National Green Tribunal
Ramdas Janardan Koli vs The State Of Maharashtra on 27 May, 2014
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
MISC. APPLICATION No. 19/2014
IN
APPLICATION NO.19 OF 2013
(An order of Interim Relief in Application No.19/2013)
CORAM:
Hon'bleShri Justice V.R. Kingaonkar
(Judicial Member)
Hon'bleDr. AjayA.Deshpande
(Expert Member)
B E T W E E N:
Shri. Ramdas Janardan Koli
& others, ParamparikMacchimarBachao
KrutiSamiti, Office: At Hanuman Koliwada,
Post N.S. Karanja
Tal. Uran
District Raigad-400704. .........Applicant
AND
1. The Secretary to Govt of India,
Ministry of Environment & Forest,
ParyavaranBhavan,
CGO Complex, Lodhi Road,
New Delhi-110003.
2. The Secretary to Govt of India,
Ministry of Shipping,
ParivahanBhavan, 1, Sansad Marg,
New Delhi-110001.
3. The Principal Secretary,
Relief & Rehabilitation,
Revenue Department,
Mantrayala, Mumbai-400 032.
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(J) M.A. No.19/ 2014 in Appln. No.19 of 2013
4. The Secretary (A.D.F),
Agricultural & A.D.F. Department
Mantralaya, Mumbai-400 032.
5. The Secretary Environment Department
Mantrayala, Mumbai-400 032.
6. The Collector of Raigad,
Alibag, Raigad-402201.
7. The Managing Director CIDCO,
CIDCO Bhavan, CBD Belapur,
Navi Mumbai-400614.
8. The Chairman JNPT,
Administration Bldg. Sheva,
Tal Uran, Navi Mumbai-400707.
9. The General Manager, ONGC
Uran Plant, Uran,
Raigad-400702.
10. The CEO NMSEZ Pvt Ltd.,
Jay Tower, 6th Floor, Sec.15,
CBD Belapur,
NaviMumbai-400614.
.........Respondents
Counsel for Applicant(s):
In person.
Counsel for Respondent(s):
Mrs. UjwalaPawar, DGP/Mr. A.S.Mulchandani, AGP,Mr.
D.H.Patil, Adv for Respondent Nos.1 to 4,6
Mr.D.M.Gupte/Mrs.SupriyaDangre, for Respondent No.5.
Mr. K.D.Kelkar for Respondent No.7.
Mr.KelvicSetalvad, ASG for Respondent No.8.
Mr.SagarGhogre, Mr.Pradeep Sancheti for Respondent
No.9.
Mr.A.V.BhuskileAdv, SurendraJiban Dash, Vice President,
for Respondent No.10.
Mr. Ajay T. Fulmali, (Scientist-I) for MCZMA.
Date: May 27th, 2014
J U D G M E N T
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(J) M.A. No.19/ 2014 in Appln. No.19 of 2013
1. Applicant- RandasKoli and others are members of an organization called "ParamparikMacchimarBachaoKrutiSamiti". They have filed class action vide the instant Application, seeking various reliefs, particularly, in respect of rehabilitation of the families of fishermen, who are allegedly affected on account of construction, expansion, reclamation of the lands and other activities of Jawaharlal Nehru Port Trust (Forshort, "JNPT") as well as to protect the environment. They further challenge MCZMP drawn by State Coastal Authority and approved by CIDCO and activities of Oil and Natural Gas Company (For short,"ONGC"). The Application appears to have been filed by members of the fishermen community purportedly under Section 15 of the National Green Tribunal Act, 2010.
2. The prayers in the main Application may be reproduced as follows:
(A) Equal compensation amount of Rs.32,542/- hectare common tidal land should be given to 1630 project affected local traditional fishermen families according to the current market value (total compensation amount divided by 32542 per family) as per the "The Mahul Creek (Extinguishment of Rights) Act 1922".
Or 3 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 20 % amount of total tidal land lease amount taken by CIDCO & JNPT yearly from various companies should be given as share of project every year to 1630 project affected local traditional fishermen families till the project lasts.
(B) 15 % of the developed land in return of the common tidal land should be given and distributed equally between 1630 project affected local traditional fishermen families.
(C) For getting employment project affected certificate should be given to person (individual) from 1630 project affected traditional fishermen families.
(D) For getting employment training should be given to person (individual) from 1630 affected traditional fishermen families. And give employments without taking any competitive exams.
(E) For the loss of local fishing business 1630 traditional individual fishermen family should be given loss compensation of 10 lacs by the four projects.
(F) For livelihood permanently rupees 10 thousand per month, increased livelihood as per dearth instead of local fishing business should be given to 1630 project affected traditional fishermen families by four projects till the project lasts.
