Supreme Court of India
KRISHNADEVI MALCHAND KAMATHIA & ORS.versusBOMBAY ENVIRONMENTAL ACTION GROUP & ORS.
- Citation
- 2011 INSC 85
- Decided
- 31 January 2011
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
The appellants willfully defied the Court’s and the Collector’s orders, damaged mangroves, and are guilty of contempt; they must restore the bund to its pre‑order dimensions and ensure natural water flow.
Summary
The Supreme Court examined contempt applications arising from the appellants' (Krishnadevi Malchand Kamathia & Ors.) alleged violation of a conditional order permitting them to repair an old bund on land classified as CRZ‑1 and notified as a reserve forest. The Court found that the appellants, under the pretext of repairing the bund, constructed a new, wider and higher structure using boulders and debris, destroyed mangroves and obstructed natural water flow, thereby breaching the District Collector’s order and the Court’s earlier directions. It reiterated that even a purportedly void order remains binding until declared otherwise by a competent forum. The Court held the appellants guilty of willful defiance of judicial orders and contempt of court. Consequently, the contempt petitions filed by the District Collector and the Action Group were allowed, the appellants’ contempt petition was dismissed, and the appellants were directed to restore the bund to its original height and width and to reinstate natural water flow within 60 days.
Issues considered
- Whether a party may disregard an order it claims to be void without a declaration by a competent court
- Whether the appellants violated the conditional order of the District Collector and the Supreme Court by constructing a new bund and damaging mangroves
- Whether construction of a bund in a CRZ‑1 area containing mangroves is permissible under the Coastal Regulation Zone Regulations, 1991
- Whether the appellants’ conduct amounts to contempt of court
- Appropriate remedial directions to restore the bund and protect the mangrove ecosystem
Legislation cited
Subjects
contempt of courtmangrove protectioncoastal regulation zoneenvironmental lawillegal constructionvoid orderdistrict collectorrestorationCRZ‑1forest conservation
Judgment
[2011] 3 S.C.R. 291
KRISHNADEVI MALCHAND KAMATHIA & ORS. A
v.
BOMBAY ENVIRONMENTAL ACTION GROUP & ORS.
I.A. No. 23 of 201 O
In
Civil Appeal No. 4421 of 2010 ·B
JANUARY 31, 2011
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Contempt of Court - Allegation of damage to Mangroves C
and other vegetation of wet land in CRZ-1 area, in willful
disobedience of court order - Held: Under the garb of
repairing the old bund, the appellants constructed a sort of
pukka bund using boulders and debris a/ongwith a huge
platform, violating the norms of environmental law and in p
flagrant violation and utter disregard of orders passed by the
courts and the District Collector - The appellants knowingly
and purposely damaged the mangroves and other vegetation,
which could not have been disturbed - Mangrove forests are
of great ecological importance and are a/so ecologically E
sensitive - No court can validate an action which is not lawful
at its inception - Appellants directed to restore the height and
width of the bund as it was existing prior to the order passed
by the District Collector - Maharashtra Private Forest
(Acquisition) Act, 1975 - s.21 - Forest (Conservation) Act, F
1980 - Coastal Regulatory Zone Regulations, 1991.
Order - Void order- Effect of - Held: Even if an order is
void, it is required to be so declared by a competent forum
and it is not permissible for any person to ignore the same
merely because in his opinion the order is void. G
The High Court while disposing of a Writ Petition filed
by the Bombay Environmental Action Group issued
certain directions, in pursuance of which the Divisional
291 H
.~"
292 SUPREME COURT REPORTS (2011] 3 S.C.R.
·-
A Commissioner issued a Notification dated 18.2.2009 on
account of which the appellants were restrained from
restarting manufacture of salt on the land In issue.
Aggrieved, the appellants filed an appeal before this
Court. During pendency of the appeal, the appellants
B also filed an application seeking permission to repair the
damaged bund alongwith the land In Issue. This Court
disposed of the application granting liberty to the
appellants to approach the District Collector for such
relief. The appellants approached the District Collector,
c who after holding inquiry passed a speaking and
reasoned order dated 27-1-2010, allowing the appellants
to repair the bund subject to the condition that the
appellants would repair the bund without destroying the
mangroves/vegetation on the said land. This Court
0 ultimately disposed of the appeal filed by the appellants
vide order dated 7-5-2010. The parties in the appeal filed
contempt applications alleging various violations of the
orders passed by this Court, as well as by the District
Collector.
