Back
2021 Supreme(Bom) 303
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, MILIND JADHAV, JJ.
Mariyayi Macchimaar Sahkari Sanstha Maryadit - Appellant
Versus
Department of Fisheries, Maharashtra – Respondent
Writ Petition No. 2016 of 2021
Decided on : 12-08-2021
Advocate Appeared:
For the Appellant : Mr.Zaman Ali
For the Respondent:Mr. Sharan Jagtiani, Senior Advocate appointed as ‘Amicus Curiae’ along with Mr. Aditya Pimple, Mr. Rohil Bandekar, Mr. Siddharth Joshi, Ms. Sharmila Deshmukh, Mr. A.I. Patel a/w Ms. M. P. Thakur, Mr. Saket Mone and Mr. Subit Chakrabarti i/b Vidhi Partners
Point of Law: Customary right to fish for a living - Compensation - Once a customary right to carry out an occupation for a means of livelihood is affected, principles enshrined in Article 21 of Constitution of India will be invoked.
Headnote:
Constitution of India, 1950 - Article 21 - Maharashtra Cooperative Societies Act, 1960 - Indian Easements Act, 1882 - Section 18 - Maharashtra Project Affected Persons Rehabilitation Act, 1996 - Land Acquisition, Rehabilitation and Resettlement Act - General Principles Relating to Customary Rights - Project -Development of fisheries, welfare of fishermen - Compensation scheme - Petitioner’s Material to show Ecological Sensitivity of Thane Creek & their Customary Fishing Rights,” which compiled documents relevant to this determination was tendered by Ld. Amicus Curiae - Whether Petitioner can prove that Project Affected Fishermen have a customary right to fish for a living in Thane Creek - Whether TCB III is likely to detrimentally impact practice of such customary rights - Whether a state-wide policy for all categories of persons whose customary rights are affected by infrastructure projects is required? If yes, what is framework for such a policy that can be recommended to the appropriate authorities - If the answer to Issue (i), Issue (ii) and Issue (iii) is yes, what should be contours of a policy compensating those affected by TCB III?
Finding of the court: While analysis thus far has focused on “customary rights,” which is based on common law, there is also statutory recognition of such customs that might entitle the Petitioner to compensation. This is found in Act, 1882, under Section 18, which deals with “customary easements - The documents, therefore, establish with sufficient clarity that Project Affected Fishermen have a customary right to fish for a living in Thane creek. Most importantly, Affidavits in Reply of Respondent No. 1 also appears to accept this position - On an appreciation of the material before us, we are of the view that TCB III is likely to impact Project Affected Fishermen’s customary right to fish for a living - This forms the basis of the State’s duty to compensate in such cases - Respondent No.1, in its second Affidavit in Reply, has recommended constitution of a committee (“TCB Compensation Committee”) to determine the type of loss that each of Project Affected Fishermen will encounter as a result of construction of TCB III, as well as the amount of compensation due to each Project Affected Fisherman. For this purpose, Respondent No. 8 has recommended which members should be made to be a part of TCB Compensation Committee - In terms of the submissions made by the various parties and the Amicus Curiae, we direct that TCB Compensation Committee should be comprised of:
Result: Writ Petition listed
JUDGMENT :
Per S.J. Kathawalla & Milind Jadhav, JJ.
INDEX
FACTUAL BACKGROUND…………………………………………06 APPOINTMENT OF THE AMICUS CURIAE AND THE HEARING OF 3RD JULY, 2021 ………………………………………………………...08
ISSUES FOR DETERMINATION ……………………………………….09 SUBMISSIONS OF THE PARTIES ON ISSUE (i) : Whether the Petitioner can prove that the Project Affected Fishermen have a customary right to fish for a living in Thane Creek ?…………………………………………….…..10 Petitioner …………………………………………………………….10 Respondent No. 8 and Respondent Nos. 1 and 2 …………………………….………10 Amicus Curiae………………………………………………………………….……..11 SUBMISSIONS ON ISSUE (ii) – Whether TCB III is likely to detrimentally affect the practice of customary rights ?……………………………………….…………….14 Petitioner ………………………………………………………………………….…..14 Respondent No. 8……………………………………………………………………..15
Respondent Nos. 1 and 2 …………………………………………………………… .. 15
FINDING ON ISSUE (i)…………………………………………………………….20
FINDING ON ISSUE (iii)………………………………………………….……….40
FACTORS AND CRITERIA FOR FORMULATING A COMPREHENSIVE
COMPENSATION POLICY……………………………………………………….41
Amicus Curiae………………………………………………………… .. 16
SUBMISSIONS ON ISSUE (iii) : Whether a state-wide policy for all categories of persons whose customary rights are affected by infrastructure projects is required ? If yes, what is the framework for such a policy that can be recommended to the appropriate authorities ?………………………………………………………….… ... 17
Petitioner ……………………………………………………………………….…… .. 17
Respondent No. 8 ………………………………………………… .. 17
Amicus Curiae……………………………………………………… ...….... 18
FINDING ON ISSUE (ii) …………………………………………………… ..……. 37
FINDINGS ON ISSUE (iv) …………………………………………………… ..…. 52
CONCLUSION …………………………………………………………… ...……... 54
FACTUAL BACKGROUND :
1. The Petitioner is a society registered under the Maharashtra Cooperative Societies Act, 1960. The Petitioner states that it comprises of members from the traditional fishermen community known as Koli community, from Koliwadas such as Vashigaon, Juhugaon, Koparkhairane, Ghansoli, and Diva (“Project Affected Fishermen”). The Petitioner states that it was formed in 2001, and is actively engaged in raising welfare concerns on behalf of fishermen from Koliwadas located in and around Thane Creek.
2. Respondent No.1 is the Department of Fisheries of the State of Maharashtra, which is responsible for development of fisheries, welfare of fishermen, fisheries surveys and statistics, etc. Respondent No. 2 is the Assistant Commissioner of Fisheries of the Thane-Palghar Region, who is responsible for carrying out the functions of Respondent No. 1 in the Thane-Palghar area. Respondent No. 8 is the Maharashtra State Road Development Corporation (MSRDC), the project proponent for the Thane Creek Bridge III project (“TCB III”).
3. TCB III is a proposed six-lane bridge on the Sion-Panvel Highway. It is being constructed as an addition to the existing Thane Creek Bridge, near Vashi, Maharashtra. The Thane Creek Bridge is built across Thane Creek, connecting the city of Mumbai to the main land at Navi Mumbai. It is one of the four entry points into Mumbai, the other three being the Airoli Bridge, Mulund Check Naka and Dahisar Check Naka. According to Respondent No.8, Thane Creek Bridge I (“TCB I”) was constructed in 1973 and Thane Creek Bridge II (“TCB II”) was built and opened to traffic in 1997. A pictorial representation of TCB III annexed by Respondent No. 8 in its Affidavit in Reply is reproduced below.
IMAGE
4. The Petitioner states that the Project Affected Fishermen are inhabitants of Thane Creek, and exercise their customary right to fish for a living in Thane Creek. It states that construction of TCB will adversely affect their right to fish.
5. This Petition therefore seeks a direction against the Respondents to provide appropriate compensation to the Project Affected Fishermen for loss of mangroves, mudflats and creeklets on account of construction of TCB III, all of which qualita