(G) Permanent arrangement for free educational, technical and professional studies of children from 1630 project affected local traditional fishermen families should be made by project till the project lasts.
(H) Free medical services to 1630 project affected local traditional fishermen families in 4 Koliwada's should be provided permanently by the projects till the project lasts.
Or 4 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 If above mentioned demands are not affordable then out of 23,542 hectares of fishing zone (costal land) each family should be given 1 hectare aquaculture (fishing) pond and like this 1630 ponds should be prepared and given.
(I) According to the Government Policy, first 'Rehabilitation then project' all the projects on tidal environment must be kept as it is until rehabilitation of 1630 project affected traditional fishermen families is not done.
3. Since we are not contemplating final disposal of the main Application, it would suffice to set out substance of the rival pleadings, in order to understand nature of the dispute, and objections raised by main contesting parties.
4. In the outskirts of Mumbai, there were/are number of hamlets/pockets of lands/islands occupied by the traditional fishermen for their residences. They mostly reside at Sheva, Nhava, Gavhan, Belpada, Sonari, Jaskhar, Panje, Dongri, Funde, Uran and Elephanta. Around these small localities there are creeks and water bodies of Arabian Sea, where spawning of fishes and feeding grounds are located. These areas are enriched by surrounding mangroves. The coastal dynamics provide adequate eco-system for sustainability of aquacultural and biodiversity in the area, traditional fishermen used to earn their livelihood by catching stock of fishes in the traditional nets in the area. Of course, they have no property right over the seawater. It was only a customary fishing right 5 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 available to them, which they had inherited for generations together.
5. State of Maharashtra decided to develop new township beyond old limits of Mumbai, and therefore, approached CIDCO for the purpose of such development. The CIDCO moved proposal to develop new city called "Navi Mumbai" outside the periphery of old Metro city of Mumbai. Certain lands were acquired by CIDCO for such purpose. The CIDCO prepared Coastal Zone Management Plan (CZMP). A parcel of land was given to JNPT (Respondent No.8), for establishment of new port. A small piece of land was given to ONGC and permission was also given to lay down underground pipeline, below the bed of sea. The CZM Plan was approved by the Ministry of Environment and Forests (MoEF).
6. The Applicants have come out with a case that they had approached the Human Rights Commission, because due to Port activity of JNPT, the project of CIDCO, ONGC and NMSEZ, their traditional rights of fishing were impaired, diminished and seriously jeopardized. Their livelihood was endangered due to such activities of the said Authorities, particularly on account of expansion of activities of JNPT. The Human Rights Commission by its order dated February 2nd, 2010, directed the Collector of Raigad to provide appropriate relief and to rehabilitate the 6 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 traditional fishermen, who were affected due to the projects.
7. The Applicants allege that JNPT now has plan to reclaim and close 1500 mtrs wide main estuaries of various creeks between Sheva and Nhava islands, which are natural sources for tidal flow of water and Monsoon water management system, which covers 200 sqkms area. This attempt to close down the entrance route of boats used by traditional fishermen, which operate through the creeks, will certainly affect their rights. They will be deprived of fishing rights in the area, because they will not be able to navigate their fishing boats in the seawater adjoining the proposed 4th berth of the port. Widening and deepening of the channel will affect the tidal watercourse and environment around the area. JNPT proposes to reclaim the total tidal/fishing area. JNPT has also created artificial obstructions in the natural flow of the water by putting up small bridges/cement pipes etc. which cause damage to the ecology and rights of the fishermen. The opening of estuaries will be narrowed down between Nhava and Sheva, if the JNPT will be allowed to reclaim any part and go ahead with the project for expansion of berth No.4. Thepipelines of ONGC are connected to Uran plant and Trombay Refinery within tidal land, below 2 mtrs of seabed. There was leakage from the pipeline. The oil spilled 7 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 over from the pipelines has caused damage to the marine life. The pipelines of ONGC cause obstruction to the flow of High Tide and Low Tide and therefore, are detrimental to the environment. The Fisheries Commissioner, duly considered request of the fishermen and awarded compensation to them. The Collector, Raigad also directed that the project should not be continued till rehabilitation of fishermen is done. Insptie of directions by the Competent Authorities, according to the Applicants, the JNPT and ONGC are repeatedly going ahead with the same activities, which are detrimental of the environment and have caused loss to their livelihood. Hence, they have filed the Application.
