conditions imposed in the official memorandum dated 6-3-1996, by the Government of India. We direct the State of Maharashtra to execute the said plan subject to the conditions and also the two notifications issued by the Government of India dated 19-
2-1991 (CRZ Notification) and also the notification dated 20-6-1991 pertaining to Dahanu area. The State Government shall also take into consideration and implement all the recommendations of NEERI as re- produced by us in the earlier part of this order"
Order dated 19.09.1998 passed by DTEPA, constituted in pursuance of the order of the Hon'ble Supreme Court, upholding objection to setting up of the port in the area "Dahanu Notification dated 20th June, 1991 declares Dahanu Taluka as an ecologically fragile area and imposes restrictions on setting up of industries, which will have detrimental effect on environment. It further lays down that no change of existing land use will be permitted for such area in the Master Plan or Regional Plan for the Taluka. The total area within the Dahanu Taluka for location of permissible industries will be restricted to maximum of 500 acres within the industrial area earmarked in the Master Plan. The word 'industry' is not defined in the Act or notification. It is well settled that the words and expressions not defined in the Act, or statutory instrument, must receive a general construction, and should be understood in their generic sense. If so, understood such a vast port, will obviously fall within the ambit and scope of the word 'industry'. Therefore, the construction or establishment of such a Mega Port is wholly prohibited by notification dated 20th June, 1991, popularly known as Dahanu Notification. It is pertinent to note that this notification is not amended and still holds the field. Further no modification in the Regional Plan is permissible, which is not in conformity with this notification. It is also pertinent to note that the original plan was prepared as per the directions of the Supreme Court, and as observed by the Supreme Court, it has to be in conformity with the two notifications issued by the Government of India. Further, it has to take into consideration the recommendations made by NEERI.
It was also contended by the Counsel for the Dahanu Taluka Environment Welfare Association (DTEWA) that the 1997 amendment and the changes made there in will be applicable to the existing ports and not otherwise. It will not permit construction of new Port. The said amendments will only accord 5 permission for modernization and expansion of the existing ports and harbours. Thus intention and purpose of the said amendment is limited one. According to the Learned Counsel, it only empowers the Government concerned to permit the user for providing certain facilities to the public and not otherwise. However, as already observed, it is not necessary to decide any wider question so long as the 20th June 1991 notification relating to the Dahanu area holds the field. This is more so, in view of the special status of the Dahanu area and the directions issued by the Supreme Court, as well as the interpretation of the notification by the expert members of this Authority.
It appears that Dahanu is last surviving being Green Zone on that Coastal area, and is ecologically fragile area. No construction work is permitted of any type in the 500 metre of the High Tide area. According to the recommendations made in the report of NEERI, construction of such a port will be detrimental to the environmental and the socio-economic conditions of Dahanu area, as well as will be contrary to the notifications issued in the year 1991. This Authority, as directed by the Supreme Court, has to ensure implementation of the said two notifications and also to consider and implement the recommendations of the NEERI. As to whether that the amendments issued in the 1997 will change the colour of the whole controversy or will require reconsideration of the observations made and directions issued by the Supreme Court is a question, which is beyond our authority and jurisdiction. To say the least anything which will be contrary to and in breach of the directions of the Supreme Court, is wholly impermissible. More so, when the writ petition stands transfer to the Bombay High Court. Therefore, taking overall view of the matter a conclusion is inevitable that as the position stands today the construction of such a Mega Port at Vadhawan is wholly impermissible and, therefore, will be illegal."
4. The original applicants assail direction of CPCB dated 30.04.2020 and Office Memorandum (OM) dated 08.06.2020 issued by the MoEF&CC indirectly permitting setting up of Port which stands prohibited under the judgment of Hon'ble Supreme Court and order of the DTEPA. This plea has been accepted by the Tribunal by order sought to be reviewed as follows:-
"1to18....xxx.................................xxx................................xxx
19. Accordingly, we are of the view that the directions of CPCB in question and the O.M. issued by the MoEF&CC need to be revisited by undertaking assessment and evaluation by an expert group of impact of setting up port on overall ecology of the area in question, comprising of atleast five renowned experts, including expert in Marine Biology/Ecology and Wildlife Institute of India which may visit the site and interact with stake holders. Other members can be from 6 EAC dealing with ports and harbours or otherwise. Till such a study is carried out and fresh decision taken, the impugned direction and O.M. in so far as they apply to the Dahanu Taluka ecologically fragile area may not be given effect. It is made clear that it will be open to any aggrieved party to challenge any fresh decision taken in the matter.
