Krishnadevi Malchand Kamathia vs Bombay Environmental Action Group

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

2. This 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 Appeal

No.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,

2 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

3. This 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 27.1.2010

permitting 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

4. This contempt petition has been filed by the original writ

petitioner before the Bombay High Court i.e. Bombay Environmental

3 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.4421

of 2010 and further to recall the permission granted by this Court

vide order dated 22.3.2010 in the said case and order dated 7.5.2010

in 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.

5. As 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.

FACTS:

6. The 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,

4 privately owned lands from the list of Mangrove Areas so identified, the same will be declared/notified as "Forest".

7. In 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 Kamathia

and 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 upto

1990 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.

8. Being 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

5 the Notification has been issued, the delay was condoned and the

petition was entertained.

9. An application was filed by the appellants on 15.12.2009

seeking 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 5.2.2010

permitting 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 the

repair of the bund was concerned.

10. In 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

6 appellants would repair the bund without destroying the mangroves or

vegetation on the said land.

11. This Court disposed of the appeal vide order dated 7.5.2010

wherein 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."

12. The 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

7 order dated 27.1.2010 is being unnecessarily interfered with by the

statutory authorities.

13. We 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.

14. It 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.

15. Shri Ram Jethmalani, learned senior counsel appearing for the

appellants, submitted that in pursuance of the order of this Court dated

7.5.2010, 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

8 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.

16. Shri 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, pasture

lands 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

9 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.

17. It 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.

18. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri

Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai

M. 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.

10

19. In 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, [1956] 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."

20. In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC

1377, 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 erga omnes 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 latent invalidity.

11

21. Thus, 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 may

be 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.

22. Be, 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.

23. The relevant part of the conditional order of the District

Collector dated 27.1.2010 provides as under:

(i) The Applicants will only carry out the repairs of the Bund and shall not carry out any other construction activities on the said land.

12 (ii) The Applicants will not destroy mangroves and/or vegetation on the said land.

(iii) The 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 the matter:-

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."

13 After receiving the report from the Committee duly constituted

by 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.

24. The 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 to

1= 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

14 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 on

22.5.2010 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

16 flagrant violations of the order passed by the District Collector and the

courts. The relevant part reads as under:

CONCLUSIONS:

Conditions in order Factual position observed dated 27.1.2010 by the Committee on the spot

i) The applicants will No structural construction only carry out the activities carried out on the repairs of the Bund site, but it is observed that and shall not carry out the permission holder has any other construction done massive filling work activities on the said by dumping debris and land. 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. ii) The applicants will not Destruction of mangroves destroy mangroves and vegetation done in a and/or vegetation on large scale. the said land. iii) The Applicants shall Permission holder has not raise the height of raised height of the existing the Bund above as in bund by 1.5 Mtrs. as well existence at present. as width of the bund. iv) Upon completion of Compliance report of work the repairs, the has been submitted by the Applicant shall file a applicant. Despite that Completion Report in work still going on the site. the office of the Collector. v) The Applicant will Applicant violated the

17 abide by the final conditions of the order orders that may be dated 22.3.2010 passed by passed by the Hon'ble the Hon. Supreme Court in Supreme Court in the S.L.P. No.29031 of 2009. SLP to Appeal No.29031 of 2009 in respect of the user of the land.

25. The 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 24.11.2010

requested the learned Principal Judge, City Civil Court, Mumbai to

inspect the area i.e. the bund in the lands i.e. SL. No.344 measuring

175 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.

26. In 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 under:

18

"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 manually."(Emphasis added)

27. The CRZ Regulations define for regulating developmental

activities, coastal stretches within 500 metres of the landward side of

19 the High Tide Line into 4 categories. Category I (CRZ-I) is defined as

under:

"(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 notified ports; (g) construction of trans-harbour sea links."

(emphasis added)

20

29. From the above, it is evident that mangroves fall squarely within

the 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.

30. In view of the aforesaid discussion, we reach the following

inescapable conclusions:

(1) The land in dispute has not been used for manufacturing of salt for

more than two decades.

(2) The land in dispute stands notified as a reserve forest, though it

may be a private land and requires to be protected.

(3) The 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.

21 (4) The Central Regulatory Zone Regulations 1991 imposes certain

restrictions on the land in dispute.

(5) The 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.

(6) This 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.

(7) In 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.

(8) Various reports submitted to the authorities concerned make it

clear that there have been flagrant violations of the conditional

order and that included :

22 (i) Closing the natural flow of water which has adverse effect on

existing mangroves;

(ii) A large number of mangroves had been cut/destroyed while

repairing the bund and a large number of mangroves were

found cut manually;

(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.

(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;

(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;

(vi) The cut mangroves have been used to increase the height of the

bund;

(vii) Breathing roots and branches of mangroves were found

stucking out of the muddy area of the bund; and

23

(viii) A large number of mangroves died because of removal of mud

and stagnation of water.

31. In 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

24 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 may be.

32. In 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:

(1) 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.

25 (2) 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

(3) 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.

26

33. In 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.

..........................J. (P. SATHASIVAM)

..........................J. (Dr. B.S. CHAUHAN) New Delhi, January 31, 2011

27