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Judgment
By this Appeal, the Appellants have challenged the CRZ clearance, dated 4th December 2012, granted for construction of retaining walls, service road, re-location of Bharat Nagar Police chowki along the bank of Mithi River, Mumbai by M/s. Mumbai Metropolitan Region Development Authority (hereinafter referred as MMRDA). The Appellants have also made following prayers:
a. That this Hon'ble Court be pleased to issue a writ of mandamus and/or a writ/order or direction in the nature of mandamus restraining Respondent No.1, its officers, servants, agents or assigns from carrying out any operation in furtherance of the deepening and widening of the Mithi river, other than de-silting.
b. That this Hon'ble Court be pleased to issue a Writ of Mandamus, or a Writ, order or direction in the nature of mandamus directing the Respondent No.3 to issue prohibitory orders to Respondent No.1 from carrying out blasting operations in the Mithi river.
c. That this Hon'ble Court be pleased to issue a writ of mandamus and/or a writ/order or direction in the nature of mandamus to take action against and to punish the officers of Respondent No.1 appropriately for violation of the CRZ Notification, 2011 as mandated under the Environment Protection Act, 1986, for such terms of simple imprisonment and/or fine of such amounts as this Hon'ble Court deems fit and proper.
d. That this Hon'ble Court be pleased to issue a Writ of Mandamus, or a Writ, order or direction in the nature of mandamus directing the Respondent No.6(ii) to carry out a detailed study of the ecological features of the Mithi river, especially in terms of flood management.
The Appellants submit that Ministry of Environment and Forest (MoEF)-Respondent No.1 has granted the above referred CRZ Clearance in respect of construction of retaining walls and service roads along the length of the Mithi River. The project involves construction of retaining walls on the banks of Mithi River and deepening and widening measures in the Mithi River. The retaining walls will be of R.C.C. structure in the bed of the river and on its banks, in the areas falling in the CRZ-I, II and III areas. The Appellants submit that though the actual construction of these retaining walls commenced in the year 2008, the CRZ Clearance for the project was granted only on 4th December 2012.
The Appellants submit that MMRDA was carrying out blasting in the Mithi River, purportedly to deepen the river channel, and therefore, the Appellants filed PIL No.131 of 2012 in the Hon'ble High Court of Bombay in November 2012, inter alia on the grounds that the said blasting was in contravention of the CRZ Regulation 2011 and also, that Respondents did not have the requisite environmental/ CRZ clearance. Subsequent to the filing of the PIL, the impugned Environmental Clearance for project was granted on 4th December 2012 and thereafter, by order dated 5th February 2013, the Appellants were permitted to withdraw the Petition filed before the Hon'ble High Court of Bombay and file an Appeal before the National Green Tribunal within two (2) weeks from 5-2-2013 and hence this Appeal is preferred before this Tribunal.
The Appellants submit that the devastating deluge 26 th July, 2005, wherein flooding of the Mithi River was considered as an aggravating cause of damage due to the deluge and therefore, measures were suggested to restore the river in order to prevent flood situation in future. The comprehensive plan was undertaken and Mithi River Development and Protection Authority (Respondent No.7) was established to implement the measures to restore the river to its original pristine state. These measures primarily focused on widening and deepening of the river stretch in respect of improvement in the flood carrying capacity of the river. The Appellants claim that such measures essentially involve removal of encroachment on the river's floodplains and de-silting, so as to facilitate free flow of floodwaters, groundwater percolation and tidal water exchange within the riverine ecosystem. However, contrary to these widening measures, MMRDA (Respondent No.6) undertook concretisation measures in the river and on the banks of river, which have irreversibly damaged the riverine ecosystem instead of reviving it. The Appellants claim that Respondent No.6 (MMRDA) has constructed R.C.C. retaining walls on either banks of Mithi River, purportedly to channelize the river for increased water flow capacity and to prevent encroachment and therefore, claim that such retaining walls will restrict river flows and will ultimately encourage either encroachments or construction activities on the areas which used to be the riverine floodplains. The Appellants further submit that this concretization is located in CRZ area and also, in the wetland ecosystems, affecting them irreversibly.
The Appellants further submit that in PIL No.137 of 2005 Hon'ble High Court Bombay had appointed a Committee which has recommended that since the retaining walls at Wakola Nallah had destroyed stretches of mangroves along the river, in addition to irreversibly damaging the river flow capacity, river spread and alignment, the same ought to be demolished. The Appellants submit that instead of deepening the river through de-silting, Respondent No.6, MMRDA undertook extensive blasting operation inside Mithi River which was totally unauthorised and violate the very sanctity of the river and its ecosystem and has ultimately caused damages to the riverine eco-system and the environment. These blasting operations have been carried out without any CRZ/Environmental clearance. Respondent No.6 has sought to justify the unauthorised blasting on the basis of Central Water and Power Research Station (CWPRS) recommendations. The Appellants claim that such recommendations are not based on any scientific studies of the ecology of the river and CWPRS is not the competent authority to approve blasting operations in the Mithi River from environmental angle.
The Appellants further submit that though the construction of retaining walls along Mithi River commenced in 2008, the blasting operations in the river bed were undertaken in April 2012. The Respondent No.1, 3 and 4 have not taken any cognizance of the violations of CRZ Notification while recommending and granting the impugned CRZ clearance, though they were required to do so in view of the standing OM and also, as per CRZ notification. The Appellants submit that Respondent No.3-(MCZMA) vide letter dated 18-6-2012 addressed to Respondent No.1-MoEF recommended the project proposal. The Appellants claim that such recommendation, itself is in violation of CRZ Notification 2011, as the Respondent No.3 has failed to ensure that necessary scientific studies, as specified in CRZ Notification, were conducted prior to such recommendations and also, before undertaking any activities in CRZ areas. The Appellants submit that based on such recommendations of Respondent No.3, which are itself in violation of Regulation, Respondent No.1 i.e. MoEF granted the impugned CRZ clearance without verification of fact situation and also, without ascertaining or conducting any scientific studies or without any proper inspection. Therefore, the Appellants claim that the continued development of the project, which has been granted the CRZ permission through the impugned clearance, has affected the entire wetland ecosystem of Mithi River through destruction of mangroves and hardening of mudflats due to reduced tidal exchange with increased siltation due to project activities. Therefore, the Appellants pray for quashing the Environmental CRZ Clearance and orders for restitution and restoration of riverine ecosystem of river Mithi.
The Appellants filed further additional Affidavit as ordered on 21st March, 2013 and submitted various orders issued by Hon'ble Bombay High Court in PIL No.137 of 2005. In short, it is the submission of the Appellants that Hon'ble High Court of Bombay has time and again raised appropriate queries regarding the possible environmental effects of such retaining walls and service roads, particularly, effect on tidal movement and mangroves present in that area.
