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2011 (1) TMI 1325

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....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, 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 t....

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....ohibit 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 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....

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.... 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 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 t....

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....urpose 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. 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 ano....

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....t 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 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 C....

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....observed by the Committee on the spot 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 No 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. ii) The applicants will not destroy mangroves and/or vegetation on the said land Destruction of mangroves and vegetation done in a large scale iii) The Applicants shall not raise the height of the Bund above as in existence at present Permission holder has raised height of the existing bund by 1.5 Mtrs. as well as width of the bund. iv) Upon completion of the repairs, the Applicant shall file a Completion Report in the office of the Collector Compliance report of work has been submitted by the applicant Despite that work still going on the site v)  The Applicant wil abide by the final orders that ma....

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....n 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 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 regulatio....

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....e 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 : (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) Ins....