Bombay High Court: In a matter relating to India’s first bullet train project, which has received criticism from environmental activists for proposing to cut about 22,000 mangrove trees, the Division Bench of Dipankar Datta, CJ and Abhay Ahuja, J. allowed the National High-Speed Rail Corpn. to go ahead with the project. The Court held,
“The project will not only cover the distance of 508.17 kms within a period of two and a half hours, instead of presently six and a half hours, and be a convenio par excellence for the rail passengers of the two cities and the two States, increasing connectivity between the busy trade corridor of Ahmedabad and Mumbai which will increase the economic productivity, running on electricity not only saving valuable cost on conventional fuel but also generating employment of about twenty thousand people in the construction phase and with an approximate of four thousand people during the operations and maintenance and about sixteen thousand indirect jobs expected to be generated during the Operations and Maintenance phase.”
The instant petition was filed to assail the order of Maharashtra Coastal Zone Management Authority, Mumbai (MCZMA) refusing to grant permission to the petitioner, to cut/fell mangroves falling within Coastal Regulation Zone-I (CRZ-I) for carrying out work of the Mumbai Ahmedabad High-Speed Railway Project. The MCZMA had deferred the matter since the proposed activities were observed to be situated in the 50 mtrs. mangrove buffer zone.
Pioneer Bullet Train Project of India
The Project at issue is being envisaged as a pioneer project for bullet trains in India which has secured international funding. The projected investment is approximately Rs. One Lakh Ten Thousand crore from which approximately Eighty-Eight Thousand crore will be received as a loan from Japan International Cooperation Agency (JICA) on a 0.1% interest p.a. with repayment spread over 50 years and a grace period of 15 years. According to the petitioner, this is the first time in India that an infrastructure project is being funded on such favourable terms.
Also, the Project will not only reduce the journey time between important cities like Mumbai and Ahmedabad but will reduce the costs of traveling, reduce the carbon footprints, the pollution being caused by vehicular traffic, and will also be a fast connectivity measure between the two cities.
Precautionary Steps Proposed by the Petitioner
To obtain a favourable order, the petitioner had brought on record the following precautionary measures proposed to be undertaken to minimise environmental harm:
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That it has not only undertaken a comprehensive Environmental Impact Assessment Study but has also formulated an Integrated Mangrove Conservation and Management Plan for the Project.
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That the area falling under forests stands at 131.3016 hectares and out of the same the area falling under mangrove forests stands at 32.4302 hectares; however, the actual land under mangroves which is going to be affected stands at 13.3668 hectares.
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That it would conduct afforestation on 1:5 ratio or as directed by the Competent Authority, for planting five times the number of trees (including mangroves) would be cut/felled.
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That the Project would result in the destruction of 22,000 mangrove trees. Therefore, considering the conditions imposed in the permissions, the petitioner has offered to plant a total number of 2,67,335 mangrove trees over an area of 67.5 hectares. That, on 15-07-2022, the petitioner deposited the costs of Rs.9.95 crores as ascertained by the Mangrove Cell, Mumbai for the said purpose.
Whether Railways Act Overrides the Environment Protection Act
The Court relied on the Bombay High Court’s decision in Ganv Bhavancho Ekvott v. South Western Railways, WP No.15 of 2021, dated 03-08-2022, to hold that Section 11 of the Railway Act is an overriding provision and that keeping in mind that the Railways Act starts with a non-obstante clause, it cannot be said to be subject to the Environment Protection Act, since the intention of the Legislature is quite clear in this regard when considered in the light of the fact that when the Parliament enacted the Railways Act in 1989, the Environment Protection Act was already in place and the Parliament was well aware of what it had enacted a couple of years before. Moreover, in Goa Foundation v. Konkan Railway Corpn., 1992 SCC OnLine Bom 205, the Court had held that clearance under the Environment Protection Act is not required even though the railway line passes over rivers, creeks etc.
Regarding the contention of the Bombay Environmental Action Group (the Action Group) that Section 11 of the Railways Act though containing a non-obstante provision, cannot override the Environment Protection Act or Article 21 of the Constitution, the Court held that the argument could not be entertained since the respondent had not challenged the vires of Section 11 and a statute is presumed to be intra vires the Constitution, unless declared to the contrary. Therefore, the Court held that Section 11 could not be construed in a manner that it loses its efficacy.
Similarly, with regard to the contention of the respondent that since Section 11 does not use the word “forest”, it cannot have applicability insofar as mangroves, which have been declared to be forests, the Court observed that a clear reading of Section 11 of the Railways Act, would reveal that it confers power, authority and competence on a railway administration, for the purposes of constructing or maintaining a railway, to make or construct in or upon, across, under or over any lands.