Respondent No.1 i.e. Ministry of Environment and Forest (MoEF) filed an Affidavit on 15-7-2013 and raised preliminary objection that no case is made out under Section 14 of National Green Tribunal Act as the present Application neither discloses nor involves any substantial question related to environment as per the provisions of National Green Tribunal Act, 2010. It is also submitted that the impugned clearance was issued on 4-12-2012 and was uploaded on its website on 31-12-2012. This Appeal was filed on 15-2-2013, thus it is barred by Limitation and merits dismissal, on this ground itself. The Respondent No.1 submits that the proposal received from MMRDA through MCZMA, was duly considered by the Expert Appraisal Committee (EAC) of MoEF in its meeting held in September 2012, which did not include any blasting operation. MoEF further submits that the clearance specifically prohibits any kind of construction in mangrove stretches. MoEF further submits that the said proposal was recommended by Maharashtra Coastal Zone Management Authority (MCZMA) vide their letter dated 18-6-2012 and based on such recommendations, documents submitted by the project proponent and the additional clarifications furnished in response to its observations, such CRZ clearance has been granted, subject to strict compliance of conditions regarding environment safeguards. The Respondent No.1 therefore, prays for dismissal of the Appeal.
Respondent No.2 filed an Affidavit on 29-4-2013 and submitted that no relief what-so-ever is claimed or sought against the Respondent No.2. Neither there is any reference nor allegations, regarding Respondent No.2. And therefore, Respondent No. 2 submits that its name may be deleted and dropped as the matter mainly related to CRZ Clearance and environmental issues related to the proposed project.
Respondent Nos. 3 and 4 (Maharashtra Coastal Zone Regulatory Authority and Department of Environment, Maharashtra, respectively) of filed an Affidavit on 17-5-2013 and submitted that the deepening and widening of Mithi River, amongst other components of Mithi river project, was undertaken by Respondent No.6 (MMRDA) for the improving a tidal exchange and ensuring adequate conveyance capacity during floods in Mithi River and Wakola Nallah. It is further submitted that such proposal was recommended by the Respondent No.3-Maharashtra Coastal Zone Management Authority (MCZMA) to the Ministry of Environment and Forest (MoEF) vide letter dated 18-6-2012. Subsequently, Respondent No.1 i.e. MoEF granted CRZ Clearance for the project through the impugned clearance letter. The Respondent Nos. 3 and 4 further submit that Respondent No.6 has obtained necessary permission from the Commissioner of Police and Joint Chief Controller of Explosives to carry out blasting operations in River Mithi. Further Central Institute of Mining and Fuel Research (CIMFR) conducted study of underwater blast design in Mithi River and submitted report on methodology to avoid adverse effects of underwater blasting of marine environment. It is further submitted that under the provisions of CRZ Notification 2011, changing natural course of sea water is permissible in case of measures required for control of erosion, maintenance or cleaning of waterways, channels etc. Respondent Nos. 3 and 4 submit that considering the public purpose involved in the proposal, MCZMA considered the proposal and recommended the same to MoEF.
The Respondent No.6, i.e. Mumbai Metropolitan Regional Development Authority, (MMRDA), filed an affidavit on 21st May, 2013, and submitted that the construction of Retaining wall, is undertaken as per the recommendations given by the Central Water and Power Research Station (CWPRS) in its report dated January, 2006, wherein, it has been stated that to accommodate floods, corresponding to 50 years and 100 years return period, there is need for raising the existing bank level by providing the flood wall. Accordingly, the report recommends that top-RL of the retaining wall be kept at 6.0 m. MMRDA further submits that wall construction is not completely water tight and sufficient provisions have been made for water to percolate through the gaps thereby maintaining the equal water level on both the sides of wall. Such openings are provided with 900 mm, RCC pipes for water to percolate. MMRDA further submits that deluge of 26th July, 2005, caused serious concerns over the blockages and poor drainage capacity of Mithi River and PIL - Writ Petition No.2116 of 2005, was filed regarding restoration of the draining capacity of Mithi River. The Hon'ble High Court of Bombay had issued several directions in the Petition. MMRDA further submits that they appointed IIT- Powai, and CWPRS, for various studies and the Hon'ble High Court in the said Petition took note of the fact that CWPRS recommended to increase the carrying capacity of river by undertaking deepening and widening works. The first phase comprises of deepening, widening and de-silting of Mithi River and resettlement project of affected persons. The second phase work comprises of pitching, construction of retaining wall, construction of service roads, landscape development, and beautification work on either side of the river along with widening and deepening works. The construction of retaining wall, is completed 83% of entire retaining wall running 8.51 Km. Cutting of rock in the river bed, is part of deepening and widening of Mithi River. MMRDA relied on the report of CWPRS dated 31st August, 2010 to further justify development of retaining wall and the service roads construction and claimed that the said construction activities are part of recommendations of the CWPRS. MMRDA claims to have adopted precautionary measures while carrying out blasting in the river bed by adopting controlled blasting methodology, by consulting and following the guidelines of the Central Institute of Mining and Research (CIMR), Nagpur. MMRDA claims that entire proposal as regards to deepening and widening of the river and construction of retaining wall was submitted to MCZMA and then to MoEF and these Authorities, after due appraisal, have granted CRZ Clearance for entire activities. MMRDA claims that nowhere the mangroves are removed in the construction of retaining wall and in fact, precaution has been taken to by providing suitable provisions for tidal current exchange in the saline zone to protect the mangroves.
The Respondent Nos.6 and 7 also submitted copies of the documents, submitted to MCZMA, prior to its recommendations to the MoEF, vide letters dated 14th March, 2012 and 31st May, 2012, namely, CRZ Maps, EIA Report and Disaster Management Plan. The Respondent Nos.6 and 7 therefore pleaded that the State Authorities have carried out development of retaining wall and the service roads and also widening and deepening of River Mithi in response to extraordinary situation arose, after huge deluge in Mumbai on 26th July, 2005. The Respondent Nos.6 and 7 also submit that they have acted in public interest in compliance with the directions issued by the Hon'ble High Court of Bombay from time to time in the related Writ Petition and the Authorities have not concealed or hidden any activities. Necessary permissions have been obtained from different Authorities, including MoEF for the development activities, and its activities are in the public domain and therefore, the Respondents pleaded that the Appeal may be dismissed with costs.
