Bombay High Court
Vanashakti And Anr vs Revenue And Forest Dept. ,State Of ... on 25 January, 2024
Author: Gs Patel
Bench: G.S.Patel
2024:BHC-AS:4129-DB Vanashakti & Anr v Revenue and Forest Department & Ors
901-aspil-106-2021-J.doc
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
PUBLIC INTEREST LITIGATION NO. 106 OF 2021
1. Vanashakti,
A Public Trust, registered under the
provisions of the Bombay Public Trust
Act 1950 having its office at Nandkumar
Pawar House, Opp. Shri Jagannath
Darshan Building, MD Kini Marg,
Bhandup Village (East),
Mumbai 400 042.
PAN No.: AECPD7849E
Email ID: [email protected]
Contact No.: 98202 32302
Yearly Income: Rs.15,81,401/-
2. Stalin Dayanand,
Age 54 years, Project Director,
Vanashakti, and having its office at
Nandkumar Pawar House, Opp. Shri
Jagannath Darshan Building, MD Kini
ARUN
Marg, Bhandup Village (East),
RAMCHANDRA
SANKPAL Mumbai 400 042.
Digitally signed by
ARUN
PAN No.: ABTV1057H
RAMCHANDRA
SANKPAL
Date: 2024.01.29
Email ID: [email protected]
17:08:58 +0530
Contact No.: 98202 32302 ...
Yearly Income: Rs.9,00,000/- PETITIONERS
~ VERSUS ~
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1. Revenue And Forest
Department,
State of Maharashtra,
Through the Secretary (Forests), &
having its office at Mantralaya,
Mumbai 400 032.
2. Additional Principal Chief
Conservator Of Forest And
Mangrove Cell Head,
Mumbai,
Office of the Addl. Principal Chief
Conservator of Forests & Mangrove
State of Maharashtra, having its office
at Room No. 302, 3rd Floor, Wakefield
House, Near Britannia Restaurant,
Ballard Estate, Fort,
Mumbai 400 001.
3. Maharashtra Coastal Zone
Management Authority,
Through its Chairperson, having its
office at Environment Department,
Room No. 217 (Annex), Mantralaya,
Mumbai 400 032.
4. District Collector,
Raigad District,
Office of the District Collector and
Magistrate, Raigad, Near Heera Court
Lake, Police Line, Alibaug,
Maharashtra 402 201.
5. Office Of Principal Chief
Conservator Of Forests,
MS Nagpur,
3rd Floor, Van Bhavan Ramgiri Road,
Civil Lines, Nagpur 440 001.
6. Office Of Chief
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Conservator Of Forests,
Near Microwave Tower, Bara Bungalow
Area, Krishna Borker Marg, Kopri,
Thane (East),
Maharashtra 400 603
Mumbai 400 021.
7. National Board For
Wildlife,
Through the Chairperson, Having its
office at Indira Paryavaran Bhavan,
Jorbagh Road,
New Delhi 110 003.
8. Maharashtra State
Wildlife Board,
Office of the Principal Chief
Conservator of Forests (Wildlife),
MS Nagpur, 3rd Floor, Van Bhavan,
Ram Giri Road, Civil Lines,
Nagpur 440 001.
9. Navi Mumbai SEZ Pvt Ltd,
a company incorporated under the
Companies Act 1956 and having its
registered office at NMSEZ House,
Sector 10-B, Koper-Nahva Road, Near
Shivaji Nagar, Ulwe (West),
Navi Mumbai 410 206.
10. City And Industrial
Development Corporation
of Maharashtra Limited,
Through its Managing Director &
having its office at CIDCO Bhavan,
CBD Belapur,
Navi Mumbai 400 614.
11. Union of India,
Through the Ministry, Environment
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and Forets & Climate Change & having
its office at Indira Paryavaran Bhavan,
Jorbagh Road, ...
