Maharashtra Maritime Board Thr. Chief Executive Officer v. Union Of India Thr. Ministry Of Environment Forest And Climate Change And ORS
BDP-SPSCorrected as per order dated 8/3/2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BHARAT DASHARATH PANDIT CIVIL APPELLATE JURISDICTION by BHARAT DASHARATH PANDIT Date: 2024.03.12 12:10:56 +0530 WRIT PETITION NO. 8672 OF 2022 Maharashtra Maritime Board ] A Statutory Board constituted under ] the Maharashtra Maritime Board ] Act, 1996 through the Chief Executive ] Officer, having office at 3rd Floor, ] Indian Mercantile Chambers, Ramjibhai ] Kamani Marg, Ballard Estate, ] Mumbai - 400 038 ] ..... Petitioner.
V/s 1] Union of India ] Through the Ministry of Environment ] Forest & Climate Change, Paryavaran ] Bhavan, New Delhi 110002 ] And also at : Aayakar Bhavan, 2nd floor ] Maharshi Karve Road, New Marine ] Lines, Mumbai - 400 020 ] ] 2] Maharashtra Coastal Zone ] Management Authority Through the ] Additional Chief Secretary, ] Environment Department, 2nd Floor, ] Room No.217, Annexe Building, ] Mantralaya, Mumbai - 400 032 ] ] 3] State of Maharashtra ] Environment Department, through the ] Office of Government Pleader, Bombay ] High Court, PWD Building, Fort, ] 1/14
Mumbai - 400 001 ] ] 4] Chief Conservator of Forest ] (Mangrove Cell), through the Office ] of Government Pleader, Bombay ] High Court, PWD Building, Fort, ] Mumbai 400 001 ] ] 5] Divisional Forest Officer, ] Mumabi Mangrove Conservation ] Unit, through the Office of Government ] Pleader, Bombay High Court, PWD ] Building, Fort, Mumbai 400 001 ] ] 6] Range Forest Officer, ] Mangroves Cell, Navi Mumbai ] through the Office of Government ] Pleader, Bombay High Court, PWD ] Building, Fort, Mumbai 400 001 ] ] 7] Bombay Environment Action ] Group 80, 2nd Floor, Empire Building, ] CST Area, Mumbai - 400001 ] ..... Respondents.
Mr. Saket Mone a/w Ms. Anchita Nair i/b Vidhi Partners for the Petitioner.
Mr. Nirman Sharma a/w Ms. Sheetal Shah i/b M/s Mehta & Girdharilal for Respondent No.7-Bombay Environment Action Group. Ms. Jaya J. Bagwe for Respondent No.2-MCZMA.
Mr. Mr. Arjun Gupta for Respondent No.1-UOI. Mr. N.C. Walimbe, Addl. G.P. a/w Ms. Kavita N. Solunke, AGP for Respondent-State.
---- CORAM: A.S. CHANDURKAR & JITENDRA JAIN, JJ.
DATE: 1ST MARCH, 2024 2/14
ORAL JUDGMENT: (Per A. S. Chandurkar, J.) 1] The learned Additional Government Pleader has clarified that affidavit in reply that was filed in the writ petition No.8675 of 2022 ought to be treated as having been filed in Writ Petition No.8672 of 2022 and vice versa.
2] Rule. Rule made returnable forthwith and heard the learned Counsel for the parties.
3] The Petitioner, a statutory Board established under the provisions of the Maharashtra Maritime Board Act, 1996, has filed this Writ Petition under Article 226 of the Constitution of India, seeking leave to undertake the project of constructing a pile jetty as an extension to the existing jetty with two turning circles and a parking area at village Murbe, Palghar in the light of the judgment of this Court in Bombay Environmental Action Group and Another Vs. State of Maharashtra and Another in PIL No.87 of 2006 and connected Writ Petitions decided on 17/09/2018.
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4] According to the Petitioner, the aforesaid project aims to provide better access to health and educational facilities by improving connectivity between Murbe, Satpati and adjoining villages. In this backdrop that the Petitioner has approached this Court. 5] The application made in May 2021 was considered by the Maharashtra Coastal Zone Management Authority - MCZMA in its 158th meeting held on 11th and 12th/4/2022 and it recommended the proposal from CRZ point of view to the State Environmental Impact Assessment Authority - SEIAA subject to various conditions including the condition that no mangroves should be cut/cleared during construction and operation of the said project. The SEIAA in its 244th meeting held on 14/06/2022, after deliberations, granted CRZ clearance subject to complying with conditions stipulated by MCZMA.