E Tha District Collector and the Action Group filed
contempt applications making allegations that under the
garb of repairing the bund, the appellants raised the
height and expanded the width of the bund and thus
destroyed the mangroves to a great extent.
F
The appellants, on the other hand, filed a Contempt
application alleging that the Collector's order dated
27.1.2010 was being unnecessarily interfered with by the
statutory authorities. The appellants submitted that in
G pursuance of the order of this Court dated 7.5.2010, they
had Instituted a civil suit before the High Court, wherein
notices had been issued to the respondents/defendants
and which is still pending consideration and further that
the validity of the Notification dated 18.2.2009 is also
H under challenge therein to the extent that the said
-· KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 293
ENVIRONMENTALACTION GROUP
Notification is void ab initio for the reason that the A
procedure prescribed in law was not followed.
Disposing of the applications, the Court
HELD:1. Even if an order is void, it requires to be so
declared by a competent forum and it is not permissible B
for any person to ignore the same merely because in his
opinion the order is void. Even if the order/ notification
is vo!d/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 a C
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 due to the doctrine D
of waiver or any other legal reason. The order may be
void for one purpose or for one person, it ma:y not be so
for another purpose or another person. In any event, the
matter regarding validity of the Notification dated
18.2,2009 is still pending consideration in a suit before the E
High Court on its original side anci thus it is not desirable
on the part of this Court to consider any submission in
regard thereto. [Paras 17, 21] [303-G; 305-A-C]
State of Kera/a v. M.K. Kunhikannan Nambiar Manjeri
Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai F
M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd.
etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin
Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; Sneh
Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194; State of
Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC G
2219 and Sultan Sadik v. Sanjay Raj Subba & Ors., AIR
2004 SC 1377 - relied on.
Smith v. East £/lore Rural District Council, 1956 1 All ER
855 - referred to. H
294 SUPREME COURT REPORTS [2011] 3 S.C.R.
·-
A 2. The Coastal Regulatory Zone Regulations, 1991
allow for salt harvesting by solar evaporation of sea water
in CRZ-1 areas only where such area is not ecologically
sensitive and important. Mangroves fall squarely within
the ambit of CRZ-1. In the instant case, it has been
B established that mangrove forests are of great ecological
importance and are also ecologically sensitive. Thus, salt
harvesting by solar evaporation of sea water cannot be
permitted in an area that is home to mangrove forests.
[Para 29] [312-G-H; 313-A)
c 3. The following conclusions are inescapable in the
instant case:
(1) The land in dispute has not been used for
manufacturing of salt for more than two decades.
D
(2) The land in dispute stands notified as a reserve
forest, though it may be a private land and requires
to be protected.
(3) The direction issued by the High Court while
E disposing of the writ petition filed by the Action
Group has issued several directions including the
direction to identify mangrove area and declare/notify
it as a forest.
F (4) The Central Regulatory Zone Regulations 1991
impose certain restrictions on the land in dispute.
(5) The District Collector while deciding the
application of the applicants for according
permission to repair the bund has explicitly
G incorporated the conditions that the appellants
would only repair the old bund without raising Its
height and ensure full protection of the mangroves.
(6) This Court while disposing of the appeal filed by
H the appellants has directed to ensure compllance of
••
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 295
ENVIRONMENTALACTION GROUP
the order of the District Collector and in case of any A
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
8
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.
c
(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 an 0
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; E
(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 F
was not beyond 6 ft width.
(iv) Instead of mud, big boulders, concrete, debris
had been used. Several platforms of 25 to 30
mtrs with the width of 16 to 20 mtrs. have been
constructed; G
(v) Debris was being dumped beyond the area of
platform in the land In dispute making an
H
...
