HC restores ‘protected forest’ status of 120 hectares of Kanjurmarg dumping site

The court said that any proposal to de-notify the same would need to be complied with the due process prescribed under the FCA. It granted three months’ time to BMC, which runs the dumping site, to “comply with consequences of the HC judgment.”

After the government lawyer sought stay on the operation of the HC verdict, the court said the request need not be considered as a three-month time was given to BMC to comply with the order.

A bench of Justices Girish S Kulkarni and Somasekhar Sundaresan passed a verdict on a plea by NGO Vanashakti filed in 2013 which claimed the Kanjurmarg landfill falls under Coastal Regulation Zone (CRZ) and causes health hazards. The HC order is likely to be challenged in the Supreme Court.

The NGO had challenged the denotification of 119. 91 hectares of land located in Kanjurmarg on the coast of Thane Creek for dumping ground/landfill of nearly 141.77 hectares created by BMC, which was earlier classified as ‘protected forest’.

The HC noted that the subject land was salt pan land and over the time witnessed growth of mangroves. It added that the lease for such land for production of salt expired around 2003 and thereafter, under the Coastal Regulation Zone (CRZ) Regulations and the Environment Protection Act, 1986, it was notified and classified as CRZ-1 area.

Senior advocate Gayatri Singh for Vanashakti contended that through impugned notification of December 29, 2009 issued by Divisional Commissioner, Konkan, the status of “protected forest” has been modified without complying with due process stipulated under the FCA and same should be quashed.

However, Advocate General Birendra Saraf for state government argued that the land in question is only marginally covered by mangroves, which are in two patches and are restricted to 20.76 hectares, as noticed in the report filed by Maharashtra Coastal Zone Management Authority (MCZMA) and nothing in the rest of the area constituted as “protected forest.”

Saraf added that taking note of the MCZMA report, another bench of HC in May 2013 had directed that no further mangroves must be destroyed and had directed the BMC to ensure compliance with MCZMA recommendations.

The state government said that the two patches in mangroves were excluded from the Kanjurmarg dumping ground. The government and BMC also argued that the impugned decision merely corrected an error in the Forest Notification.

After perusing submissions, the bench observed that “the subject land was clearly the land covered by the mangroves.”

It noted that the HC in an order on an earlier PIL had explicitly declared a law that “land covered by mangroves is automatically CRZ-1 land and indeed falls in the category of protected forest,” and “prohibited dumping of garbage on mangroves.”

“The state had to conduct detailed satellite imaging of actual mangrove growth and coverage before it issued the Forest Notification,” the bench observed.

“The subject land, which indeed is salt pan land, attracts growth of mangroves and it is the violative construction of the wall by MCGM that led to mangroves being stunted and destroyed,” the bench held.
It added that earlier Forest Notification was a “product of actual verification of facts, satellite imaging and ground truthing and indeed an outcome of due process of law.”

The court further held the impugned decision of 2009 was “unsustainable” and that the Supreme Court order “does not give cover to the argument that the Forest Notification was a mistake,” therefore it “deserved to be quashed and set aside.”