Bombay High Court
Municipal Corporation Of Greater ... vs The National Green Tribunal ... on 10 June, 2016
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WP No.1720/2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1720 OF 2014
Municipal Corporation of Greater Mumbai,
Through the Municipal Commissioner,
having its office at Mahapalika Marg, CST,
Mumbai 400 001. .... Petitioner
V/s
1 The National Green Tribunal Western
Zone Bench, Pune, through its
Registrar Having its address at New
Administrative Bldg. 1st Floor, D-
Wing, Opp. Council Hall, Pune.
2 Vanashakti Public Trust
Having its office at 19/21,
Unique Industrial Estate,
Twin Towers lane,
Prabhadevi, Mumbai-400 025.
3 Dayanand Stalin
Aged 48 years, Director of
Vanashakti Public Trust,
having his office at 19/21,
Unique Industrial Estate,
Twin Towers lane,
Prabhadevi, Mumbai-400 025.
4 Maharashtra Pollution Control Board
through its Chairman, having his
office at Kalpataru Bldg., Sion (E),
Mumbai - 400 022.
5 Maharashtra Coastal Zone
Management Authority,
Environment Department,
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WP No.1720/2014
Room No.217 (Annex), Mantralaya,
Mumbai - 400 032.
6 State of Maharashtra
Mantralaya, Mumbai - 400 032.
6a. Principal Secretary
Department of Environment,
State of Maharashtra
Mantralaya, Mumbai - 400 032.
6b. Principal Secretary (Forest),
Department of Revenue and Forest,
State of Maharashtra,
Mantralaya, Mumbai-400 032.
6c. Principal Secretary,
Department of Urban Development,
State of Maharashtra,
Mantralaya, Mumbai - 400 032.
7 Union of India through the Ministry of
Environment and Forest Paryavaran
Bhawan, CGO Complex, Lodhi Road,
New Delhi - 110 003.
8 Antony Lara Enviro Solutions Pvt.
Ltd. 515, Maria Plaza, Pokharan Road,
Thane, Maharashtra - 400 601. .... Respondents
Mr. S. U. Kamdar, Senior Advocate with Ms. Komal Punjabi i/b Mr. U.
H. Kedar for the petitioner.
Ms. Gayatri Singh, Senior Advocate with Mr. Zaman Ali for respondent
nos. 2 and 3.
Mrs. S. U. Deshmukh with Ms. Rupali Dixit for respondent no.5-
MCZMA.
Mr. B. H. Mehta with Mr. J. S. Saluja, AGP for the respondent-State.
Mr. M. M. Chuniwala with Mr. D. R. Shah for respondent no.7.
Mr. Saket Mone with Mr. Subit Chakrabarty and Mr. Vishesh Kalra I/b
Vidhi Partners for respondent no.8.
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WP No.1720/2014
CORAM: D. H. WAGHELA, C. J. AND
M. S. SONAK, J.
Date of Reserving the Judgment : 27 April 2016.
Date of Pronouncing the Judgment : 10 June 2016.
JUDGMENT: ( Per M. S. SONAK, J.)
The challenge in this petition is to the order dated 4 November
2013 made by the Ministry of Environment and Forest (MoEF) to the
extent it directs the demolition of the compound wall within the Coastal
Regulation Zone (CRZ) area and the area affected by the mangroves,
whilst granting liberty to replace the same with live/barbed wire fencing
with vegetative cover (the impugned directions).
2. The present petition concerns the solid waste management project
(said project) established and operated at Kanjur Marg, Mumbai (said
site). The MoEF has granted environmental clearance (EC) dated 17
March 2009 to enable the petitioner-Municipal Corporation of Greater
Mumbai (MCGM) to establish and operate the said project at the said
site subject to the terms and conditions set out in the EC dated 17 March
2009.
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3. VANASHAKTI, a Non Governmental Organization (NGO) and
one Mangesh Sangle instituted Public Interest Litigation (PIL
No.131/2012 and PIL No.1/2013, respectively) to challenge the very EC
dated 17 March 2009 or in the alternate, to enforce strictly, the terms and
conditions of the EC dated 17 March 2009, if the said project is to
proceed.
4.
In pursuance of certain interim directions issued by this Court in
the aforesaid PIL's, experts were deputed to inspect the said site and on
the basis of reports made by them, the MoEF issued show cause notice
dated 25 July 2013 to MCGM requiring it to show cause as to why
appropriate directions be not issued in the matter of compliances with the
terms and conditions of the EC dated 17 March 2009. The MCGM was
also directed to maintain 'status quo ante' at the said site since prima
facie breaches were evident.
5. The MCGM filed detailed response to the show cause notice dated
25 July 2013 and was also offered personal hearing in the matter. By
order dated 4 November 2013, the MoEF disposed off the show cause
notice dated 25 July 2013 by issuing several directions under Section 5
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of the Environmental (Protection) Act, 1986 (EPA). The MCGM claims
that all the directions contained in the order dated 4 November 2013,
(except the impugned directions concerning demolition of compound
wall constructed in the CRZ area), have been complied with by the
MCGM. In the present petition, we are really not concerned with the
issue as to whether the directions contained in the order dated 4
November 2013 (except the impugned directions) have been complied
with or not. That is a matter for the MoEF and the Maharashtra Coastal
Zone Management Authority (MCZMA) to independently consider. In
this petition however, we are concerned with the legality and the validity
of the impugned directions contained in the order dated 4 November
2013 made by the MoEF.
6. At this stage, it would be appropriate to clarify that the present
petition, as filed, had challenged interim orders dated 15 January 2014, 6
February 2014 and 12 February 2014 made by National Green Tribunal
(NGT) in Appeal No.1/2014 instituted by VANASHAKTI, questioning
the order dated 4 November 2013 to the extent that the said order had not
directed the revocation of EC dated 17 March 2009. It was the case of
VANASHAKTI that the breaches on the part of MCGM were of such
magnitude that nothing short of revocation of the EC dated 17 March
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2009 might suffice. Accordingly, the MCGM in the present petition had
challenged not only the order dated 4 November 2013 made by MoEF,
but also the aforesaid interim orders made by the NGT in Appeal
No.1/2014 instituted by VANASHAKTI. The respondent no.8, who is
the contractor engaged by MCGM for establishing and operating the said
project at the said site had also instituted Writ Petition No.3836/2014, to
challenge the said interim orders made by the NGT in Appeal No.1/2014.
7. The learned Counsel for MCGM and the respondent no.8 have
however, made a statement that Appeal No.1/2014 instituted by
VANASHAKTI before the NGT no longer survives and consequently,
the interim orders dated 15 January 2014, 6 February 2014 and 12
February 2014 are no longer operational. In fact, the learned Counsel for
respondent no.8, on basis of instructions from respondent no.8 applied
for and was granted leave to withdraw the Writ Petition No.3836/2014.
The learned Counsel for MCGM, therefore, made it clear that the
challenge which survives in the present petition is only to the impugned
directions for demolition of compound wall, which extends into the area
classified as CRZ and the area affected by mangroves at the said site.
8. Mr. S.U. Kamdar, the learned Senior Advocate for MCGM has
made the following submissions in support of the present petition:-
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(A) That, upon true and correct interpretation of Environment
Impact Assessment (EIA) notification dated 14 September 2006 issued
by MoEF, the construction of compound wall undertaken by the MCGM
in the year 2010 did not even require any approval from the MoEF or
any State Agency under the provisions of the EPA. Mr. Kamdar
submitted that the impugned directions, which order the demolition of
the compound wall on the ground that such construction was undertaken
by the MCGM without prior approval of the MoEF, is a direction in
excess of jurisdiction vested in the MoEF;
(B) In the alternate, Mr. Kamdar submitted that the construction
of such compound wall was in fact approved by the MoEF under the EC
dated 17 March 2009, either expressly or in any case impliedly. In this
regard, Mr. Kamdar made reference to the following:
(i) Clause 5(ii) of EC dated 17 March 2009, which expressly
permits providing of allied facilities such as roads, conveying systems in
the CRZ area. Mr. Kamdar contended that the construction of a
compound wall is nothing but an "allied facility";
(ii) Clause 3.7.1 of the project report submitted by the consultant
of the MCGM at the stage of consideration of application for EC, very
clearly refers to the construction of compound wall to protect the entire
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site;
(iii) The minutes of the public hearing held on 8 June 2007, in
which, it was clarified that a compound wall will be constructed to
provide security and prevent encroachment at the said site;
(iv) Clause 3.19(x) of the minutes of the 60th meeting of the
Expert Appraisal Committee of the infrastructure development records
that all issues raised at public hearing will be addressed to by the MCGM
and necessary provisions for the said purpose shall be made in the
Environment Management Plan (EMP).
(C) The impugned directions are vitiated by non application of
mind, inasmuch as it refers to annexure III to CRZ notification 2011,
which was not even in existence when EC dated 17 March 2009 was
granted for the said project at the said site. In any case, Mr. Kamdar
submitted that annexure III provides for guidelines for development of
beach resorts and hotel in designated areas of CRZ III. In the present
case, Mr. Kamdar points out, that said project was neither a hotel nor a
beach resort and therefore there was no question of applicability of
annexure III. Mr. Kamdar also pointed out that in the present case, the
area in question has been classified as CRZ II and not CRZ III and that
this is an additional reason as to why annexure III was not at all attracted
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to the facts and circumstances of the present case.
(D) Mr. Kamdar submitted that the CRZ notification of 1991 has
since been replaced by the CRZ notification of 2011. The latter
notification expressly permits setting up of solid waste management
project in CRZ area, except those areas classified as CRZ I. Mr. Kamdar
submitted that the State Government has already issued "ín principle
approval" for setting up solid waste management project even upon
areas affected by CRZ notification. This according to him, is evident
from the minutes of the 110th meeting of the MCZMA held on 5 January
2015. Mr. Kamdar submitted that the impugned directions are liable to
be set aside, in view of the altered position, particularly, since Rule 12 of
the Municipal Solid Waste 2000 (MSW) Rules imposes a condition that
the landfill site must be protected to prevent entry of unauthorised
persons and stray animals. Mr. Kamdar submitted that the construction
of the compound wall, in the facts and circumstances of the present case,
must be construed as compliance with the provisions contained in Rule
12 of the MSW Rules.
(E) Finally, Mr. Kamdar submitted that the MCGM is a public
authority which has set up the said project for the benefit of the public.
In such circumstances, Mr. Kamdar contended that the impugned
directions may be quashed and appropriate directions be issued to the
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MoEF and the MCZMA to consider MCGM's pending representations
for retention/regularization of the compound wall. In fact, Mr. Kamdar
contended that there is material on record which suggests that the
authorities are already considering such representation for regularization
upon terms favourable to the MCGM. In this regard, reference was
made to the minutes of the 110th meeting of the MCZMA held on 15th
and 16th October 2015.
