Maharashtra Maritime Board v. Union of India

8. Thereafter, the State Environment Impact Assessment Authority (for short ‘SEIAA’) considered the petitioner’s proposal in its 202nd meeting held on 20 July 2020 and approved the same subject to compliance of special condition no.III, as imposed by the SEIAA, requiring a prior leave of this Court be obtained before the Petitioner commences the project.

9. The petitioner has accordingly approached this Court by the present petition not only for the reason that the clearances as granted by the MCZMA and the SEIAA requiring the petitioner to approach this Court, but also in view of the specific observations and the directions of this Court in BEAG’s case as noted above. The petitioner in supporting its case has pointed out eight orders passed by this Court in various proceedings, wherein permissions have been granted by this Court to execute projects of bonafide public utility, which are inter-alia for proposed ferry jetty services at Borivali and Gorai in Mumbai; proposed passenger jetty services at Ghodbunder, District-Thane; proposed Roll- On/Roll Of (“RO-RO”) jetty services at Manori; proposed passenger jetty and allied facilities at Belapur, Navi Mumbai; for bye-pass bridge at Uran; public works for upgradation work of design, fabrication, installation and commissioning of heavy duty back rake type mechanical screening for Irla Nalla at Irla storm water pumping station in K/West Ward, for fisheries facilities located at Diwalegaon, Belapur, District-Thane, for proposed boat landing jetty at Nhava and seawalls of Gharapuri and Panje Villages, for 400 KV Kharghar Vikhroli Transmission Line.

10. Mr. Mone, learned counsel for the petitioner, would submit that as observed by the MCZMA in its decision as noted above, there would not be any destruction of mangroves in the execution of the proposed project of the petitioner. He has drawn the Court’s attention to the averments as made in the petition pointing out the need and importance of the said project, on which, there appears to be no serious dispute by the State Government. Mr. Mone has submitted that considering the provisions of clauses 3(iv)(a), 4(i)(f), and 8(i)(I)(ii)(b) of the CRZ notification 2011, the construction of a jetty as proposed, is a permissible activity.

11. On behalf of the State Government, the Divisional Forest Officer, Mumbai Mangrove Conservation Unit, has filed a reply affidavit supporting the petitioner’s case that the proposed project would be developed as an important public project involving an alternative environment friendly public transport system, which would ease the traffic congestion and improve environmental pollution as also promote tourism in the nearby area. It is stated that the site of the proposed jetty is partly falling within the 50 meter buffer zone from the nonnotified mangrove area. It is also stated that the construction of proposed jetty falls within the tidal area and not within the mangrove area and hence does not involve cutting of mangroves. It also supports the case of the petitioner that as per paragraph 4 (i) (f) of CRZ Notification 2011, the construction of jetty is permissible activity within the CRZ I area. The reply affidavit confirms the Petitioner’s case that the proposed project is situated within 50 meters buffer zone and there is no possibility of mangrove being affected during the construction of the project. It is stated that, however, it is necessary that the petitioner be directed to give an undertaking that during the construction of the jetty in question, no mangroves would be affected.

12. A reply affidavit has been filed by the BEAG which at the outset states that the BEAG is not opposed to the construction of a jetty. It is stated that the affidavit is however being filed for the limited purpose of drawing the attention of this Court to the relevant provisions of law and factual aspects, which according to the BEAG, would require consideration in the proceedings. The reply affidavit has set out the importance of mangroves as observed by this Court in BEAG’s case. The affidavit also refers to the State’s duty to undertake sustainable development, whereunder a balance between environmental protection and developmental activities is required to be brought about and maintained in strict adherence to the principles of sustainable development, which are held to be an integral part of the right to life. It is submitted that compliance by the petitioner and the other respondents with the relevant provisions of law, including the CRZ Notification 2011, is mandatory, before this Court’s imprimatur is accorded to the proposed project. In so contending, the BEAG has averred that the petition is not clear as to the size of the mangroves area near the project as also no particulars are provided in regard to the exact location of the proposed jetty as according to the BEAG, this has relevance in the context of the CRZ Notification. BEAG’s further case is to contend that there is failure on the part of the petitioner to comply with some legal requirements and conditions for protection of the environment. In this context, it is contended that CRZ clearance by the MCZMA and the SEIAA is subject to both, general and specific conditions and more particularly, three conditions as stipulated in paragraph 9 of the reply affidavit which according to the BEAG, do not appear to have been fulfilled by the petitioner. These conditions being, firstly, an NOC to be obtained by the petitioner from the Mangrove Cell; secondly, an NOC to be obtained by the petitioner from the Commissioner Fisheries, confirming that the proposed passenger jetty will not hamper the fishermen activities in the area and thirdly, the petitioner to ensure that design of the jetty shall take into account the tidal flow of creek water so that the natural flow of the creek water should not be disturbed. It is stated that in the absence of compliance of these conditions, relief ought not to be granted to the petitioner, as non compliance of these conditions is also likely to have an impact on the livelihood of the fishermen. The affidavit, therefore, urges that direction be issued to the petitioner to furnish all available details.

13. There is an additional affidavit filed on behalf of the BEAG stated to be for the limited purpose of bringing on record certain documents/ material, which according to the BEAG, establishes the fact that as opposed to the proposed location of the passenger jetty at Kelwa, District Palghar being set up by the petitioner, there exists a more environmental friendly and sustainable location, which ought to be considered and adopted by the petitioner. In this regard, it is stated that the site of the proposed project of the petitioner is within 150 meters from an existing well-developed solid T Fishermen’s jetty, having a length of 55 meters, width of 15 meters and built on an area of 825 sq.meters by the Fisheries Department. It is stated that as evident from the google map, there is ample open shore devoid of mangroves as an alternate for the construction of the proposed jetty. It is hence, suggested that for any public good, the project in fact, can be constructed/executed as an extension to the existing fishermen jetty, instead of a fresh construction in the buffer zone, more so since the area of the existing fishermen solid jetty as per the 114th Minutes of the Meeting of MCZMA held on 2nd and 3rd November 2016, is 55 meters by 15 meters.

