Vanashakti v. Union of India through the Secretary Ministry of Environment Forests and Climate Change

NGT11 Sept 2024IA No. 165/2024 in Original Application No. 106/2022

Case brief

AI extract

What is this about?

The Tribunal rejected an interlocutory application seeking to tag a challenge to the CRZ Notification 2019 with related environmental matters pending at the Principal Bench. The Bench refused clubbing, directed the applicant to seek clarification from the Supreme Court regarding bench jurisdiction, and reserved hearing the merits.

What the court decided

AI extract

Vanashakti vs Union of India through the Secretary… — Environment and Pollution | NGT (2024)

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(Pune Bench)

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BEFORE THE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH, PUNE

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Through Physical Hearing (With Hybrid Option)

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INTERLOCUTORY APPLICATION (I.A) NO.165 OF 2024 (WZ)

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ORIGINAL APPLICANT NO. 106 OF 2022(WZ)

Vanshakti & Ors.

… Applicant(s)

Versus

Union Of India & Ors.

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… Respondent(s)

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CORAM: HON’BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER

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Applicants : Mr. Zaman Ali and Mr. Akash Rebello, Advocates for Original applicants in Orig. Applicant No.106/2022 Respondent(s) : Mr. Rahul Garg, Advocate for R-1/MoEF&CC and For the applicant in present I.A. No.165/2024

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Mr. R.B. Mahabal, Advocate along with Ms. Pooja Natu, Advocate for R-2 and R-3

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Reserved on : 09.09.2024

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Pronounced on : 11.09.2024

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ORDER

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This IA No. 165 of 2024 has been filed by respondent No.1 – Ministry

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of Environment, Forests and Climate Change (MOEF&CC) praying therein for

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IA NO. 165 of 2024(WZ)

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an order to be issued to tag the present OA with OA No.795 of 2023 - News Item Titled "Third Of India’s, Coastline Vulnerable To Erosion - Here Are The Worst-Hit States" Appeared In Indian Express Dated 06.12.2023 and OA No.249 of 2023 - News Item On India's Sinking Islands Appeared In The Hindu dated 19.03.2023, which are pending before the Principal Bench of this Tribunal. It is further mentioned that in the above two OAs, which are pending before the Principal Bench of this Tribunal, the issue raised is that various beaches in Coastal areas/States like Maharashtra, Tamil Nadu, Kerala, Karnataka, etc. are vulnerable to erosion and are getting damaged on account of lack of proper management due to non-finalization of Coastal Regulatory provisions i.e. Coastal Zone Management Plan. Vide order dated 16.01.2024, OA No. 795 of 2023 has been tagged along with OA. No. 249 of 2023. The Principal Bench, in its order dated 08.01.2024, has directed that since, in spite of the direction of NCZMA, the CZMP/ICRZPs have not been formulated the plan, respondent No. 14 (In OA 795 of 2023 and in OA 249 of 2023) is required to ensure that the plan is prepared by each Coastal Management Authority and Union Territory Coastal Management Authority expeditiously within a time bound period. As per the last order dated 13.03.2024, the Principal Bench has directed the Chief Secretaries/ LGs of Coastal States / Union Territories to file the affidavit before the Tribunal within six weeks disclosing the outer limit within which the CZMP/ICRZP as per CRZ Notification, 2019 would be finalized and submitted to the MOEF&CC, failing which the concerned Chief Secretary will appear virtually on the next date of hearing and explain the reason for non-submission of such an affidavit.