8. By filing reply affidavit of Shri. SidramKallapaHulle, the Secretary of Animal Husbandry, Dairy and Fisheries, - Respondent No.4, supported most part of the application. The Respondent No.4 admitted that Government of Maharashtra had constituted a Committee to consider the grievances of the Applicants in respect of loss caused to them due to various projects undertaken by CIDCO, JNPT, ONGC and NMECZ. It is stated that by Resolution dated 17th March, 2010, the Committee finalized liability of Rs.12, 448.98 lakhs on JNPT, NMECZ and ONGC. Thus, the above named three (3) stake holders were fastened with liability to pay compensation to the 8 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 families of the fishermen, as per Report of the Committee, constituted by the Collector of Raigad. It is stated that the Respondent No.8, (JNPT), refused to pay compensation amount as directed by the Committee and challenged such order, stated in the Govt. Resolution dated 17th March, 2010, by filing Writ Petition No.1110 of 2013, in the Hon'ble High Court of Bombay. The Respondent No.4, states that the activities of JNPT have caused damage to the environment and therefore, the Applicants are entitled to claim compensation. The Respondent No.4 claims to have opposed the contentions raised in the Writ Petition No.1110 of 2013, filed by the Respondent No.8 (JNPT), in the Hon'ble High Court of Bombay. The Respondent No.4 submits that the Respondent Nos.8,9 and 10, shall be directed to pay compensation to the Applicants/fishermen, as per the decision of the Committee.
9. The Respondent No.8 (JNPT), resisted the Application by filing affidavit of Smt. Yogeshwari A. Bhatt, the Manager (Port Planning and Development department) JNPT. In substance, it is the case of the Respondent No.8 thatthe Application is barred by limitation and not at all maintainable, because it does not involve any 'substantial question' relating to implementation of statute mentioned in Schedule-I, appended to the National Green Tribunal Act, 2010. It is contended that having regard to the prayers 9 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 noted above, the reliefs claimed by the Applicants pertaining to implementation of "The Mahul Creek (Extinguishment of rights) Act,1922", which is not cover by Schedule-I, of the NGT Act, 2010,the Application itself is not maintainable. It is further contended that the Application does not show any 'cause of action', which would show existence of "substantial dispute relating to environment". It is further contended that rehabilitation of project affected persons, is not within domain of the JNPT and as such, the latter has no legal obligation to perform in this behalf. Consequently, the JNPT has raised preliminary issue regarding maintainability of the Application and also about the limitation.
10. Aside from above preliminary objections, JNPT claims that it has executed the project work by following necessary conditions enumerated under the Environmental Clearance Certificate granted by the M.o.E.F. JNPT has pointed out that it has paid the amount required for acquisition of lands. It is further pointed out that the Applicants have no right whatsoever to claim any land, nor they have any right over the seawater. JNPT categorically denied that development of the Port has affected tidal environment and impacted livelihood of the traditional fishermen families.
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11. According to JNPT, the Port is a major Port created under the Special Enactment, namely, the Major Port Trusts Act, 1963, and it is within the power of Port Authority to decline or grant permission for fishing activity or any other activity within the boundary limits of the Port. Still, however, the fishermen of the villages in Nhava creek do certain fishing activities within the Port area only because they are not obstructed on humanitarian grounds. The Port has installed markers indicating location of rocks, patches and shallow deeps in the Harbor area.
12. It is stated that JNPT has proposed reclamation of about 200 Ha land for project development of 4thcontainer terminal and 27 Ha land under the project "standalone of container terminal of 330 m and other facilities". JNPT submits that it has incurred heavy expenditure towards the construction of roads, for implementation of scheme, to supply water to village Belpada, employment of 44 persons from village of Hanuman Koliwada, 62 persons from village Belpada and other rehabilitation programme. JNPT would submit that compensation to be paid to the fishermen is the policy decision that will have to be taken by the Central Government, having regard to policy followed at other Coastal States. JNPT has denied all the material averments made in the Application and particularly its legal liability including the allegations that 11 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 it has caused damage to the rights of the Applicants/fishermen.
13. By filing reply affidavit of PrabhakarMhatre, officer attached to the Respondent No.9, Respondent No.9, (ONGC) also raised identical preliminary objectionsand resisted the Application on various grounds. According to the Respondent No.9 (ONGC), the work of UranTrombayJawahar creek oil pipeline was completed prior to 31st March, 2007 and the same pipeline was commissioned w.e.f. 31st March, 2007. So also, the gas pipeline laid between Uran and Trombay was completed prior to 30th May, 2008 and therefore, the present Application filed after such a long delay in the year 2013, is hopelessly barred by limitation. It is denied that due to improper maintenance of the pipeline, there was leakage which caused spilling of the oil in the seabed and therefore, the aqua-culture is seriously jeopardized. It is stated that the Applicants are indulging in multiplicity of the proceedings. It is further stated that Fora of the NGT cannot be used for execution of the orders passed by the National Human Commission or by any other Agency/competent forum. It is stated that the Respondent No.9, (ONGC) had taken approximately 125 Ha of land from CIDCO on lease basis for its Uran plant along with the Right of Use (RoU) for lying Uran-Trombay oil and gas 12 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 pipelines through various villages of UranTaluka, under the Petroleum and Minerals Pipelines Act, 1962. ONGC claims to have paid its part of compensation to CIDCO, for those acquired lands. Therefore, ONGC has no legal responsibility to pay anything more. ONGC, however, has given employment to some of the local residents to help them out of humanity. It is pointed out that the Association of Fishermen had filed a suit in the Civil Court at Uran bearing Civil Suit No.14 of 2007. The Application for interim injunction was dismissed by the learned Civil Judge, in that suit, after taking inspection of the disputed site. Thus, it is contended by ONGC (Respondent No.9) that the Applicants are trying to avail multiple remedies here and there to somehow or the other, get compensation or any other suitable relief, though they are not at all entitled to claim anything.
