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Judgment
Heard the learned counsels for the parties and perused the records.
By filing the present application, it is prayed that the respondent nos. 3, 5 and 6 may be directed to stop the activity of the respondent no. 1- M/s. Karanja Terminals Logistic Private Ltd. in Karanja Creek at Village Chanje, Taluka - Uran, District-Raigad and to remove the illegalities in constructing the proposed Jetty in question, directions to respondent no. 1 for restitution of environment at the Karanja Creek at village Chanje, Taluka-Uran, District - Raigad, directions to all the respondents to protect the rights of the individuals/fishermen community members regarding their livelihood. The traditional right of fishermen community members to anchor and park their fishing boats at the entry point of the proposed fishing Jetty at Karanja Creek Area be protected as the applicants are using the Karanja Creek area for their livelihood since long. An independent committee be formed to inspect, verify and analyze the present situation at Karanja Creek and regarding allegations made in the application and submit its report before the Tribunal.
It is noted that a similar application was filed as Original Application No. 41/2016 (WZ), Kisan Gajanan Tandel Vs. M/s. Karanja Terminals Logistic Private Ltd & Ors. and this case was connected with Original Application No. 41/2016 (WZ) and now separated. Original Application No. 41/2016 (WZ) was finally decided and it was found that there was no encroachment on the land and there was no illegality in the Act as reported by the joint committee.
At the outset, the respondent no. 1 in its reply has raised a preliminary objection to the Original Application No. 30/2017 filed by the applicants. In its reply filed by the applicant that in the present application, the applicants herein have raised a dispute pertaining to the non-compliance of the Environmental Clearance (EC) conditions which needs to be adjudicated by the Tribunal and the same can only be done under the provisions of Section 14 of the National Green Tribunal Act, 2020 (sic 2010)as the provisions of Section 14 of the NGT Act ought to be conjointly read for making purposive interpretation thereof. The applicants in their application have admitted themselves that the cause of action for them to file the present application first arose on 30.10.2012. It is submitted that with a specific bar of Section 14, the present application ought to be considered as an application under section 14 of the NGT Act, 2010 and therefore the same ought to have been filed within a period of six months from when the cause of action first arose to the applicants. In the present case, the applicants themselves have admitted that the cause of action for filing the present application first arose on 30.10.2012 and therefore the present application as on date is barred by limitation.
It is argued on behalf of the learned counsel for the respondent that this Tribunal in the matter of Aradhana Bhargav & Ors. V. Ministry of Environment & Forest & Ors. laid down the law on limitation under Section 14 of the NGT Act, 2010 holding that:
"24. From the very reading, it would be quite clear that the Tribunal has jurisdiction over all civil cases only where a substantial question relating to the environment including enforcement of any legal right related to environment is involved and also the said substantial question should also arise out of the implementation and is included in one of the seven enactments specified under the Schedule-I. Even, if the applicant is able to satisfy the above requisites, the Tribunal can adjudicate the disputes only if it is made within a period of six months from the date on which the cause of action in such dispute first arose and the Tribunal for sufficient cause can condone the delay for a period not exceeding 60 days in making the application. "
Also, the Hon'ble High Court of Bombay in the matter of Windsor Realty Pvt. Ltd. v. Ministry of Environment and Forest & Ors., while dealing with the issue pertaining to the period of Limitation prescribed u/s. 14(3) of the National Green Tribunal Act, 2010, held that:
"35. A bare perusal of the said section clearly discloses that period of limitation is six months from the date on which the cause of action first arose. Prima facie, therefore it cannot be interpreted by any stretch of imagination that it would arose from the date of knowledge of the original applicant of the alleged violation taking place or from the date on which the Environmental Authorities were informed about violation and inaction on their part".
In the matter of M.A. No. 247/2012 in Appeal No. 76/2012 decided on 14.03.2013- Nikunj Developers vs. State of Maharashtra & Ors. which was reported in Manu (GT) 0030/283, it was held as follows:
"5. The stand taken by the non-applicant is that there is no cause much less a 'sufficient cause' shown by the applicant, for condonation of delay. There is complete inaction and negligence on part of the applicant, right from 2nd of June, 2012, till 20th September, 2012, the date on which the appeal was filed. Even if it is taken to be correct that the brother of applicant no. 3 was ill and he died as a result of his illness on 13th June, 2013, even then there is no reason stated post 13th June, 2012 as to why the appeal was not filed till 20th September, 2012. In the alternative, the submission is that even if it is assumed that there is sufficient cause shown by the applicant for condonation of delay, still this Tribunal shall have no jurisdiction to condone the delay because the appeal has been filed beyond the prescribed period of 90 days, which includes even the extended period of 60 days. Thus, in their submission, the appeal filed by the appellant is liable to be dismissed, being barred by limitation.
Now, firstly, we have to examine the interpretation of the expression 'sufficient cause', as it emerges from the various judgments of the courts, particularly the Supreme Court of India. The use of expression 'sufficient cause' in Section 16 of the NGT Act is not a legislative innovation but is a derivative reference from other enactments. Section 5 of the Limitation Act, 1963, also uses the same expression 'sufficient cause'. An applicant praying for condonation of delay in instituting the appeal under Section 16 of the NGT Act is required to show a sufficient cause, if the appeal is filed beyond a period beyond 30 days from the date of communication of the Environmental Clearance order as prescribed.
The expression 'sufficient cause' is not to be construed in isolation. The attendant circumstances and various other factors have to be taken into consideration by the Courts/Tribunals while dealing with the question of condonation of delay. Thus, it is important at this stage to deal with the meaning and connotation, that this expression has received in various judicial pronouncements, in some elucidation.
The term 'sufficient cause' has to be considered keeping in view the facts and circumstances of each case. The expression 'sufficient cause' implied by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner, which subserves the ends of justice - that being the life-purpose for the existence of the institution of Courts. This view was expressed by Supreme Court in Collector, Land Acquisition, Anantnag and Anr. v. Katiji and Ors. AIR 1987 SC 1335.
The term 'sufficient cause' must receive a liberal meaning and has to be incorporated so as to introduce the concept of reasonableness, as it is understood in its general connotation. Certainly, the Limitation Act is a substantive law and its provisions have to be adhered to in a manner that once, a valuable right accrues in favour of one party, as a result of unexplained sufficient or reasonable cause and directly as a result of negligence, default or inaction of the other party, such a right cannot be taken away lightly and in a routine manner.
The Courts have also taken the view that the expression 'sufficient cause' be considered with pragmatism in a justice oriented approach rather than the technical detection of sufficient cause for every day's delay.
'Sufficient cause' must necessarily be tested on the touchstone of doctrine of reasonableness. It may not be a very appropriate approach to apply principles of limitation with absolute rigidity resulting in irreparable injustice to the parties; a balanced approach may better serve the ends of justice.
