Avishek Paul Chowdhury vs The State Of West Bengal on 14 February, 2023

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National Green Tribunal

Avishek Paul Chowdhury vs The State Of West Bengal on 14 February, 2023

1. This order will deal with OA No. 32/2022/EZ and OA No. 52/2022/EZ as the issue raised in both the applications relates to permissibility of project of construction of Hotel Sonar Bangla in Sundarbans, West Bengal by the project proponents (PP) M/S Avishek Paul Chowdhury, Aninda Paul Chowdhury, Jhunu Paul Chowdhury and Christina Paul Chowdhury who are applicants in OA No. 52/2022/EZ and de facto respondents in OA No. 32/2022/EZ. OA No.32/2022/EZ is against the project while OA No. 52/2022/EZ is against rejection of the project by the West Bengal State Coastal Zone Management Authority (WBCZMA) on 6.12.2021.

2. At the outset, we may note unique environmental significance of Sundarbans. It was declared core area of Sundarbans Tiger Reserve in 1973, Wildlife Sanctuary in 1977, National Park in 1984, world heritage site declared by UNESCO in 1987 and notified as Ramsar Site in 2019. It is a wetland included in the National Wetland Atlas. As per Supreme Court judgement in M.K. Balakrishnan vs. Union of India & Ors.1 Wetland Rules apply prohibiting constructions in its buffer zone. It is considered as habitat of endangered species in 2020 as per assessment by IUCN and included in the red list of eco-system. It is Critically Vulnerable Coastal 1 (2017) 7 SCC 810 2 Area (CVCA) under the Coastal Regulation Zone (CRZ) notifications of 2011 and 2019 issued by the MoEF&CC under the EP Act, 1986. As per the said notifications and Supreme Court judgement in Kapico Kerala Resorts Pvt. Ltd. vs. State of Kerala & Ors.2, no construction is permissible in CVCA. It has mangroves which brings the area in CRZ I (as per 2011 CRZ) and CRZ IA ( as per 2019 CRZ) where constructions are not permissible. Mangroves have high rate of carbon capture capacity which contributes to mitigation of climate change. Mangroves consolidate mudflat soil and hinder erosion activity during tidal regimes or storm surges. They are salt-tolerant trees or shrubs that grow in water, with their roots emerging from the water. Mangrove ecosystems provide important ecosystem services for flood protection in coastal areas and also benefit the region economically. Construction of concrete structures near coast changes its geological characteristics and causes irreversible damage to the mangrove ecosystem.

Further details of pleadings, material on record and proceedings in two cases

3. We may now briefly note the pleadings and material on record.

4. In OA No. 32/2022/EZ, grievance of the applicant is that construction of hotel Sonar Bangla in Sundarbans, West Bengal is in violation of CRZ Notifications dated 2011 and 2019 and the Wetlands (Conservation and Management) Rules, 2017. The area where the project has been set up falls within CVCA, apart from being in CRZ I as per 2011 CRZ and IA as per 2019 CRZ which is No Development Zone (NDZ). The PP has constructed ten cottage like structures, swimming pool, apart from other structures as a part of the project in the close vicinity of tidally affected water body and mangroves which is source of continuous 2 (2020) 3 SCC 18 3 ecological degradation of mangroves forest and rich biodiversity. Apart from being part of CVCA, Sundarbans is a wetland included in the National Wetland Atlas. Reference has been made to the judgments of the Hon'ble Supreme Court inter-alia in and M.K. Balakrishnan vs. Union of India &Ors.3 It is submitted that mangrove has high rate of carbon capture capacity and contributes to mitigation of climate change. Mangroves consolidate mudflat soil and hinder erosion activity during tidal regimes or storm surges. They are salt-tolerant trees or shrubs that grow in water, with their roots emerging from the water. Mangrove ecosystems provide important ecosystem services for flood protection in coastal areas and also benefit the region economically. Construction of concrete structures near coast changes its geological characteristics and causes irreversible damage to the mangrove ecosystem. The project in question has been constructed in 2018 in NDZ and CVCA. The Hon'ble Supreme Court in Kapico Kerala Resorts Pvt. Ltd. (supra) held that no construction is permissible in CVCA.

5. This application was filed on 3.3.2022 and came up for hearing on 22.03.2022. The Tribunal issued notice to the respondents including the PP, WBCZMA, State Wetland Authority, District Magistrate, South 24 Parganas District, and MoEF&CC.