296 SUPREME COURT REPORTS [2011] 3 S.C.R.
A attempt to increase the width of the platform;
(vi) The cut mangroves have been used to
increase the height of the bund;
(vii) Breathing roots and branches of mangroves
B were found stucking out of the muddy area of
the bund; and
(viii) A large number of mangroves died because of
removal of mud and stagnation of water. [Para
C 30] (313-B-H; 314-A·G]
4. In view of the above, it is clear that the appellants
are guilty of willful defiance of the orders passed by this
Court as well as by the District Collector and they have
filed the contempt petitions using it as a legal thumb
D screw to enforce their claims though, totally unwarranted
and unfounded on facts. It is a crystal clear case of
contumacious conduct, as the conduct of the appellants
· is not explainable otherwise, for the reason that
disobedience is deliberate. The appellants cannot be
E permitted to make allegations against the authorities and
drag them to the court alleging disobedience of the
orders of this court without realising that contempt
proceedings are quasi-criminal in nature. They have
knowingly and purposely damaged the mangroves and
F other vegetation of the wet land of the CRZ-1 area, which
could not have been disturbed. Under the garb of
repairing the old bund, a sort of pukka bund using
boulders, and debris has been constructed along with a
huge platform, violating the norms of environmental law
G and in flagrant violation and utter disregard of orders
passed by the courts and the District Collector. No court
can validate an action which is not lawful at its inception.
[Para 31] [314-H; 315-A·D)
H 5. The contempt proceedings filed by the District
..
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 297
ENVIRONMENTALACTION GROUP
Collector and the Action Group are allowed and the A
contempt petition filed by the appellants is hereby
dismissed with directions. The appellants are directed to
restore the height and width of the bund as it was existing
prior to the order passed by the District Collector dated
27 .1.2010 within a period of 60 days by removing all B
debris, grit, boulders etc., dismantling of platforms and
reducing the height and width of the bund. All culverts,
drains which existed prior to 27 .1.2010 which could
facilitate the natural flow of sea water into the land, shall
be restored. In case the appellants fail to carry out the c
· aforesaid directions within the stipulated period, the
District Collector, shall carry out the aforesaid directions
and recover the cost from the appellants as arrears of
land revenue and shall ensure In future that the
appellants would not act in a manner detrimental to the
0
ecology of the area and ensure the preservation of
mangroves and other vegetation. [Para 32] [315-E-H;
316-A-B]
Case Law Reference:
E
AIR 1996 SC 906 relied on Para 18
AIR 1997 SC 1240 relied on Para 18
(2006) 7 SC'.C 470 relied on Para 18
(2009) s sec 194 relied on Para 18 F
AIR 1991 SC 2219 relied on Para 19
1956 1 All ER 855 referred to Para 19
AIR 2004 SC 1377 relied on Para 20 G
CIVIL APPELLATE JURISDICTION: I.A. No. 23 of 2010.
IN
Civil Appeal No. 4421 of 2010 H
298 SUPREME COURT REPORTS [2011] 3 S.C.R.
A From the Judgment & Order dated 6.10.2005 of the High
Court of Judicature at Bombay in Writ Petition (Lodging) No.
3246 of 2004.
WITH
B Cont.P.(C) No. 169 of 2010 in 4421 of 2010
Cont.P.(C) No. 266 of 2010 in 4421 of 2010
Ram Jethmalani, Pramod Swarup, Dushyant A. Dave, A.Y.
C Chitale, Shekhar Naphade, Parena Swarup, Vijay Kumar,
Abhindra Maheshwari, Vishwajit Singh, Madhvi Divan, D.
Bharat Kumar, M. lndrani, Abhijit Sengupta, Sunaina Dutta,
Snigdha Pandey, Suchitra Atul Chitale, Nishantha Kumar,
Sanjay V. Kharde, Asha Gopalan Nair, Anagha S. Desai,
D Ahmade Abadi, Sangeeta Kumar for the appearing parties.
The Judgment of the Court was delivered by
DR. B. S. CHAUHAN, J. 1. Civil Appeal No. 4421 of 2010
was disposed of by this Court vide judgment and order dated
E 7.5.2010 giving liberty to the appellants therein to approach the
Bombay High Court to seek appropriate relief. During the
pendency of the appeal, the appellants were given liberty to
approach the District Collector concerned to seek permission
to repair the bund. The Collector allowed the appellants to repair
the bund subject to certain conditions. The parties in the appeal
F have filed three applications alleging various violations of the
orders passed by this Court, as well as by the District Collector.
