The National High Speed Rail Corporation Ltd. v. State of Maharashtra & Ors.

3. It can be, thus, seen that the Division Bench itself has carved out a clause wherein a permission can be granted if it is necessary for the public good or the public interest.

4. This Court has examined certain matters and has granted permission. It has also granted permission AVK 7 in some matters, wherein, the Court found that the larger public interest demands so. However, in all such matters the permission has been granted only after the expert bodies like Ministry for Environment and Forest, Government of India, the Ministry of Environment and Forest, State of Maharashtra and Respondent no.2, herein, have granted the permissions. We fnd that it is for these bodies, who possess necessary expertise, to frst fnd out as to whether the permission is necessary in the larger public interest or not. After application of mind, by such authorities with regard to grant or refusal of permission, the Court can consider, whether the larger public interest demands grant of such permission or not.

5. It appears that Respondent no.2, herein, desires to adopt reverse procedure.

6. In that view of the matter, Respondent no.2 to take decision on the proposal of the Petitioner within a period of four weeks from today.

7. Stand over to 18th March, 2019.”

11. On 6th March, 2019, the Respondent No.2 MCZMA in its 131st meeting granted clearance and recommended the petitioner’s proposal of the bullet train project to Respondent No.4 MOEF & CC subject to conditions contained therein.

12. Thereafter, it appears that an amendment application came to be moved to bring on record the subsequent developments, which was allowed by orders dated 18th March 2019 and 8th April 2019.

13. In the meanwhile, on 29th March 2019, the in-principle Stage I clearance was received by the petitioner.

14. Thereafter, on 12th June 2019, this Court passed the following order: AVK 8 “1. Keeping in view the reliefs prayed for and the directions issued by this Court in Public Interest Petition No.87 of 2006 we direct the petitioner to serve a copy of the writ petition on Bombay Environmental Action Group, the protagonist of Public Interest Petition No. 87 of 2006. Notice be taken out and served upon Bombay Environmental Action Group hamdust. Notice is made returnable on 1 August 2019.

2. Liberty is granted to complete the document Exhibit- K by inserting Page No. 136-AA/1.”

15. By order dated 8th March 2021, amendment was permitted whereby Bombay Environmental Action Group was impleaded as the respondent no.5. Various afdavits in reply / additional afdavits as well as rejoinders have been fled by the respondents and the petitioner.

16. Mr. Paranjape submits that the Regional Empowered Committee of the respondent no.4 MoEF & CC had, after considering the proposal of the petitioner, granted the inprinciple approval (Stage I clearance) under Section 2 of the Forest (Conservation) Act, 1982 on 29th March 2019, which was received by the petitioner on 10th April 2019. He submits that the respondent no.4 had imposed almost forty conditions on the petitioner, some of which were to be complied with prior to the seeking of the Stage II clearance and some of the conditions were to be complied with during the implementation of the project work.

17. According to Mr. Paranjape, the petitioner had complied with the conditions and around 10th March, 2021, the compliance of the Stage I conditions was submitted to the Deputy Conservator of Forests for seeking a Stage II clearance and a consequent order for diversion of forest under Section 2 AVK 9 of the Forest (Conservation) Act. He submits that compliance of conditions with respect to Stage I, as submitted by the petitioner, is from pages 1 to 44 of the compilation of compliance of conditions. He also submits that the compliance report is available from pages 3 to 17 and the undertakings are given from pages 18 to 44.

18. Moving further, Mr. Paranjape submits that after submission of the compliance, the Additional Principal Chief Conservator of Forest (hereinafter referred to as APCCF) and Nodal Ofcer wrote to the State of Maharashtra regarding the compliance of Stage I and requested the State of Maharashtra to move the Government of India for issuing fnal approval under the Forest (Conservation) Act. Considering the conditions imposed in the permissions, the petitioner has ofered to the respondent No.2 MCZMA to plant a total number of 2,67,335 mangrove trees over an area of 67.[5] hectares. That, on 15th July, 2022, the petitioner has deposited the costs of Rs.9.95 crores as ascertained by the Respondent No.3 Mangrove Cell, Mumbai for the said purpose. That, thereafter, being satisfed with the detailed compliance report of Stage I, on 18th August 2022, the respondent no.4 MoEF&CC addressed a communication to the State of Maharashtra according fnal approval to the petitioner under Section 2 of the Forest (Conservation) Act for diversion of 129.7197 hectares of forest land in Thane, Palghar and Mumbai Suburban Districts subject to fulflment of the conditions mentioned therein.

19. Learned counsel submits that, in the meantime, on 1st August, 2022, the Chief Conservator of Forests had issued a working permission to the petitioner for work of underground AVK 10 tunnel below the mangrove area of 8.3978 hectare and nonmangrove area from Chainage 7/100 to 22/350 kms. in Thane district and (71.4986 hectare) 75/160 to 155/650 kms. in Palghar district. He further submits that, however, the permission to start the work from Chainage 22/350 to 75/160 (41.5651 hectare) kms. has not been issued by the Chief Conservator of Forests as the remaining area contained some mangrove patches including non-mangrove area in between the mangrove patches, for which permission is required from this Court.

20. It has been submitted by Mr. Paranjape that on 23rd August 2022, the ofcer of the respondent no.3, Mangrove Conservation Cell has issued a communication to the APCCF Mangrove Cell, Mumbai with a copy to the petitioner stating that considering the observations of this Court in PIL 87 OF 2006 that an area of 50 metres shall be kept free of construction on all sides of mangroves area and considering the statement of the petitioner in its communication dated 30th January 2021 that the tunnel was 23 metres below the ground, guidance was sought as to whether working permission can be granted for underground tunnel work or whether permission of the High Court was required.

21. Mr. Paranjape submits that the permission of this Court is being sought for by the authorities even for the tunnelling work which is to be done underground.

22. Mr. Paranjape has, from time to time, during the pendency of this petition, furnished a list of the permissions and clearances including the fnal approval dated 18th August 2022 of the MoEF&CC obtained during the pendency of this AVK 11 petition. A summary of the permissions and clearances is set out in the table below: TABLE OF PERMISSIONS / CLEARANCES Sr. No. Date Permission Exh. No. Page No. Subsequent Developments Remarks 1 2013-2015 Extensive prefeasibility and feasibility studies conducted including social and environmental impact Permissions under Wildlife Act 2 5.12.2018 Approval for the project by the State Wildlife Board in its 14th Meeting on the condition that the petitioner to deposit 2% of project costs as the project is passing through deemed Eco sensitive Zone (ECZ) amounting to 83.02 crores for necessary mitigation measures Exh.[3] of A/Rply of R[1] & R[3] pg 218 received pursuant to order dated 12.2.2019 of this court Permission under the Coastal Regulation Zone Notifcation dated 6.1.2011 3 6.3.2019 MCZMA Clearance (R[2]) in its 131st Meeting has granted clearance and has recommended the proposal of the Bullet train 136-D to 136-F AVK 12 project to MOEF R[4] 4 18.3.2019 Expert appraisal Committee of MoEF & CC (R[4]) has granted CRZ clearance for its project in its 210th Meeting subject to conditions imposed in the said Minutes and forwarded to the petitioner on 5.4.2019 136-R to 136Y (Exh.15, 265 of Rejoinde r) under the Forest Conservation Act 5 29.3.2019 The Regional Empowered Committee of MOEF (R[4]) grants in-principle (Stage I) approval to the project under Section 2 subject to fulfllment of certain conditions and subject to shifting of the proposed Thane station out of mangrove forest and Virar station out of reserved forest which has been forwarded to petitioner on 10.4.2019 136-Z to 136-AA- (Exh. K) Thane station building shifted out of mangrove forest (Exh.[1] – IA pg 9) Virar station has been shifted out of reserved forest (Exh.[2] IA(L) No.8034/2020 pg 10-11) The afected mangrov e area has been reduced from 13.3668 H to 8.6876 H and the no. of mangrov es afected has reduced from 53,467 to 21,997 (Exh. 3 IA – pg 12) 6 5.4.2019 Director CRZ (MOEF) grants CRZ clearance to petitioner subject to 23 specifc and 10 general conditions A/Rply of R[5] Exh.[1] As per paragrap h 4 – subject to fnal order of Supreme Court in W.P.(Civil) AVK 13 No.460 of 7 26.9.2019 In pursuance of the Stage I clearance as well as the guidelines dated 28.8.2015 for permissions including felling of trees, for timely completion of linear infrastructure projects like railway lines, all amounts have been deposited (except SGNP