New Delhi 110 003 RESPONDENTS
A PPEARANCES
FOR THE PETITIONERS Mr Akash Rebello, with Nupur
Jalan, Zaman Ali, i/b Zaman
Ali.
FOR RESPONDENT NO 9 Dr Milind Sathe, Senior Advocate,
with Saket Mone, Rubin Vakil,
Amey Nabar, Rishit Badiani,
Ketan Dave & Gaurav
Gangal, i/b AS Dayal &
Associates.
FOR THE RESPONDENT- Mr Ravi Kadam, Senior Advocate,
CIDCO with GS Hegde, Senior
Advocate, Rohan Kadam, i/b
PM Bhansali.
FOR RESPONDENT- Ms Jaya Bagwe.
MCZMA
FOR RESPONDENT- Mr Parag Vyas, with Ashutosh
UNION OF INDIA Mishra.
FOR RESPONDENT- Ms MP Thakur, AGP.
STATE
CORAM : G.S.Patel &
Kamal Khata, JJ.
DATED : 25th January 2024
ORAL JUDGMENT (Per GS Patel J):-
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1. This order disposes of the Public Interest Litigation ("PIL")
that is assigned to this Court. However, for the reasons that will
follow, this is, we make it clear at the outset, not an assessment on
merits. That is to say, we should not be misunderstood to have
rejected the Petitioners' contentions, nor accepted nor rejected, the
contentions of the Respondents.
2. The matter arises this way.
3. The 1st Petitioner is a Public Trust. It is an environmental
Non-Governmental Organisation ("NGO") of which the 2nd
Petitioner is the project director. The focus of this Petition is an area
called the 'Panje-Dongri Wetlands'. This is a substantial tract of
land of 124 hectares or thereabouts. The Petition proceeds on the
basis, supported by much material, that this entire area is unique
from several environmental and ecological perspectives. To begin
with, it is a wetland and that has one level of protection on its own.
But it is also argued by Mr Rebello that this is a unique bird habitat.
It is also the habitat for marine species other than birds that are
typically found in wetlands.
4. Our concern at this stage is about the frame of the principal
reliefs sought by the Petitioners. Prayer clause (a) was amended and
it now reads as follows:
"(a) That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ, order or direction
directing the Respondents to take immediate steps for the
conservation and protection of Panje-Dongri Wetlands
comprising of 124 ha. as a unique bird habitat and as a
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'Protected Area' under the Wildlife (Protection Act), 1972
and till such steps are taken, this Hon'ble Court be pleased
to direct complete protection and conservation of Panje-
Dongri Wetlands."
5. Then there are the additional prayer clauses (b), (c) and (d).
These read as follows:
"(b) That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ order or direction
directing Respondents to rigorously conserve and protect
the entire Panje-Dongri Wetlands and prohibit any kind of
construction, landfilling, blockage of tide water and
reclamation thereof;
(c) That this Hon'ble Court be pleased to issue a writ of
Mandamus or any other appropriate writ order or direction
directing Respondents to install adequate safety measures
by restricting movement of vehicles in the area, provide
24X7 CCTV cameras and deploy or assign permanent
forest rangers/create Forest protection watch towers to
protect and preserve Panje-Dongri Wetlands from any
further risk of destruction;
(d) That this Hon'ble Court be pleased to issue a writ of
mandamus or any other appropriate writ order or direction
directing Respondents to modify the Coastal Zone
Management Plan (CZMP) Maps and Development Plan of
Navi Mumbai to suitably reflect the status of the entire
Panje Wetlands as a Bird Sanctuary and a CRZ area."
6. In the course of arguments, Mr Rebello has placed his case
thus. He says that there is on facts incontrovertible material in
regard to the situation at the site, i.e., that it fulfils all the
requirements necessary for protection under the Wildlife Protection
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Act 1972 ("the WLP Act"). What form that protection takes may
be a matter of moulding relief in the discretion of the Court, but it
cannot be gainsaid, submits Mr Rebello, that there is an extensive
proliferation and density of bird and other wildlife that demands
protection and is under threat by development proposals.
