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2022 Supreme(Bom) 1418
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. Kathawalla, Milind N. Jadhav, JJ.
Mariyayi Machhimaar Sahkari Sansthya Maryadit - Appellant
Versus
Department Of Fisheries & Ors. - Respondents
Writ Petition No. 2016 of 2021, Interim Application (ST) No. 4145 of 2022 and Interim Application No. 757 of 2022
Decided On : 23-03-2022
Mr. Zaman Ali, for the Appellant, Mr. P.P. Kakade, Government Pleader Alongwith Mr. A.I. Patel, Addl. G.P, Ms. Jaya Bagwe Instructed By Ms. Sharmila Deshmkh, Ms. Meenaz Kakalia, Dr. Milind Sathe, Senior Advocate, Mr. Saket Mone, Mr. Subit Chakrabarti, Mr. Devansh Shah, Mr. Sharan Jagtiani, Senior Advocate, Rohil Bandekar, Siddharth Joshi, for the Respondent.
The main legal point established is that the fisherfolk are entitled to compensation for the impact of TCB-III on their customary right to fish for a living, as recognized by previous orders and judgments.
Headnote:
Compensation - Impact of TCB-III on Fisherfolk - Maharashtra Cooperative Societies Act, 1960, National Green Tribunal Order dated 27 February 2015, CRZ Notification, 2011, Bombay Environmental Action Group v. State of Maharashtra - [Compensation] - [Impact of TCB-III on Fisherfolk] - [Maharashtra Cooperative Societies Act, 1960, National Green Tribunal Order dated 27 February 2015, CRZ Notification, 2011, Bombay Environmental Action Group v. State of Maharashtra]
Fact of the Case:
The court directed MSRDC to deposit Rs. 10 crores as ad-hoc interim compensation for the affected fisherfolk families. The Petitioner sought the entire amount to be paid to the society for distribution, while MSRDC opposed until the impact of TCB-III project on the fisherfolk's livelihood is ascertained.
Finding of the Court:
The court found that TCB-III is likely to impact the customary right of the fisherfolk to fish for a living, based on previous orders and judgments. It held that the fisherfolk are entitled to compensation for their loss, and ordered the distribution of Rs. 10 crores as ad-hoc compensation to the Petitioner's members.
Issues: The court considered whether the fisherfolk have a customary right to fish for a living, whether TCB-III is likely to detrimentally impact this right, and the need for a state-wide policy for compensating those affected by TCB-III.
Ratio Decidendi: The court's decision was based on its previous findings that TCB-III is likely to impact the fisherfolk's customary right to fish for a living, as well as the recognition of the importance of compensating those affected by infrastructure projects.
Final Decision: The court directed the distribution of Rs. 10 crores as ad-hoc compensation to the Petitioner's members, with the understanding that this is not a substitute for the final compensation, which must be determined within three months.
JUDGMENT
S.J. Kathawalla & Milind Jadhav, JJ. - As per our previous order dated 25th February 2022, we had directed MSRDC (Respondent No.8) to deposit a sum of Rs. 10 crores (i.e. Rs. 1 Lakh per affected family comprising the Petitioner Society) to be available for distribution as ad-hoc interim compensation. On that day, Shri Radhesyam Mopalwar, Managing Director, MSRDC who was present before us, undertook to deposit this sum of Rs. 10 crores with the Registrar, Judicial I, of this Court. MSRDC has accordingly deposited this sum with this Court. The matter was placed today to hear the parties on disbursement of this amount to the affected fisherfolk families comprising the Petitioner Society.
2. Shri. Zaman Ali, learned Advocate for the Petitioner, submitted that despite over 7 months having passed since our detailed order dated 12th August 2021 directing compensation to be paid to the Petitioner for the loss of their fishing livelihood, no compensation whatsoever has been paid. In light of this, the learned counsel for the Petitioner submits that the entire amount of Rs. 10 crores deposited in Court should be paid out to the Petitioner Society, as per the suggestion made by the Learned Amicus at the previous hearing. The Petitioner Society, he submits, will distribute this money to its individual members and keep detailed accounts of all such disbursements, which shall be placed before this Court.
3. Shri. Milind Sathe, learned Senior Advocate for MSRDC (Respondent No. 8) opposed any disbursement being made to the Petitioner or its members at this stage on the ground that the impact of the TCB-III project on the livelihood of fisherfolk has not yet been ascertained. Shri Sathe submitted that there has not been any determination of whether TCB-III project will have any impact at all on the livelihood of fisherfolk. He said that this exercise will have to be carried out by a specialized agency and that until the impact of the TCB-III project on the Petitioner Society (and its members being the Koli fisherfolk community) is assessed, there can be no distribution of compensation be it ad hoc or final. Therefore, he submits that no disbursement should be made till the Central Marine Fisheries Research Institute (CMFRI), who has been engaged to study the detailed impact of TCB-III on the livelihood of fisherfolk, submits its report. MSRDC's apprehension is that that should the final compensation amount be less than interim compensation of Rs. 1 lakh per family, then MSRDC will be put to hardship in recovering any excess amounts from the Petitioner's 900-odd members.
4. According to Shri. Sharan Jagtiani, Learned Senior Advocate and Amicus Curiae, MSRDC's submission that that there has been no determination of whether TCB-III project will have any impact at all on the livelihood of the Petitioner fisherfolk is incorrect. Shri. Jagtiani relies on our Order and Judgment dated 12th August, 2021, more particularly paragraphs 1, 3, 46 to 49 and 51 to 58, to submit that there is in fact a finding, at least prima facie, of the TCB-III project's adverse impacton the livelihood of fisherfolk who are defined in the above Order and Judgment as Project Affected Persons because of the ongoing construction of TCB-III. At the time when the matter was being argued this position was not contested by the Respondents on this aspect as such.
5. Further, Shri Jagtiani submitted that MSRDC's concern about recovery of excess compensation is based on a highly unlikely scenario that the final compensation will be less than the interim compensation. He points to the Draft Compensation Policy dated 29 November 2021 which adopts the approach of the National Green Tribunal in its order dated 27 February 2015 (in the matter of Ramdas Janardan Kohli) in respect of quantifying compensation. The NGT found that there was a loss of the customary right to fishing and awarded ad-hoc compensation in the following manner. The NGT presumed: (i) loss of livelihood would be for