20. We have not considered it necessary to issue notice as we are only directing compliance of pre-existing judgment of the Hon'ble Supreme Court. However, we give liberty to the MoEF&CC and the CPCB to move this Tribunal if they are aggrieved by this order."
5. We have heard learned Solicitor General in support of the review application. Contention raised in support of the review application is that vide Notification dated 19.02.2020, the Central Government has declared proposed Vadhavan Port to be a major Port under Section 3A read with Section 5(2) of the Indian Ports Act, 1908 and Section 2(q) of the Major Port Trusts Act, 1963. Thereafter, in pursuance of decision of the Ministry of Shipping and a Cabinet decision, the Jawaharlal Nehru Port Trust (JNPT) has applied for Environmental Clearance (EC) for setting up of Port to the MoEF&CC. ToR have been granted vide letter dated 07.10.2020. Various studies are being undertaken by the Project Proponent (PP) in accordance with the EIA Notification dated 14.09.2006 and the ToRs. It is further stated that judgment in Bittu Sehgal & Anr. v. UOI & Ors. is not final as the review applicant has filed M.A. No. 1169/2019 in Bittu Sehgal case. Further, W.P. (C) No. 287/2020 has been filed by Wadhwan Bandar Virodh Samiti & Anr. v. UOI & Ors. which came up for hearing on 22.02.2021 and notice has been issued.
6. Learned counsel for the original applicant opposed the review application. It is submitted that in view of the judgment of Hon'ble Supreme Court and order of the DTEPA referred to above, proposed Port cannot be set up in ESZ in question. The studies proposed by the PP cannot justify the proposal to set up the Port which stands prohibited under the order of the Hon'ble Supreme Court and the DTEPA. Port is not 7 permissible activity in the ESZ area. Study directed in the order of this Tribunal is required to be in the context of classification orders of the CPCB dated 30.04.2020 and Office Memorandum (OM) dated 08.06.2020 issued by the MoEF&CC. It has to be consistent with the ESZ notification, Supreme Court judgement and binding orders of the DTEPA. It was further submitted that there is no issue about finality of Bittu Sehgal & Anr. v. UOI & Ors. judgment and direction of the DTEPA prohibiting Port in the area in question. Only issue before the Hon'ble Supreme Court is continuation of the DTEPA and the same being headed by a former Judge, as directed by the Hon'ble Supreme Court earlier instead of a bureaucrat.
7. Our attention has also been drawn to further order dated 02.06.2017 passed by the DTEPA in its meeting held on 13.05.2017 considering the objection against setting up of Port by JNPT. Operative part of which is as follows:-
"At the outset Hon. Chairman, DTEPA pointed out that the issue of construction of port at Vadhvan was under consideration of DTEPA and after hearing both the sides, Authority had passed an order on 19th Sept. 1998. Authority's order dated 19th Sept. 1998 was not challenged in any higher Court of Law and, it was not disputed, therefore, achieved finality. For developing such a port in Dahanu Taluka permission form DTEPA is absolutely necessary. Hon. Chairman also pointed out that the Authority has been constituted as per the orders of Hon, Supreme Court and certain mandates are given to the Authority. The Collector is also Member of the Authority. He also pointed out that as per Article 141 of the constitution the order of the Supreme Court is binding on all of us. In spite of this the work is started without any permission.
This is very serious and painful.
