Kamathia & Ors. Vs Bombay Environmental Action Group & Ors.
Dr. B. S. CHAUHAN, J.
Appeal No. 4421 of 2010 was disposed of by this Court vide judgment and order
dated 7.5.2010 giving liberty to the appellants therein to approach the Bombay
High Court to seek appropriate relief. During the pendency of the appeal, the
appellants were given liberty to approach the District Collector concerned to seek
permission to repair the bund. The Collector allowed the appellants to repair
the bund subject to certain conditions. The parties in the appeal have filed
three applications alleging various violations of the orders passed by this
Court, as well as by the District Collector. I.A.No. 23/2010
application has been filed by the District Collector, Mumbai Suburban District,
to initiate the contempt proceedings against the appellants Krishnadevi
Malchand Kamathia & Ors. For violating the order of this court dated
7.5.2010 in Civil AppealNo.4421 of 2010 and his own order dated 27.1.2010 in
respect of Survey No. 344 CTS No. 1 of Village Dahisar, Taluka Borivali, Mumbai
Suburban District and, to issue directions to remove the newly constructed bund
and allow sea water to come in so as to save the mangrove forest. Further direction
has been sought against the appellants to remove the debris, soil, stones which
were used to construct the bund, from the said survey No.344 to outside the
area within the stipulated period and further to restore the bund to its original
position as seen in the Maharashtra Remote Sensing Application Centre map
(hereinafter called MRSAC) and further to restrain the appellants from
indulging in any activity which may result in the destruction of mangrove
forest henceforth. Cont. Pet. No. 169 of 2010
contempt petition has been filed by the appellants to initiate contempt
proceedings against the statutory authorities i.e. District Collector of Mumbai
Suburban District for passing the order dated 20.5.2010 appointing the
Committee to examine whether the appellants had violated the conditional order
dated 27.1.2010permitting the appellants to repair the bund in such a way that
the mangroves may not die and order dated 26.5.2010 to ensure the compliance of
the order dated 27.1.2010 and to remove the debris and reduce the height of the
bund etc., being in violation of orders passed by this Court in the appeal. Cont.
Pet. No. 266 of 2010
contempt petition has been filed by the original writ petitioner before the
Bombay High Court i.e. Bombay Environmental Action Group and Anr., (hereinafter
called `Action Group') to initiate contempt proceedings against the appellants
for willful dis-obedience of the order of this Court dated 22.3.2010 passed in
SLP (C) No.29031/2009 and order dated 7.5.2010 passed in Civil Appeal No.4421of
2010 and further to recall the permission granted by this Court vide order
dated 22.3.2010 in the said case and order dated 7.5.2010in Civil Appeal No.
4421 of 2010. Further, to give directions to open the culverts, closed channels
of water and to ensure removal of debris on the subject site at the cost of the
appellants i.e. contemnors Nos. 1 to 10.
all the aforesaid three applications have been filed alleging violation of the
same orders, the applications were heard together and all being disposed of by
the common order.
Bombay High Court while disposing of the Writ Petition filed by the Action
Group vide order dated 6.10.2005 issued several directions including: "XI.
From the list of "Mangrove Areas" so identified Government owned
lands will automatically be declared/notified as "Protected Forest".
Likewise, privately owned lands from the list of Mangrove Areas so identified,
the same will be declared/notified as "Forest".
pursuance of the aforesaid direction issued by the High Court, the Divisional
Commissioner, issued Notification being No. RB/Desk-II/Forest/CR-2211/Pvt./A-1 dated
18.2.2009, which included the land of the appellants Krishnadevi Malchand
Kamathiaand Ors. In view of the said Notification, the appellants could not restart
the salt manufacturing, though the appellants had been manufacturing salt on
the said land since 1959. It continued upto1990 and their license for
manufacturing salt was valid upto 1993.The Coastal Area Classification and
Development Regulations, 1991(hereinafter called CRZ Regulations) came which
provide for classification of coastal regulatory zone, according to which it
did not prohibit the manufacturing of salt.