9.95 crores). The user agency has deposited a cost of 9 Ha mangrove plantation in lieu of actually 8.876 Ha being destructed mangrove area in addition to the total cost of NPV of mangrove diverted area. The identifcation of degraded mangrove area and 39996 at the rate of 444 per Ha. Mangrove saplings to be planted after obtaining Stage II approval by GOI, diversion order by the State Govt. and necessary permissions from the High court by the user agency for the project Rs.146,[5] 8,41,170/ deposited – - Rs.1,23,[1] 4,770/paid to mangrov e and marine bio diversity, conservat ion foundatio n of Maharash tra for additional mangrov e plantatio n in the ratio of 1:5 31.12.2019 Petitioner has deposited an amount of Rs.31,83,43,188/to the Dy. Conservator of Forests for payment to Exh. 3 of A/Rply of R[5] pg 223 AVK 14 Maharashtra Compensatory Aforestation fund management and planning authority (CAMPA), compensatory aforestation (condition 2 of approval dated 10.4.2019, additional compensatory aforestation (mangrove) (condition 4),MPV (condition 5) etc. 8 1.1.2020 Petitioner has deposited Rs.42,52,388/towards tree felling 9 29.7.2020 Petitioner submitted its compliance report and undertaking to Director IA-III, CRZ, UOI 295 of A/ Rej. of Ptnr. (Exh. 15) 10 9.9.2020 Petitioner and APCCF, mangrove cell, Mumbai and Executive Director, Mangrove Foundation vide letter dtd. 11.8.2021 have prepared and submitted a mitigation plan for the Thane creek Flamingo in consultation with Bombay Natural History Society 11 10.3.2021 Communication by the petitioner to Dy. Forests (Nodal Ofcer – Thane Circle), Thane Forest Division, submitting compliance of W/Sub. Of Ptnr. AVK 15 imposed in Stage I clearance 12 24.3.2021 Dy. Conservator of Forests, Thane submitted the compliance to Chief Conservator of Forests 13 19.4.2021 The Chief Forests, Thane after [specifcally recording the compliance, recommended] the same to Addl. Principal Chief Forests and Nodal Ofcer, Maharashtra, W/Sub. Of Ptnr. 14 12.5.2021 The Mitigation plan in respect of the Thane Creek Flamingo sanctuary approved by PCCF (Wildlife), 15 18.5.2021 Addl. Principal Chief Conservator of Forests and Nodal Ofcer recommended to the Principal Secretary, Forests, Revenue and Forests Department, Maharashtra to move the UOI to issue the fnal (Stage-II) clearance under the Forest Addl. Af. of Ptnr. 16 31.12.2021 The National Board of Wildlife in its 66th Meeting has directed petitioner to deposit 2% cost of the project petitioner has deposited Rs.9.95 crores with an undertaking to abide by any revision in 2% AVK 16 passing through protected area and its fnally notifed ECZ which is Rs.9.95 crores only amount by the said Board in future thereby complying condition no.(x) and (xxiv) (b) stipulated by the GOI in the Stage-I approval 17 20.7.2022 The State of requests R[4] (Regional Ofcer, Central Integrated Regional Ofce, MoEF&CC) to issue necessary orders under the Forest Addl. Af. of Petnr. (Exh. D) 18 1.8.2022 The Chief Forest, Territorial Thane has granted permission for commencement of work regarding diversion of forest land for the project, save and except the mangrove area Pg 52 of Addl. Af. Of Petnr. Eng. Trasln. at pg 64 19 18.8.2022 Final approval (Stage II) under section 2 by the MoEF&CC (R[4]) for diversion of a fnal area of 129.7197 Ha of forest land in favour of petitioner for construction of the project in Thane, Palghar MSD, Maharashtra subject to 36 Pg 42 of Addl. Af. Of Petnr. (Exh.E) To be ensured during the implemen tation of the project and also to submit regular complian ce to various authoritie s 20 23.8.2022 Petitioner also submitted the mitigation plan to Director CRZ-IA- III, MoEF&CC, New Delhi for further Pg 46 of Addl. Af. of Petnr. (Exh. F) AVK 17 review by Expert Appraisal Committee as per specifc condition no.(vii) of CRZ Clearance 21 19.10.2022 Proposal for diversion of 6.783 Ha of forest land for shifting of Padghe–Vasai Transmission line towers within alignment of the project submitted to the MoEF & CC Approval is awaited 22 17.11.2022 For diversion of 22.6944 Ha of forest land for reorientation / realignment of existing 400 kv and 220 kv transmission lies within the alignment of the project, the MoEF & CC has granted the Stage I approval subject to a condition of working permission by the Power Grid Corporation of India Ltd., (PGCIL) which permission has been granted by the Chief Forest, Territorial Thane to PGCIL

23. Mr. Paranjape submits that the Mumbai-Ahmedabad High Speed Railway Project is a project of national importance and in public interest and submits that this Court may grant approval so that the requisite permissions can also be issued to the petitioner for speedy completion of the project. AVK 18

24. He submits that although the Project has been delayed over the last two years, now work has begun on a rapid pace and in order to complete the Project at the earliest, the requisite permission of this Court to the petitioner for felling / cutting the 21,997 mangroves is urgently required as the petitioner has already undertaken to plant fve times more the number of mangroves or as may be directed. He submits that the petitioner is also ready to undertake any other environment conservation measures as would be required to be undertaken by it.

25. Finally, Mr. Paranjape has urged this Court to apply the public trust doctrine submitting that the project is not only in public interest but also for public good.

26. On the other hand, Mr. Khambata, learned senior counsel for the respondent no.5-BEAG, does not dispute the multifarious advantages of the Project but submits that there are certain objections which he would like to place on behalf of the said respondent.

27. Mr. Khambata frst submits that apart from the various conditions of the CRZ clearance dated 5th April 2019 and the Stage I clearance dated 10th April 2019, under the Forest (Conservation) Act that the petitioner has failed to comply with, the fnal Stage II clearance dated 18th August 2022 obtained under the Forest (Conservation) Act also imposes upon the petitioner certain conditions which were also imposed upon it under the Stage I clearance, and the same are also yet to be complied with.

28. Mr. Khambata then raises a preliminary issue by submitting that the writ petition is not maintainable as the AVK 19 Project is not a permissible activity under paragraph 8 of the CRZ Notifcation, 2011.

29. This, Mr. Khambata submits, in view of law laid down in PIL Petition No.87 of 2006. He refers to paragraph 55 of the said decision and submits that it has been held therein that destruction of mangroves and failure of the State to take steps for restoration amounts to violation of fundamental rights under Article 21 of the Constitution of India. He further submits that the said decision acknowledged a complete ban on the State Government or any other authority except with the prior approval of the Central Government under Section 2 of the Forest (Conservation) Act on using any forest land or any portion thereof for non-forest purposes. He submits that the said decision imposes an obligation upon public authorities to protect and preserve mangroves, irrespective of whether on private land or public land and in doing so, to ensure compliance with CRZ Regulations, 2011 and the Forest (Conservation) Act. He refers to paragraphs 50, 52, 54, 55 and 83 (viii) of the said judgment and submits that the said judgment holds that all mangroves irrespective of area will fall in CRZ-I as per CRZ Notifcation 2011.