In P.K. Ramachandran vs. State of Kerala and Anr., J.T. 1997 (8) 189, the Supreme Court took the view that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
However, the Courts have also taken the view that the approach of the Courts must be to do even-handed justice on merits in preference to the approach which scuttles the decision on merits, thus, showing greater inclination to accept a liberal approach.
The equitable principles have also been applied to the law of limitation but with great circumspection. The clear language of law will always prevail over the equitable principles as equity cannot defeat the law. At this stage we may notice some of the principles which have been reiterated with approval by the Supreme Court in the case of Rajghunath Rai Bareja and another vs. Punjab National Bank and Ors. (2007) 2 SCC 230 where the Court held as under:
"30. Thus, in Madamanchi Ramappa and Anr. v. Muthaluru Bojjappa [1964]2 SCR 673 this Court observed:
"What is administered in Courts is justice according to law, and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law".
In Council for Indian School Certificate Examination v. Isha Mittal and Anr.: (2000)7 SCC 521 this Court observed:
"Considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law."
Similarly in P.M. Latha and Anr. v. State of Kerala and Ors. [2003]2 SCR 653 this Court observed:
"Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law"
In Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. [2003]3 SCR 409 this Court observed:
It is now well settled that when there is a conflict between law and equity the former shall prevail....
Similarly in Nasiruddin and Ors. v. Sita Ram Agarwal [2003]1 SCR 634 this Court observed:
In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom....
Similarly in E. Palanisamy v. Palanisamy (Dead) by Lrs. and Ors. AIR 2003 SC 153 this Court observed:
...Equitable considerations have no place where the statute contained express provisions....
In India House v. Kishan N. Lalwani [2002] SUPP 5 SCR 522 this Court held that:
...The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations....
In Hiralal Ratanlal v. STO [1973] 2 SCR 502, this Court observed:
In construing a statutory provision the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear.
In a more recent judgment, the Supreme Court, in Balwant Singh (Dead) Vs. Jagdish Singh and Ors. (2010) 8 SCC 685, while dealing with the expression 'sufficient cause', elaborately stated the principles of condonation of delay. It also elucidated the approach to be adopted by a Court in such cases and held as under:
"It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see if it could have been avoided by the party by the exercise of due care and attention."
. ....... According to the non-applicant, the Tribunal will have no jurisdiction to condone the delay in view of the language of Section 16 of the NGT Act, which reads as under:
"16. Tribunal to have appellate jurisdiction. - Any person aggrieved by,-
********* h. an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986;
********* may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:
Provided that the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed under this section within a further period not exceeding sixty days."
From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to condone the delay has a clear inbuilt limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and the legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision.
As stated in the cases Hiralal Ratan Lal and India Houses (supra) the period of limitation statutorily prescribed, has to be strictly adhered to and cannot be relaxed and or departed from, on equitable consideration. Further, in construing a statutory provision, the first and the foremost rule of construction is that of literary construction. We do not see any reason to expand the scope of the provision and interpret the proviso to Section 16 in the manner that Tribunal can be vested with the power of condoning the delay beyond 90 days. Such interpretation would be contrary to the specific language of the Section and would defeat the very legislative intent and object behind this provision.
This controversy need not detain us any further as it is no more res integra and stands answered by the judgment of the Supreme Court in the case of Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others (2010) 5 SCC 23 where the court held as under:
"29. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company: (2001) 8 SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The two-Judge Bench referred to earlier decisions in Mangu Ram v. Municipal Corporation of Delhi: (1976) 1 SCC 392, Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain Yadav v. L.N. Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai: (1992) 4 SCC 264 and held:
As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.
Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application "in accordance with" that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court".
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.
In Singh Enterprises v. C.C.E., Jamshedpur and Ors. (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed:
The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period.
The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd.: (2008) 3 SCC 73.
"31. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed:
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35G and reference application to the High Court under Section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
XXXXX XXXXX XXXXX XXXXX XXXXX
It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory."
Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression 'not thereafter' while the provision under our consideration uses the terms 'not exceeding'. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.
The use of negative words has an inbuilt element of 'mandatory'. The intent of legislation would be to necessarily implement those provisions as stated.
Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing than negative words for reading the provisions as 'mandatory'. It is possible that in some provision, the use of affirmative words may also be so limiting as to imply a negative. Once negative expression is evident upon specific or necessary implication, such provisions must be construed as mandatory. The legislative command must take precedence over equitable principle. The language of Section 16 of the NGT Act does not admit of any ambiguity, rather it is explicitly clear that the framers of law did not desire to vest the Tribunal with powers, specific or discretionary, of condoning the delay in excess of total period of 90 days. At this stage, we may also refer to Principle of Statutory Interpretation by Justice G.P. Singh, 13th Edition, where it is stated as under:
"(c) Use of negative words another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD: "Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience." As observed by SUBBARAO, J.: "Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". Section 80 and Section 87-B of the Code of Civil Procedure, 1908; section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1965; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972 (as amended in 1956); section 10A of Medical Council Act, 1965 (sic 1956) (as amended in 1993) and similar other provisions have therefore, been construed as mandatory. A provision requiring 'not less than three months' notice' is also for the same reason mandatory.
But the principle is not without exception. Section 256 of the Government of India, 1953, was construed by the Federal Court as directory though worded in the negative form.
Directions related to solemnization of marriages though using negative words have been construed as directory in cases where the enactments in question did not provide for the consequence that the marriage in breach of those directions shall be invalid. Considerations of general inconvenience, which would have resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely director. An interesting example, where negative words have been held to be directory, is furnished in the construction of section 25-F of the Industrial Dispute Act, 1947, where compliance of clause (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory. These cases illustrate that the rule, that negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular requirement. "
The provision of Section 16 of the NGT Act are somewhat similar to Section 34 of Arbitration and Conciliation Act, 1996. Thus, adopting an analogous reasoning, as was adopted in Chhattisgarh State Electricity Board (supra), we would have no hesitation in coming to the conclusion that we have no jurisdiction to condone the delay when the same is in excess of 90 days from the date of communication of the order to any person aggrieved.
Thus, the application must fail on this ground alone. We are of the considered view that the Tribunal has no jurisdiction to condone the delay of 19 days in filing the present appeal, the same being in excess of 90 days computed from the admitted date of communication of order, that is 2nd June, 2012."