Maharashtra Pollution Control Board, (MPCB), Respondent No.5, filed an affidavit on 9th June, 2013, and submits that the Writ Petition bearing PIL No. 2116 of 2005, is being heard before the Hon'ble High Court relating to deluge in Mumbai, due to River Mithi floods on 26th July, 2005. The Govt. of Maharashtra had constituted an Authority i.e. the Respondent No.7, to monitor the overall restoration of Mithi River. One of the tasks under the said Authority was to identify causes of pollution in Mithi River and to suggest remedial measures for the same. MPCB carried out extensive survey of Mithi River regarding above PIL, as per the directions of the Hon'ble High Court and actions were initiated against unauthorized units for closure and disconnection of electricity and water supply. In 2003, MPCB issued directions of disconnection of electricity and water supply of 210 units and after receipt of representations a Fact Finding Committee (FFC), was appointed and caused inspection of the area. The Committee also identified that there are several streams where untreated domestic sewage is also meeting to River Mithi and therefore, MPCB has informed Municipal Corporation of Greater Mumbai (MCGM), to provide sewage treatment facility, particularly, decentralized small STPs to ensure domestic wastes do not meet Mithi River. MPCB subsequently filed several affidavits mainly in compliance with directions of the Tribunal and also had submitted proposed action plan for control of Mithi River pollution, with action taken report, which is on record. (PP-462). MPCB also claims that there are several areas in the catchment of Mithi River, where large number of industrial clusters, are operating in unorganized manner and MPCB is not in a position to verify the compliances in those areas, as such small industrial units are operating without consent of the Board and also, it is difficult for MPCB staff to approach such areas.
MPCB has further filed an additional affidavit in March 2014, and submitted that MCGM has submitted a proposal for providing three (3) STPs of 11 MLD sewage for catchment area of Mithi River. MPCB submits that total generation of sewage in the Mithi catchment area is about 202 MLD and as per the report of IIT, Powai, there is need of installation of STP at 37 locations and therefore, proposal submitted by MCGM, is highly unsatisfactory and MCGM has not submitted any action plan for implementation and also, how these 3 STPs can substitute earlier 37 STPs suggested by IIT. MPCB also submitted a comprehensive study of profiling of Mithi River, which also contained a long term and short term action plan. In sum and substance, it can be seen that MPCB is of the clear opinion that water quality of Mithi River, is polluted and pollution is being continuously caused by various unauthorized industrial sectors along River Mithi and a large quantity of untreated domestic sewage. However, MPCB contends that they have hardly any active role as MCGM, is required to remove unauthorized constructions, as per orders of the Hon'ble High Court and also provide necessary sewage treatment facilities.
Municipal Corporation Greater Mumbai (MCGM) - Respondent No.8, filed an affidavit on 9th August, 2014, and submits that they have appointed IIT, Mumbai, as technical advisor for sewage catchment in the Mithi River on 15.5.2014. MCGM further informs that IIT, will submit report in eight (8)months time and it is stand of MCGM that based on IIT report further water pollution abatement measures will be implemented in phase-wise manner and as per feasibility of studies. MCGM further submits that IIT vide their email dated 17.7.2014, informed that it is not feasible to install 37 STPs as earlier suggested by IIT itself. MCGM submits that henceforth no permission/renewal will be given by MCGM to any of the industrial units in the catchment of Mithi River to conduct any trade, without NOC from MPCB. MCGM, therefore, prays that Appeal may be disposed of accordingly.
Considering the pleadings and arguments of the learned Advocate for the parties, following issues can be framed for adjudication:
1) Whether the Appeal is barred by Limitation as claimed by Respondent No.1 ?
2) Whether due process of granting CRZ clearance have been followed by MCZMA and MoEF ?
3) Whether necessary safeguards have been incorporated while granting CRZ clearance?
4) Whether the blasting activities conducted by MMRDA have caused environmental damages? If yes, what is the nature and scope of such damages, and what remedial/restoration measures are required to be taken ?
5) Whether the steps taken to control water pollution of Mithi river are adequate or any further directions are required to be issued in this regard?
6) Whether the CRZ clearance is liable to be quashed and any specific directions are required to be issued to the Authorities to protect the riverine ecology of River Mithi ?
Issue No. 1.
Respondent No.1-MoEF in their reply Affidavit have contended that as the impugned CRZ Clearance was granted by the Respondent No.1 on 4th December, 2012 and was subsequently uploaded on the website of MoEF on 31st December 2012, the present Appeal is not filed within the limitation prescribed under Section 16 of National Green Tribunal Act and thus, liable to be dismissed. Neither the other Respondents have taken such plea, nor said contention was pressed by MoEF during the hearing and final arguments. However, the learned counsel for MMRDA pleaded that the subject matter of provision of retaining walls and also, widening and deepening of River Mithi is already considered by Hon'ble High Court of Bombay in Writ Petition No.2116 of 2006 and is also the subject matter of another two petitions which are still pending.
It is noticed that the issues related to deepening and widening of River Mithi and also construction of retaining wall and service road have been subject matter of PIL W.P. No.2116 of 2005 before the Hon'ble High Court, Bombay. Hon'ble High Court, Bombay, has issued directions in this Writ Petition from time to time, which have been heavily relied by the Respondent No.6 and 7 while justifying the construction of retaining wall and also the widening and deepening of River Mithi. The Hon'ble High Court in the above petition on 31st August, 2005, had issued specific directions which are as under :
i. The Respondents are directed to identify all illegal unlicensed commercial units on the banks of Mithi River. The concerned authorities are directed to give them notices within ten days from today and pass a reasoned order in accordance with law within two weeks thereafter. This exercise shall be carried out by the Municipal Corporation of Greater Bombay and Maharashtra State Pollution Control Board.
ii. The Respondents shall take all necessary steps to ensure a check on the daily discharge of waste effluents, dumping activities and prosecute the offenders under the provisions of the Environment Protection Act 1986 and the Water (Prevention and Control of Pollution) Act, 1974. This exercise must be carried out by Respondent No.8 (MPCB). We direct Respondent No.3-BMC to provide proper garbage collection system to prevent people from dumping garbage into Mithi River.
iii. Respondent No.3 is also directed to ensure that no new encroachments or industrial activities on the riverbank are permitted. No new licences from industrial activities on the bank of the River shall be issued without the leave of this Court. Respondent No.3 shall ensure that adequate numbers of temporary latrines are constructed to avoid people using the River/its banks as a public toilet.
Subsequently, on 1st March, 2006, Hon'ble High Court, Bombay has noted the MMRDA's submission that CWPRS Khadakwasla in his final interim Report recommended increasing the carrying capacity of river by undertaking deepening and widening works. Similarly, Hon'ble High Court, Bombay in PIL 2116 of 2005, in its orders dated 1st March 2006 (para 4, 5, 6 and 7) gave directions for removal of encroachments within thirty (30) mtrs. width on either side of the river by 31st May 2006.
Further unauthorised industries were directed to be closed by the MPCB. The Hon'ble High Court also accepted the proposal of MMRDA to implement Mithi River Development works in two phases i.e. Phase-I consisting deepening, widening and de-silting of Mithi River and Phase-II comprising pitching, construction of retaining wall, construction of service road, landscaping, development, beautification work on the either sides of the road along with additional widening and deepening works. Hon'ble High Court on 17th January 2007, noted that the first stage has been completed satisfactorily and with a hope that the second stage will also be completed in due course, and thereafter, disposed of the Petition noting that nothing further is required to be directed in the Petition.
