Bombay High Court
Vanashakti, A Public Trust vs Union Of India And 4 Ors on 2 May, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-OS:7320-DB
F-J-Vanashakti - PIL 20 of 2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 20 OF 2013
Vanashakti, a Public Trust ... Petitioner
Versus
1. Union of India through the
Secretary, Ministry of Environment and
Forests
2. Maharashtra Coastal Zone Management
Authority
3. State of Maharashtra
(i) through its Principal Secretary,
Department of Environment
(ii) through its Principal Secretary
(Forests), Department of Revenue
4. Municipal Corporation of Greater Mumbai
5. The Chief Forest Conservator,
Thane Circle, Department of Revenue & ...Respondents
Forest.
Ms. Gayatri Singh, Senior Advocate, a/w Mr. Zaman Ali and
Mr. Yogesh H. Pandey for Petitioner.
Mr A. Y. Sakhare, Senior Advocate, a/w Mr. Yashodeep
Deshmukh, Mr. Rohan Mirpury, Ms. Anuja Tirmali, i/b Sunil
Sonawane for Respondent-MCGM.
Dr. Birendra Saraf, A. G., a/w Smt. P. H. Kantharia, GP & Smt.
Jyoti Chavan, Addl. G.P. for Respondent-State.
Mr. Parag Vyas, a/w Mr. Vinit Jain, for Respondent No.1-UoI.
Ms. Shaba Khan, i/b Mr. Mihir R. Govilkar, for Respondent
Digitally
signed by
No. 2-MPCB.
ASHWINI
ASHWINI JANARDAN
JANARDAN VALLAKATI
VALLAKATI Date:
2025.05.02
17:11:28
+0530
Ms. Jaya Bagwe, for Respondent No. 3-MCZMA.
Page 1 of 87
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Ashwini Vallakati
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CORAM: G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
Reserved on : JULY 29, 2024
Pronounced on : MAY 2, 2025
JUDGEMENT:
(Per, Somasekhar Sundaresan J.)
Introduction:
1. This Petition essentially lays a challenge to the de-notification of
119.91 Hectares of land located at Survey No. 275 (Part) located at
Village Kanjur (Kanjurmarg) in the coast of the Thane Creek
("Subject Land"), which was classified as a "protected forest". The
de-notification was effected for creation of a landfill 1 i.e. a site for
dumping garbage over land admeasuring 141.77 Hectares.
2. The Subject Land was salt pan land, and over time has
witnessed growth of mangroves. The salt pan land had entailed the
use of tidal water whose inflow and outflow was controlled by the use
of sluice gates for the making of salt. The lease of such land for
production of salt expired around 2003. Under the regulations
governing "Coastal Regulation Zone" ("CRZ") notified under the
Environment Protection Act, 1986, it had been classified as "CRZ-1"
area.
3. The Petitioner, Vanashakti, is a Public Trust that pursues
In this judgement, we variously use "landfill" and "garbage dump" to describe
the activity in the Subject Land.
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environmental and other social causes in the field of conservation of
forests, wetlands and wild life in and around Mumbai. The Ministry
of Environment and Forests ("MOEF"), Union of India is
Respondent No.1. The Maharashtra Coastal Zone Management
Authority ("MCZMA"), which is responsible for protection of coasts
and coastal ecology for areas that fall within CRZ in the State of
Maharashtra is Respondent No.2. The Principal Secretary,
Department of Environment; and the Principal Secretary (Forests),
Department of Revenue - both departments of the State of
Maharashtra - are Respondent Nos. 3(i) and 3(ii), respectively. The
Municipal Corporation of Greater Mumbai ("MCGM") which is the
promoter of the project for dumping of garbage is Respondent No.4.
The Chief Forest Conservator, Thane Forest Circle, which is the
authority responsible for protection of forest areas within Thane
Forest Circle, within whose territorial jurisdiction the Subject Land
earmarked for the garbage dump falls, is Respondent No.5.
4. It is at the request of MCGM, that the MOEF granted
Environment Clearance dated March 17, 2009 (" Environment
Clearance") for setting up the garbage dump on the Subject Land.
This Petition essentially challenges the grant of the Environment
Clearance for the Subject Land, which is a "protected forest". The
grant of the Environment Clearance is assailed as a product of non-
application of mind and without considering material conclusive
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evidence about it being notified as a "protected forest" by a
notification dated July 7, 2008 (" Forest Notification") under Section
29 of the Indian Forest Act, 1927 ("Forest Act").
5. The Petitioner contends that without compliance with the due
process stipulated under the Forest Conservation Act, 19802 ("FCA"),
the status of "protected forest" has been modified by another
notification issued a year and half later, dated December 29, 2009
("Impugned Notification"), effectively de-notifying the Subject Land
from being a "protected forest". The Petitioner submits that the
original notification of the land including the Subject Land as a
protected forest was effected based on an evidence-based conclusion
that such classification was appropriate. The Impugned Notification,
the Petitioner submits, is without compliance with the stipulated due
process under the FCA.
6. The Impugned Notification, effectively de-notifies an area of
119.91 Hectares of the total of 434 Hectares of forest land covered by
the Forest Notification. The State and MCGM submit that the
Impugned Notification merely corrected an error in the Forest
Notification, using the power statutorily granted in Section 21 of the
General Clauses Act, 1897 ("General Clauses Act"). According to
The Forest Conservation Act, 1980 has been renamed as the Van (Sanrakshan
Evam Samvardhan) Adhiniyam, 1980 with effect from December 1, 2023 by an
amendment under Act No. 15 of 2023. Since a bulk of the material on record uses
the old name, in this judgement, for convenience, the legislation is referred to as
"FCA".
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them, such correction does not require compliance with the process
stipulated in the FCA.
7. The primary basis and justification offered by MGCM and the
State is that the Forest Notification is a product of error. They
contend that by an order dated November 21, 2003 passed by the
Supreme Court in Special Leave Petition (Civil) No. 18717 of 2001
("Enabling SC Order"), which was passed based on a joint affidavit
filed by the Chief Secretary, Government of Maharashtra and the
Commissioner, MCGM, it was confirmed that the Subject Land could
be used as a site for landfill. The Enabling SC Order was passed in
proceedings in which the Supreme Court was dealing with a
challenge to the usage of land at Chincholi Bunder as a garbage
dump and the Subject Land was identified in those proceedings as
the place to which the landfill would be shifted.
8. After the grant of the Environmental Clearance for creation of a
garbage dump inter alia over the Subject Land, the Petitioner had
challenged the decision before the National Environment Appellate
Authority ("NEAA"). The NEAA disposed of the challenge by an
order dated February 12, 2010 ("Appellate Order"), primarily
premised on the Enabling SC Order. In this Petition (Public Interest
Litigation No. 20 of 2013), the attack is on the Environment
Clearance, the Appellate Order and the Impugned Notification.
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9. Therefore, what lies at the heart of these proceedings is:-
a) Whether the Forest Notification was simply erroneous in
notifying the Subject Land as a protected forest; and
b) Whether the Impugned Notification is defensible on the
premise of it being a simple rectification of such error, in
reliance upon Section 21 of the General Clauses Act,
without having to follow the due process stipulated under
the FCA.
Approach to the Adjudication:
10. This Petition came to be listed before us on various dates along
with other connected petitions, which also relate to the garbage
dump inter alia on the Subject Land, and the degradation of
mangroves. These are Public Interest Litigation No. 63 of 2019;
Public Interest Litigation No. 131 of 2012; and Review Petition No. 41
of 2017 in Writ Petition No. 1720 of 2014.
11. This Writ Petition was taken up for consideration, and the
hearing of all other petitions was deferred for adjudication later. It is
made clear that the assessment in this judgement is primarily of the
challenge to the Impugned Notification, leaving all other facets
raised in all the other petitions for adjudication at a subsequent
stage. For ease of reference, the consolidated common compilation of
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notifications, list of dates, written submissions and the other
documents that were referred to and relied on by the parties in these
petitions was considered for adjudicating this Writ Petition.
Contentions and Submissions:
12. We have heard, at length, Ms. Gayatri Singh, Learned Senior
Counsel on behalf of the Petitioner, Dr. Birendra Saraf, Learned
Advocate General for Maharashtra on behalf of the State of
Maharashtra and its agencies, Mr. A.Y. Sakhare, Learned Senior
Counsel on behalf of MCGM, Mr. Parag Vyas, Learned Counsel on
behalf of MOEF & Ms. Jaya Bagwe, Learned Counsel on behalf of
MCZMA.
13. Ms. Singh would submit that the legislation in question that the
Subject Land would need to be compliant with would include the
Forest Act, FCA, Environment (Protection) Act, 1927, Water Act,
1974, Maharashtra (Non-biodegradable) Garbage Control Act, 2006,
EIA Notification of 2006, Municipal Solid Waste Rules, 2000, Solid
Waste Management Rules, 2016 & CRZ Notifications of 1991 and
2011.
14. On October 24, 2005, the Subject Land was handed over to
MCGM.
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15. Under the Forest Conservation Rules, 2003 ( FC Rules), there is
an explicit framework to be followed. The State Government is
required to examine and be satisfied that a certain project requires
prior approval of the Central Government and accordingly a proposal
is required to be sent by the State to the Central Government. The
format in which such proposal is to be made has also been legislated
in the FC Rules in Form A which requires disclosure of crucial
information such as the site inspection report of the Deputy
Conservator of Forests, enumeration of the diameter of class-wise
trees on the site, the vulnerability of erosion, the legal status of the
area etc.
16. Upon receipt of such a proposal from the State, the Central
Government is required to refer the proposal to the Forest Advisory
Committee which is then required to apply its mind to the facts
stipulated in Rule 7 of the FC Rules, after which it would give its
advise with suggestions and restrictions based on which the de-
reservation and a de-notification may be effected. The Central
Government is thereafter required to apply its mind under Rule 8 of
the FC Rules to then accord its decision, factoring in the advice of the
Forest Advisory Committee.
17. According to Ms. Singh, such detailed and finely balanced due
procedure of law stipulated under the FCA has been given a go-by in
the name of correcting a mistake and under the garb of complying
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with the Enabling SC Order. She would contend that the
Environmental Clearance had been granted without processing a
Forest Clearance, and therefore illegal.
18. Dr. Birendra Saraf, Learned Advocate General on behalf of the
State would contend that the land in question is only marginally
covered by mangroves. The mangroves are primarily in two patches
and restricted to 20.76 Hectares, as noticed in the report filed by the
MCZMA. Taking note of such report, in May 2013, a Division Bench
of this Court passed an order directing that no further mangroves
must be destroyed. The Court, according to Dr. Saraf, noticing the
report of the MCZMA directed that MCGM must ensure compliance
with the recommendations of the MCZMA.
19. As a result, a submission on behalf of the State is that apart
from the two patches covered by mangroves, aggregating 20.76
Hectares of land, there was no other area covered by mangroves, and
consequently, nothing in such area constitutes a forest, much less a
"protected forest". Dr. Saraf would also allude to a site visit by the
officials of the MCGM on June 24, 2013 pursuant to which a report
analyzing satellite images from Google Maps for the period between
November 2005 to 2012, also iterated that the mangroves vegetation
was also restricted to two patches. One patch was covered by 11.27
Hectares and the other patch covered 12.09 Hectares. Consequently,
steps to protect these patches were to be in place, the Learned
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Advocate General would submit and emphasize that the two patches
in mangroves are indeed excluded from the dumping ground at
Kanjurmarg.
20. The Learned Advocate General would submit that the power to
amend a notification is explicitly included and inherent in the
authority that issued the notification. As regards the import of
Section 21 of the General Clauses Act, the Learned Advocate General
would press into service a judgment of the Supreme Court in Nal
Layout Resident Association Vs. Banglore Development Authority
and Ors.3 (NAL Layout), which essentially endorses the fact that an
error made by the State in including a part of land that is not meant
to be acquired could be rectified.
21. On a separate note, both Dr. Saraf and Mr. Sakhare highlighted
the fact that the Union of India through the Deputy Salt
Commissioner has filed Writ Petition (L) No.29077 of 2022 assailing
the notification of various salt pan lands held by the Union of India
as protected forests or reserved forests and that such notifications
ought to be struck down. In that Writ Petition, the Union of India, as
the owner of such land, has pleaded the following :-
9. The Petitioner submits that land bearing CTS No
657A (Survey No, 275) is at Kanjur and is owned by the
(2018) 12 SCC 400
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Petitioner. The said land bearing CTS No. 657A (Survey
No. 275) was granted on lease by the Govt. of India vide
lease deeds dated 16/2/1922 to the then salt
manufacturers of Arthur and Jenkins Salt Works and
Shepherd & Shepherd Annex Salt Works. The lease of
Arthur and Jenkins salt works were terminated
prematurely and the ex lessees have filed suit no.
