(PER BHARATI DANGRE, J) :
1. The Petitioner, Maharashtra Maritime Board, established under the provisions of Maritime Board Act, 1996, entrusted with the function of developing, conserving, regulating, facilitating and administering the non-major port limits on the coast of Maharashtra and which is also responsible for ensuring sustainable planned development of minor ports, port infrastructure and maritime facilities, has filed the present Writ Petition under Article 226 of the Constitution of India, seeking direction to the Respondents/Authorities to permit it to execute the proposed Anti-Sea Erosion bund at Colaba, Mumbai, in the background that it is a project of public importance as recorded in Paragraph 83(viii) of the Judgment and Order dated 17/09/2018 passed by this Court in Public Interest Litigation No.87/2006.
2. In the Petition instituted, the Ministry of Environmental and Forest and Climate Change is impleaded as Respondent No.1, whereas, Maharashtra Coastal Zone Management Authority (MCZMA), State of Maharashtra, Chief Conservator of Forest (Mangrove Cell), State Environmental Impact Assessment Authority are impleaded as Respondent Nos.2 to 5 respectively. The Bombay Environment Action Group (BEAG) is impleaded as Respondent no.6.
3. We have heard Mr.Saket Mone a/w Ms.Anchita Nair i/b Vidhii Partners for the Petitioner, Ms.Jaya Bagwe for Respondent No.2, Mr.Mohit Jadhav, Addl. GP a/w Mr.Manish Upadhye, AGP for State, Mr.Rui Rodrigues a/w Mr.N.R. Prajapati for Respondent No.1-UOI and Mr.Nirman Sharma for Respondent No.6.
By consent of parties, the Petition is agreed to be heard finally at the stage of admission and hence we issue ‘Rule’ which is made returnable forthwith.
4. The relief sought in the Petition has its genesis in Public Interest Litigation No.87/2006, which came to be entertained by this Court, as it involved an important issue of destruction of mangroves in the entire State of Maharashtra. The Petition filed by Respondent No.6 highlighted the necessity of protection and conservation of the environment and focused upon the large scale destruction and denudation of mangroves and, it sought primary relief of declaration that the areas covered by mangroves in the State of Maharashtra, in addition to those covered by mangroves forest should be declared as Mangroves Protection Area. The Petition highlighted the functions and importance of mangroves including its role in protecting sea shores from erosion, high wind and cyclone and in addition of they acting as buffer between the land and sea with a very important role in fighting the tidal erosion. In addition, it was also projected that the mangroves facilitated reclamation of land from the sea and at times act as flood control by absorbing excess water of the sea.
The primary relief in the PIL sought a declaration about the areas covered by the mangroves forest in the area of Greater Mumbai as per the 1997 satellite plan to be designated as “Mangrove Protection Area” with such modification as this Court deem fit.
5. Taking into consideration the pleadings in the PIL and the Affidavits filed in pursuance of the interim direction dated 06/10/2005, when several steps were taken on the basis of the mapping of mangrove areas in Mumbai and Navi Mumbai by the Maharashtra Remote Sensing and Satellite Applications Centre (MRSSAC) and when 2823.8493 Hector of mangroves on the government land in Mumbai were notified as forest and these forests were handed over to the Forest Department, the compliance report was accepted by issuance of a clear declaration that the mangroves, irrespective of their ownership, shall receive the protection under the Environment Protection Act, 1986 and the Forest (Conservation) Act,1980.
6. On 17/09/2018, further directions came to be issued in the wake of the subsequent developments in the light of the directions issued by the Apex Court in Krishnadevi Malchand Kamathia & Ors. vs. Bombay Environmental Action Group 2011(3)SCC363 particularly in relation to the private lands declared as forest and this included setting up of Grievance Redressal Mechanism by the State Government enabling the members of the public to lodge complaints about the activity of destruction/removal/cutting of mangroves or causing damage to mangroves area. Similarly, the directions also included incorporation of appropriate provisions in the Maharashtra Regional and Town Planning Act,1966, which contemplated preparation of Regional and Development plans.
The specific reference to the prayer about exclusion of certain plots from the applicability of the direction contained in Clause 8(3) of the order dated 06/10/2005 regarding buffer zone of 50 meters, on a threadbare analysis, clear directions were issued as regards the Coastal Regulation Zone as per the Notification of 2011 and a declaration was given to the effect that interim direction issued in clause 8(3) shall be applicable to all mangroves irrespective of its area and it was declared that it would fall in CRZ-1 as per the Notification of 1991 and 2011.
While disposing of the Petition filed in public interest, directions issued in the interim order were continued to operate as final directions by imposing a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra.
It was declared that destruction of mangroves violate the rights of citizens under Article 21 of the Constitution and in the wake of the duty cast under Article 47, 48A and 51-A(g) of the Constitution of India, it was mandatory for the State and its agencies and instrumentalities to protect and prevent mangroves and the mangroves cannot be permitted to be destructed by State for private, commercial or any other use unless the Court find it necessary for public good or public interest.