14. As seen from the pleadings as adverted above, the principal opposition to the petition is by the BEAG. Having noted Mr.Mone’s submission on behalf of the petitioner, we now proceed to record the submissions as made by Mr.Jagtiani, learned Senior Advocate on behalf of the BEAG. Mr.Jagtiani has made the following submissions:- The construction of the jetty falling under CRZ-I is a prohibited activity which ought not to be permitted when the same is falling within the 50 meters of the buffer zone as no construction within the buffer zone is permissible. It is submitted that paragraph 3 of the 2011 Notification clearly refers as to which are the prohibited activities and which are the permissible activities. According to him, the construction of a jetty would be a prohibited activity. It is submitted that paragraph 7 of the 2011 Notification deals with the classification of CRZ areas for the purpose of conserving and protecting the coastal areas and marine waters, and it accordingly classifies the CRZ areas in the categories namely the areas which are ecologically sensitive and the geomorphological features which play a role in maintaining the integrity of the coast. It classifies CRZ-I (A)(a) which includes Mangroves. It provides that in case the mangrove area is more than 1000 sq mts, a buffer of 50 meters along the mangroves to be provided, it also includes the areas between low tide line and high tide lines. It is submitted that when paragraph 7(A)(a) prescribes buffer zone of 50 meters along the mangroves to be provided for, it is not a natural phenomena. Referring to paragraph 8 of the 2011 Notification, it is submitted that this regulation which lays down norms for regulation of activities permissible under the 2011 Notification, would also not include construction of a jetty as proposed by the petitioner, for the reason that as provided in Clause (i)(I)(ii), the area between LTL and HTL which are not ecologically sensitive, construction of jetty would be permissible. It is submitted that to carve out an exception within the areas that are ecologically sensitive as described in paragraph 7(i)A, which includes a buffer zone of 50 meteres as also the area between LTL and HITL, the project as planned by the petitioners would not be permissible. It is submitted that paragraph 8(i)(I)(ii) when it permits jetties in clause (b), it is so permitted only in the areas which are not ecologically sensitive. It is submitted that paragraph 8(i)(I)(i) deals with CRZ-I which provides that no construction shall be permitted in CRZ-I, except of the categories as specified in clauses (a) to (f) therein. It is submitted that clearly “jetty” is not a permissible activity in “CRZ-I” and as provided in (i)(I)(ii), it would be permissible in the areas between the LTL and HTL which are not ecologically sensitive and that too by providing necessary safety measures, while permitting the same. Mr.Jagtiani would hence submit that the petition be accordingly dismissed.

15. Mr.Mone, learned Counsel for the petitioner in rejoinder has opposed the contentions as urged by Mr.Jagtiani. Mr.Mone has also argued on various paragraphs of the 2011 Notification, to urge that if the interpretation as urged on behalf of the BEAG, is accepted, it would lead to an absurdity. He has pointed out various paragraphs to submit that the construction of the jetty would not be a prohibited activity and a clear exception has been made in paragraph 3 of the 2011 Notification. He has also placed reliance on the decision of the Supreme Court in N.D.Jayal & Anr. Vs. Union of India & Ors.[1] to submit that in interpretation of the notification, the principle of sustainable development is required to be taken into consideration as adherence of such principle, is now held to be the sine qua non for the maintenance of the symbiotic balance between the right to environment and the right to development. In this regard, Mr.Mone has drawn the Court’s attention to paragraphs 5 and 13 of the petition wherein importance of providing such jetty has been pointed out to be undertaken as an eco friendly travel option and which would develop one of the most efficient ways of transportation namely of inland water transportation recognized world wide. It is, hence, his submission that the petition needs to be allowed. Reasons and Conclusions

16. We have heard learned Counsel for the parties. We have perused the record. At the outset, it needs to be noted that the project in question being undertaken by the petitioner is a public project of passenger jetty and its allied facilities at Kelva, Palgarh. The decision of the Division Bench of this Court in BEAG’s case although has freezed destruction of mangroves in Maharashtra, as ordered in paragraph 85(A)(I), however, it has carved out an exception, as observed in paragraph 83 (viii), in the event the Court finds it necessary for public good or public interest. It is this exception of public good and public interest which has been espoused by the petitioner in filing this petition and praying that the project in question be permitted to be implemented.

17. It also appears to be not in dispute that there would be no destruction of mangroves, as not only urged by the petitioner but also noted by the MCZMA and SEIAA. In other words, the project is being undertaken without destruction of any mangroves. However, the question which has arisen in the present case is little different from what was decided by this Court in several other cases wherein permission came to be granted for public projects, for removing some mangroves, inasmuch as, in the present case, the project is situated within the 50 meters mangroves buffer zone area and peculiarly, that no mangroves would be destroyed. It is on this premise, Mr.Jagtiani has advanced his submissions on the various paragraphs of the 2011 Notification, to contend that the construction of jetty would not be a permissible activity.

18. To appreciate the rival contentions, it would be necessary to note the relevant provisions/paragraphs of the 2011 CRZ notification which read thus:- “ Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government, with a view to ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, does hereby, declare the coastal stretches of the country and the water area upto its territorial water limit, excluding the islands of Andaman and Nicobar and Lakshadweep and the marine areas surrounding these islands upto its territorial limit, as Coastal Regulation Zone (hereinafter referred to as the CRZ) and restricts the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances as specified in the Hazardous Substances (Handling, Management and Transboundary Movement) Rules, 2009 in the aforesaid CRZ.; and In exercise of powers also conferred by clause (d) and sub rule (3) of rule 5 of Environment (Protection) Act, 1986 and in supersession of the notification of the Government of India in the Ministry of Environment and Forests, number S.O.114(E), dated the 19 th February, 1991 except as respects things done or omitted to be done before such supercession, the Central Government hereby declares the following areas as CRZ and imposes with effect from the date of the notification the following restrictions on the setting up and expansion of industries, operations or processes and the like in the CRZ,-

(i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500mts on the landward side along the sea front.

(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance upto which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans (hereinafter referred to as the CZMPs). Explanation.- For the purposes of this sub-paragraph the expression tidal influenced water bodies means the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like.

(iii) the land area falling between the hazard line and 500mts from HTL on the landward side, in case of seafront and between the hazard line and 100mts line in case of tidal influenced water body the word „hazard line denotes the line demarcated by ‟ denotes the line demarcated by Ministry of Environment and Forests (hereinafter referred to as the MoEF) through the Survey of India (hereinafter referred to as the SoI) taking into account tides, waves, sea level rise and shoreline changes. (iv)land area between HTL and Low Tide Line (hereinafter referred to as the LTL) which will be termed as the intertidal zone.

(v) the water and the bed area between the LTL to the territorial water limit (12 Nm) in case of sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of the bank, of tidal influenced water bodies.

2. For the purposes of this notification, the HTL means the line on the land upto which the highest water line reaches during the spring tide and shall be demarcated uniformly in all parts of the country by the demarcating authority(s) so authorized by the MoEF in accordance with the general guidelines issued at Annexure-I. HTL shall be demarcated within one year from the date of issue of this notification.

3. Prohibited activities within CRZ,- The following are declared as prohibited activities within the CRZ,-

(i) Setting up of new industries and expansion of existing industries except,-

(a) those directly related to waterfront or directly needing foreshore facilities; Explanation: The expression “foreshore facilities” means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.; (b) projects of Department of Atomic Energy;

(c) facilities for generating power by non-conventional energy sources and setting up of desalination plants in the areas not classified as CRZ-I(i) based on an impact assessment study including social impacts.;

(d) development of green field Airport already permitted only at Navi Mumbai;

(e) reconstruction, repair works of dwelling units of local communities [especially] [fisher folk] in accordance with local town and country planning regulations.

(ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests, No. S.O.594 (E), dated the 28 th July 1989, S.O.No.966(E), dated the 27th November, 1989 and GSR 1037 (E), dated the 5th December 1989 except,- (a) transfer of hazardous substances from ships to ports, terminals and refineries and vice versa; (b) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas (hereinafter referred to as the LNG) in the areas not classified as [CRZ- I (A)] subject to implementation of safety regulations including guidelines issued by the Oil Industry Safety Directorate in the Ministry of Petroleum and Natural Gas and guidelines issued by MoEF and subject to further terms and conditions for implementation of ameliorative and restorative measures in relation to environment as may be stipulated by in MoEF. Provided that facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as [CRZ-I (A)].

(iii) Setting up and expansion of fish processing units including warehousing except hatchery and natural fish drying in permitted areas:

(iv) Land reclamation, bunding or disturbing the natural course of seawater except those,- (a) required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification; (b) measures for control of erosion, based on scientific including Environmental Impact Assessment (hereinafter referred to as the EIA) studies

(c) maintenance or clearing of waterways, channels and ports, based on EIA studies;

(d) measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge based on carried out by any agency to be specified by MoEF.

(v) Setting up and expansion of units or mechanism for disposal of wastes and effluents except facilities required for,- (a) discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); (b) storm water drains and ancillary structures for pumping;

(c) treatment of waste and effluents arising from hotels, beach resorts and human settlements located in CRZ areas other than CRZ-I and disposal of treated wastes and effluents;

(vi) Discharge of untreated waste and effluents from industries, cities or towns and other human settlements. T he concerned authorities shall implement schemes for phasing out existing discharge of this nature, if any, within a time period not exceeding two years from the date of issue of this notification.

(vii) Dumping of city or town wastes including construction debris, industrial solid wastes, fly ash for the purpose of land filling and the like and the concerned authority shall implement schemes for phasing out any existing practice, [within a period of one year ]* from date of commencement of this notification. Note:-The MoEF will issue a separate instruction to the State Governments and Union territory Administration in respect of preparation of Action Plans and their implementation as also monitoring including the time schedule thereof, in respect of paras (v), (vi) and (vii).

(viii) Port and harbour projects in high eroding stretches of the coast, except those projects classified as strategic and defence related in terms of EIA notification, 2006 identified by MoEF based on scientific studies and in consultation with the State Government or the Union territory Administration.

(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities [except for construction of memorials/ monuments and allied facilities, only in CRZ-IV (A) areas in exceptional cases, by the concerned State Government, on case to case basis;]*

(x) Mining of sand, rocks and other sub-strata materials except,-

(a) those (rare)*6 deleted minerals not available outside the CRZ area [and collection of dead shells by the traditional communities for poultry and animal feed supplements]. (b) exploration and exploitation of Oil and Natural Gas.

(xi) Drawal of groundwater and construction related thereto, within 200mts of HTL; except the following:- (a) in the areas which are inhabited by the local communities and only for their use. (b) In the area between 200mts-500mts zone the drawl of ground water shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries and where no other source of water is available. Note:-Restrictions for such drawl may be imposed by the Authority designated by the State Government and Union territory Administration in the areas affected by sea water intrusion.

(xii) Construction activities in CRZ-I except those specified in para 8 of this notification.

(xiii) Dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purpose [except utilizing the rocks / hills/ natural features, only in CRZ-IV (A) areas, for development of memorials / monuments and allied facilities, by the concerned State Government]* (xiv) [Except]* Facilities required for patrolling and vigilance activities of marine/coastal police stations.

4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,- (i)(a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities; (b) for those projects which are listed under this notification and also attract EIA notification, 2006 (S.O.1533 (E), dated the 14th September, 2006), for such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State or Union territory Coastal Zone Management Authority (hereinafter referred to as the CZMA).

(c) Housing schemes in CRZ as specified in paragraph 8 of this notification;

(d) Construction involving more than 20,000sq mts built-up area in CRZ-II shall be considered [for approval]* in accordance with EIA notification, 2006 [however, for]* projects less than 20,000sq mts built-up area shall be approved by the concerned State or Union territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZMA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority. (e) MoEF may under a specific or general order specify projects which require prior public hearing of project affected people. (f) construction and operation for ports and harbours, jetties, wharves, quays, slipways, ship construction yards, breakwaters, groynes, erosion control measures [and salt works]*;

(ii) the following activities shall require clearance from MoEF,

[ after being recommended by the concerned CZMA] namely:- (a) [those activities listed under category „A in the EIA ‟ denotes the line demarcated by notification, 2006 and permissible under the notification:]* (b) construction activities relating to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as, slipways, jetties, wharves, quays; except for classified operational component of defence projects. Residential buildings, office buildings, hospital complexes, workshops of strategic and defence projects in terms of EIA notification, 2006.;

(c) construction, operation of lighthouses;

(d) laying of pipelines, conveying systems, transmission line;

(e) exploration and extraction of oil and natural gas and all associated activities and facilities thereto; (f) Foreshore requiring facilities for transport of raw materials, facilities for intake of cooling water and outfall for discharge of treated wastewater or cooling water from thermal power plants. MoEF may specify for category of projects such as at (f), (g) and (h) of para 4; (g) Mining of rare minerals as listed by the Department of Atomic Energy; (h) Facilities for generating power by non-conventional energy resources, desalination plants and weather radars;

(i) Demolition and reconstruction of (a) buildings of archaeological and historical importance, [(b)] heritage buildings; and buildings under public use which means buildings such as for the purposes of worship, education, medical care and cultural activities; (j) [construction of memorials/ monuments and allied facilities by the concerned State Government in CRZ-IV (A) areas in exceptional cases, with adequate environmental safeguards, subject to the following, namely:- (A) The concerned State Government shall submit justification for locating the project in CRZ area along with details of alternate sites considered and weightage matrix on various parameters including environmental parameters to State CZMA who will examine the project and make recommendation to the Central Government (MoEF) for grant of Terms of Reference (ToRs) for preparation of an environmental impact assessment report by the State Government; (B) on grant of ToRs by the Central Government, the concerned State Government shall submit the draft Environmental Impact Assessment report (EIA) with Environmental Management Plan (EMP), draft Risk Assessment Report with Disaster Management Plan (DMP) including on-site and off-site emergency plan and evacuation plan during emergency, to the State Pollution Board for conduct of public hearing for the proposed project in accordance with the procedure laid down under the Environment Impact Assessment notification; (C) (C)The concerned State Government shall submit final EIA, EMP, Risk Assessment and DMP after addressing the relevant issues raised by the public during the public hearing, to State CZMA for their examination and recommendation to MoEF. Note: Construction of memorials / monuments would generally discouraged in CRZ-IV areas and the same would be allowed only in exceptional cases with adequate environmental safeguards.] ….........