In light of above discussion, the learned counsel appearing for the respondent had submitted that the application is time barred. The learned counsel for the respondent has further submitted that the present application is nothing but a misuse of the provisions of law, as the applicant is in a habit of filing frivolous applications before this Tribunal. The respondent no. 1 in its reply has contended:
"The Applicant No. 5 had previously filed an Application No. 41/2016 alleging the destruction of mangroves in Sr. No. 420/7 much contrary to the Environment Clearance Conditions. In pursuance of the allegations made, this Hon'ble Tribunal vide its order dated 09.11.2016 was pleased to direct the Respondent Authorities in Application No. 41/2016 alongwith the Applicant, as well as with the assistance of the Talathi and to report with regards to destruction of mangroves as alleged by the Applicant therein, in Application No. 41/2016. In pursuance thereof, the Authorities as directed by this Hon'ble Tribunal, conducted the Site Inspection and the Concerned Authorities filed a detailed Inspection Report in the Registry of this Hon'ble Tribunal, in which the inspecting authority have concluded that the Sr. No. 420/7 is beyond a creek and has no connection with the road which is being used for the plying of trucks of the Respondent No. 1. This report of the competent authorities categorically shows that the Application No. 41/2016 as filed by the Applicants is devoid of merits and no cause of action has arisen to the Applicants in Application 41/2016. Thus, on realizing the dark side that the Application No. 41/2016 is devoid of merits and the Applicant No. 5 having been exposed by the Authorities. It is further submitted that this Hon'ble Tribunal vide its order dated 02.12.2016, has observed that the Application No 41/2016 pertains to destruction of mangroves only in Survey No 420/7 and no further relief is sought by the Applicant therein to widen the scope of the Application No 41/2016. Thus, the Applicant No. 5 was completely aware of the fact that the Applicant had no chance to succeed on merits in the Application No. 41/2016 and therefore with an ulterior motive has filed the present Application by arraying the other Applicants in the present Application. Thus, the Applicant No. 5 is misusing the provisions of law by filing such frivolous applications before this Hon'ble Tribunal."
It is further contended that since the applicant was aware of the fact that he has no chance to succeed on merit in Original Application No. 41/2016 (WZ), thus, he has approached this Tribunal vide the present application with an ulterior motive by arraying the other applicants in the present application.
The applicant has further raised the question of public hearing or non-compliance of the conditions as decided in the public hearing. The learned counsel for the applicant had submitted that the public hearing had many significant questions pertaining to various issues such as Air Quality, Water Quality, Forest, Agriculture, Medicinal plants, Coal transportation, Blasting, Compensation, Employment, Losage of Livelihood, etc. have been raised by different people and it is considered by the Expert Appraisal Committee during the appraisal of the project.
Reference may be had of judgment dated 29th March, 2019, the case titled Hanuman Laxman Aroskar vs. Union of India, in which EC granted to MOPA Airport in Goa was under challenge, the Hon'ble Supreme Court, inter-alia, suspended the EC and on the importance of Public Hearing it has been held by the Hon'ble Supreme Court:-
"116. The importance of public consultation is underscored by the 2006 notification. Public consultation, as it states, is "the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to take into account all the material concerns in the project or activity design as appropriate". This postulates two elements. They have both, an intrinsic and an instrumental character. The intrinsic character of public consultation is that there is a value in seeking the views of those in the local area as well as beyond, who have a plausible stake in the project or activity. Public consultation is a process which is designed to hear the voices of those communities which would be affected by the activity. They may be affected in terms of the air which they breathe, the water which they drink or use to irrigate their lands, the disruption of local habitats, and the denudation of environmental eco-systems which define their existence and sustain their livelihoods.
Public consultation involves a process of confidence building by giving an important role to those who have a plausible stake. It also recognizes that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment. The knowledge of local communities is transmitted by aural and visual traditions through generations. By recognizing that they are significant stakeholders, the consultation process seeks to preserve participation as an important facet of governance based on the rule of law.
Participation protects the intrinsic value of inclusion.
Each of these features is crucial to the success of a public consultation process. Public consultation cannot be reduced to a mere incantation or a procedural formality which has to be completed to move on to the next stage.
Underlying public consultation is the important constitutional value that decisions which affect the lives of individuals must, in a system of democratic governance, factor in their concerns which have been expressed after obtaining full knowledge of a project and its potential environmental effects.
Apart from the intrinsic value of public consultation, it serves an instrumental function as well. The purpose of ascertaining the views of stakeholders, is to account for all the material concerns in the design of the proposed project or activity. For this reason, the process of public consultation involves several important stages. The Pollution Control Board is under a mandate to forward the proceedings to the regulatory authority. The project proponent must address all material environmental concerns and make appropriate changes in the draft EIA and EMP. The project proponent may even submit a supplementary report to the draft EIA. Each of these elements is crucial to the design features of the 2006 notification. A breach will render the process vulnerable to challenge on the ground that: (i) significant environmental concerns have not been taken into account; (ii) there was an absence of a full disclosure when the EIA report was put up for consultation; and (iii) concerns which have been expressed by persons affected by the project have not been adequately dealt with or analysed."
The applicants in the present application have produced nothing on record to show how the respondent no. 1 has been violating any of the conditions imposed. The applicants have merely made bald allegations against the respondent no. 1 for violation of the conditions of the EC without any supportive evidence. The respondent no. 1 in its reply have contested the allegations raised by the applicants pertaining to violation of the EC conditions by the respondent no. 1:
"At the outset, it may be noted that the Applicants even though having participated in the public hearing and being completely aware of the fact that the Respondent No. 1 was granted Environment Clearance on 21.08.2013, have till date not challenged the grant of the Environment Clearance. Since the Applicants herein, did not challenge the Environment Clearance dated 21.08.2013 as contemplated u/s. 16 of the National Green Tribunal Act, 2010 and the Applicants being aware that any such challenge to the grant of the Environment Clearance as on date would be barred by limitation, the Applicants under the guise of the present Application are indirectly trying to challenge the grant of Environmental Clearance. It is submitted that the issue pertaining to non-compliance of an Environment Clearance is a substantial issue pertaining to the environment and the same can only be adjudicated under the provisions of section 14 of the National Green Tribunal Act, 2010."
The respondent no. 1 in the Environment Impact Assessment (EIA) Study Report prepared for the purpose of grant of EC had categorically stated that "Reclamation bunds shall be constructed. Approach bund and temporary road will be constructed for reclamation purpose." Though, in the public hearing, no objection pertaining to the approach road was raised by the representatives of the villagers and farmers, and the grant of EC to the respondent no. 1 was not opposed by the public but in the Revised EIA Study Report, prepared post public hearing dated November 2012, it has been reiterated that "Reclamation bunds shall be constructed. Approach bund and temporary road will be constructed for reclamation purpose."
Respondent no. 1 in May 2012 carried out a Mathematical Model Study Report to evaluate the effect of the project of the respondent no. 1 on the hydrodynamics and the morphology of the surrounding area. The report of May 2012 was carried out at the behest of WAPCOS LIMITED (A Government of India undertaking) and Central Water and Power Research Station, Khadakwasla, Pune. On perusing the conclusions of the said report, the expert authorities have concluded that:
"4. The tidal currents are marginally reduced in the close vicinity of the berths and there is no appreciable change in the flow regime in the region. The proposed reclamation being in the shallow region its influence is marginally felt at higher stages of the tide."
