Tribunal On Its Own Motion v. Union Of India

1. This case was registered on the basis of various newspaper reports and other publications highlighting the condition prevailing in the Sunderban which is considered as world's largest mangrove ecosystem with rich bio-diversity, mainly due to anthropogenic activities. We have summarised the details of the facts and circumstance of the case in our order dated 09.07.2018 but as the case is being disposed off by this order, it is felt necessary to repeat those for the sake of convenience.

2. The case was taken up suo motu by the Tribunal being deeply concerned by the degradation of the Sunderban area due to multifarious anthropogenic activities causing loss of mangroves for conversion of areas for Pisciculture, intensive agriculture practices, etc., which were reported widely in the newspapers. Since the activities were considered deleterious to the habitat of rare species of animals, birds and aquatic life, Original Application no. 20/2014 (EZ) was thus registered and notices issued upon different government authorities including the Ministry of Environment, Forest & Climate Change, Government of India. The case was taken up on the various dates when directions were issued on different aspects pertaining to activities permissible in Coastal Regulation Zone-I (CRZ-I) areas prescribed in paragraph 8 of the Coastal Regulation Zone Notification, 2011 (CRZ Notification). Amongst the illegalities noticed was the construction of a tourist lodge at Godkhali referred to as Godkhali Tourist Lodge. Order dated 06.08.2015 was passed for demolition of the lodge as it fell within the CRZ-I area and to take action against hotels, resorts and eateries operating within CRZ-I without obtaining the necessary statutory clearances. Time and again, compliance of the directions were delayed but ultimately the Chief Secretary of Government, West Bengal, against whom the directions had been issued, filed an affidavit informing that the tourist lodge was being converted into a desalination plant as would appear from the order dated 07.03.2016.

3. In a detailed order dated 14.03.2016, the entire sequence of events relating to the tourist lodge have been set out referring to the various provisions of the CRZ Notification dated 06.01.2011 as well as other statutory provisions. It had been pointed out that instead of complying with the direction to demolition the structure, the Chief Secretary in his affidavit dated 16.10.2015, had contended that the State Government had proposed to convert the said building to a desalination plant which was a permissible activity under the CRZ Notification, 2011. This was found to be ex-facie contemptuous as it did not amount to compliance of the order of demolition but rather its disobedience. The Affidavit was thus rejected as not entertainable. The Chief Secretary having failed to comply with the order of demolition, suo motu proceeding was initiated against the Chief Secretary under Section 26 read with Section 28 of the National Green Tribunal Act, 2010 and show cause notice issued directing him to answer as to why he should not be imposed with appropriate penalty in terms of the provisions of the National Green Tribunal Act, 2010.

4. As the matter stood thus, the Tribunal later took a more lenient view and directed that the work of conversion of the tourist lodge into desalination plant should be expedited. Records of the proceedings are replete with various directions to that effect which would demonstrate the continued procrastination on the part of the Government in complying with even the more lenient revised view taken by the Tribunal. Order dated 06.02.2018 would reveal that the State Government had been directed to commence with the work immediately. Curiously, a Committee constituted by the Tribunal observed in its report dated 28.03.2019 that the project in fact was not a desalination plant as stated by the Chief Secretary but a “RO Filtration Plant”. Such inconsistent and contradictory stand of the Government gave rise to an irresistible inference that the State Government had not been forthright.

5. We had time and again reminded the State Government that the entire Sunderban area falls under ecologically fragile and sensitive zone declared as a biosphere hotspot by the United Nations and the necessity to protect this precious region in the interest of the environment and progeny. The response of the State Government in complying with the orders passed by the Tribunal for protection of the environment had not been above par as degradation of the Sunderban area contained unabated. Even the mapping of the costal zones had been delayed towards which end the Tribunal had been coaxing and cajoling the State to get it completed before it became too late. The State Coastal Zone Management Authority (CZMA) appears to have remained a mute spectator leaving the violators to have a free run. Facts and circumstances obtaining in the area unerringly reveal all around failure of the regulatory and state authorities to implement the laws.