“In the context, the word “any” has been used in clause (a) and a “forest” has to exist on “land”. Hence, it is clear that the word “any” has been used in the widest sense extending from one to all and admits of no exception.”
Lastly, noting that power having been conferred by Section 11, clause (b) on a railway administration to even change the course of a river, brook, steam, or other water courses, read in the light of “do all other acts necessary” in clause (h), the Court opined that the same leaves no manner of doubt with regard to the intention the Parliament had in mind while enacting Section 11.
Analysis and Findings
In Bombay Environmental Action Group v. State of Maharashtra, 2018 SCC OnLine Bom 2680, the Bombay High Court had held that the State is duty bound to protect and preserve mangroves and they cannot be permitted to be destructed by the State for private, commercial, or any other use unless the Court finds it necessary for the public good or public interest. Similarly, in Laxman Ichharam v. Divisional Forest Officer, AIR 1953 Nagpur 51, this Court observed that land covered by mangroves would be a ‘forest’ and that all mangroves fall in CRZ-I (Coastal Regulation Zone) irrespective of its area and in case the said area is one thousand square meters or more, even a buffer zone of fifty meters along the said area shall be a part of CRZ-I, where no new construction shall be permitted except as mentioned in the CRZ Regulations.
Therefore, the Action Group referred to the CRZ Notification of 2011 to submit that all construction activities in CRZ-I are prohibited except those specified in paragraph 8 and railway or railway projects have not been listed in the exceptions carved out, and hence, railway projects are prohibited as far as CRZ-I is concerned. Rejecting the aforesaid contention, the Court the paragraph 8 not specifically referring to railways does not mean that the Court cannot exercise its discretion where cutting of mangroves is involved for public interest or public good.
Considering the benefits, the Project is likely to offer to the public at large by way of reduction of travel time together with reduction of carbon footprint, which is intended for the protection of the environment, the Court relied on the following factors to exercise discretion in favour of the petitioner:
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The Thane Station Building has already been shifted out of the mangrove forest and the Virar Station has also been shifted out of the reserve forest.
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State that a comprehensive mangrove conservation management plan has already been put in place and that the petitioner has not only undertaken to plant 2,67,335 mangrove saplings but also deposited an amount of Rs.9.95 crores on 15-07-2022.
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The undertaking to plant over 1,10,000 mangrove saplings in between the piers to be installed in the mangrove area along with other safeguards as set out in the permissions/approvals set out in the Table above, would strike a balance between development and protection and conservation of environment.
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Considering the advantages set out above, the Court opined that the Mumbai-Ahmedabad High-Speed Rail Project is in the public interest.
Conclusion
Consequently, the Court directed the respondent authorities including the MCZMA to permit the petitioner to execute the Mumbai-Ahmedabad High Speed Rail Project including in the area falling in the mangrove area and in the Buffer Zone in view of the public importance of the Project, subject to the following:
(i) The petitioner to comply with all the conditions imposed in the clearances/permissions granted by the Respondent authorities;
(ii) A responsible officer of the petitioner files an undertaking before the Court within a period of 10 days binding the petitioner:
(a) To undertake compensatory plantation of 110000 mangrove saplings,
(b) Strictly comply with the conditions as imposed in the permissions/clearances granted by the various authorities including the Ministry of Environment Forest and Climate Change, MCZMA, Chief Conservator of Forests (Mangroves Cell), Forest Department, and other authorities that have granted permissions/clearances, and
(c) that the petitioner will obtain any further approvals/permissions that may be necessary for executing the Project.
[National High Speed Rail Corpn. Ltd. v. State of Maharashtra, 2022 SCC OnLine Bom 6701, decided on 09-12-2022]
Advocates who appeared in this case :
For the Petitioner: Prahlad Paranjape a/w. Manish Kelkar, Advocates;
For the State of Bombay: Amit Shastri, AGP;
For MCZMA: Jaya Bagwe a/w. A.U. Nair, Advocates;
For Union of India: Anil Singh, ASG a/w. Rui Rodrigues, Aditya Thakkar, N.R. Prajapati, D. P. Singh, and Smita Thakur, Advocates;
For Bombay Environmental Action Group: Darius Khambata, Senior Advocate a/w. Tushar Hathiramani, Naira Jejeebhoy, Sheetal Shah, Dimple Bitra i/b., Mehta & Girdharilal, Advocates.
*Kamini Sharma, Editorial Assistant has put this report together.