Thus, the scientific report that was prepared by the respondent no. 1 categorically shows that there shall be no appreciable change in the flow regime of the water due to the construction of jetty by the respondent no. 1.
The learned counsel appearing for the applicant had submitted that as mentioned in para 14 and 15 of the application, some photographs have been attached and it clearly shows that ecological damage as well as loss of aquatic life and livelihood of fishermen community is being damaged by respondent no. 1- M/s. Karanja Terminal and Logistics Pvt. Ltd. which is building Jetty not on trestles on piles but the construction is being done after damaging soil in the sea and build high soil bund which has obstructed the constant flow for saline water to the mangroves. These photographs have been submitted with evidence and in reply thereof, the learned counsel appearing for respondent had submitted that their submission of photographs cannot prove that there is damage to the mangroves and that too by the activities of the respondent. The applicant has further submitted that there are judgments passed by the NGT taking serious cognizance of breach of specific conditions mentioned in EC and regarding construction of jetty by dumping huge amount of soil and creating artificial platform causing permanent damage to sea, seawater, tides and free flow of water etc. Hence the Applicants have requested the NGT to consider Prayer Clause (E) before reaching to any conclusion.
In Ramdas Janardan Koli Vs. Ministry of Environment and Forest and others, the NGT had given huge compensation to the fishermen as there was destruction in seawater by the project proponent. On this background, it is important to note the specific condition No. (ix) which has been specifically mentioned in the EC and CRZ Clearance 2010, which says that- "The development and operation of the port shall not cause any disturbance to the fishing activity".
In reply thereof, it has been submitted that this Tribunal cannot be used for only payment of huge compensation as desired by the applicant and if there is no damage of any property as mangroves belonging of the applicant, the respondent cannot be compelled to pay compensation. So far as the constitution of Committee is concerned, the applicant is at liberty to move an application before the competent authority for constitution of Committee and to study the matter raised before the Committee. It is within the sole domain of State Government. The matter of safety and protection of mangrove have been discussed in Original Application No. 45/2015 (WZ) decided on 20.08.2020 which is as follows:
"58. The applicant has cited PIL No. 87/2006 (Bombay Environmental Action Group V/s. State of Maharashtra decided on 17th September, 2018 and quoted following relevant paragraph:-
In paragraph (i)4 of the petition, mangroves have been described. Paragraph (i)4 reads thus:-- "(i) What are 'mangroves'?
Mangroves are intertidal (growing between the high tide and low tide line) evergreen forests growing on the soft marshy lands of a creek, estuary or a bay in the tropical and sub tropical regions. The expression 'mangrove' does not apply to a single species of plants, but to a complete ecosystem which is a conglomeration of several species of flora, fauna and biotic features in an area, and their interaction with each other. Mangroves are a peculiar habitat because they are found on the boundary between the land and the sea. They are found almost entirely in the tropical and sub tropical regions, that is, between 30 degrees north and 30 degrees south latitude, and are an extension of the tropical rain forests towards the sea. They are found largely in the estuarine regions where a river meets the sea, the intertidal regions of shallow bays and creeks. As extensions of the tropical rain-forests in to the sea, mangroves are functionally as important as the tropical rain-forests. Moreover, they are additionally important for the protection of the seashores from erosion, wave action, high-winds and cyclones. Mangroves being intertidal forests are equal to tropical forests, however their importance is not merely in their forest value but due to their strategic location between the land and the sea. Mangroves are the life line of any coastal area and perform invaluable protective functions for the environment. The importance of mangroves is set out below:"
The petition sets out the functions and importance of mangroves which can be briefly summarized as under:--
A] The mangroves play important role in protecting sea shores from erosion, high winds and cyclone.
B] Mangroves are strategically located between the land and sea and therefore, their importance is not merely in their forest value. The mangroves act as a buffer between the land and sea and play a very important role in fighting tidal erosion. The presence of mangroves does away with the need for expensive sea walls. The loss of mangroves endangers the stability of the land.
C] The mangroves facilitate reclamation of land from the sea.
D] Sometimes mangroves act as flood control by absorbing excess water from the sea.
E] Similarly, mangroves protect the land from storms and hurricanes.
F] Apart from the fact that mangroves act as natural sewage water filter systems, the same act as natural pollution coastal checks. They absorb natural waste.
G] The presence of mangroves on the fringes of the city like Mumbai which has one of the lowest open space ratios in the world ensures that some open spaces are kept open.
H] The mangroves are breeding grounds for a number of marine organism, such as shrimps, crabs and fish. The presence of mangroves keeps the fish relatively free from industrial and other pollution; and
I] The mangroves are also centres of biodiversity and are the most productive ecosystems. In Maharashtra, they house panthers, otters, jackals, wild cats, reptiles and birds of numerous varieties. It is pointed out that Thane creek is a home to about 1.5 million birds of 206 different species.
It is pointed out that Maharashtra has about 18 species of mangroves out of total 55 found in India. It is pointed out that out of 5 coastal districts Mumbai, Thane (now Thane and Palghar), Raigad, Ratnagiri and Sindhudurg, the mangroves in Thane district have undergone maximum destruction. It is pointed out that though comparatively there is no destruction of mangroves in District Sindhudurg, the said district is less favourable to the growth of mangroves because of its geological condition. It is pointed out that in Mumbai also there has been a large destruction of mangroves. It is pointed out that city of Mumbai has been reclaimed from the sea by joining seven islands and it is consistently under pressure from surrounding sea. It is pointed out as to how mangroves in Mumbai have vanished. It is pointed out that in dumping grounds at Gorai and Deonar, water supply to mangroves has been blocked which resulted in destruction of mangroves. It is pointed out that rapid erosions have been noticed in the said area.
(i) That there shall be a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra. We take note of the fact that in T.N. Godavarman Thirumulkpad v. Union of India [Writ Petition (C) No. 202 of 1995 and 171 of 1996], an affidavit was filed on behalf of the State of Maharashtra by the Chief Conservator of Forests (Administration), in which on the basis of a report of an Expert Committee, it was stated that in the Mumbai Urban Area alone, 1,534 hectares of land were, inter alia, classified as mangrove areas.
(ii) All construction and rubble/garbage dumping on the mangrove areas shall be stopped forthwith.
(iii) Regardless of ownership of the land, all construction taking place within 50 metres on all sides of all mangroves shall be forthwith stopped.
(iv) No development permission whatsoever shall be issued by any authority in the State of Maharashtra in respect of any area under mangroves.