30. Mr. Khambata submits that paragraphs 41 to 43 read with paragraphs 74 and 83 (iv) emphasise the requirement of compliance with the CRZ Notifcation, 2011. Further, the said judgment observes that mangroves as well as a 50 m bufer zone where the area of mangroves exceeds 1000 sq.mtrs. falls within the CRZ-IA area, provided for under paragraph 7 of the CRZ Notifcation. The Court, he submits, noted that only those activities permissible in the CRZ-I area, as enumerated in paragraph 8 of the said Notifcation, could be undertaken. AVK 20

31. Mr. Khambata refers to the CRZ Notifcation of 2011 and submits that all construction activities in CRZ-I are prohibited except those specifed in paragraph 8. He submits that railway or railway projects have not been listed in the exceptions carved out, and therefore, railway projects are prohibited as far as CRZ-I is concerned. He submits that in the present case, the piers spanning over several sq.kms. which are proposed to be erected for the purposes of the Project would result in destruction of 22,000 mangrove trees causing severe environmental degradation.

32. Learned senior counsel submits that under the 2011 Notifcation, all mangrove areas fall in CRZ-I irrespective of its area and in case the said area is 1000 sq.mtrs. or more, even the bufer zone of 50 m along with the said area shall be part of CRZ-I. He submits that the bufer zone of 50 m abutting mangroves having an area of 1000 sq.mtrs. or more was included in CRZ-I from 27th September 1996. He submits that Clause (xi) of paragraph 3 of the 2011 Notifcation, provides that all construction activities in CRZ-I are prohibited except those specifed in paragraph 8. He further submits that no new construction shall be permitted in CRZ-I except: “(a) Projects relating to Department of Atomic Energy; (b) Pipelines, conveying systems including transmission lines;

(c) Facilities that are essential for activities permissible under CRZ-I;

(d) Installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department; (e) Construction of trans harbour sea link and without afecting the tidal fow of water, between LTL and HTL AVK 21 (f) Development of green feld airport already approved at only Navi Mumbai;”

33. Mr. Khambata submits that neither railways / railway projects nor the high speed rail project is mentioned above thereby meaning that the said activity/project is clearly prohibited with respect to CRZ-I zone. He further submits that the said judgment in the case of Bombay Environmental Action Group (supra) does not override the legal prohibitions in the CRZ Notifcation of 2011 including paragraph 8 thereof. He submits that paragraph 83(viii) of the said judgment could only have imposed an additional requirement/safeguard upon paragraph 8 that where a proposed project or activity which falls under CRZ-I area is permissible under paragraph 8 of the CRZ Notifcation, that a project proponent must approach this Court for permission to cut/fell mangroves and it is only if this Court considers that the said project is for public good or is in public interest, that the destruction of mangroves even for activities under paragraph 8 is permitted. The need for this Court’s permission, he submits, is notwithstanding that the activity is permissible in CRZ-I. He submits that the Project, i.e., the bullet train project, admittedly, falls within the CRZ-I area. However, since the bullet train project or the railways is not included as a permissible activity under paragraph 8 of the CRZ Notifcation, he submits that the present petition is not maintainable.

34. It is submitted that, in fact, the CRZ Notifcation, 2011 having been issued under the Environment Protection Act, 1986, the same would have an overriding efect over other laws, including Central Acts as well, since: AVK 22 “i. The Environment Protection Act is enacted under Article 253 of the Constitution of India, which empowers the Parliament to “make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” ii. Section 24 of the Environment Protection Act, 1986 contains a non-obstante clause:

4. Efect of other laws.- (1) Subject to the provisions of sub-section (2), the provisions of this Act and rules or orders made therein shall have efect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

35. Learned senior counsel further refers to the decision of the Supreme Court in Gulf Goans Hotels Company Ltd v Union of India & Ors[1], and submits that in paragraph 17 it has held that legislations such as the Environment Protection Act, Forest (Conservation) Act, etc. may be viewed “…as ‘afrmative action’, aimed at implementation of Articles 21 and 48-A of the Constitution…” Further, at Para 26, the Supreme Court held that violation of Article 21 on account of alleged environmental violations could not be determined without referring to the regulations framed under the Environment Protection Act and therefore the CRZ Notifcation.

36. Mr. Khambata also refers to paragraph 43 of the said judgment to submit that CRZ Notifcations are in the nature of orders or directions issued under the Environment (Protection) Act. Therefore, if there is any violation of the CRZ Notifcations regarding mangroves or its bufer zone or if there is violation to comply the same, it will attract penal provisions under Section 15 of the Environment (Protection) Act, which would

37. Mr. Khambata also relies upon the decision of the Supreme Court in the case of S. Jagannath vs. Union of India and Others[2] to submit that the CRZ Notifcations have an overriding efect and shall prevail over the other laws. He draws the attention of this Court to paragraph 48 of the decision in support of his contention.

38. Mr. Khambata further submits that the permissions on which the project proponent relies requires that the Thane station proposed over mangrove forest and Virar station over reserved forest “shall be shifted from Mangrove/forest area”. He submits that the station has not been completely relocated from the mangrove forest area, which is further borne out from the Compliance Report dated 10th March 2021. He submits that the condition did not require a reduction in mangrove area to be cut for the purposes of the station. It required the station to be completely shifted from the mangrove area, which does not appear to have been done. He submits that the petitioner is seeking to read “station” as applying only to the main station building and has ignored the station viaduct and viaduct bridge, which also form part of the station.

39. Learned senior counsel further submits that compliance with the conditions imposed in the Forest Clearance for protection of mangroves is a pre-condition that ought to be satisfed before this Hon’ble Court grants its approval. He submits that the Stage II forest clearance issued as recently as August 18, 2022 has reiterated this condition which would not

AVK 24 have been necessary had it already been complied with, that unless the stations are duly relocated so as to be shifted completely out of the mangrove area, the work cannot commence.

40. It is further submitted that the petitioner has failed to place on record a Comprehensive Mangrove Conservation and Management Plan being a specifc condition of the CRZ clearance.

41. Then Mr. Khambata submits that the Railways Act, 1989 cannot and does not override Article 21 of the Constitution of India. He submits that it is well settled that the expression “any other law for the time being in force” cannot extend to each and every law, but only extends to laws operating in the same feld. The non obstante clause in Section 11 of the Railways Act has to be interpreted keeping this guiding principle in mind. The Railways Act and Environmental laws are not in the same feld and, therefore, the non obstante clause cannot override the requirements of the CRZ

42. He submits that reading Section 11 of the Railways Act as overriding all prior laws would lead to absurd consequences not only in the context of the prevalent environment laws but also laws relevant to the Defence of India such as the Works of Defence Act, 1903, which under Section 3 empowers the Central Government with the discretion to impose restrictions on the use and enjoyment of land in the vicinity any work of defence or any site to be used / acquired for any work of defence. If Section 11 of the Railways Act is given such wide operation, it could potentially lead to an absurd situation AVK 25 where the railway administration could in fact construct a railway passing through or near by a work of defence notwithstanding the restrictions imposed by the Central Government under the Works of Defence Act.