9. Mr. M.M. Chuniwala, the learned Counsel for respondent no.7
(MoEF) countered the submissions made by Mr. Kamdar and submitted
that there is no ground whatsoever made out by the MCGM justifying
interference with the impugned directions for demolition of the
compound wall unauthorisedly erected by the MCGM in areas classified
as CRZ and areas affected by mangroves. Mr. Chuniwala submitted that
from out of the total site area of 141.77 ha, EC dated 17 March 2009 had
cleared area of only 65.96 ha, which was neither classified as CRZ nor
affected by mangroves. Mr. Chuniwala submitted that the MCGM by
constructing the compound wall in areas classified as CRZ or areas
affected by mangroves, has not only breached the terms and conditions
of the EC dated 17 March 2009 but further, such unauthorised
construction, which has destroyed and has the potential to destroy
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ecologically sensitive areas, constitutes breach of the CRZ notification
and the EPA. Mr. Chuniwala submitted that such unauthorised
constructions are impermissible in areas classified as CRZ and areas
affected by mangroves and therefore, there is no question of any
retention or regularization as proposed by the MCGM. Mr. Chuniwala
submitted that the impugned directions are based upon the reports
submitted by experts and after consideration of the explanation
submitted by the MCGM, which was not found to be satisfactory. Mr.
Chuniwala submitted that the impugned directions were preceded by
compliance with principles of natural justice and fair play and further all
relevant considerations have been taken into account before the issuance
of the same.
10. Mrs. S.U. Deshmukh, the learned Counsel for respondent no.5
(MCZMA) submitted that the construction of the compound wall by the
MCGM within the areas affected by CRZ notification or the areas
affected by the mangroves was without any approval from the MoEF and
even otherwise illegal and unauthorised. Mrs. Deshmukh submitted that
such construction is not even permissible in CRZ areas or areas affected
by mangroves and reference to annexure III to CRZ notification 2011,
was only to illustrate that even where construction of hotels or beach
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resorts is permitted in certain designated CRZ areas, construction of
compound wall is not permissible. All that is permissible is live/barbed
wire fencing with vegetative cover. Mrs. Deshmukh, therefore,
submitted that there is no proposal for taking into consideration the
MCGM's representation for regularization/retention of the compound
wall at the said site, particularly, since the same is not even permissible
under the CRZ notifications.
11. Mr. B.M. Mehta, the learned Counsel for the State Government
submitted that the compound wall constructed by the MCGM within
CRZ area and the area affected by mangroves is illegal and unauthorised
and, therefore, the impugned directions may not be interfered with.
12. The rival contentions now fall for our determination.
13. The record indicates that the MCGM, prior to taking up the said
site at Kanjur Marg, was dumping solid waste in Chincholi Bundar Area.
In a PIL instituted by the Residents' Association of Chincholi Bunder
Area, this Court issued certain directions in the matter of such dumping,
after noticing that such dumping by the MCGM was in breach of
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relevant rules and environmental norms. The matter was ultimately
taken up by the Hon'ble Supreme Court in SLP (Civil) No.18717/2011.
14. On 21/11/2003, the Hon'ble Supreme Court in the aforesaid case
of Residents' Association of Chincholi Bunder Area V/s MCGM
made the following order :
"The matter relates to shifting of a
dumping ground. The residents of the
locality of the present dumping ground
filed a petition alleging that the
dumping of waste materials bio-medical
waste caused serious hazard to the
residents of the locality. The Pollution
Control Board, Maharashtra also filed a
petition alleging that the continuance of
the dumping ground in that area would
cause serious problem to the local
citizens. In this SLP the order passed by
the High Court of Bombay dated
31.7.2003 is challenged and when the
matter came up for consideration, parties
on all sides explored the possibility of
alternative dumping ground for the
respondent Municipal Corporation. The
Municipal Commissioner of Municipal
Corporation of Greater Mumbai and the
Chief Secretary of the State of
Maharashtra jointly filed an affidavit
dated 26th August 2002. In the affidavit it
is stated :-
"In the said meeting the Collector, M.
S.D. of the Govt. of Maharashtra pointed
out that the Salt Plan Land bearing
survey No. 275(pt) situated at Village
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Kanjur, eastern suburbs admeasuring
about 283 hectares is vacant and free
from encumbrances and therefore the
said land can be used for landfill
purpose. Out of the said 283 hectares of
the said land, 141.77 hectares is free from
CRZ-1, as shown in the plan by red color
dotted line. The said land admeasuring
141.77 hectares in equal proportion is
required to be shared by the Govt. of
Maharashtra and Govt. of India. Hereto
annexed a copy of the said plan showing
the details of the land bearing survey no.
275 (pt) village Kanjur as well as the
copy of the plan showing the location of
the existing and the proposed landfill site
as Annexure- D Collectively.
In view of the same, it was then decided
that 50% of the said land admeasuring
(pt) shall be handed over to M.C.G.M.
free of cost by Govt. of Maharashtra for
using the said land as a landfill site.
The remaining 50% of the plot of land
admeasuring 141.77 hectares bearing
survey No. 275(pt) which is required to
be shared by the Govt. of India, cannot be
used by the Govt. of India for
development purpose as the same would
be in the vicinity of the proposed landfill
site, thus, the MCGM will have 141.77
hectares of land as a landfill sites."
The Govt. of Maharashtra to hand over
the 50% of the land admeasuring
(pt) within a period of 3 months from
today to the Municipal Corporation of
Greater Mumbai and on completion of
all the formalities regarding transfer are
over the said land be used as dumping
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subject to strict observance of law
relating pollution and present dumping
ground which is continuing at Chincholi
Bunder Area shall be discontinued.
The SLPs are disposed off."
(emphasis supplied)
15. The State Government, in pursuance of the aforesaid order, handed
over to MCGM the Kanjur Marg site admeasuring in all 141.77 ha for
establishing and operating the said project. The MCGM was therefore
permitted to establish and operate the project at the said site subject
however to "strict observance of law relating to pollution" as was made
quite clear by the Hon'ble Supreme Court in its aforesaid order dated 21
November 2003.
16. The MCGM applied for and was granted EC dated 17 March 2009
by the MoEF. The EC specifically notes that whilst the total area of the
site was 141.77 ha, 52.5 ha, falls under CRZ III and 20.76 ha is affected
by mangroves. Accordingly, the EC dated 17 March 2009, makes it
quite clear that the said project can be set up and operated only upon the
balance area of 65.96 ha. Clause 5 of the EC dated 17 March 2009, in
terms provides that the composting plant/landfill facilities must be
located outside the CRZ areas whilst other allied facilities such as roads
and conveying systems can be located in the CRZ area. Special
directions were also issued for protection of mangroves at the site.
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17. The MCGM has awarded the contract for setting up and operating
the said project at the said site to M/s. Anthony Lara Enviro Solutions
Pvt. Ltd., the respondent no.8 herein. The contractor, in pursuance of
such contract has actually established and operates the said project at the
said site. The learned Counsel for respondent no.8 conceded the
respondent no.8 makes commercial profits, from out of treatment of
solid waste whilst at the same time discharging functions, which are in
public interest. The record also indicates that the respondent no.8, who
has actually established and operates the said project at the said site
undertakes such activities upon commercial basis.
18. There were several complaints in the matter of the very issuance
of EC dated 17 March 2009 by the MoEF for the said project at the said
site. VANASHAKTI and Mangesh Sangle, as noted earlier, instituted
PIL Nos.131/2012 and 1/2013, alleging inter alia that the EC dated 17
March 2009 was wrongly issued by the MoEF and in any case, the
MCGM and its contractor had set up and were operating the said project
in total breach of the terms and conditions subject to which the EC dated
17 March 2009 came to be issued.
19. This Court, in the aforesaid PILs issued certain directions, in
pursuance of which the MCZMA deputed a team of experts to visit the
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site and prepare a report. Based upon such site visit, the MCZMA filed
its report in the said public interest litigations. The Maharashtra
Pollution Control Board (MPCB) also filed its affidavit in the public
interest litigations. This Court, on 10 May 2013, made an order in the
said public interest litigations, which has some bearing upon the issues
raised in the present petition. Therefore, reference to certain
observations and directions in the order dated 10 May 2013 would be
appropriate. The same read thus:
"7. The issue before the Court is primarily in regard
to whether there is a breach on the part of the
Municipal Corporation in complying with the terms of
the environmental clearance that was granted by the
MOEF on 17 March 2009.
8. The Maharashtra Coastal Zone Management
Authority (MCZMA) deputed a team of experts to visit
the site on 27 April 2013. This exercise was initiated
on a complaint that (i) there was a violation of the
conditions contained in MOEF's permission dated 17
March 2009; (ii) there was a destruction of wetlands
on a massive scale by MCGM outside the permitted 65
hectares area; (iii) there was a destruction of
mangroves. When the petitions initially came up before
the Court the Learned Counsel for the Municipal
Corporation was allowed an adjournment as sought to
enable the Municipal Corporation to consider and
respond to the report of the MCZMA. This exercise
has been carried out and the Court has heard the
submissions urged by the Municipal Corporation on
the Report extensively. An affidavit has also been filed
by the Maharashtra Pollution Control Board on 2
April 2013 in these proceedings.
9. Now, it will be necessary to consider the contents
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of the affidavit filed by the MPCB and the report of the
Experts' Committee of MCZMA, both these authorities
being expert statutory bodies set up by the State
Government. The affidavit filed by the MPCB inter
alia highlights the following aspects :-
(i) Though it is obligatory on the Municipal
Corporation to collect the segregated MSW at source
to avoid a burden on the waste processing site, un-
segregated waste is being received at the MSW
processing site.
(ii) In the absence of proper segregation and scientific
disposal of inert material which has been mixed with
the solid waste taken to the bioreactor and composting
facility, an obnoxious smell / odour has been reported
near the Bio-Reactor Landfill (BLF). A number of
complaints have been received not only in respect of
smell nuisance problems but also in respect of
unscientific collection and disposal of leachate into the
nearby area, unscientific collection, treatment and
disposal of municipal solid waste, giving rise to
serious pollution of the environment; (iii) Non-
biodegradable inert waste, residues of waste
processing unit and pre-processing rejects are being
disposed off at the BLF Cell, in violation of the
conditions stipulated in the authorisation;
(iv) Though the operator of the facility - M/s Antony
Lara Enviro Solutions Pvt. Ltd. was directed to make
available the details of the buffer zone around the
landfill site, this was not made available;
(v) The operator of the facility has not taken any
effective steps to cover the site with soil;
(vi) At the time of the visit on 12 November 2012
untreated leachate was being discharged through a
bypass arrangement in the nearby area;
(vii) Though the permission granted by the MOEF
was for construction of the MSW Processing Facility
involving Windrows Composting for processing 4000
TPD, MCGM is providing a composting facility for
3000 MT per day by bio-reactor landfill without
environmental clearance. Out of 7 cells, only one cell
is in progress and a trial cell was in operation;
(viii) The data collected between June, July and
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August 2012 reveals that parameters inter alia of
mercury, iron, total hardness, chlorides and TDS etc.
are exceeding the parameters prescribed as per
monitoring done in respect of nearby borewells. The
statutory authority incharge of the prevention of
pollution has found serious violations. MPCB has also
noted serious environmental hazards.