6256/2005 in City Civil Court, Mumbai, wherein an
interim injunction has been passed against this
petitioner which is still in force. Lands in Shepherd &
Shepherd Annex salt works covered by CTS no. 657A
(survey no. 275 pt) of Kanjur are subject matter of suit
no. 54/2018 explained at above. 700 acres in CTS No.
657 A (Survey No. 275) was leased to Bombay Salt and
Chemical Works in 1949 vide a registered lease deed
dated 8.12.1949. The lease in favour of Bombay Salt and
Chemical Works has expired and the Petitioner has
taken possession of the said lands on 07.12.2000. Of the
land that was in possession of Bombay Salt and
Chemical Works, about 350 acres were handed over to
the Respondent No.1 for dumping ground. The rest of the
350 acres is in possession of the Petitioner. Hereto
annexed and marked "Exhibit S", and "Exhibit T" is a
copy of the lease deed dated 16th February, 1922 for
Arthur and Jenkins salt works, and 23 June, 1967
(effective from 8/12/1949) for Bombay Salt & Chemical
Works.
22. We believe that our attention need not be detained by the
aforesaid Writ Petition. It is apparent that one arm of the Union of
India is dealing with its duties in respect of forests while another arm
of the Union of India i.e. the Deputy Salt Commissioner is pursuing
its own perceived rights on the lands in question. Be that as it may,
the aforesaid writ petition is not before us and we do not intend to
comment on the same.
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Reply Affidavit of the State:
23. The submissions of the State and MCGM were in line with the
affidavit in reply dated October 10, 2023 (" Reply Affidavit") filed on
behalf of Respondent No. 3(ii) (the Principal Secretary (Forest),
Department of Revenue, State of Maharashtra) and Respondent No.
5 (the Chief Forest Conservator, Thane Circle). The MCGM largely
adopted the submissions made by the Learned Advocate General on
behalf of the State.
24. The stance of the State as seen in the Reply Affidavit and in the
submissions of the Learned Advocate General, may be summarised
thus:-
a) In view of the Enabling SC Order, the Subject Land at
Kanjurmarg, which is partially covered by mangroves, had
already been identified as the site for setting up a garbage
dump instead of the site at Chincholi Bunder, and was
approved by the Supreme Court for usage as a garbage
dump;
b) Initially, an area of 425.893 Hectares had been notified as
"protected forest" under the Forest Notification issued
under Section 29 of the Forest Act. This is the precise area
forming part of "protected forest" although the Petition
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refers to the area as 434.01 Hectares;
c) Since it was found that 119.91 Hectares was required for the
Municipal Solid Waste Dumping Ground, the Divisional
Commissioner issued the correction notification i.e. the
Impugned Notification, which showed the balance area of
305.983 Hectares as a "reserved forest" under Section 4 of
the Forest Act, after removing the 119.91 Hectares of land
from it;
d) Out of such land, 294.813 Hectares have been finally
notified as a "reserved forest" under Section 20 of the
Forest Act by a notification dated February 4, 2021. The
designated 305.893 Hectares of "reserved forest" is indeed
in the possession of the Forest Department and such area
includes the 294.813 Hectares that has been finally notified
as a "reserved forest";
e) Meanwhile, by an order dated October 6, 2005 ("HC
Mangrove Direction") passed by a Division Bench of this
Court in Writ Petition (L.) No. 3246 of 2004 (" Writ 3246"),
this Court had directed a complete freeze on the destruction
and cutting of any mangroves in the State of Maharashtra.
All mangroves were to be identified by satellite imaging and
"ground-truthing" and were to be notified as "protected
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forest" in accordance with law;
f) The Forest Notification had been issued based on the HC
Mangrove Direction, notifying all land covered by
mangroves as "protected forest" including the Subject
Land, despite the Enabling SC Order. This was a mistake
since the Forest Notification covered the land already
earmarked for transfer to MCGM pursuant to the Enabling
SC Order. Such mistake is capable of being rectified
pursuant to Section 21 of the General Clauses Act;
g) The rectification was not unilaterally done. This Court had
been approached, and by an order dated April 29, 2009
("April 2009 Order") passed by this Court in Notice of
Motion No. 397 of 2007 in a Public Interest Litigation No.
87 of 2006 ("PIL 87"), the State was told that if the State
had committed a mistake in notifying the land, it was for
the State to use its ample powers to undo the mistake
without involving this Court; and
h) Consequently, the State did not take the law into its own
hands. It was merely exercising its inherent power to rectify
a mistake in the notification made by it, and the source of
such power is Section 21 of the General Clauses Act.
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Stance of Union of India:
25. Mr. Parag Vyas, Learned Counsel appearing for Union of India
pointed out that once a notification of some land is made as being a
forest, it should necessarily have to be treated as a forest. Mr. Vyas
would submit that by an order dated November 13, 2000, the
Supreme Court in Writ Petition No.337 of 1995 has ruled that until
further orders, no de-reservation of forests shall be effected without
approval of the Supreme Court. Likewise, Mr. Vyas would submit
that in the same Writ Petition, in an order dated September 8, 2016,
after considering the provisions of Section 2 of the FCA, the Supreme
Court has ruled as follows:
"Out of the kinds of land expressed in section 3, it is
apparent, that if the land notified under Section 4 was not
forest land but waste land, or some other kind of land over
which Government has proprietary rights, on the deletion
of the area notified under Section 4, such land would stand
restored to its original nomenclature as forest land and/or
alternatively such type of land, such as waste land, over
which the Government has propriety rights. In the afore-
mentioned latter category of land, no clearance
contemplated under Section 2 of the Forest (Conservation)
Act, 1980, can be insisted on. It is only with reference to
reserved forest land, or land which is notified for being
declared as reserved forest, or forest land, that a
clearance is contemplated under Section 2 of the Forest
(Conservation) Act, 1980."
[Emphasis Supplied]
26. The submission appears to be that Section 2 of the FCA would
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apply only to the land that is notified as a "reserved forest" or land
that is actually covered by the forest. Mr. Vyas has submitted that
appropriate directions may be issued by this Court and the Union of
India would abide by the same.
Impugned Notification:
27. Since the challenge in the Petition is primarily to the Impugned
Notification, the contents of the same must be noticed and are
extracted below:-
BY THE DIVISIONAL COMMISSIONER, KONKAN DIVISION
NOTIFICATION
No. RB/Desk-II/Forest/CR-2211/B-1.- In exercise of the
powers conferred by Government of Maharashtra, Revenue and
Forest Department No. FLD/1081/F-6, dated 21st October 1981
and read with Government, Revenue and Forest Department
Resolution No. FLD. 1081/F-6, dated 16th February 1982 and
Government, Revenue and Forest Department Memorandum No.
S-30/2005/C, No. 62/F-1, dated 5th July 2008. The Divisional
Commissioner, Konkan Division, Navi Mumbai under section 29
of the Indian Forest Act, 1927 was declared lands mentioned in
the notification, dated 7th July 2008 as "Protected Forest".
Schedule
Notified properties as on 7th July 2008
District : Mumbai Suburban, Taluka : Kurla
Sr. Village C.T.S. S. Area Notified Boundaries (**)
No. No. No. Area North East South West
(5) (6) (7) (8)
(1) (2) (3) (3A) (4) (4A)
1 Kanjur 657A 275 Hectare/R Ha. V.B. of C.T.S. Creek Eastern
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434.01 425.893 Bhandup No. 1351 and New Express
and V.B. C.S.T. Highway
of No. 1351 V.B. of
Bhandup Hariyali
Hon. High Court's Order in the notice of Motion
No. 397/2007, dated 29th April and Hon. Supreme Court's Order
dated 21st November 2003 in special leave Petition No.
18717/2001. The said notification requires rectification in of
village Kanjur C.T.S. No. 657/A, Survey No. 275 of 305.983 Ha.
notified instead of 425.893 Ha. as "Protected Forest" for the vital
project of Municipal Corporation. The said Notification required
rectifications which have been sanctioned and authorised vide
Government, Revenue and Forest Department Letter No. S-
30/2005/Case No. 62/Part-5/F-1, dated 6th November 2009 and
21st November 2009 whereby the land 119.91 hectares required
for the purpose of garbage dumping is deleted and accordingly I,
Divisional Commissioner, Konkan Division by this Corrigendum
hereby notify the Government lands under mangroves detailed
hereinbelow as "Protected Forest":-
To be substituted notified as above in 7th July 2008 Notification
Sr. Village C.T.S. S. Area Notified Boundaries (**)
No. No. No. Area North East South West
(5) (6) (7) (8)
(1) (2) (3) (3A) (4) (4A)
1 Kanjur 657A 275 Hectare/R Ha. V.B. of C.T.S. Creek Eastern
434.01 305.983 Bhandup No. 1351 and New Express
and V.B. C.S.T. Highway
of No. 1351 V.B. of
Bhandup Hariyali
(**) These are boundaries of the entire S. No. (Col. No. 3) not
necessarily of the notified area.
S.S. SANDHU,
Navi Mumbai, Divisional Commissioner,
dated 29th December 2009 Konkan Division
[Emphasis Supplied]
28. Effectively, the Impugned Notification changes the area covered
by the Forest Notification, and it does so one and half years after the
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Forest Notification.
29. It is also noteworthy that the original notification i.e. the Forest
Notification was one made under special laws governing forests i.e.
under Section 29 of the Forest Act. A de-notification would be
required to be issued under the special provisions of the FCA, a
special legislation. The Impugned Notification has the effect of de-
notifying a portion of the protected forest. However, it is issued as a
corrigendum on the premise that the Forest Notification needed to
be rectified. The act of de-notification would have been a fresh
notification, which has its own attendant obligations to be met - in
Section 2(1) of the FCA, which mandates the positive need for the
previous approval of the Central Government to effect a de-
notification.
30. The core controversy is whether the Impugned Notification is
effectively a fresh notification, the issuance of which requires
compliance with Section 2(1) of the FCA. Put differently, the
question is whether it is effectively an exercise of power under
Section 2(1) of the FCA without compliance with the attendant
requirements, simply by casting it in the mould of an amendment,
variation or recision that is empowered under Section 21 of the
General Clauses Act - in short, whether the Impugned Notification is
a circumvention of Section 2(1) of the FCA.
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Matrix of Legislation:
31. The Forest Notification was made pursuant to Section 29 of the
Forest Act. The Impugned Notification was made by the State in
reliance upon Section 21 of the General Clauses Act. After the
Impugned Notification, the balance land was treated as a "reserved
forest" under Section 27 of the Forest Act. It would be important to
examine each of these provisions of legislation. For convenience,
Section 21 of the General Clauses Act is examined first, since that lies
at the heart of the reply by the State and the MCGM.
Section 21 of the General Clauses Act:
32. The core issue in the controversy is whether Section 21 of the
General Clauses Act, read with the flow of orders of various courts,
would obviate the need for following the process stipulated for de-
notification of a forest under the FCA. Therefore, at the threshold,
for convenience, before analysing the contents of the Enabling SC
Order, the HC Mangrove Direction (in Writ 3246, which was
eventually clubbed with another Writ Petition and was consolidated
into PIL 87) and other related orders, it would be useful to extract
Section 21 of the General Clauses Act:-
Section 21. Power to issue, to include power to add to, amend,
vary or rescind notifications, orders, rules or bye-law.
Where, by any Central Act or Regulations a power to issue
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notifications, orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and
subject to the like sanction and conditions (if any), to add to,
amend, vary or rescind any notifications, orders, rules or bye-
laws so issued.
[Emphasis Supplied]
33. It will be seen from a plain reading of the foregoing that the
power contained in Section 21 stipulates that the power to issue
notifications would include within its ambit, the power to amend,
vary or rescind such notification. It is also clear that the exercise of
such power to amend, vary or rescind the notification is exercisable
in the like manner and subject to the like sanction and conditions, as
would have been applicable for the original exercise of the power to
issue notifications. Therefore, for making such amendment,
variation or rescission, there would have to be compliance with
conditions applicable in the law that applied in the first place for
making the original notification.
34. The course of action adopted by the State to issue the Impugned
Notification is what the Petitioners are aggrieved by, leading to this
Writ Petition. The core contention of the Petitioners is that any
method of subsequent correction would necessarily have to comply
with Section 2 of the FCA, it is common ground that no such process
has been followed. On the other hand, the contention of the State is
that the process under Section 2 of the FCA need not be carried out
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since Section 21 of the General Clauses Act permits them to rectify
their own mistakes in exercise of the power contained in that
provision.
Section 2 of the FCA:
35. Having noticed Section 21 of the General Clauses Act, it would
be useful to note the provisions of Section 2 of the FCA, since that is
the provision that the Petitioner alleges has not been complied with.