6. Replies have been filed by the concerned respondents. Stand of the MoEF&CC is that no CRZ clearance has been issued for the project in question. Stand of the WBCZMA is that establishment of hotels is not permissible in the area in question. Construction has been raised without approval/consent of the WBCZMA. The WBCZMA considered the matter and found that construction raised is illegal and also rejected the proposal of the PP on 1.12.2021 (conveyed on 6.12.2021) and directed the 3 (2017) 7 SCC 810 4 West Bengal State Pollution Control Board (WBSPCB) and District Magistrate to take further action. Relevant extracts from the said affidavit are reproduced below:

"4. On scrutinizing the CRZ map and documents submitted by the project proponent.to the West Bengal Coastal Zone Management Authority (hereinafter referred to as the WBSCZMA), it was observed that the area of interest falls within the following CRZ categories:

       Description                  Approx. Area(Sqm)      Approx. Area
       Total      Area   of         33623.2725             100%
       Interest(AOI)
       Mangrove Buffer(CRZ-         3979.3611              11.84%
       IA)
       No Development Zone          22054.4673             65.59%
       (NDZ)
       Outside CRZ                  7589.4442              22.57%

The CRZ Report submitted by the project proponent mentioned that the hotel was partially commissioned.

5. On the basis of the above-mentioned report, a letter was issued by the Member Secretary, WBCZMA to the project proponent vide Memo No. 1608/EN/T-II-4/13/2021 dated 15.09.2021 stating that about 77.43% of the Project Area lies mainly within CRZ IA (11.84%) and No Development Zone (65.59%). As per the CRZ Notification, 2011, establishment of hotels is not a permissible activity in these CRZ categories. Hence, the setting up a hotel in the said CRZ Zone cannot be allowed, and has to be closed. Copy of the said letter dated 15.09.2021 is annexed herewith and marked as Annexure R/1.

6. Thereafter, the said project was placed in the 15th meeting of WBSCZMA held on 01.12.2021 in the Department of Environment, Government of West Bengal. The WBSCZMA noted that some structures were already constructed by the project proponent without any approval/consent from WBSCZMA and observed "that nearly 77% of the area falls in the Mangrove Buffer (CRZ 1A) and No Development Zone (NDZ), there is no question of granting approval to this project in its current form. Since, the CRZ report prepared by IESWM has brought out the fact that some structures such as few cottages, swimming pool etc. have already been constructed without obtaining due clearance from the competent authority and in complete violation of CRZ Notification, 2011, this Committee not only rejects the current proposal but also decides to apprise the District Magistrate, South 24 Parganas who is also the Chairman of the District Level Committee (DLC) as well as the West Bengal Pollution District Level Committee(DLC) as well as the West Bengal Pollution Control Board(WBPCB) for taking immediate necessary action in the matter as per the provision ofthe CRZ Notification, 2011". Copy of the minutes of the meeting dated 01.12.2021 is annexed herewith and marked as Annexure R/2.

7. Accordingly, vide Memo No.2141/EN/T-II-4/13/2021 dated 06.12.2021 Member Secretary, West Bengal Pollution Control Board and District Magistrate, South 24 Parganas woe requested to take necessary action in the matter Copy of the letter dated 06.12.2021 is annexed herewith as Annexure R/3."

7. Stand of the PP has can be seen from their OA No. 52/2022/EZ. According to them, order dated 6.12.2021 passed by the WBCZMA rejecting the proposal of the PPs for being impermissible CRZ area in violation of CRZ Notifications dated 2011 and 2019 is erroneous. Order of WB CZMA dated 6.12.2021

8. Operative part of the order is reproduced below:

"As per the CRZ Report prepared by IESWM, based on MOEF & CC approved CZMP, 2011, the Area of Interest (AoI) of the project falls under the following CRZ categories;

                   Description          Approx. Area (sqm)        Approx. Area
         Total Area of Interest (A01)   33623.2725                -- 100 %
         Mangrove Buffer (CRZ-IA)       3979:3611             -- 11.84 %
         No Development Zone (NDZ)      22054.4673           -- 65.59 %
         Outside CRZ                    7589.4442             -- 22.57 %

Project Proponent (PP) made a presentation and informed the house that the project Sonar Bangla Sundarban is an eco-friendly resort to promote rural tourism.

After the presentation, the following issues were raised:

As per the CRZ report prepared by IESWM and submitted by the Project Proponent to WBSCZMA, it was found that more than 75% of the project area lies in the Coastal Regulation Zone (CRZ); with 11.84% of the area falling in (CRZ-IA and 65.59% is falling within No Development Zone (NDZ) of CRZ-III. As per CRZ Notification, 2011, hotel construction is not a permissible activity in these zones.

It was also clear that some structures such as Reception Lobby, Swimming Pool, and few Cottages have already been constructed. WBSCZMA members expressed their dissatisfaction at the fact that the project was started without any approval/consent of WBSCZMA, in complete violation of the CRZ Notification. The CRZ report prepared by IESWM also mentions that the hotel and resort facility is partially commissioned.