The report which has been submitted by the
MCZMA highlights following aspects :-
(i) Though the permission granted by the MOEF was
for processing 4000 TPD waste by windrow
composting, MCGM has adopted alternate technology
of 3000 TPD waste processing by bio-reactor and
1000 TPD waste processing by windrow composting
based on the consent of the Central Pollution Control
Board (CPCB). A proposal has been submitted to the
MOEF; however the permission of MOEF is still to
be received;
(ii) A compound wall about 12 feet in height has been
constructed all around the project site, almost along
the high tide line. The compound wall has been
constructed around the area of 86 hectares;
(iii) Within the compound wall, there are two
mangrove patches. One of those mangrove patches is
highly degraded and the mangroves are either dying
or cut. The flushing of tidal waters to this patch is
blocked by the wall and insufficient culverts. There
are only three culverts with just 1.2 mtr. diameter for
tidal flushing. This is a major cause for degradation
of mangroves.
(iv) The second site of mangroves is however found
to be flourishing due to proper influx of tidal waters
through 15 properly placed culverts;
(v) Along the compound wall, there is a good tarred
road of about 10 m. width. However, the entire road
length is now being widened by reclaiming the rest of
the CRZ and mangrove buffer zone area. The
dumpers were carrying soil at site and in this process,
the sides of the wetlands and mangroves are also
getting filled up. The Committee did not find any
necessity for further widening of the road for
functioning of the project.
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The conclusions of the report of MCZMA are
inter alia as under :-
"(a) Dumping / filling activity by soil was going on
beyond the 65 ha of land allotted for the project. The
reclamation is rampant (and the only operation at
present) and the main function of MSW processing
and landfill has taken a back seat. Due to dumping /
filling, the wetland is being reclaimed and mangroves
patches at some location are seen being affected.
(b) Due to less no. of culverts at one of the mangrove
patches the influx of tidal water was found
insufficient for the survival of mangroves. Moreover,
the diameter of the pipe at the culverts of both the
mangroves patches seems to be carrying less volume
of tidal water, therein degrading the mangroves. To
allow sufficient tidal water to enter the mangrove site
1 in the place of the present three introduce at least
another ten culverts. They should be at least half a
meter below the present level of the inlet pipes. In
contrast to this in the site 2 since 12 culverts are
provided the mangroves
are flourishing."
At this stage, it would be necessary to note that
in PIL 131 of 2012, an ad-interim order was passed on
6 November 2012. This was vacated by a Division
Bench of this Court on 22 November 2012. In a
Special Leave Petition filed against the order of the
Division Bench dated 22 November 2012, the Supreme
Court by an order dated 22 February 2013 directed
that while the SLP is dismissed, this would not
preclude the petitioners from making a fresh
application for interim relief before this Court in the
changed circumstances.
10. In a separate batch of writ petitions filed in
public interest relating to the disposal of the Municipal
Solid Waste, a Division Bench of this Court issued
directions on 2 April 2013 in pursuance of minutes of
the order which were tendered before the Court on a
joint meting that was convened inter alia of all the
agencies of the State and Municipal Corporations
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including MCGM. The minutes of order inter alia
contain a stipulation in clause 10 that all dumping
sites which do not comply with the MSW Rules and
other governing applicable laws and the directions
and sites which are not designated as per Rules shall
be discontinued and closed within a period of three
months or on acquisition of a new site whichever is
earlier.
11. During the course of hearing, learned Senior
Counsel appearing on behalf of the Municipal
Corporation has submitted that (i). The Municipal
Corporation is in terms of the permission which has
been granted by the MOEF not restricted to an area of
65.96 hectares since what was envisaged to be handed
over to the Municipal Corporation was an area of
141.77 hectares for the purpose of the project; (ii) The
site of the project falls in CRZ III of the CRZ
Notification of 1991. CRZ III does not form part of the
Coastal Regulation Zone; (iii) The Municipal
Corporation was granted permission by the Central
Pollution Control Board and by the Maharashtra
Pollution Control Board for adoption of bioreactor
waste technology but in view of the affidavit filed by
MPCB, an application has now been made to the
MOEF for clearance which is still to be disposed of;
(iv) The Municipal Corporation is ready and willing to
ensure that in the course of carrying out the project,
no dumping shall take place on wetlands / mangroves
and that the culverts are widened and regularly
maintained so as to obviate a danger to the
environment; (v) The Municipal Corporation has
moved the State Government for leasing out an
additional area belonging to the Corporation on a
concessional rent under section 92 of the MCGM Act
1886 and (vi) The Forest Department may be directed
to cooperate with MCGM for ensuring that the
mangroves are not destroyed.
12. The order of the Supreme Court dated 21
November 2003 mandates strict observance of the
law relating to pollution. Two statutory authorities -
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MPCB and MCZMA have found the Municipal
Corporation to be in violation of environmental
norms including the environmental clearance of
MOEF of which several requirements are found to
be breached. Hence for the purpose of these
proceedings, it is not necessary for the Court to
embark on an enquiry of its own nor is it necessary for
the Court to deal with any disputed question of fact.
The available material on record is essentially based
on inspection that was carried out by the MPCB and
by the MCZMA. The permission which was granted by
MOEF on 17 March 2009 is specifically for the setting
up of the project only on 65.96 hectares. MOEF's
permission was for the construction of inter alia an
MSW facility involving windrow composting of 4000
TPD. The permission stipulates that the composting
plant and landfill facility shall be located outside the
CRZ area while other allied facilities including roads
and conveying systems could be located in the CRZ
area. The environmental clearance granted by the
MOEF completely answers beyond doubt the issue as
to whether the land in question is within the CRZ
area. According to the petitioners, the issue has also
been decided by the Supreme Court in Krishnadevi M.
Kamathia and others v/s Bombay Environmental
Action Ground (2011) 3 SCR 292, where the Supreme
Court laid down that mangroves fall for classification
in CRZ I. The environmental clearance of MOEF of
17 March 2009 proceeds on the basis that out of the
total land area of 141.77 hectares which was
proposed for the project, 52.5 hectares falls in CRZ
III and 20.76 hectares was affected by mangroves.
The area available for the project development was
hence computed at 65.96 hectares. The terms and
conditions on which the MOEF has granted its
permission would have to be scrupulously observed.
13. Both the MPCB and MCZMA have found serious
violations on the part of the Municipal Corporation.
These include :-
(i) The decision of the Municipal Corporation to adopt
an alternate technology without seeking permission of
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the MOEF;
(ii) The degradation of one of the two patches of
mangroves within the compound wall as a result of
the exclusion of tidal waters to the mangroves;
(iii) Carrying out of dumping / filling activities
beyond 65.96 hectares of land allotted to the project
as a result of which the main function of the MSW
processing and landfill has been relegated to the
background. MCZMA has in its report made specific
recommendations for ensuring that the
environmental hazards that have resulted during the
course of the development of the site should be
obviated.
14. We direct that the Municipal Corporation shall
forthwith take steps to ensure compliance with the
recommendations which have been made by the
MCZMA. We also direct that the MOEF, which is
impleaded as the fifth respondent to these proceedings,
shall cause a site inspection to be carried out and on
the basis thereof, a further affidavit shall be filed
clarifying the impact, if any, inter alia of the Wetlands
(Conservation and Management) Rules 2010 and what
remedial steps, if any, are required to be taken in order
to ensure conformity with the rules. The affidavit of
MOEF shall indicate such remedial measures as are
required to ensure conformity with all environmental
norms. The affidavit shall be filed on or before 1 July
2013. We adjourn the further hearing on 9 July 2013.
In the meantime, the MOEF shall consider the
application which has been submitted by the
Municipal Corporation for adoption of the bio-reactor
technology in accordance with law.
(emphasis supplied)
20. In pursuance of the direction contained in paragraph 14 of the
aforesaid order dated 10 May 2013, experts deputed by MoEF made site
visits and submitted reports. Based upon the same, MoEF issued show
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cause notice dated 25 July 2013 to MCGM to show cause as to why
directions be not issued under Section 5 of the EPA for prima facie
violation of the terms and conditions of EC dated 17 March 2009.
Pending final decision upon the show cause notice, the MCGM was also
directed to maintain 'status quo ante' at the said site.
21. The MoEF, upon taking into consideration MCGM's response and
also upon affording opportunity of hearing to the MCGM has made the
order dated 4 November 2013, which inter alia contains the impugned
directions. As regards the decision making process, it must be noted that
the impugned directions came to be made upon due compliance with the
principles of natural justice and fair play. Upon perusal of the material
on record, it is quite apparent that the relevant material has been taken
into consideration by the MoEF. The MoEF relying upon the EC dated
17 March 2009, has reiterated that the said project was to be restricted to
the area admeasuring 65.96 ha and that there was no clearance or
approval in respect of the balance area which was classified as CRZ and
affected by mangroves. The MOEF has rejected the contentions of
MCGM that the construction of the compound wall of such magnitude,
was some allied activity which was either expressly or impliedly
permitted by the MoEF in its EC dated 17 March 2009. The MoEF has
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assigned reasons for issuance of the impugned directions, which reasons
can neither be styled as irrelevant nor extraneous in the fact situation of
the present case.
22. This Court in PIL Nos.131/201 and 1/2013, made order dated 8
January 2014, taking cognizance of the MoEF's order dated 4 November
2013. In this order, it was clarified that the MCGM was at liberty to
carry on its activities at the said site in accordance with the MoEF's
impugned order dated 4 November 2013. To that extent, the previous
order dated 7 August 2013, by which he MCGM has been directed to
maintain status quo at the said site was modified.
23. The order dated 8 January 2014 made in the aforesaid public
interest litigations reads thus:
"By order dated 7 August 2013 this Court had
directed as under:-
"We accordingly direct that pending
further orders of this Court, the Municipal
Corporation shall take all necessary steps
to maintain the status quo as directed by
the MOEF on 25 July 2013.Since the show
cause notice has been received by the
Municipal Corporation yesterday in court,
the Municipal Corporation shall submit a
copy of its reply to the notice to show
cause as directed on or before 21 August
2013. The MOEF shall take a final
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decision thereon and submit a copy of its
decision separately to this court by 25
September 2013. Before the MOEF takes a
final decision, it shall furnish to the
Municipal Corporation a reasonable
opportunity of being heard. Liberty to the
Petitioners to intervene in the proceedings
before the MOEF. The MOEF shall be at
liberty to consider all the submissions in
pursuance of the notice to show cause
independently and on merits.