aggrieved, appellants filed Special Leave Petition along with an application
for condonation of delay of 1368 days challenging the Bombay High Court
Judgment and order dated 6.10.2005.However, in view of the fact that the
appellants had not been heard by the High Court at the time of passing the
order in pursuance of which the Notification has been issued, the delay was
condoned and the petition was entertained.
application was filed by the appellants on 15.12.2009seeking permission to
repair the damaged bund along with the land in issue. The application was
opposed by the respondents. However, this Court disposed of the said
application vide order dated 5.2.2010permitting the appellants to approach the
District Collector for the said relief. It was clarified that pendency of the
proceedings before this Court or any interim order passed therein would not
stand in the way of the District Collector to pass an appropriate order so far
as there pair of the bund was concerned.
pursuance of the said directions the appellants approached the District
Collector, who after holding inquiry passed a speaking and reasoned order dated
27.1.2010 giving full details and the case history of the dispute over the
title of the land between the appellants and the Government, and the
application of the provisions of Coastal Regulatory Zone Regulations 1991; and
the Indian Forest Act 1927;and Forest (Conservation) Act, 1980. According to
the order, the appellants would repair the bund without destroying the
mangroves or vegetation on the said land.
Court disposed of the appeal vide order dated 7.5.2010wherein the parties were
given liberty to agitate the issue before the High Court raising all factual and
legal issues. So far as the repair of Bund was concerned, this Court directed
as under: "By an interim order passed by this court on 22.3.2010,
permitted the petitioners to repair the Bund. This interim order is made
absolute and petitioners are permitted to maintain and upkeep the Bund till
final adjudication regarding Notifications dated 18.2.2009 and 15.6.2009 is made
and violation of these orders by parties or other authorities could be brought
to the notice of this Court for appropriate directions."
contempt petitions have been filed by the District Collector and the Action
Group making allegations that under the garb of repairing the bund, the
appellants have raised the height and expanded the width of the bund in such a
manner that mangrove would die a natural death without any attempt on the part
of the appellants, and further that appellants have destroyed the mangroves to
the great extent. Appellants filed a Contempt Petition alleging that
Collector's order dated 27.1.2010 is being unnecessarily interfered with by the
have heard Shri Ram Jethmalani, Shri Sekhar Naphade,Shri Dushyant Dave, Shri
Atul Yashwant Chitale, learned senior counsel appearing for the parties and
perused the record.
may be pertinent to mention here that all the learned counsel appearing for the
parties have suggested that the applications be heard without giving strict
adherence to the procedure for contempt proceedings i.e. framing of charges
etc., as pleadings are complete and parties are fully aware as what is the case
against which of the parties. More so, all the documentary evidence, required
to decide the case is on record.
Shri Ram Jethmalani, learned senior counsel appearing for the appellants,
submitted that in pursuance of the order of this Court dated7.5.2010, the
appellants have instituted a civil suit before the Bombay High Court, wherein notices
had been issued to the respondents/defendants and which is still pending
consideration of all factual and legal issues had been raised therein. The
validity of the Notification dated 18.2.2009 is also under challenge therein to
the extent that the said Notification is void ab initio for the reason that the
procedure prescribed in law has not been followed. More so, the Notification
does not disclose what are the statutory provisions which conferred the
power/competence to issue the said Notification.
Sekhar Naphade, and Shri Dushyant Dave, learned senior counsel, submitted that
undoubtedly, the Notification does not disclose the source of power/competence
under which it has been issued, however, the Notification does not become
invalid merely for want of such a statement. Further, it cannot be urged that
the Authority was denude of power to issue such notification as such powers are
available under Section 21 of the Maharashtra Private Forest (Acquisition) Act,
1975. The said provisions provide that whenever it appears to the State
Government that any tract of land not being the property of Government,
contains trees and shrubs, pasturelands and any other land whatsoever, and that
it should be declared, in public interest and for furtherance of the objects of
the said Act, to be a private forest. The State Government would publish a
Notification in the Official Gazette to declare that it was a forest land after
following the procedure prescribed therein. In fact records of the Statutory
Authority reveal that the said Notification has been published in view of the
order passed by this Court on 12.12.1996 in T.N. Godavarman, wherein it has
been held that Forest(Conservation) Act, 1980, would apply to lands being
forests, irrespective of who owned the land. For that purpose, Shri Naphade,has
drawn our attention to para 4.2 of the Report of the Committee, dated 19.5.2010
(Annexure R-5A) to I.A. No. 23 of 2010.
is settled legal proposition that even if an order is void, it requires to be
so declared by a competent forum and it is not permissible for any person to
ignore the same merely because in his opinion the order is void.