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In compliance with this direction, the MOEF&CC has taken all necessary measures to expedite the CZMP updation as per CRZ Notification, 2019. The preparation of CZMPs as per CRZ Notification, 2019 for rest of the coastal states has progressed significantly in almost all coastal States / UTs and the same is being actively monitored by the Ministry. Further it is

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mentioned that CRZ Notification, 2019 is applicable to all coastal States / UTs hence it is prayed that the matters may be clubbed/tagged together in the interest of justice. Further it is stated that in all the matters, issues relate to the implementation of CRZ Notification, 2019 wherein different coastal states are respondents, where he drew our attention to the adjudication of the appeals before different benches without giving an opportunity to all interested parties which may result in conflicting findings and decisions by different benches. Therefore, looking to the fact that the subject matter pertains to the implementation of CRZ Notification 2019 and issues related thereto, it would be appropriate that all such matters be dealt with by one single bench so as to ensure a holistic and integrated view of all related issues. It will save a lot of time and is necessary to prevent the multiplicity of judicial proceedings.

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From the side of the applicant in OA 106 of 2022 reply affidavit dated 02.07.2024 has been filed, wherein it is submitted that OA No. 795 of 2023 and OA No. 249 of 2023 which are said to be pending before the Principal Bench of this Tribunal, are wholly distinct from the present proceeding. The proceedings in these OAs before the Principal Bench have been initiated suo motu regarding the vulnerability of beaches to erosion on account of the lack of proper management of such beaches and the submergence of low-lying islands due to sea level rise which is an ancillary issue of non-preparation of CZMP required to be prepared under the CRZ Notification 2019. CZMP are plans/maps which only demonstrate areas that are marked as CRZ-I, CRZII, CRZ-III and CRZ-IV in a different colour coding but do not have any relation with the provisions of the CRZ Notification, 2019 per se, other than Clause 6(i) which states that unless the CZMP is updated under the CRZ 2019, the provisions of CRZ 2019 will not come into effect and the provisions of CRZ 2011 will continue to operate. In both the above OAs, the issue is not about the implementation of the provisions of the CRZ Notification, 2019 but about updating the CZMP Maps so as to reflect the markings and

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demarcations of CRZ areas appropriately. Thus, updating the CZMP is a procedural issue, which is not at all related to the substantive issue of challenging the vires of the provisions of CRZ 2019 (which are sought to be declared as invalid under the present proceeding).

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It is further mentioned that if the challenge to the vires of the provisions of CRZ 2019 is successful, the preparation of CZMPs under the CRZ 2019 will cause no prejudice to respondent No.1 or to any other state agencies as only the updated maps will have to be modified to reflect the portions that have been updated. Further, it is mentioned that it is not the case that there is a lack of protective measures for the coastal states where CZMP has not been updated for the reason that for those states, CZMP prepared under the CRZ 2011 continues to apply with full force. Therefore, hearings in the present matter should not be stopped only because the above two OAs are pending before the principal bench.

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The other objection raised by the applicant is that it is only the Hon’ble Chairperson who is empowered to transfer proceedings from a Zonal bench to the Principal Bench/other Bench and Rule 3 of the NGT (Practice and Procedure) Rules, 2011 has also been quoted by the applicant, as below:

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“ 3. Distribution of business amongst the different ordinary place or places of Sittings of Tribunal.

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(1)The Chairperson may constitute a bench of two or more members consisting of at least one Judicial Member and one Expert Member.[Provided that in exceptional circumstances the Chairperson may constitute a single Member Bench] [Inserted by Notification No. G.S.R. 1473(E), dated 1.12.2017 (w.e.f. 4.4.2011).].(2)The Chairperson shall have the power to decide the distribution of the business of the Tribunal amongst the members of the Tribunal sitting at different places by order and specify the matters which may be dealt with by each such sitting in accordance with the provisions of clause (d) of sub-section (4) of section 4 of the Act.(3)If any question arises as to whether any matter falls within the purview of the business allocated to a place of sitting, the decision of

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the Chairperson shall be final.Explanation. - The expression "matter" includes application for interim relief.”

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This rule read with Section 35(2)(d) of the NGT Act, 2010 makes it clear that it is only the Chairperson who has authority to transfer the proceeding from one bench to other bench and not this bench. Therefore, this Bench cannot transfer the present OA to the Principal Bench for being clubbed with the other two OAs cited above. Hence it is prayed that the application should be dismissed with cost looking to the delay, which has already been caused by respondent No.1 in hearing of this matter.