Since Section 21 of the General Clauses Act is presented as a
competing source of power to back the Impugned Notification, it
would be necessary to extract the provision and examine it below: -
Section 2. Restriction on the dereservation of forests or
use of forest land for non-forest purpose.
(1) Notwithstanding anything contained in any other law
for the time being in force in a State, no State
Government or other authority shall make, except with
the prior approval of the Central Government, any order
directing--
(i) that any reserved forest (within the meaning of the
expression "reserved forest" in any law for the time
being in force in that State) or any portion thereof, shall
cease to be reserved;
(ii) that any forest land or any portion thereof may be
used for any non-forest purpose.
(iii) that any forest land or any portion thereof may be
assigned by way of lease or otherwise to any private
person or to any authority, corporation, agency or any
other organization subject to such terms and conditions,
as the Central Government may, by order, specify;
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(iv) that any forest land or any portion thereof may be
cleared of trees which have grown naturally in that land
or portion, for the purpose of using it for reafforestation.
Explanation.--For the purposes of this section "non-
forest purpose" means the breaking up or clearing of
any forest land or portion thereof for--
(a) the cultivation of tea, coffee, spices, rubber, palms,
oil-bearing plants, horticultural crops or medicinal
plants;
(b) any purpose other than reafforestation, but does not
include any work relating to or ancillary to
conservation, development and management of forests
and wildlife, such as--
(i) silvicultural operations including regeneration
operations;
(ii) establishment of check-posts and infrastructure for
the front line forest staff;
(iii) establishment and maintenance of fire lines;
(iv) wireless communications;
(v) construction of fencing, boundary marks or pillars,
bridges and culverts, check dams, waterholes, trenches
and pipelines;
(vi) establishment of zoo and safaris referred to in the
Wild Life (Protection) Act, 1972 (53 of 1972), owned by
the Government or any authority, in forest areas other
than protected areas;
(vii) eco-tourism facilities included in the Forest
Working Plan or Wildlife Management Plan or Tiger
Conservation Plan or Working Scheme of that area; and
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(viii) any other like purposes, which the Central
Government may, by order, specify.
(2) The Central Government may, by order, specify the
terms and conditions subject to which any survey, such
as, reconnaissance, prospecting, investigation or
exploration including seismic survey, shall not be
treated as non-forest purpose.
[Emphasis Supplied]
36. A plain reading of the foregoing would show that the aforesaid
provision imposes restrictions on de-reservation of forests, and on
use of forest land for non-forest purposes. Towards this end, the
primary provision in Section 2(1) of the FCA imposes a prohibition
on the State Government and any other authority from making any
order directing that a reserved forest stands de-reserved. Likewise,
the prohibition is also on issuing any order permitting the use of any
forest land for any non-forest purpose. The prohibition also covers
any order of assignment whether by way of lease or otherwise of any
forest land to any authority, corporation or agency. The clearance of
any trees from forest land too cannot be ordered by the State
Government. For the issuance of any order to enable any such
activity, the prior approval of the Central Government is mandatory.
37. Section 2(1) of the FCA is also notably a non-obstante provision
and overrides anything contained in any other applicable law. The
exceptions made to the stringent prohibition on usage for non-forest
use are also ring-fenced by reference to purposes ancillary to forest
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conservation, development and management.
38. Therefore, on the face of it, this provision requires prior
approval of the Central Government for the State to issue any order.
The Petitioner also pleads that in the field of environmental law,
judgements of the Supreme Court now clearly declare that the term
"prior approval" indeed means an approval that is truly taken before
the action and post-facto approvals cannot remedy actions that are
not compliant with requirements of needing prior approval.
39. Therefore, Petitioner would contend, the Impugned Notification
admittedly having been issued without the prior approval of the
Central Government, is clearly in violation of Section 2(1) of the FCA.
Therefore, they would contend, the State has evidently diverted the
Subject Land without approval of the Central Government, despite
the Forest Notification being a prior notification of the Subject Land
as part of a bigger area of land, as forest land under Section 29 of the
Forest Act.
40. They would submit that it was incumbent on the State to have
complied with Section 2(1) of the FCA as a necessary condition
precedent to issuance of the Impugned Notification of the Subject
Land and handing over of the same to the MCGM. The original
Forest Notification was issued only pursuant to actual factual
verification, satellite imaging and "ground-truthing". Therefore, they
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would contend, the Subject Land has been factually ascertained to be
forest land and it could not have been lightly de-notified and
diverted in the teeth of Section 2(1) of the FCA.
Section 27 and Section 29 of the Forest Act:
41. The power to declare a forest as being no longer a reserved
forest is contained in Section 27 of the Forest Act. So also, it is under
Section 29 of the Forest Act, which is the provision governing
"protected forest", that the Forest Notification was issued in the first
place. It would therefore be necessary to extract and examine both
these Sections of the Forest Act.
42. The provisions of Section 27 of the Forest Act are extracted
below:
Section 27. Power to declare forest no longer reserved.
(1) The State Government may, by notification in the
Official Gazette, direct that, from a date fixed by such
notification, any forest or any portion thereof reserved
under this Act shall cease to be a reserved forest.
(2) From the date so fixed, such forest or portion shall
cease to be reserved; but the rights (if any) which have
been extinguished therein shall not revive in
consequence of such cessation.
[Emphasis Supplied]
43. The provisions of Section 29 of the Forest Act are extracted
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below:
Section 29. Protected forests.
(1) The State Government may, by notification in the
Official Gazette, declare the provisions of this Chapter
applicable to any forest-land or waste-land which is not
included in a reserved forest, but which is the property
of Government, or over which the Government has
proprietary rights, or to the whole or any part of the
forests produce of which the Government is entitled.
(2) The forest-land and waste-lands comprised in any
such notification shall be called a protected forests.
(3) No such notification shall be made unless the nature
and extent of the rights of Government and of private
persons in or over the forest-land or waste-land
comprised therein have been inquired into and recorded
at a survey or settlement, or in such other manner as the
State Government thinks sufficient. Every such record
shall be presumed to be correct until the contrary is
proved:
Provided that, if, in the case of any forest-land or waste-
land, the State Government thinks that such inquiry and
record are necessary, but that they will occupy such
length of time as in the mean time to endanger the rights
of Government, the State Government may, pending such
inquiry and record, declare such land to be a protected
forest, but so as not to abridge or affect any existing
rights of individuals or communities.
[Emphasis Supplied]
44. It will be seen from a plain reading of the foregoing provisions
that under Section 27 of the Forest Act, the State Government has
the powers to issue a notification directing that from a specified date,
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any land that is a reserved forest shall cease to be a reserved forest.
All rights that stand extinguished by such de-reservation of a
reserved forest would be incapable of being revived. Therefore, this
is a serious power to de-notify any forest land as such, and the de-
notification would bring with it clear and certain finality.
45. On the other hand, a plain reading of Section 29 of the Forest
Act would show that any forest land or waste land that is not
declared to be a reserved forest could be notified as being a protected
forest. The ingredients of Section 29 are that the land should be
forest land or waste land. Once the State Government issues a
notification declaring any such forest land or waste land as protected
forest, the provisions of Chapter IV of the Forest Act, titled "Of
Protected Forests" would become applicable to such land. Prior to
making such a notification of any forest land or waste land as a
protected forest, the State is required to conduct a survey of the
ground reality. The contents of such survey enjoy a statutory
presumption of truth in relation to rights asserted by any private
person on such land. A survey of the forest land or waste land in
question is a vital ingredient - even where the State believes that an
urgent protection is warranted, it has the power to protect such land
and conduct the survey immediately thereafter.
Analysis and Findings:
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46. Against this statutory framework, it would be vital to examine
the actions of the State that form subject matter of this Writ Petition.
The sequence of events critical to these proceedings is noteworthy.
Sequence of Notifications:
47. The first in the sequence of relevant events was the Enabling SC
Order passed way back on November 21, 2003, which took on record
the joint statement by the State and MCGM that the Subject Land
could be the alternate site for the garbage dump instead of the
garbage dump at Chincholi Bunder. The next relevant event is the
HC Mangrove Direction, which followed over two years later on
October 6, 2005 in Writ 3246 (which became consolidated into PIL
87). This decision specifically directed a freeze on cutting and
destruction of any mangroves. The HC Mangrove Direction
specifically mandated actual factual verification and survey of the
truthful factual position on the ground. The Forest Notification
treating the Subject Land as protected forest followed nearly three
years later on July 7, 2008. This was a notification under Section 29
of the Forest Act. The Forest Notification could have been done only
after compliance with the due process stipulated in Section 29 and
even more consciously, the examination required under the HC
Mangrove Direction. This is the notification that specifically treated
the Subject Land as a protected forest. The Impugned Notification,
which sought to remove the Subject Land from the scope of Forest
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Notification was issued one and half years later on December 29,
2009. Each of these steps were clearly well spaced out in time and
would evidently be taken only after due attention to the facts and the
law.
48. When seen in this context, with the benefit of the objectivity
obtaining by this distance of time, the factual basis on which the
Forest Notification was grounded cannot be lightly wished away -
evidently, it was vital to examine ground realities before issuing it,
and that too because not only had there been a prior litigation on
landfill in Chincholi Bunder that led to the Enabling SC Order but
also because of the litigation that led to the HC Mangrove Direction,
which imposed specific conditions for the protection of mangroves.
The Forest Notification was issued fully conscious of the obligations
arising out of the HC Mangrove Direction and the perceived coverage
of the Enabling SC Order, and that too after the factual survey
required under Section 29 of the Forest Act. The implications of
making the Forest Notification were well known to the State when it
was issued.
Import of Legislative Provisions:
49. It would rationally follow that if the State had cause to change
its mind about the Forest Notification, the statutory provision under
which it was empowered to do so, is Section 27 of the Forest Act.
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The exercise of power under Section 27 of the Forest Act entails
compliance with Section 2(1) of the FCA. The power to de-notify a
forest under Section 27 of the Forest Act has conclusive and
permanent repercussions, which is why the statute stipulates the
process under Section 2(1) of the FCA with a non-obstante provision.
Evidently, the requirement of the prior approval of the Central
Government has not been complied with. Indeed, it is being argued
that it was not necessary to be complied with.
50. It is in this backdrop that the argument that such a power exists
under Section 21 of the General Clauses Act is being made by the
State and the MCGM. Section 21 of the General Clauses Act leaves
no manner of doubt that the power to issue notifications under any
law made by Parliament would include a power to amend, vary or
rescind the notification. The principle is simple and trite - the
power to do something through a notification would include the
power to undo it through a notification. However, Section 21 has a
foundational requirement - the exercise of power to undo something
that has been done must be done in the same "manner" and is
subject to the same "sanction" and the same "conditions (if any)".
The use of the phrases "like manner" and "like sanction and
conditions" would indicate that any manner of conduct, due process
and conditions that are applicable when a notification seeks to do
something, must also be applied to a notification by which what was
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done earlier is sought to be undone.
51. Therefore, the ground-truthing and survey that necessarily had
to be complied with for purposes of issuing the Forest Notification
under Section 29 of the Forest Act and pursuant to the HC Mangrove
Direction, would have to be applied for exercise of the power under
Section 21 of the General Clauses Act. In other words, survey and
examination of the ground reality would need to show that it was
necessary to alter the original position obtaining from the Forest
Notification. It is noteworthy that the Impugned Notification was
issued in 2009, six years after the Enabling SC Order and one and
half years after the Forest Notification. When issuing it, the
Enabling SC Order was well known and so was the HC Mangrove
Direction. This is why the State even approached this Court in the
course of PIL 87 and by an order dated April 29, 2009 this Court
asked the State to be advised on its own and did not enter into
endorsing this view.
52. This boils the matter down to the fact that the Subject Land has
all the characteristics of forest land, which is why in compliance with
Section 29 of the Forest Act and with the HC Mangrove Direction,
the Subject Land came to be included into the Forest Notification -
based on the reality that the Subject Land was forest land. Clearly, to
de-notify such land as a protected forest, the provisions of Section
2(1) of the FCA would be attracted, and thereby the mandatory
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statutory requirement of obtaining the prior approval of the Central
Government became applicable. It is common ground that such
approval has admittedly not been obtained.
53. This brings us to the contention on behalf of the State by Dr.
Saraf and Mr. Sakhare that Section 21 of the General Clauses Act
would adequately empower the State to issue the Impugned
Notification regardless of the specific provisions contained in FCA, a
special legislation on the subject of forest conservation. In our
opinion, the proposition that Section 21 of the General Clauses Act
could be resorted to as a means of not having to comply with Section
2(1) of the FCA, a special law, is an extreme proposition that is
sweeping in its reach and holds far-reaching ramifications. Section
21 of the General Clauses Act would then be a license not to comply
with a stipulation in a special legislation that mandates a due process
for amending, varying or rescinding a notification.