6. Later, on 05.02.2019 supplementary affidavit filed by the Amicus Curiae revealed a large number of constructions that had been raised within the CRZ-I area at Bakhkhali, Henry Island and Manmathanagar, Gosaba block of the Sunderbans. In order to verify the factual statements contained in the supplementary affidavit, a five Member Committee was constituted comprising of the following:

a. Senior Officer of the National Coastal Zone Management Authority (NCZMA), New Delhi.

b. Member Secretary, State Coastal Management Authority (SCMA).

c. Member Secretary, State Level Environment Impact Assessment Authority (SEIAA).

d. Principal Chief Conservator of Forest (Wildlife), Government of West Bengal

e. Chief Engineer, Department of Public Health and Engineering (PHED), Government of West Bengal.

7. The Committee was mandated to consider the following aspects:

“a. Whether the illegally constructed Godkhali Tourist Lodge is indeed being converted into Desalination Plant or not. If so, the extent of the work done in that regard.

b. To what extent the illegally constructed tourist lodge is being utilized for the purpose of Desalination Plant. If there are remaining areas in the illegal structure, to what extent such portions can be utilized for environmental purposes.

c. To visit the Bakhkhali area and verify on the constructions, shown in the photographs at Bakhkhali, Henry Island and Manmathanagar, Gosaba block.”

8. The Committee submitted its report through the West Bengal Pollution Control Board (PCB) by letter dated 28.03.2019. Although, the Committee included a senior officer of the National Coastal Zone Management Authority (NCZMA), New Delhi, only four Members had undertaken the task in compliance of the order. There was no explanation as to why the NCZMA had not participated. With specific reference to the Godkhali tourism lodge, the Report states as under:

“Direction: When Illegally Constructed Godkhali Tourist Lodge is indeed Being converted into Desalination Plant or not. If so, the extent of work done in this regard.

Observation: The PHE Directorate (PHED) started work after getting necessary administrative approval and the building was handed over to them by the South 24 Parganas Zilla Parishad on 06-07-2018. It was clarified by PHED that the work has been erroneously labeled as “desalination plant” and is technically a “RO filtration plant”. The Committee found that the construction activity for setting up of RO Filtration plant were in progress. A clear water reservoir, the sinking of 02 tube wells and 02 pump house and laying of rising main were completed at site. The fabrication work of different units of RO plant work were also in progress and can be installed in 90 days, as reported by PHED.”

Direction: To what extent the illegally constructed tourist lodge is being utilized for the purpose of Desalination Plant. If there are remaining areas in the illegal structure, to what extent such portions can be utilized for environmental purposes.

Observation: The entire building including both floors of the building are planned to be utilized as part of RO Filtration plant by PHED.

The Hon'ble Tribunal vide its order dated 19-02-2019 also directed the Committee to consider the submission of the State respondent in the light of CRZ Notification, 2011 as amended upto date wherein the State Sr. Counsel of the State submitted that a change has been necessitated in the location of illegally constructed tourist lodge being converted into desalination plant on account of a bridge which is proposed in the alignment on which desalination plant falls and sought for a direction permitting demolition of the tourist lodge.

Observation: The Committee noted the submission of Executive Engineer, South 24 Parganas High Way Division, PWD Roads Directorate (PWD) that Godkhali Tourist lodge falls within the proposed alignment of a road bridge connecting Gosaba Island to the road head at Godkhali. If the bridge is cleared, the tourist lodge will have to be demolished.

“Recommendations:- Tourist Lodge at Godkhali

The Tourist Lodge may be dismantled to make way for the proposed bridge connecting Gosaba Island. The RO Filtration Unit can be located at any other suitable site to meet the drinking water requirements of the area. The PWD may be given the responsibility of dismantling the building, which should be done only when all mandatory permissions for the proposed bridge has been obtained. The debris should be disposed or reused in accordance with Construction and Demolition Waste Management Rules, 2016 and in such manner as not to create further damage to the coastline or the mangroves of the area.”

9. A perusal of the Report thus revealed that the State Respondents had taken a complete u-turn in its stand in respect of the tourist lodge by deciding to demolish the structure in order to facilitate construction of a bridge connecting Gosaba Island.

10. Considering the fact that it had been constructed in CRZ-I area in violation of the CRZ Notification, 2011, the tourist lodge had to be demolished forthwith. As regards the aspect pertaining to construction of the bridge is concerned, since the construction was being proposed in CRZ-I area it was left for consideration of the Coastal Zone Management Authority for its decision in accordance with the law.