7. Classification of the CRZ – For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-

(i) CRZ-I,–

(c) Sand Dunes;

(d) Mudflats which are biologically active;

(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserve [as enumerated in para V(4)(b)]* (f) Salt Marshes; (g) Turtle nesting grounds; (h) Horse shoe crabs habitats;

(i) Sea grass beds;

(ii) CRZ-II,-

The areas that have been developed upto or close to the shoreline. Explanation.- [For the purposes of the]*18 deleted expression “developed area” is referred to as that area within the e x ist i n g municipal limits or in other e x ist i n g legally designated urban areas w h i c h a r e substantially built-up and has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains;

(iii) CRZ-III,-

Areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legally designated urban areas, which are not substantially built up. (iv.) CRZ-IV,-

(v) Areas requiring special consideration for the purpose of protecting the critical coastal environment and difficulties faced by local communities,-

(ii) the CRZ areas of Kerala including the backwaters and backwater islands;

(iii) CRZ areas of Goa.

Sunderbans region of West Bengal and other ecologically sensitive areas identified as under Environment (Protection) Act, 1986 and managed with the involvement of coastal communities including fisherfolk.

8. Norms for regulation of activities permissible under this notification,-

(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:- Note:- {The word [existing, used]*19 hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 [when the CRZ notification, 1991]*20 was notified.} *

I. CRZ-I,-

(i) no new construction shall be permitted in CRZ-I except,-

(c) facilities that are essential for activities permissible under

(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 affecting the tidal flow of water, between LTL and HTL. (f) development of green field airport already approved at only Navi Mumbai;

(ii) Areas between LTL and HTL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:- (a) exploration and extraction of natural gas; (b) construction of dispensaries, schools, public rainshelter, community toilets, bridges, roads, jetties, [erosion control measures]* water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned CZMA.

(c) necessary safety measure shall be incorporated while permitting such developmental activities in the area falling in the hazard zone;

(d) salt harvesting by solar evaporation of seawater;

(e) desalination plants; (f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports; (g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water.

II. CRZ-II,-

(i) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorized structures; (ii) [buildings permitted on the landward side of the existing and proposed roads or existing authorised structures shall be subject to the existing local town and country planning regulations as modified from time to time, except the Floor Space Index or Floor Area Ratio, which shall be as per 1991 level: Provided that no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road: Provided further that the construction in CRZ-II area of Goa, Kerala and Mumbai shall be governed by the provisions of Clause V of paragraph 8.”] *

(iii) reconstruction of authorized building to be permitted subject with the existing FloorSpace Index or Floor Area Ratio Norms and without change in present use;

(iv) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas subject to the conditions as mentioned in subparagraph (ii) of paragraph 3;

(v) desalination plants and associated facilities;

(vi) storage of non-hazardous cargo, such as edible oil, fertilizers and food grain in notified ports;

(vii) facilities for generating power by non-conventional power sources and associated facilities;

III. CRZ-III,-

(i) the NDZ shall not be applicable in such area falling within any notified port limits;

(ii) No construction shall be permitted within N D Z except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification [especially]*21 facilities essential for activities; Construction/reconstruction of dwelling units of traditional coastal communities including fisherfolk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal communities [especially]* fisherfolk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;

(iii) however, the following activities may be permitted in NDZ –

(a) agriculture, horticulture, gardens, pasture, parks, play field, and forestry; (b) projects relating to Department of Atomic Energy;

(c) mining of rare minerals;

(d) salt manufacture from seawater;

(e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II; (f) facilities for regasification of liquefied natural gas subject to conditions as mentioned in subparagraph (ii) of paragraph 3; (g) facilities for generating power by non conventional energy sources; (h) Foreshore facilities for desalination plants and associated facilities;

(i) weather radars;

(j) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, provision of facilities for water supply, drainage, sewerage, crematoria, cemeteries and electric sub-station which are required for the local inhabitants may be permitted on a case to case basis by CZMA; (k) construction of units or auxiliary thereto for domestic sewage, treatment and disposal with the prior approval of the concerned Pollution Control Board or Committee;

(l) facilities required for local fishing communities such as fish drying yards, auction halls, net mending yards, traditional boat building yards, ice plant, ice crushing units, fish curing facilities and the like;

(m) development of green field airport already permitted only at

(i) development of vacant plot in designated areas for construction of hotels or beach resorts for tourists or visitors subject to the conditions as specified in the guidelines at Annexure-III;

(ii) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;

(iii) facilities for regasification of liquefied natural gas subject to conditions as mentioned in sub-paragraph (ii) of paragraph 3;

(iv) storage of non-hazardous cargo such as, edible oil, fertilizers, food grain in notified ports;

(v) foreshore facilities for desalination plants and associated facilities;

(vi) facilities for generating power by non-conventional energy sources;

(vii) construction or reconstruction of dwelling units so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and goathans. Building permission for such construction or reconstruction will be subject to local town and country planning rules with overall height of construction not exceeding 9mts with two floors (ground + one floor);

(viii) Construction of public rain shelters, community toilets, water supply drainage, sewerage, roads and bridges b y C Z M A w h o m a y a l s o permit construction of 13 schools and dispensaries for local inhabitants of the area for those panchayats, the major part of which falls within CRZ if no other area is available for construction of such facilities;

(ix) reconstruction or alteration of existing authorised building subject to sub-paragraph (vii), (viii);

(x) development of green field airport already permitted only at

(IV) In CRZ-IV areas,-

The activities [impinging]* on the sea and tidal influenced water bodies will be regulated except for traditional fishing and related activities undertaken by local communities as follows:- (a)No untreated sewage, effluents, ballast water, ship washes, fly ash or solid waste from all activities including from aquaculture operations shall be let off or dumped. A comprehensive plan for treatment of sewage generating from the coastal towns and cities shall be formulated within a period of one year in consultation with stakeholders including traditional coastal communities, traditional fisherfolk and implemented; (b) Pollution from oil and gas exploration and drilling, mining, boat house and shipping;

(c) There shall be no restriction on the traditional fishing and allied activities undertaken by local communities.