In the meantime, the MCZMA shall
periodically visit the site for the purposes
of monitoring that the vegetation of the
mangroves on the land continues to
regenerate and is not destroyed."
2) It appears that pursuant to the aforesaid
directions MOEF has passed a final order dated 4
November 2013. The MOEF has also given certain
directions under Section 5 of the Environment
(Protection) Act 1986 being directions (a) to (f) at
Paragraph 5 in its order dated 4 November 2013. It
appears that after passing the final order dated 4
November 2013 there has been no inspection by
MCZMA. In view of the above, it is just and proper to
direct the MCZMA to submit the report about
compliance of the MOEF order dated 4 November
2013 by Municipal Corporation of Greater Mumbai.
The report shall be submitted within two weeks from
today.
3) It is clarified that the Municipal Corporation
is at liberty to carry on activities in accordance with
the MOEF order dated 4 November 2013.
Accordingly, the previous order dated 7 August 2013
passed by this Court shall stands modified in terms of
the MOEF directions dated 4 November 2013.
4) Stand over for 3weeks."
(emphasis supplied)
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24. As noted earlier, VANASHAKTI, the petitioner in PIL
No.131/2012 instituted appeal No.1/2014 before the NGT questioning
MoEF's order dated 4 November 2013, inter alia, on the ground that the
breaches and the violations on the part of the MCGM and its contractor
were of such magnitude, that nothing short of complete revocation of EC
dated 17 March 2009 would suffice. It is in this appeal No.1/2014 that
NGT made interim orders dated 15 January 2014, 6 February 2014 and
12 February 2014, virtually staying the operations upon the said project
at the said site.
25. In the present petition, as well as Writ Petition No.3836/2014
instituted by the respondent no.8-contractor, this Court, on 17 April 2014
made the following order:
"We are satisfied that the order passed by the National
Green Tribunal, Western Zone, Bench Pune - (NGT)
directly overrides the order passed by the Division
Bench of this Court on 8.1.2014 though this order was
shown to the NGT and also the other orders passed by
the Apex Court and the High Court were brought to the
notice of the NGT. Inspite of that, the impugned order
has been passed, granting stay to all the activities
including the dumping which was going on pursuant to
the direction given by the Apex Court. The learned
counsel for the Municipal Corporation as well as for
the Contractor makes a statement that they would
comply with all the conditions imposed by the MOEF.
Hence, the impugned order, passed by the NGT, is
stayed. It is clarified that the direction given for
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demolition of the compounding wall, however, is
stayed. Stand over to 17th June, 2014."
26. VANASHAKTI, instituted SLP (Civil) Nos.15752-15753/2014
before the Hon'ble Supreme Court, which upon grant of leave was
numbered as Civil Appeal Nos.6882-6883/2014. The said appeals were
disposed off by order dated 25 July 2014 which reads thus:
"Leave granted.
2. Our attention has been invited to the order dated
08.01.2014 passed by the Division Bench of the
Bombay High Court in Public Interest Litigation No.
131 of 2012, Vanashakti and Anr. Vs. Municipal
Corporation of Gr. Mumbai and ors. In para 3 of that
order, the High Court clarified the position as
follows:-
"It is clarified that the Municipal
corporation is at liberty to carry on activities
in accordance with the MOEF order dated 4
November, 2013. Accordingly, the previous
order dated 7 August 2013 passed by this
Court shall stand modified in terms of the
MOEF directions dated 4 November 2013."
3. Mr. Shekhar Naphade, learned Senior Counsel for
the appellants, submits that the order of the National
Green Tribunal (for short, 'Tribunal') is in compliance
and for enforcement of the above order.
4. On the other hand, Mr. Pallav Shishodia, learned
Senior Counsel for respondent no.1, and Dr. Abhishek
Manu Singhvi, learned Senior Counsel for the
respondent no.6, submit that the Tribunal went beyond
the order of the High Court passed on 08.1.2014.
5. However, all the learned Senior Counsel agree
that they have no objection if the order dated
08.01.2014 passed by the High Court is reiterated by
this Court and in modification of the impugned
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order, all the parties are directed to act in compliance
and in accord with the order dated 08.01.2014.
6. In view of the agreement amongst all the learned
Senior Counsel for the parties, we direct that the
order 08.01.2014 passed by the High Court shall
remain operative and all parties shall act in
compliance and in accord with the above order.
7. The impugned order passed by the High Court as
well as the orders dated 15.01.2014, 06.02.2014 and
12.02.2014 passed by the Tribunal stand modified as
above.
8. Civil Appeals are disposed of with no order as to
costs."
ig (emphasis supplied)
27. From the aforesaid, it is quite clear that the MCGM and its
contractor i.e. respondent no.8 were granted liberty to carry on the
activities upon the said project at the said site in accordance with MoEF's
order dated 4 November 2013. As is recorded in paragraphs 5 & 6 of the
order dated 25 July 2014 made by the Hon'ble Supreme Court in Civil
Appeal No.6882-6883/2014, this course of action was in fact agreed to
by the MCGM and its contractor. Thus at least from 25 July 2014, it was
incumbent upon the MCGM to comply with the directions contained in
MoEF's order dated 4 November 2013 which included inter alia the
demolition of the compound wall, to the extent it transgressed into the
CRZ area and the area affected by mangroves. However, it appears that
the MCGM and its contractor, in pursuance of the liberty granted,
continued with its activities upon the said project at the said site, without
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complying with the impugned directions, which was very much a part of
MoEF's order dated 4 November 2013.
28. The MCGM, after having agreed to abide by the order dated 8
January 2014 made by this Court, with regard to undertaking of activities
upon the said project at the said site in accordance with MoEF's order
dated 4 November 2013, cannot in the same breath, be heard to
challenge the impugned directions in MoEF's order dated 4 November
2013. The interim order dated 17 April 2014, by which the direction for
demolition of the compound wall was stayed, also could not be taken
advantage of by the MCGM or its contractor, in the light of the order
dated 25 July 2014 made by the Hon'ble Apex Court in the aforesaid
Civil Appeal Nos.6882-6883/2014. The conduct on the part of MCGM
and its contractor in continuing with the activities upon the said project
at the said site on the basis of this Court's order dated 8 January 2014
and the Hon'ble Supreme Court's order dated 25 July 2014, but at the
same time not complying with the condition imposed therein with regard
to undertaking such activity in accordance with the MoEF's order dated 4
November 2013, cannot be appreciated. Such approbation and
reprobation on the part of the MCGM, particularly in the matter of
compliance with the orders made by this Court and the Hon'ble Supreme
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Court, disentitles the MCGM to any equitable reliefs, considering that
the jurisdiction under Articles 226 and 227 of the Constitution of India is
equitable and extraordinary. Accordingly, we might have been justified
in dismissing the present petition upon this ground only. However, we
hasten to make it clear that we are not dismissing the present petition
only upon such ground, particularly, as we are satisfied that the various
challenges raised by MCGM to the impugned directions, lack merit.
29. With the assistance of the learned Counsel for the parties, we have
perused the EIA notification dated 14 September 2006 as well as the
CRZ notification of 1991. Mr. Kamdar, the learned Senior Counsel for
MCGM, was however, unable to satisfy us that construction of a
compound wall in the area affected by CRZ notification and mangroves
is a permissible activity, which could have been undertaken by the
MCGM, even without any prior approval from the MoEF or for that
matter any other authority. In fact, the EIA notification dated 14
September 2006, is quite clear with regard to the requirement of a prior
environmental clearance from the concerned regulatory authority i.e. the
MoEF, in the matter of setting up of a solid waste disposal project.
Whatever the contention of Mr. Kamdar, at least the MCGM did not
appear to have any doubt on this score, inasmuch as the MCGM applied
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for and even obtained the environment clearance in terms of the EIA
notification dated 14 September 2006. The clearance was however
restricted to 65.96 ha, the area neither classified as CRZ nor affected by
the mangroves. The MCGM, having breached this condition by
constructing a compound wall in the area classified as CRZ III and
affected by the mangroves, cannot be heard to contend that there was no
requirement of obtaining any clearance. In these circumstances, we are
unable to accept Mr. Kamdar's contention that there was no requirement
of either applying for or obtaining any approval from the MoEF or any
State Agency in the matter of construction of a compound wall in areas
classified as CRZ and areas affected by mangroves. The impugned
directions, therefore, cannot be said to have been made in excess of the
jurisdiction vested in the MoEF.
30. At the stage when the EC dated 17 March 2009 was granted by the
MoEF, the CRZ notification 1991 was in force. There is not and there
cannot be any serious dispute that almost 52.5 ha, from out of the total
site area of 141.77 ha is affected by the CRZ notification. The record
indicates that this area has been classified as CRZ III. This is stated so
in clear terms in the EC dated 17 March 2009. At no stage has MCGM
seriously challenged this. At this stage, therefore, it is too late for
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MCGM to contend that such area is CRZ II and not CRZ III. There is no
material produced on record by MCGM to substantiate this contention.
Further, there is not and there can be no serious dispute that an area of
20.76 ha, from out of the total site area of 141.77 ha is affected by
mangroves. It is upon taking into consideration these relevant factors
that the MoEF, in its EC dated 17 March 2009 had made it clear that the
said project can be set up and operated only upon the balance area of
65.96 ha not classified as CRZ or affected by the mangroves. In the
present petition, we are not concerned with the portion of the compound
wall, in so far it encloses this area of 65.96 ha. The impugned directions
questioned in this petition concern the compound wall constructed
beyond and outside the area of 65.96 ha, which areas are clearly
classified as CRZ and affected by mangroves. We are satisfied that such
extended construction was beyond the scope of the clearance granted by
EC dated 17 March 2009 and consequently unauthorised.
31. The paragraph 2 of the CRZ notification 1991, in its sub-clause
(vi) clearly prohibits dumping of city or town waste for the purposes of
land filling or otherwise in CRZ areas. This clause provides that any
existing practice to this effect shall be phased out within a reasonable
time not exceeding three years from the date of the notification. The
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paragraph 3, upon which, reliance has been placed by Mr. Kamdar,
however, provides that all other activities, except those prescribed in
paragraph 2, will be regulated in the manner prescribed. The paragraph
3, in the first place, provides that clearance shall be given for any activity
within the CRZ, only if it requires water front and foreshore facilities.
Secondly, sub-clause (2) of paragraph (3) lists the activities which will
require environmental clearance from the MoEF and the same includes,
inter alia, construction activities related to Defence for which foreshore
facilities are essential; operational construction for ports and harbours
and light houses requiring water frontage; jetties, wharves, quays, slip-
ways, etc., thermal power plants; and all other activities with investment
exceeding rupees five crores.