11. Godkhali tourist lodge was thus directed to be demolished within a period of one month. The bank guarantee of Rs. 10 lakh which was directed to be furnished was ordered to be forfeited. Apart from the forfeiture of the bank guarantee, the Government of West Bengal was directed to pay environmental compensation of Rs. 1 crore to the satisfaction of the Central Pollution Control Board (CPCB) within 15 days in the interim subject to final assessment of the environmental damage by the CPCB and the NCZMA, New Delhi. These authorities were ordered to take up the matter expeditiously in the interest of protection of environment.

12. As regards Bakkahli areas, Hennary Island and Manmathanagar, Gosaba Block, the observations and recommendations of the Committee are as follows:—

“Direction: To visit the Bakhkhali area and verify on the constructions, shown in the photographs at 9 Bakhkhali, Henry Island and Manmathanagar, Gosaba Block.

Observations:

1. Tower at Henry island Beach:

The tower was found to be situated on the sea beach. As per the officials of West Bengal Tourism Development Corporation Ltd. (WBTDCL), the sea at Henry Island is highly turbulent and a number of unfortunate incidents like drowning etc have taken place in the area. This tower has been constructed on the beach for protection of tourists and it is not a cafeteria as alleged.

The Committee found that construction of the tower has already been completed. The tower comprises of a staircase along with wash room facility in the ground floor and a small room on the first floor with glazed windows and staircase up to the roof. The tower has been constructed without taking any CRZ clearance and is within CRZ I (A) area. A temporary wooden watch tower was located close by and was already being used by hired personnel of the State Disaster Management Authority. This temporary tower is maintained by the Fisheries Department.

2. Construction at Bakkhali

The construction at Bakkhali consists of a single storied building with two parts. One part is a public toilet complex for use by people visiting Bakkhali while the other portion comprises of a hail, a service counter and two rooms. As per the statement of the WBTDC officials it has been constructed for providing cloak room facility along with wash room facility for the people visiting the area. The structure may also act as a rain shelter.

The Committee found that the construction has already been completed. This building is on the sea shore and not a river bank as alleged. Approximately 70 % of the construction falls in CRZI(A) while 30% is in No Development Zone (NDZ). Construction of community toilet and rain shelter are permissible activities in NDZ and CRZ-1 which are not ecologically sensitive, but clearance from CZMA was not taken.”

Recommendations

Tower at Henry Island Beach

The permanent tower made by WBTDCL may be allowed to remain and used only for the purpose as Life Guard Tower. The temporary tower of Fisheries Department may be dismantled.

Construction at Bakkahli

WBTDCL may be allowed to manage the present structure as the Cloak room-cum-Toilet facility only.”

13. Further Report was filed by the Committee in terms of our order dated 12.03.2019 with regard to large scale felling of mangroves at Dhewsagar on the Gangasagar Island. The observations and the recommendations of the Committee read as follows:—

“Direction: To visit the Gangasagar Area and verify on the report of large scale felling of mangroves at DhewSagar on Gangasagar Island.

Observations:

A. Construction of Helipad

An existing helipad is located in a low-lying land. The helipad area is being raised with different materials including earth filling of approx. quantity 15708 cubic meter. The work is being executed by the Public Works (Roads) Directorate, Diamond Harbour Highway Division through one contractor agency.

As reported by the Chairman, GBDA, that during 2nd week of December, 2018 they noticed that the said contractor had damaged the earthen bandh by way of taking the earth from the earthenbandh at DhewSagar, adjacent to the helipad site. Accordingly the matter was brought to the notice of the District Magistrate and the PWD authority by GBDA & UDMA Department. Subsequently the District Magistrate and the PWD authority directed the contractor to repair the said bandh and to restore it to its original conditions. GBDA offered the contractor agency to excavate the silted earth from the “BurirKhal” a canal adjacent to the earthen bandh of DhewSagar. P.W.D submitted that they have directed the agency to stop work until further order.

On the day of inspection it was noticed that the earthen bandh had been partially restored and no such excavation work was going on. No trees appeared to be destroyed.