V. Areas requiring special consideration,-

1. CRZ areas falling within municipal limits of the Greater Mumbai.

(i) Developmental activities in the CRZ area of the Greater

Mumbai because of the environmental issues, relating to degradation of mangroves, pollution of creeks and coastal waters, due to discharge of untreated effluents and disposal of solid waste, the need to provide decent housing to the poor section of society and lack of suitable alternatives in the inter connected islands of Greater Mumbai shall be regulated as follows, namely:-

(i) All mangrove areas shall be mapped and notified as protected forest and necessary protection and conservation measures for the identified mangrove areas shall be initiated.

(ii) Five times the number of mangroves destroyed/cut during the construction process shall be replanted.

19. Having noted the long expanse of the relevant paragraphs of the 2011 Notification, it is clear that the object which is sought to be achieved, qua the coastal areas is to ensure fulfillment of various aspects, which include ensuring livelihood security to the fisher community and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area as well as “to promote development through sustainable manner” based on scientific principles taking into account the dangers of natural hazards in the coastal areas.

20. The Central Government in supersession of the earlier notification dated 19 February 1991, except as regard to things done or omitted to be done before such supersession, notified five categories of area as provided in paragraph (1) of the 2011 Notification, thereby imposing with effect from the date of the notification, such restrictions as provided therein on the setting up and expansion of industries, operations or processes.

21. The 2011 Notification in paragraph 3 provides for prohibited activities within the CRZ. In the context of paragraph 3, when the 2011 Notification uses the word “CRZ”, its meaning would be required to be derived from the five categories as specified in paragraph 1. The prohibited activities within the CRZ as prescribed by paragraph 3 Clause

(i) is to setting up of new industries and expansion of existing industries except those directly related to waterfront or directly needing foreshore facilities. However, by an explanation below Clause (i)(a) of paragraph 3, the expression “foreshore facilities” has been defined to mean those activities permissible under this Notification which require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, etc. Thus setting up of new industries which are directly related to waterfront activities or needing foreshore facilities are permissible as the expression ‘foreshore facilities’ itself has been explained in the ‘Explanation’ clause to include ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like. Another incident of permissibility of construction of a jetty is seen in paragraph 3(iv), whereby while prohibiting land reclamation, bunding or disturbing the natural course of seawater, the Notification makes an exception in relation to those activities required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sea-link, road on stilts, and such as meant for defence and security purpose and for other facilities. Paragraph 3(xii) of the 2011 Notification prohibits construction activities in CRZ-I except those specified in paragraph 8 of the notification, which provides for norms of regulation permissible under the notification.

22. Paragraph 4 of the notification provides for regulation of permissible activities in the CRZ areas except for those activities which are prohibited in paragraph 3 of the notification, in which subparagraph (i)(a) clearly provides that clearance shall be granted for any activity within the CRZ, only if it requires waterfront and foreshore facilities. Sub-paragraph (i)(f) provides for construction and operation for ports and harbours, jetties, wharves, quays, slipways, ship construction yards, breakwaters, groynes, erosion control measures, as falling under the regulation, all permissible activities in CRZ areas.

23. Thus, from a combined reading of paragraph 1, 3 and 4, it is clear that the activities which are related to waterfront or directly needing foreshore facilities are expressly permitted under the 2011 Notification. Setting up of a jetty is clearly not seen to be a prohibited activity but a regulated activity, which becomes clear from a reading of paragraph 4(i)(a) and (f).

24. The next question to be considered is to examine as to what would be the effect of paragraph 7 read with paragraph 8 of the 2011 Notification, on setting up of a jetty? Paragraph 7 provides for classification of CRZ into CRZ-I, II, III, IV. In the present context, we are primarily concerned with paragraph 7(i) which provides for CRZ-I under which clause (A) provides, for the areas that are ecologically sensitive and the geomorphological features, which play a role in maintaining the integrity of the coast in which mangroves are included. In case the mangroves area is more than 1000 sq mts, a buffer of 50 meters along the mangroves shall be provided; it also includes corals and coral reefs and associated biodiversity; sand dunes; mudflats which are biologically active; national parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972, the Forest (Conservation) Act, 1980 or Environment (Protection) Act, 1986; including Biosphere Reserve, Salt Marshes, turtle nesting grounds, horse shoe crabs habitats, sea grass beds, nesting grounds of birds, areas or structures of archaeological importance and heritage sites. Clause (B) of paragraph 7 provides for areas falling between Low Tide Line and High Tide Line to be considered as CRZ I.

25. On a plain reading of paragraph 7, two aspects relevant for the present purposes become quite apparent, namely, (a) buffer zone of 50 meters along the mangroves to be provided [Clause A(i)] and an area between Low Tide Line and High Tide Line [Clause B], which provide for classifications of the CRZ and which per se do not provide for any prohibition and/or regulation.

26. In addition to the regulation of permissible activities in CRZ areas as provided in paragraph 4 of the said notification, the norms for regulation of activities permissible under the said notification are provided for in paragraph 8 and which are specific to the different regulations namely Regulations I to IV. In so far as CRZ-I is concerned, paragraph 8 provides that the development or construction activities in different categories of CRZ shall be regulated by the concerned Coastal Zone Management Authority (CZMA), in accordance with the norms as specified in each of the CRZ i.e. CRZ-I to CRZ-IV. In so far as CRZ-I is concerned, it clearly provides that no new construction shall be permitted in CRZ-I except for the activities expressly mentioned in subclauses (a) to (f). The relevant being sub-clause (c) of paragraph 8 which carves out an exception for the facilities that are essential for the activities permissible under CRZ-I. This has some relevance in so far as the permissible activities in CRZ-I are concerned, namely, those directly related to waterfront or directly needing foreshore facilities as provided in paragraph 3 read with paragraph 4 which also recognizes construction and operation for ports and harbours, jetties, wharves, quays, slipways, ship construction yards, breakwaters, groynes, erosion control measures etc. This apart, CRZ-I includes the area between Low Tide Line and High Tide Line. Paragraph 8 (I)(ii) provides that the areas between Low Tide Line and High Tide Line which are not ecologically sensitive, necessary safety measures will be incorporated while permitting interalia construction of dispensaries, schools, public rain-shelter, community toilets, bridges, roads, jetties, erosion control measures, water supply etc. Thus, on a holistic reading of paragraph 8, it is not a case that no new construction is permitted in CRZ-I, when it permits construction of projects relating to Department of Atomic Energy, installation of pipelines, conveying systems including transmission lines, providing for facilities that are essential for activities permissible as provided in sub-clauses (a) to (f) under CRZ-I. In the present context, the relevant provision under paragraph 8 (I) (CRZ-I) is sub-clause (c) which permits setting up “the facilities that are essential for activities permissible under CRZ-I”. These are activities directly related to waterfront or directly needing foreshore facilities, held to be permissible under the said notification such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations as provided for in paragraph 3(i)(a) of the said notification as also falling under paragraph 4(i)(f) dealing with the regulation of permissible activities in relation to construction and operation for ports and harbours, jetties, wharves, quays, slipways, ship construction yards, breakwaters, groynes, erosion control measures and salt works.