43. Mr. Khambata, in support of his contention that the Railways Act is subject to the Environment Protection Act as well as the Forest (Conservation) Act as well as the Wildlife Protection Act, draws the attention of this Court to a communication dated 5th December, 2017 issued by the respondent no.4 MoEF&CC (Forest Conservation Division) to the Principal Secretary of all the States and Union Territories, pursuant to which, the said Ministry has in paragraph 7 opined that although the Railways has the Right of Ways (RoW) for construction and maintenance of railway lines for public welfare and may acquire land from the owners of the land but the said right is also subject to other provisions and regulations. He submits that it has been clearly mentioned in the said communication that if a forest land cannot be dispensed for the railway track in view of the conservation of the forest and wildlife, then the Railways cannot acquire forest land under Section 11 of the Railways Act without the prior approval under the Forest (Conservation) Act. He submits that the State Government also cannot assign and allot forest land which is not the property of the Railways to Railways without the prior approval of the MoEF&CC under Section 2 of the Forest (Conservation) Act and the National Board of Wildlife, if the area falls in the protected area notifed under the provisions of the Wildlife Protection Act, 1972. Referring to paragraph 8 of the said communication, Mr. Khambata submits that although Railway projects passing through the AVK 26 notifed Ecosensitive Zone or located within 10 km radius of Wildlife Sanctuary / National Parks and Tiger Reserves are not required to obtain wildlife clearance from the National Board of Wildlife as these projects do not need environment clearance, however, railway projects passing through the areas linking one protected area or Tiger Reserve with another protected area or Tiger Reserve, diversion cannot be allowed for ecologically unsustainable use except in public interest with the approval of National Board of Wildlife on the advice of the National Tiger Conservation Authority.

44. Further, learned senior counsel relies upon the decision in the case of Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group[3], to submit that the Supreme Court has held that the principles of sustainable development are to be read into statutes unless excluded. Section 11 of the Railways Act does not expressly exclude environmental laws.

45. Given the above and in view of respondent no.5’s submissions tendered on November 26, 2022, Mr. Khambata reiterates that the provisions of the Railways Act cannot and do not override Article 21 of the Constitution of India and the afrmative action(s) undertaken thereunder. In this regard he relies on the last sentence of paragraph 41 of the judgment of the Supreme Court in Engineering Kamgar Union v. Electro Steels Castings Ltd & Anr[4], wherein the Supreme Court has held that “…A non obstante clause contained in a statute cannot override the provisions of the Constitution of India.”

46. Mr. Khambata also relies upon paragraph 83 (vi), (vii) and (viii) of the judgment in the case of Bombay Environmental Action Group (supra) and submits that since the destruction of mangroves ofends the fundamental rights of citizens under Article 21 of the Constitution of India and Article 21 cannot be overridden by any statute, let alone Section 11 of the Railways Act.

47. Mr. Khambata submits that even assuming whilst denying Section 11 of the Railways Act has an overriding efect over other laws, it cannot and does not override the rights guaranteed under Article 21 of the Constitution of India in view of the decisions of this Court in Mr. Robin Jaisinghani v. Mumbai Metro Rail Corporation[5]. According to him, this aspect has also been noticed in the decision of a coordinate Bench of this Court in Ganv Bhavancho Ekvott & Others v. South Western Railways & Others[6]. He contended that paragraph 80 of this decision, has afrmed this position in law that Section 11 cannot override Article 21 rights.

48. Referring to the decision in the case of Ganv Bhavancho Ekvott (supra) where this Court has, while holding that the respondents South Western Railway and Rail Vikas Nigam Limited are not under any statutory compulsion to obtain environmental clearance from the Goa Coastal Zone Management Authority or any other permission from any other authority, in view of Section 11 of the Railways Act, learned senior counsel submits that even though Section 11 of the Railways Act would have an overriding efect over other laws that cannot take away the rights guaranteed under Article 21

5 Writ Petition (L) No. 2107 of 2017 6 PILWP NO.15-2021 Judgment dated 3.8.2022 of High Court of Bombay at Goa AVK 28 of the Constitution of India. He submits that in any event since the said decision dealt with paragraph 3 of the CRZ Notifcation whereas in the present case we are concerned with paragraph, the aforesaid decision would not be applicable in view of complete prohibition of any activity, except as prescribed in the CRZ Notifcation.

49. In view of the above, learned senior counsel submits that this Court be pleased to dismiss the present petition.

50. Mr. Anil Singh, learned Additional Solicitor General for the Union of India while supporting the prayer of the petitioner for permission to fell mangrove trees contended that in national interests and for greater good of the people, relief claimed in the writ petition ought to be granted. According to him, it cannot be gainsaid that the environment has to be protected for its preservation but at the same time development cannot be altogether stopped. There has to be harmony between the two competing interests and that is what is sought to be achieved by insisting on compliances of stringent conditions. He contends that the main contention raised by Mr. Khambata that no activity within CRZ-I is permissible is no longer res integra. Reference is made to the decision in Ganv Bhavancho Ekvott (supra) and it is contended that the issue raised herein is squarely answered by such decision; therefore, the same ought to be followed to overrule such contention. Insofar as compliance with the conditions imposed by the various authorities is concerned from time to time is concerned, it is assured by him that the same shall be complied with to the teeth and no efort will be spared to secure environmental interests while the Project work is taken to its conclusion maintaining all safeguards. AVK 29

51. The parties have been heard and the materials on record considered by us.

52. The concepts of public trusteeship/the public trust doctrine primarily rest on the principle that certain resources like air, sea, water and the forests have such great importance to the people as a whole that their preservation, protection and conservation would be the responsibility of the State such that these gifts of nature should be made available to everyone irrespective of their status in life. The doctrine enjoins upon the Government to protect the resources for enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The Supreme Court in the case of Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors.[7] has with respect to the “public trust doctrine” observed as under:- “82. In the case of M.C. Mehta vs. Kamal Nath, [(1997) 1 SCC 388], this Court dealt with the Public Trust Doctrine in great detail. The Court observed as under: “35. We are fully aware, that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities, who, under the pressures of the changing needs of an increasingly complex society, fnd it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this confict in any given case is for the legislature and not the court. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the 7 AIR 2006 Supreme Court 2038 AVK 30 natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts fnd it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."

83. Joseph L. Sax, Professor of Law, University of Michigan-proponent of the modern Public Trust Doctrine in an erudite article "Public Trust Doctrine in Natural Resource Law: Efective Judicial Intervention", Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under: “The source of modern public trust law is found in a concept that received much attention in Roman and English law - the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fshing, were sought to be presented for the beneft of the public; accordingly; property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways and running water - ‘perpetual use was dedicated to the public’, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that pubic, rights could be legally asserted against a recalcitrant government."

53. Similarly, the concept of “sustainable development” has been a matter of several judicial expositions by the Supreme Court. It has been consistently observed that while economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation, at the same time the necessity to preserve AVK 31 ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. The concept of sustainable development has been aptly described in Paragraph 4 of the Rio Declaration on environment and development of 1992 held in Rio de Janeiro, wherein in Principle 4, it has been agreed that in order to achieve sustainable development, environmental protection shall constitute an integral part of development process and the same cannot be considered in isolation of it. The same principle was articulated in the 1997 "Earth Summit". The following Paragraphs 96, 99 and 100 from the decision in the case of Karnataka Industrial Areas Development Board (supra) are apt and are quoted as under: - ‘96. In the Rio Conference of 1992 great concern has been shown about sustainable development. ‘Sustainable development’ means ‘a development which can be sustained by nature with or without mitigation’. In other words, it is to maintain delicate balance between industrialization and ecology. While development of industry is essential for the growth of economy, at the same time, the environment and the ecosystem are required to be protected. The pollution created as a consequence of development must not exceed the carrying capacity of ecosystem. The Courts in various judgments have developed the basic and essential features of sustainable development. In order to protect sustainable development, it is necessary to implement and enforce some of its main components and ingredients such as - Precautionary Principle, Polluter Pays and Public Trust Doctrine. We can trace foundation of these ingredients in number of judgments AVK 32 delivered by this Court and the High Courts after the Rio Conference, 1992.

99. Sustainable use of natural resources should essentially be based on maintaining a balance between development and ecosystem. Coordinated eforts of all concerned would be required to solve the problem of ecological crisis and pollution. Unless we adopt an approach of sustainable use, the problem of environmental degradation cannot be solved.

100. The concept of sustainable development was propounded by the ‘World Commission on Environment and Development’, which very aptly and comprehensively defned it as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’. Survival of mankind depends on following the said defnition in letter and spirit.”