(ix) After the aforesaid process in clause (viii) is completed, the areas so identified which are government owned shall be declared and notified as "protected forests" in accordance with law after carrying out ground survey etc. The areas so identified that are privately owned shall be declared and notified as "forests" in accordance with law, after carrying out ground survey etc. The said declaration/notification will be completed within a period of 8 weeks of the completion of Phase-II mapping.
(x) The mangrove areas that are on government owned lands will be handed over to the Forest Department within a period of 12 weeks from the declaration of the same as "protected forests".
From the list of "mangrove areas" so identified, Government owned lands will automatically be declared/notified as "protected forests". Likewise, privately owned lands from the list of mangrove areas so identified, the same will be declared/notified as "forests".
A notification dated 19 February 1991 was issued by the Government of India which is known as CRZ notification of 1991 in exercise of powers under Section 3(1) and Section 3(2)(v) of the said Act of 1986. The notification lays down what constitutes a "Coastal Regulation Zone" (for short "CRZ"). The material part of the said CRZ notification declaring CRZ reads thus:--
"Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposes with effect from the date of this Notification, the following restrictions on the setting up and expansion of industries, operations or processes etc. in the said Coastal Regulation zone (CRZ). For purposes of this Notification, the High Tide Line (HTL) will be defined as the line upto which the highest high tide reaches at spring tides."
Clause 3 provides that all other activities except those which are prohibited will be regulated as provided therein. Annexure-I to the CRZ notification deals with Coastal Area Classification and Development Regulations. CRZ-I is defined thus:--
"Category I (CRZ-I):
(i) Areas that are ecologically sensitive and important, such as national parks marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reefs, ares close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty historical heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.
(ii) Area between the Low Tide Line and the High Tide Line."
Thus, mangroves fall in CRZ-I category. Annexure-I further lays down that no new structure shall be permitted within 500 meters from the High Tide Line (HTL) and no construction activities except as listed in sub-clause (xii) of clause 2 of the CRZ notification are permitted in CRZ-I area. Sub-clause (xii) of clause 2 reads thus:--
"(xii) facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification; and"
The CRZ notification of 1991 was further amended by a notification dated 18th August 1994. The relevant modification is in clause (a) which reads thus:
"(a) in paragraph 1, for the portion beginning with the words "For purposes of this notification, the High Tide Line" and ending with the words "width of the creek, river or back water whichever is less", the following shall be submitted, namely:--
"For the purposes of this notification, the High Tide Line 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 so authorised by the Central Government in consultation with the Surveyor General of India.
NOTE:--
The distance from the High Tide Line shall apply to both sides in the case of rivers, creeks and back waters and may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans. However, this distance shall not be less than 50 metres or the width of the creek, river or back-water whichever is less. The distance upto which development along rivers, creeks and back-waters is to be regulated shall be governed by the distance upto which the tidal effect of sea is experienced in rivers, creeks or backwaters, as the case may be, and should be clearly identified in the Coastal Zone Management Plans."
Sub-clause (3) (i) of clause 3 of the CRZ notification of 1991 mandated that all coastal States shall prepare a Coastal Zone Management Plan (for short "CZMP") identifying and classifying CRZ areas within their respective territories in accordance with Annexures - I and II to the CRZ notification. Accordingly, CZMP for Maharashtra was submitted to the Government of India on 22 November 1995. By a letter/order dated 27th September 1996, the Ministry of Environment and Forest of the Government of India communicated to the Chief Secretary of the Government of Maharashtra grant of approval to the CZMP subject to conditions incorporated therein. Condition No. (xiii) reads thus:--
"(xiii) All mangroves with an area of 1000 square metres or more would be classified as CRZ-I with a buffer zone of at least 50 metres."
The Mangroves were already included in CRZ-I in the CRZ notification of 19th February 1991. By the aforesaid order dated 27 September 1996, in case of mangroves with an area of 1000 square metres or more, a buffer zone of at least 50 metres along the mangroves was ordered to be included in CRZ-I in addition to mangroves.
An order was issued on 19th January 2000 by the Government of India providing that 50 meter buffer zone around mangroves of area of 1000 square meters and above, will not be required on the landward side, provided a road abutting such mangroves was constructed prior to February, 1991.
Thus, under the 1991 notification, mangroves were included in CRZ-I. In the CRZ notification of 1991, there was no provision for a buffer zone. The said provision came for the first time by virtue of the order dated 27th September 1996 which was amended by the order dated 9th January 2000.
The CRZ notification of 6th January 2011 was issued under section 3(1) of the said Act of 1986 which superseded the earlier CRZ notification of 1991. Relevant part of paragraph 7 reads thus:
"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,-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50 meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries
Clause (xi) of paragraph 3 provides that all construction activities in CRZ-I are prohibited activities except those specified in paragraph 8. Paragraph 8 lays down the norms for regulation of the activities permissible in CRZ that:
"I. CRZ-I,-
(i) no new construction shall be permitted in "CRZ-I except,-
(a) projects relating to Department of Atomic Energy;
(b) pipelines, conveying systems including transmission lines;
(c) facilities that are essential for activities permissible under CRZ-I;
(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;
(e) construction of trans harbour sea link and without 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 rain-shelter, community toilets, bridges, roads, jetties, 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."
In the Guidelines for preparation for CZMP incorporated in the said notification of 2011, it is stated thus:
"3. Buffer zone along mangrove areas of more than 1000 sq mts shall be stipulated with a different colour distinguishing from the mangrove area.
The buffer zone shall also be classified as CRZ-I area."
In 1991 CRZ notification, it was provided that all mangrove areas will fall in CRZ-I. By virtue of the order dated 27 September 1996, in case of mangrove areas of 1000 square meters or more, 50 meterbuffer zone abutting it was also included in CRZ-I. By order dated 9 January 2000, it was provided that 50 meter buffer zone will not be required to be maintained, provided a road abutting the mangroves was constructed prior to February 1991 (prior to the date on which CRZ notification of 1991 was issued). Under the 2011 notification, all mangroves area fall in CRZ-I irrespective of its area and in case the said area is 1000 square meters or more, even a buffer zone of 50 meters along the said area shall be a part of CRZ-I. Thus, the buffer zone of 50 meters abutting mangroves having an area of 1000 square meters or more was also included in CRZ-I from 27th September 1996.
The CRZ notifications are in the nature of orders or directions issued under the said Act of 1986. Hence, if there is any violation of the provisions of the CRZ notifications regarding mangroves area or its buffer zone or if there is any failure to comply with the same, it will attract the penal provisions under Section 15 of the said Act of 1986 which is attracted in case of the failure to comply with the provisions of orders or directions issued under the said Act of 1986. The conditions imposed in the letter dated 27 September 1996 will have to be construed as an order or direction under the said Act of 1986 as CZMP is required to be approved by the Central government in view of the clause 3(i) in the CRZ notification of 1991. Hence, if there is any violation of the condition in the letter dated 27 September 1996 about the 50 meter buffer zone, it will attract penal provision of Section 15 of the said Act of 1986."