27. It is thus difficult to accept Mr.Jagtiani’s contention that the activity of construction of a jetty merely because it falls in a buffer zone of 50 meters along the mangrove area, would amount to a prohibited activity under the CRZ-I. Such interpretation certainly is not reflected from a cumulative reading of paragraphs 3, 4 and 8 of the 2011 Notification as understood in the context of paragraph 7 of the 2011 Notification, which classifies CRZ into such different categories. If the interpretation as suggested by Mr.Jagtiani is accepted, it would negate so many of the essential activities in the CRZ I, which are clearly specified in paragraph 3 and paragraph 4 read with paragraph 8 as permissible activities as discussed above, being activities requiring waterfront and foreshore facilities, construction and operation of ports and harbours, jetties, wharves, quays, slipways, ship construction yards, breakwaters, groynes, erosion control measures etc. to name some.

28. In interpreting the 2011 CRZ Notification, it cannot be overlooked that the object of the notification is not merely protecting the environment but also while doing so promoting the development through sustainable manner, which is also a significant object being achieved in regulating activities in the coastal zone areas. Thus, CRZ-I cannot be interpreted to mean a zone which freezes every activity. In other words, in the present context, merely because the area is a mangrove area which is more than 1000 sq.meters requiring buffer zone of 50 meters along the mangroves to be provided as prescribed in paragraph 7 of the 2011 Notification, it cannot be inferred that no activity such as the one intended to be undertaken by the petitioner, becomes a prohibited activity. Such a reading of the Notification would render nugatory the activities specifically permitted in the CRZ-I zone as clear from the reading of paragraph 3, 4 and 8 of the 2011 Notification.

29. From a holistic reading of the different paragraphs of the 2011 Notification as discussed above, it cannot be said that there is any prohibition to the permissible activities as recognized under the Notification itself. In our opinion, Mr.Mone would be correct in placing reliance on the decision of the Supreme Court in N.D.Jayal & Anr. Vs. Union of India & Ors. (supra) wherein the Supreme Court has reiterated the principles as laid down in Vellore Citizens Welfare Forum v. Union of India”2 and M C Mehta v. Union of India[3], that a balance between environmental protection and developmental activities can only be maintained by strictly following the principles of ‘sustainable development’. The Supreme Court held that the principle of sustainable development is a development strategy that caters to the needs of the present, without negotiating the ability of upcoming generations to satisfy their needs and that strict observance of sustainable development would put us on a path that ensures development while protecting the environment, a path that works for all people and for all generations. It is held that all environmental related developmental activities should benefit more people while maintaining the environmental balance which could be ensured only by the strict adherence of sustainable 2 [1996] 5 SCC 647 3 [2002] 4 SCC 356 development, without which life for coming generations will be in jeopardy. It was held that the adherence to the principles of sustainable development is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. It is also held that the right to development cannot be treated as a mere right to economic betterment or cannot be limited to as a misnomer to simple construction activities. It is observed that right to development encompasses much more than economic well being, and includes within its definition the guarantee of fundamental rights, which are an integral part of human rights. It is hence held that the construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development, and such works could very well be treated as integral component for development. To ensure sustainable development is held to be one of the goals of Environmental Protection Act, 1986 which is necessary to make effective the guarantee of 'right to life' under Article 21. The Supreme Court, hence, has observed that the concerned authorities by exercising its powers under the Act will have to ensure the acquiescence of sustainable development, hence, the Environment Protection Act cannot be treated as a power simpliciter, but it is a power coupled with duty.

30. In the above circumstances, it would also be apposite to note two earlier decisions in the case of the petitioner-Maharashtra Maritime Board as also in some other cases where the public bodies had approached this Court. They are as under:-

(i) The petitioner’s case in “Maharashtra Maritime Board Vs. Union of

India & Ors.”4 was in relation to the work of proposed ferry jetty services at Borivali and Gorai, as also the proposed passenger jetty services at Ghodbunder and the proposed Roll-on/Roll-of (RO-RO) Jetty Services at Manori. A co-ordinate Bench of this Court having considered the importance of the public project and in view of the permissions granted by the MCZMA and the SEIAA, allowed the said petition filed by the petitioner. The following observations of the Court are required to be noted:-

11. Taking into consideration the importance of the aforesaid Projects, for the reasons which we have recorded hereinabove, and taking into consideration the fact that the Court has already granted permission in respect of other similar Projects of larger public importance, we are also inclined to allow the present Petition in terms of prayer clauses (a) to (c), however, subject to the condition that the responsible officer of the Petitioner files an undertaking before this Court within a period of one week that the Petitioner shall strictly comply with the conditions as are imposed in the permissions granted by various authorities i.e. MCZMA, Environmental Department and the Forest Department.”

(ii) Again in the petitioner’s case in “Maharashtra Maritime Board Vs.

Union of India & Ors.”5 a co-ordinate Bench of this Court in respect of the project to execute the proposed passenger jetty and allied facilities

4 Writ Petition (L) No.44 of 2019, decided on 25/2/2019 5 Writ Petition no.2710/20 decided on 7/8/2020 at Belapur, Navi Mumbai, being another project of public importance, allowed the petition while making the following observations:-

5.10 Most importantly Petitioner has obtained all necessary clearances and permissions, as required under law for the said Project. The same have been granted by the respective statutory authorities, keeping in mind the peculiar geographical and topographical aspects of the project, as also keeping in mind the environmental factors. Considering that the site of the project was affected by CRZ-IV classification, the Petitioner made an application in compliance of the provisions of the CRZ Notification, 2011 in Form-I for grant of CRZ clearance. The proposal of the Petitioner was considered by Respondent No.2 in its 131 meeting held on 6th March 2019, wherein after considering the project proposal, the presentation made by the Petitioner and the details of the project, duly juxtaposed with the provisions of the CRZ Notification, 2011. After due deliberation of all material factors, Respondent No.2 recommended the project for grant of CRZ clearance subject to the terms and conditions contained therein. It is pertinent to note that the Respondent No.2, while recommending the project, has specifically observed that there would be no destruction of mangroves in the execution of the project. Petitioner, thereafter duly submitted a consolidated statement before the State level Environment Impact Assessment Authority ("SEIAA"), with the requisite details of the said project. On consideration SEIAA recommended the proposal of the Petitioner in its 160th meeting held on 7 March 2019 and granted the proposal for CRZ clearance on 9 August 2019.