54. This Court on 17th September 2018 in Public Interest Litigation No.87 of 2006 in the case of Bombay Environmental Action Group (supra), authored by Hon’ble Shri Justice Abhay S. Oka, (as His Lordship then was), after invoking the public trust doctrine in respect of mangroves, in Paragraph 83(viii) has observed that the State is duty bound to protect and preserve mangroves and they cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court fnds it necessary for the public good or public interest.

55. After extensively analysing the provisions of the Forest Conservation Act, Environment Protection Act, 1986 as well as the concept of ‘forest’ pursuant to the decision of the Apex Court in the case of T.N. Godavarman Thirumulkpad v. Union of India & Ors.8, as well as the decision of the Nagpur High Court in the case of Laxman Ichharam vs. Divisional

AVK 33 Forest[9], this Court observed that a land covered by mangroves would be a ‘forest’. Further, after considering the “Coastal Regulation Zone” (CRZ) notifcations of 1991, 2001 and various orders by the Government of India thereunder, it was observed that all mangroves fall in CRZ-I irrespective of its area and in case the said area is one thousand square meter or more, even a bufer zone of ffty meters along the said area shall be a part of CRZ-I, where no new construction shall be permitted except as mentioned in the CRZ Regulations. Highlighting the fundamental duty of the State and the citizens to protect and improve the environment and to safeguard the forests and the wildlife of the country as enshrined in Article 48-A as well as 51-A (g) of the Constitution of India and taking into account the public trust doctrine, precautionary principle, the RAMSAR Convention and Article 21 of the Constitution of India, this Court observed that mangrove eco systems play a vital role in human life and if a citizen is to lead a meaningful life as contemplated by Article 21 of the Constitution of India, the mangroves will have to be preserved and protected and the destruction of the mangroves and the failure of the State to take steps for its restoration will amount to violation of the fundamental rights guaranteed by Article 21 of the Constitution. This Court, accordingly, directed a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra. In Paragraph No.83, a summary of all important fndings was set out. The said Paragraph 83 is quoted as under: - “SUMMARY OF IMPORTANT FINDINGS

83 The summary of some of the important conclusions read thus: 9 AIR 1953 Nagpur 51 AVK 34

(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 notifcations of 1991 and 2011;

(iv) In 1991 CRZ notifcation, 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 bufer zone abutting it was also included in CRZ-I. By order dated 9th January 2000, it was provided that 50 meter bufer zone will not be required, provided a road abutting the mangroves was constructed prior to February 1991. Under the 2011 notifcation, all mangroves lands fall in CRZ-I and in case the area of such land is 1000 square meters or more, even a bufer zone of 50 meters along the said area shall be a part of CRZ-I. But, the bufer 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 notifcations 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 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 notifcation 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 bufer zone, it will attract penal provision of Section 15 of the said Act of 1986. AVK 35

(vi) The destruction of mangroves ofends 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, 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 fnds 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”.

56. The following directions in the operative part of the order in paragraph 85-A are relevant and are quoted as under:- “(A) The following directions issued in the interim order dated 6th October 2005 shall continue to operate as fnal 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 in CRZ-I AVK 36 as per both the CRZ notifcations of 1991 and 2011. In case of all mangrove areas of 1000 sq. meter or more, a bufer zone of 50 meters along the mangroves will also be a part of CRZ-I area. Though bufer 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 specifed in clause III above;

(V) The State of Maharashtra is directed to fle in this

Court and furnish to the petitioner copies of the maps referred to in paragraph 10 of the afdavit dated 16th August, 2005, fled 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;”

57. Although Mr. Anil Singh has brought to our notice the orders dated 26th April, 2019, 1st July, 2019, 9th September, 2022 of the Supreme Court arising out of the aforesaid PIL NO. 87 of 2006 to submit that directions given in the said decision qua the petitioners therein have been stayed, we observe that the order dated 9th September, 2022 simpliciter re-lists the matters in February, 2023 meaning thereby that, the aforesaid directions would therefore continue to apply to projects involving mangroves. In any event we observe that the stay granted earlier was only qua the petitioners in M/s. Blue Star Realtors Pvt. Ltd. v. The Bombay Environmental Action Group & Ors.10 therein.

58. The aforesaid decision casts a duty on this Court to protect and preserve and invests it with discretion where any mangroves are sought to be destructed for private, commercial or any other use and unless the Court fnds it necessary for the public good or public interest, the same ought not to be permitted. The above decision as set out above has also taken into consideration the CRZ regulations 10 SLP (Civil) Diary No(s).6388 of 2019 AVK 37 and the Environment Protection Act as well as the rights of the citizens under Article 21 of the Constitution of India with respect to the protection and preservation of mangroves in general and not just the areas permitted under paragraph 8. The said paragraph (no. 8) not specifcally referring to railways does not mean that this Court cannot exercise its discretion where cutting of mangroves is involved for public interest or public good. Mr. Khambata’s argument, therefore, that the decision of this Court in PIL 87 of 2006 is an additional safeguard in view of the public trust doctrine and that the writ petition is not maintainable as railways is not mentioned as an exception in the said paragraph would in our view be completely misplaced.

59. Moreover, the decision of this Court in the case of Ganv Bhavancho Ekvott (supra) has also observed that although a draft notifcation for prescribing environmental clearance for providing railway lines was issued in the year 1992, the same has not seen the light of the day. Further, the notifcation issued by the MOEF on 14th September, 2006 does not require a prior environmental clearance to be obtained by the railway administration. Paragraphs 59 to 61 of said the decision are relevant in this regard.

60. While it cannot be disputed that the CRZ Regulations are enforceable in terms of the Environment Protection Act, however keeping in mind that the Railways Act starts with a non obstante clause, as discussed above, it cannot be said to be subject to the Environment Protection Act, as argued by Mr. Khambata, since the intention of the Legislature is quite clear in this regard when considered in the light of the fact that when the Parliament enacted the Railways Act in 1989, the AVK 38 Environment Protection Act was already in place and the Parliament was well aware of what it had enacted a couple of years before.

61. Further, Mr. Khambata, has also sought to make out a case that Section 11 of the Railways Act though containing a non-obstante provision, it cannot override the Environment Protection Act or Article 21 of the Constitution of India.

62. In our view, the decision of this Court in the case of Ganv Bhavancho Ekvott (supra), addresses these very concerns raised by learned senior counsel where this Court has, after exhaustively dealing with various aspects in relation to railway projects as well as the said provision of Section 11 of the Railways Act, observed as under:- “53. Bearing these principles in mind, we now proceed to consider the impact of the non-obstante clause in section 11 of the Railways Act on the other enactments, referred to in section 11 either specifcally or generally. We remind ourselves of the settled law that attention should be confned to what is necessary for a particular case. For the purposes of the present case, to paraphrase section 11 and its relevant clauses, the same must be read as mandating that in spite of any provisions contained in any other law for the time being in force except the provisions of the Railways Act and the provisions of any law in relation to acquisition of land for public purpose or for companies, a railway administration may, for the purposes of constructing or maintaining a railway,

(i) make or construct in or upon, across, under or over any lands such temporary or permanent inclined-planes, bridges, tunnels, culverts, lines of railways, etc. [clause (a)];

(ii) alter the course of any rivers, brooks, streams or other water courses, for the purpose of constructing and maintaining tunnels, bridges, passages or other works over or under them [clause (b)]; AVK 39

(iii) erect and construct such houses, warehouses, ofces and other buildings, etc., and other works and conveniences as the railway administration thinks proper [clause (d)];

(iv) alter, repair or discontinue such buildings, works and conveniences [clause (e)]; and

(v) do all other acts necessary for making, maintaining altering or repairing and using the railway [clause (h)].