State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead)
& Ors., AIR 1996 SC 906; TayabbhaiM. Bagasarwalla & Anr. v. Hind Rubber
Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin
Agarwal(dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup
& Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or
void, cannot be determined by the parties. For setting aside such an order,
even if void, the party has to approach the appropriate forum.
State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this
Court held that a party aggrieved by the invalidity of an order has to approach
the court for relief of declaration that the order against him is inoperative
and therefore, not binding upon him. While deciding the said case, this Court
placed reliance upon the judgment in Smith v. East Ellore Rural District Council,
 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if
not made in good faith is still an act capable of legal consequences. It bears
no brand of invalidity on its forehead. Unless the necessary proceedings are
taken at law to establish the cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for its ostensible purpose as the
most impeccable of orders."
Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC1377, this Court took a
similar view observing that once an order is declared non-est by the Court only
then the judgment of nullity would operate ergaomnes i.e. for and against
everyone concerned. Such a declaration is permissible if the court comes to the
conclusion that the author of the order lacks inherent jurisdiction/competence
and therefore, it comes to the conclusion that the order suffers from patent and
from the above it emerges that even if the order/notification is void/voidable,
the party aggrieved by the same cannot decide that the said order/notification
is not binding upon it. It has to approach the court for seeking such
declaration. The order maybe hypothetically a nullity and even if its
invalidity is challenged before the court in a given circumstance, the court
may refuse to quash the same on various grounds including the standing of the petitioner
or on the ground of delay or on the doctrine of waiver or any other legal
reason. The order may be void for one purpose or for one person, it may not be
so for another purpose or another person.
that as it may, the matter regarding the validity of the said Notification is
still pending consideration in a suit before the Bombay High Court on its
original side, it is not desirable on our part to consider the said submission
raised on behalf of the appellants.
relevant part of the conditional order of the District Collector dated
27.1.2010 provides as under:
Applicants will only carry out the repairs of the Bund and shall not carry out
any other construction activities on the said land.
Applicants will not destroy mangroves and/or vegetation on the said land.
Applicants shall not raise the height of the Bund above as in existence at
present. On receiving numerous complaints from the public at large and officials,
the District Collector passed the order dated 20.5.2010: "xx xx xx The
earlier order passed by this authority giving permission to repair the bund is
hereby stayed and all the concerned parties should maintain status quo. xx xx xx
This committee will visit and check minutely the following important points in
a. The permission given
by the District Collector for the repair of the bund No. C/Desk-21 Mangrove/WS-
610/2009 dated 27.1.2010, which was rendered by the Supreme court in its orders
dated 22.3.2010 and 7.5.2010 whether terms and conditions mentioned in the Collectors
order are followed by the Applicant land owner or not?
b. Whether the Applicant
has committed any violation?
c. Whether the land
owner has kept water culverts open or not? If the committee finds that the
water is stopped which may ultimately cause destroying of mangroves, the
committee i.e. Area Officers should make the owner to open the culverts
immediately. The committee should make detailed enquiry and the consolidated
report should be sent to the District Collector within 15 days." After
receiving the report from the Committee duly constitutedby the District
Collector on 20.5.2010, the District Collector passed the order on 26.5.2010
directing the appellants as under:
1. All the material used
for filling to increase the height be removed, maintain the earlier position of
the bund as expected in the permission order dated 27.1.2010.
2. Remove the rubble
dumped in the open land in question.
3. Remove the rubble and
filling and let the natural flow of sea water, which is at present obstructed,
entering inside the S. No. in question.