In view of the fact that nearly 77% of the Area of Interest falls in the Mangrove Buffer (CRZ IA) and the No Development Zone (NDZ), there is no question of granting approval to this project, it is current form. Since the CRZ Report prepared by IESWM has brought out the fact that some structures such as few cottages, swimming pool etc. have already been constructed without obtaining due clearance from the Competent Authority and in complete violation of CRZ Notification, 2011, this Committee not only rejects the current proposal but also decides to apprise the District Magistrate, South 24 Parganas who is also the Chairman of the District Level Committee (DLC) as well as the West Bengal Pollution Control Board (WBPCB) for immediate necessary action in the matter as per the provisions of the CRZ Notification, 2011."

9. Case of the PP is that they purchased the land for setting up hotels and they obtained conversion certificate from the Collector on 14.3.2018. The application dated 9.2.2017 was filed for consent to establish with the District Industrial Center which was forwarded to the State PCB. State PCB granted the consent which is valid upto 30.04.2025. They also applied for NOC from Forest Department on 14.2.2019 and started construction in April 2019. CRZ Notification, 2019 came into force on 18.1.2019. Hotel of the PP comprises of 21 numbers of two storied cottages, restaurants, reception and first aid center. They planted mangroves and they also applied for fire license which was granted on 14.8.2021. They also applied for mapping of land to ascertain whether the land falls in CRZ prohibition. The PP submitted documents to Institute of Environmental Study and Wetland Management (IESWM) and approved authority of the WBSCZMA. They received notice dated 1.12.2021 from the Environment Department of the State and they filed compensatory conservation plan. CRZ clearance was rejected on 6.12.2021 which rejection is illegal. Only a minor part of hotel falls within 50 meters which is prohibited area as per CRZ Notification, 2019. WBSCZMA has taken 100 meters as prohibited area as per CRZ Notification, 2011.

10. The applicants have filed supplementary affidavit on 20.4.2022 to place on record letters dated 24.11.2021 and 29.11.2021 to the effect that the area where the project is proposed is NDZ. Stand of the WBCZMA is that IESWM conducted a field visit and gave report dated 21.04.2021 that major part of the project is in NDZ. Further, CRZ Notification, 2019 was published on 18.1.2019 but still the applicant proceeded with the construction of hotels in NDZ. Thus, the proposal was rejected by WBSCZMA being in NDZ area.

Consideration of the matter by the Tribunal

11. We have heard learned counsel for the parties and perused record. Submission of the learned Counsel for the parties are reiteration of their respective stands noted above as far as merits are concerned. However, learned Counsel for the PP submitted that merits should not be looked into by this Bench constitution of which is not in terms of NGT Act and Rules and this issue should be first decided. This prayer is opposed by learned Counsel for other parties.

Issues to be determined

12. We will first decide the objection of the PP to hearing of the matter by this Bench and then decide the main issue on merits i.e. whether the order of the WBCZMA dated 6.12.2021 that the project is not permissible in the area is valid in law as it will degrade the environment and its setting up is statutorily prohibited inter alia under CRZ Notifications 2011 and 2019.

Objection to composition of Bench

13. Submission of learned Counsel for the PP is that hearing should be by one Judicial Member and one Expert Member available physically at 8 Kolkata. Joining of any member from Delhi Bench virtually is in violation of Notification of the Central Government dated 17.8.2011 defining territorial jurisdiction of Benches of NGT. Alternatively, number of Expert Members should be equal to number of judicial members in the Bench. As against this, present Bench comprises two Judicial Members, Chairperson and one Expert Member and only one Judicial Member is physically present in Kolkata. Reliance has been placed on proviso to Section 4(4)(c) of the NGT Act and judgment of the Bombay High Court dated 21.09.2022 in PIL No. 4 of 2022, The Goa Foundation vs. The National Green Tribunal & Ors. It is submitted that though operative part of the said judgement (in para 56) has been stayed by the Hon'ble Supreme Court on 18.10.2022 in SLP (C) No. 17931/2022, NGT vs. Goa Foundation & Ors., the said judgment of the Bombay High Court is binding law in view of observations of the Hon'ble Supreme Court in Shree Chamundi Mopeds Ltd. vs. Church of South India Thrust Association, Madras4 laying down that stay does not affect the law laid down in a judgment.

14. We have no option to go into the issue though NGT is party to the proceedings on the issue.

15. On due consideration, we find no merit in the preliminary objection to hearing of the matter by this Bench as not doing so may be dereliction of duties and failure to provide access to remedies to aggrieved parties, and defeating the object for which NGT has been set up.

16. Firstly, it is well settled law that no person has a vested right in procedure and procedural law is not to be read as mandatory. These 4 AIR 1992 SC 1439 9 settled principles are inter alia noted in Hon'ble Supreme Court judgement in R.N. Jadi & Brothers v. Subhashchandra5 as follows:

"All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

11. The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.

12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar2.)