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We have heard the arguments of the learned counsel for the applicant and that of respondent No.1 at length. The learned counsel for respondent No.1 empathetically states that the Principal Bench of this Tribunal has issued direction to Chief Secretaries of all the States/ UTs to ensure the CZMP under the CRZ Notification 2019 should be expedited and next date has been fixed to be 11.09.2024 by which the order implies that the State of Goa as well as Gujarat would also be required to finalize the CZMP under the CRZ Notification 2019. But in the case in hand the prayer made by the applicant is to seek the declaration to the effect that the CRZ Notification 2019 is illegal, ultra vires, and violative of Article 14 and Article 21 of the Constitution of India and to declare that CRZ Notification 2011 provisions must be directed to be continued and valid. In the prayer clauses, in the alternative, it is also prayed as under

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a. “Bifurcation of CRZ-III into CRZ-IIIA and IIIB, and relaxation of 200 meter NDZ to 50 meters in CRZ-IIIA.

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b. Reduction in the CRZ for tidal influenced water bodies from 100 mtrs to 50 mtrs.

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c. Change of FSI norms in CRZ-II from those existing in 1991 from those to those presently existing.

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d. Procedure for clearance of projects including dispensing with EIA, risk assessment report, and disaster management plans in certain cases.

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e. Dilution of essential components in preparation of CZMP.

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f. Dilution of essential components in application for CRZ clearance.

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g. Dilution of protection for mangroves and mangrove buffer.

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h. Changes in the regulation of permissible activities.

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i. Deleting items from the list of prohibited activities.

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j. Increase in the number of petroleum and chemical products permitted to store in CRZ Areas Except for CRZ-I(A).

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k. Dilution of CRZ-I by removing the term „Associated Biodiversity in respect of Protection of Coral Reefs‟

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l. Reduction in CRZ from 50 mtrs to 20 mtrs on island.

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m. Construction of statutes / monuments.

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n. Deletion of special provisions for Koliwadas and Gaothans in greater Mumbai.

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o. Deletion of special provisions for Mumbai.”

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According to the applicant, the above provisions violate the right to live in a healthy environment and consequently the right to life of citizens of India secured under Article 21 of the Constitution of India. These provisions are introduced arbitrarily without any reasoning. The introductory changes have no nexus with the object sought to be achieved. Many provisions which are reenacted were already struck down as unconstitutional in earlier Judgment. Many of the new provisions are contrary to the recommendations of various committees set up by the Govt. of India to review the CRZ regime. Many of the new provisions were not included in the Draft of CRZ Notification. The nature of the changes made clearly reflects that CRZ Notification 2019 is less a provision to protect the environment from damage and more a provision to protect unregulated construction.

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Therefore from the above prayers in the OA before us we find that the area covered under new clauses is a much larger area than the issue which is under consideration before the Principal Bench of this Tribunal but we find that

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both are interconnected to a great extent because much will depend on the preparing of CZMP Maps and based on that only permission would be required to be allowed for construction and other activities. So it would be ideal that this matter should have been considered by a larger bench of this tribunal comprising the Judicial Members and Expert Members of each bench, in particular, where jurisdiction of the coastal area is found i.e. East, West, and Southern Zone at least.

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We find that Hon’ble Apex Court in Special Leave to Appeal (C) No. 20495/2021 (Vanashakti & Anr. V Union of India & Ors) in an order passed in IA 163051/2021 in its order dated 30.09.2022 has recorded as below:

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“In the facts and circumstances of the case, the High Court has rightly regulated the petitioners to approach the National Green Tribunal (NGT) as number of technical issues arise which can very well be dealt with by the NGT are involved. Therefore, it is appropriate that the petitioners approach the NGT, as observed by the High Court. The Special Leave Petition stands dismissed.