13. From the pleadings and submissions advanced, we note that the proposed project is for the construction of a pile jetty which includes an approach jetty of dimensions 73.20 X 6.00 mtrs, berthing jetty of 26.19 X 10.18 mtrs, ticket counter and other allied facilities at Belapur. As noted above, this project has been planned keeping in mind the larger public interest and more importantly it does not involve dredging activities to implement the project nor does it contemplate any destruction of mangroves. The proposed project involves a great deal of public importance. The proposed jetty will reduce the travel distance from Navi Mumbai to various tourist attractions, public amenities, etc, saving travel time, thereby greatly reducing the acute problem of traffic congestion faced in the city of Mumbai, developing an alternative environment friendly public transportation system which would consequently ease the traffic conditions and improve the environmental situation. The construction of the passenger jetty at Belapur will also develop an important link between Navi Mumbai, Mumbai and tourist attraction like Elephanta. A crucial link shall be established connecting people from far-flung regions, such as Panvel, Kalyan, Dombivali, Belapur and Thane. The project will also have a promotional effect on tourism in the nearby areas. We note that the project is founded on the principles of public utility, sustainable development and eco-friendly transportation systems, aimed at benefiting the citizens and not premised on private or commercial gain. It is a public utility project being executed by the Petitioner and as such, the same should be allowed to be implemented, more so since the concerned statutory authorities have granted the requisite permissions in accordance with law and there is no contemplation of any destruction of mangroves. The project is also anticipated to generate employment opportunities for the local population. Since the shoreline at Belapur is prone to damage caused by coastal erosion and monsoon storms, implementation of the project is anticipated to have an indirect benefit of shoreline protection and removal of the risk of erosion is also likely to encourage future investment in the region. We have noted that necessary CRZ clearances have been granted to the said project, in accordance with law and the said project is otherwise legal, premised on the principles of sustainable development and is in the benefit of the public at large.”

(iii) This Court in “Jawaharlal Nehru Port Trust vs. Union of India &

Ors.”6 in regard to the works being undertaken by Jawaharlal Nehru Port Trust, of a proposed “boat landing jetty” at Nhava and “seawalls of Gharapuri Panje Villages” to be executed in accordance with the permissions granted to it, considered that such works were of public utility and of sustainable development, involving no destruction of mangroves. The JNPT was accordingly permitted to undertake the project, in a similar situation as in the present case. The Court had made the following observations:-

10. Having heard learned Counsel for the parties and having perused the record, it is quite clear to us that per se there is no destruction of the mangroves by the JNPT in implementation of the project work. The mangroves however situated in the

6 Writ Petition (st) no.424 of 2021 decided on 14/1/2021 vicinity of 50 meters of the proposed work to be undertaken, the JNPT has approached this Court praying for the above relief. Also the MCZMA has found it appropriate that the JNPT approaches this Court and seeks permission considering the orders passed by this Court in BEAG’s case.

11. It is also not in dispute that the work in question is a public work necessary for the operations of the JNPT which is one of the important container ports in the country. The project in question is also one of the public importance being installation of boat landing jetty as described in the petition....................”

(iv) A Co-ordinate Bench of this Court in Kharghar Vikhroli

Transmission Pvt. Ltd. Vs. The Union of India & Ors.[7] had permitted public works of upgradation of existing fishery facilities located at Diwalegaon Belapur, District Thane and in permitting removal/replanting of mangroves, the following observations were made:-

16. Having heard learned Counsel for the parties and having perused the record, we are of the opinion that an exception is required to be made in favour of the Petitioner to remove the mangroves as prayed for on the conditions as imposed by the Respondent authorities as the work in question is for public good and in public interest as referred to and in accordance with paragraph 83 (viii) of the order passed by the Division Bench of this Court in Bombay Environmental Action Group and another V/s. The State of Maharashtra & Ors. (PIL No. 87 of 2006 decided on 17-09-2018). The Petitioner through its Counsel has expressed willingness to plant 15,000 saplings as indicated above. The Petitioner has shown willingness to place on record an undertaking to the rigorous compliance of the conditions as imposed in the permissions granted by the Respondent Authorities. The public project in question cannot be stalled and we are inclined to grant the reliefs as prayed for. In these circumstances, we allow the Petition in terms of prayer clause “a” which reads thus: “a. To permit the Petitioner to execute the proposed construction of 400 KV multi circuit transmission line Kharghar

7 Writ Petition (st) No.96276 of 2020, decided on 4 February 2021 to Vikhroli in mangrove area and its buffer zone in view of the public importance of the project, by granting leave as contemplated in paragraph 83 (viii) of the Judgment and Order dated 17th September 2018 in PIL No. 87 of 2006”.”

(v) In yet another decision of the Division Bench of this Court in

Municipal Corporation of Gr.Mumbai. Vs. Bombay Environmental Action Group & Ors.[8] in regard to the ‘work of upgradation of design, fabrication, installation and commissioning of heavy duty back rake type mechanical screening of Irla Nalla at Irla storm water pumping station in K/West Ward’, where again there was no destruction of mangroves, the Court had allowed the Municipal Corporation of Greater Mumbai to undertake the project. The following observations as made by the Court are required to be noted:-

11. Having heard learned Counsel for the parties and having perused the record, it is quite clear to us that per se there is no destruction of the mangroves by the MCGM in implementation of the project work. The mangroves however being in the vicinity of 50 meters, the MCGM hence has approached this Court praying for the above relief. Also the MCZMA has found it appropriate that the MCGM approaches this Court and seeks permission considering the orders passed by this Court in BEAG’s case. It is also not in dispute that the work in question is a public work and is of considerable importance, and if executed it would safeguard and protect the environment. As regards the contention as urged on behalf of respondent no.1 that MCGM can have alternative/better methods to execute the work in question, cannot be an issue which can be gone into in the present proceedings. The MCGM with the technical expertise available at its disposal has planned the project which is being implemented in the public interest. In our opinion, methods to implement the project are required to be left to the wisdom of the MCGM.”

(vi) In City & Industrial Development Corporation of Maharashtra Ltd.

Vs. Government of India[9], this Court was concerned with the work of the petitioner therein, of construction of 11 meters wide Bye-pass bridge in an area which was affected by mangroves/forest land to a very minor extent to 0.6266 hectre. The CIDCO had applied to remove mangroves in relation to such area contending that the project was of public importance which would remove traffic congestion between the Mumbai and Navi Mumbai areas, approval to which was also granted by the MCZMA and the SEIAA. In these circumstances, this Court permitted the petitioner - CIDCO to cut and remove the mangroves in the area admeasuring 0.6266 hectre and in so permitting has made the following observations:-

31. Thus, adverting to the interpretation we have made of the 2011 Notification as also having due regard to the above decisions, in our opinion, on a perusal of the orders passed by the authorities in the 9 2020 SCC Online Bom. 4191 present case, it is quite clear that even authorities like the MCZMA and the SEIAA have appreciated and applied the 2011 Notification in its proper perspective, in granting conditional approval to the petitioner, to set up a jetty as proposed.