4. Remove filling used
for increasing the height of bund to the height as expected in the permission
order dated 27.1.2010.
aforesaid order has been passed by the Collector after considering various
reports of experts/officers.
A. The report submitted
by the Sub Divisional Officer, Mumbai Suburban District dated 18.5.2010
(Annexure A-20 of Con. Pet.266/2010) makes it clear that the Tahsildar Borivali
and Additional Chitnis had visited the spot and found that a new bund had been
made having the width of 10 ft. and height of bund 4 ft. and running to 1 to1=
KMs. There had been culverts in the old bund which were filled up. The natural
flow of water existing earlier had been closed. The closure of the water supply
had adverse effect on the existing mangroves. The direction issued by the
District Collector in his order permitting the construction of bund that
adequate arrangement to ensure that mangroves are not damaged, has not been
complied with and there has been a breach of the said condition.
B. Report dated
19.5.2010 from the Committee appointed for inspection reveal that after having
inspection of the site, the Committee reached the conclusion that the appellants
have grossly violated the conditions incorporated in the order of the District Collector
dated 27.1.2010, permitting them to repair the bund. They have not only raised
height of the bund but widened it so as to obstruct the flow of water in the creek
which may cause damage to mangroves. There has been a violation of the order of
the Collector; the order of the Bombay High Court, and the order of this Court.
The mangroves at places were destroyed during the construction of the new roads
and the new bunds. Debris, garbage, mud and stones have been dumped along the
new road. Large quantities of mud have been excavated from the site itself and
used for construction of the bund. The Committee made the following
recommendations: (1) That all illegal work should be immediately stopped by the
revenue authority. 15 (2) The Bund and the Road that have blocked the smaller
creeks should be immediately removed to prevent the destruction of the
mangroves. (3) Proper action as per the law may be taken by the revenue
authority. It is brought to the notice that in writ petition no. 3246 of 2004
the Maharashtra Govt. vide circular dated 21.10.2005 clarified that the
Collector should take care of the mangroves of the private land and Government
lands till the area is handed over to forest department.
C. There is another
report of the Tahsildar Borivali Mumbai, Suburban district dated 22.5.2010
which reveals that earlier some culverts were in existence, the same had been
closed and a new mud bund erected thereon. By making a huge filling, the width
of the bund had been expanded by 12 to 15 ft. At the end of bund again filling
of debris had been done. Branches of the adjacent mangroves had been cut. The
report further reveals that a crime had been registered on22.5.2010 in MHB
Police Station under Section 15(i)(ii) of Environment Protection Act, 1986
against the owner of the land on account of the cutting of branches of mangroves,
causing damage to mangroves and stoppage of the natural water flow of nalla.
D. Another report dated
14.6.2010 of a Committee consisting of six State officials is on record.
According to it, there have been flagrant violations of the order passed by the
District Collector and the courts. The relevant part reads as under:
in order dated 27.1.2010
position observed by the Committee on the spot
applicants will only carry out the repairs of the Bund and shall not carry
out any other construction activities on the said land.
structural construction activities carried out on the site, but it is
observed that the permission holder has done massive filling work by dumping
debris and garbage on the said land. Bund has been widened by mud and debris
filling. Now the permission holder converted existing bund into new road. The
permission was only to repair the existing bund. But the land holder has constructed
a new bund.
applicants will not destroy mangroves and/or vegetation on the said land.
of mangroves and vegetation done in a large scale.
Applicants shall not raise the height of the Bund above as in existence at
holder has raised height of the existing bund by 1.5 Mtrs. as well as width of the
completion of the repairs, the Applicant shall file a Completion Report in the
office of the Collector.
report of work has been submitted by the applicant. Despite that work still
going on the site.
Applicant will abide by the final orders that may be passed by the Hon'ble Supreme
Court in the SLP to Appeal No.29031 of 2009 in respect of the user of the
violated the conditions of the order dated 22.3.2010 passed by the Hon.