13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth.) A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath v. Rajesh4.)

14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

17. Secondly, virtual hearing is not only permissible but is being repeatedly emphasized to advance access to justice. In Hon'ble Supreme Court judgment in State of Maharashtra v. Praful B. Desai (Dr), (2003) 4 SCC 601, it was held that virtual presence has to be taken at par with physical presence. In the said case, the issue arose in the context of 5 (2007) 6 SCC 420 10 section 273 Cr.PC requiring evidence of witness to be recorded in the presence of accused. Question was when the witness was outside India could his evidence be recorded by VC. The High Court disallowed it on the ground that statement by VC could not be treated presence which was required to be physical presence. Overruling the said view, the Hon'ble Supreme Court held that virtual presence would meet the requirement of presence. It was observed:

"The High Court then based its decision on the meaning of the term "presence" in various dictionaries and held that the term "presence" in Section 273 means actual physical presence in court. We are unable to agree with this.

......One needs to set out the approach which a court must adopt in deciding such questions. It must be remembered that the first duty of the court is to do justice.

......At this stage the words of Justice Bhagwati in the case of National Textile Workers' Union v. P.R. Ramakrishnan, para 9 need to be set out. They are:

"We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind."

.......Thus it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video- conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273 of the Criminal Procedure Code."

18. In recent order dated 6.2.2022 in Miscellaneous Application Diary No(s). 33859/2022 in T.P.(C) No. No. 2419/2019; 06-02-2023 M/S PLR Projects vs. Mahanadi Coalfields, the Hon'ble Supreme Court observed "District Courts and High Courts to utilize the technical infrastructure which is available to the best extent possible which would facilitate 11 lawyers attending proceedings either physically or virtually depending on their convenience.

19. Thirdly, there is compulsion of situation. As against minimum strength of 10 Judicial and 10 Expert Members, there are 6 Judicial and 5 Expert Members in NGT for all the 5 Benches. There being two Expert Members at Delhi, three Expert Members are at three out of four Benches. There is no Expert Member available at Kolkata. This factual position is noted in recent order of Hon'ble Supreme Court in order dated 16.01.2023 in W.P. (C) No. 662/2022, Central Administrative Tribunal Bar Association Kolkata & Anr. vs. Union of India & Ors. which is quoted below:

"1 Out of a sanctioned strength of 10 Judicial Members and 10 Expert Members, the National Green Tribunal has 6 Judicial Members and 5 Expert Members. One of the Members of the NGT (Justice Sheo Kumar Singh) is due to demit office today (16 January 2023).

2 The note which has been placed on the record by Mr Balbir Singh, Additional Solicitor General indicates that (i) steps have been initiated for selection of Judicial Members; and (ii) an advertisement was published in the national daily on 16 December 2022 and the last date of receiving applications was 12 January 2023.

3 Section 4(1) of the National Green Tribunal Act 2010 provides that the Tribunal shall consist of not less than ten but subject to a maximum of twenty full time Judicial Members and the same number of Expert Members.

4 Pending further orders, we direct that until the process of selection of the Judicial Members is completed and the new Judicial Members take charge, Justice Sheo Kumar Singh, shall continue to remain in office subject to his consent for continuance."

20. Fourthly, but for virtual sittings, functioning of NGT would have remained standstill for long time when there were no Members in any Bench except few Members at Delhi and the Tribunal has been taking up matters of all Benches to provide access to justice and effectuate object of law.

21. Fifthly, operative part of judgment of Bombay High Court relied upon by the PP has since been stayed by the Hon'ble Supreme Court, there is no bar for virtual joining of Member of NGT except for Pune. NGT is one institution and Member at one Bench is not debarred from sitting (which includes virtual sitting) in another Bench in exigencies of the situation.

22. We now deal with second limb of the argument about number of Expert Members being one, as against Judicial Members being two. As already observed, it is merely a procedural matter and procedural provision cannot create any right in any party unless prejudice is shown. There has to be free play in joints for functioning of any institution. While one Expert and one Judicial Member in a Bench is a must, we do not understand what can be possible objection if there are more than one. If more are available and viable, there can be certainly more effective deliberations. In practical terms, we may note on record that normally, Chairperson sits with one Judicial and one Expert Member. If all the three sit virtually with Member of outside Bench, no harm is done. If only Expert Member sits, the Bench breaks which in given situation is happening except on one day in a week when as per view of all NGT Members cases either earlier dealt with by Principal Bench or oldest cases or such cases which are considered better handled in the Bench presided by the Chairperson are taken up. Earlier, identical issue in the context of Sunderbans has been dealt with by the Principal Bench vide order 18.02.2020 in O.A No. 473/2018, Tribunal on its own Motion regarding Sundarbans Forests vs. Union of India & Ors.

