Restore Kanjur dump to mangrove forest within 3 months: HC to BMC

MUMBAI: In a major setback for the Brihanmumbai Municipal Corporation (BMC), the Bombay high court on Friday ordered the civic body to return the dumping ground at Kanjurmarg to its original condition – a mangrove forest – within three months. The division bench of justices GS Kulkarni and Somasekhar Sundaresan struck down as illegal the 2009 de-notification of the 120-hectare plot as forest land and its conversion into a landfill for violating procedures laid down under the Forest Conservation Act (FCA), 1980.

The court was hearing a plea filed by the nonprofit Vanashakti in 2013, which challenged the grant of environment clearance (EC) for a landfill on the plot adjacent to the Thane creek.

Though the plot was originally categorised as a protected forest, in April 2006, the high court had allowed the BMC to use it as a dumping ground following an assurance from the civic body that no mangroves would be destroyed in the process. However, on December 29, 2009, the entire plot was de-notified as forest land in contravention of due process stipulated under the Forest Conservation Act, the petition said.

In response, the state government and the BMC told the court that the notification dated December 29, 2009 merely corrected an error in the forest notification, using powers statutorily granted under the General Clauses Act, 1897. Such correction did not require compliance with the process stipulated under the FCA, the government and BMC told the court.

Senior counsel Gayatri Singh, representing Vanashakti, submitted that the Forest Conservation rules issued in 2003 stipulated a detailed and finely balanced procedure pertaining to de-reservation and de-notification of forest land.

“Environmental clearance was granted (for the dumping ground) without processing forest clearance and was therefore is illegal,” she asserted.

Advocate general Birendra Saraf, representing the state, contended that originally, the land was only marginally covered by mangroves and nothing in the area constituted a forest, much less a “protected forest”. The Supreme Court had in November 2003 already approved usage of the land for a dumping ground, subject to strict observance of laws relating to pollution, he told the court.

The division bench of justices Kulkarni and Sundaresan said that since the plot was originally covered by mangroves, it automatically fell within the coastal regulatory zone I, within the category of protected forest. The Supreme Court had no occasion to consider the implications of the FCA in the November 2003 order as there was no notification of the land as a protected forest at the time, the judged clarified.

The division bench ruled that the de-notification of plot as forest land was erroneous, unsustainable and in conflict with provisions of the FCA.

“The absence of compliance with this requirement has led to the failure of due process stipulated in the FCA rules,” the court observed, directing the BMC to restore the 119.91 hectares to its original condition within three months.

Any further proposal to de-notify the plot would need to be compliant with provisions of the FCA, the court said and granted three months to the BMC to comply with the order.