54. Given these wide ranging powers conferred by the Parliament on a railway administration and bearing in mind the impact that the non-obstante clause found at the beginning of section 11 of the Railways Act has on other enactments, barring only the Railways Act and land acquisition laws for a public purpose, it is too late in the day for the petitioners to contend that notwithstanding the presence of section 11 of the Railways Act in the statute book conferring such wide ranging powers with overriding efect, the railway authorities, i.e., SWR and RVNL, are required to obtain building permissions from the village panchayat under the Panchayat Act or other permissions under the other stated State legislation. If we were to accept the contention of the petitioners, we would either have to totally ignore the provisions contained in section 11 or to render section 11 completely inefective without even outlawing it. Indeed, this is not a permissible course of action. Qua the stated State legislation is concerned, we have no option but to hold that the same must yield to section 11 of the Railways Act when a railway administration proceeds to execute the work of construction or maintenance of a railway in accordance with the provisions of the Railways Act and the laws relating to land acquisition.

55. The decision in Village Panchayat (Calangute) (supra) relied on by Ms. Collasso and Mr. Rodrigues has been perused by us. The Supreme Court was seized of the question whether a village panchayat can challenge an order passed by the designated ofcer exercising the power of an appellate authority qua the action/decision/resolution of the village panchayat in a a petition under Article 226/227 of the Constitution. Observations made by the Court in answering such a question may not provide the guiding light for deciding AVK 40 the contentious issue arising in this case. The said decision, therefore, is distinguishable.

56. The contention of Ms. Collasso that section 11 does not expressly grant exemption to a railway administration from obtaining permissions of various authorities under the stated State legislation or the GCZMA under the EP Act, is too tenuous to commend acceptance. The exemption for a railway administration to execute the works of construction and maintenance of a railway is conferred by the non-obstante clause which has an overriding efect over all other laws except the provisions of the Railways Act and the laws relating to land acquisition for public purpose, if execution is undertaken by a Government railway. The contention, therefore, stands rejected.

57. Insofar as the contention raised by Ms. Collasso that the railway authorities were required to obtain prior environmental clearance from the GCZMA is concerned, the same is equally tenuous. Paragraph 3 of the 2011 CRZ Notifcation lays down the activities which are prohibited within the CRZ area. None of the subparagraphs of paragraph 3 refer to a railway. We may, in this connection, consider and apply the legal maxim expressio unius est exclusio alterius. This maxim, embodying the principle of implied exclusion, means that expression of one is the exclusion of another. Where the law specifes certain activities to be prohibited, an inference may be drawn that activities other than those prohibited are permitted. Although the courts must guard against indiscriminate application of this maxim, we can safely infer not on the basis of what is provided in paragraph 3 but also in view of the non-obstante clause in section 11 of the Railways Act, that whatever has not been included in paragraph 3 of the 2011 CRZ notifcation has, by implication, been excluded.

58. Reliance placed by Mr. Pangam on the decision of the coordinate Bench in Municipal Corporation of Greater Mumbai (supra) is apt. Reading the decision, we fnd that the bench took into consideration various decisions of the vintage era interpreting section 7 of the Railways Act, 1890, which is the present era section 11, while holding that licences and fees for putting up hoardings by the concerned railways is not required under the MMC Act. We have not the slightest hesitation in recording our AVK 41 agreement with what has been laid down in such decision on interpretation of section 11.

59. While also concurring with the decisions in Goa Foundation (supra) and Subhas Dutta (supra), we cannot fail to note a particular argument that was advanced before the coordinate Bench in Goa Foundation (supra) by learned counsel for the petitioners. It was contended that the Ministry of Environment had issued a draft notifcation inviting objections, since the Government of India had intended to prescribe that environment clearance from such Government would be required for providing railway lines. This was as far back as in April

1992. If indeed the Government of India had issued a draft notifcation with a particular intention and had not carried the process further, it stands to reason that the said Government went back on its intention to prescribe environmental clearance to be obtained for providing railway lines. That over the last three decades no such requirement has been spelt out in accordance with law is in itself a pointer to the fact that the Government of India does not intend that environmental clearance is to be obtained for the purposes mentioned in section 11 of the Railways Act.

60. It would also appear from the notifcation issued by the Ministry of Environment and Forests on 14th September 2006 that the same also does not require a prior environmental clearance to be obtained by a railway administration. The schedule to the notifcation, it has been brought to our notice by Mr. Pangam, refers to a whole lot of activities that require a prior clearance to be obtained before the same are undertaken by the specifed authorities but the Railways is conspicuously absent. We are inclined to think that if at all an environmental clearance for laying railway lines was required in terms of the notifcation issued by the concerned Ministry, the same would defnitely have been incorporated therein. The exclusion is signifcant and has to be borne in mind while deciding a claim of the present nature.

61. We are, thus, of the considered opinion that if indeed the legislature intended laying of a railway line or other incidental activities to be a prohibited activity within the EP Act, a fortiori, the 2011 CRZ notifcation or even under the notifcation issued by the Ministry of AVK 42 Environment and Forests on 14th September 2006, such a prohibition could have been included but only after amendment of the Railways Act and not without. Parliament is presumed to have known what the existing state of law is, when a new law is in course of being enacted by it and if a legislation is enacted giving it overriding efect over the law prior in point of time, the newly enacted law has to be given efect no matter what the consequences would be.

62. We have noted above that despite section 11 beginning with a non-obstante clause, section 11 is subject to the other provisions of the Railways Act and the laws relating to land acquisition and it does not override such other provisions/laws. In such view of the matter, the petitioners could have succeeded in their plea of stalling the project if it could be shown that provisions relating to land acquisition have not been followed which is contrary to public interest. Mr. Agha has shown us from the reply afdavit of RVNL how the provisions contained in Chapter IV-A of the Railways Act have been adhered to while acquiring land and making payment to the land losers. This version of RVNL, which is undisputed, is sufcient for us to hold that the railway authorities, i.e., SWR and RVNL, have not bulldozed the rights of land owners and have acted strictly within the confnes of section 11. It has also not been shown that the land losers are aggrieved by the compensation paid to them. These are all relevant considerations which cannot be overlooked when a project of this magnitude is under way.

63. Importantly, the petitioners have neither challenged section 11 of the Railways Act nor the ‘special railway project’. Their grievance is confned to non-obtention of permissions from the authorities under the stated State legislation and environmental clearance under the 2011 CRZ notifcation.

64. As has been held above, permissions were not required to be obtained and, therefore, we see no reason to hold that the provisions of the 2011 CRZ Notifcation were required to be followed by the railway authorities and/or that by not following the same, they have indulged in activities which ought to be held illegal, arbitrary and without jurisdiction by this Court.” AVK 43 (emphasis supplied) We share the views expressed by the coordinate Bench in Ganv Bhavancho Ekvott (supra) and adopt the same for holding the contentions advanced by Mr. Khambata as untenable.

63. While Mr. Khambata was arguing that Section 11 of the Railways Act cannot be read and construed in a manner so as to render nugatory the dicta of this Court in Bombay Environmental Action Group (supra) in relation to destruction of mangroves amounting to abrogation of rights protected by Article 21 of the Constitution, we had enquired as to whether the respondent no.5 in any proceedings had questioned the vires of Section 11, to which the answer was in the negative. We had then referred to him paragraph 14 of the judgment of the Supreme Court in the case of Martin Burn Ltd v Corporation of Calcutta11, wherein the Court in course of declining to accept a particular line of reasoning adopted in the order under challenge and holding it as unsupportable had the occasion to rule that ”A result fowing from a statutory provision is never an evil. A court has no power to ignore a provision to relieve what is considers a distress resulting from its operation. A statute must of course be given efect to whether a court likes the result or not. When the High Court found that Section … had been attracted to the case, it had no power to set the provision at naught.”

64. When called upon to respond, Mr. Khambata submitted that the said observation does not in any manner dilute the submissions of the Respondent No.5. He contended that the

AVK 44 non-obstante clause contained in Section 11 of the Railways Act cannot and does not exclude the Environment Protection Act, the CRZ notifcation or the Forest (Conservation) Act. Since there is no confict between the two and the legislations are not in the same feld, the environment laws are in fact to be read into the Railways Act and Section 11 of the Railways Act is subject to the provisions of the Environment Protection Act.