32. The MCGM, on one hand, has contended that the said project is
restricted to the non-CRZ area of 65.96 ha. On the other hand, the
MCGM contends that in terms of paragraph 3(2)(iv) of the CRZ
notification of 1991, the construction of compound wall within the CRZ
area is a permissible activity, since, the investment therefor exceeds
rupees five crores. Such contention is a contradiction in terms. Such
contention cannot be accepted even upon the plain reading of paragraphs
2 & 3 of the CRZ notification of 1991. The MCGM is disentitled to
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approbate and reprobate in such matters. Even if Mr. Kamdar's
contention is to be accepted, the same does not obviate the necessity of
environment clearance from the MoEF. In the present case, as we shall
consider later, it is quite clear that there was no environment clearance
for construction of compound wall of the magnitude undertaken by the
MCGM in the areas classified as CRZ and the areas affected by the
mangroves. Accordingly, we are unable to accept Mr. Kamdar's first
contention in support of the present petition.
33. Mr. Kamdar, in the alternate, has contended that the EC dated 17
March 2009, either expressly or in any case impliedly approves the
construction of compound wall in the CRZ area and the area affected by
mangroves. We are unable to read any express approval in EC dated 17
March 2009. In fact, it is quite clear that the MoEF had restricted its
approval to the area of 65.96 ha only, being the only area not classified
as CRZ or affected by the mangroves. This position is quite clear from
reference to clauses 2,3 & 4 of the EC dated 17 March 2009. The EC, in
fact, makes reference to the recommendation of the MCZMA for
clearance in respect of the entire area of 141.77 ha, but proceeds to state
that the Expert Appraisal Committee, upon due consideration of such
recommendation, has deemed it fit to recommend clearance only in
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respect of area of 65.96 ha, not classified as CRZ or affected by the
mangroves. The EC is quite unambiguous on this score and there is
really no scope to read any express approval or clearance for
construction of the compound wall of such magnitude beyond the area of
65.96 ha, classified as CRZ and affected by the mangroves.
34. We are also unable to accept the contention that the construction
of the compound wall in areas affected by CRZ notification or the
mangroves had been impliedly approved by the MoEF in its EC dated 17
March 2009. In the first place, in matters of this nature, there arises no
question of any implied approval. Issues relating to environment and
protection of ecologically sensitive areas cannot rest on basis of any
implied approvals, particularly, when the legal provisions prohibit
construction activities in such areas or in any case, permit such activities,
only upon strict compliance with the terms of the law or the permissions
granted. The instances referred to by Mr. Kamdar for reading some sort
of implied clearance in favour of MCGM, assist the case of the
authorities, rather than MCGM. The instances only suggest that despite
proposals and recommendations, the MoEF, based upon the
recommendations of the Expert Appraisal Authorities, restricted the
clearance only to the area of 65.96 ha, thereby, declining clearance in
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respect of the areas beyond, since such areas were classified as CRZ and
affected by the mangroves. Reference to the project report submitted by
the consultant of MCGM or the minutes of the public hearing, only
suggest that the MoEF did take into consideration the proposal of the
MCGM for construction of compound wall so as to cover the areas
beyond 65.96 ha, but ultimately, such proposal did not find favour with
the MoEF at the stage of final issuance of the EC dated 17 March 2009.
35. We are also satisfied that reference to clause 5(ii) of the EC dated
17 March 2009, in no manner suggests, that construction of compound
wall of such magnitude was either expressly or impliedly approved by
the MoEF in area beyond 65.96 ha. The learned Counsel for MoEF and
MCZMA had in fact contended that the CRZ notification of 1991 does
not even permit the construction of such compound wall in area
classified as CRZ and affected by the mangroves. The allied facilities
refereed to in clause 5(ii) of the EC dated 17 March 2009, are basically
in the context of providing appropriate access to the project area of 65.96
ha and nothing further. On the basis of this clause, it is not open to the
MCGM, to urge that any clearance or approval was granted for
construction of compound wall of such magnitude in area affected by
CRZ notification 1991 and mangroves. The said clause in the EC dated
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17 March 2009 cannot be construed as some sort of licence to destroy
ecologically sensitive areas affected by CRZ notification and mangroves.
The express exclusion of areas beyond 65.96 ha in the EC dated 17
March 2009 cannot be defeated by MCGM by styling the construction
carried out by it within the CRZ area and the area affected by mangroves
as "allied activities". The MCGM cannot, defeat the specific terms and
conditions of EC dated 17 March 2009 under the garb of undertaking
"allied activities".
36. The reports of experts have pointed out the destruction brought
about in the ecologically sensitive CRZ area and the area affected by
mangroves on account of the unauthorised construction of compound
wall in these areas. This Court, in its order dated 10 May 2013, in PIL
Nos.131/2012 and 1/2013 (referred to earlier) has taken cognizance of
the environmental degradation caused due to the construction of the
compound wall within the CRZ areas and the areas affected by
mangroves. The order dated 10 May 2013 notes that compound wall of
12 feet in height has been constructed all around the project site, along
the high tide line. The compound wall encloses area of 86 ha, when in
fact, the clearance was in respect of area of only 65.96 ha, not affected
by CRZ or mangroves. The order notes that within the compound wall
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there are two mangrove patches, out of which one of the mangrove patch
is highly degraded and the mangroves are either dying out or cut. The
flushing of tidal waters to this patch is blocked by the compound wall
and the insufficient culverts. The order notes that there are only three
culverts with just 1.2 mtr. diameter for tidal flushing and this is a major
cause for degradation of mangroves. The order also notes that dumping
and filling activity by soil was being undertaken beyond the area of
65.96 ha allotted for the project. The reclamation was rampant and that
reclamation was the only operation taking place at the site, when the
MCZMA made its report to this Court. The order notes that the main
function of MSW processing and landfill had in fact taken a back seat.
Due to dumping/filling, the wetland was being reclaimed and mangroves
patches at some locations were seen being affected.
37. The experts appointed by the MoEF, to a great extent corroborate
the aforesaid position. The MCGM, despite opportunity has failed to
place any material on record, either justifying the construction of the
compound wall within the areas classified as CRZ and affected by the
mangroves or to counter the observations with regard to environmental
degradation on account of the unauthorised construction of the
compound wall within CRZ area and the areas affected by mangroves.
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In such circumstances, there is really no case made out to interfere with
the impugned directions issued by the MoEF, in the matter of demolition
of the unauthorised compound wall within the CRZ area and the areas
affected by the mangroves.
38. We are unable to accept Mr. Kamdar's submission that there has
been non application of mind on the part of the MoEF in issuing the
impugned directions, merely because the order dated 4 November 2013
makes reference to annexure III to CRZ notification of 2011, which deals
with guidelines for development of beach resorts or hotels in designated
areas of CRZ III.
39. In the first place, the perusal of the impugned order dated 4
November 2013 makes it quite clear that the reference to the said
guidelines was only by way of an illustration in order to emphasize that
even where construction of beach resorts or hotels is permitted in the
designated areas of the CRZ-III, there is no approval granted for
construction of compound walls. The permission is only granted for
erection of barb wire or fencing with light vegetative cover, so that there
is minimum environmental degradation in ecological sensitive areas.
Secondly, there is no real difference between the contents of annexure III
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to CRZ notification of 2011 and the annexure III to CRZ notification of
1991. It is not even the case of MoEF that annexure III per se applies to
the said project, which is obviously neither a hotel nor a beach resort.
The reference to this annexure in the impugned order dated 4 November
2013, therefore, is not indicative of any non-application of mind as urged
by Mr. Kamdar. The impugned order dated 4 November 2013 does not
find fault with the construction of the compound wall by reference to
annexure III to the CRZ notification. The impugned order, very clearly
states that there was no approval granted for the construction of any
compound wall within the area classified as CRZ or affected by the
mangroves. The impugned order, only proceeds to add that even with
regard to hotels and beach resorts, which are permitted activities in
certain designated areas of CRZ no approval is granted for construction
of compound wall and, therefore, it is inconceivable that any such
permission or approval may have been granted either expressly or
impliedly by the MoEF to the said project which is not even a hotel or a
resort in a designated CRZ area.
40. The next contention as to whether the setting up of a solid waste
management facility is permissible under CRZ notification of 2011 or
not, really does not arise for consideration at the present stage. Further,
even Mr. Kamdar accepted that no such project can be set up in areas
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classified as CRZ-I. Admittedly, in the present case, area of over 20.76
ha is affected by mangroves. In terms of the CRZ notification of 2011,
such areas at least prima facie are classifiable as CRZ-I. In any case, at
least at present, there is no material on record, to establish that the
construction of the compound wall beyond the area of 65.96 ha was ever
approved or permitted by the MoEF whilst granting the EC dated 17
March 2009. Accordingly, reliance upon the so called "in principle
approval" by the State Government, which is even otherwise, not the
final authority in such matters is hardly a ground to assail the MoEF's
directions.
41. The reference to Rule 12 of the MSW Rules, is also quite
misconceived in the facts and circumstances of the present case. The
compliance with the said rule might require the MCGM to construct the
compound wall in order to enclose the actual landfill site or the project
area, which in the facts and circumstances of the present case,
admeasures 65.96 ha. This is clear from the circumstance that the EC
dated 17 March 2009 very specifically grants environmental clearance to
set up and operate the said project over an area of 65.96 ha, even though,
the total area of the said site is 141.77 ha. Construction of a compound
wall within the areas classified as CRZ or affected by the mangroves
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cannot be justified by reference to Rule 12 of the MSW Rules. Reports
referred to by this Court in its order dated 10 May 2013 in PIL
Nos.131/2012 and 1/2013 indicate that the compound wall has been
constructed along the high tide line. Within the compound wall there are
two mangrove patches and one of the patches is highly degraded and the
mangroves are either dying or cut. The flushing of tidal waters is
blocked by the compound wall and insufficient culverts. There are only
three culverts with just 1.2 mtr. diameter for tidal flushing and this is
major cause for degradation of mangroves. The order also makes a
reference to the environmental degradation within the CRZ area, on
account of the compound wall and attempts at widening the tar road
which runs parallel to the compound wall.
42. The EC dated 17 March 2009 with which we are concerned has
not only acknowledged the existence of mangroves at the said site, but
specific conditions have been imposed upon MCGM to ensure that there
is no destruction of such mangrove areas. In Krishnadevi Malchand
Kamathia & Ors. V/s Bombay Environmental Action Group & Ors.
(2011) 3 SCC 363, the Hon'ble Supreme Court, upon consideration of
the provisions of the CRZ notification 1991 has held that mangroves fall
squarely within the ambit of CRZ I. The regulations allow for certain
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activities in such area, only when it is established that such areas are not
ecologically sensitive and important.
