Bombay High Court
Agriculture Dairy Development, ... vs Union Of India Through Ministry Of ... on 14 January, 2021
Bench: G. S. Kulkarni
Digitally
signed by
Prashant
42-wp-2750-20.doc
Prashant V. Rane
V. Rane Date:
2021.01.19
12:53:38
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2750 OF 2020
Agriculture, Dairy Development, Animal
Husbandry and Fisheries Department,
Government of Maharashtra ...Petitioner
versus
1. Union of India
2. Maharashtra Coastal Zone Management
Authority
3. State of Maharashtra
4. Chief Conservator of Forest (Mangrove Cell) ..Respondents
.....
Mr.Saket Mone with Mr.Subit Chakrabarti, Mr.Vishesh Kalra and
Mr.Abhishek Salian, Mr.Shantam Mandhayan i/b. Vidhii Partners, for
the Petitioners.
Smt.R.A.Salunkhe, AGP for the State
Mr.D.P.Singh with Mr.Tanay Mandot, for Respondent no.1.
Mr.Jaya Bagwe i/b. Sharmila Deshmukh, for Respondent no.2-MCZMA.
.....
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- JANUARY 14, 2021.
PC :
1. Rule returnable forthwith. Respondents waive service. By
consent of the parties, heard finally.
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2. The petitioner is the Agriculture, Dairy Development,
Animal Husbandry and Fisheries Department, Government of
Maharashtra (for short ADDAHFD) which intends to upgrade existing
fishery facilities located at Diwalegaon, Belapur, Taluka Thane, District
Thane. Such work is stated to be of public importance, being
undertaken to mitigate the hardships faced by the fisheries at
Diwalegaon, Belapur and improve the fish production capacity.
3. The ADDAHFD accordingly, moved a proposal with the
Maharashtra Coastal Zone Management Authority (for short 'MCZMA')
seeking its approval as the proposed work fell under the Coastal Zone
Regulations. The MCZMA in its 143rd meeting held on 4 th February
2020 considered the ADDAHFD's proposal and recommended the same
from the CRZ point of view to the State Environment Impact
Assessment Authority (for short 'SEIAA'), subject to compliance of
certain conditions. One of the conditions being of a prior permission of
this Court to be obtained for the reason of the project being within 50
meters of the mangroves buffer zone. The ADDAHFDs proposal was
considered by the SEIAA in its 211th meeting on 8th December 2020. The
SEIAA has granted CRZ clearance to the petitioner's project on 28
December 2020 confirming the conditional permission as issued by the
MCZMA namely of a prior permission of this Court to be obtained for
the reason of the project being within 50 meters of the mangroves
buffer zone.
4. It is the case of the ADDAHFD that the proposed work does
not require cutting of mangroves, however, as the works fall under
buffer zone of the mangroves, permissions were required to be obtained
from the MCZMA and the other authorities. To support this contention
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ADDAHFD has annexed a copy of the layout plan of the proposed
development of fish landing centre at Diwalegaon submitted alongwith
the Application for CRZ Clearance at 'Exhibit D' to the petition.
5. At page 20 ground (C) of the petition, the ADDAHFD has
stated that the SEIAA has granted CRZ clearance on 16 September
2019, however, subject to obtaining prior leave of this Court as per the
orders passed by this Court as per the directions as containing in the
decision of the co-ordinate Bench of this Court in Public Interest
Litigation no.87 of 2006 in the BEAG's case ("The Bombay
Environmental Action Group (BEAG) & Anr. Vs. State of Maharashtra",
dated 17 September 2018).
6. Learned Counsel for the petitioner has taken us through the
averments as made in the petition and the documents as placed on
record. Our attention has also been drawn to the order dated 17
September 2018 in BEAG's case wherein although orders are issued
prohibiting cutting of mangroves, however a window has been kept
open for removal of mangroves, as per directions contained in
paragraph 83 (viii) of the judgment, if the Court finds it necessary for
public good or in public interest. In any event the mangroves are not
being removed for the project in question in the present case.
7. On the above conspectus, the ADDAHFD has prayed for the
following substantive relief:-
"(a) This Hon'ble Court be pleased to issue a Writ of
Mandamus or any other appropriate writ or order or
direction in the nature of mandamus under Article 226 of
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the Constitution of India, thereby directing the Respondent
Authorities to permit the Petitioner to execute the proposed
upgradation of fishery facilities located at Diwalegaon
Village, Taluka Thane, District Thane, and grant leave as
contemplated Condition No. VII and IX of the CRZ
Clearance dated 16th September 2019 (Exhibit J), in view
of the public importance of the project."
8. Ms.Salunkhe, learned AGP would submit that the State
Government would not dispute what is contended by the ADDAHFD.
She would, however, submit that the ADDAHFD should abide by all the
terms and conditions which would be imposed by the authorities in
undertaking the project. Learned Counsel for the petitioner in
responding to Ms.Salunkhe's submission, makes a statement that the
ADDAHFD would strictly adhere to all the conditions as imposed by
different authorities which would grant approval to the project.
Statement as made on behalf of the petitioner is accepted.
9. Having heard learned Counsel for the parties and having
perused the record, it is quite clear to us that per se there is no
destruction of the mangroves by the ADDAHFD in implementation of
the project work. The mangroves however situated in the vicinity of 50
meters of the proposed work to be undertaken, the ADDAHFD has
approached this Court praying for the above relief. Also the MCZMA has
found it appropriate that the ADDAHFD approaches this Court and
seeks permission considering the orders passed by this Court in BEAG's
case.
10. It is also not in dispute that the work in question is a public
work of importance, necessary for the proposed upgradation of existing
fishery facilities located at Diwalegaon, Belapur, District Thane. The
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ADDAHFD with the technical expertise available at its disposal has
planned the project which is being implemented, we are sure that in
undertaking such project the ADDAHFD would take utmost care of the
environment and would take all precautions in not damaging
mangroves and keep the ecological balance on all other environmental
aspects.
11. In the above circumstances, we are inclined to permit the
ADDAHFD to undertake this project as per the permissions/approvals
for this project from the concerned statutory authorities. We
accordingly allow the petition, in terms of the following order:-
ORDER
I The petition is accordingly allowed in terms of prayer
clause (a) (supra).
II The ADDAHFD shall undertake the work in question in
compliance of all the terms and conditions which may be imposed by
the MCZMA and SEIAA and/or any other appropriate authority as
required by law.
III Rule is made absolute in the above terms. No costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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