54. In many regulatory frameworks, for instance, it is necessary to
conduct pre-legislative public consultation (telecommunication
regulations and insolvency regulations are just two examples) before
notifying a regulation or amending it. If Section 21 of the General
Clauses Act were to be read in the manner canvassed by the State,
such requirement to effect pre-legislative public consultation could
simply be ignored. Indeed, in each case, one must have regard to the
requirement in the law that would be circumvented. In the case at
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hand, the requirement for making an amendment, variation or
rescission of a notification treating land as forest land in a manner
that a portion of such land ceases to be forest land, requires
compliance with Section 2(1) of the FCA. The interpretation given to
Section 21 of the General Clauses Act circumvents Section 2(1) of the
FCA.
55. Moreover, this is precisely why Section 21 of the General
Clauses Act has its own inherent check and balance to protect against
such usage of its provisions. The provision itself contains the check
that the exercise of the power to amend, vary or rescind a
notification is subjected to the very same manner, subject to the very
same conditions and the very same sanction as applicable to the
issuance of the original notification. Therefore, Section 21 of the
General Clauses Act ensures that it does not present a blanket
process of changing or rescinding every notification without due
process applicable to the original notification.
56. De-reservation of forest land as a forest has its own stipulated
procedures mandated in Section 2(1) of the FCA, with particular
regard to the facts of this case and how PIL 87 came to be finally
disposed of. We have elaborated on this later. Therefore, invoking
Section 21 of the General Clauses Act to somehow set it up as a
means to make Section 2(1) of the FCA inapplicable would render the
latter provision otiose. The Impugned Notification purports to be a
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corrigendum and the only basis for the corrigendum is the Enabling
SC Order. The Enabling SC Order was well known to the State when
the Forest Notification was made. The HC Mangrove Direction was
also well known to the State when the Forest Notification was made.
With full knowledge of the requirements for making the Forest
Notification, the Subject Land was notified as a protected forest.
57. At this stage it would be appropriate to also deal with NAL
Layout, which is relied upon by Dr. Saraf to justify the Impugned
Notification as being legitimate in view of Section 21 of the General
Clauses Act. In NAL Layout the Supreme Court relied upon its
earlier decision in State of MP vs. Vishnu Prasad Sharma ( Vishnu
Sharma)4 where it was held that a notification issued by the
government under Section 9 of the Land Acquistion Act, 1894 (" Land
Acquisition Act") could be cancelled if the notification under Section
9 of that Act had not yet been issued, in reliance upon Section 21 of
the General Clauses Act.
58. In fact, in NAL Layout, the Supreme Court has held that the
powers under Section 21 of the General Clauses Act cannot be
negated unless the statute itself (under which the original
notification was issued) expressly or implicitly indicates so. In fact,
citing another decision in Larsen & Toubro Ltd. Vs. State of Gujarat 5
AIR 1966 SC 1593
(1998) 4 SCC 387
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(Larsen), the Supreme Court has held that if much has been done
such as further steps under Section 4 and Section 6 of the Land
Acquisition Act, then one could not utilise Section 21 of the General
Clauses Act.
59. In these circumstances, taking note of the fact that in NAL
Layout, the State had already exercised its power to withdraw from
the acquisition under Section 48 of the Land Acquisition Act, the
Supreme Court upheld the power to rescind the notification under
Section 9 of that Act. It was noticed that there was nothing in the
Land Acquisition Act that indicates that the after exercising the
power under Section 48 to withdraw from an acquisition, the
government could not resort to Section 21 of the General Clauses Act.
60. Both Vishnu Sharma and Larsen too are based on the same
principle. Therefore, in our opinion, there is no parallel at all
for NAL Layout to be relevant to bolster the case of the State and
MCGM. On the contrary, the ratio in NAL Layout would clearly
show that one should have regard to the legislation under which the
first notification is issued to examine if there is any explicit or
implied hurdle. In the matter at hand, clearly there is a hurdle in the
form of the specific means by which one would need to de-reserve a
forest in term s of Section 2(1) of the FCA. Therefore, in our opinion,
the ratio in these judgements, in fact, supports the view we have
taken.
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Intervening Court Orders and Judgements:
61. Against the backdrop of the aforesaid legislative analysis, it
would be necessary to examine the Enabling SC Order, the Appellate
Order and the various court orders in litigation relating to
mangroves, which also noticed the garbage dump on the Subject
Land and their implications for our decision in this Writ Petition.
62. The Appellate Order dated February 12, 2010 passed by the
National Environmental Appellate Authority also inter alia analyzed
the factual matrix on the premise that the Enabling SC Order read
with the assurance given by the State and the MCGM would result in
the position that there would be no damage to the mangroves and
consequently refused to interfere with the Environment Clearance.
It is the same Environment Clearance, which has merged into the
Appellate Order that is impugned in this Petition.
63. A key element of this case is a wide number of orders passed in
various matters both by this Court and the Supreme Court, which
can have a bearing on the actions of the State that fall for
consideration in these proceedings. It would be important to
actually examine the contents of such orders which are being cited by
the Respondents to justify their actions, which are assailed by the
Petitioner on the ground of conflict with the statutory provisions in
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law and also the judgments and orders themselves.
64. It would be instructive to extract from the Enabling SC Order 6
(K.G. Balakrishnan and B.N. Srikrishna, JJ.). Since the Enabling SC
Order lies at the heart of the matter, it is reproduced substantially:
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 of Bombay dated
11.7.2003 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 18 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
Kanjur, Eastern Suburbs admeasuring about 283
hectares in 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 colour dotted line. The said land
admeasuring 141.77 hectares in equal proportion is
required to be shared by the Govt. of Maharashtra
This is the order passed in SLP (Civil) No. 18717 of 2001 on November 21,
2003.
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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 141.77 hectares bearing
Survey No.275 (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.273 (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 M.C.G.M. will have 141.77
hectares of land as a landfill sites."
The Govt. of Maharashtra to hand over the 50% of the
land admeasuring 141.77 hectares bearing Survey
No.275 (pt) within a period of 3 months from today is the
Municipal Corporation of Greater Mumbai and on
completion of all the formalities regarding transfer are
over the said land be used as dumping 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 of.
[Emphasis Supplied]
65. From a plain reading of the foregoing, it would be apparent that
the matter that was being dealt with by the Supreme Court related to
challenge to the dumping ground at Chincholi Bunder in which waste
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materials including biomedical waste was said to be dumped. The
Pollution Control Board, State of Maharashtra had alleged that
continuance of the dumping ground would cause serious problem to
the local citizens and that all parties should explore an alternate
location for the dumping ground. MCGM and the State of
Maharashtra filed a joint affidavit dated August 26, 2002 stating that
the Subject Land is vacant and free from encumbrances and can be
used for purposes of landfill. It was this joint affidavit representing
to the Supreme Court that the land could be used for landfill (a
representation jointly made by the Municipal Commissioner, MCGM
and the Chief Secretary, Government of Maharashtra), and that out
of the 283 Hectares available at Kanjurmarg, an area of 141.77
Hectares is free from CRZ-1 coverage, that the Supreme Court agreed
that such land is to be shared in equal proportion by the Union of
India and the State of Maharashtra. Therefore, 50% of such land
admeasuring 141.77 Hectares was intended to be handed over by the
State of Maharashtra to MCGM free of cost for use as a landfill site.
The remaining 50% which was to be shared by the Union of India
was also confirmed to be unavailable for development purposes since
it would be in the vicinity of the proposed landfill site, thereby
enabling MCGM to have possession of 141.77 Hectares land as
landfill site.
66. Based on such representation in an affidavit filed jointly by the
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MCGM and the State, the Supreme Court directed the State to hand
over its share of the land to MCGM within three months from the
date of the order. However, the Supreme Court made it clear that the
use of the land as the dumping ground " shall be subject to strict
observance of law relating [to] pollution and [the] present dumping
ground which is continuing at Chincholi Bandar area shall be
discontinued".
67. Consequently, it would be seen that the Enabling SC Order is
primarily based on the position held out by Chief Executive Officers
of MCGM and Government of Maharashtra stating that it was
feasible to use the Subject Land as a dumping ground, and
confirming that it was not CRZ-1 land. There was no notification of
the land as a "protected forest" at that time, and the Supreme Court
had no occasion to consider the implications of the Forest Act or the
FCA. The Supreme Court simply took on record the assurance given
by the MCGM and the State and also added that the shifting of the
dumping ground from Chincholi Bander to Kanjurmarg would be
subject to strict observance of law relating to pollution.
68. The HC Mangrove Direction dated October 6, 2005 issued in
Writ 3246 / PIL 87 is also vital. A Division Bench of this Court
(Dalveer Bhandari and D.Y. Chandrachud JJ. )7 directed a complete
Writ Petition (L.) No. 3246 of 2004, Writ Petition No. 1470 of 2003 and Writ
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freeze on any further destruction of mangroves in the entire State of
Maharashtra. The HC Mangrove Direction is the basis on which the
Forest Notification dated July 7, 2008 identifying the Subject Land
as a "protected forest" came to be issued. Therefore, the contents of
the HC Mangrove Direction must necessarily be noted and relevant
portions are extracted below:-
. These writ petitions have been filed seeking urgent
measures for the protection and preservation of the fast
depleting mangrove forests which line the coast of State of
Maharashtra. The petitioners in Writ Petition (Lodging) No.
3246 of 2005, state that 720 Kms. Long coastline of
Maharashtra is indented by numerous rivers, estuaries,
creeks, small bays, headlands, rocky shores, sand and muddy
beaches. All such geomorphologic structures act as a habitat
for different kinds of eco-systems which are essential for the
protection of the coastline from the encroaching sea. The
petitioners state that there are about 18 major estuaries
along the coastline of Maharashtra harboring some of the
biologically richest patches of mangroves along the entire
western coast of India. All 52 creeks along the coast of the
State are covered by mangroves to a certain extent.
2. The main concern of the petitioners is the destruction of
mangroves in various ways. The petitioners have relied upon
a number of articles contributed by well-known authors to
depict that after the Tsunami, the scientific verdict has been
unanimous - damage is greatest where beaches have been
built on, dunes flattened, where ground water was pumped
out and coral reefs killed. There seems to be unanimity
amongst all counsel appearing for different parties that
mangroves play an important role in eco-systems and
mangroves have to be preserved at any cost.
3. The petitioners in the petition have incorporated that they
have received a number of complaints from the citizens
about the systematic destruction of mangroves in various
localities by land grabbers and encroachers. The petitioners
have identified five areas where indiscriminate destruction of
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mangroves is taking place. Those areas are:
(i) Seven Bungalows, Andheri;
(ii) Kanjurmarg;
(iii) Link Road, Goregaon,
(iv) Gorai; and
(v) Malvani Village, Malad.
4. The petitioners have prayed that pending further hearing
of these petitions, it is absolutely imperative that the
respondents be restrained from destructing or denuding
mangroves by dumping, obstructing water supply, cutting of
mangroves or by any other method.
***
8. The State Government is directed to designate a Senior
Officer not below the rank of concerned District Magistrate
and Collector and Deputy Commissioner of
Police/Superintendent of Police to oversee the
implementation of the following directions. They would
entertain complaints from citizens in respect of mangrove
destruction. The name, address and contact information of
such officers shall be advertised prominently in one English
newspaper and two Marathi newspapers, apart from the
official websites of the Maharashtra Government and the
Forest Department.
(i) That there shall be a total freeze on the destruction and
cutting of mangroves in the entire State of Maharashtra. We
take note of the fact that in T.N. Godavarman Thirumulkpad
vs. Union of India and Ors. etc. [Writ Petition (C )No. 202 of
1995 and 171 of 1996], an affidavit was filed on behalf of the
State of Maharashtra by the Chief Conservator of Forests
(Administration), in which on the basis of a report of an
Expert Committee, it was stated that in the Mumbai Urban
Area alone, 1,534 hectares of land were, inter alia, classified
as mangrove areas.