23. Apart from the fact that operative part of the judgment of Bombay High Court is no longer operative in view of stay granted by the Hon'ble Supreme Court, we may also note that the Division Bench of Kerala High 13 Court vide judgment dated 16.3.2021 in W.A. No. 255/2021, Sachu Rajan Eapen vs. State of Kerala & Ors., on thorough consideration of the scheme of NGT Act and Rules held that provisions about place of hearing are procedural and there is no bar to Chairperson constituting a Bench as deemed fit. The observations are:

"88. In our considered opinion, the National Green Tribunal, Principal Bench, New Delhi was dealing with a seminal issue in regard to the air and noise pollution and the drainage to the properties consequent to the functioning of quarries in the country, as such and probably, and that there presentation made from Kerala was an eye opener to the NGT to discuss, deliberate and adjudicate on the issues at the national level, in particular, substantial question relating to environment, including enforcement of any right relating to environment involved and such questions arising out of implementation of the enactments specified in Schedule I to NGT Act, 2010, which includes, (1) The Water (Prevention and Control of Pollution) Act, 1974 (2) The Water (Prevention and Control of Pollution) Act, 1977 (3) The Forest (Conservation) Act, 1980 (4) The Air (Prevention and Control of Pollution) Act, 1981 (5) The Environment (Protection) Act, 1986 (6) The Public Liability Insurance Act, 1991 and (7) The Biological Diversity Act, 2002.What is important is the power exercised by the NGT under the provisions of Act, 2010 and other consequential Acts. We have no doubt to say that the Principal Bench and Zonal Benches are governed by the provisions of the NGT Act, 2010. The concept of territorial jurisdiction is a concept, introduced in the statutes, which according to us is, in order to effectively deal into suo motu or filed by the aggrieved persons, to protect their interests, which is only a procedure, rather than a rule of absolute nature. To put it otherwise territorial jurisdiction is a concept well known in law, empowering judicial officers and courts and Tribunals to function within the precincts of the territorial jurisdiction, which is basically intended to regulate the procedure in filing litigations, and in our considered view, will never take away the power conferred under law, on the NGT, New Delhi, to deal with the object of the provisions the Environment (Protection) Act, 1986, rules framed there under, provisions of law and that is why procedural laws empower the superior courts to transfer a litigation from one place to another. Issue on distance criteria for allowing mining activity in particular, quarrying activities have a national relevance and importance in a State, for there as on that it is a matter concerning citizens to have a quality life assured under Article 21 of the Constitution of India. Therefore, the Tribunal is constituted with the predominant objective of redressing grievances and remedy and to develop national laws regarding liability and compensation for the victims of pollution and other environmental damage, thought it fit to consider the situation in question, addressing at the national level, which would avoid multiplicity of proceedings too. Moreover, whether it is considered by the Principal Bench or the Zonal Bench, no manner of prejudice is caused to the appellants 14 other than the inconvenience of travelling upto the Principal Bench. The territorial jurisdiction is distinct from the jurisdictional power exercised by an authority conferred under a statute. The power exercised by the Principal Bench and the Zonal Benches are co-equal in nature and there is no superior power conferred on the Principal Bench. But, however, the provisions of Act, 2010 shows that there is only a Chairperson to the Tribunal, who is vested with powers under rule 3 of the National Green Tribunal (Practices and Procedure) Rules, 2011, in the matter of distribution of business among the different ordinary place or places of sittings of Tribunal and the Chairperson shall have the power to decide the distribution of business of the Tribunal among the members of the Tribunal sitting at different places by order and specify the matters which may be dealt with by each such sitting in accordance with the provisions of clause (d) of sub-section(4) section 4 of the Act, 2010. It is significant to note that as per rule3 (3) of the Procedural Rules,2011, if any question arises as to whether any matter falls within the purview of the business allocated to a place of sitting, the decision of the Chairperson shall be final. The explanation here to makes it clear that the expression "matter" includes application for interim relief, which is an inclusive definition clearly indicating that it is an empowerment added to the main powers under law. Various other powers are conferred on the Chairperson as per Rules, 2011, to adopt procedure and issue general or special orders for adopting circuit procedure etc. Taking into account the provisions of Rules, 2011, we are of the view, the notification issued by the Government of India extracted above is subservient, which can never stand in the way of the NGT translating the provisions of the acts specified in Schedule I of NGT Act, 2010 and the Rules thereto, which is the predominant purpose for which the Tribunal is constituted for."

24. We may also add that Writ Petition No. 15112/2021, Meenava Thanthai K.R. Selvaraj Kumar Meenavar Nala Sangam vs. National Green Tribunal & Anr. was filed before Madras High Court against Office Order of NGT for hearing Chennai matters by V.C. wherein initially notice was issued and stay granted, after reply was filed by the NGT, the writ petition was dismissed on 18.03.2022 for non-prosecution as the petitioner did not appear. Relevant part of the said order is reproduced below:

"None appears for the petitioner. Mr. V. Vasantha Kumar, learned counsel appears on behalf of the first respondent and Mr. M. Karthikeyan, learned counsel, appears on behalf of the second respondent. The writ petition is, accordingly, dismissed for non-

prosecution. Consequently, W.M.P. Nos. 16009 and 16011 of 2021 are closed."

