Partly allowed

Mumbai Metropolitan Region Development Auth. v. Union of India Thru the Ministry of Environment, Forest and Climate Change, and Ors.

Bombay HC20 Aug 2019WP/7019/2019

Case brief

AI extract

What is this about?

The High Court allowed the Petitioner to construct underground water pipelines through mangrove areas via horizontal drilling, provided environmental clearance is obtained. The Court lifted restrictions on surface construction for deep tunnels but permitted small shaft structures within specific dimensions on buffer zone lands.

What did the court decide?

Permission granted to construct underground pipelines subject to environmental clearance and specific conditions regarding shaft dimensions and prohibition of surface disturbance.

Mumbai Metropolitan Region Development Auth. Vs… — Environment and Pollution | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.7019 OF 2019

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Mumbai Metropolitan Regional Development Authority … Petitioner versus

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Union of India and Ors. … Respondents

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Mr. Jacob Kadantot with Mr. M.A.Amonkar, for Petitioner. Mr. Ashutosh Mishra, for Respondent No.1. Mr. P.G.Sawant, AGP, for Respondent No.2. Ms. Sharmila U. Deshmukh, for Respondent No.3.

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CORAM: AKIL KURESHI &

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S.J. KATHAWALLA, JJ.

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DATE: 20^th AUGUST, 2019

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P.C.:

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Rule. Learned Counsel for the Respondents waive service of Rule. The Petition is taken up for fnal hearing.

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This Petition is fled by the Mumbai Metropolitan Regional Development Authority (for short “MMRDA”) seeking directions to the Respondent Authorities to issue necessary permission/approval for laying down under ground water transmission lines at Kaman Creek, Vasai Creek and pipeline in RoW passing through areas spanning the distance of about 0.295 kms and covering an area of about 0.783 hectares as mangroves areas and bufer ones.

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Brief facts are as under :

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SSP 1/15

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The Petitioner-MMRDA is the statutory authority constituted for providing infrastructure development to the Mumbai Metropolitan Region. The MMRDA wants to lay down pipelines for providing potable water in western suburban regions comprising of Vasai Virar City Municipal Corporation, Mira Bhyander Municipal Corporation and 27 villages outside Vasai Virar City Municipal Corporation as part of the Surya Regional Water Supply Scheme. The entire project involves underlaying of water pipeline of 2.235 mtrs diameters. The detailed layout of such project is explained in the Petition, fner details of which we are not concerned with. The water pipelines would cover the distance of 90 kms from the source (Surya Dam) to the farthest point, after crossing Vasai Creek and Kaman Creek and certain water bodies enroute. Four tunnels are proposed to be constructed, out of which the tunnels proposed at Kaman Creek and Vasai Creek are in the vicinity of mangroves. It is pointed out that the pipelines at Vasai Creek would be underground with a tunnel of two meters diameter, which would be situated around 31 meters below the bed level of the creek. This would be constructed using the latest tunnelling technology. Similarly, the pipeline crossing Kaman creek would also be underground tunnel of 2 meters diameter and would be placed 31 meters below the

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SSP 2/15

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bed/scour level of river by using similar technology.

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Since the proposed pipelines at Vasai Creek and Kaman Creek are situated in the CRZ ones and would also be situated where there are existing mangroves, the Petitioner frst applied for necessary permissions to Respondent No.3 namely Maharashtra Coastal Zone Management Authority. The said authority after processing the application, placed its recommendations before the Ministry of Environment and Forests, Union of India. The Union of India has passed an order dated 9^th February, 2015 granting permission to the Petitioner-MMRDA to construct such pipelines subject to several conditions. One of the conditions which is relevant for our purpose reads as under : -

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“(v) Permission of Hon’ble High Court is mandatory, if construction activity is in mangrove area or its 50 meter bufer one area;”