7. In light of the aforesaid directions, the Petitioner who is desirous of carrying out work of its project i.e. proposed Anti-Sea Erosion Bund at Colaba, seek leave of this Court in the wake of the permission granted in its favour, as it is intended to protect erosion of lands due to sea waves and tidal activities and to protect the inhibit land from further loss and erosion.
Stating that the erection of bund is also necessary to stop the erosion of the wall adjacent to the Colaba Sewage Treatment Plant (CSTP) with the capacity of 37 MLD, as the waste water collected from the nearby areas is treated at this Plant, the permission is sought for undertaking the said project.
8. The learned counsel for the Petitioner has invited our attention to the Minutes of the 145th Meeting of MCZMA held on 07/07/2020 and in regards to the proposed construction of Anti-Sea Erosion bund which was situated in CRZ II area, on due deliberation it was decided to recommend the proposal from CRZ point of view to State Environment Impact Assessment Authority (SEIAA) subject to the following conditions :-
“1. The proposed construction should be carried out strictly as per the provisions of CRZ Notification, 2011 (as amended from time to time) and guidelines/clarifications given by MoEF from time to time.
2. PP to ensure that no construction is allowed in mangroves & its 50 m buffer zone. There shall not be violation of the Hon'ble High Court order dated 17th September, 2018 in PIL 87/2006.
3. PP to obtain NoC from Mangrove Cell.
4. Natural course of creek/river water should not be hampered due to proposed activities.
5. All other required permission from different statutory authorities should be obtained.”
While making the said recommendation, the Minutes of the Meeting specifically record thus :-
“Item No. 8: Proposed construction of Anti Sea Erosion bund at Colaba, Mumbai by MMB
The MMB officials presented the matter before the Authority. The Authority noted the proposal for construction of Anti Sea Erosion bund at Colaba, Dist. Mumbai.
The proposal is for anti sea erasion bund at Colaba, Dist. Mumbai to protect the land from erosion due to sea waves. A bund is proposed on the site to restrict the waves from erosion of the inhibited land and prevent further loss. Considering the current status of erosion and wave behavior, it is necessary to implement the project. The Construction of Anti -Erosion bund is required to Stop the Erosion of wall Adjacent of Coloba Sewage Treatment Plant (CSTP). The CSTP having Capacity of 37 MLD comes under Mumbai Sewage Disposal Project (M.S.D.P) of Municipal Corporation of Greater Mumbai. The waste water collected from nearby area is treated at this STP and further discharge in Sea. Length of Bund is 500m. There are no Mangroves on the site,
As per the approved CZMP under CRZ Notification, 2011, proposed Anti-Sea Erosion bund is situated in CRZ II area.”
9. It is also to be noted that the Office of the Chief Conservator of Forest, Mangroves Cell, Mumbai by letter dated 10/08/2020 forwarded its report based on a site inspection carried out by the Range Forest Officer, Central Mumbai, Mumbai Mangrove Conservation Unit alongwith the officials of the Petitioner on 31/07/2020 and it record thus :-
“1. The PP informed that Anti sea Erosion bund of 500m is to be constructed adjacent to Colaba Sewage Treatment Plant.
2. 95 R.M of the Anti-Şen erosion bund is passing through Reserve Forest (Mangrove) CTS no. 6/600 and another 30 R.M of proposed bund is passing through buffer zone of the Mangrove Forest. However, Mangrove cutting is not involved as the said area is a rocky patch.
3. Hence the PP has been asked to submit the proposal under Forest Conservation Act, 1980 for the work to be executed in the Reserve Forest,
4. The PP has to take necessary permission from Honourable High Court, Mumbal for the work, which is executed in the 50m buffer zone of the Mangrove.
5. The Mangrove cell: has no objection on the proposed Anti-Sea Erosion bund outside the forest area as no destruction of Mangrove is involved.”
10. In the meeting of SEIAA held on 08/12/2020 for CRZ clearance, the proposal of the Petitioner for construction of the Anti-sea Erosion bund at Colaba with the length of 500 mtrs. was taken up for consideration and the recommendation of the MCZMA received due consideration and the proposal was deliberated in the 211th meeting of SEIAA when it agreed to grant CRZ clearance, but subjected it to the following conditions :-
“1. The proposed construction should be carried out strictly as per the provisions of CRZ Notification, 2011 (as amended from time to time) and guidelines/ clarifications given by MoEF from time to time.
2. PP to ensure that no construction is allowed in mangroves & its 50 m buffer zone. There shall not be violation of the Hon'ble High Court order dated 17th September, 2018 in PIL 87/2006.