Supreme Court in S.L.P. No.29031 of 2009.
issue has been agitated from time to time before this Court and there have been
various claims and counter claims in respect of the activities of the
appellants. This Court vide order dated 24.11.2010requested the learned
Principal Judge, City Civil Court, Mumbai to inspect the area i.e. the bund in
the lands i.e. SL. No.344 measuring175 Hectares, situated in village Dahisar
and submit a report to this Court about the status and present position. It was
further requested that he would ascertain and report whether any damage has
been caused to mangroves/vegetation that existed on the said land.
pursuance of the said order, the learned Principal Judge, City Civil Court
submitted the report dated 10.12.2010 along with a large number of photographs
to substantiate the contents of the report. Relevant part thereof reads as
"At the outset
it may be briefly stated that during the course of visit it was noticed that
the debris and boulders including big broken pieces of RCC slabs were found
lying at various places on the bund. The debris and boulders were found used
for pitching or reinforcement of the bund because of the dumping of debris and
boulders on a large scale....Apart from dumping of debris and boulders in large
quantities, what was noticed was that there were about 12 to 13 places where
big platforms were found made of debris and boulders. The length of those
platforms was something between 25 to 35 metres each and width was on an
average 16 to 20 metres each.....That debris was being dumped beyond the area
of the platform in property survey No.344 and there was an attempt to increase
the width of the platforms. In the process the mangroves obviously were being
destroyed. ..... the mangroves were destroyed at a considerable length from the
bund in survey no.344..... the destruction was at considerably a large scale. ....a
large number of mangroves were found cut manually. It was possible that the
mangroves were cut to increase width of the bund. The cut mangroves were found
to have been used in increasing the height of the bund. Breathing roots and
branches of mangroves were found stuck in the muddy area of the bund. ..... The
said bund appeared to have been erected after excavation of mud from both sides
of the bund..... Mangroves were found cut at many places. The mangroves were
found to have died because of removal of mud and stagnation of water..... ....
There were 3-4 patches where mangroves appeared to have been destroyed
27. The CRZ
Regulations define for regulating developmental activities, coastal stretches
within 500 metres of the landward side of the High Tide Line into 4 categories.
Category I (CRZ-I) is defined asunder: "(i) Areas that are ecologically
sensitive and important, such as, national parks/marine parks, sanctuaries, reserved
forests, wildlife habitats, mangroves, corals/coral reefs, areas closed 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 other such areas as may be declared by the Central Government or the
concerned authorities at the State/Union Territory level from time to
time." (emphasis added)
28. The regulation of
development or construction activities in CRZ-I areas is to be in accordance
with the following norms: "CRZ-I xxxxx Between LTL and HTL in areas which
are not ecologically sensitive and important, the following may be permitted :
a. Exploration and
extraction of Natural Gas;
b. activities as
specified under proviso of sub- paragraph (i) and (ii) of paragraph 2;
c. Construction of
dispensaries, schools, public rain shelters, community toilets bridges, roads,
jetties, water supply, drainage, sewerage which are required for traditional
inhabitants of the Sunderbans Biosphere Reserve area, West Bengal, on a case to
case basis, by the West Bengal State Coastal Zone Management Authority;
d. salt harvesting by
solar evaporation of sea water;
e. desalination plants;
f. storage of
non-hazardous cargo such as edible oil, fertilizers and food grain within
g. construction of
trans-harbour sea links." (emphasis added) 20
the above, it is evident that mangroves fall squarely with inthe ambit of
CRZ-I. The regulations allow for salt harvesting by solar evaporation of sea
water in CRZ-I areas only where such area is not ecologically sensitive and
important. In the instant case it has been established that mangrove forests
are of great ecological importance and are also ecologically sensitive. Thus, salt
harvesting by solar evaporation of sea water cannot be permitted in an area
that is home to mangrove forests.
view of the aforesaid discussion, we reach the following inescapable
land in dispute has not been used for manufacturing of salt for more than two
land in dispute stands notified as a reserve forest, though it may be a private
land and requires to be protected.
direction issued by the High Court while disposing of the writ petition filed
by the Action Group has issued several directions including the direction to identify
mangrove area and declare/notify it as a forest.