I.A.No. 23/2010
G 2. This application has been filed by the District Collector,
Mumbai Suburban District, to initiate the contempt proceedings
against the appellants Krishnadevi Malchand Kamathia & Ors.
for violating the order of this court dated 7.5.2010 in Civil
Appeal No.4421 of 2010 and his own order dated 27.1.2010 I
H
..
KRISHNADEVl MALCHAND KAMl\THIA v. BOMBAY 299
ENVIRONMENTALACTION GROUP [DR. B.S. CHAUHAN, J.]
in respect of Survey No. 344 CTS No. 1 of Village Dahisar, A
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 B
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 c
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 D
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 to
repair the bund in such a way that the mangroves may not die E
and order dated 26.5.2010 to ensure the compliance of the
order dated 27 .1.2010 and to remove the debris and reduce
the height of the bund etc., being in violation of orders passed
by this Court in the appeal.
Cont. Pet. No. 266 of 201 O F
4. This contempt petition has been filed by the original writ
petitioner before the Bombay High Court i.e. Bombay
Environmental Action Group and Anr., (hereinafter called
'Action Group') to initiate contempt proceedings against the G
appellants for willful dis-obedience of the order of this Court
dated 22.3.2010 passed in SLP (C) No. 29031/2009 and order
dated 7.5.2010 passed in Civil Appeal No.4421 of 2010 and
further to recall the permission granted by this Court vide order
dated 22.3.2010 in the said case and order dated 7.5.2010 in H
...
300 SUPREME COURT REPORTS [2011) 3 S.C.R.
A Civil Appeal No. 4421 of 2010. Further, to give directions to
open the culverts, closed channels of water and to ensure
removal of debris on the subject site at the cost of the
appellants i.e. contemnors Nos. 1 to 10. I\•
5. As all the aforesaid three applications have been filed
B alleging violation of the same orders, the applications were
heard together and all being disposed of by the common order.
FACTS:
c 6. The Bombay High Court while disposing of the Writ
Petition filed by the Action Group vide order dated 6.10.2005
issued several directions including:
"XI. From the list of "Mangrove Areas" so identified
Government owned lands will automatically be declared/
D notified as "Protected Forest". Likewise, privately owned
lands from the list of Mangrove Areas so identified, the
same will be declared/notified as "Forest".
7. In pursuance of the aforesaid direction issued by the
E High Court, the Divisional Commissioner, issued Notification
being No. RB/Desk-ll!Forest/CR-2211/Pvt./A-1 dated
18.2.2009, which included the land of the appellants
Krishnadevi Malchand Kamathia and Ors. In view of the said
Notification, the appellants could not restart the salt
F manufacturing, though the appellants had been manufacturing
salt on the said land since 1959. It continued upto 1990 and
their license for manufacturing salt was valid upto 1993. The
Coastal Area Classification and Development Regulations,
1991 (hereinafter called CRZ Regulations) came which provide
G for classification of coastal regulatory zone, according to which
it did not prohibit 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
H
.. KRISHNADEVI MALCHAND KAMATHIAv. BOMBAY 301
ENVIRONMENTAL ACTION GROUP [DR. B.S. CHAUHAN, J.]
6.10.2005 .. However, in view of the fact that the appellants had A
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
. B
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 C
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 D
approached the District Collector, who after holding inquiry
passed a speaking and reasoned order dated 27 .1.201 O
giving full details and the case history of the dispute over the
title of the land between the appellants and the Government,
and the application of the provisions of Coastal Regulatory E
Zone Regulations 1991; and the Indian Forest Act 1927; and
Forest (Conservation) Act, 1980. According to the order, the
appellants would repair the bund without destroying the
mangroves or vegetation on the said land.
11. This Court disposed of the appeal vide order dated F
7.5.2010 wherein the parties were given liberty to
agitate the issue before the High Court raising all factual and
legal issues. So far as the repair of Bund was concerned, this
Court d;•ected as under:
G
"By an 1,;+~rim order passed by this court on 22.3.2010,
permitted t11t:l petitioners to repair the Bund. This interim
order is made absolute and petitioners are permitted to
maintain and upkeep the Sund till final adjudication
regarding Notifications dated 18.2.2nn9 and 15.6.2009 is H
302 SUPREME COURT REPORTS (2011] 3 S.C.R.
..