(ii) All construction and rubble/garbage dumping on the
mangrove areas shall be stopped forthwith;
(iii) Regardless of ownership of the land, all construction
taking place within 50 metres on all sides of all mangroves
shall be forthwith stopped ;
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(iv) to (vii) *****
(viii) The areas shown as mangrove area in the satellite study
report "Mapping of mangroves in the Maharashtra State
using Satellite Remote Sensing" dated August, 2005,
prepared by the Maharashtra Remote Sensing Application
Centre (MRSAC) for the MCZMA which was submitted to this
Court on 29th August, 2005, form part of Phase I of the
mapping by MRSAC. The MRSAC will, in Phase-II, carry out
mangroves study using high resolution for detailed mapping
of mangroves with a view to identify more precisely
mangrove areas in Mumbai and Navi Mumbai. After
receiving the said satellite data, transfer of mangrove details
on city survey/village maps (cadastral map) will be carried
out within a period of 6 months from today;
(ix) After the aforesaid process in clause (viii) is completed,
the areas so identified which are government owned shall be
declared and notified as "protected forests" in accordance
with law after carrying out ground survey etc. The areas so
identified that are privately owned shall be declared and
notified as "forests" in accordance with law, after carrying
out ground survey etc. The said declaration/notification will
be completed within a period of 8 weeks of the completion of
Phase-II mapping;
(x) The mangrove areas that are on government owned lands
will be handed over to the Forest Department within a period
of 12 weeks from the declaration of the same as "protected
forests";
(xi) From the list of "mangrove areas" so identified,
Government owned lands will automatically be
declared/notified as "protected forests". Likewise, privately
owned lands from the list of mangrove areas so identified, the
same will be declared/notified as "forests";
(xii) The Secretary, Revenue Department, shall from the said
date of taking over possession of the Government owned land
by the Forest Department, update all the revenue records to
ensure that the said Government lands are shown as
"protected forests" in the said revenue records within a
period of 12 weeks from the same being declared as
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"protected forests". In the case of lands that are private
owned, the secretary, Revenue Department, shall update all
the revenue records to ensure that the said private lands are
shown as "forests" in the said revenue records within a
period of 12 weeks of completion of the steps in clause (x)
above;
(xiii) In respect of Government lands, the Forest Department
and other authorities of the State of Maharashtra shall take
the following necessary steps of protection, conservation and
regeneration of the areas that would be declared/notified as
"protected forests: in terms of clause (x) above;
Removal of all obstructions that are impeding the growth of
mangroves as also the impediments which restrict the flow of
sea water in the mangrove areas;
Wherever mangrove growth is found to be sparse and
denuded (i.e. with forest density less than 0.4 which means
canopy less than 40%) within these identified areas, taking
necessary steps for rejuvenation;
On identification of the areas as forest, the Municipal
Corporation of Greater Mumbai would remove garbage and
debris within these areas within a period of three months as
per the instructions of the Forest Department. These areas
shall be rejuvenated with mangroves;
The Forest Department is directed to take necessary action
against the offenders in accordance with law for damaging or
destroying mangroves.
11. The Principal Secretaries of (i) Environment, (ii) Revenue
and (iii) Forest Departments, Government of Maharashtra,
shall be overall in charge of ensuring total compliance of this
order.
13. The Chief Secretary of the State of Maharashtra is
directed to send a circular to all concerned
Collectors/Deputy Commissioners of Police/Superintendents
of Police and all other concerned officials to ensure
meticulous compliance of this order.
[Emphasis Supplied]
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69. The HC Mangrove Direction leaves no manner of doubt as to
what was to be done by the State. Specifically, the office of the Chief
Secretary was made responsible for ensuring meticulous execution of
the directions. The directions required the State to conduct high
resolution satellite mapping and specifically identify the mangroves.
The HC Mangrove Direction imposed a prohibition on dumping
garbage, and directed the removal of the garbage dumped on
mangroves. The State was required to ensure that flow of sea water
was not impeded, to hold the construction in a 50-metre distance
and remove any construction already made. The entire area to the
extent it was State-owned was to be notified as a protected forest.
70. This was the set of directions that the State had to comply with
when it issued the Forest Notification. The Division Bench was made
aware that in Kanjurmarg where the Subject Land is situated,
garbage was being dumped. Should the State have believed that the
Enabling SC Order already gave it immunity from the issuance of
such directions, it would be rational and logical that it would have
approached the Supreme Court and informed that this Court was
issuing directions contrary to what the Supreme Court had already
permitted in the Enabling SC Order. On the contrary, this Court was
informed about the situation, which is seen from an order dated
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April 24, 2006 in WP 3246 ("April 2006 Order").
71. The inexorable position that emerges is that the Enabling SC
Order only took on record the assurance of the Chief Secretary of the
State of Maharashtra and the Municipal Commissioner, MCGM that
it was feasible to create a garbage dump on the Subject Land. At that
juncture, there was no consideration of the location having
mangrove growth on it. Notifying the Subject Land as protected
forest land was not even in conception at that stage. Taking note of
the dumping of garbage on various mangrove land including the
Subject Land, the Division Bench issued the detailed order in the HC
Mangrove Direction - specifically taking note of garbage dumping,
construction at the site, and requiring notification as a protected
forest.
72. The use of the Subject Land as a dumping ground came up for
consideration in WP 3246 on April 24, 2006. On this date, it was
brought to this Court's attention that the Subject Land had been
identified for establishment of a dumping ground in Kanjurmarg and
the Court's interference was sought on the premise that it would have
a deleterious impact on the ecological balance and reservation on
mangroves in the area. A Division Bench with one member being the
same as earlier (Kshitij R. Vyas, CJ and D.Y. Chandrachud, JJ. )
passed the April 2006 Order taking note of the Enabling SC Order
and on that basis refrained from issuing the prohibitory order of the
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kind sought by the Petitioners in respect of the Subject Land for use
as a municipal dumping ground. However, further directions were
issued on the subject. Extracts from the April 2006 Order are
therefore relevant, and have been set out below:-
1. We propose by this order to address the issue of the
dumping ground which has been established by the Mumbai
Municipal Corporation on land bearing Survey No.275 (part)
at village Kanjur. Diverse issues have been raised in the
public interest proceedings before this Court relating to the
conservation of mangroves. In so far as Survey No.275 (part)
is concerned, Counsel appearing on behalf of the Petitioner
has submitted that the establishment of the Municipal
dumping ground is per se invalid and should be interfered
with by this Court inasmuch as it is liable to have a
deleterious impact on the ecological balance and on the
preservation of mangroves in the area.
2. For the reasons which we now indicate, we are of the view
that a prohibitory order of the kind that has been sought in
respect of the use of Survey No.275 (part) as a Municipal
dumping ground cannot be granted.
....
5. In the course of the hearing of this petition, we had by our
order dated 4th April 2006 constituted a three member
Expert Committee. One of them, Dr.Sham R. Asolekar is a
Professor at I.I.T. Mumbai while the other Dr.Sanjay
Deshmukh is a Professor of Life Sciences at the University of
Mumbai. The Committee has submitted a report in which it
has been clarified that on a part of the dumping ground on
which activities are being carried on by the Municipal
Corporation there are sparse mangroves present on the site.
The Committee has observed that sparse mangroves have
been seen and on some of the sparse mangroves actual
dumping has been carried out. In the affidavit that has been
filed by the Municipal Corporation, it has been clarified that
the land which was given for the Kanjur landfill site was salt
pan land with bunds having inlet culverts and sluice gates for
controlling tidal water movement in or out of the salt pan
area. In many places, the earthen bunds have been broken
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and sluice gates at the culvert were removed. Therefore, as a
result thereof the tidal water has been flowing in at many
places across the bunds leading to growth of grass and
sparse mangroves in some patches. The Municipal
Corporation has stated that the Corporation and MMRDA
have taken up the work of the cleaning up of the Mithi River
which includes the removal of sludge and/or sediments
accumulated over several years in the river belt. In order to
address the issue relating to the disposal of sludge and/or
sediments from the river belt, a meeting was convened by the
Maharashtra Pollution Control Board on 14th March 2006.
At the meeting, the Pollution Control Board issued directions
to the effect that there would no objection for the Municipal
Corporation using the Kanjur landfill site for dumping the
sludge that has been removed from the river belt subject to
the observance of the safeguards that have been directed to
be observed. A copy of the Minutes of the meeting has been
produced before the Court. Besides, the Municipal
Corporation has drawn the attention of the Court to a letter
addressed by the Ministry of Environment and Forests of the
Government of India on 27th September 1996 to the Chief
Secretary of the State Government by which the approval of
the Union Government was conveyed to the Coastal Zone
Management Plan of the State of Maharashtra in pursuance
of the power conferred by Clause 3(3)(i) of the CRZ
notification dated 19th February 1991. Under Condition xii
all mangroves with an area of at least 1000 sq.mtrs are to be
classified as CRZ-I with a buffer Zone of at least 50 meters.
In paragraph 7 of the affidavit filed by the Municipal
Corporation, the following assurance has been made before
the Court and it would be material for the purposes of these
proceedings to extract therefrom :
"I say that the Sparse mangroves have developed on site
as indicated in the map at Exhibit IV on account of the
ingress of tidal water through the broken bunds and
culverts from which the sluice gates have been removed.
Although these mangroves are young and sparse and not
protected by law the corporation will take due care and
will not dump sludge/sediments on the groups of
mangroves which have stabilized. The Corporation is also
in the process of engaging an expert who will carry out
survey of groups of mangroves which have stabilized and
draw up a plan for their protection and regeneration."
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Shri K. K. Singhvi, Learned Senior Counsel appearing on
behalf of the Municipal Corporation has assured the Court
that steps would be taken by the Municipal Corporation to
ensure that the use of the Kanjur landfill site for dumping
shall be consistent with the aforesaid assurance and would
ensure that the terms on which the Government of India
granted its approval to the CZMP of the State Government on
27th September 1996 followed by a clarificatory letter dated
19th January 2000 would be observed. We record and accept
the assurance made before the Court."
[Emphasis Supplied]
73. It will therefore be seen that the Division Bench dealing with the
very same Writ Petition i.e. WP 3246 in which the HC Mangrove
Direction came be passed, took note of the fact that a three-member
Expert Committee was to submit a report on the subject. It is
apparent that the Committee submitted a report clarifying that on a
part of a dumping ground, there indeed were sparse mangroves
present on site and that some of the actual dumping had been
effected on such sparse mangroves. The MCGM clarified that a land
given for the landfill site was salt pan land with sluice gates to
control the movement of tidal water. Many of the bunds had been
broken and the sluice gates had been removed. As a result, tidal
water had indeed been flowing in and grass as well as mangroves
have regenerated in some patches. The MCGM had stated that the
Mithi river was being cleaned up by removal of sludge at the
sediments accumulated over several years, and it was dealing with
the issue of disposal of such sludge and sediments from the Mithi
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river belt. The Pollution Control Board had issued directions that it
would not have objections to using the landfill site of Kanjurmarg for
dumping such sludge removed from the Mithi river belt, subject to
observance the safeguards directed by it.
74. The MCGM had pointed out to this Court that the MOEF had
approved to use of Subject Land pursuant to its powers relating to
use of CRZ land by a letter dated September 27, 1996, and
consequently, all mangroves with an area of at least 1,000 sq. mtrs.
were to be classified as CRZ-1, with the buffer zone of at least 50
meters. Consequently, while the MCGM claimed that the sparse
mangroves developed on site were young and sparse and were not
protected by law, the MCGM would take due care not to dump sludge
or sediments on such sparse mangroves. The MCGM was also in the
process of engaging an expert to carry out the survey of the
mangroves that are stabilized at the site and also draw a plan for
their protection and regeneration. Learned Senior Counsel appearing
for MCGM had assured the Court that the use of the Subject Land
would be consistent with such assurance which statement was taken
on record by the said Division Bench so as to not interfere in the
manner sought by the petitioners therein.
75. It will therefore be seen that at this stage, a Division Bench of
this Court, drew comfort from the fact that it would only be sludge
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and sediments that was being extracted from the Mithi river belt that
would be dumped on the Subject Land and that no other dumping
would take place on the mangroves and that the MCGM would take
appropriate steps for protection and regeneration of the mangroves.
Taking such factors and assurances on record, the said Division
Bench indeed did not extend the blanket prohibition on the usage of
the Subject Land as the municipal dumping ground, and allowed this
assurance of MCGM to run its course. While this hearing took place
in April 24, 2006, the Forest Notification was issued over two years
later i.e. on July 7, 2008.
76. The purported error in the Forest Notification also came up for
judicial scrutiny a year later, on April 29, 2009. A Division Bench of
this Court (Bilal Nazki and V.K. Tahilramani, JJ. ), when dealing with
PIL 87, dealt with a Notice of Motion taken out by the MCGM stating
that the Forest Notification contained an error and sought a
direction from this Court to rectify such error. The Learned
Advocate General and Mr. Sakhare would submit that the April 2009
Order passed by the Division Bench enabled the issuance of the
Impugned Notification. The contention is that apart from Section 21
of the General Clauses Act, this Court too had enabled the issuance of
the Impugned Notification. Therefore, it would be useful to examine
what this Bench had ruled, and the same is extracted below:-
This case has a long history and is going on in this
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Court for a long time, and then, it has gone even to the
Supreme Court.