Central Regulatory Zone Regulations 1991 imposes certain restrictions on the
land in dispute.
District Collector while deciding the application of the applicants for
according permission to repair the bund has explicitly incorporated the
conditions that the appellants would only repair the old bund without raising
its height and ensure full protection of mangroves.
Court while disposing of the appeal filed by the appellants has directed to
ensure compliance of the order of the District Collector and in case of any
kind of violation to bring the matter to the notice of the court.
respect of the repairing of the bund, a large number of complaints had been
made to the authorities concerned, by the public, representatives of the people
and various officials and statutory authorities alleging that the appellants
have violated the conditional order passed by the District Collector for
permitting the appellants to repair the bund.
reports submitted to the authorities concerned make it clear that there have
been flagrant violations of the conditional order and that included
a. Closing the natural
flow of water which has adverse effect on existing mangroves;
b. A large number of
mangroves had been cut/destroyed while repairing the bund and a large number of
mangroves were found cut manually;
c. (iii) Height and
width of the bund had been increased to an unwarranted extent. The reports
reveal that width of the bund had been extended by 12 ft. to 15 ft. while the
old bund was not beyond 6 ft width.
d. (iv) Instead of mud,
big boulders, concrete, debris had been used. Several platforms of 25 to 30
mtrs with the width of 16 to 20 mtrs. have been constructed;
e. (v) Debris was being
dumped beyond the area of platform in the land in dispute making an attempt to
increase the width of the platform;
f. (vi) The cut
mangroves have been used to increase the height of the bund;
g. (vii) Breathing roots
and branches of mangroves were found stucking out of the muddy area of the
h. (viii) A large number
of mangroves died because of removal of mud and stagnation of water.
view of the above, we have no hesitation to hold that the appellants are guilty
of willful defiance of the orders passed by this Court as well as by the
District Collector and they have filed the contempt petitions using it as a
legal thumb screw to enforce their claims though, totally unwarranted and
unfounded on facts. It is a crystal clear case of contumacious conduct, as the
conduct of the appellants not explainable otherwise, for the reason that
disobedience is deliberate. The appellants cannot be permitted to make
allegations against the authorities and drag them to the court alleging disobedience
of the orders of this court without realising that contempt proceedings are
quasi criminal in nature. They have knowingly and purposely damaged the
mangroves and other vegetation of the wet land of the CRZ-I area, which could
not have been disturbed. Under the garb of repairing the old bund, a sort of pukka
bund using boulders, and debris has been constructed along with a huge
platform, violating the norms of environmental law and in flagrant violation
and utter disregard of orders passed by the courts and the District Collector.
No court can validate an action which is not lawful at its inception. It is
often re-iterated that justice is only blind or blindfolded to the extent
necessary to hold its scales evenly. It is not, and must never be allowed, to
become blind to the reality of the situation, lamentable though that situation
view of the above, the contempt proceedings filed by the District Collector and
the Action Group are allowed and the contempt petition filed by the appellants
i.e. Cont. Pet. 169/2010 is hereby dismissed with the following directions:
a. The appellants are
directed to restore the height and width of the bund as it was existing prior
to the order passed by the District Collector dated 27.1.2010 within a period
of 60 days from today by removing all debris, grit, boulders etc., dismantling
of platforms and reducing the height and width of the bund.
b. All culverts, drains
which existed prior to 27.1.2010 which could facilitate the natural flow of sea
water into the land, shall be restored
c. In case the
appellants fail to carry out the aforesaid directions within the stipulated
period, the District Collector, Suburban District shall carry out the aforesaid
directions and recover the cost from the appellants as arrears of land revenue
and shall ensure in future that the appellants would not act in a manner
detrimental to the ecology of the area and ensure the preservation of mangroves
and other vegetation.
the facts and circumstances of the case, we request the Bombay High Court to
expedite the trial of the suit filed by the appellants. In view of the above,
the contempt petitions and interlocutory application stand disposed of.
(Dr. B.S. CHAUHAN)