The Appellants had also filed PIL W.P. No.131 of 2012 before the Hon'ble High Court of Bombay, inter alia on the grounds that the riverbed blasting works are in contravention with the CRZ Rules and Respondents have not obtained requisite Environmental Clearance. Subsequently, the impugned Environmental Clearance was granted on 4-12-2012 by Respondent No.1 and by order dated 5-2-2013 the Appellants were permitted to withdraw the Petition filed before the Hon'ble High Court of Bombay and filed an Appeal before the National Green Tribunal within a period of two (2) weeks from 5-2-2013. Incidentally, the present Appeal was filed before the National Green Tribunal, Principal Bench, New Delhi, on 16-2-2013, which is within two (2) weeks from 5-2-2013. Subsequently, the matter was transferred to Western Zone Bench of National Green Tribunal as this Western Zone Bench started functioning since August 2013.
In view of the above, it is clearly established that as the Appellants have filed the present Appeal within 15 days, as per the order of Hon'ble High Court, Bombay, dated 5-2-2013, the present Appeal is well within the limitation and therefore, being proceeded with. The Issue No. 1 is accordingly settled in NEGATIVE.
However, considering the legal position mentioned above, the scope of Appeal will be restricted to the compliance of due process of law while granting the environmental CRZ clearance, incorporation of adequate environmental safeguards, due diligence of the base-line environmental status and the project status while appraisal of the project.
Issue No.2 :
The main allegation of the Appellants is that the Statutory Authorities i.e. MCZMA and MoEF have not followed due process of law before granting the impugned clearances. We have gone through the Affidavits of MCZMA and MoEF. The MCZMA Affidavit submitted on 17 th May 2013 mentions that the proposal of MMRDA for construction of retaining wall and service road was recommended by MCZMA to MoEF on 18-6-2012. Subsequently, MoEF after due consideration of the proposal, have granted impugned clearance. The Affidavit further mentions that the MCZMA considered the proposal in detail and also, considering the public purpose involved in the project, the proposal was recommended to MoEF. The MoEF's Affidavit filed on 15-1-2013 mentions that the said proposal was considered by Expert Appraisal Committee (EAC) in its meeting held in September 2012. MoEF further submits that MCZMA has recommended the proposal vide letter dated 18-6-2012 and considering the documents submitted by Project Proponent, additional clarifications furnished in response to observations and also MCZMA recommendations, the MoEF has granted the impugned CRZ clearance. MoEF further categorically submits that the clearance clearly prohibits any kind of construction in mangrove stretches and also, CRZ clearance does not include any blasting operations.
In view of such claims and counter claims, it will be useful to refer the provisions of CRZ Notification as applicable for such CRZ clearances. Rule 4 of CRZ Notification 2011 prescribe the regulation of permissible activities in the CRZ area. Sub-Rule 4.2 prescribe the procedure for clearance of permissible activities. The procedure mentioned in the Sub-Rule 4.2 is as under :
(i) The project proponents shall apply with the following documents seeking prior clearance under CRZ notification to the concerned State or the Union territory Coastal Zone Management Authority;-
(a) Form-I (Annexure-IV of the notification)
(b) Rapid EIA Report including marine and terrestrial component except for construction projects listed under 4(c) and (d).
(c) Comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory Administration;
(d) Disaster Management Report, Risk Assessment Report and Management Plan;
(e) CRZ map indicating HTL and LTL demarcated by one of the authorized agency (as indicated in para 2) in 1:4000 scale;
(f) Project layout superimposed on the above map indicated at (e) above;
(g) The CRZ map normally covering 7 km radius around the project site;
(h) The CRZ map indicating the CRZ-I,II, III and IV areas including other notified ecologically sensitive areas;
(i) No objection Certificate from the concerned State Pollution Control Boards or Union territory Pollution Control Committees for the projects involving discharge of effluents, solid wastes, sewage and the like;
(ii) The concerned CZMA shall examine the above documents in accordance with the approved CZMP and in compliance with CRZ notification and make recommendations within a period of sixty days from date of receipt of complete application;
(a) MoEF or State Environmental Impact Assessment Authority (hereinafter referred to as the SEIAA) as the case may be for the project attracting EIA notification, 2006;
(b) MoEF for the projects not covered in the EIA notification, 2006 but attracting para 4(ii) of the CRZ notification;
(iii) MoEF or SEIAA shall consider such projects for clearance based on the recommendations of the concerned CZMA within a period of sixty days.
The Appellants have submitted a copy of the recommendations of MCZMA dated 18-6-2012 submitted to MoEF. It is seen from the letter that said proposal of MMRDA was considered in the 7th meeting of MCZMA held on 26th August 2011 and after due deliberations, the MCZMA Authority decided to recommend the proposal to MoEF, only after submission of following documents to the authority by MMRDA as reflected in the minutes of the MCZMA.
a) The MMRDA need to submit the documents as mentioned in para 4.2 of CRZ Notification 2011 such as EIA report, Disaster Management Report etc.
b) Prior permission of Hon'ble High Court is required in accordance with the Hon'ble High Court order dated 27-01-2010 if the project involves destruction of mangroves.
c) Details of the work along with design, length, and mangroves affected area details and measures to ensure the tidal flow to mangroves.
The letter further mentions that the MMRDA on 31 st May 2001 submitted EIA Report Disaster Management Plan, Development Plan showing location and alignment of works to MCZMA. The learned Advocate for Appellants would allege that the sequence of events and the chronology as referred in the above letter clearly demonstrate that the authority i.e. MCZMA decided to recommend the project on 26th August 2011 despite the fact that the mandatory documents mentioned in said Rule 4.2 were not submitted by the project proponent and in spite of such gross incompletion of the process, the MCZMA Authority decided to recommend the project which is an abuse of process of law. The learned counsel further submitted that even when MCZMA finally recommended the proposal to MoEF on 18-6-2012, there is no document to show on record that the authority considered and examined or appraised these documents at any stage. The MCZMA Secretariat just forwarded the documents to MoEF without bringing such documents before the Authority.
Countering such allegations, the learned counsel for MMRDA submitted that the MCZMA in the instant case is not the Authority which is authorised to grant the final CRZ clearance and such Authority i.e. MoEF had all the necessary documents before it, for appraisal and consideration and therefore, even if it is considered that the MCZMA did not evaluate or appraise the project document, this will not vitiate the entire process of grant of CRZ.
Considering the rival arguments, we had asked Respondent No.3 was asked to show whether such documents were placed before the MCZMA Authority before such recommendations? However, the said information could not be submitted by Respondent No.3, as allowed in the order dated 6th September 2014. However, MMRDA submitted the copy of documents submitted to MCZMA.