Article 48-A in Chapter IV under the title Directive Principles of State Policy of the Constitution of India reads thus:--
"48-A. Protection and improvement of environment and safeguarding of forests and wild life.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
Article 48-A lays down that it is the duty of the State to make an endeavour to protect and improve environment and to safeguard forests. As stated earlier, environment includes plants.
Mangroves are essential part of the environment. The land covered by mangroves is be covered by the concept of forest. Under Article 51(A) (g) of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment including forests, rivers and wildlife and to have compassion for living creatures. In view of the constitutional mandate under Article 51(A)(g), it is the fundamental duty of every citizen to protect and improve natural environment including forest which will include mangroves. If this is the obligation of every citizen, the public bodies which are constituted by the citizens are bound by the fundamental duties under Article 51(A). Thus, it is the duty of the State and citizens to ensure that the mangroves are preserved and protected.
In the case of Nature Lovers Movement v. State of Kerala, in paragraph 2, the Apex Court observed thus:
"2. The Indian society has, for many centuries, been aware and conscious of the necessity of protecting environment and ecology. Sages and saints of India lived in forests. Their preaching contained in vedas, upanishads, smritis, etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. The main motto of social life is to live in harmony with nature. It was regarded as a sacred duty of everyone to protect them. In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures. The children were educated by elders of the society about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora, fauna and every species of life."
In the case of Association for Environment Protection v. State of Kerala, the Apex Court observed thus:
"2. The ancient Roman Empire developed a legal theory known as the "doctrine of the public trust". It was founded on the premise that certain common properties such as air, sea, water and forests are of immense importance to the people in general and they must be held by the Government as a trustee for the free and unimpeded use by the general public and it would be wholly unjustified to make them a subject of private ownership. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few."
In the case of M.C. Mehta v. Kamal Nath, in paragraph 34 and 35, the Apex Court held thus:
"34. Our legal system - based on English common law-includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."
In the case of Fomento Resorts & Hotels Limited v. Minguel Martins, in paragraphs 53 to 55 and 65, the Apex Court held thus:
"53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
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. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e., public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets.
Professor Joseph L. Sax in his classic article, "The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention" (1970), 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 public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
We reiterate that natural resources including forests, water bodies, rivers, seashores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the court can invoke the public trust doctrine and take affirmative action for protecting the right of people to have access to light, air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural ecosystems."
Public at large has a right to enjoy and have a benefit of our forests including mangroves forest. The pristine glory of such forests must be protected by the State. The mangroves protect our environment. Therefore, apart from the provisions of various statutes, the doctrine of public trust which is very much applicable in India makes it obligatory duty of the State to protect and preserve mangroves.
In the case of M.C. Mehta (Badhkal and Surajkund Lakes matter) v. Union of India, the Apex Court held thus:
"10. In M.C. Mehta v. Union of India [(1987) 4 SCC 463] this Court held as under:
"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over unemployment and loss of revenue problem."
The "Precautionary Principle" has been accepted as a part of the law of the land. Articles 21, 47, 48-A and 51-A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "Precautionary Principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation. We have no hesitation in holding that in order to protect the two lakes from environmental degradation it is necessary to limit the construction activity in the close vicinity of the lakes."
It is further submitted by the learned counsel for the Respondent that the Hon'ble High Court has already issued direction in PIL as mentioned above in para no. 89 which is as follows:-
"89. For the reasons recorded above, we dispose of the PIL by passing the following order:--
(A) The following directions issued in the interim order dated 6th October 2005 shall continue to operate as final directions in following terms;
(I) That there shall be a total freeze on the destruction and cutting of mangroves in the entire State of Maharashtra;
(II) Dumping of rubble/garbage/solid waste on the mangrove areas shall be stopped forthwith;
(III) Regardless of ownership of the land having mangroves and the area of the land, all constructions taking place within 50 metres on all sides of all mangroves areas shall be forthwith stopped. The area of 50 meters shall be kept free of construction except construction of a compound wall/fencing for its protection.;
(IV) No development permission whatsoever shall be issued by any authority in the State of Maharashtra in respect of any area under mangroves. All authorities including the Planning Authorities shall note that all mangroves lands irrespective of its area will fall in CRZ-I as per both the CRZ notifications of 1991 and 2011. In case of all mangrove areas of 1000 sq. meter or more, a buffer zone of 50 meters along the mangroves will also be a part of CRZ-I area. Though buffer zone of 50 meters in case of mangroves area of less than 1000 meters will not be a part of CRZ-I, it will be subject to above restrictions specified in clause III above;
(V) The State of Maharashtra is directed to file in this Court and furnish to the petitioner copies of the maps referred to in paragraph 10 of the affidavit dated 16 August, 2005, filed by Mr. Gajanand Varade, Director, Environment Department, State of Maharashtra (Page 346 on the record), within four weeks from today. The soft or hard copies of the maps be supplied to the Petitioner within the same period;
(B) The following direction issued in terms of clause 8(viii) of the order dated 6th October 1005 has been substantially complied with: "The areas shown as mangrove area in the satellite study report "Mapping of mangroves in the Maharashtra State using Satellite Remote Sensing" dated August, 2005, prepared by the Maharashtra Remote Sensing Application Centre (MRSAC) for the MCZMA which was submitted to this Court on 29th August, 2005, form part of Phase I of the mapping by MRSAC. The MRSAC will, in Phase II, carry out mangroves study using high resolution for detailed mapping of mangroves with a view to identify more precisely mangrove areas in Mumbai and Navi Mumbai. After receiving the said satellite data, transfer of mangrove details on city survey/village maps (cadastral map) will be carried out within a period of 6 months from today"; (C) The directions in sub-clauses(ix) to (xiii) of clause 8 of the order dated 6th October 2005 shall continue to operate as final directions in respect of mangrove areas only on the government lands and the lands held by Planning Authorities like CIDCO, MMRDA etc. In respect of the lands admeasuring 2823.8493 Hectares as stated in the affidavit dated 14th February 2018 of Shri Milind Panditrao, the direction regarding transfer of the lands to the Forest Department and consequential directions regarding making revenue entries shall be complied with within a period of three months from the date on which this Judgment and Order is uploaded. The State Government shall identify the mangroves lands which were vested in it by virtue of section 3(1) of the Private Forest Act and shall take appropriate steps in respect of such lands for transferring such lands to Forest Department within a period of 18 months from today. It will be also open for the State Government to take recourse to section 21 of the Private Forest Act in appropriate cases; (D) We direct the State Government to constitute a Committee headed by the Divisional Commissioner, as agreed by the State Government. The Committee and sub-committees shall be formed in accordance with the observations made in paragraph 68 above. The committee shall be responsible for the preservation and conservation of mangroves, for restoration of reclaimed mangroves areas set out in paragraph 73 above and for implementation of the directions in this Judgment. The Committee shall be constituted within a period of one month from today. The sub-committees as observed in paragraph 68 shall be constituted within two months from today. The Committee shall hold regular meetings and the minutes of the meeting shall be made available on public domain as observed in paragraph 68 above. As directed under the order dated 6th October 2005, the Principal Secretaries of (1) Environment, (2) Revenue and (3) Forest Department of the Government of Maharashtra shall be overall in-charge for ensuring total compliance with the directions issued under this Judgment and Order. They will monitor the working of the Committee headed by the Divisional Commissioner.