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Above noted condition came to be imposed in view of a decision of the Division Bench of this Court in Public Interest Litigation No.87 of 2006 in the case of Bombay Environmental Action Group and Anr. V/s. The State of Maharashtra and Ors.1 In the said Judgment, the Division Bench had passed the following order : 1 (2019) 1 BCR 1

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SSP 3/15

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“85. For the reasons recorded above, we dispose of the PIL by passing the following order : -

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ORDER

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(A) The following directions issued in the interim order dated 6th October 2005 shall continue to operate as fnal directions in following terms;

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(I) That there shall be a total free e on the destruction and cutting of mangroves in the entire State of Maharashtra;

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(II) Dumping of rubble/garbage/solid waste on the mangrove areas shall be stopped forthwith;

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(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.;

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(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 notifcations of 1991 and 2011. In case of all mangrove areas of 1000 sq. meter or more, a bufer one of 50 meters along the mangroves will also be a part

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SSP 4/15

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of CRZ-I area. Though bufer one of 50 meters in case of mangroves area of less than 1000 meters will not be a part of CRZ-I, it will be subject to above restrictions specifed in clause III above;

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(V) The State of Maharashtra is directed to fle in this Court and furnish to the petitioner copies of the maps referred to in paragraph 10 of the afdavit dated 16th August, 2005, fled by Mr.Gajanand Varade, Director, Environment Department, State of Maharashtra (Page 346 on the record), within four weeks from today. The soft or hard copies of the maps be supplied to the Petitioner within the same period;

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(B) The following direction issued in terms of clause 8(viii) of the order dated 6th October 2005 has been substantially complied with :

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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 Maharashtr 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

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SSP 5/15

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details on city survey/village maps (cadastral map) will be carried out within a period of 6 months from today";

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(C) The directions in sub-clauses(ix) to (xiii) of clause 8 of the order dated 6th October 2005 shall continue to operate as fnal 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 afdavit 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;

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(D) We direct the State Government to constitute a Committee headed by the Divisional Commissioner, as agreed by the State Government. The Committee and subcommittees shall be formed in accordance with the observations made in paragraph 68 above. The committee

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SSP 6/15

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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;

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(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 fle 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 ofcers or ofces nominated by the State

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SSP 7/15

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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 afected area by e-mail and by whats app 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;

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(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 ofces of District Collectors, Sub-Divisional Ofcers, Tahasildar in the Coastal Districts as well as in the ofces of the Maharashtra Pollution Control Board and the

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SSP 8/15

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Maharashtra Maritime Board in the coastal districts. The information shall be displayed prominently in the ofces 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;

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(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 feld. 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

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SSP 9/15

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seen shall be considered by the Committee and remedial measures shall be taken. The State Government shall sanction necessary amount for that purpose;

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(H) The State Government shall ensure that criminal law is set in motion against all those who commit ofences punishable under section 15 of the said Act of 1986 as observed in the Judgment. The Committee shall monitor implementation of this direction;

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(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 to show mangroves areas and 50 meter bufer one around it while making or revising Development Plans/Regional Plans. Such a direction shall be issued within a period of three months from today;

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(J) Quarterly Compliance reports shall be fled by the Committee reporting compliance with the aforesaid directions. The frst of such reports shall be fled on or before 1st December 2018;

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(K) Rule issued in PIL No.87 of 2006 is disposed of on above terms;

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(L) For reporting compliance, PIL shall be listed on 1 st December 2018. It will be appropriate if PIL is placed for monitoring the compliance before this Bench or a Bench of

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SSP 10/15

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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;

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(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;”

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As per sub-clauses (iii) of clause A of paragraph 85 of the said Judgment, regardless of the ownership of the land having mangroves, all constructions taking place within 50 meters on all sides of all mangroves areas would be forthwith stopped. As per sub-clause (iv), no development permission would be issued by any authority in the State of Maharashtra in respect of any area under mangroves. In view of these directions of the High Court, the Union of India has incorporated the above noted condition.