14. We have heard learned Counsel for the parties. We have duly considered rival pleadings and the documents placed on record.
15. Before we proceed to consider merits of the matter in relation to the nature of interim relief, it would be appropriate to first deal with preliminary objections of the main contesting Respondents i.e. JNPT and ONGC (Respondent Nos.8 and 9). Learned A.S.G. Mr. KelvicSetalwad, would submit that the Application itself 13 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 shows that delay caused in rehabilitation gave rise alleged to 'cause of action'. He would submit that such averments in the Application have no nexus with the Port activities of JNPT and therefore, the Application is not maintainable against the latter. He would submit that the Applicants are claiming compensation for area of 32562 Ha land, but failed to show basis for such calculation and rationale for such a claim. He contended that the lands were acquired for establishment of JNPT in or about 1984-86 and the Port was established in 1989. So, the Application filed for compensation due to loss caused on accountof alleged establishment of Port is barred by limitation. He would submit that the claim of the Applicants, is founded on so called right available under "The Mahul Creek (extinguishment of rights) Act,1922", which is outside the list of the Enactments indicated in the Schedule-I of the NGT Act, 2010, and therefore, the Application is untenable. He would therefore, submit that therefore, that preliminary issue about maintainability of the application, may be framed and first decided before going to the main Application. Similar argument is advanced by learned Counsel Mr. SagarGhogre, on behalf of ONGC (Respondent No.9).
16. At this juncture, it is important to note that we are not inclined to decide the merits of the matter and 14 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 therefore, it is not necessary to examine whether the Applicants, prima facie, have established loss of livelihood, degradation of environment, loss of Flora and Fauna and damage to ecology, so on and so forth, which are the issues pertaining to environmental dispute. True, " TheMahul Creek (Extinguishment of rights) Act, 1922", is not shown in the list of enactments in Schedule-I, appended to the NGT, Act 2010. The Application, however, does not show only the implementation of the provisions of that Act. The Application further shows that compensation for loss of fishing business shall be given to the Applicants. Section 15 of the NGT Act, may be reproduced for ready reference:
"Section 15: Relief, compensation and restitution: -
1. The Tribunal may, by an order, provide,-
a. relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
b. for restitution of property damaged; c. for restitution of the environment for such area or areas as the Tribunal may think fit.
2. The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub- section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.
3. No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on 15 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 which the cause for such compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
4. The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
5. Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
17. A plain reading of Section 15,(1) (a) will make it clear that the Tribunal is competent to provide a (i) relief of suitable nature and (ii) compensation to the victims of pollution and/or environmental damage. It is true that such pollution and other environmental damage should be outcome of the enactments specified in Schedule-I, of the NGT Act. The Schedule-I covers "Environment (Protection) Act, 1986, as well as the Biological Diversity Act, 2002". Although the Applicants have not stated both the enactments, in particular, in their pleadings, yet from tenor of their pleadings, it can be gathered that the compensation is being sought due to loss of livelihood, as a result of damage caused to environment due to Port activities and the activities of ONGC. Whether the 16 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 allegations will be substantiated by them or the allegations will not be accepted by the Tribunal, is subsequent question that will have to be determined after consideration of the merits. Still, however, we cannot prima facie disassociate the Application from coverage area of the Environment (Protection) Act, 1986, read with the Biological Diversity Act, 2002. Needless to say that merely because the "The Mahul Creek (Extinguishment of rights) Act, 1922", is not enlisted in the Schedule-I, of the NGT Act, the Application cannot be prima facie held as untenable.
18. We cannot overlook that expression 'cause of action' not imply bundle of facts. So, if the chain of unfolding of the bundle of such facts continues, then 'cause of action' also would remain continued. The Application filed for compensation and restitution under Section 15 of the NGT Act, within period of five (5) years of the first day of 'cause of action' can be entertained. It is argued that the Applicants are asking for compensation, though same claim was allowed by the Committee constituted by the Govt. of Maharashtra. It is contended that the NGT cannot execute the orders of the Committee. It is further contended that the Applicants are seeking multiple remedies. We do not find any merit in such argument. We are of the opinion that parallel remedy can 17 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 be availed by the Applicants. The administrative action taken by the State Government, would not deprive the Applicants from resorting to the legal remedy available to them. In case, the Hon'ble High Court would pass any prohibitory order, then of course, the things can be viewed differently.