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However, it is observed that if the petitioners approach the NGT within a period of four weeks from today, the proceedings be considering in accordance with law and on its own merits without raising the issue with respect to limitation.

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All the contentions and defences which may be available to the respective parties are kept open to be considered by the NGT in accordance with law and on its own merits.

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Pending application(s), if any, stand disposed off”.

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The above order makes it clear that the matter is directed to be decided by NGT as it involves technical issues but nowhere has it been clarified by the Hon’ble Supreme Court as to which bench ought to hear this matter but it appears to be the intention of the Hon’ble Supreme Court that it could be only the NGT having jurisdiction/competence to hear the matter.

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It is also clear from the order of the NGT dated 28.02.2020 File No. NGT/PB/RG/2020/6/170 that under sub-section 3 of Section 4 of the National Green Tribunal Act, 2010 the central Government has specified, vide Notification

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No. S.O 1908E dated 17.08.2011 following places of sitting to exercise

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jurisdiction in the area indicated against each as below:-

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SNO.	ZONE	PLACE OF SITTING	TERRITORIAL JURISDICTION
1	Northern	Delhi (Principal Place)	Uttar Pradesh, Uttarakhand, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, National Capital Territory of
			Delhi and Union Territory of Chandigarh.
2	Western	Pune	Maharashtra, Gujarat, Goa with Union Territories of Daman and
			Diu and Dadra and Nagar Haveli.
3	Central	Bhopal	Madhya Pradesh, Rajasthan and Chhattisgarh.
4	Southern	Chennai	Kerala, Tamil Nadu, Andhra Pradesh, Union Territories of Pondicherry and Lakshadweep.
5	Eastern	Kolkata	West Bengal, Orissa, Bihar, Jharkhand, seven sister States of North-Eastern region, Sikkim, Andaman and Nicobar Islands.

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Therefore, it appears to us futile to direct the applicant to approach the Hon’ble Supreme Court to seek clarification as to which bench should hear this matter.

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However, looking to the fact that any order which is likely to be passed in this matter seeking declaration of the CRZ Notification 2019 to be ultra vires the Constitution and hence null and void, would have pan-India

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implications. Hence it would be better that a larger bench is constituted for which a prayer is required to be made before the Principal bench of this Tribunal by the applicant of the present I.A. For this, we grant two weeks’ time to the applicant in case they so wish.

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In case no such larger bench is constituted, we would be duty bound to hear this matter on our own, looking to the fact that the matter is raised before us by the counsel of the State of Maharashtra and Goa which are the States covered under our jurisdiction.

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In view of the above analysis made by us, we are not inclined to accept the prayer made by respondent No.1 (applicant in the present IA) to club the present OA with the other two OAs pending before the Principal Bench, referred to above. Hence the present application (IA 165 of 2024) is rejected. 13. We would also give liberty to the applicant to approach the Hon’ble Supreme Court in case they so wish to obtain clarification from the Hon’ble Supreme Court as to whether order dated 30.09.2022 meant that the matter should be taken up/ decided by the Principal Bench or any of the benches of this Tribunal, particularly in view of the implication it would have on all India basis.

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Put up this matter (OA 106 of 2022) along with OA Nos 09/2023(WZ) and 10/2023(WZ) for further consideration on 16.10.2024, on which date if no order with regard to constitution of larger bench or for clubbing of this matter with earlier two OAs is passed, we would hear the argument of the parties on merits as the pleadings are already completed in the OAs pending before this Bench. 15. No order as to cost.

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Dinesh Kumar Singh, JM

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Dr. Vijay Kulkarni, EM

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September , 2024 IA NO. 165 of 2024(WZ) IN OA NO.106 OF 2022 (WZ) PJB

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IA NO. 165 of 2024(WZ)

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Vanashakti v. Union of India through the Secretary Ministry of Environment Forests and Climate Change

Case brief

What is this about?

What the court decided

Vanashakti v. Union of India through the Secretary Ministry of Environment Forests and Climate Change

Case brief

What is this about?

What the court decided

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