2. The crux of the matter is that the Municipal
Corporation of Bombay is finding it difficult to dump the
waste material generated on day-to-day basis in the City
of Mumbai. According to Mr. Singhvi, senior counsel,
6500 Metric Tonnes of waste material is generated in
the city per day. Therefore, it wanted a dumping site,
and after a lot of litigations, the matter went to the
Supreme Court, and the apex Court passed an order in
Special Leave to Appeal (Civil) No. 18717 of 2001 on
21st November, 2003. The Supreme Court held:
"The Government of Maharashtra to hand over the
50% of the land admeasuring 141.77 hectares
months from today at the Municipal Corporation of
Greater Mumbai and on completion of all the
formalities regarding transfer are over the said land
to be used as dumping subject to strict observance of
law relating to pollution and present dumping ground
which is continuing at Chincholi Bunder Area shall
be discontinued."
3. Mr. Singhvi submits that an earlier order was passed
by this Court in this petition, in which certain directions
were given on 6th October, 2005. One of the directions
was that the State shall identify the forest lands and
accordingly notify them. After the Supreme Court's
order, land admeasuring 141.71 hectares in Survey No.
270 was allotted by the Government to the Municipal
Corporation, so that the land could be used as dumping
ground in accordance with the directions of the Supreme
Court. However, in pursuance of a direction of this
Court that the land should be identified for being
declared as "protected forest", this land also was
declared by a Notification to be "land falling under
protected forest" in terms of the Forest Act.
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4. Now, an application has been moved by the Bombay
Municipal Corporation that the Notification issued by
the State notifying this land to be "forest land", which
land has already been transferred to the Corporation in
pursuance of the orders of the High Court, was a
mistake.
5. The State has filed an affidavit, in which they have
stated that inclusion of this piece of land in the
Notification under the Forest Act was a mistake, and,
therefore, the Corporation sought direction of this Court
to the State to correct the mistake.
6. We have gone through the order of the Supreme Court
and the order of this Court very carefully, and we
observe that at no point of time, this Court or the
Supreme Court had asked the State to notify this piece of
land as forest land. The High Court has only directed
the State to identify forest lands, and accordingly notify
them, and we understand that a particular land can be
notified as protected forest land, subject to conditions
laid down in the Forest Act and Rules made thereunder.
Therefore, such a direction could not have been given by
this Court. If the State has committed mistake in
notifying land as forest land, they have ample powers to
undo it, without seeking any permission from this Court.
However, if such a course is taken by the State, and any
person, including the petitioners in this case, have any
grievance, they are at liberty to agitate it.
7. With these observations, this Notice of Motion is
disposed of.
8. We make it clear that we have not gone into the issue
whether a mistake was committed or not.
[Emphasis Supplied]
77. What is clear is that the Division Bench did not delve on the
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issue whether there was a mistake in the Forest Notification. The
Division Bench observed that there was no explicit reference to the
Subject Land in the HC Mangrove Direction. The Division Bench
noted that what was to be notified is land on which there are
mangroves. The Division Bench noted that the Forest Notification
could have been issued only in compliance with the Forest Act and
the rules made under it. The Division Bench held that the State has
enough powers to rectify its purported mistake without involving the
Court in the process or seeking an endorsement. Evidently, the
Court declined making such an endorsement.
78. Therefore, far from recognizing or confirming that there had
been a mistake and that it should be rectified, the Court refrained
from getting into the merits. The Court indicated that the State had
enough powers to take remedial action if it was indeed a mistake,
and indeed it left open the potential for a challenge to any such
measure of remedy of the purported mistake.
79. MCGM had evidently alluded to the Enabling SC Order and to
the HC Mangrove Direction to submit that although the Subject Land
had been handed over to the MCGM by the Government of
Maharashtra for use as a dumping ground, when implementing the
HC Mangrove Direction, the Subject Land also got identified and
declared as a "protected forest". It is the observation of the said
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Division Bench, in particular in Paragraphs 6 and 8 that are
noteworthy. The Division Bench was very clear that the HC
Mangrove Direction had not asked the State to notify the Subject
Land as Forest Land. The HC Mangrove Direction had directed the
State to identify the forest lands and notify them in accordance with
the provisions of the Forest Act and the Rules made thereunder. The
Division Bench ruled that consequently, it was not the High Court
that directed that the Subject Land should be notified as a protected
forest, for the High Court to issue a direction to rectify the mistake.
The Division Bench made it clear that if the State had indeed
committed a mistake to issue the Notification (such Notification only
being possible in compliance with applicable law), it was for the State
to undo the mistake without seeking any permission from the Court
(again in compliance with the law abiding the undoing of any
mistake).
80. What is also noteworthy is that the claim of having made a
mistake was raised by the MCGM and the State before the Court in
2009. The Forest Notification was made in 2008 after carrying out
all the activity that was directed to be carried out in the HC
Mangrove Direction in 2005. Therefore, yet again, it is clear that the
State verily found that the Subject Land was mangrove area and it
complied with the Forest Act and the HC Mangrove Direction. The
argument for de-notification was therefore not based on the factual
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position of the Subject Land not being protected forest as notified
but by the fact that the State wanted the Court to clarify that in view
of the Enabling SC Order, the notification of the Subject Land was a
mistake.
81. In other words, the claim was that the Supreme Court had
authorised the dumping of garbage on mangroves when it came to
the Subject Land. Surprisingly, the view based on the Enabling SC
Order was not sought to be clarified by moving an application in the
Supreme Court.
Expert Committee Report:
82. It is also seen from the material on record that a report dated
April 27, 2013 filed by two expert members and the members of
MCZMA was an outcome of the visit by the said persons to the site to
examine whether the Environment Clearance had been issued with
application of mind and to ascertain the factual position on the
ground. This investigating team was dealing with a complaint by the
office bearers of the Petitioner alleging violation of CRZ norms in the
landfill site and violations of the terms of the Environment Clearance
too, which clearance was itself being challenged. It was alleged that
there was massive reclamation of water bodies at the site outside of
the wall constructed by MCGM, which were resulting in destruction
of mangroves. This would then be in violation of the assurance given
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to the Division Bench of this Court and recorded in the April 2006
Order.
83. The following extracts from the said report are noteworthy :
3. CRZ STATUS OF THE SITE
As per the CZMP of Mumbai approved by MoEF vide letter
dated 19.1.2000 part of the Kanjur dumping site falls in CRZ
(see the attached map). Total land area proposed for the
project is 141.77 ha. Out of this 52.5 ha falls in CRZ III with
150m CRZ on three sides and 5om on the fourth side. There
are two large mangrove patches in the site measuring 20.7
ha. Though this is not shown on the CZMP they are clearly
visible in the Google map (Fig.2) attached and the MGCM
has shown it clearly in their site plan attached here as Fig. 3.
Balance area of land available for the project is 65.96 ha.
The Kanjur dumping site of MCGM has Environment
clearance dated 17th March, 2009 issued by the Ministry of
Environment and Forests, Govt. of India. The Ministry
accorded the EC for the MSW processing and sanitary
landfill project in the non CRZ area as per the provisions of
EIA Notification, 2006 and CRZ. Notification, 1991 on an
area of 65.96 ha only. For the implementation of MSW
processing and sanitary landfill the project proponent is also
allowed by the EC ancillary facilities such as road,
conveyance system, etc in the CRZ. Details are there in the
MoEF order attached.
4. OBSERVATIONS OF THE COMMITTEE
During the site visit the CRZ status of the site, status of
wetlands, status of mangroves and the activities undertaken
by MCGM for implementation of MSW processing and
disposal facilities were examined in the context of the
provisions of the CRZ Notification and the conditions of
stipulated in the environmental clearance granted by the
MoEF.
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The Committee found that the MSW processing and disposal
facilities are coming up in the area permitted. The MoEF has
accorded EC for processing 4000 TPD waste by Windrow
composting. As per the EC's condition, project proponent
should explore the other options for processing of waste for
obtaining energy and a detailed proposal should be
submitted to MoEF. The Committee was informed that new
technology has been adopted by MCGM which involves (1)
3000 TPD waste processing by bio-reactor (anaerobic
digestion of MSW for energy recovery for which pilot plant
project studies has already been carried out and now the site
is almost capped) and 1000 TPD waste processing by
windrow composting (aerobic composting). MCGM officials
informed the Committee that CPCB has given consent for
adoption of the new technology. Accordingly, the work is
going on at site. Further, the proposal for CRZ clearance for
new technology has been submitted to MoEF. The proposal
of new technology for MSW processing and disposal has not
been received by MCZMA from MoEF or from MCGM.
A tall compound wall of more than 12 feet in height has been
constructed all around the project site almost along the HTL
CZMP demarcated in the CZMP (see FIG:1 and 2). The
compound wall around the site has a length around 5.2 km. It
was informed by the project authorities that the compound
wall around the project site is mandatory as per the MSW
rule of 2000. The Committee noted that it has been
constructed around 86 ha area, instead of 65, ha allotted to
them for actual MSW development.
The Committee found that all around the Kanjur project site
there is thick and extensive mangrove vegetation. The project
area and the surrounding mangrove forest are separated by a
tall compound wall. Within the compound wall also there are
two mangrove patches. The mangrove patch on the left side
of the Fig.3 has a water body of around one hectare area.
The Committee found that this mangrove patch is highly
degraded and the mangroves are either dying or cut (see
Figs. 4 to 8). Pipe pillars installed by Forest Dept were found
around the boundaries of both patches of mangroves. The
MCGM informed that the poles were installed by the Forest
department for protection of mangroves and it is reported
that an employee of the Forest Dept. visits the mangrove area
every day for monitoring. However, the Committee noted that
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the boundary of the mangrove patch demarcated, with pipe
pillars do not match with the actual extend of the mangroves.
The flushing of tidal waters to this patch is blocked by the
wall construction and insufficient culverts. There are only
three culverts with just 1.2m diameter here for tidal flushing.
This is a major cause for the degradation of the mangroves.
The situation is different in the second site of the mangroves.
Here they are flourishing due to proper influx of tidal waters
through the 15 properly placed culverts. There is proper
flushing of the tidal waters and the wetland and mangrove
system is lively with tidal and avifauna. Birds were found
wherever the wetland and mangroves patches were in good
condition at the site.
The Committee then observed that all along the compound
wall there is a good tarred road of about 10m width as it is
permitted in the CRZ. However, the entire road length is now
being widened by reclaiming the rest of the CRZ and
mangrove buffer zone area. During the inspection, the
dumpers carrying the soil were found at site. In this process
the sides of the wetlands and mangroves are also getting
filled up. The project authorities could not explain the
purpose of this reclamation. The Committee did not find any
necessity for further widening of the road for the functioning
of the project.
5. CONCLUSIONS AND RECOMMENDATIONS
Based on the site visit, discussions with the concerned and
perusal of relevant documents/ information the Committee
came to the following conclusions:
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
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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 cater the mangrove site 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.
c. MCGM has proposed in their plan allied activities such as
administrative buildings, security cabins, toilets etc. The
Committee found that construction work of administrative
building up to the plinth level is completed in the CRZ area.
The MCGM has not obtained CRZ clearance for these
activities.
On the basis of the above observations and conclusions the
Committee makes the following recommendations:
i. Dumping/filling of wetland/mangroves patches inside the
compound wall of project site should be stopped immediately.
ii. Culverts should be widened and also their number
increased adequately to ensure five passage of tidal water
into mangrove area.
iii. MCGM should have regular maintenance of all the
culverts to ensure that tidal wains reaches the mangroves
patches. Destruction of mangroves should be stopped. The
mangrove area should be protected, replanted with the
species prevalent in the locality and their survival ensured.
iv. Debris already dumped should be removed from the water
bodies and the mangrove fringes. The CRZ area, except for
the portion required for the present 10 meter road, the
reclamation done should be removed.
v. The original mangrove area should be resurveyed and re-
established. The forest poles should be along the actual
original boundary line.
vi. The corner plot (at the side of the entrance) is CRZ and
the plinth developed for the administrative block should be
dismantled.
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vii. Forest Department should be directed to ensure proper
monitoring of the mangrove area.
viii. MCGM should get CRZ clearance for the new
technology.
ix. MCGM should take CRZ clearance for allied activities
such as administrative building, security cabins, toilets etc.
x. MCGM should strictly adhere to all the conditions of
Environment Clearance granted by MoEF.
[Emphasis Supplied]
84. It is apparent that the report of the investigating team of the
MCZMA had been obtained by the Petitioner in exercise of the Right
to Information Act, 2005. It is also apparent that by an order dated
May 10, 2013 ("May 2013 Order"), a Division Bench (D.Y.
Chandrachud and A.Y. Sayed, JJ.) took note of the findings of fact.