65. Pertinently, the relevant observation in Martin Burn Ltd (supra) of the Courts having no authority not to direct enforcement of the law because of the hardship or inconvenience that its operation could have on a subject has been considered and approved by a Constitution Bench of the Supreme Court in Indore Development Authority vs. Manoharlal12 by referring to the legal maxim “dura lex sed lex” meaning that “the law is hard but it is the law”.

66. Upon due consideration of the response of Mr. Khambata, captured in paragraph 64 above, we are afraid we cannot agree with him.

67. Having regard to the plain and clear terms in which Section 11 of the Railways Act is worded starting with a nonobstante clause and with emphasis that it shall be subject only to the other provisions of the Railways Act and the laws relating to land acquisition for a public purpose, the contention appears to us to be misconceived. Although we cannot disagree with the proposition of law that a nonobstante clause contained in a statute cannot override the provisions of the supreme law of the land, i.e., the Constitution of India, we fnd no reason to hold that the non-obstante

AVK 45 clause in Section 11 of the Railways Act overrides Article 21 or any other provision of the Constitution. A statute is presumed to be intra vires the Constitution, unless declared to the contrary. Here or elsewhere, the vires of Section 11 has never been challenged. Section 11 cannot be construed in a manner that it loses its efcacy. We, therefore, cannot agree with Mr. Khambata that Section 11, if given full efect in the manner it has been read and construed in Ganv Bhavancho Ekvott (supra) notwithstanding the Environment Protection Act, the fundamental rights of any subject would be abrogated. As has been held in Martin Burn Ltd (supra) and Indore Development Authority (supra), the law has to be given efect no matter whether the Court likes the result or not.

68. We have noted that provisions of Section 11 of the Railways Act did not arise for consideration in the decisions in Gulf Goan Hotels Company Ltd (supra) and S. Jagannath (supra), relied on by Mr. Khambata. Law is well settled that a decision is an authority for what it actually decides and not what logically follows from it. These decisions, therefore, do not provide adequate guidance to us to hold that the environmental laws would have overriding efect over the Raiways Act.

69. One other submission advanced by Mr. Khambata, in course of the exchanges in Court, was that Section 11 does not use the word “forest” and, therefore, it cannot have applicability insofar as mangroves, which have been declared to be forests, is concerned. Section 2 of the Forest (Conservation) Act, 1980 imposes restriction on de-reservation of forest or use of forest land for non-forest purpose. The expression “forest land” therein is signifcant. A “forest” has to AVK 46 exist on “land”. Now, if one reads Section 11 of the Railways Act, it confers power, authority and competence on a railway administration, for the purposes of constructing or maintaining a railway, to make or construct in or upon, across, under or over any lands (emphasis supplied). In the context the word “any” has been used in clause (a), it is clear that it has been used in the widest sense extending from one to all and admits of no exception. Also, power having been conferred by clause (b) on a railway administration to even change the course of a river, brook, steam, or other water courses, read in the light of “do all other acts necessary” in clause (h), leaves no manner of doubt with regard to the intention the Parliament had in mind while enacting Section 11. We, thus, fnd no reason to accept Mr. Khambata’s argument on the point under consideration.

70. With respect to Mr. Khambata’s reliance on the MoEF&CC’s communication dated 5th December 2017 to the States and Union Territories, at the outset, we observe that the communication is based on a legal opinion, which is neither a statute nor a binding precedent. Paragraphs 4 and 7 of the said communication are usefully quoted as under: “4 It is informed that the matter has been examined in the Ministry and the legal opinion of the Ministry of Law and Justice (MoLJ) was also obtained on the applicability of the Forest (Conservation) Act, 1980 on the use of forest land falling in the Right of Way (ROW) of the Railway for construction of new railway line and conversion of gauge from existing Meter Gauge (MG) to Broad Gauge (BG) and applicability of provisions of the Railway Act, 1989. The MoLJ has opined on 28.09.2017 that “though the railway administration has the power under Section 11(a) of the Act of 1989, to construct or maintain a railway on any land, but it appears that for so assignment of forest land (other than the railway AVK 47 land) falling in the ROW to the railway by way of lease or otherwise may attract the provisions of the Act of 1980.” “7 The Ministry is of considered opinion that the railways has the right of ways for construction and maintenance of railways lines for public welfare and may acquire land from the owners of the land but this right is also subject to the other statutory provisions and regulations. If a forest land cannot be dispensed with for the railway track in view of the conservation of forest and wildlife, then the Railway cannot acquire forest land under Section 11 of the Railway Act, 1980 without the prior approval under FC Act, 1980. The State Government also cannot assign and allot forest land, which is not the property of the Railways, to Railways without the prior approval of the Ministry under Section 2 of the FC Act, 1980 and the NBWL if the area falls in the protected area notifed under the provisions of the Wildlife (Protection) Act, 1972. However, any actual diversion of forest land for nonforestry purpose already done before 25.10.1980 will not attract the provisions of FC Act and this position was clarifed by the Ministry vide guideline dated 13.10.2016 though clearance under WPA will be required if Protected areas are involved.”

71. Moreover, paragraph 8 of the said communication clearly states that railway projects passing through the notifed Ecosensitive Zone or located within 10 km radius of Wildlife Sanctuary / National Parks and Tiger Reserve are not required to obtain any clearance, as these projects do not need any environment clearance. Paragraph 8 of the said communication is also usefully quoted as under: “8 Railway projects passing through the notifed Ecosensitive Zone or located within 10 km. radius of Wildlife Sanctuary (WLS) / National Parks (NP) and Tiger Reserve (TR) are not required to obtain wildlife clearance from National Board of Wildlife as these projects do not need Environment Clearance. However, railway projects passing through the areas linking one protected area or Tiger Reserve with another protected area or Tiger Reserve diversion cannot be allowed for AVK 48 ecologically unsustainable use, except in public interest with the approval of NBWL on the advice of the National Tiger Conservation Authority as provided for under Section 38(O)(1)(g) of Wildlife (Protection) Act, 1972.”

71. Further, as has been clearly set out in the Table of Clearances above, which are not disputed by Mr. Khambata, the clearances under the Wildlife Protection Act and under the Forest Conservation Act including the “in-principle” as well as the “fnal approval” have already been obtained, and as such, this objection appears to be misplaced, particularly in the light of the decision in the case of Ganv Bhavancho Ekvott & Others v South Western Railways & Others13 where a coordinate Bench of this Court has already observed that Section 11 of the Railway Act is an overriding provision.

72. Section 11 of the Railways Act as observed is very wide permitting for the purpose of maintaining a railway, any construction, alteration in the course of any rivers, streams, water courses diverting or altering the course of any rivers, streams or water courses or roads, streets or ways or raise or sink their level in order to carry them more conveniently over or under or by the side of the railway and do all other acts for making, maintaining, altering or repairing and using the railway. Further, this court in the case of The Goa Foundation vs. Konkan Railway Corporation14 held that clearance under the Environment Protection Act is not required even though the railway line passes over rivers, creeks etc.

73. It is also pertinent to note that the State Government, being the respondent no.1, has fled an afdavit dated 25th 13 PILWP NO.15-2021 Judgment dated 3.8.2022 of High Court of Bombay Bench at Goa

AVK 49 November 2022 clearly stating that all the requirements and clearances required to be given by the State Government (Forest Department) have been given for the Mumbai – Ahmedabad High Speed Rail Project and nothing is pending with the State Government except the permission for the mangroves area which will be given in due course, once the petitioner gets the permission from this court. The said afdavit also records that both Stage I and Stage II clearances have been received from the respondent no.4 MoEF&CC. Mr. Shastri, learned AGP for Respondent No.1 and 3 has accordingly made his submissions. Ms. Bagve, learned counsel for the Respondent No.2, MCZMA relies upon the permissions granted by the MCZMA.