25. In view of above discussion, we regret our inability to accept the preliminary objection raised on behalf of the PP. On Merits

26. We may now deal with merits of the matter. CRZ Notification, 2011 specifically provides Sundarbans region of West Bengal to be CVCA which is to be managed with the involvement of coastal communities including fisherfolk. Once management of CVCA has to be with the involvement of coastal communities, there is no question of any right of construction of a project. We may extract relevant provisions of CRZ Notification, 2011 which are as follows:

Para 7 of CRZ Notification, 2011 dealing with classification of the CRZ "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 50meters along the mangroves shall be provided;

(b) Corals and coral reefs and associated biodiversity;

(d) Mudflats which are biologically active;

(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;

(f) Salt Marshes;

(g) Turtle nesting grounds;

(h) Horse shoe crabs habitats;

(i) Sea grass beds;

(j) Nesting grounds of birds;

(k) Areas or structures of archaeological importance and heritage sites.

(ii) to (iv)...............xxx........................xxx......................xxx

(v) Areas requiring special consideration for the purpose of protecting the critical coastal environment and difficulties faced by local communities,-

A. xxx ..............................xxx...............................xxx B. Critically Vulnerable Coastal Areas (CVCA) such as Sunderbans region of West Bengal and other ecologically sensitive areas identified as under

Environment (Protection) Act, 1986 and managed with the involvement of coastal communities including fisherfolk.

xxx .................................xxx....................................xxx Para 8 about regulation of permissible activities

8. Norms for regulation of activities permissible under this notification,-

(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-

Note:- The word existing use hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 wherein CRZ notification, was notified.

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;

(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 rainshelter, 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;

(g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water.

II. CRZ-II xxx .............................xxx..............................xxx III. CRZ-III xxx .............................xxx..............................xxx IV. CRZ-IV xxx .............................xxx..............................xxx xxx .............................xxx..............................xxx

(iii) In CRZ-II areas-

(a) xxx ..............................xxx.........................xx

(b) xxx ..............................xxx.........................xx

1. to 3. xxx ....................xxx...........................xxx

4. (a) Critical Vulnerable Coastal Areas (CVCA) which includes Sunderbans and other identified ecological sensitive areas which shall be managed with the involvement of the local coastal communities including the fisher folk;-

(b) the entire Sunderbans mangrove area and other identified ecologically important areas such as Gulf of Khambat and Gulf of Kutchchh in Gujarat, Malvan, Achra-Ratnagiri in Maharashtra, Karwar and Coondapur in Karnataka, Vembanad in Kerala, Gulf of Mannar in Tamil Nadu, Bhaitarkanika in Orissa, Coringa, East Godavari and Krishna in Andhra Pradesh shall be declared as Critical Vulnerable Coastal Areas (CVCA) through a process of consultation with local fisher and other communities inhabiting the area and depend on its resources for their livelihood with the objective of promoting conservation and sustainable use of coastal resources and habitats;

(c) the process of identifying planning, notifying and implementing CVCA shall be detailed in the guideline which will be developed and notified by MoEF in consultations with the stakeholders like the State Government, local coastal communities and fisherfolk and the like inhabiting the area;

(d) the Integrated Management Plans (IMPs) prepared for such CVCA shall interalia keep in view the conservation and management of mangroves, needs of local communities such as, dispensaries, schools, public rain shelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage and the impact of sea level rise and other natural disasters and the IMPs will be prepared in line with the para 5 above for preparation of Coastal Zone Management Plans;

(e) till such time the IMPs are approved and notified, construction of dispensaries, schools, public rain shelters, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants shall be permitted on a case to case basis, by the CZMA with due regards to the views of coastal communities including fisherfolk."

27. Annexure-3 to CRZ Notification specifically provides that hotel or beach can be constructed only in CRZ-III and CRZ-II. Admittedly, the area in question is neither CRZ-III nor CRZ-II.