B. Destruction of mangrove at Benuban area in Gangasagar.

The area falls partly under CRZ-1A and partly under CRZ-1B. As per available Google time series map, maximum portion of the area was converted into pisciculture ponds (Bheri) prior to 12.12.2006. Part of above area measuring around 15.5 acres was converted between 12.12.2006 and 02.08.2018. The BL & LRO, Sagar, has submitted that as per available records, R.S. Patta was given to 181 nos. of landless people in respect of plot no 2303, 2304, 2341, 2312, 2418, 2410, 2414 & 2401 of mouza Chemaguri, J.L. No. 43 vide R.S. Case No. 3(sagar)/1999-2000(XII). Total vested land distributed is 128.53 acres out of 220.91 acres. The land was distributed for agricultural & home stead purpose. The recorded 11 classification of the land is ‘Layek Jangal’. It is also reported by the BL&LRO that as the land is salty in nature some beneficiaries close to seashore have converted their land from agriculture to pisciculture for their livelihood purpose.

Recommendations

A. Construction of Helipad

i) Public Works Department (PWD) to ensure that the contractor agency restores the damaged earthen bandh completely at own cost as per the specifications to be provided by GBDA.

ii) The agency may be further directed by the Public Works Department (PWD) to explore use of alternative materials (e.g. flyash) for raising the helipad. If any local earth is to be used, they should obtain necessary environmental clearance for excavation of earth, from the Competent Authority, as per the prevailing order of MOEF&CC, Government of India.

B. Destruction of mangrove at Benuban area in Gangasagar.

District Administration may ensure that no further change in land use should be allowed on Gangasagar island without appropriate clearances under existing Acts and Rules.”.

14. The tower said to be a cafeteria was in fact found to have been constructed on the beach ostensibly for protection of tourists but the structure along with a temporary wooden structure being used by the State Disaster Management Authority had been raised without taking CRZ clearance although it fell within CRZ I (A) area. The Tower was thus found liable to be demolished as being an illegal structure alongwith its extensions with regard to which the State CZMA was directed to take steps as per the relevant law.

15. The CPCB and the NCZMA, New Delhi, were required to assess the Environmental damage caused to the area and the cost of restoration of environment and submit a report.

16. As regards the Report submitted vide letter dated 18/04/219 by the State PCB relating to the mangroves at Dhew Sagar on Gangasagar Island reproduced earlier, allegation of construction of helipad in a low line land stood established which was being undertaken using different materials including a huge quantity of earth of about 15708 cubic meters by the Public Works (Roads) Directorate. While undertaking the construction work by the contractor, the earthen bandh had been found damaged due to removal of earth from the bandh lying adjacent to the helipad. Direction issued by the District Magistrate for restoration of the bandh to its original condition had been complied with by the contractor. Although the work had reportedly stopped until further orders, it could not have been permitted as firstly, under MoEF & CC Office Memorandum No. J13012/12/2013-IA-11(1) dated 24.12.2013, read with Office Memorandum No. I-11011/47/2011-IA(M) dated 24.06.2013, environmental clearance is mandatory to be obtained before excavation of brick earth/ordinary earth. Secondly, CRZ Clearance would also be essential as the area fall within CRZ-I. Both these statutory obligations had not been satisfied rendering the works undertaken as being illegal.

17. Incidental questions, nonetheless critical ones that arose during the course of the proceedings, was with regard to the Solid Waste Management in the Gangasagar Island which is the venue of the annual Gangasagar Mela during which several lakhs of people converge for offering prayers. The other pertained to sea vessels that ply in the Sundarban regarding which question that cropped up was as to whether there was any SOP prescribed by the State PCB in respect of such vehicles. By order dated 25.04.2018 direction was issued upon the State PCB that in case there was no SOP, it shall prepare one in consonance with the statutory provisions. The third question is with regard to the Tiger Conservation Plan. By the same order, steps were directed to be taken for taking up Tiger Conservation Plan in the model of Buxa Tiger Reserve Forest if it did not have one already.

18. In so far as the first question is concerned, it has been submitted on behalf of the State that effective action is being taken for dealing with the solid waste generated during the Mela which is held every year during Makarsakranti by deploying dumpers and JCBs. All solid waste generated are disposed off in the landfills created for the purpose. As regards the matter relating to the operation of the sea vessels, it is stated that two such vessels ply to ferry tourists. The State PCB in its report placed the following actions taken in respect of the two vessels:—

“07. That, the Inspecting Officer has made the following in respect of remarks for M.V. Chitrarekha:—

a) The vessel may be directed not to discharge the untreated liquid effluent to river & canal and the same may be discharged through the local authority after proper treatment Oily waste to be managed as per the hazardous Waste Rules.

b) During inspection, the 2×168 BHP main engine & one no. 30 KVA DG set were in operation. Noise control measures should be adopted by the vessel.

c) A proper stack for letting out the emission from the kitchen is recommended.