The another contention raised by learned counsel for the Appellants is that the construction of Retaining wall commenced in 2008 and a major portion of retaining wall was constructed prior to grant of CRZ clearances. Similarly, a large percentage of service roads development, widening and deepening works, blasting activities etc. were completed prior to grant of CRZ clearance. The learned counsel for Appellants submit that such an important fact was not even considered and recorded by both these Authorities i.e. MCZMA as well as MoEF and it seems that no physical verification or inspection has been carried out by both these authorities, though this project relates to Mithi River which affected the entire Western Mumbai due to the deluge in 2005 and also, there are some ongoing litigations related to the subject matter. The learned counsel further submits that the large part of the mangroves area is affected due to the construction of Retaining walls and service roads, which are clearly demonstrated by photographs on records, indicating that the retaining walls are bisecting the mangroves stretches and further service road are being developed by rubble and construction waste material filling. It is the contention of the Appellants that considering such sensitive nature of the project proposal, it was incumbent on the statutory authorities, to verify the present status of the project during the appraisal process and whether the environmental safeguards, if so taken by project proponent, are adequate or not or whether such project is posing a threat to the riverine ecosystem including the mangroves. The Appellants, therefore, alleged that both these authorities have not applied their mind and it cleared the CRZ clearance due to certain other factors.
The definition of the word "examination" is given in The Law Laxicon as follows:
Weighing, balancing; search, minute inspection; investigations; inquiry; and investigation made in order to form a judgment Thus the examination does include inquiry, investigations in order to form a judgment. The use of word "examination" in CRZ notification sub-rule 4.2, therefore shows comprehensive efforts that are involved for arriving at a decision or judgment, by following basic principles of administrative decision making.
The definition of the word "Appraisal" as given in Black's Law Dictionary is as follows:
"Appraisal -
i. The determination of what constitutes a fair price; valuation; estimation of worth.
ii. The report of such a determination. - also termed appraisement."
Thus, appraisal of the project does require evaluation as well as estimation of worth for the purpose of assessment/determination thereof. Needless to say, the process of "Appraisal" requires application of mind, independently, and evaluation of the material in order to find out whether it is a project worth grant of CRZ clearance or for the purpose of refusal of same, as the case may be.
In "Uttkarsh Mandal Vs. Union of India & Ors." 2009 (10) AD (Delhi) 365 WO(C) No. 93401/2009, etc. a division bench of the Hon'ble Delhi High Court elaborately considered the meaning of expression "Appraisal". The relevant observations may be reproduced below:
"................ Consequently, the exercise expected to be performed by the EAC (Mines) is a serious one and has to include a consideration on merits of the objections raised at the public hearing. Its decision must reflect this. We do not accept the contention of the learned ASG that as long as the MoEF while taking the ultimate decision has applied its mind to the objections raised at the public hearing, the requirement in law would be satisfied. The whole purpose of "outsourcing" the task to an EAC comprised of experts was to have a proper evaluation of such objectives on the basis of some objective criteria. It is that body that has to apply its collective mind to the objections and not merely the MoEF which has to consider such objections at the second stage. ..............
................. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non application of mind to relevant materials and therefore arbitrary."
In order to understand the examination/appraisal process at EAC/MoEF, the relevant Minutes of September 2012 recommending the project are reproduced below :
4.4 CRZ clearance for retaining wall service road, relocation of police chowki along the bank of Mithi River Mumbai M/s. MMRDA F.no.11-64/2012/IA-III.
As presented by the project proponent, the project involves construction of an 11 km long retaining wall on the Mithi river at S.No.4, Parigh Khadi, a retaining wall on Vakola nalla at S.No.378, Kolekalyan & 341 of Bandra and construction of Bharat Nagar Police Chowki along the bank of the Mithi river. The development shall comprise of 9,320 m2 area for the retaining wall and for the service road 55,671 m2 area. The total permissible built up area of proposed project for retaining wall (11 km): 9,320 m2 and for service road : 55,671 m2. This Proposed construction of retaining wall will provide improved tidal exchange and adequate conveyance capacity during floods in Mithi river & Vakola Nalla. Service road along the retaining wall will be used for periodic desilting operation in the river & adjoining channels. Encroachment will be arrested in the river bed. The Mithi river meets Arabic sea at Mahim causeway bridge. The total water requirement during Construction Phase is 6 m3/day (for construction purpose only. No water will be required after completion of work). The power supply necessary for the proposed project will be met by D G set of capacity 100 kVA. Fuel required : 10 Ltr/hour. The estimated project cost is approximately Rs.193.37 Crore.
MCZMA had recommended the project vide letter No.CRZ-2010/CR-219/TC-3 dated 18-06-2012. Retaining wall on Mithi River falls in CRZ-I, II & III) and the relocation of Police Chowki in CRZ-II. During the discussion, the following points emerged:
i) All the recommendations of MCZMA shall be complied with.
ii) There shall be no waste disposal in CRZ area.
The Committee recommends the proposal for CRZ Clearance with the above condition in the Clearance letter for strict compliance by the project proponent.
Considering the above submissions and the documents available on record, it is established that the MCZMA Authority while recommending the project on 26-8-2011 did not have an opportunity to evaluate and appraise the documents as prescribed in Sub Rule 4.2 of CRZ Notification 2011. However, even after submission of such documents by MMRDA vide letter dated 31-5-2012, there is no document on record to show that the Authority had an opportunity to evaluate such document before sending the MCZMA recommendations on 18-6-2012. The MoEF had an opportunity to go through the documents in its EAC meeting but the documents, particularly the minutes referred above, do not reveal any reference to the critical nature of the project, completion of large part of the project before such clearance, provision and adequacy of the environmental safeguards, effect of already existing structure on riverine structure and also the mangroves, adequacy of stretches system for tidal exchange, water quality status of River Mithi, filling of garbage and rubble for the development of service road, compliance of orders of Hon'ble High Court of Bombay in the related matters etc.
When the CRZ notification requires an examination of the project, by expert bodies like MCZMA and EAC/MoEF, the record must indicate a due and proper application of mind by the Authorities to all aspects of environmental concern. This may include several aspects which may vary from project to project like; tidal exchange capacity, mangrove types and health, effect of project activities on mangroves, the safeguards that must be introduced in order to ensure that the adverse impacts of the project are contained within prescribed statutory requirements. This list of factors, to clarify, is not exhaustive. But the important point to be noted is that the MCZMA and EAC are important instruments of ensuring regulatory compliance and environmental governance in accordance with law. The decision making process of those authorities besides being transparent must result in a reasoned conclusion which is reflective of a due application of mind to the diverse concerns arising from a project such as the present. The mere fact that a body is comprised of experts is not sufficient a safeguard to ensure that the conclusion of its deliberations is just and proper. That safeguard, particularly for the wider community, must be reflected in the manner in which the authority conducts its process and in the outcome of its process. In matters of environmental governance the only available safeguard for the community at large is that the process which the authority follows must adhere to fair and transparent principles established by law and that the reasons which emanate from the public body must be suggestive of the decision maker having taken into consideration all relevant aspects and having borne in mind the need to preserve and protect the environment.
