907 wp 303 of 2018.doc

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CIVIL APPELLATE JURISDICTION
                               WRIT PETITION NO.303 OF 2018
M/s. Kale Entertainment and Resorts Pvt. Ltd.            ...       Petitioner
         Versus
Union of India and others                                ...       Respondents
                                           ALONGWITH
                     PUBLIC INTEREST LITIGATION NO.87 OF 2013
Vanashakti Public Trust                                  ...       Petitioner
      versus
Union of India and others                                ...       Respondents


Mr. Subhash Abhyankar with Ms. Anu Karadharan, for Petitioner in WP No.303 of
2018.
Mr. Zaman Ali with Ms. Sheetal Alvarez, for Petitioner in PIL 87 of 2013.
Mr. N.R.Bubna, for Respondent No.1 in WP No.303 of 2018.
Mr. P.P.Kakade, Govt. Pleader, with Ms. M.P.Thakur, AgP, for State in WP No.303 of
2018.
Mr. G.W.Mattos, AGP, for Respondent in PIL 87 of 2013.
Ms. Swati Sagvekar, for Respondent Nos.3 and 4 in WP No.303 of 2018.
Ms. Sharmila Deshmukh, for Respondent No.10 in PIL 87 of 2013.
Mr. Milan Bhise with Mr. Amit Bhave, Mr. Vinod Sakpal, Mr. Akshay Kandarkar i/by
Mr. Rajesh Datar, for Applicant in NMS 151 of 2017.
Mr. Anil Diggikar, Principal Secretary, Environment Dept., present.

                                   CORAM:     S.J. KATHAWALLA &
                                              B.P.COLABAWALLA, JJ.

                                   DATE:      15th JANUARY, 2020
P.C.:

1. In May 2010, under the sponsorship of Central Government - Ministry of Environment, Forests and Climate Change, the Space Application Centre (SAC), SSP 1/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:27 ::: 907 wp 303 of 2018.doc Ahmedabad & Maharashtra Remote Sensing Application Centre (MRSAC), Nagpur prepared a National Wetland Atlas for Maharashtra for the following reasons :

"Utility-wise, wetlands directly and indirectly support millions of people in providing services such as food, fiber and raw materials. They play important roles in storm and flood control, in supply of clean water, alongwith other educational and recreational benefits. Despite these benefits, wetlands are the first target of human interference and are among the most threatened of all natural resources. Around 50% of the earth's wetlands are estimated to already have disappeared worldwide over the last hundred years through conversion to industrial, agricultural and residential purposes. Even in current scenario, when the ecosystem services provided by wetlands are better understood - degradation and conversion of wetlands continues.

Aware of their importance, the Government of India has formulated several policies and plans for the conservation and preservation of these crucial ecosystems. Realising the need of an updated geospatial data base of these natural resources as the pre-requisite for management and conservation planning, National Wetland Inventory and Assessment (NWIA) project was formulated as a joint vision of Ministry of Environment & Forestry, Govt. of India, and Space Applications Centre (ISRO)." (emphasis supplied)

2. The National Wetlands Atlas for Maharashtra identifies a total of 46,460 Wetlands in the entire State of Maharashtra. A Chart showing district wise break-up of all Wetlands in Maharashtra as per the said Atlas is tendered in Court. The same is SSP 2/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:27 ::: 907 wp 303 of 2018.doc taken on record and marked 'X' for identification.

3. On 14th October, 2013 this Court in Public Interest Litigation (PIL) No.87 of 2013 passed the following order :

"1. By order dated 16th September, 2013, we had directed the State Government to take a decision whether they propose to adopt the Wetland Atlas prepared by the Central Government and whether they would like to prepare a brief document in respect of Wetland Atlas for the State of Maharashtra as envisaged under Rules 6(2) and 6(3) of the Wetland Rules, 2020. Unfortunately, the said direction does not appear to have been incorporated in our order dated 16 th September, 2013. We therefore, now direct the Secretary, Department of Environment and the Secretary of Forest Department, Government of Maharashtra to take a decision whether they propose to adopt Wetland Atlas, prepared by the Central Government under the said Rules and whether they would like to prepare their own brief document in respect of Wetland Atlas for the State of Maharashtra. If the State of Maharashtra does not propose to adopt the Wetland Atlas prepared by the Central Government, the Secretary, Department of Environment and the Secretary of Forest Department, State of Maharashtra to inform this Court the time frame within which the said brief document shall be prepared for the State of Maharashtra.