7. The land in question is within the jurisdictional area of City
and Industrial Development Corporation of Maharashtra
("CIDCO"), a special planning authority in whom the land is
vested. There is a private developer who has rights in respect of a
portion of the land (we are told in collaboration with CIDCO). It
may well be that the contention of the person entitled to the land
relates to property rights. In any such contestation, therefore, a Writ
Court would be asked to decide which should prevail over the other.
8. Having carefully considered the prayers, and, without looking
at the rival material, we believe that there may be a clear difficulty in
granting relief in the manner in which the prayers are presently cast.
Despite that, given the width and breadth of writ jurisdiction, could
we possibly mould the relief? It is our understanding that the
exercise of moulding relief cannot be undertaken by a Court to grant
something that is not contemplated by the statute at all. The
concept of "moulding the relief" really involves adjusting a matter
of detail to make a resultant order effective.
9. To appreciate the question, we turn to certain provisions of
the WLP Act. We will take for our purposes of discussion today
only two Sections, i.e., Section 18 as amended and Section 36A
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added by an amendment of 2003. We do so because it was our
understanding that Mr Rebello's submission was that the form of
protection did not in itself matter significantly so long as there was
some form of protection of the area as a bird and wildlife habitat and
preventing commercial or other real estate development on it.
10. Section 18 and Section 36A of the WLP Act read as follows:
"18. Declaration of sanctuary
(1) The State Government may, by notification,
declare its intention to constitute any area other than an
area comprised within any reserve forest or the territorial
waters as a sanctuary if it considers that such area is of
adequate ecological, faunal, floral, geomorphological,
natural or zoological significance, for the purpose of
protecting, propagating or developing wild life or its
environment.
(2) The notification referred to in sub-section (1) shall
specify, as nearly as possible, the situation and limits of
such area.
Explanation: For the purposes of this section it shall
sufficient to describe the area by roads, rivers, bridges or
other well known or readily intelligible boundaries.
36A. Declaration and management of a conservation
reserve
(1) The State Government may, after having
consultations with the local communities, declare any
area owned by the Government, particularly the areas
adjacent to National Parks and sanctuaries and those
areas which link one protected area with another, as a
conservation reserve for protecting landscapes,
seascapes, flora and fauna and their habitat:
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PROVIDED THAT where the conservation
reserve includes any land owned by the Central
Government, its prior concurrence shall be obtained before
making such declaration.
(2) The provisions of sub-section (2) of section 18, sub-
sections (2), (3) and (4) of section 27, sections 30, 32 and
clauses (b) and (c) of section 33 shall, as far as may be, apply
in relation to a conservation reserve as they apply in relation
to a sanctuary.
11. This throws into focus the difficulty in our way. As we read it,
Section 18(1) which deals with sanctuaries as part of Chapter IV of
the WLP Act is purely within the remit of the executive. The
Section says that the State Government may notify and thus declare
its intention to constitute an area (except the excluded areas) as a
sanctuary if it considers that such an area is of adequate ecological,
faunal, floral, etc significance.
12. The two words here that will inform our discussion are the
words "may" and the expression "if it considers". Both speak to the
subjective satisfaction of the State Government in exercise of its
executive powers but on objective criteria. This branch of the law is
well settled. That decision cannot be arbitrary. It cannot be
whimsical. It cannot ignore relevant material. It cannot take into
account irrelevant material. But whether the concerns or
commercial concerns of a landholder are or are not material is
perhaps an argument for another day. The point that Mr Rebello
makes is, in our view, one that is best made before the decision-
making authority.