During the meeting Hon. Chairman, DTEPA informed that after the receipt of the petition against the proposal to develop a satellite port at Vadhavan, dated 12.05.2017 from the President, Vadhavan Bandar Virodhi Sangharsh Samitee, Vadhavan, copy of the said petition was forwarded to the Additional Chief Secretary (Ports),Home Department, the Collector, Palghar, the Chairman, Jawaharlal Nehru Port Trust, Nava-Sheva and the Chief Executive Officer, Maharashtra Maritime Board, vide letter dated 23.05.2017 for comments/report and advised that their report/comments may be forwarded to this Authority, at the earliest. However, the Authority has not received to the comments/reports from these offices. On this the representatives of various offices said that they have received the letters late. They will submit their reports as early as possible.8
Hon. Chairman, DTEPA asked Shri Narayan Patil, President, Vadhavan Bandar Virodhi Sangharsh Samittee, Vadhavan to state wha is his objection to such a mega Port. Apart from drawing the attention towards the contentions raised in the petition, he stated that in view of het order passed by the DTEPA in the year 1998 construction of such a mega Port will not be in accordance with the Law and, therefore, illegal.
Shri Narayan Patil further stated that though the Authority has passed the order rejecting permission for Vadhavan Port, JNPT has now undertaken various types of surveys, under Police protection. He has reported this factual position to the Member of Parliament, MPCB, CPCB and various concerned offices but has not received any response, therefore, the Vadhavan Bandar Virodhi Sangharsh Samittee was constrained to approach Dahanu Taluka Environment Protection Authority.
Shri Nayaran Patil also pointed out that though the Port is said to be developed in the Sea itself, large back up facilities would be required for the operation of the port such as handling of the Cargo etc., the land will be used for providing access, construction and widening of roads, railway lines, loading and unloading activities, construction of godowns, parking areas of trucks, etc. All this infrastructure will obviously be on the land side.
The representative of JNPT clarified that we have not started any work but we have started surveys to prepare Detailed Project Repot (DPR) to find out the feasibility of the Port.
Shri Debi Goenka, pointed out that MoU has already been signed between JNPT and Maharashtra Maritime Board and it is proposed to develop a major port through port company. He said that from various reports it is gathered that the port will be constructed on sea. But since the port will be major port it may violate the CRZ and Dahanu Notifications.
Hon. Chairman, DTEPA asked the JNPT officers as to how the JNPT is doing such surveys without obtaining the permission from this Authority. So also, when the original petition is transferred to the Bombay High Court and the same is pending. Why JNPT is bypassing this Authority and the Bombay High Court? Because after passing the order in 1998 by this Authority no further action is taken by the MoEF, New Delhi. Further as per CRZ regulation no construction can be permitted in the Sea itself, is a basic question. Even otherwise if the Port is to be developed in the Sea itself, then also the permission from the DTEPA is necessary.
The Principal Secretary (Transport & Ports), Home Dept. while responding to the contentions explaining the need of new port and stated that considering the available draft the site is good for port development. He further clarified that though the Port will the constructed in the Sea, construction of godowns, cargo, roads and other ancillary activities will be necessary. It is no doubt true that such infrastructure will have to be constructed on the lands. He also stated that nobody has an intention to bypass the Authority. He further stated that today only preliminary work is undertaken. He said starting of survey work without the permission of Authority is incorrect he expressed regret for the same. He said that survey and all the 9 related investigations will be stopped immediately. He agreed that no further steps will be taken without the permission of the Dahanu Taluka Environment Protection Authority. The principal Secretary, Home Dept. assured that they will come before the Authority for necessary permission.
Hon. Chairman, DTEPA pointed out that it was necessary for JNPT to submit Detailed Project Report, Map of Vadhavan Port, Proposal for Port, etc. to DTEPA before taking any action to develop such a Port in Dahanu Taluka. In view of this, the chairman further added that it would have been prudent on part of all the concerned departments and agencies related to the newly proposed Vadhavan port to approach the Authority and in consultation with the Authority to explore and plan the baseline investigations and feasibility study. Indeed, it would have been fitting with the responsible practices of governance and management on part of Govt. of Maharashtra, JNPT, MMB and the concerned agencies to take the Authority in confidence and plan the course of action in consultation and after obtaining prior permission from the Authority.
Hon. Chairman, DTEPA reminded that the matter of Vadhavan port was disposed of by the Authority in I99B and it is the legal responsibility of all the concerned actors and agencies to maintain the status quo. Any sue motto action taken without consulting the Authority or any interventions on ground without prior permission from the authority cannot be considered legal. Hon. Chairman, DTEPA directed that JNPT should-not proceed with the development of the Port, without obtaining necessary permission from DTEPA. This was also agreed to.