There is an allusion once again to the Enabling SC Order and inter
alia the following was stated in the May 2013 Order:-
4. On 17 March 2009, the Union Ministry of Environment
and Forests (MOEF), accorded environmental clearance
for the development of a sanitary landfill and waste
composting unit at Kanjurmarg, Mumbai. The permission
which was granted by the MOEF stipulated that while the
total area of land proposed for the project was 141.77
hectares, 52.5 hectares falls under Coastal Regulation
Zone (CRZ) III and an area admeasuring 20.76 hectares
was affected by mangroves. The environmental clearance
posits that the balance area available for the project is
65.96 hectares. The permission which was granted by the
MOEF was hence for the execution of the project on area
"only of 65.96 hectares" in accordance with the
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provisions of the Environmental Impact Assessment
Notification of 2006 and the Coastal Zone Regulation
Notification of 1991. Clause 5 of the permission which
incorporated other conditions stipulates that the
composting plant / landfill facility shall be located outside
the Coastal Regulation Zone area while other allied
facilities such as roads and conveying systems can be
located on the Coastal Regulation Zone area. The MOEF
specifically directed that it shall be ensured that no
mangroves are destroyed during construction and
operation of the project. The gas generated from the
landfill facility is to be collected and disposed as per
rules and similarly, the Leachate from the facility has to
be collected and treated to meet the prescribed standards
before disposal. Paragraph 6(v) of the approval
stipulated that in the event of a change in project profile
or a change in the implementation agency, a fresh
clearance shall be obtained from the MOEF. The
environmental clearance granted by the MOEF takes note
of the fact that the project involves the construction of an
MSW processing facility (windrow composting for
processing 4000 TPD), construction of sanitary landfill
including landfill gas collection system, leachate
collection and treatment.
5. The legality of the permission granted by the MOEF on
17 March 2009 was upheld by the National Environment
Appellate Authority (NEAA) by an order dated 12
February 2010.
6. In November 2010, the Wetlands (Conservation and
Management) Rules 2010 were notified. Protected
wetlands under Rule 3(ii) include wetlands in areas that
are ecologically sensitive and important, such as,
national parks, marine parks, sanctuaries, reserved
forests, wildlife habitants, mangroves, corals, coral reefs,
areas of outstanding natural beauty or historical or
heritage areas and the areas rich in genetic diversity.
Under Rule 4(1)(iv) activities which are prohibited in
respect of wetlands include solid waste dumping.
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However, existing practices, if any, before the
commencement of the Rules have to be phased out within
a period not exceeding six months from the date of
commencement of the Rules. Similarly, reclamation of
wetlands has been prohibited.
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 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 :-
(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
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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;
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
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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.
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."
12. The order of the Supreme Court dated 21 November
2003 mandates strict observance of the law relating to
pollution. Two statutory authorities - 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
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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 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
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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]
85. It was specifically noticed that under subordinate law governing
wetlands, an explicit prohibition on dumping of solid waste was
introduced. Pre-existing activities had to be phased out within six
months.
86. Based on the aforesaid May 2013 Order, a further inspection
was conducted of the landfill site by a visit on June 24, 2013 along
with officials of MCGM, MCZMA, and the Maharashtra Pollution
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Control Board. The observations made by this team are extracted
below:-
1. ***
2. ***
3. A time series Google maps from Nov. 2005 to Dec.
2012 (Maps 3-6) indicates that the salt pans having
sparse mangrove vegetation in certain areas and little
thick vegetation on north- east and south-west comers
which have increased in density up to 2009. Thereafter,
the mangrove vegetation has been restricted to 12.09 ha
and 11.27 ha as protected mangrove vegetation in south-
west and north-east corner of the site respectively.
4. It was observed that the MSW processing and disposal
facilities are coming up in the permitted area. The
MOEF has accorded EC for processing 4000 TPD waste
by Windrow composting. As per the EC's condition,
project proponent should explore the other options for
processing of waste for obtaining energy and a detailed
proposal should be submitted to MOEF. It was informed
that new technology has been adopted by MCGM which
involves (1) 3000 TPD waste processing by bio-reactor
(anaerobic digestion of MSW for energy recovery for
which pilot plant project studies has already been
carried out and now the site is almost capped) and 1000
TPD waste processing by windrow composting (aerobic
composting). MCGM officials informed that CPCB has
given consent for adoption of the new technology.
Accordingly, the work was in progress at site. Further,
the proposal for CRZ clearance for new technology has
been submitted to MOEF. The proposal of new
technology for MSW processing and disposal has not
been received by MCZMA from MOEF or from MCGM.
5. It was also noticed during the visit that about 12 feet
high boundary wall has been constructed all around
over 141.77 ha which is located us CKZ-III for which no
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permission was obtained from the Ministry. This is in
contravention to the specific condition no. ii.
6. ***
7. ***
8. It was also noticed that project site is surrounded by
extensive thick mangrove vegetation on northern,
southern and eastern sides (Photos 24 & 25). It is also
evident from the Google maps provided with this report.
9. Two mangroves protected forests were located within
141.77 ha. The mangrove forest of 11.27 ha on the
north-eastern side was found with luxuriant growth
(Photos 9, 10 & 11) whereas the mangrove forest of
12.09 ha on southern and western side was found
degraded due to reclamation (Photos 14, 15, 16 & 19).
10. to 12. ***
Conclusion and Recommendation:
Based on the site visits and discussion held with the
officers, the conclusions are as below:
a. MCGM has proposed in their plan allied activities
such as administrative buildings, security cabins, toilets
etc. The construction of building on south-west corner
was observed at plinth level at reclaimed area which
was used as wash area for vehicles as intimated by
project proponent during the visit.
b. Reclamation activity was found more than the
prescribed limits of 65 ha as visually observed and
assessed.
c. Unscientific construction of culverts has changed the
influx of tidal water within the boundary which has
added to destruction of mangroves in certain pockets.
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d. It is also evident from the photographs and Google
maps enclosed with this report that mangrove vegetation
on the south-west corner has been reduced due to
change of influx of tidal water and reclamation.
e. The construction of landfill site was in progress for
which rampant reclamation was carried out although
landfill site is being developed as per the EIA.
[Emphasis Supplied]
87. Based on findings of the inspection referred to above, the Court
passed an order dated August 7, 2013 (" August 2013 Order"),
directing maintenance of status quo at the site. The following
extracts are noteworthy :
8 Following the report, a notice to show cause was
issued to the Municipal Corporation by MOEF on 25
July 2013. The notice calls upon the Corporation to
show cause why action should not be taken under
Section 5 of the Environment (Protection) Act, 1986 for
violations of the environmental clearance. Pending a
decision on the show cause notice, the Municipal
Corporation has been directed to maintain the status
quo ante in respect of any construction / development at
the site.
9 In the affidavit, which has been filed by the Municipal
Corporation, it has been stated that on 18 March 2013,
an application has been submitted to the MOEF for
amendment of the Environmental Clearance at the
Kanjur landfill site for adopting Bio-reactor technology.
However, from the following averments in para 15(d), it
appears that the construction of a Bio-reactor Landfill
cell on seven hectares is still in progress.
"d) At Kanjur Bioreactor Landfill tiny cell (BLFT)
constructed and put in operational from 05.03.2012 to
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30.03.2013 wherein MCGM accommodated about
2,87,000 Metric Tons of MSW for scientific processing.
The Construction of Bioreactor Landfill Cell 1 on about
7 hectares of land is in progress."
Moreover, in the affidavit, it has been stated as follows :
" The allied activities as well as security cabins, toilets,
administrative buildings and wash area for the vehicles
are permitted outside 65.96 hectares of land as per
Clause 5(ii) of the EC issued by MOEF dated 17th
March 2009."
The Municipal Corporation contends that it is permitted
to do so by the MOEF, though this is prima facie
contrary to the findings in the report submitted to the
Court by the MOEF.
10 At this stage, learned Senior Counsel appearing on
behalf of the Municipal Corporation submitted that the
Corporation would submit a reply to the notice to show
cause that has been issued by the MOEF and that the
Corporation shall comply with the interim direction of
status quo so long as the direction continues to hold the
field without prejudice to the right of the Corporation to
adopt suitable proceedings in accordance with law.
11 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 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
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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.
12 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.
[Emphasis Supplied]
88. Eventually, the MOEF directed the MCGM to demolish the
compound wall erected within the CRZ area and granted liberty to
MCGM to replace the same with a barbed wire fencing with
vegetative cover. The MCGM challenged the same in Writ Petition
No.1720 of 2014 which came to be disposed of on June 10, 2016. The
crux of the conclusion in the said judgment castigating the MCGM, is
extracted below:-
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,
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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
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 the municipal tax payers,
we refrain from the imposition of any costs upon the
MCGM.
[Emphasis Supplied]
89. MCGM filed a special leave petition in the Supreme Court but
on August 9, 2016, MCGM sought liberty to withdraw the petition,
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with liberty to approach the High Court through a Review Petition.
90. Eventually, PIL 87, which dealt with the subject matter of
mangroves, and the degradation of the mangroves in the State of
Maharashtra8 in which the HC Mangrove Direction had been passed,
was disposed of by judgment dated September 17, 2018 (" PIL
Judgement"). The important findings in the PIL judgmentare
extracted below:-
83. The summary of some of the important conclusions
read thus:
(i) A land regardless of its ownership on which there
are mangroves, is a forest within the meaning of the
said Act of 1980 and therefore, the provisions of
Section 2 of the said Act of 1980 and the law laid
down by the Apex Court in the case of T.N.
Godavarman will squarely apply to such land;
(ii) A mangroves area on a Government land is
liable to be declared as a protected forest or a
reserved forest, as the case may be, within the
meaning of the said Act of 1927;
(iii) All mangroves lands irrespective of its area will
fall in CRZ-I as per both the CRZ notifications of
1991 and 2011;
(iv) In 1991 CRZ notification, it is provided that all
mangrove areas will fall in CRZ-I. By virtue of the
order dated 27th September 1996, in case of
mangrove areas of 1000 square meters or more, 50
meter buffer zone abutting it was also included in
It was Original Writ Petition (Lodg) No. 3246 of 2004 along with Writ Petition
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CRZ-I. By order dated 9th January 2000, it was
provided that 50 meter buffer zone will not be
required, provided a road abutting the mangroves
was constructed prior to February 1991. Under the
2011 notification, all mangroves lands fall in CRZ-I
and in case the area of such land is 1000 square
meters or more, even a buffer zone of 50 meters
along the said area shall be a part of CRZ-I. But, the
buffer zone of 50 meters which is required to be kept
free of constructions in respect of the mangroves
area of less than 1000 square meters will not be a
part of CRZ-I.;
(v) if there is any violation of the CRZ notifications
regarding mangroves area, it will attract penal
provision under Section 15 of the said Act of 1986
which is attracted in case of the failure to comply
with the provisions of orders or directions issued
under the said Act of 1986. The conditions imposed
in the the letter dated 27th September 1996 as
amended will have to be construed as an order or
direction under the said Act of 1986 as CZMP is
required to be approved by the Central government
in view of the clause 3(i) in the CRZ notification of
1991 which is an order or direction under the said
Act of 1986. Hence, if there is any violation of the
condition in the letter dated 27th September 1996 in
respect of the 50 meter buffer zone, it will attract
penal provision of Section 15 of the said Act of 1986.
(vi) The destruction of mangroves offends the
fundamental rights of the citizens under Article 21 of
the Constitution of India.
(vii) In view of the provisions of Articles 21, 47, 48A
and 51A(g) of the Constitution of India, it is a
mandatory duty of the State and its agencies and
instrumentalities to protect and preserve mangroves;
(viii) In view of applicability of public trust doctrine,
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the State is duty bound to protect and preserve
mangroves. The mangroves cannot be permitted to
be destructed by the State for private, commercial or
any other use unless the Court finds it necessary for
the public good or public interest;
(ix) The Precautionary Principle makes it mandatory
for the State and its agencies and instrumentality to
anticipate and attack causes and consequences of
degradation of mangroves.
****
85. For the reasons recorded above, we dispose of the
PIL by passing the following order:--
ORDER
(A) The following directions issued in the interim
order dated 6th October 2005 shall continue to
operate as final directions in following terms;
(I) That there shall be a total freeze on the
destruction and cutting of mangroves in the
entire State of Maharashtra;
(II) Dumping of rubble/garbage/solid waste on
the mangrove areas shall be stopped forthwith;
(III) Regardless of ownership of the land having
mangroves and the area of the land, all
constructions taking place within 50 metres on
all sides of all mangroves areas shall be
forthwith stopped. The area of 50 meters shall be
kept free of construction except construction of a
compound wall/fencing for its protection.;
(IV) No development permission whatsoever
shall be issued by any authority in the State of
Maharashtra in respect of any area under
mangroves. All authorities including the
Planning Authorities shall note that all
mangroves lands irrespective of its area will fall
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in CRZ-I as per both the CRZ notifications of
1991 and 2011. In case of all mangrove areas of
1000 sq. meter or more, a buffer zone of 50
meters along the mangroves will also be a part
of CRZ-I area. Though buffer zone of 50 meters
in case of mangroves area of less than 1000
meters will not be a part of CRZ-I, it will be
subject to above restrictions specified in clause
III above;
(V) The State of Maharashtra is directed to file
in this Court and furnish to the petitioner copies
of the maps referred to in paragraph 10 of the
affidavit dated 16th August, 2005, filed by Mr.