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Learned Counsel for the Petitioner pointed out that both the proposed pipelines would be laid down underground at a depth of about 31 meters below the surface. This would be done through an advanced sophisticated technology of hori ontal drilling without disturbing the surface area whatsoever. He further pointed out that no part of the pipelines or any other structure temporary or

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SSP 11/15

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permanent would be created on the surface of the land, except the tunnel inlet and outlet shafts at the two ends of the underground pipelines. He pointed out that the outline shafts at Vasai Creek would be on the private lands which are in bufer one of the existing mangroves. Likewise, the outlet tunnel shafts of the Kaman creek pipeline would partly fall within the bufer one of the existing mangroves. Such shafts also would be constructed on the private lands. We have also heard the learned Counsel for the Respondents. 8. The material on record suggests that the entire project is an ambitious project for providing drinking water to various areas in the outskirts of the City of Mumbai. In the long term, if such pipelines are not constructed, several areas may have serious drinking water shortages. In order to overcome these difculties, the PetitionerMMRDA has conceptualised this project. For the construction of underground pipelines in question, it appears that the Union of India, Ministry of Environment and Forests, has granted clearances presumably after taking into account all the allied issues and in consultation with the CRZ Regulatory Authority. Only technical difculty faced by the Petitioner as well as Union of India in granting the clearances is the decision of this Court noted above in the case of Bombay Environmental Action Group (Supra). The

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SSP 12/15

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construction of the pipelines strictly speaking, though within the bufer one or even existing mangroves, being at a depth of more than 30 meters, prima facie, would not in any manner afect the existing mangroves, particularly when it is pointed out that no construction activity, no temporary or permanent structure would be erected on the surface of the land. We also take note of the submission made by the counsel for the petitioner after taking instructions that entire drilling for the purpose of construction of the pipeline would be under ground and no activity will be carried out on the surface. However, whether the actual drilling activity would cause any damage to the existing mangroves, is the issue which does not appear to have been examined by any authority. Subject to examination of such an issue, we do not see any difculty in granting permission to the Petitioner to construct the pipelines in terms of the conditional clearances granted by the Union of India under the order dated 9^th February, 2015.

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We do recogni e that at least part of the structures of inlet and outlet shafts would be situated in the bufer ones of existing mangroves. However, we are informed that the actual structure would have a dimension of 10 meters diameters, though the land acquired and to be occupied by the Petitioner for such purpose

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SSP 13/15

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would be of dimension of approximately 30 X 30 / 50 X 50 meters. In special requirement of the project, we permit the Petitioner to put up such structures on 30 X 30 meters and 50 X 50 meters area of land in case of Vasai and Kaman Creeks respectively, with a condition that other than the said structures and the compound wall to earmark and safeguard the area, no other construction temporary or permanent would be permissible.

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For the purpose of construction of underground pipelines at both the creeks, we lift the rigors of the decision of the Division Bench of this Court in the case of Bombay Environmental Action Group (Supra). However, actual construction can commence only after the Union of India, Ministry of Environment and Forests certifes that the said construction is not likely to adversely afect the existing mangroves. For such purpose, the Petitioner would apply to the said Ministry within a period of two weeks with a copy of this order. Such application shall be disposed of preferably within a period of three months from the date of receipt thereof. In other words, upon such clearance being granted by the said Ministry, the Petitioner would be authorised to carry out construction of the pipelines in tune with and subject to conditions contained in the order dated 9^th February, 2015.

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SSP 14/15

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The Writ Petition is accordingly disposed of.

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( S.J.KATHAWALLA, J. ) ( AKIL KURESHI, J. )

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SSP 15/15

Mumbai Metropolitan Region Development Auth. v. Union of India Thru the Ministry of Environment, Forest and Climate Change, and Ors.

Case brief

What is this about?

What did the court decide?

Mumbai Metropolitan Region Development Auth. v. Union of India Thru the Ministry of Environment, Forest and Climate Change, and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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