2. In the meantime, however, we deem it fit and proper to give a direction in respect of the areas which have been identified as Wetland Areas in the Wetland Atlas by the Central Government that no reclamation of land and any kind of construction shall be permitted without leave of this Court. The Secretary, Urban Development Department, Government of Maharashtra is directed to issue a circular SSP 3/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:28 ::: 907 wp 303 of 2018.doc informing the direction given by this Court to all the Corporations and the Zilha Parishad. Stand over to 29th October, 2013".

4. On 19th March, 2014 this Court in PIL No.87 of 2013 passed the following order :

"2. Pursuant to the directions given by this court the learned A.G.P. has submitted report in respect of certain areas. Perusal of the report indicates that there is rampant destruction of wetlands and land is reclaimed after systematic destruction of wetlands. We have seen photographs which are tendered by the petitioners which also clearly demonstrate that apart from destruction of wetlands, the land is reclaimed and illegal reclamation is being carried out by certain persons. As of today, no permanent machinery is set up by the State Government for the purpose of stopping destruction of wetlands. We are, therefore, of the opinion that it would be necessary to impose total ban on destruction and reclamation of wetlands which are described in the Atlas prepared by the Central Government. permission should be granted for destruction Hereinafter no and reclamation of wetlands and prompt action including lodging of FIR/complaint be taken. This action should be taken by the Collector, who is authority in respect of entire Revenue District and also by the Regional Officers of State Pollution Control Board, who have been delegated powers under section 20, 21, 23 of the Water (Prevention and Control of Pollution) Act, 1974. The steps should also be taken by these authorities and they should submit report about the steps taken by them in respect of reclamation of wetlands as indicated in the report submitted by Chief Conservator of Forests, Mangrove Cell, Mumbai."

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5. On 16th December, 2019 this Court in Writ Petition No.303 of 2018 passed the following order :

"1. By an order dated 14th October, 2013 passed by this Court in PIL No.87 of 2013, directions were given to the Department of Environment and Secretary to the Forest Department, State of Maharashtra to decide whether they propose to adopt the Wetland Atlas prepared by the Central Government under Rules 6(2) and 6(3) of the Wetland Rules, 2010 or whether they would like to prepare their own document in respect of the Wetland Atlas for the State of Maharashtra.

2. Mr. Sanjay Baliram Sandanshiv, Scientist II Cum Under Secretary, has filed his Affidavit dated 12th December, 2019 setting out as follows : "7. This Department vide GR dated 06.02.2018 has constituted Wetland Authority, under the Chairmanship of Hon'ble Minister of Environment. In view of the directions of the Hon'ble High Court, all District Collectors, are informed to prepare brief documents to submit before the wetland authority. On 27 th August, 2019 State Wetland Authority reviewed the progress of the preparation of brief documents in respect of wetlands in State. Accordingly, all District Collectors are instructed to prepare brief documents within 15 days."

3. The said statements made in the Affidavit are of no assistance to the Court. No particulars are provided as to what exactly is done from 14th October, 2013. No detailed particulars of the steps taken from 6 th February, 2018, i.e. the date of the GR, are provided. This is so because hardly any steps are taken in the matter, which conduct is strongly deprecated. The fact remains that the orders passed by the Court are not complied with by the State Government since a very SSP 5/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:28 ::: 907 wp 303 of 2018.doc long time. The State Government is directed to prepare the brief document, if so interested, within a period of four weeks from today.

4. Stand over to 13th January, 2020, high on board."

6. On 13th January, 2020 this Court after reproducing the order dated 16 th December, 2018 interalia recorded in brief the contents of the Affidavit of Mr. Sanjay Baliram Sandanshiv, Scientist II Cum Under Secretary, in paragraph 2 of the order which is reproduced hereunder :

"2. Today, an Affidavit is filed by Shri. Sanjay Baliram Sandanshiv, Under Secretary, Environment Department, Government of Maharashtra, wherein he has stated as follows :-

(i) that pursuant to the directions of this Court dated 14 th October, 2013, the Revenue and Forest Department constituted the Maharashtra State Wetland Committee chaired by the Chief Secretary vide GR dated 30 th April, 2014 ;

(ii) that the Environment Department had instructed all District Collectors of 28 districts for preparation of brief documents vide letters dated 17th November 2015, 18th November 2015, 12th April 2016, 22nd July 2016, 11th August 2016, 3rd October 2016, 17th May 2018, 18th January 2019, 2nd May 2019, 17th May 2019 and 18th December 2019;

(iii) that the Environment Department constituted State Wetland Authority, Grievance Committee and Technical Committee vide G.R. dated 6th February, 2018 for scrutinizing the brief documents submitted by the concerned Districts ;

(iv) that on 19th December, 2019, the Environment Department brought to the notice of all Divisional Commissioners and District Collectors of the SSP 6/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:28 ::: 907 wp 303 of 2018.doc State regarding directions given by this Court dated 16 th December, 2019 and instructed them to submit brief documents of wetland area within 15 days time, failing which they will be solely responsible for the delay ;