A made and violation of these orders by parties or other
authorities could be brought to the notice of this Court for
appropriate directions."
12. The contempt petitions have been filed by the District
Collector and the Action Group making allegations that under
8
the garb of repairing the bund, the appellants have raised the
height and expanded the width of the bund in such a manner
that mangrove would die a natural death without any attempt
on the part of the appellants. and further that appellants have
destroyed the mangroves to the great extent. Appellants filed
C a Contempt Petition alleging that Collector's order dated
27.1.2010 is being unnecessarily interfered with by the statutory
authorities.
13. We have heard Shri Ram Jethmalani, Shri be11.nar
o Naphade, Shri Dushyant Dave, Shri Atul Yashwo. .. ~ Chitale,
learned senior counsel appearing for the parties and perused
the record.
14. It may be pertinent to mention here that all the learned
counsel appearing for the parties have suggested that the
E application.; be heard without giving strict adherence to the
procedure for contempt proceedings i.e. framing of charges
etc., as pleadings are complete and parties are fully aware as
what is the case against which of the parties. More so, all the
documentary evidence, required to decide the case is on
F record.
15. Shri Ram Jethmalani, learned senior counsel
appearing for the appellants, submitted that in pursuance of the
order of this Court dated 7 .5.2010, the appellants have instituted
G 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
H
.. KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY
ENVIRONMENTALACTION GROUP [DR. B.S. CHAUHAN, J.]
303
Notification is void ab initio for the reason that the procedure A
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.
8
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, C
it car.not be urged that the Authority was denude of power to
i$;:;ue 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 tract of land not being the
property of Government, contains trees and shrubs, pasture D
lands and any other land whatsoever, and that it should be
declared, in public interest and for furtherance of the objects
of the said Act, to be a private forest. The State Government
would publish a Notification in the Official Gazette to declare
that it was a forest land after following the procedure prescribed E
therein. In fact records of the Statutory Authority reveal that the
said Notification has been published in view of the order
passed by this Court on 12.12.1996 in T.N. Godavarman,
wherein it has been held that Forest (Conservation) Act, 1980,
would apply to lands being forests, irrespective of who owned F
the land. For that purpose, Shri Naphade, has drawn our
attention to para 4.2 of the Report of the Committee, dated
19.5.2010 (Annexure R-5A) to I.A. No. 23 of 2010.
17. It is settled legal proposition that even if an order is G
vc:r:t, it requires to be so declared by a competent forum and it
is nut l'.'ermissible for any person to ignore the same merely
because in his opinion the order is void.
18. In State of Kera/a v. M.K. Kunhikannan Nambiar
Manjeri Manikoth Naduvi/ (deadl ~ Ors., AIR 1996 SC 906; H
304 SUPREME COURT REPORTS [2011] 3 S.C.R.
..
A Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries
Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v.
Metadin Agarwal (dead) by L.Rs. & Ors. (:!006) 7 SCC 470;
and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this
Court held that whether an order is valid or void, cannot be
B determined by the parties. For setting aside such an order,
even if void, the party has to_ approach the appropriate forum.
19. In State of Punjab & Ors. v. Gurdev Singh, Ashok
Kumar, AIR 1991 SC 2219, this Court held that a party
aggrieved by the invalidity of an order has to approach the court
C for relief of declaration that the order against him is inoperative
and therefore, not binding upon him. While deciding the said
case, this Court placed reliance upon the judgment in Smith v.
East El/ore Rural District Council, [1956] 1 All ER 855 wherein
Lord Radcliffe observed:-
D
"An order, even if not made in good faith is still an act
capable of legal consequences. It bears no brand of
invalidity on its forehead. Unless the necessary
proceedings are taken at law to establish the cause of
E invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose 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
F 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
G conclusion that the order suffers from p<\tent and latent invalidity.
21. Thus, from the above it emerges that ev~n if the order/
notification is void/voidable, the party aggrieved by the same ·
cannot decide that the said order/notification is not binding upon
H it. It has to approach the court for seeking such declaration.
.. KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 305
ENVIRONMENTALACTION GROUP [DR. B.S. CHAUHAN, J.]