19. It would not be out of place to reproduce certain observations of the Hon'ble Principal Bench in its Judgment in matter of "Goa Foundation and AnrVs Union of India and Ors" (MA No.49/2013 in Application No.26 of 2012) delivered on July 18th 2013. The Hon'ble Principal Bench observed:
"the object and reasons of the scheduled Acts would have to be read as an integral part of the object, reason and purposes of enacting the NGT Act. It is imperative for the Tribunal to provide an interpretation to Sections 14 to 16 read with Section 2(m) of the NGT Act, which would further the cause of the Act and not give an interpretation which would disentitle an aggrieved person from raising a substantial question of environment from the jurisdiction of the Tribunal.
20. In case of "Maharaj Singh v. State of Uttar Pradesh" (1977) 1 SCC 155, Hon'bleSupreme Court observed that "a legal injury creates a remedial right in the injured person. But the right to a remedy apart, a larger 18 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 circle of persons can move the Court for the protection or defence or enforcement of a civil right or to ward off or claim compensation for a civil wrong, even if they are not proprietarily or personally linked with the cause of action. The nexus between thelis and the plaintiff need not necessarily be personal, although it has tobe more than a wayfarer's allergy to an unpalatable episode". Further in the case of Dr. DuryodhanSahu and Others v. Jitendra Kumar Mishra and Others (1998)7 SCC 270, the Supreme Court, held that "although the meaning of the expression 'person aggrieved' may vary according to the context of the statute and the facts of the case, nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something". In jasbhaiMotibhai Desai v. Roshan Kumar, AIR 1976 SC 578the Court held that "the expression 'aggrieved person' denotes an elastic, and to an extent, an elusive concept". It stated as follows:
"It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the 19 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him".
"34 We may also notice another settled principle of the Rule of Law that the plea of rejection of a plaint is founded on the 'Plea of Demurer'. A person raising such plea in law has to take the facts as stated by the opponent in the petition as correct. Despite such tentative admission of correctness, a plaint that does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order VII, Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by way of judicial pronouncement of various Courts so as to take within its ambit even the documents filed by the plaintiff along with plaint or subsequent thereto but prior to the hearing of such application.
21. It is argued that the preliminary issue is required to be framed under Order 14, Rule 2 of the C.P.Code, before considering the Application on merits, or before passing of any interim order. We do not agree. The reason is not far to seek. Section 19 of the NGT Act, 2010, clearly reveals that the Tribunal is not bound by the procedure 20 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 laid down by the Code of Civil Procedure, 1908. It is manifested from expressions used in Sub-sections (1) and (2) of Section 19 that the NGT shall have power to regulate its own procedure. Obviously, the proceedings before the NGT are not necessarily put in the jacket under the strict procedural provisions of the Code of Civil Procedure, 1908. In other words, there is scope to have an appropriate flexibility in the procedural matters when such Applications are to be dealt with. At this juncture, Sub- clause (4), of Section 19 may be reproduced for ready reference:
Section 19 : Procedural Power of the Tribunal.
1. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
2. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
4. The Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of following matters, namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits; 21 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013
(d) subject to the provisions of Section 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses and documents;
(f) reviewing its decision;
(g) dismissing an application for default or
deciding it ex parte;
(h) setting aside any order of dismissal or any application for default or any order passed by it ex parte;
(i) pass an interim order (including granting an injunction or stay) after providing the parties concerned an opportunity to be heard, on any application made or appeal filed under this Act;
(j) pass an order requiring any person to cease and desist from committing or causing any violation of any enactment specified in Schedule I;
(k) any other matter which may be prescribed.
(Emphasis supplied)
22. A bare perusal of Sub-clause (4) of Section 19, would indicate intention of the Legislature. In our considered opinion, only certain provisions of the C.P.Code 22 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 are needed to be used by this Tribunal for the purpose of discharging its function under the NGT Act. Sub-section (4) of Section 19, speaks about investure of powers in the NGT, in certain category of matters, which are shown in respect of sub-heads (a) to (j). Under these powers, there is power under sub-head (i) available to the NGT, to pass interim order on any Application made, or Appeal filed under the NGT Act, 2010. We may mention here that there is no specific power available to frame preliminary issue under Order 14, Rule 2, or to dispose of the matter on technical grounds, defects in pleadings etc. as a matter of right available to Respondents by way of defence. We may also point out that under Rule 13 (3), of the NGT (Practices & Procedure) Rules, 2011, it is not necessary to present a separate Application to seek interim relief or directions in the original Application or Appeal. Here, it may be also noted that Sub-head (k) of the categories enumerated in Sub-clause (4) of Section 19, specifically provides that the Legislature may prescribe any other matter about which the NGT may be vested with powers available to the Civil Court, under the Code of Civil Procedure. This negative language or rather language which keeps other options open for the Legislature, is the positive indication of the Legislative intent to exclude any other matter, except and save, the matters enumerated in the categories of Section 23 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 19(4) (a) to (j) from applicability of the Code of Civil Procedure, for the purpose of proceedings before the NGT. Considering these aspects, we find it difficult to countenance the argument advanced on behalf of JNPT and ONGC.