It is not on record as to why such above referred important aspects have not been covered by the MoEF in its appraisal process. The MoEF has already issued OM dated 16.11.2010 wherein a procedure has been spelled out for prior development or construction before obtaining the EC/CRZ clearances and also seeking report on the present status of the project. I am therefore constrained to note that no such due diligence and appraisal of project have been conducted by the Respondent-Agencies. It is evident from the photographs that the project is in CRZ area and there are several mangrove patches along the retaining wall and service roads. It is also noted that the subject matter was already challenged before the Hon'ble High Court in Petition No.131 of 2012.
The role of environmental regulatory Authorities in environmental clearance process is important. Hon'ble High Court of Bombay in PIL No.115 of 2010 Navlakh Umbre_Parisar ..Vs.. Union of India And Others, 2012) has held that :
Courts in India have accorded a constitutional position to sustainable development, sourcing the doctrine from Articles 21, 48, 48A and 51A of the Constitution. Directions have been issued from time to time to foster an effective administrative set up for preventing environmental degradation resulting from developmental activities (M. C. Mehta v. Union of India and Ors.1). In matters involving environment and ecology, the doctrine of Public Trust enjoins the Government to protect resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" 2, indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust. The doctrine, in its present form, was incorporated as a part of Indian law by the Supreme Court in M. C. Mehta v. Kamal Nath3 and also in M.I. Builders v. Radhey Shyam Sahu.
The precautionary principle and the polluter-pays principle were also recognized in M. C. Mehta where the Court held that the principle of sustainable development involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. The Supreme Court held that the State government committed a patent breach of public trust by leasing ecologically fragile land for a Motel, and ordered compensation by way of costs for the restitution of the environment and ecology of the area. In Vellore Citizens Welfare Forum v. UOI5 the Supreme Court ordered the closure of all the tanneries in certain districts which did not invest in effluent treatment plants and held that "Environmental measures by the central government and the statutory authorities must anticipate prevent and attack the causes of environmental degradation and where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
Considering all these above, I am of the considered opinion that necessary process of law as prescribed in Sub Rule 4.2 has not been followed while appraising the proposal of MMRDA for CRZ clearance. I am also of the opinion that the Expert Appraisal Committee has not applied its mind on the various critical issues which are mentioned above. In the present case, the entirety of the appraisal of the MCZMA and MoEF/EAC is contained in the extract which we have set out above. That in my view does not satisfy the requirements of a transparent, scientific, accountable and responsive decision making process. And therefore, the issue No.2 is settled in NEGATIVE.
Issue No.3 :
The proposed project involves deepening and widening of River Mithi, provision of retaining wall and development of service roads along the banks of River Mithi. It is an admitted fact that large stretch of River Mithi experience tidal exchange and is covered under CRZ Notification. It is also on record that there are large tracks of mangroves in some stretches of River Mithi, particularly towards its mouth and Vakola nalla. The retaining wall construction near mangrove stretches seems to be a concern identified by Respondent No.7 right from beginning as the its Minutes of 25th May 2010 meeting clearly records that NEERI has flagged such concern, in view of mangroves. In fact, the Authority had directed that the retaining walls near the mangroves shall be properly designed in consultation of experts. A Report of CWPRS of August 2010 titled "Site Inspection and Model Study for Tidal exchange in mangrove area adjacent to Wakola Nalla Mumbai" is also on record. The Report notes that MMRDA had decided to adopt vertical Reinforced Cement Concrete (RCC) retaining walls on either bank of river and have service roads along the banks for periodic de-silting operations in the river. Further, the report also mentions that while implementing the channelization proposal for Wakola Nalla, a retaining wall has been constructed by MMRDA along right bank abutting the embankment separating the mangroves from the Nalla. The report also notes that the existing unfinished service road was covered with mounds of debris and dismantled building material. The report further goes on evaluating adequacy of drainage pipes to provide adequate tidal exchange for the mangroves protection. It is observed from the report that certain development activities of retaining wall and service road were carried out in the area which might have mangrove patches earlier or even during preparation of the report, the mangroves are just adjoining these structures. It is not clear how the directions of the Hon'ble High Court and also condition of the CRZ Notification of maintaining 50 Mtr. buffer were complied with.
Needless to say all such aspects should have been evaluated by specialized body like MCZMA and subject specific EAC of MoEF in the appraisal process. There is nothing on record to show that except for mentioning that no mangroves should be affected, any scientific exercises or evaluation has been carried out for evaluating the need and extent of retaining walls, adequacy of tidal exchange capacity of cross drainage works and impact on riverine ecosystem. It is also not on record whether either of these expert bodies has conducted any physical inspection of the site, more particularly, when a large part of the work was already executed. Though the MMRDA seems to have taken some safeguards, including, provisions for the tidal exchange in the particular stretches, it would have been prudent if these expert authorities would have examined the project in its totality. Unfortunately, the MCZMA never had the opportunity to go through the EIA report etc before making such recommendations.
Another aspect of this development activity is the blasting carried out in river bed as a part of widening and deepening of river bed. Respondent No.1 has already placed on record that the blasting activity is not the part of the CRZ clearance granted to MMRDA. The learned counsel for MMRDA would draw our attention to the presentation given before the Expert Appraisal Committee (EAC) of MOEF wherein all the project activities including deepening, rock excavation, widening etc. were presented before the EAC and in fact, the physical progress in percentage and cost incurred for execution of all the works including deepening, widening, rock excavation, construction of retaining wall and service road were placed before the Expert Appraisal Committee. In other words, the Expert Appraisal Committee was having knowledge that large part of the project activities have been completed while the project was being appraised by the Committee. The relevant table of progress as produced by MMRDA in their presentation to EAC is reproduced below :
Overall Physical Progress of Phase I and II works
Description
Estimated
Up to date
Physical
Quantity
executed
Progress in
Quantity
percentage
1.
Deepening (cum)
2615763
2769274
100 %
2.
Widening (cum)
824690
746136
90 %
3.
Rock
excavation
440244
256010
58 %
(cum)
4.
Construction
of
8.51
7.54
89 %
Retaining
wall
in
Km
5.
Service Road in Km
6.10
3.96
65 %
6.
Beautification work
1.12
1.12
100 %
in Km
During the proceeding, noting the controversy related to blasting activities, we asked the NEERI, Mumbai, to conduct Environmental Impact Assessment of the blasting activities in Mithi River, which was submitted in March 2014. The NEERI has made following recommendations :
Recommendations :
- The rock blasting operation should be discontinued due to its impact on biodiversity and ecosystem.