74. It has also been stated in the said afdavit that in respect of 129.71 hectares of forest land for Mumbai – Ahmedabad High Speed Rail Project, the Conservator of Forests has granted permission on 1st August 2022 for commencement of work regarding diversion of forest land for the said project.

75. In respect of diversion of 22.6944 hectares of forest land for reorientation/realignment of existing 400 kv and 220 kv transmission lines within the alignment of the said project, the MoEF&CC, Government of India has accorded in-principle Stage I approval on 10th April 2019 subject to certain conditions and on compliance of such conditions, the Chief Conservator of Forests has granted working permission on 17th November 2022 to Power Grid Corporation of India Ltd.

76. Further, for diversion of 6.783 hectares of forest land for shifting Padghe Vasai transmission line towers within the AVK 50 alignment of Mumbai – Ahmedabad High Speed Railway, the Government of Maharashtra has, on 19th October 2022, submitted a proposal to MoEF&CC.

77. With respect to the Wildlife clearance for the said project, the State Board of Wildlife, Maharashtra in its 14th Meeting dated 5th December 2018 has accorded approval on the condition that the petitioner deposits 2% of the costs of the project passing through protected area and deemed Eco- Sensitive Zone, amounting to Rs.83.02 crores for necessary mitigation measures. However, the National Board for Wildlife in its 66th Meeting held on 31st December 2001, has directed the user agency to deposit 2% of the costs of the project passing through the protected area and its fnally notifed Eco- Sensitive Zone which amounts to Rs.9.95 crores, which amount as noted above has already been deposited by petitioner.

78. Going by the decision of Ganv Bhavancho Ekvott (supra), the Project for laying down of railway lines in terms of the provisions contained in Section 11 of the Railways Act, in our view, would not require any permission of this Court. However, since mangroves have been held to be forests and that the decision and the directions in PIL No.87 of 2006 would apply to all projects where mangroves are involved, we need to satisfy ourselves that the mangrove trees are proposed to be felled/cut for sub-serving national interest and public good. Given the benefts the Project is likely to ofer to the public at large by way of reduction of travel time together with reduction of carbon footprint, which is intended for the protection of environment, we are satisfed that the condition subject to which permission ought to be granted, as AVK 51 enunciated in paragraph 83 (viii) of the decision in Bombay Environmental Action Group (supra) stands fulflled and that this is a ft case for exercise of discretion in favour of the petitioner.

79. As regards Mr. Khambata’s objection with respect to the shifting of Thane and Virar stations is concerned, as noted at item 5 of the Table quoted above, the Thane Station Building has already been shifted out of the mangrove forest and the Virar Station has also been shifted out of the reserve forest. In fact the learned counsel for the petitioner has also placed on record the maps indicating the same with which we are satisfed. Therefore Mr. Khambata’s concern with respect to the same also should be allayed.

80. We further note from the Afdavits fled on behalf of the petitioner and the State that a comprehensive mangrove conservation management plan has already been put in place and that the petitioner has not only undertaken to plant 2,67,335 mangrove saplings but also deposited an amount of Rs.9.95 crores on 15th July 2022 as noted above.

81. It would be pertinent here to briefy refer to the decision of the Supreme Court in T.N. Godavarman Thirumulpad (supra), where the Supreme Court observed that the forest policy had a statutory favour and the non-fulfllment of the principal aim of the policy which is environmental stability and maintenance of ecological balance would be violative of Articles 14 and 21 of the Constitution. The Supreme Court emphasized compulsory aforestation and a need for a systematic approach so as to balance economic development and environmental protection. It held that in the ultimate AVK 52 analysis, economic development at the cost of degradation of environment and depreciation of forest cover would be counter productive and that there was an absolute need to take all precautionary measures when forest lands were sought to be diverted for non-forest use.

82. Considering that this project will not only cover the distance of 508.17 kms within a period of two and a half hours, instead of presently six and a half hours and be a convenio par excellence for the rail passengers of the two cities and the two States, increasing connectivity between the busy trade corridor of Ahmedabad and Mumbai which will increase the economic productivity, running on electricity not only saving valuable cost on conventional fuel but also generating employment of about twenty thousand people in the construction phase and with an approximate of four thousand people during the operations and maintenance and about sixteen thousand indirect jobs expected to be generated during the Operations and Maintenance phase, by undertaking to plant over 1,10,000 mangrove saplings in between the piers to be installed in the mangrove area along with other safeguards as set out in the permissions/approvals set out in the Table above, in our view, would strike a balance between development and protection and conservation of environment. In our view, therefore, the need for sustainable development, where both - the needs of development and economy on the one hand and protection and conservation of the environment on the other are balanced, would also be satisfed. The elucidation of the public trust doctrine and sustainable development by the Supreme Court in the case of Karnataka AVK 53 Industrial Areas Development Board (supra) supports this view of ours.

83. Further, the decision of this Court in the case of Bombay Environmental Action Group (supra) not only highlights these principles, but also reinforces the trust that the public reposes in the Courts, when in paragraph 83 (viii), it observes that the mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court fnds it necessary for the public good or public interest. The Courts therefore need to be fully aware and conscious of its responsibility as a guardian of public good and public interest.

84. This Court in a number of cases involving public corporations including the Mumbai Metropolitan Region Development Authority and Mumbai Maritime Board, where similar projects of public importance are involved, has granted orders directing the relevant authorities to permit execution of the projects of bona fde public utility, pursuant to the public trust doctrine, subject to petitioners therein strictly complying with the conditions imposed in the permissions granted by the respondents / authorities. In fact, many of the projects where this Court has permitted were at the stage of “in principle” approval, whereas this Project has already been granted the fnal approval by the MOEF&CC which is even better.

85. Further, in our view, considering the advantages set out above, the Mumbai-Ahmedabad High Speed Rail Project is in public interest and necessary for public good and a project of bona fde public utility. AVK 54

86. Having considered the aforesaid submissions and the above discussion, it would appear to us that if the petitioner is put to terms by way of an undertaking for compulsory aforestation as well as an undertaking to comply with the conditions of the permissions/clearances already granted as well as to be granted and more particularly in terms of the inprinciple approval dated 29th March 2019 as well as the fnal approval dated 18th August 2022, that should adequately meet the requirements of sustainable development discussed above.

87. Considering that similar directions have been previously issued by this Court in appropriate cases where the projects have been sought to be executed for public good or in bona fde public interest, although strictly not necessary in view of our discussion above, we deem it appropriate to give our assent to the execution of the project, subject to the undertakings from the petitioner as discussed above.

88. We, accordingly, direct the Respondent authorities including the MCZMA to permit the petitioner to execute the Mumbai-Ahmedabad High Speed Rail Project including in the area falling in the mangrove area and in the Bufer Zone in view of the public importance of the Project, subject to the following:

(i) The petitioner is directed to comply with all the conditions imposed in the clearances/permissions granted by the Respondent authorities;

(ii) A responsible ofcer of the petitioner fles an undertaking before this Court within a period of 10 days of the uploading of this order binding the petitioner (a) that the petitioner will undertake compensatory plantation of 110000 mangrove saplings, (b) shall strictly AVK 55 comply with the conditions as imposed in the permissions/clearances granted by the various authorities including the MoEF and CC, MCZMA, Chief Conservator of Forests (Mangroves Cell), Forest Department and other authorities that have granted permissions/clearances, and (c) that the petitioner will obtain any further approvals / permissions that may be necessary for executing the Project and to comply with the conditions therein.

89. The writ petition, accordingly, stands allowed on the above terms. No costs.

90. In the light of the disposal of the writ petition, the interim application does not survive and stands disposed of. (ABHAY AHUJA, J.) (CHIEF JUSTICE) LATER: Ms. Shah, learned advocate for the respondent no. 5 prays for stay of the judgment and order. The prayer is considered and refused. (ABHAY AHUJA, J.) (CHIEF JUSTICE) AVK 56