The order may be hypothetically a nullity and even if its invalidity A
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 a
so for another purpose or another person.
22. Be, that as it may, the matter regarding the validity of
the said Notification is still pending consideration in a suit
before the Bombay High Court on its original side, it is not
desirable on our part to consider the said submission raised ·C
on behalf of the appellants.
23. The relevant part of the conditional order of the District
Collector dated 27.1.201 O provides as under:
D
(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.
(ii) The Applicants will not destroy mangroves and/or
vegetation on the said land. E
(iii) The Applicants shall not raise the height o( the Bund
above as in existence at present.
On receiving numerous complaints from the public at large
and officials, the District Collector passed the order dated F
20.5.2010:
"xx xx xx
· The earlier order passed by this authority giving G
permission to repair the bund is hereby stayed and all the
concerned parties should maintain status quo.
xx xx xx
H
306 SUPREME COURT REPORTS [2011] 3 S.C.R.
..
A This committee will visit and check minutely the following
important points in the matter:-
(a) The permission. given by the District Collector for
the repair of the bund No.C/Desk-21 Mangrove/
WS-610/2009 dated 27 .1.2010, which was
B
rendered.by the Supreme court in its orders dated
22.3.2010 and 7.5.2010 whether terms and
conditions mentioned in the Collectors order are
followed by the Applicant land owner or not?
c (b) Whether the Applicant has committed any
violation?
(c) Whether the land owner has kept water culverts
open or not? If the committee finds that the water
D is stopped which may ultimately cause destroying
of mangroves, the committee i.e. Area Officers
should make the owner to open the culverts
immediately.
The committee should make detailed enquiry and the
E consolidated report should be sent to the District Collector
within 15 days."
After receiving the report from the Committee duly
constituted by the District Collector on 20.5.2010, the District
F Collector passed the order on 26.5.2010 directing the
appellants as under:
(1) All the material used for filling to increase the height
be removed, maintain the earlier position of the
bund as expected in the permission order dated
G 27.1.2010.
(2) Remove the rubble dumped in the open land in
question.
H (3) Remove the rubble and filling and let the natural flow
.. KR!SHNADEVI MALCHAND KAMATHIA v. BOMBAY 307
ENVIRONMENTALACTION GROUP [DR. B.S. CHAUHAN, J.]
of sea water, which is at oresent obstructed, A
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.
B
24. The aforesaid order has been passed by the Collector
after consiu~ring 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 c
Con. Pet. 266/2010) makes it clear that the Tahsildar Borivali
and Additional Chitnis had visited the spot and fqund that a new
bund had been made having the width of 10 ft. and height of
bund 4 ft. and running to 1 to 1Yz KMs. There had been culverts
in the old bund which were filled up. The natural flow ofwater 0
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
canstruction of bund that adequate arrangement to ensure that
mangroves are not damaged, has not been complied with and E
there has been a breach of the said condition:
(B) . Report dated 19.5.201 O from the Committee
appointed for inspection reveal that after having inspection of
the site, the Committee reached the conclusion that the
appellants have grossly violated the conditions incorporated in F
the order of the District Collector dated 27.1.2010, permitting
them to repair the bund. They have not only raised height of the
bund but widened it so as to obstruct the flow of water in the
creek which may cause damage to mangroves. There has
been a violation of the order of the Collector; the order of the . G
Bombay High Court, and the order of this Court. The
mangroves at places were destroyed during the construction
of the new roads and the new bunds. Debris, garbage, mud
and stones have been dumped along the new road. Large
quantities of mud have been excavated from the site itself and H'
. I
308 SUPREME COURT REPORTS [2011] 3 S.C.R.
..
A used for construction of the bund. The Committee made the
following recommendations:
(1) That all illegal work should be immediately
stopped by the revenue authority.
B (2) The Bund and the Road that have blocked the
smaller creeks should be immediately removed to prevent
the destruction of the mangroves.
(3) Proper action as per the law may be taken by the
c revenue authority. It is brought to the notice that in writ
petition no. 3246 of 2004 the Maharashtra Govt. vide
circular dated 21.10.2005 clarified that the Collector should
take care of the mangroves of the private land and
Government lands till the- area is handed over to forest
D department.