23. True, the Applicants have not presented the Application in the regular format, as required under the National Green Tribunal (Practices and Procedure) Rules, 2011. Still, however, technical difficulties can be removed in due course of the proceedings. The Applicants are members of Fishermen community. The pleadings may have been presented in crude language and format. The pleadings might not have undergone the process of articulation, refining and glossing method. Even so, we do not think it proper to reject the Application ruthlessly, at the outset only because there are certain defects in the pleadings and the format.
24. So far as the question of interim relief is concerned, it is important to note that the written statement filed on behalf of the Respondent No.4, - the Secretary (A.D.F) Agriculture and ADF department, clearly supports the case of the Applicants. The Secretary of Animal Husbandry, dairy and fisheries, states that in order to protect the interest of the fishermen and their livelihood, the Government has passed the Resolution dated 17th 24 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 March, 2010, whereby liability to pay the compensation of Rs.12448.98 lakhs, is fixed on JNPT, NMSEZ and ONGC. It is stated that the Applicants are members of traditional fishermen community and are r/o Hanuman Koliwada, UranKoliwada and GavhanKoli and other areas, since immoral period. It is further stated that under the provisions of "The Mahul Creek (Extinguishment of rights) Act, 1922" the Collector of Bombay was empowered to issue order for grant of compensation towards any loss or damages caused to any person due to extinguishment of such rights, in the same manner, on the person, on par like section 7 of the Land Acquisition Act, 1894. Thus, the traditional fishermen, who sustained damage due to loss of livelihood, as a result of establishment of the Port, reclamation of lands, loss of mangroves, loss of marine life and loss of right to have egress and ingress in the sea area, are required to be duly compensated. It is stated by the Assistant Commissioner of Fisheries that due to loss of livelihood, the traditional fishermen are entitled to receive compensation, as decided by the Committee constituted by the Government, in accordance with the Govt. Resolution dated 17th March,2010. This affidavit of the Assistant Commissioner of Fisheries, cannot be lightly brushed aside. It is the version of one wing of State Government, which supports case of the Applicants. The case of the 25 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 Applicants is, therefore, prima facie corroborated atleastby one wing of State Government.
25. Perusal of the affidavit of Smt. Yogeshwari Bhatt, no doubt, reveals that all the Port activities are being done, in accordance with the consent granted by the MPCB. It is stated that JNPT, has not caused any pollution and/or environmental damage and has never caused loss to the marine life, due to the Port activities. It is denied that 1630 traditional fishermen's families are affected due to establishment of the Port by JNPT. It is also denied that extension of the Port activities/expansion of the Port due to proposed 4th berth, there will be destruction of mangroves, loss of tidal waves and the right of egress and ingress for fishermen's boats, will be seriously jeopardized.
26. The reply affidavit of Shri. PrabhakarMhatre, filed on behalf of ONGC, shows that there is complete denial to the allegations regarding liability to pay compensation to the Applicants due to leakage of gas pipeline. It is alleged that the Application is filed beyond five (5) years period of limitation. According to ONGC, the Applicants cannot claim any compensation because JNPT and ONGC, have already paid the amount of land, which was acquired for establishment of the Port and the land to install/establish UranTrombay pipeline project. In any case, the liability to pay compensation to the affected land owners, is that of 26 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 CIDCO and not of ONGC. It is stated that only portion of - UranTrombay pipeline to the extent of 7 kms passes through seabed under Marshy land, and as such, there is no impact of this pipeline on the business of fishermen community. It is denied that ONGC, is liable to pay compensation to the Applicants due to destruction of stock of fishes in the area, due to oil leakage. It is pointed out that Fishermen'sAssociation had filed a Civil Suit No.14 of 2007, in the Court of learned Civil Judge, (J.D), in which relief of temporary injunction was rejected.
27. We have also gone through the affidavit filed by RajaramNaik, Executive Engineer of CIDCO. The affidavit does not spell out anything significant in support of either party. It is stated that CIDCO prepared Coastal Zone Management Plan (CZMP), which was approved by the MoEF. The affidavit shows that the lands were allotted to JNPT and ONGC, in accordance with the CZMP for the projects stated in the affidavit. There is no dispute about such a plan.