- The entire stretch of about 3-4 km (starting from BKC to Mahim bay) has very shallow depth and creation of partial 1-1.5 m depth in limited portion will not yield major improvement in hydraulics. Also for the reason that outside in the bay area, slope is almost similar.
- Due to limited slope, blasting based space creation in the bed, high siltation is likely to take place and therefore, regular cleaning of the water way through traditional mode of dredging will be more desirable.
- Wherever river slope has been sharply cut, it should be rectified so that natural slopes on the river banks are maintained.
- Silt removal in the entire river stretch should be carried out periodically throughout the year and not only once before mansoon. This would prevent any excessive siltation across the river bed.
- The river mouth widening proposal in future should also be examined from an angle that mangrove island (between Mahim Bandra road bridge and railway bridge) would then come in direct current forces of the sea high tide and high erosion can take place.
- Hutment removal on the bank should also follow creation of natural slopes and not sharp edges.
The learned Counsel for MMRDA fairly submits that considering the NEERI's Report and also the stance of MoEF, they will not go ahead with blasting operations till they get the necessary Environmental Clearance. However, it is the matter of concern that the Impact Assessment carried out by NEERI which clearly mention that the retaining walls constructed in the area indicates that the estuarine character of the place has been completely altered and there will be severe impact on species composition and abundance. In view of the above, I hold that there is a need to review the environmental safeguards which have been incorporated in the CRZ Clearance in totality by assessing the adequacy of existing safeguards provided by MMRDA and considering the reports and documents as may be available. The Issue No.3 is accordingly answered in NEGATIVE.
Issue No.4 :
As referred above NEERI report indicates that there are irreversible environmental impacts including increased sedimentation, effect on mangroves, mud flats etc. What can be interpreted by extrapolation that suchCblasting activities must have resulted in increased sedimentation in the downstream area. Prima-facie, the photographs enclosed in the Appeal also show large scale sedimentation at the mouth of river. It is a matter of concern that though MMRDA had included the rock excavation in their presentation before the EAC, the same aspect has not been evaluated by the EAC. The construction of retaining walls and service roads were the components of the overall project of widening and deepening of Mithi River and such components cannot be considered in isolation when Environmental Appraisal is being done. Such process of isolated appraisal defeats the purpose of Environmental Impact Assessment. The documents on record submitted by MMRDA indicates various components of the works, overall estimated quantities, up to date executed quantities, physical progress in percentage and the cost incurred were presented before EAC and therefore, it is not the case of MoEF also that such other components of the project have not been placed before the EAC, but the only stand of MoEF is that the blasting is not included in the CRZ Clearance. In case the blasting is not allowed or recommended by the EAC, the EAC should have refused such activities mentioning the reasons thereof. Mere non inclusion of certain components in the CRZ clearance, though the factual progress on execution of suchC components is brought to the notice of the EAC, is not the proper approach to deal with such environmental, sensitive project. The EAC should have taken a decision to recommend or not to recommend such activities when it was brought to their knowledge.
Based on NEERI report and also, apprehension of increased sedimentation in the downstream of river, particularly the mouth of creek, It is evident that the blasting activities have caused certain environmental damages, which needs to be assessed for its restoration. I am of the opinion that the expert Body i.e. EAC of MoEF can deal this issue in most scientific and analytical manner. The Issue No.4 is accordingly settled.
Issue No.5 :
Admittedly, the Mithi River water is polluted. MPCB has filed several Affidavits depicting a very sorry state of the river Mithi and has tried to identify various sources of water pollution. The main three contributors of water pollution have been listed as unauthorized discharge of industrial effluents from unauthorized industries located on the bank of river, untreated domestic sewage and the solid waste dumping in the river. The Hon'ble High Court of Bombay in PIL W.P. No.2116 of 2005 had issued several orders regarding the abatement of Mithi River Pollution on 1st March 2006.
The MPCB was directed to take appropriate action including the closure of those industrial units as early as possible by observing due process of law. Similarly, the Collector, Mumbai sub-urban District was directed to remove the encroachment within 30m on either side of river. On 31st August 2005, the Hon'ble High Court issued further orders for identification of illegal and unlicensed units and take all necessary steps to ensure a check on daily discharge of waste, effluents, dumping activities and prosecute the offenders under the Environmental Protection Act, 1986 and Water (Prevention and Control of Pollution) Act 1974. This exercise was to be carried out by Respondent No.8 i.e. MPCB. What can be gathered from the MPCB Affidavits is that MPCB has carried out several field surveys to identify unauthorized units discharging effluents. Thereafter, certain actions are initiated but finally the industries were allowed to restart. This does not confirm the finality of actions taken by MPCB by issuance of directions under Water (Prevention and Control of Pollution) Act 1974. In spite of such specific order of Hon'ble High Court, even in 2014, MPCB has issued closure directions to several units. This shows that there is still, a continued unauthorized and non-compliant effluent discharge in Mithi River. Though Hon'ble High Court had specifically directed MPCB to prosecute the offenders, there is no information on record regarding how many prosecutions have been filed by MPCB. Another important aspect is discharge of untreated domestic sewage in Mithi River. MPCB is on record that somewhere in the year 2006, 37 locations were identified by IIT where STPs are required to be provided by the BMC. However, till 2014, no progress was reported by MPCB. In 2014, MPCB issued directions to BMC and BMC has filed an Affidavit that the IIT is now of the opinion that STPs may not be feasible at 37 locations and feasibility has been worked out for providing STP at six (6) locations. This 'U'-turn by the IIT is surprising. The areas adjoining Mithi River are experiencing huge residential growth and undoubtedly, more domestic savage is being discharged in Mithi River than in 2006. In fact, the STPs as proposed in 2006 should have been operational in 2014. BMC has filed an Affidavit wherein even now, no time frame has been given for provision of STPs. Such lackadaisical approach behalf of BMC and MPCB, while dealing with domestic sewage issue which is largely responsible for deterioration of Mithi River water quality matter, is a matter of concern. It is therefore necessary that certain directions will have to be given in this regard to MPCB, BMC and the IIT. This will dealt in the final orders. The issue No.5 is accordingly answered in the AFFIRMATIVE.