28. We may also refer to CRZ Notification, 2019. While CRZ IA includes areas having mangroves or wildlife habitats and wetlands (salt marshes) and biosphere reserve as was the position in 2011, Sundarbans is mentioned as CVCA with more emphasis as follows:

"3.0 xxx....................................xxx..........................xxx 3.1 Critically Vulnerable Coastal Areas (CVCA):

Sundarban region of West Bengal and other ecologically sensitive areas identified as under Environment (Protection) Act, 1986 such as Gulf of Khambat and Gulf of Kutchh in Gujarat, Malvan, Achra-Ratnagiri in Maharashtra, Karwar and Coondapur in Karnataka, Vembanad in Kerala, Gulf of Mannar in Tamil Nadu, Bhaitarkanika in Odisha, Coringa, East Godavari and Krishna in Andhra Pradesh shall be treated as Critical Vulnerable Coastal Areas (CVCA) and managed with the involvement of coastal communities including fisher folk who depend on coastal resources for their sustainable livelihood."

xxx....................................xxx..........................xxx "10. Areas requiring special consideration:

10.1 Critically Vulnerable Coastal Areas (CVCAs):

(i) For all the CVCAs mentioned in sub-paragraph 3.1, Integrated Management Plans (IMPs) shall be prepared, which shall, inter alia, keep in view the conservation and management of mangroves, needs of local communities, such as dispensaries, schools, public rain shelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage and the impact of sea level rise and other natural disasters and the IMPs will be prepared in line with the guidelines for preparation of Coastal Zone Management Plan.

(ii) Till such time the IMPs are approved and notified, construction of dispensaries, schools, public rain/cyclone shelters, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants shall be permitted on a case to case basis, by the Coastal Zone Management Authority with due regards to the views of coastal communities including fisher folk.

29. In Kapico Kerala Resorts Pvt. Ltd. (supra), It was inter-alia observed:

"39.1.In Para 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but Para 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Para 8(V)(4)(c) required guidelines to be developed and notified by MOEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated management plans were also required to be prepared for CVCAs under Para 8(V)(4)(d) of the 2011 Notification. 39.2.But under Para 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties faced by local communities. Para 3.1 identifies the critically vulnerable coastal areas. They include the Vembanad Lake. While the words contained in Para 8(V)(4)(b) of the 2011 Notification are: "...shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area...", the words contained in Para 3.1 of the 2019 Notification are "...shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk".

40. Therefore, for the appellants, the situation has gone from bad to worse. Under the 2011 Notification the areas identified in the Notification had to be declared as CVCAs only through a process of consultation with local fisher, etc. Guidelines are to be put in place for identifying, notifying and implementing CVCA but the 2019 Notification straightaway treats the named areas as CVCAs and vests their management with the Authority with the involvement of coastal communities. Therefore, the alternatives claimed by the appellants also do not appear to be viable for them."

30. It is clear that the area falls in CRZ-I as per CRZ Notification, 2011 and in CRZ-IA as per CRZ Notification, 2019 apart from being CVCA.

31. Learned counsel for the PP relied upon judgement of the Hon'ble Supreme Court in Secretary, Kerala State Coastal Management Authority vs. DLF Universal Limited & Ors.6 to the effect that when a project was constructed with all clearances, the same could not be held to be illegal by taking a contra view. There can be no dispute with this proposition but in the present case, fact situation is otherwise. As seen from paragraphs 6 and 8 of the judgement, the said matter related to CRZ-II area where there was no CRZ 1 area, no mangrove and no area where the activity was impermissible.

32. As already noted, the Hon'ble Supreme Court in Kapico Kerala Resorts Pvt. Ltd. (supra) upheld order of the High Court for demolition of illegally raised constructions.

33. In M.I. Builders (P) Ltd. vs. Radhey Shyam Sahu7, it was held that no vested right can be claimed to protect any illegal constructions.

34. As noted above, the WBCZMA has been consistently objecting to the construction and taking a stand that the construction in question was not permissible. It is clear from letters dated 15.09.2021 and 01.12.2021, based on which order dated 06.12.2021 was issued by the WBCZMA. The PP started construction in April 2019 illegally but sought post facto CRZ clearance for the first time on 17.07.2021.

35. We also note that as per judgment of Hon'ble Supreme Court in Indian Council for Enviro Legal Action, (1996) 5 SCC 281, the Hon'ble 6 (2018) 2 SCC 203 7 (1999) 6 SCC 464 21 Supreme Court disapproved reduction of no construction zone from 100 meters to 50 meters having regard to ecological consideration for protection of the coastal area.

36. We also note that there is every apprehension of areas close to sea being affected by climate change and it is all the more reason that suitable distance is maintained from the sea for any construction.

37. We have already noted that Mangroves play great role in protecting human life and property by obstructing strong winds and tidal actions.

38. The issue has already been earlier dealt with by the Principal Bench of this Tribunal vide order dated 18.02.2020 in O.A No. 473/2018, Tribunal on its own Motion regarding Sundarbans Forests vs. Union of India & Ors. The Tribunal considered remedial action against unauthorized activities in 'No Construction Zone' in Sundarbans. It was noted that there was substantial reduction of mangroves due to neglect by the State Authorities and illegal constructions which were required to be removed. Observations from the said order are reproduced below:-

"xxx .............................................xxx ..............................xxx

28. It is relevant to note that no activities can be permitted in the CRZ area under the CRZ Notification, 2011 which is now superseded by CRZ Notification, 2017. Any project which is permissible under the notification can be taken up only after seeking necessary clearance from the CRZ authorities, i.e., the State CZMA and/or the NCZMA.