28. We directed the Environment Department, State of Maharashtra, to visit the disputed sites, in presence of the officers of JNPT, CIDCO and the representatives of Applicants. Additional affidavit of Shri. Ajay Fulmali, Scientist-I, filed on 2nd April, 2014, is worth consideration. The additional affidavit shows that as per directions of this 27 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 Tribunal, MCZMA members visited six (6) sites located in the area of JNPT and CIDCO area along with officials of JNPT and CIDCO and the representatives of the Applicants on March 22nd, 2014. The observations during course of the joint visit of the stakeholders may be reproduced for ready reference:
(a) 330 m. extension to existing jetty of JNPT at Nhavacreek It is observed at the above site by the MCZMA team that, reclamation or land filling in the creek/seawater is not done. However, pilling work for the berth was found to be in progress at the above site and the said activities are not affecting the water circulation in the creek and foreshore region.
(b) Site near Port user building (PUB) of JNPT At the above site, MCZMA team observed that debris is only partially removed from the creek by the JNPT, due to which, restoration of the width of the creek and natural flow of tidal water is not achieved. Mangroves replantation programme is also not undertaken by the JNPT.
It is further observed that even though, after issuing directions to the JNPT, issued under section 5 of the E (P) Act, 1986 dated 27.11.2013 28 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 & 12.12.2013, the JNPT failed to remove the debris from the creek completely to ensure the free flow of tidal water and restore the width of the creek as well as re-plantation of the mangroves along the creek.
(c) Area near petrol pump at port user building (PUB) At the above site, MCZMA team observed that ongoing earth filling and leveling activity being done in 22 ha area, which is located between Air force road and 45 m container road and as per the approved CZMP of JNPT of the year 2005 which shows that road facing belt of this site falls party under CRZ II and remaining portion is in non CRZ.
(d) 4th phase marine and chemical terminatl of JNPT At the above site, MCZMA team observed that no work has started. However, at liquid terminal near the above mentioned site, pilling work for mooring dolphin structure for anchoring/tying for the ships was observed.
(e) Pipe outlet structure for Holding pond no.2 at Dronagiri node 29 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 At the above site, MCZMA team observed that the work of construction of pipe outlet structure was being done by CIDCO. CIDCO officials informed that work of construction of pipe outlet structure for holding pond no.2 is being carried out along with flat gate installation, in order to control the flood of Dronagiri Node.
It is further observed by MCZMA team that, in and around the construction site, thick mangrove vegetation (dominated by the avicennia marina locally known as Tivar) was found and the construction site is found close to the creek and thereby diverting the flow of creek water which is a feeder source for the entire mangrove vegetation towards village Chanje. During the site visit, representative of CIDCO produced a copy of order dated 28th July 2008 passed by the Hon'ble Bombay High Court, wherein, Hon'ble High Court at page 5, last paragraph has permitted reconstruction of pipe outlet structures in case of Dronagiri node. MCZMA team asked CIDCO officials to furnish the necessary details of pipe outlet structure and various permissions obtained in this regard. 30 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013
(f) Mangroves destruction at Chanje Village (Site mention in Sakal newspaper dated 10th Feb, 2014) At the above site, MCZMA team observed that there is a creeklet connecting to main creek of length around 700m to 800m with intermittent sparse mangrove along it. Team observed that the creeklet was being filled with debris/soil (20m x 3m area) at the downstream, due to which, free flow of tidal water is found to be obstructed. Similarly, temporary road was found constructed near fishing harbour across the creeklet(at the mouth of creeklet) thereby also affecting the free flow of Tidal water into the creeklet from main creek. The MCZMA team, in this regard, recommends immediate removal of soil/debris from the channel (at the mouth and in the downstream portion of the creeklet) to ensure free flow of tidal water through the creeklet for the dependent mangrove vegetation and debris should not be dumped near the mangroves.
At 'Chanje' village, MCZMA team observed mangroves vegetation around the site located in Sector 56, wherein the sign board of 12.5% 31 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 scheme of CIDCO was noticed. Heap of soil was observed close to mangrove patches around this site due to which mangroves vegetation may get affected. MCZMA recommends that CIDCO to ensure protection of Mangroves.