Summing the foregoing discussions, it is evident that the impugned CRZ clearance has been granted without following due process and also, without verifying the environmental impacts and environmental safeguards, and therefore, the same is liable to be quashed and set aside. It is also on record that the construction of retaining wall and also, the blasting operations hence caused environmental impacts on the estuarine and riverine system of River Mithi. The Applicants have also pleaded prayed for removal of retaining wall for restoration of environment. It is necessary to examine further line of action in view of the fact that more than 90% of construction of retaining wall is complete, making the case as 'fait accompli'. The construction work was initiated way back in 2006 and the construction of the Retaining wall was brought to the notice of Hon'ble High court of Bombay from time to time. Under these circumstances, this is a situation where the retaining wall may be a technical option for flood protection, but the construction of same is carried out without appropriate environmental safeguards and without environmental permissions. At this stage, the removal of retaining wall may cause more significant environmental damages as the local ecosystem must have somewhat adopted to this construction, and therefore may not be proper and just action which is deserved in the case. What is required is verify the adequacy of environmental safeguards holistically and also, take corrective steps wherever required. This would be able to serve the purpose of environmental protection as envisaged under NGT Act, 2010. The Applicants have also raised concerns over change of land use of CRZ area as existed in 1991 when CRZ notification was notified, due to construction of Retaining walls. It is needless to say that the CRZ demarcation as per CRZ 1991 will prevail and accordingly, MoEF is required to notify the area and MCZMA/MCGM are required to protect it as per the directions of Hon'ble High Court.
Another interesting component of the project is the construction of service road along the retaining wall which is claimed to be for beautification and facilitating regular cleaning of the river. The perusal of the report of the Experts, the so called service road cannot be called as a beautification works, but may just work as a "facilitator", for apprehended land reclamation for authorised and unauthorised development of river and area beyond the retaining wall. In other words this could be deception or alibi for many other undisclosed intentions which are rather not eco-friendly. The authorities should have examined the applicability and permissibility of such project before grant of the clearance. It is seen that no such appraisal has been done by either MCZMA or MoEF. These authorities are expected to follow the cardinal principles of environmental governance i.e. precautionary principle and public trust doctrine, while appraising the impacts of such development. No substantial document or record has been placed before us indicating permissibility of service road by filling in CRZ area. Moreover, the photographs submitted by Applicants and also MPCB clearly indicate that large scale Solid Waste Dumping for development of such road which is clear violation of the orders of Hon'ble High Court. In my opinion, the service road in CRZ area is non-permissible activity and also has a significant environmental foot-print. This service road will divide the riverine and CRZ lands which may be used for illegal activities, causing further environmental degradation. There can be alternative ways and techniques to facilitate the cleaning of river and therefore, in my considered opinion, the construction of service road is in violation of CRZ Notification and has caused significant environmental damages. I, therefore, hold that the entire service road in CRZ area, along with Solid Waste Dumped along the road, shall be removed by the MMRDA in next three (3) months and the MCZMA shall supervise this work of restitution of the CRZ areas and file progress report on monthly basis.
And therefore, in my considered view, the ends of the Justice can be achieved if the impugned CRZ clearance is kept in abeyance for the present with direction to the MoEF and EAC to appraise the project afresh and pass the necessary reasoned order either for approval thereof or for the rejection, whatsoever it may be found necessary, on merits thereof. It is not within the domain of this Tribunal to verify technical compliance and express any opinion. It would amount to usurpation of power which is not available to this Tribunal under the NGT Act. It is the duty of the EAC and the MoEF to consider the relevant material and take appropriate decision. The authorities shall not be influenced by any discussion made hereinabove. I clarify that I have not given any opinion on merits of the matter concerning Examination or Appraisal. It will be open to the authorities to consider the relevant aspects and if so required by taking assistance of other technical expert agencies. The NGT, Principal Bench has taken such approach in Appeal No.3 of 2001 decided on 12th September 2011, by in the matter of "Sarpanch, Gram Panchyat, Tiroda ..Vrs.. MoEF". Similarly, this Bench has also taken similar view in Appeal No. 170 of 2013 (WZ) in "Mr. Nicholas H. Almeida Vrs. M/s. Lenzing Modi Fibers India Pvt.Ltd.", decided on 28th November 2013. And it is therefore, appropriate to maintain the judicial discipline in keeping the CRZ clearance, in abeyance and refer it back to MoEF for fresh appraisal and decision.
In the result, the Appeal is partly allowed. The impugned order of CRZ clearance dated 04.12.2012 passed by the Respondent No. 1 (MoEF) shall be kept in abeyance for a period of four (4) months hereafter. The matter is remitted to the EAC and MoEF for the purpose of reconsideration of in the light of the discussion made hereinabove. The authorities may relook into the matter; have objective examination/appraisal of the project on the basis of the available material, on basis of ascertaining the physical progress of works, safeguards implemented and impact on environment, and thereafter to take decision on merits. The Appraisal of the project be made and final order may be passed by the concerned authorities within statutory period as provided under CRZ Notification 2011, after receipt of copy of this order.
Considering the above, following directions are being issued :
i) The CRZ Clearance granted through the impugned communication of MoEF dated 4.12.2012, is hereby kept in abeyance for a period of four (4) months and the matter is remanded back to the MoEF to place it before the EAC for the re-appraisal of the project. The EAC is expected to re-appraisal the project, without any prejudice after ascertaining the factual physical progress of various works, various reports on the record including CWPRS and NEERI, and other material on record. The EAC or its sub-group shall visit the project area for field inspection before such appraisal and verify the various contentions raised in this Appeal as well as earlier PILs.
ii) The MoEF EAC is at liberty to seek an independent report/s from NEERI/CWPRS or any other Expert Agency directly, on the specific issues, if required, for stipulating additional safeguards, including tidal exchange capacity, flood flows, effect of blasting in the river bed, sedimentation, mud flats etc.
iii) The MoEF shall take decision on the CRZ Clearance for this project within next four (4) months. If no such decision is taken in such period, the CRZ impugned clearance will be deemed as quashed and set aside.
iv) MoEF shall particularly identify the damage caused due to blasting activity and submit a detailed report on remediation along with costs within 4 months to this Tribunal.
v) MCZMA shall investigate complaints related to destructions of mangroves, dumping in CRZ areas of Mithi river basin and take stringent action as per directions of Hon'ble High Court, within two (2) months. MCZMA shall notify the CRZ area along the Mithi river with its boundaries within next 2 months and both, MCZMA and MCGM shall ensure that this area is regulated strictly as per CRZ notification and also, as per directions of Hon'ble High Court. MCZMA shall also ensure the compliance of directions in Para 48.
vi) The Director IIT Bombay is directed to expedite the final recommendations on STP feasibility by reconciling IIT's earlier report of 2006, in next two (2) months and the Commissioner BMC shall ensure that the work on such STPs shall commence in next six (6) months and completed in next two (2) years.
vii) MPCB/MCGM shall take action against defaulters, as directed by the Hon'ble High Court in its order dated 31st August 2005 immediately within next 2 months. MPCB shall ensure that the STP works are initiated by BMC in next six (6) months; else MPCB is at liberty to take necessary legal actions as per the directions of Hon'ble High Court against the BMC.
Application is accordingly disposed of. No costs.