29. Although damage to the mangroves in the Sundarban has been denied, the satellite imagery taken of the area reflects to the contrary as reduction of mangroves is found to be substantial, the cause of which can be traced to undesirable anthropogenic activities like pisciculture and construction of hotels and resorts. As many as 109 hotels are stated to be in operation in Bakkhali alone. Most of these hotels obviously appear to be running in an unregulated manner as per the affidavit of the State PCB. Indiscriminate construction of 22 structures and destruction of mangroves in far-flung islands of the Sundarban appear to have gone unnoticed by the regulators and the administration. These require to be attended to urgently in the interest of intergenerational equity. The CRZ violations appear to be quite rampant, as the CRZ Authority has clearly failed to enforce the regulations. If such free run is permitted under the very gaze of the regulatory authorities and the administration, destruction of Sundarban is inevitable with its attendant environmental disaster. In this context, we may reproduce the observation of the Tribunal made in its order dated 06.08.2015, relevant portion of which reads as follows:

"Having regard to the contention of Mr. Subhas Datta as made in the affidavit disclosing the environmental breach by the State, State owned Corporation, the Panchayat and Zilla Parishad, it is clear that the constitutional provision of Art. 48A which mandates the State to take all endeavours for protection and improvement of the environment has not been complied with. The impact of Article 48A read with 51A(g) of the Constitution of India was considered in detail by the Apex Court in the case of INTELLECTUALS FORUM V.STATE OF A.P (LAKSHMANAN, J.)" Reported in (2006) 3 SCC 575 wherein para 82 the court observed- "State shall endeavour to protect and improve the environment to safeguard the forests and wild life of the country. Art. 51A of the constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. These two articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the constitution including Articles 14 , 19 and 21 of the constitution and also the various laws enacted by Parliament and the State Legislatures."

It is the duty of the court to deal with the violator of law with heavy hand and the obligation of the court to step in when it perceives any project or activity as harmful or injurious to the environment.

Jurisprudential concept of the principle relating to court's duty in the constitutional angle was discussed and dealt with by the Apex Court. In the cases of R.N. Nanjundappa Vs. T. Thimmiah and Anr., reported in 1972 SCC (1) 409 wherein the Court held "it is settled law that whenever any action of the authority is in violation of the provision of statute or the action is constitutionally illegal, it cannot claim sanctity in law, there is no obligation or part of court to sanctify such an illegal act. Whenever any statutory provision is ignored, the court cannot become a silent spectator to 23 such an illegality and it becomes the solemn duty of the court to deal with the person(s) violating the law with heavy hand". Similar view was echoed in the case of Sultan Sadik Vs. Sanjay Raj Subba and Ors., reported in 2004 (2) SCC 377. Regarding obligation of the court to step in when it perceives any project of activity as harmful or injurious to the environment, the Apex Court answered the issue in the case of Anand Arya and Anr. Vs. UOI, reported in 2011(1) SCC 744 wherein court has observed as follows:- "Court's obligation to step in when it perceives any project or activity as harmful or injurious to the environment. Environment is one of the facets of the right to live guaranteed under Art.21 of the Constitution of India. Environment is not merely a statutory issue, it is a matter directly under the constitution."

30. The State is required to be alive to the fact that the Sundarban which is densely covered by the mangrove forests is one of the largest reserves for the Bengal tiger. It houses large variety of birds, reptiles and invertebrate species, including the saltwater crocodile. For these reasons, the Sundarban has been declared as a National Park. It is also a UNESCO World Heritage Site inscribed in the year 1987 and a designated Ramsar site."

39. The Tribunal accordingly held that the principle of 'Sustainable Development' was required to be enforced by the State under the Public Trust Doctrine and further steps remedial measures were to be taken to enforce CRZ Notification and other environmental laws.

40. For above reasons, we uphold the stand of WBCZMA and declare the constructions made by the PP to be illegal. A Joint Committee of WBSCZMA, District Magistrate and SSP may ensure demolition of illegal constructions and restoration of the area within three months from today.

O.A No. 32/2022/EZ is allowed and O.A No. 52/2022/EZ is dismissed.

A copy of this order be forwarded to WBSCZMA, District Magistrate and SSP by e-mail for compliance Adarsh Kumar Goel, CP 24 Sudhir Agarwal, JM B. Amit Sthalekar, JM Prof. A. Senthil Vel, EM February 14, 2023 OA Nos. 32/2022/EZ & 52/2022/EZ DV 25

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