32. Before parting, there is one aspect which we hasten to record namely that the BEAG being the original petitioner in the BEAG’s Case, was heard by us in the present proceedings primarily to assist the Court, only because it had pursued the BEAG’s case (supra) as decided by the Division Bench. This is not a case where the BEAG is assailing the permission granted in favour of the petitioner by the MCZMA and the SEIAA. We certainly had the benefit of Mr.Jagatiani’s submissions on the interpretation of the 2011 Notification. We would, however, also note that as far as the record goes, there is some attempt on the part of the BEAG to exceed its role as invited by this Court namely that apart from the BEAG canvassing its perspective in regard to the approval as granted by the MCZMA and the SEIAA, it has also attempted to suggest alternative sites to the petitioner. This in the context of a jetty for fisherman in existence nearby which may not be useful for the proposed work intended to be undertaken by the petitioner. In our opinion, this gives a little different colour to the role the BEAG is expected to play when arrayed as a respondent at the Court’s instance and certainly not in an adversarial position.

33. As a sequel to the above discussion, with certitude, we are of the opinion that the petitioner has become entitled to proceed with its public project strictly in accordance with the conditions as stipulated by the MCZMA and the SEIAA as per the permissions granted by these authorities. They are also entitled to the exception to be carved out as observed in the decision of the Division Bench of this Court in the BEAG’S case (supra) as held in paragraph 83(viii) inasmuch as the Court finds it necessary for the public good and in public interest that the petitioner’s project ought to proceed.

34. We, accordingly, allow this petition in terms of prayer clause (a) which reads thus:a) This Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of mandamus under Article 226 of the Constitution of India, thereby directing the respondent authorities to permit the petitioner to execute the proposed passenger jetty and allied facilities at Kewal, Palghar, in view of the public importance of the project finding of this Hon’ble Court recorded at paragraph 83(viii) of the judgment and order dated 17 September, 2018 passed by this Hon’ble Court in PIL No. 87 of 2006.

35. The above directions shall, however, be subject to the strict compliance of the other terms and conditions as set out in the approval granted by MCZMA and the SEIAA. An undertaking to comply such conditions be placed on record of this petition, within a period of two weeks from today, with a copy to be forwarded to the State Government and the respective authorities.

36. No costs.

WRIT PETITION NO.1065 OF 2021

37. This petition was listed alongwith the above lead petition (Writ Petition No.759 of 2021) which we have allowed by our above orders. In this petition, the public works in question proposed to be undertaken by the petitioner is of a Ro-Ro Jetty at Kharwadashri, for which permissions have been granted by the MCZMA and the SEIAA. The petitioner has averred in paragraph 16B of the petition as under:-

38. Nonetheless we find from the record and from the permissions granted by the MCZMA that 0.479 Hectors of mangrove area, comprising of 72 mangrove trees are required to be diverted. In this regard in the approval granted by the MCZMA, an obligation is cast on the petitioner to plant/replant 5 times the number of mangroves being removed/destroyed or replanted during the construction process. We are of the considered opinion that the mangroves being affected are only 72 in number and are not so large that their removal would have a serious environmental impact. We are accordingly inclined to apply similar orders as passed by this Court in CIDCO Vs. Government of India10, and the co-ordinate Bench of this Court in Kharghar Vikhroli Transmission Pvt. Ltd. Vs. The Union of India & Ors.11 and Maharashtra Maritime Board Vs. Union of India & Ors.12 which are noted by us in some detail in our judgment on the lead petition.

39. We are also of the clear opinion that in regard to the interpretation of the 2011 Notification, in the context of the project in question in this petition, our decision on the lead writ petition (Writ Petition No.759 of 2021) (supra) would squarely govern in the facts of the present case.

40. The petition is accordingly allowed in terms of prayer clause (a), subject to the petitioner placing on record of this Court within two weeks from today an undertaking that the petitioner shall comply with all the other terms and conditions as set out in the approval granted by 10 2020 SCC Online Bom. 4191 11 Writ Petition (st) No.96276 of 2020, decided on 4 February 2021

12 Writ Petition (l) no.44 of 2019 decided on 25/2/2019 the MCZMA and SEIAA. Copies of which be forwarded to the official respondents. Prayer clause (a) reads thus:- “a) This Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of mandamus under Article 226 of the Constitution of India, thereby directing the respondent authorities to permit the petitioners to execute the said project being construction of Ro- Ro Jetty at Kharwadeshri and grant leave as contemplated in Condition No. 2 of the recommendation granted by the Respondent no. 2 on 5th and 6th April, 2017, and Condition No. 8 in the In-principle Approval granted by the Respondent no. 1 dated 22nd October, 2020 as also as per paragraph 83(viii) of the judgment and order dated 17 September, 2018 in PIL No. 87 of 2006 in view of the public importance of the project.”

WRIT PETITION NO.2505 OF 2021

41. This petition was listed alongwith the above lead petition (Writ Petition No.759 of 2021) which we have allowed by our above orders. In this petition, the public works in question proposed to be undertaken by the petitioner is the work of construction of proposed jetty and allied facilities at Kharekuran, Thane, for which permissions have been granted by the MCZMA and the SEIAA. The petitioner has stated that undertaking such project would not involve any destruction of mangroves as set out in paragraph 7 of the Writ Petition, wherein the petitioner has stated as under:- “7. No mangrove destruction is contemplated in the execution of the proposed project of the Petitioner.”

42. Also in the orders passed by the authorities by the MCZMA and SEIAA this position stands confirmed.

43. We are also of the clear opinion that in regard to the interpretation of the 2011 Notification, in the context of the project in question in this petition, our decision on the lead writ petition (Writ Petition No.759 of 2021) (supra) would squarely govern in the facts of the present case.

44. The petition is accordingly allowed in terms of prayer clause (a), subject to the petitioner placing on record of this Court within two weeks from today an undertaking that they shall comply with all the other terms and conditions as set out in the approval granted by the MCZMA and SEIAA. Copies of the same be forwarded to the official respondents. Prayer clause (a) reads thus:- “a) This Hon’ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ or order or direction in the nature of mandamus under Article 226 of the Constitution of India, thereby directing the respondent authorities to permit the petitioner to execute the proposed passenger jetty and allied facilities at Kharekuran, Thane, in view of the public importance of the project finding of this Hon’ble Court recorded at paragraph 83(viii) of the judgment and order dated 17 September, 2018 passed by this Hon’ble Court in PIL No. 87 of 2006.”

45. Disposed of in the above terms. No costs.

46. At this stage Ms.Jeejeebhoy has prayed for stay of this judgment and order. However, considering the facts and circumstances of the case, the request for stay is rejected. (G. S. KULKARNI, J.) (CHIEF JUSTICE)