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13. To complete this part, Section 36A operates in a slightly
different manner. It deals with a conservation reserve but here while
the word used is still "may", what is required is consultation with
local communities and the purpose is slightly different, that is to say,
to ensure contiguity with areas that are otherwise protected as
national parks, sanctuaries, etc. These may provide what are known
as wildlife corridors, buffer zones, and so on so that while these
conservation reserves may not enjoy the full weight of national park
or sanctuary protection, they are at the same time not entirely
unprotected. Again, this is a factual determinant. The Petitioners
would have to show that the Panje-Dongri Wetlands do fall and
meet the requirements of Section 36A.
14. The most fundamental point, to our minds, is that we do not
see how we can direct the State Government to take a decision, i.e.,
to exercise its discretion, in a particular way no matter how
compelling the material before us might be. There may be treaties.
There may be surveys. There may be studies. But these are surely
factors that will weigh with the executive decision-making authority.
They may weigh with the Court as well but that depends on the
decision that is ultimately taken. This dividing line between what a
Writ Court can do and what an Executive Court can do is well
known to our jurisprudence. There are any number of judgments
that deal with this.
15. Now, we do not have a decision by the State Government.
The Petitioners have made representations. There is at least one
school of thought that suggests that the exercise of such
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discretionary power includes the power not to decide at all. In other
words, it is always permissible to an executive to simply file a
representation and not act on it.
16. We must address ourselves to at least this much. The reason
is that we cannot and do not question the locus or bona fides of
these Petitioners. They have over a period of several months
brought before us in the form of compilations and other documents
of very large amount of material. A quick overview in a few
sentences will suffice. There is, to begin with, a reference to
domestic statutes in regard to wetlands, wildlife, etc. Then there is a
reference to international treaties and conventions to which India is
a party or a signatory. The submission is that international treaty
and convention obligations do not permit an executive to refuse to
act. Those international obligations compel the executive to take a
decision in such matters. That branch of the law is also well settled,
and it has been applied in a range of situations including, perhaps
most vividly, cases involving the protection of human rights,
indigenous peoples, and so on. There is no real reason to see why
international treaty/convention obligations in regard to biodiversity,
ecology, environment, and so on should be less compelling for the
purposes of a decision being taken. In another manner of speaking,
we do not believe that doing nothing is an option.
17. Factually also, the Petitioners have brought before the Court a
significant amount of material from what they say are reliable third-
party sources such as the Bombay National History Society and
others engaged with wildlife and bird protection. But Mr Rebello has
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been at some pains to point out that it is not just the voice of
outsiders. There is also an expression of support for this proposal
that comes from within the Government itself and takes the form of
an Affidavit filed by the Additional Principal Chief Conservator of
Forests and Mangrove Cell Head at the time, the Principal Chief
Conservator of Forest in Nagpur, and the Chief Conservator of
Forests in Thane in reference to these very lands. What weight is to
be attached to these, is again an issue on which we are expressing no
opinion ourselves.
18. We return for a moment to Section 18, extracted above. It is
true that this confers discretion on the State Government. But the
discretion is by no means unfettered, unguided, or uncanalised. The
Section itself tells us what are the factors that are to be borne in
mind when considering whether an area should be notified as a
sanctuary and when that process should be started. There has to be,
in other words, substantial objective material to inform the decision
one way or the other.
19. It is also, in our view, a question of balancing competing
equities (we will not say interests because this is a PIL). There is the
age-old debate of the conflict between development of any kind, i.e.,
a manual intervention and environmental protection. Many Courts
have used the expression "balanced development", but we dare say
Mr Rebello would find it relatively easy to argue that the concept of
balanced development is extremely malleable and changes from case
to case. It is not an objective standard. Every intervention involves
some form of environmental and ecological damage. The question is
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what extent of intervention should be permitted or, conversely, how
compelling a case for environmental protection needs to be made
out to ensure statutory protection to the area in question.
20. We have little doubt that these are factors that any
responsible decision-making authority will bear in mind. After all,
this is not the first time that this Government is going about the
business of considering an application or deciding what area should
be a sanctuary, a tiger conservation area, or a national park.