(E) The State Government shall create a Grievance Redress Mechanism for enabling the members of the public to lodge complaints about the activity of destruction/removal of the mangroves. An opportunity must be made available to file complaints about any acts or omission which may ultimately result in destruction or causing damage to the mangroves area. The State Government shall make arrangements for receiving complaints on dedicated website, on toll free numbers and in physical form to the officers or offices nominated by the State Government in all districts and especially in the areas where there are mangroves. A facility shall be made available for uploading the photographs of the affected area by e-mail and by whatsapp or similar media by use of cell phone. The State Government must also create a machinery to ensure that the said complaints are immediately transferred to the Committee headed by the Divisional Commissioner. The Committees will ensure that immediate action is taken of stopping the illegal destruction or acts amounting to causing damage to the mangrove areas, if necessary with the police help. Necessary register shall be maintained of the complaints received and action taken thereon. The State Government must lay down the procedure by which complainant is kept posted about the action taken on his or her complaint. On the request made by the complainant, the identity of the complainant shall be masked and the names of the complainant shall not be disclosed to the violators;
(F) The Grievance Redress Mechanism shall be set up within a period of three months from today. Adequate publicity shall be given to the availability of the Grievance Redress Mechanism in leading newspapers as well as local newspapers. Information about availability of the Grievance Redress Mechanism shall be prominently displayed in the offices of District Collectors, Sub-Divisional Officers, Tahasildar in the Coastal Districts as well as in the offices of the Maharashtra Pollution Control Board and the Maharashtra Maritime Board in the coastal districts. The information shall be displayed prominently in the offices of the Municipal Corporations/Municipal Councils provided any coastal area forms part of the limits of such Municipal Corporation or such Municipal Council. Publicity shall be given at regular intervals of at least six months to the details of the grievance redress mechanism in leading newspapers having good circulation in the coastal areas;
(G) We direct that it is the obligation of the State to replant destructed mangroves and to restore mangroves areas which are illegally reclaimed. The said areas shall be restored to its original condition. In what manner restoration shall be done must be decided by the Committee headed by the Divisional Commissioner after consulting experts in the field. The Committee shall identify the vulnerable mangroves areas in the State and direct its constant surveillance by the Police/Forest Guards/Security Guards of the Maharashtra Security Corporation. The Committee shall ensure that barricades are erected for preventing the entry of vehicles in such vulnerable area. The Committee shall also consider of installing CCTVs along the vulnerable stretches to keep a vigil. The Committee shall also cause to undertake satellite mapping of mangroves area in the state at periodical intervals of not more than six months by using resolution as suggested in paragraph no. 28 of the note submitted by the learned senior counsel appearing for the petitioner. Any changes seen shall be considered by the Committee and remedial measures shall be taken. The State Government shall sanction necessary amount for that purpose;
(H) The State Government shall ensure that criminal law is set in motion against all those who commit offences punishable under section 15 of the said Act of 1986 as observed in the Judgment. The Committee shall monitor implementation of this direction;
(I) The State Government shall issue a direction under section 154 of the MRTP Act to all concerned Planning Authorities and Regional Boards under the MRTP Act to show mangroves areas and 50 meter buffer zone around it while making or revising Development Plans/Regional Plans. Such a direction shall be issued within a period of three months from today;
(J) Quarterly Compliance reports shall be filed by the Committee reporting compliance with the aforesaid directions. The first of such reports shall be filed on or before 1st December 2018;
(K) Rule issued in PIL No. 87 of 2006 is disposed of on above terms;
(L) For reporting compliance, PIL shall be listed on 1st December 2018. It will be appropriate if PIL is placed for monitoring the compliance before this Bench or a Bench of which one of us is a party. The Prothonotary and Senior Master shall seek appropriate directions in this behalf from Hon'ble the Chief Justice;
(M) Writ Petition No. 2208 of 2004 stands disposed of. No separate directions are required to be issued in this Petition. Writ Petition No. 2741 of 2004 stands disposed of by a separate order passed today;"
It is argued that the fact that the respondent no. 1 was to build an approach bund and a temporary road for reclamation purpose was categorically stated in the EIA Report as well as the Revised EIA Report on the basis of which the Expert Appraisal Committee (EAC) recommended the grant of the EC to the respondent no. 1. The applicants if aggrieved by the grant of the EC ought to have challenged the same, which for reasons best known to the applicants has not been done and, therefore, the contents of para 14 are denied. Furthermore, the applicants have alleged that the respondent no. 1 has been dumping soil in the sea and built high soil bund which has obstructed the constant flow of saline water to the mangroves. This contention is denied by the respondent no. 1 as the respondent no. 1 in May 2012 carried out a Mathematical Model Study Report to evaluate the effect of the project of the respondent no. 1 on the hydrodynamics and the morphology of the surrounding area. The report of May 2012 was carried out at the behest of WAPCOS LIMITED (A Government of India undertaking) and Central Water and Power Research Station, Khadakwasla, Pune.
It is further submitted that the report of May 2012 along with the EIA Report was submitted to the respondent no. 6 for its consideration. It is pertinent to note that the EAC only after considering the documents submitted by the respondent no. 1 recommended the project of the respondent no. 1 for the grant of the EC. The fact that the EAC has considered all the relevant documents submitted by the respondent no. 1 is reflected in the EC itself and therefore the allegation that the respondent no. 1 has obstructed the constant flow of saline water to the mangroves is not proved.
It has been contended by the respondent no. 1 that it is the case of the applicants that as a result of the dumping, a permanent change in the sea flow of saline water as well as the frequency, height and length of sea water has occurred. The applicants have relied only on an image to show the change as alleged. The applicants have raised a scientific issue pertaining to the hydrodynamics of the sea as a result of the reclamation being carried out by the respondent no. 1. However, the applicants have not produced any scientific data except a picture to substantiate their claim.