By a further communication dated 20/06/2022, the SEIAA has imposed specific conditions including the aspect that mangroves should not be cut/cleared and the creeklet adjacent to the project site should not be reclaimed. The proposed construction was required to be carried out strictly as per the provisions of CRZ Notification, 2011.
the affidavit in reply filed by the Assistant Conservator of Forests dated 21/12/2022, it has been stated that Site No.191 has been notified as mangrove reserved forest. Hence the permission of the Central Government is necessary under the Forest (Conservation) Act 1980. Accordingly, the Petitioner has applied for such permission on 16/10/2023. On the basis of aforesaid, leave of the Court has been sought in terms of paragraph 83 of the decision in Bombay Environmental Action Group and Another (supra). 6] Mr. Saket Mone, the learned Counsel appearing for the Petitioner referred to the aforesaid statutory permissions and submitted that since the project was of public importance and the object was to provide an environmental friendly and cost effective alternative to the road and rail commuters, leave of the Court may be granted.
It was submitted that during the course of execution of the said project, no mangroves would be cut. He invited our attention to the allied activities viz two turning circles of 10 m x 10 m each and a parking area of 20 m x 20 m.
06/01/2011, the Petitioner was entitled to grant of such leave. To substantiate this contention, the learned Counsel relied upon the orders passed by this Court in Writ Petition (L) No.44 of 2019 (Maharashtra Maritime Board vs. Union of India and others) decided on 25/02/2019, Writ Petition No.2710 of 2020 (Maharashtra Maritime Board vs. Union of India and others) decided on 07/08/2020 as well as the judgment in Writ Petition No.759 of 2021 (Maharashtra Maritime Board vs. Union of India, through the Ministry of Environment Forest & Climate Change and others) and connected Writ Petitions decided on 29/10/2021 wherein it was held that in the context of CRZ Notification, 2011, the setting up of a jetty was not a prohibited activity but was a regulated activity.
Our attention was also invited to the orders passed by the Hon'ble Supreme Court in the proceedings arising out of challenge to the judgment of this Court in Writ Petition No.759 of 2021 referred to hereinabove and it was stated that permission to construct the jetty therein was permitted by keeping the question of law open.
allied activities approved by MCZMA and SEIAA would be constructed at 60 meters or beyond 60 meters of the mangrove buffer zone. It was thus prayed that the leave as sought be granted. 7] Mr. D.P. Singh, the learned Counsel for Respondent No.1, Mr. A.I Patel, the learned Additional Government Pleader for Respondent No.3 and Ms. Jaya Bagwe, the learned Counsel for Respondent No.2 - MCZMA did not dispute the grant of statutory permissions. Mr. Nirman Sharma, the learned Counsel appearing for Respondent No.6 however submitted that the construction of the jetty alongwith allied activities sought to be undertaken by the Petitioner ought not to be permitted since the same was a prohibited activity under the CRZ Notification, 2011. Reference was made to Clause-3 of the Notification of 2011 to urge that the same was a prohibited activity.
Since the jetty was sought to be put up at an ecologically sensitive area, such activity was not permissible under the said Notification. It was further submitted that by undertaking various allied activities, it was likely that the mangroves would be destroyed, thus defeating the object of Notification of 2011.
security cabin and mooring facility were also sought to be undertaken. It was thus submitted that the leave as prayed for was not liable to be granted even for the additional activities proposed by the Petitioner. 8] We have heard the learned Counsel appearing for the parties and we have perused the documents on record. It is not in dispute that the MCZMA has recommended the proposal moved by the Petitioner from CRZ point of view subject to various conditions which include the prohibition to cut mangroves or clear them in any way. The SEIAA has also imposed specific conditions to that effect, requiring the construction to be carried out as per the provisions of the Notification of 2011.