(v) that again on 20th December, 2019, the Principal Secretary (Environment) vide D.O. letter instructed all Divisional Commissioners and all District Collectors to prepare brief documents of wetland area within 15 days time, failing which they will be solely responsible for the delay ;

(vi) that on 24th December, 2019 all concerned officers of the Konkan Division District Collector Offices remained present for further guidance and technical assistance for preparation of brief documents ;

(vii) that on 26th December, 2019 all Divisional Commissioners and all District Collectors were reminded for the preparation of brief documents of wetland in the light of this Court order dated 16th December, 2019 ;

(viii) that on 7th January 2020 all Divisional Commissioners and all District Collectors were requested by the Environment Department to send the progress report about the preparation of brief documents of wetland within two days in the light of the order dated 16th December, 2020 ;

(ix) that out of 36 Districts of State of Maharashtra, 2 Districts namely, Sindhudurg and Ratnagiri have completed brief documents and submitted online to Environment Department ;

(x) that in Parbhani and Nagpur, there are no wetlands.

(xi) that so far as Thane and Mumbai Suburban Districts are concerned, the work of wetland is already completed. However, due to some technical issues, the brief documents are not uploaded online.

(xii) that the Raigad and Palghar Districts shall prepare the brief documents within a period of 15 days ;

       (xiii)    that so far as balance 28 Districts are concerned, the District

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Collectors are already informed to complete the process to prepare brief documents, failing which the concerned officer shall be solely responsible, for the delay."

In the said order, this Court after recording that the Additional Commissioners and Collectors have failed to comply with the orders passed by this Court and also the directions/reminders given pursuant thereto by the Environment Department, including the Principal Secretary (Environment), directed the Principal Secretary (Environment) to appear before the court on 15 th January, 2020 at 11.00 a.m., and inform the Court about the action taken / proposed to be taken against the Divisional Commissioners and District Collectors for not complying with the directions of this Court more so because in the communication addressed by him to the Divisional Commissioners and District Collectors, he had already warned them that if they fail to submit the brief documents within the prescribed time, they will be solely responsible for the delay.

7. Today, Mr. Anil Diggikar, the Principal Secretary (Environment) is present in Court. Mr. Diggikar has placed before the Court an order dated 14 th January, 2020 issued by the Chief Secretary, Govt. of Maharashtra, to all the Collectors and Divisional Commissioners, directing them to forthwith prepare and submit the brief documents of wetlands as per the directions of the Court, failing which necessary action will be taken against them for evading the orders of this Court. The Collectors and Divisional Commissioners shall therefore prepare and submit the brief documents SSP 8/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:28 ::: 907 wp 303 of 2018.doc of wetland within a period of two weeks from today. A copy of this order shall be forthwith forwarded to all the Collectors and Divisional Commissioners.

8. Since the Under Secretary, Environment Department has tendered an Affidavit in Writ Petition No.303 of 2018 stating that in Parabhani, Nandurbar and Nagpur Districts, there are no wetlands, Mr. Zaman Ali, Advocate appearing for the Petitioner in PIL No.87 of 2013 referred to the district wise break up prepared by the Petitioner as per the National Wetland Atlas for Maharashtra and pointed out that :

(i) Nandurbar District has a total of 735 Wetlands (Item No.1, Chart at Annexure - A);

(ii) Nagpur District has a total of 1054 Wetlands (Item No.9, Chart at Annexure - A);

(iii) Parbhani District has a total of 276 Wetlands (Item No.17, Chart at Annexure - A);

Advocate Mr. Zaman Ali submitted that therefore, a stark difference is prima facie observed between the data submitted by the Under Secretary, Environment Department and the available scientific data on number of wetlands identified in Maharashtra by premier scientific agencies (SAC and MRSAC). He submitted that in view of the above, it is highly misleading and incorrect for the Under Secretary, Environment Department to submit on oath that there are no wetlands in Nandurbar, Nagpur and Parbhani Districts.

9. In view thereof, the Principal Secretary (Environment) who is present in Court, has agreed to look into the above grievance of the Petitioner and make his SSP 9/10 ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 00:40:28 ::: 907 wp 303 of 2018.doc submissions on the adjourned date. Also, copies of all brief documents prepared for all wetlands in the State of Maharashtra shall be supplied to the Petitioner so as to enable the Petitioner to verify whether brief documents of all wetlands as already identified under the National Wetlands Atlas - Maharashtra, are being prepared and in a proper manner.

10. Stand over to 29th January, 2020 first on board.

( B.P.COLABAWALLA, J. )                                  ( S.J.KATHAWALLA, J. )




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