29. The photographs and the details of observations mentioned in the report, go to show that mangroves pre- plantation programme is not undertaken along the creek, as per the conditions enumerated in the EC, granted to the project of JNPT. It is further observed that road facing belt of JNPT site partly falls under the CRZ-II and remaining part thereof is in non-CRZ area. It is also noticed that pilling work for mooring, dolphin or anchoring/tying for the ships at temporary terminal was undertaken by JNPT. The joint inspection also showed that there was debris at the mouth of the channel in the downstream portion of the Creek-let, which obstructed free flow of tidal water useful for mangroves vegetation at Chanje village, spillage of oil were observed adjoining mangroves patch, which affected mangroves vegetation. The photographs at P-13, go to show that the creek-let, was being filled with debris/soil due to which free flow of tidal water was being obstructed at Change village. Thus, the joint inspection report, prima facie, lends corroboration to case of the Applicants. We can gather from the record that expansion of the Port activities 32 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 including project of 4th berths' commissioning after narrowing the creek let, situated between Nhava and Sheva, will create artificial bottleneck in the free route of the tidal water flow, which would make it difficult for the fishermen's boats to have egress and ingress in the Arabian Sea, near the area of proposed 4th berth, which is to be expanded by JNPT. The record shows that reclamation of land in the area, is likely to cause environmental damage to Flora and Fauna. The stock of fishes, spawning, breeding and marine culture will diminish stock of fishes and variety thereof within the area of sea, near the creek. The traditional fishermen would be at the receiving end. An attempt is made to show that the traditional boats of fishermen are of small size and could easily sail through the small cleft available at the place. We do not approve such kind of argument. The fishermen are traditional, not their boats. The boats have changed as per changing time and finances available to the fishermen. Unless sufficient passage is available to the medium size boats of the fishermen, there is potent damage that such boats would be capsized or will be unable to return for a long time to the village area. Considering these practical difficulties, it will have to be said that the Applicants have made out prima facie case to infer that potential threat to the environment and the Flora and Fauna in the area. As 33 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 stated before, the Committee of the Govt. Authorities, including the Director of Fisheries, the Collector of Raigad etc. found that the traditional fishermen are entitled to compensation due to loss of source of their livelihood.
30. An attempt was made to resolve the problem. The learned Chief Secretary of the State of Maharashtra, intervened in the matter. It appears from the record that insptie of intervention of the learned Chief Secretary of State of Maharashtra, no solution could be arrived at, inasmuch as JNPT and ONGC, flatly refused to pay any compensation to the traditional fishermen. This fact is explicit from affidavit of Shri SidramKallpaHulle, Assistant Commissioner of Fisheries. His affidavit shows that a meeting was held on 6.7.2014, under chairmanship of the learned Chief Secretary of State of Maharashtra, for amicable settlement of the issues involved in the matter. The affidavit further shows that JNPT and ONGC, declined to pay the amount of compensation to the families of fishermen, as directed vide communication dated 30th October, 2012, by the Fisheries Department. However, ONGC, expressed desire to undertake development project for welfare of the fishermen under CSR programme. The categorical plea of both the stakeholders was that they have paid huge amount to CIDCO for R & R purpose and 34 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 therefore, now are not required to participate in any compensation programme.
31. In our opinion, there is potent threat of environmental damages caused due to expansion of the Port activities of JNPT and development activities of CIDCO. The spillage of oil by faulty maintenance of the pipeline also has contributed to loss of environment and ecology. This matter, therefore, requires grant of interim relief. However, contribution of ONGC, is not much as compared that of JNPT. We are of the view that by way of interim-measure JNPT shall deposit an amount of Rs.20 Crores and ONGC shall deposit amount of Rs.10 Crores, with the Collector, Raigad, within period of four (4) weeks hereafter. The amount shall be placed by the Collector, Raigad in Escrow Account for disbursement to the families of fishermen, in terms of final order, which may be passed in this Application, or any order that may be passed by the Hon'ble High Court. This order itself is subject to any order, which may be passed by the Hon'ble High Court in the Writ Petition filed by JNPT.
32. We further direct that JNPT, shall remove soil and artificial blocks/obstructions created in the natural flow of tidal water in the creek between Nhava and Sheva islands, which may obstruct egress and ingress of the boats of fishermen or cause obstruction for turning of the boats on 35 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 eastern side after taking turn beyond proposed 330 m, 4 th berth, unless permitted by the M.o.E.F after due compliances of stipulated conditions of the E.C. or by any order of the Hon'ble High Court.
33. We direct that JNPT, shall immediately undertake the work for restoration of mangroves, which have been destroyed, in order to comply with the conditions of EC, granted for the project of Port/Expansion thereof.
34. No further destruction of mangroves or reclamation of land, shall be undertaken by JNPT, CIDCO or ONGC without approval of competent Authority.or unless allowed by the Hon'ble High Court/N.G.T. The Miscellaneous Application is disposed of accordingly. Stand over to 11th July, 2014, for further directions/compliances/hearing.
.............................................,JM (Justice V. R. Kingaonkar) ..........................................., EM (Dr. Ajay.A. Deshpande) 36 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013 37 (J) M.A. No.19/ 2014 in Appln. No.19 of 2013