The Hon'ble Supreme Court, upon taking cognizance of the
destruction of mangroves in the name of salt harvesting, has made the
following observations in the context of CRZ notification of 1991:
"30. The CRZ Regulations define for regulating
developmental activities, coastal stretches within 500
m of the landward side of the high tide line into four
categories. Category I (CRZ-I) is defined as under:
"(i) Areas that are ecologically sensitive and
important, such as, national parks/marine parks,
sanctuaries, reserved forests, wildlife habitats,
mangroves, corals/coral reefs, areas closed to
breeding and spawning grounds of fish and other
marine life, areas of outstanding natural
beauty/historical/heritage areas, areas rich in
genetic diversity, areas likely to be inundated due to
rise in sea level consequent upon global warming
and other such areas as may be declared by the
Central Government or the authorities concerned at
the State/Union Territory level from time to time."
(emphasis added)
31. The regulation of development or construction
activities in CRZ-I areas is to be in accordance with
the following norms:
"CRZ-I
Between LTL and HTL in areas which are not
ecologically sensitive and important, the following
may be permitted: (a) exploration and extraction of
natural gas; (b) activities as specified under proviso
of sub- paragraph (i) and (ii) of Para 2; (c)
construction of dispensaries, schools, public rain
shelters, community toilets bridges, roads, jetties,
water supply, drainage, sewerage which are required
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for traditional inhabitants of the Sunderbans
Biosphere Reserve area, West Bengal, on a case-to-
case basis, by the West Bengal State Coastal Zone
Management Authority; (d) salt harvesting by solar
evaporation of sea water; (e) desalination plants; (f)
storage of non-hazardous cargo such as edible oil,
fertilisers and food grain within notified ports; (g)
construction of trans-harbour sea links."
(emphasis added)
32. From the above, it is evident that mangroves fall
squarely within the ambit of CRZ-I. The Regulations
allow for salt harvesting by solar evaporation of sea
water in CRZ-I areas only where such area is not
ecologically sensitive and important. In the instant
case it has been established that mangrove forests
are of great ecological importance and are also
ecologically sensitive. Thus, salt harvesting by solar
evaporation of sea water cannot be permitted in an
area that is home to mangrove forests."
43. In Piedade Filomena Gonsalves V/s State of Goa & Ors. (2004) 3
SCC 445, the Hon'ble Supreme Court, again in the context of CRZ
notification 1991, approved the decision of this Court in not interfering
with the directions for demolition of constructions put up within areas
affected by the CRZ notification of 1991. At paragraph 6 of the said
decision, the Hon'ble Supreme Court has observed that the Coastal
Regulation Zone Notifications have been issued in the interest of
protecting environment and ecology in the coastal area. The
construction raised in violation of such regulation cannot be lightly
condoned.
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44. Accordingly, we are unable to accept Mr. Kamdar's contentions
that the construction of compound wall within areas classified as CRZ
and affected by the mangroves could have been undertaken by the
MCGM without any approval from any authorities enjoined with the
implementation of the CRZ notification of 1991 or the EIA notification
of 2006. We are also unable to accept Mr. Kamdar's contention that in
the facts and circumstances of the present case, the MCGM had in fact
obtained express or in any case implied clearance for construction of
compound wall within areas affected by CRZ and mangroves. We are
satisfied that the impugned directions issued by the MoEF are based
upon relevant considerations and the same are neither affected by any
perversity nor any non-application of mind. The impugned directions
have been issued after due consideration of the response put forth by
MCGM. There is neither any illegality, irrationality nor any procedural
impropriety in the issuance of the impugned directions. Therefore, taking
into consideration the limited parameters of judicial review under
Articles 226 and 227 of the Constitution of India, we are unable to find
any ground to interfere with the impugned directions.
45. There is no ground made out by MCGM, sufficient to interfere
with the impugned directions, particularly, considering the limited
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parameters of judicial review in such matters. As noticed earlier, the
impugned directions are neither irrational nor disproportionate. The
impugned directions, neither prevent the establishment nor the operation
of the said project. At the same time, the impugned directions, seek to
prevent the environmental degradation by the construction of a
compound wall in the area classified as CRZ and affected by mangroves.
To this extent, the impugned directions are consistent with the principle
of sustainable development. The practical problems highlighted by Mr.
Kamdar, in the matter of security and prevention of encroachment, are
really not legal excuses for putting up unauthorised constructions in
ecologically fragile areas. In any case, the impugned directions permit
the replacement of the compound wall with live/barbed wire fencing
with vegetative cover. This will, at least to some extent, redress the
concerns raised by MCGM and at the same time constitute substantial
compliance with the terms and conditions set out in the EC dated 17
March 2009. Further, if the unauthorised compound wall is removed, the
same will, according to even the experts deputed by the MoEF,
contribute to the restoration of the degraded CRZ areas and the areas
affected by mangroves. In this sense, there is no unreasonableness, in the
matter of issuance of the impugned directions. The impugned directions
are consistent with the principle of sustainable development. The MoEF
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has attempted to balance the need of having a municipal solid waste
management project at the said site along with the need to protect
ecologically fragile areas classified as CRZ and affected by mangroves.
This is not a case where any extraneous, irrelevant or non germane
matters have been taken into consideration by the MoEF. Thus, there is
no case made out by the MCGM to interfere with the impugned
directions upon application of the well settled principles of judicial
review in the matters of administrative actions.
46. The principles of judicial review in such matters have been
analysed, inter alia, in the decision of the Hon'ble Supreme Court in
Maharashtra Land Development Corporation & Ors. V/s. State of
Maharashtra & Anr. (2011) 15 SCC 616 at paragraphs 58 to 61, which
read thus:
"58. Being called upon to review this
administrative action, we have examined as to
whether the same amounts to irrational or
disproportionate. The common yardstick to
determine whether the act on the part of the
Government violates established principles of
administrative law has been the Wednesbury
principle of unreasonableness, employed both by
English and Indian Courts.
59. The Wednesbury principle was enunciated by
Lord Greene MR in Associated Provincial Picture
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Houses Limited v. Wednesbury Corporation reported
at (1947) 2 All ER 680. To quote the learned Judge
on the principle enunciated:
"... What then are those principles? They are
well understood. They are principles which the court
looks to in considering any question of discretion of
this kind. The exercise of such discretion must be a
real exercise of the discretion. If, in the statute
conferring the discretion, there is to be found
expressly or by implication matters which the
authority exercising the discretion ought to have
regard to, then in exercising the discretion it must
have regard to those matters. Conversely, if the
nature of the subject matter and the general
interpretation of the Act make it clear that certain
matters would not be germane to the matter in
question; the authority must disregard those
irrelevant collateral matters."
60. However, the Wednesbury principle of
reasonableness has given way to the doctrine of
proportionality. Through his decision in the
celebrated case of Council of Civil Services Unions
v. Minister for the Civil Services reported at [1985]
AC 374, Lord Diplock widened the grounds of
judicial review. He mainly referred to three grounds
upon which administrative action is subject to
control by judicial review. The first ground being
"illegality", the second "irrationality" and the third
`procedural impropriety'. He also mentioned that by
further development on a case-to-case basis, in due
course, there may be other grounds for challenge.
He particularly emphasized the principles of
proportionality. Thus, in a way, Lord Diplock
replaced the language of "reasonableness" with
that of "proportionality" when he said:
"By `irrationality' I mean what can by now be
succinctly referred to as `Wednesbury
unreasonableness'... It applies to a decision which is
so outrageous in its defiance of logic or of accepted
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moral standards that no sensible person who had
applied his mind to the question to be decided could
have arrived at it."
61. The principle of proportionality envisages that a
public authority ought to maintain a sense of
proportion between particular goals and the means
employed to achieve those goals, so that
administrative action impinges on the individual
rights to the minimum extent to preserve public
interest. Thus implying that administrative action
ought to bear a reasonable relationship to the
general purpose for which the power has been
conferred. The principle of proportionality therefore
implies that the Court has to necessarily go into the
advantages and disadvantages of any administrative
action called into question. Unless the impugned
administrative action is advantageous and in public
interest such an action cannot be upheld. At the core
of this principle is the scrutiny of the administrative
action to examine whether the power conferred is
exercised in proportion to the purpose for which it
has been conferred. Thus, any administrative
authority while exercising a discretionary power
will have to necessarily establish that its decision is
balanced and in proportion to the object of the
power conferred."
47. In Intellectuals Forum, Tirupathi V/s. State of A.P. & Ors.
(2006) 3 SCC 549, the Hon'ble Supreme Court has held that, the
responsibility of the State to protect environment is now a well accepted
notion in all countries. It is this notion that, in international law, gave
rise to the principle "State responsibility" for pollution emanating within
one's own territories. The responsibility is clearly enunciated in the
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United Nations Conference on the Human Environment, Stockholm
1972 (Stockholm Convention), to which India was a party. Article 48-A
of the Constitution mandates that the State shall endeavour to protect and
improve environment to safeguard the forests and the wildlife of the
country. Article 51-A 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.
ig These two articles are not only
fundamental in the governance of the country but also it would 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 & 21 and also the various laws enacted by
Parliament and the State Legislatures. The debate between
developmental and economic needs and that of the environment is an
enduring one, since if the environment is destroyed for any purpose
without a compelling developmental cause, it will most probably run
foul of the executive and judicial safeguards. In response to this
difficulty, policy makers and judicial bodies across the world have
produced the concept of "sustainable development". Hence merely
ascertaining an intention for development will not be enough to sanction
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destruction of local ecological resources. The Court has to follow the
principle of sustainable development and find a balance between the
developmental needs which the State asserts, and the environmental
degradation, which the citizens allege. The Hon'ble Supreme Court
added that the decision in such matters cannot be based solely upon the
investments made by any party. Since, otherwise, it would seem that
once any party makes certain investment in a project, it would be a fait
accompli and this Court will not have any option but to deem it legal.
48. In Jal Mahal Resorts (P) Ltd. V/s. K.P. Sharma (2014) 8 SCC
804, the Hon'ble Supreme Court has held that although the Courts are
expected very often to enter into the technical and administrative aspects
of the matter, it has its own limitations and in consonance with the theory
and principle of separation of powers, credence, at least to some extent,
has to be accorded to the decision of the State Authorities, specially if it
based on the opinion of the experts reflected from the project report
prepared by the technocrats and accepted by the entire hierarchy of the
State administration. In the present case, the impugned directions issued
by the MoEF, have taken into consideration all relevant and technical
aspects, including reports made by experts particularly in the mater of
environmental degradation caused by the MCGM and its contractor by
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the construction of compound wall within area classified as CRZ and
affected by mangroves. There is accordingly no case made out to
interfere with the impugned directions.
49. This leaves us with the last contention raised by Mr. Kamdar that
since the MCGM is not some private builder and since the project of
handling municipal solid waste, is a project conceived in public interest,
the authorities should be directed to consider favourably the MCGM's
representations for retention or regularisation of the unauthorised
compound wall within areas affected by CRZ and the mangroves. Mr.
Kamdar, in fact, contended that the concerned authorities are inclined to
favourably consider such representation and that this is evident from the
minutes of the 110th meeting of the MCZMA held on 15 th and 16th
October, 2015.