It was also decided that JNPT should submit detailed project report, map of the Vadhavan Port and other details regarding the Vadhavan Port to DTEPA and as agreed to, till then no further steps should be taken.
After thorough discussion It was unanimously agreed that the status quo should be maintained, and JNPT will not proceed further, without the permission from Dahanu Taluka Environment Protection Authority. It was also agreed that the activists i.e. Vadhavan Bandar Virodhi Sangharsh Samiti will halt their agitation which may disturb the law and order situation in Dahanu and surrounding area and submit their complaints (if any) to the Authority in future. Meeting concluded with Vote of Thanks to the Chair."
8. It is submitted that the Secretary, Ministry of Shipping in his letter dated 05.09.2019 has proceeded on the footing that there is no prohibition on setting up of Port in Dahanu Taluka, which is clearly contrary to judgment of the Hon'ble Supreme Court and order of the DTEPA. The letter is reproduced below:-
"3. On a perusal of the notification issued by Ministry of Environment and Forest (MoEF) dated June 20, 1991 declaring Dahanu Taluka as ecologically fragile and imposing restrictions on the setting up of industries having detrimental effect on the environment it appears that there is no restriction on the setting up of port per se. This Ministry is therefore of the view that setting up of a greenfield port like Vadhavan which will be conforming to the 10 environmental sustainability parameters, and extant Acts and Rules for Environment Clearance will not be violative of the said notification.
4. In addition, under the fresh Regional Development Plan prepared by the State Government, projects of National importance may be permitted with the prior sanction of State and/or Central Government. Thus, construction of a port as a public interest project is now a permissible project under the proposed Regional Development Plan. Therefore, development of Vadhavan Port should be permissible under the Revised Regional Plan of Dahanu Taluka."
9. On same pattern, the MoEF&CC addressed letter dated 24.09.2019 to the Urban Development Department, Maharashtra, seeking their views on the proposal of the Ministry of Shipping. There is also letter dated 13.02.2020 of the Ministry of Shipping to the effect that in principle approval of Cabinet has been granted for setting up of the Port. It is in this background that impugned direction of CPCB dated 30.04.2020 and Office Memorandum (OM) dated 08.06.2020 issued by the MoEF&CC indirectly permitting setting up of Port is stand prohibited under the judgment of Hon'ble Supreme Court and order of the DTEPA. In the application for the EC the PP has falsely stated that ESZ Notification is not applicable to the area. Reference has been made to letter of the MoEF&CC dated 07.10.2020 reproducing the said application relevant part of which is as follows:-
"(xxi) Whether the project is located within the Eco-Sensitive Zone (ESZ) or Eco-Sensitive Area (ESA) notified by the MoEF&CC: NA."
10. We have heard learned Solicitor General at length. We find that the matter being covered by the judgment of the Hon'ble Supreme Court and the orders of the DTEPA, activity of Port is not a permissible activity in the ESZ in question. Mere fact that the PP will carry out EIA studies will not justify deviation from the judgement of the Hon'ble Supreme Court and orders of the DTEPA which still hold the field. The PP appears to have proceeded on erroneous footing in assuming that port in question is permissible but in view of judgement of the Hon'ble Supreme Court and the DTEPA the issue is not open. The PP has given incorrect information 11 in the application for EC to the effect that ESZ Notification is not applicable to the area. Further, scope of M.A. No. 1169/2019 and W.P. (C) No. 287/2020 is not reconsideration of Bittu Sehgal & Anr. v. UOI & Ors. judgment but only about enforcement thereof for continuation of DTEPA. While it is true that notice was not issued while passing order 15.06.2021, the matter being covered by the judgment of the Hon'ble Supreme Court and order of DTEPA, the Tribunal took the view that notice was unnecessary for directing enforcement of judgement of the Hon'ble Supreme Court, reserving liberty to the concerned parties to move this Tribunal. Moreover, we have considered the matter in the light of submissions of learned Solicitor General. We reiterate the order dated 15.06.2021. The Review application is disposed of.
In view of order in the main matter, I.A. No. 48/2021 also stands disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM August 02, 2021 R.A. No. 01/2021(WZ) in O.A. No. 22/2021 (WZ) A 12