Gajanand Varade, Director, Environment
Department, State of Maharashtra (Page 346 on
the record), within four weeks from today. The
soft or hard copies of the maps be supplied to the
Petitioner within the same period;
(B) The following direction issued in terms of clause
8(viii) of the order dated 6 th October 2005 has been
substantially complied with:
"The areas shown as mangrove area in the
satellite study report "Mapping of mangroves
in the Maharashtra State using Satellite
Remote Sensing" dated August, 2005,
prepared by the Maharashtra Remote Sensing
Application Centre (MRSAC) for the MCZMA
which was submitted to this Court on 29th
August, 2005, form part of Phase I of the
mapping by MRSAC. The MRSAC will, in
Phase-II, carry out mangroves study using
high resolution for detailed mapping of
mangroves with a view to identify more
precisely mangrove areas in Mumbai and Navi
Mumbai. After receiving the said satellite data,
transfer of mangrove details on city
survey/village maps (cadastral map) will be
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carried out within a period of 6 months from
today";
(C) The directions in sub-clauses(ix) to (xiii) of
clause 8 of the order dated 6th October 2005 shall
continue to operate as final directions in respect of
mangrove areas only on the government lands and
the lands held by Planning Authorities like CIDCO,
MMRDA etc. In respect of the lands admeasuring
2823.8493 Hectares as stated in the affidavit dated
14th February 2018 of Shri. Milind Panditrao, the
direction regarding transfer of the lands to the
Forest Department and consequential directions
regarding making revenue entries shall be complied
with within a period of three months from the date
on which this Judgment and Order is uploaded. The
State Government shall identify the mangroves lands
which were vested in it by virtue of section 3(1) of
the Private Forest Act and shall take appropriate
steps in respect of such lands for transferring such
lands to Forest Department within a period of 18
months from today. It will be also open for the State
Government to take recourse to section 21 of the
Private Forest Act in appropriate cases;
(D) We direct the State Government to constitute a
Committee headed by the Divisional Commissioner,
as agreed by the State Government. The Committee
and sub-committees shall be formed in accordance
with the observations made in paragraph 68 above.
The committee shall be responsible for the
preservation and conservation of mangroves, for
restoration of reclaimed mangroves areas set out in
paragraph 73 above and for implementation of the
directions in this Judgment. The Committee shall be
constituted within a period of one month from today.
The sub-committees as observed in paragraph 68
shall be constituted within two months from today.
The Committee shall hold regular meetings and the
minutes of the meeting shall be made available on
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public domain as observed in paragraph 68 above.
As directed under the order dated 6 th October 2005,
the Principal Secretaries of (1) Environment, (2)
Revenue and (3) Forest Department of the
Government of Maharashtra shall be overall in-
charge for ensuring total compliance with the
directions issued under this Judgment and Order.
They will monitor the working of the Committee
headed by the Divisional Commissioner;
(E) The State Government shall create a Grievance
Redress Mechanism for enabling the members of the
public to lodge complaints about the activity of
destruction/removal of the mangroves. An
opportunity must be made available to file
complaints about any acts or omission which may
ultimately result in destruction or causing damage to
the mangroves area. The State Government shall
make arrangements for receiving complaints on
dedicated website, on toll free numbers and in
physical form to the officers or offices nominated by
the State Government in all districts and especially
in the areas where there are mangroves. A facility
shall be made available for uploading the
photographs of the affected area by e-mail and by
whats app or similar media by use of cell phone. The
State Government must also create a machinery to
ensure that the said complaints are immediately
transferred to the Committee headed by the
Divisional Commissioner. The Committees will
ensure that immediate action is taken of stopping the
illegal destruction or acts amounting to causing
damage to the mangrove areas, if necessary with the
police help. Necessary register shall be maintained
of the complaints received and action taken thereon.
The State Government must lay down the procedure
by which complainant is kept posted about the action
taken on his or her complaint. On the request made
by the complainant, the identity of the complainant
shall be masked and the names of the complainant
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shall not be disclosed to the violators;
(F) The Grievance Redress Mechanism shall be set
up within a period of three months from today.
Adequate publicity shall be given to the availability
of the Grievance Redress Mechanism in leading
newspapers as well as local newspapers.
Information about availability of the Grievance
Redress Mechanism shall be prominently displayed
in the offices of District Collectors, Sub-Divisional
Officers, Tahasildar in the Coastal Districts as well
as in the offices of the Maharashtra Pollution
Control Board and the Maharashtra Maritime Board
in the coastal districts. The information shall be
displayed prominently in the offices of the Municipal
Corporations/Municipal Councils provided any
coastal area forms part of the limits of such
Municipal Corporation or such Municipal Council.
Publicity shall be given at regular intervals of at
least six months to the details of the grievance
redress mechanism in leading newspapers having
good circulation in the coastal areas;
(G) We direct that it is the obligation of the State to
replant destructed mangroves and to restore
mangroves areas which are illegally reclaimed. The
said areas shall be restored to its original condition.
In what manner restoration shall be done must be
decided by the Committee headed by the Divisional
Commissioner after consulting experts in the field.
The Committee shall identify the vulnerable
mangroves areas in the State and direct its constant
surveillance by the Police/Forest Guards/Security
Guards of the Maharashtra Security Corporation.
The Committee shall ensure that barricades are
erected for preventing the entry of vehicles in such
vulnerable area. The Committee shall also consider
of installing CCTVs along the vulnerable stretches to
keep a vigil. The Committee shall also cause to
undertake satellite mapping of mangroves area in
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the state at periodical intervals of not more than six
months by using resolution as suggested in
paragraph no. 28 of the note submitted by the
learned senior counsel appearing for the petitioner.
Any changes seen shall be considered by the
Committee and remedial measures shall be taken.
The State Government shall sanction necessary
amount for that purpose;
(H) The State Government shall ensure that criminal
law is set in motion against all those who commit
offences punishable under section 15 of the said Act
of 1986 as observed in the Judgment. The Committee
shall monitor implementation of this direction;
(I) The State Government shall issue a direction
under section 154 of the MRTP Act to all concerned
Planning Authorities and Regional Boards under the
MRTP Act to to show mangroves areas and 50 meter
buffer zone around it while making or revising
Development Plans/Regional Plans. Such a direction
shall be issued within a period of three months from
today;
(J) Quarterly Compliance reports shall be filed by
the Committee reporting compliance with the
aforesaid directions. The first of such reports shall
be filed on or before 1st December 2018;
(K) Rule issued in PIL No. 87 of 2006 is disposed of
on above terms;
[Emphasis Supplied]
Conclusions:
91. The copious extraction from the orders and judgments in the
march of litigation in this matter has been unavoidable. What the
march of the litigation and the eventual culmination of the matter
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indicates is summarised as follows:
a) The Subject Land was clearly land covered by mangroves;
b) PIL 87 culminated with the declaration of the law that land
covered by mangroves is automatically CRZ-1 land and
indeed falls in the category of protected forest;
c) The State had to conduct detailed satellite imaging of actual
mangrove growth and coverage before it issued the Forest
Notification. This was necessary not only because of the
HC Mangrove Direction but also covered by the
requirement to conduct a survey under Section 29 of the
Forest Act. The Forest Notification was issued after such
survey and study of the factual position, indicating that the
Subject Land was indeed forest land and was notified as
such because of the factual position;
d) The law governing de-notificaiton of forest land is
contained in Section 2(1) of the FCA, which requires the
prior approval of the Central Government. The due process
of getting such prior approval of the Central Government is
detailed in the FCA Rules, which includes formation of a
committee to examine the proposal and taking a view
before the Central Government could approve the de-
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reservation of forest land. This judgement is not going into
the requirements under the FCA Rules to avoid prolixity
since the only counter to the absence of compliance with
Section 2(1) of the FCA is that the Enabling SC Order
precluded the need for any such compliance. It is in
reliance of the Enabling SC Order that the State and MCGM
claim that the Forest Notification was a mistake insofar as
it included the Subject Land as a forest area;
e) This Court was indeed approached by MCGM asking for an
endorsement of the issuance of a corrigendum, and this was
clearly refused. The State was asked to fend for itself in its
assessment of the law without involving the Court. The
right of any party to challenge such de-reservation through
the corrigendum was also preserved, explicitly endorsing
that the Court had not gone into whether there was at all a
mistake in the contents of the Forest Notification;
f) Before issuing the Impugned Notification, a Division Bench
of this Court indeed clarified by the April 2006 Order that
the blanket prohibition on dumping of garbage in
mangrove land would not automatically apply to the
Subject Land, but at the same time took on record the
assurance of the MCGM that there would be no destruction
of mangroves and allowed limited usage with such
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assurance;
g) Eventually, disposing of PIL 87, the Court declared by the
PIL Judgement that all mangrove land is automatically
protected forest. Therefore, indeed, the Subject Land, to the
extent it is covered by mangroves comprises protected
forest. De-reserving such land would therefore necessarily
entail compliance with Section 2(1) of the FCA, which has
not been done;
h) The PIL Judgement explicitly prohibits dumping of garbage
on mangroves. The Subject Land, which indeed is salt pan
land attracts growth of mangroves and it is the violative
construction of the wall by MCGM that led to mangroves
being stunted and destroyed;
i) The short and narrow path for MCGM to defend the non-
compliance with Section 2(1) of the FCA in de-reserving the
Subject Land is the reliance on the Enabling SC Order. It
would be impossible to hold that the Enabling SC Order
was in any manner determinative of the issue because the
issue of mangroves growth on the Subject Land and the
declaration of the law that mangrove land is indeed
protected forest (and therefore cannot be used for garbage
dumping) was not even brought up before the Supreme
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Court and was not considered. At that stage, the focus of
the litigation relating to the garbage dump at Chincholi
Bunder was pollution control laws and the Supreme Court
was not even apprised about the element of mangroves.
The Supreme Court had been assured by a joint affidavit
filed by the then Chief Secretary of the State and the then
Municipal Commissioner of MCGM that the Subject Land
was available as a replacement site for the garbage dump.
The Supreme Court took that on record and directed that
pollution laws should be strictly complied with;
j) In any case, the mangrove issue came up squarely with the
HC Mangrove Direction, which made it abundantly clear
that any land covered by mangroves would have to be
reserved as a forest. Thereafter, the interim prohibition
was not extended to the Subject Land but clearly the issue
was not closed at all. Eventually, the PIL Judgement
concluded that mangrove land would be protected forest
land. Therefore, the de-reservation necessitated compliance
with the Section 2(1) of the FCA, which is missing.
92. In view of the foregoing, we answer the two questions framed by
us at the threshold, as follows:
a) It would not be possible to hold that the Forest Notification
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was simply erroneous in notifying the Subject Land as a
protected forest, since the notification was a product of
actual verification of facts, satellite imaging and ground-
truthing and indeed an outcome of due process of law; and
b) The Impugned Notification is not defensible on the premise
of it being a simple rectification of such error, in reliance
upon Section 21 of the General Clauses Act, without having
to follow the due process stipulated under the FCA.
93. Therefore, we are of the opinion that the Impugned Notification
is unsustainable and is in conflict with the requirement of law
governing de-reservation of a forest in terms of Section 2(1) of the
FCA. The absence of compliance with this requirement has led to the
failure of due process stipulated in the FCA Rules. The Enabling SC
Order does not give cover to the argument that the Forest
Notification was a mistake, and in view of the Forest Notification
having been a product of specific and clear factual review, the
Impugned Notification insofar as it excludes the Subject Land from
the Forest Notification i.e. excludes 119.91 Hectares of land by re-
issuing the Forest Notification by way of a corrigendum, deserves to
quashed and set aside. The Subject Land i.e. 119.91 Hectares is
consequently restored to the status of being a protected forest. Any
proposal to de-notify the same would need to be compliant with the
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due process stipulated in Section 2(1) of the FCA.
94. In the circumstances, we grant MCGM three months time to
comply with the consequences of this judgement.
95. Rule is made absolute and the Petition is disposed of in the
aforesaid terms. There shall be no order as to costs.
96. At this stage, Ms. Jyoti Chavan, Learned Additional
Government Pleader submits that the operative order be stayed for
some time. We have already granted three months' time to comply
our orders, hence, we need not consider such request.
[SOMASEKHAR SUNDARESAN J] [G.S. KULKARNI J]
May 2, 2025
Ashwini Vallakati