3. PP to obtain NoC from Mangrove Cell.
4. Natural course of creck/river water should not be hampered due to proposed activities.
5. All other required permission from different statutory authorities should be obtained.
6. This is only CRZ Clearance.”
11. It is in the backdrop of the permissions received by the Petitioner, since by a communication dated 20/12/2020, the Chief Executive Officer of the Maharashtra Maritime Board was communicated about the said approval, alongwith the specific conditions imposed in the meeting of SEIAA alongwith the general conditions, the Petitioner seeks necessary directions from this Court in the wake of Judgment dated 17/09/2018 in PIL No.87/2006 to be read with the Order dated 02/11/2018 and 25/02/2019.
12. The learned counsel representing Respondent No.6 has vehemently opposed the reliefs sought in the Petition by expressing concern over the proposed project as according to him the construction of sea wall is in teeth of the directions of the National Green Tribunal in its order dated 11/04/2022 passed in C.H. Balamohan vs. Union of India & Ors (Original Application No.4/2013). In addition, it is his specific submission that no scientific study or assessment has been undertaken as regards the need for the proposed project or the impact of the project and the environmental hazard on its construction.
We have, thus, perused the order passed by the National Green Tribunal which has pronounced upon the issue of protection of stretches of coastal land affected by the human induced erosion caused by hard structures.
The order is issued in the OA which was filed before the Tribunal, raising grievance of destruction of Puducherry and Tamilnadu Coastal Environment due to construction of hard structures causing continuous erosion of the coast with a submission that most parts of the Indian coastline – both on the east and west coast are under the influence of llittoral drift.
Reliance is placed upon the specific direction contained in Para 83 of the said order, when it expressed that on giving due consideration to the issue of protection of beaches from human induced erosion caused by hard structures, it is opined that hard structures may prevent erosion at the stretch temporary, but it may adversely impact the upstream or downstream where the erosion starts. It is also expressed by the Tribunal that hard measures only transfer the problem of shoreline change until and unless a holistic study is undertaken and there is a need to replace the hard structures like Sea walls, Groynes etc. with softer options such as beach nourishment, sand bypassing, dune planting, off-shore submerge reefs and it is suggested that the general principle of “working with nature” would be a better approach for cost effective and sustainable costal protection measure.
A copy of the order was directed to be forwarded to all coastal states, Union Territories and the Ministry of MoEF and CC, for compliance.
13. We find substance in the submission advanced on behalf of the Petitioner that soft solution may not be possible in every scenario. It is the specific contention of the Petitioner that the MCZMA, which is the Coastal Management Authority for State of Maharashtra has found it appropriate to recommend proposal of the Petitioner, by specifically stating in their Affidavit that the activities to be undertaken by the Petitioner are not prohibited in CRZ area.
14. The CRZ Notification 2011, which has enumerated the list of activities that are prohibited, paragraph 12 of para 3 of the CRZ Notification 2011 prohibits construction activities in CRZ 1 except those specified in para 8 and Para 8 set out the norms for permissible activities and it is clarified by the MCZMA in its Affidavit that the work “development of construction” occurring in Para 8 have to be understood as per its natural meaning as construction of such nature falling with the purview of development clause.
Since the MCZMA has expressed its opinion that the project of the Petitioner which is in consonance with CRZ Notification of 2011, deserve an approval and based upon its recommendation, an expert body like SEIAA has also deemed it appropriate to permit the construction to be carried out strictly as per the CRZ Notification of 2011 and the guidelines/clarification given by MoEF from time to time with a restriction that no construction shall be carried out in mangroves and its 50 meter buffer zone.
The Mangroves Cell has also accorded its no objection on 10/08/2020 by clearly informing that it has no objection for the proposed Anti-sea Erosion bund which is situated outside the forest area and it do not involve destruction of mangroves.
15. In the wake of the expertized view possessed by the bodies like MCZMA, SEIAA who have accorded their green signal for undertaking the proposed project by the Petitioner, we are not at all persuaded by the objection raised by Respondent No.6, as we find that the factual assessment has been carried out by all the statutory authorities and the order of the National Green Tribunal on this aspect suggesting softer solution instead of hard structures, which is merely a suggestion, shall not necessarily bind the MCZMA, which is the Coastal Zone Management Authority for the State of Maharashtra and it is not possible for us to substitute our opinion for the opinion of MCZMA as well as the SEIAA.
16. Finding no merit and substance in the objection raised by the learned counsel for Respondent No.6, we deem it appropriate to allow the Writ Petition by directing the Respondents/Authorities to permit the Petitioner to execute the proposed Anti Sea Erosion bund at Colaba, Mumbai since we find that the said project is in larger public interest.
17. Taking into consideration importance of the aforesaid project and for the reasons recorded above, Writ Petition is allowed in terms of prayer clause (a), which shall, however, subject to the condition that the responsible officer of the Petitioner file an undertaking before this Court within a period of two weeks from today, that the Petitioner shall strictly comply with the conditions as are imposed in the permissions granted by various Authorities i.e. MCZMA and SEIAA.