Maharashtra has its own complex of national parks, sanctuaries, and
tiger conservation areas and the Government can surely be no
stranger to the requirements or to the satisfaction necessary for such
a declaration. But the point is that the satisfaction must be of the
Government. We do not see, despite saying all of this, how a Writ
Court can possibly compel the Government to decide this in a
particular manner. We do not see how we can send a message to the
Government that we are satisfied with the material and therefore the
Government must now decide depending upon our satisfaction.
That would literally put the administrative cart before the judicial
horse. We are doing nothing of the kind.
21. Ms Thakur for the State Government tells us that a decision
on a representation by the Petitioners (which we will clarify in the
next few paragraphs) can be taken by the State Wetland Authority,
and it will take the form of a recommendation. We make it clear that
what we are concerned with is not whether this area is or is not a
wetland. The authority is not concerned with this. The prayer of the
Petition is much wider. We will take it at its broadest, that the area is
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deserving of protection as a sanctuary. That necessarily involves an
initial satisfaction in the Revenue and Forest Department (not the
Wetland Authority). There will then follow a further decision
making process but the initial satisfaction on the material by the
Petitioners must be at least at the level of the Joint Secretary of
Revenue and Forests if not higher in that Department.
22. As we said, we have only outlined some of the concerns of the
Petitioners. We have not decided them. We should not be
misunderstood to have expressed an opinion on the merits. We
accept that there are contesting claims over this very area. It is for
the Authority to decide how these are to be balanced and if so to
what extent. To put this plainly, the claim of the Petitioners that this
has a sufficient abundance of birds and other wildlife warranting its
protection is seriously contested by CIDCO and by Navi
MumbaiIIA Pvt Ltd.
23. We permit the Petitioners time of three weeks to submit an
appropriately framed representation to the Joint Secretary of
Revenue and Forests Department. That representation must be
accompanied by a compilation of all relevant material. Copies must
be sent to Navi Mumbai SEZ, IIA, and CIDCO through their
present Advocates. Responses by CIDCO and Navi Mumbai SEZ,
IIA will be filed within three weeks thereafter. The Joint Secretary
(or any authority above), will consider those representations on
merits. We do require that a brief hearing be afforded to both sides.
We take the liberty of permitting concise written submissions for the
convenience of the decision-making authority. We do not permit any
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adjournments before the Authority except those that the authority
itself thinks necessary.
24. But we do make it clear that since the matter comes to the
authority from us it is not an acceptable answer to say that no
decision can be taken. Either the representation must be accepted in
whole or in part or it must be rejected. Inaction will not suffice. That
is precisely what has brought the Petitioners here and it is to that
limited extent that we believe our intervention is indeed called for.
After all, as Mr Rebello puts it, what is being canvassed here is
something far wider than the immediate commercial concerns of
this or that entity or agency. There are larger overriding principles
well established in our jurisprudence and recent developments in
climate change, the principles of intergenerational equity and other
established principles in environmental law, do not permit such
representations to simply go unanswered. This is a submission we
are inclined to accept. We believe it is our own jurisprudence that
points in this direction. These decisions must be taken one way or
the other.
25. We are not to be misunderstood as having directed any
authority to decide these representations in a particular way. All
contentions are expressly kept open. The decision is to be taken on
merits without any regard at all to any previous orders that may have
been passed in this Writ Petition. Obviously, the decision will have
to be taken within a reasonable time. Having regard to the amount of
material, we believe that the decision must be taken no longer than
within eight weeks from the date of the last hearing before the
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authority in question. All contentions of both sides in regard to the
decision that follows are expressly kept open for appropriate
proceedings.
26. The Public Interest Litigation is disposed of in these terms. In
the facts and circumstances of the case, there will be no order as to
costs.
(Kamal Khata, J) (G. S. Patel, J)
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