The State of Maharashtra vide its Resolution dated 20.08.2010 has laid down a Port Policy of 2010, a Corporate Social Responsibility is imposed upon the developer wherein the developer is under an obligation to look into the welfare of the project affected people. The impugned project is also covered by the Port Policy of 2010 and, therefore, besides the EC, the respondent no. 1 has a responsibility under the Corporate Social Responsibility dated 20.08.2010 which is applicable to multipurpose jetties/cargo terminals to be set-up in the future.
In pursuance of the Corporate Social Responsibility contemplated under the Port Policy of 2010, the respondent no. 1 has entered into a Corporate Social Responsibility Agreement with the applicant no. 1 in the presence of the Tehsildar, Uran on 09.01.2015 wherein the respondent no. 1 accepted its Corporate Social Responsibility and has undertaken to work for the welfare of the fisherman in the area. The applicant no. 1, being a signatory to the said agreement, today cannot say that the respondent no. 1 is not complying and taking care of the fisherman welfare committee in the area. On the contrary, the list of the fisherman being affected as a result of the impugned project is being considered by a Committee formed under the directions of the District Magistrate.
The respondent no. 1 contends that:
"10. The applicants in Para 16 have averred that the problems of the fisherman community have not been addressed by the Respondent No. 1. It is submitted that the Respondent No. 6 in the EC dated 21.08.2013 has laid down a specific condition wherein the welfare of the fisherman needs to be undertaken by the Respondent No. 1. In this context, it is submitted that it is not the case of the Applicants that the Respondent No. 1 has not complied with the EC conditions. Furthermore, the State of Maharashtra vide its Resolution dated 20.08.2010 has laid down a Port Policy of 2010 which shall be Policy of 2010, a Corporate Social Responsibility is imposed upon the Developer wherein the Developer is under an obligation to look into the welfare of the project affected people. The impugned project is also covered by the Port Policy of 2010 and therefore besides the EC, the Respondent No. 1 has a responsibility under the Corporate Social Responsibility dated 20.08.2010 which is applicable to multipurpose jetties/cargo terminals to be set-up in the future".
The applicants in the present Original Application have merely alleged that the respondent no. 1 has violated the conditions laid down in the EC dated 21.08.2013. However, the applicants have produced nothing on record to show how the respondent no. 1 has been violating any of the conditions imposed. In the absence of any such record, only on the basis of the averment made by the applicants, it cannot be concluded that the respondent no. 1 is violating any of the conditions imposed.
It is the case of the respondent no. 1 that:
"...it is categorically stated that the Respondent No 1, is in constant connect with the Forest Officials for the purpose of identifying land wherein the mangroves shall be planted. However the issue of allotment of land for the purpose of mangrove plantations under consideration by the Local Government, and upon receiving the approval, the Respondent No 1, undertakes to implement the same. Thus, the Respondent No 1 has been fulfilling the conditions and the contention therein is therefore denied."
The respondent no. 3 has stated that based on the EC and CRZ clearance granted by MOEF vide letter dated 21.08.2013, the permission was given by MMB to the Respondent No. vide letter no. 921 dated 13.03.2015 for carrying out capital dredging of approx. 1.5 million cubic meter quantity for multipurpose jetty project.
Thus, the respondent no. 3 has granted permission under the Indian Ports Act, 1908 and Maharashtra Maritime Board Act, 1996 to the respondent no. 1 to carry out approximately 1.5 million cum quantity of capital dredging to the impugned project. The respondent no. 3 vide its letter dated 21.01.2017 has extended the dredging permission to the respondent no. 1 upto 31.05.2017. The respondent no. 1 on 04.09.2017 sought permission for further extension for the activity of dredging from the respondent no. 3.
The applicants have alleged that the respondent no. 3 prior to grant of permission to the respondent no. 1 ought to have undertaken demarcation of the inter-tidal zone. Further that the respondent no. 1 has taken undue advantage and went to the level of minimum low-tidal level and even out of that line soil has been dumped creating artificial land space.
In reply to the said contention, respondent no. 1 has also conducted a study for the purpose of demarcation of HTL and LTL of the Karanja Creek for the impugned project through the Institute of Remote Sensing, Chennai. The respondent no. 1 in its reply has contended that:
"...The said report also demarcated the HTL and the LTL for the creek where the impugned project is being built. The said report was also submitted to the Respondent No 6 prior to the grant of the EC, which was considered by the EAC of the Respondent No. 6 and then only was the EC granted to the Respondent No. 1 Company. It is pertinent to note that the Respondent No. 1 Company was granted Environment Clearance as early as on 21.08.2013 which till date has not been challenged by any of the Applicants."
The Report dated May 2011, submitted by the Institute of Remote Sensing on the Demarcation of High Tide Line and Low Tide Line of Karanja Creek for Proposed Multipurpose Terminal and Ship Repair Yard of M/s. Karanja Terminal & Logistics Private Limited, Mumbai, states:
"Surrogate data such as Coastal Geomorphologic features identified from the satellite imagery, indicators available on the ground and tidal data obtained from Survey of India for the Port were used to verify the HTL demarcated by Kinematic Survey. The LTL is demarcated with the help of survey conducted from the boat and bathymetry details provided by the Maritime Board."
Thus, Demarcation of HTL and LTL was completed prior to grant of EC to the respondent no. 1. The respondent has argued that besides making bald allegations, the Applicants have produced nothing on record to show how the activities of the respondent no. 1 are causing Environmental degradation. Furthermore, it is submitted that the Port Policy of the Government of Maharashtra mandates a Corporate Social Responsibility upon the Project Proponent wherein the villagers who are affecting fully or partially shall be rehabilitated at other places along with their means of livelihood by the developer at his own cost. In pursuance of the said policy, a District Coastal Zone Management Committee has been formed who has been considering the issue of compensation to the villagers as a result of the activity of the respondent no. 1. A meeting dated 20.03.2015 was conducted at the office of Sub-Divisional Officer, Panvel, which was also attended by different officers. In the said meeting, it was decided to prepare a list of those people/fishermen who are affected as a result of the activities of the respondent no. 1. It is submitted that as on date the list is not in existence and therefore until and unless the said list comes into existence, it cannot be decided as to who is affected as a result of the activities of the respondent no. 1. It is submitted that the Applicants are not at all affected due to the activities of the Respondent No. 1 and are only approaching this Tribunal with an intention of hand twisting the respondent no. 1 for the ulterior gain of the Applicants. Such frivolous approach should be nipped in the bud by the Tribunal.
The learned counsel for the applicant had submitted that the joint Committee should be constituted to study the environmental impact and according to the report submitted by the joint Committee, necessary action should be taken. The learned counsel appearing for the respondent had submitted that in this particular case, nothing has been shown by the applicant as to non-compliance of the EC or violation of any rule.
Accordingly, the relief as prayed is not maintainable and no further action is required on part on this Tribunal.
The Original Application No. 30/2017 (WZ) and M.A. No. 384/2017 are finally disposed of accordingly.