08. That, the Inspecting Officer has made the following in respect of remarks for M.V. Sarbajaya:—

a) The vessel may be directed not to discharge the untreated liquid effluent to river & canal and the same may be discharged through the local authority after proper treatment Oily waste to be managed as per the hazardous Waste Rules.

b) The vessel may be directed to install suction hood, ducting & exhaust fan for its LPG fired oven.

c) During inspection, the 2×115 BHP main engine & one No. 40 KVA DG set were in operation. Noise control measures should be adopted by the vessel.”

19. As per the report, no Standard Operating Procedure (SOP) appears to have been prepared in respect of sea vessels. Notification dated 25.03.2009 issued by the Environment Department, Government of West Bengal, however, was placed before us by the Amicus Curiae annexed to a supplementary affidavit filed by him on 22.03.2017, which directed that vessels registered under Inland Vessels Act, 1917 also require to comply with the provisions of Part-XI-A of Merchant Shipping Act, 1958, dealing with the prevention and containment of pollution of the sea by oil.

20. On the third question with regard to the Tiger Conservation Plan, Sundarban Tiger Conservation Plan prepared in line with the Buxa Tiger Conservation Plan was placed before us.

21. We may also note with concern that certain directions issued by the Tribunal have not been complied with or the compliance have not been in the letter and spirit of the directions. By order dated 09.07.2019, the CPCB and the NCZMA, New Delhi were directed to assess the damage caused to the environment including the quantum of earth excavated thus far against the construction of a helipad at Dhew Sagar on Gangasagar Island but the report filed by the CPCB is vague and evasive on this aspect as will appear from the extract of the report, which reads as follow:

“The team has inspected the Gadkhali tourist lodge, Bakkhali areas, Hennery Island and Sagar Island during 09.09.2019 to 21.09.2019.

S.N. Direction Observation 1 Tourist Lodge may be dismantled to make way for the proposed bridge connecting Gosava Island Team visited the area and found that the tourist lodge is totally demolished and the debris were yet to be removed from the area and to be reused in accordance with the construction and Demolition Waste Rules, 2016 in such a manner so as not to create further damage to the coast line or the mangrove areas. Details of the Environmental Damage: • Definitely due to this construction, the ecology of the area is destroyed. • Natural nourishing of the beach is totally hampered. • Loss of species i.e. Mangrove has taken place. • Construction of Lodge has excavated the soil which has disturbed the natural balance of the shoreline. Respective department like Zoological Survey of India, Botanical Survey of India and National Bureau of Soil Survey and Land use Planning (ICAR) may be involved in the study of Zooplankton, Meio-benthos and Soil Degradation etc. of the area of understand and calculate the damage. 2 Construction of Helipad • The public works Department (PWD) has restored the damaged earthen bund by excavating silted earth from the canal situated adjacent to the bund. • De-siltation of the adjacent canal is permitted to maintain the drainage system and check flash flood/salinity or as a whole soil degradation. • Construction of Helipad in the proposed site is a low land Agricultural field which needs to be leveled up by the earthen materials for required sustainable stress and strain instead of fly ash as directed by the Hon'ble court. • PWD is in the process of obtaining Environmental Clearance as well as CRZ Clearance on urgent basis. • PWD has submitted the detailed DPR for the construction of Helipad and will be implemented after obtaining the necessary CRZ clearance and Environmental clearance. • Degradation of the Natural Environment needs in depth study for damage calculation which can be undertaken by the Forest Research Division, Dehradun. • National Bureau of Soil Survey and Land Use Planning (ICAR), and State Irrigation Department need to be involved for evaluation of the submitted DPR of PWD for damage calculation and its further restoration. 3 Tower was found situated on the sea beach at Hennery Island and also a temporary wooden Watch Tower was located close by and was already being used by the hired personnel of the State Disaster Management authority. • The permanent tower made by WBTDCL may be allowed to remain and may be used as Life Guard Tower for tourists also. • The temporary tower of the Fisheries Department is dismantled as per the photograph given below: 4 Destruction of Mangrove in the Banuban area of Ganga Sagar • In the Benuban area of Ganga Sagar Landuse pattern is altered. • People have converted the land into Agriculture and Pisciculture. • West Bengal State Coastal Zone Authority may be directed to Regenerate Mangrove in the bunds of pisciculture as well as the spaces available in between the agriculture land or the land near by the man-made roads on two side way to the jetty. • State Coastal Management Authority must keep watch strictly of further violation of CRZ-I and felling of Mangrove in the area. Construction at Bakkali consists of a single storied building with two parts. One part is a public toilet complex while other portion is a service counter and two rooms. • Construction of community toilets and rain shelter are permissible activities in NDZ and CRZ-I. • WBTDC may be directed to obtain clearance from CZM Authority on priority basis which is yet to be obtained.”