50. Since considerable emphasis was laid upon the aforesaid minutes
it will be useful to transcribe the relevant contents :
"Item No. 31:- Proposal for retention of compound
wall at Kanjur processing site at Kanjur, Mumbai.
Mr. Minesh Pimple, Dy. Chief Engineer, MCGM
presented that the MoEF, New Delhi granted the
Environment Clearance for MSW processing facility
on area admeasuring 65.96 HA area. The EIA report
submitted to MoEF emphasized upon the need to
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strengthening of the peripheral bunds wherever there
were breaches as well as their widening so as to
construct roads on their top. Accordingly, the
compound wall was constructed after strengthening
the existing bunds along with laying of peripheral for
roads. The storm water drainage system was also
constructed and the culverts which were provided were
upgraded/repaired for protection of mangroves etc.
However, subsequently, since the boundary wall was
constructed by the MCGM around the entire land
comprising the CRZ as well as the non CRZ areas, the
Director (IA-III Division), Ministry of Environment
and Forest issued certain directives to the MCGM as
per which the part of the boundary wall which was
constructed in the CRZ was required to be removed.
The MCGM requested the MoEF to reconsider their
directives.
Meanwhile, Vanashakti, NGO challenged the
directives issued by the MoEF in the NGT, Pune
through Appeal No.1 of 2014. The NGT vide its order
dated 13th March, 2014 directed the demolition of the
boundary wall in the said Appeal. The MCGM
therefore challenged the said order of the NGT by way
of filling WP(L) No.689/2014 in the Mumbai High
Court. The Mumbai High Court after hearing all the
parties stayed the order of NGT on 17.4.2014. The
Vanashakti, NGO thereafter challenged the order of
the Mumbai High Court in the Supreme Court. The
Supreme Court directed all the parties to act in
accordance with the order passed by the Mumbai High
Court on 8.1.2014 vide its order dated 25 th July, 2014
in Civil Appeals No. 6882-6883 of 2014 in SLP 15752-
15753 of 2014.
It was further presented that the compound wall
is required for prevention of erosion of soil and is
helping in protecting the mangroves in and around the
allotted project area. The compound wall is
preventing the public land which has been allotted by
the government for a specific purpose from getting
encroached. It is a requirement of MSW Rules, 2000
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and will provide a buffer between the processing site
and surrounding environment.
The Authority observed that there is no
provision for giving post facto CRZ clearance in the
CRZ Notification, 2011. Further, the matter is
subjudice before the Hon. Supreme Court of India.
The Authority After deliberation decided to take
the opinion of the Advocate General, GoM regarding
issuance of post facto CRZ clearance for the existing
compound wall, demolition of which, is stayed by the
Hon. High Court of Mumbai."
(emphasis supplied)
51. From the aforesaid, it cannot be said that the proposal for
regularisation/retention of the compound wall is being favourably
considered by the MCZMA. In fact, the minutes record that there is no
provision for giving post facto CRZ clearance in terms of the CRZ
notification of 2011. That apart, Mrs. Deshmukh, learned Counsel for
MCZMA made it clear that the MCZMA has not considered any
proposal for regularisation or retention of the compound wall with regard
to which the MoEF has already issued demolition orders. Mrs.
Deshmukh, in fact, contended that the MCZMA is not even the
appropriate authority to consider such proposal, particularly, when the
MoEF has already directed the demolition of such compound wall on the
grounds that the same is in breach of the environmental clearance as also
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the CRZ notifications. This position was also reiterated by the learned
Counsel appearing for MoEF.
52. Mr. Kamdar was also unable to point out any provision under
which an illegal construction within the CRZ area or area affected by
mangroves can be regularised or permitted to be retained on the basis of
some ex post facto approval or clearance. In any case, the MCGM or
even the public authority endowed with the duty to prevent illegal and
unauthorized construction, cannot itself put up wholly illegal and
unauthorized construction in ecologically sensitive area and thereafter,
insist upon, regularization or retention. This is clearly not a case where
the MCGM or its contractor have marginally or unintentionally exceeded
the apparent scope of the environment clearance. The environment
clearance was quite clear inasmuch as it related to the area of 65.96 ha
only. The MCGM and its contractor, however, enclosed the area
admeasuring 86 ha with a compound wall despite clear knowledge that
the area beyond 65.96 ha is affected by the CRZ notification as well as
mangroves. As noted earlier, the compound wall which the MoEF has
now directed the MCGM to demolish extends not only to the areas
affected by the CRZ notification, but also to areas affected by
mangroves. There can be no doubt that areas covered by mangroves are
ecologically highly sensitive areas and, therefore, special provisions
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have been made for protection of such areas. In such a situation, to
permit MCGM to seek regularisation or retention, would virtually
amount to rewarding the MCGM for its illegal and high handed acts. At
least in the exercise of extraordinary and equitable jurisdiction under
Articles 226 and 227 of the Constitution of India, we cannot extend such
indulgence to the MCGM, which as noted earlier, is itself one of the
main statutory authorities enjoined with the duty to prevent illegal and
unauthorised constructions.ig
53. Although Mr. Kamdar is right in his submission that the MCGM is
not some private builder, we are unable to accept his contention that
different standards should apply when it comes to consideration of the
case of MCGM for regularisation of unauthorised construction in CRZ
areas and areas affected by mangroves. The treatment of municipal solid
waste is no doubt conceived in public interest. However, we cannot
overlook the circumstance that the MCGM has engaged a contractor to
treat such municipal waste and it is such contractor who is in fact
operating the contract upon the project site handed over free of charge by
the state Government to the MCGM. The contractor is operating the said
project upon commercial basis and the contention on behalf of some of
the respondents that the contractor is making substantial profits, was not
even seriously disputed. In any case, we see no reason to apply any
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different yardstick, in the matter of regularisation of unauthorised
construction undertaken by the MCGM or its contractor. In fact, the
MCGM, which is otherwise enjoined to ensure orderly development, has
to take active steps to prevent illegal and unauthorised construction.
Instead, in the present case, the MCGM has itself indulged in illegal and
unauthorised construction, thereby, degrading and destroying
ecologically sensitive areas affected by CRZ notification and mangroves.
Merely because the MCGM is a public body and through its contractor is
undertaking the laudable enterprise of municipal solid waste
management, the MCGM cannot ignore the laws of the land which are
equally binding upon the MCGM. In fact, in such matters, it is expected
that the MCGM sets a good example, particularly, when it comes to
protection of ecologically sensitive areas within CRZ areas or areas
affected by mangroves.
54. In Urban Improvement Trust, Bikaner V/s. Mohan Lal (2010) 1
SCC 512, the Hon'ble Supreme Court by reference to its previous
decision, has repeatedly expressed the view that Governments and
statutory authorities should be model or ideal litigants and should not put
forth false, frivolous, vexatious, technical (but unjust) contentions to
obstruct the path of justice. It is a matter of concern that such frivolous
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and unjust litigations by Governments and statutory authorities are on
increase. Vexatious and unnecessary litigations have been clogging the
wheels of justice for too long, making it difficult for courts and tribunals
to provide easy and speedy access to justice to bona fide and needy
litigants. Statutory authorities exist to discharge statutory functions in
public interest. They should be responsible litigants. They cannot raise
frivolous and unjust objections, nor act in a callous and high-handed
manner. They cannot behave like some private litigants with profiteering
motives. Nor can they resort to unjust enrichment. When glaring wrong
acts by their officers are brought to their notice, for which there is no
explanation or excuse, the least that is expected is restitution/restoration
to the extent possible with appropriate compensation. Their harsh
attitude in regard to genuine grievances of the public and their
indulgence in unwarranted litigation requires to be corrected.
The reluctance to take decisions, or tendency to challenge all
orders against them, is not the policy of Governments or statutory
authorities, but is attributable to some officers who are responsible for
taking decisions and/or officers in charge of litigation. Their reluctance
arises from an instinctive tendency to protect themselves against any
future accusations of wrong decision-making, or worse, of improper
motives for any decision-making. Unless their insecurity and fear is
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addressed, officers will continue to pass on the responsibility of
decision-making to courts and tribunals.
55. In the present case, it is hardly open to the MCGM to seek some
relief on equitable grounds, considering its conduct in putting up an
unauthorised construction in area affected by CRZ and mangroves. In
terms of the orders made by this Court as well as the Hon'ble Supreme
Court, the MCGM was permitted to continue with its activity at the said
site subject to compliance with the directions in the order dated 4
November 2013 made by MoEF. As noted earlier, the MCGM continued
with its operations, but failed to comply with all the conditions in the
order dated 4 November 2013 made by MoEF. That apart, only on basis
of equitable considerations, there is no question of interfering with the
impugned directions issued by the MoEF for purposes of protection of
ecologically sensitive areas affected by CRZ notification and mangroves.
56. In Union Territory of Lakshadweep & Ors. V/s. Seashells Beach
Resort & Ors. 2012 (6) SCC 136, the Hon'ble Supreme Court did not
approve grant of relief in matters of violation of CRZ notification, only
upon humanitarian and equitable considerations.
In paragraphs 30 & 31, the Hon'ble Supreme Court has observed
thus:
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"30. The High Court's order proceeds entirely on
humanitarian and equitable considerations, in the
process neglecting equally, if not more, important
questions that have an impact on the future
development and management of the Lakshadweep
Islands. We are not, therefore, satisfied with the
manner in which the High Court has proceeded in the
matter.
31. The High Court obviously failed to appreciate
that equitable considerations were wholly misplaced
in a situation where the very erection of the building to
be used as a resort violated the CRZ requirements or
the conditions of land use diversion. No one could in
the teeth of those requirements claim equity or present
the administration with a fait accompli. The resort
could not be commissioned under a judicial order in
disregard of serious objections that were raised by the
Administration, which objections had to be answered
before any direction could issue from a writ Court."
57. In M/s. Royal Parasdise Hotel (P) Ltd. V/s State Of Haryana &
Ors. 2006 (7) SCC 597, the Hon'ble Supreme Court has held that
unauthorised constructions should not be encouraged and compounding
is not to be done when the violations are deliberate, designed, reckless or
motivated.