Considering the fact that the MCZMA as well as the SEIAA have recommended the proposal from CRZ point of view, the prayer made by the Petitioner for grant of leave can be considered. 9] Coming to the contention raised by BEAG, we find that the issue with regard to construction of jetty under the Notification of 2011 has been considered by this Court in its decisions relied upon by the learned Counsel for the Petitioner.
raised for consideration in Writ Petition No.759 of 2021 and connected Writ Petitions decided on 29/10/2021. In paragraph 23 of the said decision, it has been observed as under:- "23. Thus, from a combined reading of paragraph 1, 3 and 4, it is clear that the activities which are related to waterfront or directly needing foreshore facilities are expressly permitted under the 2011 Notification. Setting up of a jetty is clearly not seen to be a prohibited activity but a regulated activity, which becomes clear from a reading of paragraph 4(i)(a) and (f)."
It has been further held that the object of the Notification of 2011 was not merely to protect the environment but also to promote development in a sustainable manner. By referring to principle of sustainable development, it was held that leave was being granted to execute the work of proposed passenger jetty in the said case. It is true that this decision is the subject matter of challenge before the Hon'ble Supreme Court. While modifying the initial interim orders, the jetty constructed was permitted to be used by keeping the question of law open.
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10] Having perused the decision of the co-ordinate Bench in Writ Petition No.759 of 2021, we are in agreement with what has been held therein insofar as the aspect of construction of jetty under the Notification of 2011 is concerned, that it was a regulated activity rather than a prohibited activity. We are therefore inclined to follow the ratio of the aforesaid decision insofar as construction of the jetty is concerned. We have also noted that in the affidavit in reply filed by the Assistant Conservator of Forests dated 21/12/2022, it has been stated that Site No.191 has been notified as mangrove reserved forest. Hence the permission of the Central Government is necessary under the Forest (Conservation) Act 1980. Accordingly, the Petitioner has applied for such permission on 16/10/2023.
We find from the material on record that the project intends to reduce the traffic congestion and vehicular pollution that is caused by the use of road net work by providing an alternate water route. The object is to provide connectivity between Mira-Bhyandar and Dombivali-Kalyan. It is stated that the project would have a positive effect on tourism in the adjoining areas. We therefore find that there 10/14
being no private interest sought to be achieved by the Board and the aim being to satisfy larger public interest coupled with the fact that no destruction of any mangroves is necessitated, the Board is found entitled to grant of leave in terms of paragraph 83 (viii) of the decision in the Bombay Environmental Action Group & Anr (Supra) as regards the activities mentioned by it in its application. 11] In the affidavit filed on behalf of the Petitioner on 18/12/2023 further allied activities such as construction of ticket counter, security cabin and mooring facility are sought to be undertaken in the mangrove buffer zone area. Undisputedly, these additional activities were not a part of the application that was moved by the Petitioner while seeking clearance for the said project.
For this reason, the allied activities such as ticket counter, security cabin and mooring facility do not find place in the recommendation by the MCZMA and that recommendation is only for the proposed activities that have been referred to in the application moved by the Petitioner. The Board has not furnished relevant details as regards the exact area that would be occupied by the ticket counter, security cabin and mooring facility.
for stating that the same would be in the mangrove buffer zone area. No doubt, these activities could be treated to be ancillary to the construction of the jetty but in the absence of the same being made part of the application moved by the Board before the statutory authorities and finer details of the same also not having been placed on record, we are inclined to permit the Board to take appropriate statutory approval for these activities in the light of the fact that the same are sought to be undertaken in the mangrove buffer zone area. Granting leave as sought by the Petitioner without the actual dimensions and location of these facilities would not be permissible in the light of the ratio of the decision in the Bombay Environmental Action Group & Anr (supra). To that extent, the Board would be required to take requisite steps.
to execute the proposed pile jetty at village Murbe District, Palghar in view of the public importance of the project;"
The Board shall within a period of two weeks from today file on record an affidavit of its responsible Officer undertaking to comply with all the conditions imposed by the MCZMA, SEIAA as well as the Mumbai Mangroves Conservation Unit. The permission to carry out the aforesaid work is subject to obtaining necessary permission under the Forest (Conservation) Act, 1980 pursuant to the Petitioner's application dated 16/10/2023 since Site No.191 has been notified as mangrove reserved forest.
Insofar as the activities of construction of ticket counter, security cabin and mooring facility are concerned, the Board is at liberty to take such steps as are found necessary and obtain necessary permissions/clearance from the statutory authorities in accordance with law. In case such request is made by the Board, the concerned authorities shall consider that application in accordance with law expeditiously considering the larger public interest involved. 13/14
13] Rule is made absolute in the aforesaid terms leaving the parties to bear their own costs.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.] 14/14