22. The NCZMA is conspicuously missing in the team in violation of the order of the Tribunal. Similarly, vide order dated 05.02.2019, a Committee had been constituted to verify the allegation pertaining to the illegal constructions in the CRZ-I area at Bakkhali, Henry Island and Manmathanagar, Gosaba block of the Sundarban which was to be headed by a Senior Officer of the NCZMA, New Delhi. Although the Committee submitted its report, the NCZMA had played truant even in that exercise and did not participate against which there was no explanation. In our considered opinion, this is a serious dereliction on the part of NCZMA. The NCZMA had been made a part of the Committee for ensuring an independent inspection and verification. Under the circumstances, this attracts the provisions of Section 26 read with 28 of the National Green Tribunal (NGT) Act, 2010. However, we intend to give the matter a hiatus with a word of caution upon the NCZMA not to repeat such dereliction in future.

23. However, there are certain concerns still not fully attended to or the action taken thus far not found to be unsatisfactory. First relates to the implementation of the Solid Waste Management (SWM) Rules, 2016 in the Gangasagar Island. The method adopted thus far quite apparently is not in accordance with the procedure prescribed under the said Rules. It is incumbent upon the Gangasagar Bakkhali Development Authority or such other authority which deals with this aspect, to ensure that there is proper collection and disposal of waste. It is incumbent upon them to get the waste segregated and its different components treated in accordance with the procedure laid down under the Rules. Under the Plastic Waste (Management and Handling) Rules, 2016, Extended Producer Responsibility has been fixed upon the producers. The State PCB in collaboration with the concerned authorities ought to enforce this Rule strictly so that the burden on the Municipal Authority gets reduced substantially.

24. The other matter is with regard to regulations of the sea vessels. Notification dated 25.03.2009 issued by the Environment Department, Government of West Bengal, is restricted only to the prevention and containment of pollution of the sea by oil. It obviously does not take care of the Solid Waste Management, the sewage and the domestic waste generated on the vessel. Plying sea vessels for commercial purpose would also fall within the domain of the State PCB as an industry and, therefore, it would be a fallacy to conclude that the State PCB does not have the jurisdiction in such matters. The solid waste, sewage and other liquid waste generated in the sea vessel cannot be permitted to be discharged in the sea. Strict regulation ought to be introduced to ensure that those are carried back to land for being transported to STPs and MSW Treatment Plants for its treatment at designated sites. The State PCB in consultation with the Environment Department, Government of West Bengal, shall prepare a protocol in this regard within three months from hence and implement it in the larger interest of the marine ecology. No spurious engine fuel shall be permitted to be utilized in such vessels to ensure maintenance of the ambient air quality as per the required parameters.

25. Having thus dealt with the above specific incidental issues of importance, we may now observe that on 05.02.2019, the State was directed to place on record the extent of work done on the various aspects and to indicate the timeline they would require to complete the works. The Committee was also constituted to consider the following aspects:

a) Whether the illegally constructed Godkhali Tourist Lodge is indeed being converted into Desalination Plant or not. If so, the extent of the work done in that regard.

b) To what extent the illegally constructed tourist lodge is being utilized for the purpose of Desalination Plant. If there are remaining areas in the illegal structure, to what extent such portions can be utilized for environmental purposes.

c) To visit the Bakhkhali area and verify on the constructions, shown in the photographs at Bakhkhali, Henry Island and Manmathanagar, Gosaba block.