At paragraphs 7 & 8, the Hon'ble Apex Court has observed thus:
"7. It is clear from the statement of the synopsis and
list of dates furnished by the appellant itself, that on
4.2.1998, Mr. Chawla, who put up the construction
before it was sold to the appellant received a notice
under Section 12 of the Act informing him of
contravention of Section 3 or Section 6 and of
violation of Section 7(1) and Section 10 of the Act and
directing him to stop further construction. When it was
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found that the appellant was defying the direction to
stop, an order was passed on 26.2.1998 under sub-
Section (2) of Section 12 of the Act directing him to
remove the unauthorized construction and to bring the
site in conformity with the relevant provisions of the
Act on finding that there was clear violation of Section
7 and Section 10 of the Act. On 16.3.1999, another
notice was issued to Mr. Chawla mentioning therein
that there is a contravention of Section 7(1) or Section
10 of the Act and directing removal of the
unauthorized construction. The copies of the original
notices are produced by the respondents along with
the counter affidavit filed on behalf of the respondent
Nos.1 to 3. Though the copies of such notices have
been produced by the appellant also, we find that there
are some omissions in the copies produced on behalf
of the appellant. Whatever it be, the fact remains that
the construction was made in the teeth of the notices
and the directions to stop the unauthorized
construction. Thus, the predecessor of the appellant
put up the offending construction in a controlled area
in defiance of the provisions of law preventing such a
construction and in spite of notices and orders to stop
the construction activity. The constructions put up are
thus illegal and unauthorized and put up in defiance of
law. The appellant is only an assignee from the person
who put up such a construction and his present
attempt is to defeat the statute and the statutory
scheme of protecting the sides of highways in the
interest of general public and moving traffic on such
highways. Therefore, this is a fit case for refusal of
interference by this Court against the decision
declining the regularization sought for by the
appellant. Such violations cannot be compounded
and the prayer of the appellant was rightly rejected
by the authorities and the High Court was correct in
dismissing the Writ Petition filed by the appellant. It
is time that the message goes aboard that those who
defy the law would not be permitted to reap the
benefit of their defiance of law and it is the duty of
High Courts to ensure that such defiers of law are
not rewarded. The High Court was therefore fully
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justified in refusing to interfere in the matter. The
High Court was rightly conscious of its duty to
ensure that violators of law do not get away with it.
8. We also find no merit in the argument that
regularization of the acts of violation of the
provisions of the Act ought to have been permitted.
No authority administering municipal laws and other
laws like the Act involved here, can encourage such
violations. Even otherwise, compounding is not to be
done when the violations are deliberate, designed,
reckless or motivated. Marginal or insignificant
accidental violations unconsciously made after trying
to comply with all the requirements of the law can
alone qualify for regularization which is not the rule,
but a rare exception. The authorities and the High
Court were hence right in refusing the request of the
appellant."
(emphasis supplied)
58. In Friends Colony Development Committee V/s. State Of Orissa
& Ors. (2004) 8 SCC 733, the Hon'ble Supreme Court at paragraph 25
has made the following observations in the context of regularisation of
unauthorised constructions:
"25. Though the municipal laws permit deviations
from sanctioned constructions being regularised by
compounding but that is by way of exception.
Unfortunately, the exception, with the lapse of time
and frequent exercise of the discretionary power
conferred by such exception, has become the rule.
Only such deviations deserve to be condoned as are
bona fide or are attributable to some
misunderstanding or are such deviations as where
the benefit gained by demolition would be far less
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than the disadvantage suffered. Other than these,
deliberate deviations do not deserve to be condoned
and compounded. Compounding of deviations ought
to be kept at a bare minimum. The cases of
professional builders stand on a different footing from
an individual constructing his own building. A
professional builder is supposed to understand the
laws better and deviations by such builders can safely
be assumed to be deliberate and done with the
intention of earning profits and hence deserve to be
dealt with sternly so as to act as a deterrent for future.
It is common knowledge that the builders enter into
under hand dealings. Be that as it may, the State
Governments should think of levying heavy penalties
on such builders and therefrom develop a welfare fund
which can be utilized for compensating and
rehabilitating such innocent or unwary buyers who are
displaced on account of demolition of illegal
constructions."
(emphasis supplied)
59. In Shanti Sports Club V/s. Union of India (2009) 15 SCC 705,
the Hon'ble Supreme Court approved the order of the Delhi High Court
which had declared the construction or sports complex by the appellant
on the land acquired for planned development of Delhi to be illegal by
observing thus at paras 74 & 75:
"74. In last four decades, almost all cities, big or
small, have seen unplanned growth. In the 21 st century,
the menace of illegal and unauthorized constructions
and encroachments has acquired monstrous proportions
and everyone has been paying heavy price for the same.
Economically affluent people and those having support
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of the political and executive apparatus of the State
have constructed buildings, commercial complexes,
multiplexes, malls etc. in blatant violation of the
municipal and town planning laws, master plans, zonal
development plans and even the sanctioned building
plans. In most of the cases of illegal or unauthorized
constructions, the officers of the municipal and other
regulatory bodies turn blind eye either due to the
influence of higher functionaries of the State or other
extraneous reasons. Those who construct buildings in
violation of the relevant statutory provisions, master
plan etc. and those who directly or indirectly abet such
violations are totally unmindful of the grave
consequences of their actions and/or omissions on the
present as well as future generations of the country
which will be forced to live in unplanned cities and
urban areas. The people belonging to this class do not
realize that the constructions made in violation of the
relevant laws, master plan or zonal development plan
or sanctioned building plan or the building is used for a
purpose other than the one specified in the relevant
statute or the master plan etc., such constructions put
unbearable burden on the public facilities/amenities
like water, electricity, sewerage etc. apart from creating
chaos on the roads. The pollution caused due to traffic
congestion affects the health of the road users. The
pedestrians and people belonging to weaker sections of
the society, who cannot afford the luxury of air-
conditioned cars, are the worst victims of pollution.
They suffer from skin diseases of different types,
asthma, allergies and even more dreaded diseases like
cancer. It can only be a matter of imagination how
much the government has to spend on the treatment of
such persons and also for controlling pollution and
adverse impact on the environment due to traffic
congestion on the roads and chaotic conditions created
due to illegal and unauthorized constructions. This
Court has, from time to time, taken cognizance of
buildings constructed in violation of municipal and
other laws and emphasized that no compromise
should be made with the town planning scheme and
no relief should be given to the violator of the town
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planning scheme etc. on the ground that he has spent
substantial amount on construction of the buildings
etc....
75. Unfortunately, despite repeated judgments by the
this Court and High Courts, the builders and other
affluent people engaged in the construction activities,
who have, over the years shown scant respect for
regulatory mechanism envisaged in the municipal and
other similar laws, as also the master plans, zonal
development plans, sanctioned plans etc., have received
encouragement and support from the State apparatus.
As and when the courts have passed orders or the
officers of local and other bodies have taken action for
ensuring rigorous compliance of laws relating to
planned development of the cities and urban areas and
issued directions for demolition of the
illegal/unauthorized constructions, those in power have
come forward to protect the wrong doers either by
issuing administrative orders or enacting laws for
regularization of illegal and unauthorized constructions
in the name of compassion and hardship. Such actions
have done irreparable harm to the concept of planned
development of the cities and urban areas. It is high
time that the executive and political apparatus of the
State take serious view of the menace of illegal and
unauthorized constructions and stop their support to
the lobbies of affluent class of builders and others, else
even the rural areas of the country will soon witness
similar chaotic conditions."
(emphasis supplied)
60. In Dipak Kumar Mukherjee V/s. Kolkata Municipal Corporation
& Ors. (2013) 5 SCC 336, the Hon'ble Supreme Court at paragraph 8, in
the context of unauthorised constructions has observed thus:
"8. What needs to be emphasised is that illegal and
unauthorised constructions of buildings and other
structure not only violate the municipal laws and the
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concept of planned development of the particular area
but also affect various fundamental and constitutional
rights of other persons. The common man feels
cheated when he finds that those making illegal and
unauthorised constructions are supported by the
people entrusted with the duty of preparing and
executing master plan/development plan/zonal plan.
The reports of demolition of hutments and jhuggi
jhopris belonging to poor and disadvantaged section
of the society frequently appear in the print media but
one seldom gets to read about demolition of
illegally/unauthorisedly constructed multi-storied
structure raised by economically affluent people. The
failure of the State apparatus to take prompt action to
demolish such illegal constructions has convinced the
citizens that planning laws are enforced only against
poor and all compromises are made by the State
machinery when it is required to deal with those who
have money power or unholy nexus with the power
corridors."
61. Similarly, in Esha Ekta Apartments Cooperative Housing Society
Limited And Ors. V/s. Municipal Corporation of Mumbai & Ors.
(2013) 5 SCC 357, the Hon'ble Supreme Court in the context of
regularisation of unauthorised constructions, at paragraph 56, has
observed thus:
"56. In view of the above discussion, we hold that the
petitioners in the transferred case have failed to make
out a case for directing the respondents to regularise
the construction made in violation of the sanctioned
plan. Rather, the ratio of the above noted judgments
and, in particular, Royal Paradise Hotel (P) Ltd. V/s.
State of Haryana is clearly attracted in the present
case. We would like to reiterate that no authority
administering municipal laws and other similar laws
can encourage violation of the sanctioned plan. The
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courts are also expected to refrain from exercising
equitable jurisdiction for regularisation of illegal and
unauthorised constructions else it would encourage
violators of the planning laws and destroy the very
idea and concept of planned development of urban as
well as rural areas."
(emphasis supplied)
62. We are satisfied that this is not a case where the MCGM or its
contractor had put up the compound wall either on account of any
genuine misconstruction of the terms of EC dated 17 March 2009 or that
deviation of such magnitude was unintentional, accidental or trivial. The
impact of such unauthorised construction of the compound wall within
areas affected by CRZ notification and mangroves, has already been
noted by this Court, inter alia, in its order dated 10 May 2013 in PIL
Nos.131/2012 and 1/2013. On account of the construction of the
compound wall within such ecologically sensitive areas, such areas as
well as the mangroves therein have been degraded and destroyed. As
observed by the Hon'ble Supreme Court in the decisions referred to
herein above, it will not be appropriate to encourage such unauthorised
constructions or permit their retention particularly, when the same have
been undertaken by the MCGM and its contractor by disregarding the
terms of EC dated 17 March 2009 as also the provisions of CRZ
notifications and the EPA. Accordingly, there is no case made out to
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interfere with the impugned directions made by the MoEF in its order
dated 4 November 2013 or to issue any direction for regularisation or
retention of the illegal and unauthorised construction.
63. For all the aforesaid reasons, we dismiss the present petition. Rule
is discharged. Interim orders, if any, are hereby vacated.
64.
Taking into consideration the report of the MCZMA with regard to
environmental degradation within the area classified as CRZ and the area
affected by mangroves on account of the construction of the compound
wall in such areas, it is only appropriate that the MCGM complies with
the impugned directions issued by MoEF and demolishes the compound
wall to the extent directed within a period of two months from today.
Accordingly, we issue directions to the MCGM to this effect and
thereafter file a report / affidavit of compliance within a period of two
weeks from the date of demolition. Copy of such report / affidavit to be
served upon the MoEF, before the same is filed in the registry.
65. Although this would otherwise be a fit case for imposition of
costs, considering that the brunt of such costs may have to be borne by
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the municipal tax payers, we refrain from the imposition of any costs
upon the MCGM.
M. S. SONAK, J. D.H. WAGHELA, C.J.