26. On 23.09.2019, a supplementary affidavit filed by the Amicus Curiae, raising serious concern with regard to a large number of constructions relating to a housing complex named “Banglar Abas” in the prohibited CRZ areas without obtaining clearance under the CRZ Notification. Rampant destruction of mangroves was also alleged. Based on this affidavit and the submissions of the Amicus Curiae, a Committee was constituted to verify the facts with the direction to take appropriate action. Without delaying further on the other details of case, it may be sufficient to note that the State respondents filed an affidavit through the Principal Secretary, Environment Department, Government of West Bengal, dealing with all the aspects referred to earlier, the relevant portions of which may be reproduced below:

“a) The South Twenty four Parganas Zilla Parishad has informed that the Godkhali Tourist Lodge has been demolished in compliance of the order of Hon'ble Tribunal.

Copy of the letter of the South Twenty four Parganas Zilla Parishad dated 13.09.2019 is annexed here and marked as ‘Annexure-R1’

b) The Department of Fisheries, Government of West Bengal vide its letter dated 20th January, 2020 has informed that the wooden structure at Henry Island has been demolished in compliance of the order of the Hon'ble Tribunal.

Copy of the letter of Department of Fisheries is annexed herewith and marked as ‘Annexure-R2’

c) District Nodal Officer, MGNREG, office of District Magistrate, south 24 Parganas has sent details of the Mangrove plantation taken up in South 24 Parganas by the District administration specially in Sundarban area.

Copy of the email of the South 24 Parganas is annexed herewith and marked as ‘Anneure - R3’.

d) The 24 Paragnas (South Division) of the Department of Forest has sent a report regarding the Mangrove plantation taken up by the Department during last ten years. The same is annexed herewith and marked as ‘Annexure - R4’. It has been stated therein that approximately 3000 Ha area has been brought under Mangrove plantation by the Department.

e) The Public Works Department has filed a separate affidavit regarding Helipad at Gangasagar, wherein it has been stated that the proposed helipad at Sagar Island falls within CRZ II zone and the proposal has been recommended by the State Coastal Zone Management Authority for approval by the National Coastal Zonal Management Authority.

f) In compliance with the order dated 23.9.2019 a committee was constituted by Environment Department, Government of West Bengal vide notification dated 01.10.2019.

The Committee has submitted its report.

Copy of the notification of formation of the committee and its report are annexed herewith and collectively marked with letter- ‘Annexure-R5’.

g) On the basis of the report of the committee constituted in compliance of the order of the Hon'ble Tribunal the State Coastal Zone Management Authority has asked the District Magistrate, South 24 Parganas to send a compliance report regarding demolition of housing complex ‘Banglar Aabas’ which was constructed without obtaining CRZ clearance. The office of the District Magistrate has since sent a report on compliance of the order of Hon'ble Tribunal. The same is enclosed at ‘Annexure-R6’.

h) Bio Diversity Board under the Department of Environment has initiated sensitization workshops in Sunderban area on Mangrove. The first in the series was held on 28th of January at Basanti which was attended by the Gram Panchayats, officials, NGOs and other stakeholders. A brief report is annexed at ‘Annexure-R7’.

5. The West Bengal Tourism Development Corporation has made a tower on the sea beach at the Henry Island in the costal area.

In compliance of the order of Hon'ble Tribunal, the State Coastal Zonal Authority heard the Department as per the procedure prescribed under Law. The Department of Tourism has stated the following:

‘As regards tower on the sea beach at the Henry Island, the same may kindly be allowed to remain and may be used as the Life Guard Tower. It also has toilets which can be used by the tourists.’

The State Coastal Zone Authority, after due consideration of facts and circumstances, decided that the said structure is illegal and ahs directed the West Bengal Tourism Development Corporation to demolish the said structure in compliance of the order of the Hon'ble Tribunal.

27. As will appear from the above all the concerns expressed appear to have been duly addressed, the most eminent being the demolition of the Godkhali Tourist Lodge which was the genesis of the present case.

28. It is relevant to note that no activities can be permitted in the CRZ area under the CRZ Notification, 2011 which is now superseded by CRZ Notification, 2017. Any project which is permissible under the notification can be taken up only after seeking necessary clearance from the CRZ authorities, i.e., the State CZMA and/or the NCZMA.

29. Although damage to the mangroves in the Sundarban has been denied, the satellite imagery taken of the area reflects to the contrary as reduction of mangroves is found to be substantial, the cause of which can be traced to undesirable anthropogenic activities like pesciculture and construction of hotels and resorts. As many as 109 hotels are stated to be in operation in Bakkhali alone. Most of these hotels obviously appear to be running in an unregulated manner as per the affidavit of the State PCB. Indiscriminate construction of structures and destruction of mangroves in far-flung islands of the Sundarban appear to have gone unnoticed by the regulators and the administration. These require to be attended to urgently in the interest of intergenerational equity. The CRZ violations appear to be quite rampant, as the CRZ Authority has clearly failed to enforce the regulations. If such free run is permitted under the very gaze of the regulatory authorities and the administration, destruction of Sundarban is inevitable with its attendant environmental disaster. In this context, we may reproduce the observation of the Tribunal made in its order dated 06.08.2015, relevant portion of which reads as follows:

“Having regard to the contention of Mr. Subhas Datta as made in the affidavit disclosing the environmental breach by the State, State owned Corporation, the Panchayat and Zilla Parishad, it is clear that the constitutional provision of Art. 48A which mandates the State to take all endeavours for protection and improvement of the environment has not been complied with. The impact of Article 48A read with 51A(g) of the Constitution of India was considered in detail by the Apex Court in the case of INTELLECTUALS FORUM v. STATE OF A.P. (LAKSHMANAN, J.)” Reported in (2006) 3 SCC 549 wherein para 82 the court observed- “State shall endeavour to protect and improve the environment to safeguard the forests and wild life of the country. Art. 51A of the constitution enjoins that it shall be the duty of every citizen of India, inter alia, to protect and improve the national environment including forests, lakes, rivers, wildlife and to have compassion for living creatures. These two articles are not only fundamental in the governance of the country but also it shall be the duty of the State to apply these principles in making laws and further these two articles are to be kept in mind in understanding the scope and purport of the fundamental rights guaranteed by the constitution including Articles 14, 19 and 21 of the constitution and also the various laws enacted by Parliament and the State Legislatures.”

It is the duty of the court to deal with the violator of law with heavy hand and the obligation of the court to step in when it perceives any project or activity as harmful or injurious to the environment. Jurisprudential concept of the principle relating to court's duty in the constitutional angle was discussed and dealt with by the Apex Court. In the cases of R.N. Nanjundappa v. T. Thimmiah, reported in (1972) 1 SCC 409 wherein the Court held “it is settled law that whenever any action of the authority is in violation of the provision of statute or the action is constitutionally illegal, it cannot claim sanctity in law, there is no obligation or part of court to sanctify such an illegal act. Whenever any statutory provision is ignored, the court cannot become a silent spectator to such an illegality and it becomes the solemn duty of the court to deal with the person(s) violating the law with heavy hand”. Similar view was echoed in the case of Sultan Sadik v. Sanjay Raj Subba, reported in (2004) 2 SCC 377. Regarding obligation of the court to step in when it perceives any project of activity as harmful or injurious to the environment, the Apex Court answered the issue in the case of Anand Arya v. UOI, reported in (2011) 1 SCC 744 wherein court has observed as follows:— “Court's obligation to step in when it perceives any project or activity as harmful or injurious to the environment. Environment is one of the facets of the right to live guaranteed under Art. 21 of the Constitution of India. Environment is not merely a statutory issue, it is a matter directly under the constitution.”

30. The State is required to be alive to the fact that the Sundarban which is densely covered by the mangrove forests is one of the largest reserves for the Bengal tiger. It houses large variety of birds, reptiles and invertebrate species, including the salt-water crocodile. For these reasons, the Sundarban has been declared as a National Park. It is also a UNESCO World Heritage Site inscribed in the year 1987 and a designated Ramsar site.

31. We have the hope and expectation that the State of West Bengal and the regulatory authorities will act in accordance with the constitutional mandate and as per the requirements of various statutes. The State may bear in mind that it is a trustee of the environment for the future generation. Development in the State ought to be sustainable towards which end various environmental laws including the Environment (Protection) Act, 1986, the CRZ Notification, 2017, the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention & Control of Pollution) Act, 1974, have been framed. If these laws are strictly adhered to and applied, both protection of the environment and sustainable development shall be ensured.

32. With the above observations and directions, this O.A. stands disposed off along with all connected M.As and I.As.

33. However, the directions contained in the body of the order shall be strictly complied with by the State within three months from hence and a report of compliance be submitted to the registry of the Tribunal through e-mail at judicial-ngt@gov.in.