(C) There is another report of the Tahsildar Borivali
Mumbai, Suburban district dated 22.5.2010 which reveals
that earlier some culverts were in existence, the same had
been closed and a new mud bund erected thereon. By
E making a huge filling, the width of the bund had been
expanded by 12 to 15 ft. At the end of bund again filling of
debris had been done. Branches of the adjacent
mangroves had been cut. The report further reveals that
a crime had been registered on 22.5.2010 in MHB Police
F Station under Section 15(i)(ii) of Environment Protection
Act, 1986 against the owner of the land on account of the
cutting of branches of mangroves, causing damage to
mangroves and stoppage of the natural water flow of nalla.
G (D) Another report dated 14.6.2010 of a Committee
consisting of six State officials is on record. According to
it, there have been flagrant violations of the order passed
by the District Collector and the courts. The relevant part
reads as under:
H
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 309
ENVIRONMENTALACTION GROUP [DR. B.S. CHAUHAN, J.J
CONCLUSIONS: A
Conditions in order Factual position observed
dated 27.1.201 O by the Committee on the
spot ··
B
i) The applicants will only No structural construction
carry out the repairs of the activities carried out on the
Bund and shall not carry site, but it is observed that
out any other construction the permission holder has
activities on the said done massive filling work by
land. dumping debris and c
garbage on the said land.
Sund has been widened by
mud and debris filling. Now
the permission holder
converted existing bund into D
new road. The permission
was only to repair the
existing bund. But the land
holder has constructed a
newbund. E
ii) The applicants will not Destruction of mangroves
destroy mangroves and/ and vegetation done in a
or vegetation on the said large scale.
land.
F
iii) The Applicants shall not Permission holder has
raise the height of the raised height of the existing
Bund above as in bund by 1.5 Mtrs. as well
existence at present. as width of the bund.
iv) Upon completion of the Compliance report of work G
repairs, the Applicant .has been submitted by the
shall file a Completion applicant. Despite that
Report in the office of the work still going on the site.
Collector.
H
..
310 SUPREME COURT REPORTS [2011) 3 S.C.R.
A
v} The Applicant will abide Applicant violated the
by the final orders that conditions of the order
may be passed by the dated 22.3.2010 passed by
Hon'ble Supreme Court the Hon. Supreme Court in
in the SLP to Appeal S.L.P. No.29031 of 2009.
B ..
No.29031 of 2009 in
respect of the user of the
land.
25. The issue has been agitated from time to time before
C this Court and there have been various claims and counter
claims in respect of the activities of the appellants. This Court
vide order dated 24.11.2010 requested the learned Principal
Judge, City Civil Court, Mumbai to inspect the area i.e. the
bund in the lands i.e. SL. No.344 measuring 175 Hectares,
D situated in village Dahisar and submit a report to this Court
about the status and present position. It was further requested
that he would ascertain and report whether any damage has
been caused to mangroves/vegetation that existed on the said
land.
E 26. In pursuance of the said order, the learned Principal
Judge, City Civil Court submitted the report dated 10.12.2010
along with a large number of photographs to substantiat~ the
contents of the report. Relevant part thereof reads as under:
F "At the outset it may be briefly stated that during the
course of visit it was noticed that the debris and boulders
including big broken pieces of RCC slabs were found lying
at various places on the bund. The debris and boulders
were found used for pitching or reinforcement of the bund
G because of the dumping of debris and boulders on a large
scale .... Apart from dumping of debris and boulders in
large quantities, what was noticed was that there were
about 12 to 13 places where big platforms were found
made of debris and boulders. The length of those platforms
H was something between 25 to 35 metres each and width
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY 311
ENVIRONMENTALACTION GROUP [DR. 8.S. CHAUHAN, J.)
was on an average 16 to 20 metres each ..... That debris A
was being dumped ·beyond the area of the· platform in
property survey No.344 and there was an attempt to
increase the width of the platforms. In the process the
mangroves obviously were being destroyed.
B
... .. the mangroves were destroyed at a
considerable length from the bund in survey no.344..... the
destruction was at considerably a large scale .
. .. .a large number of mangroves were found cut
manually. It was possible that the mangroves were cut to C
increase width of the bund. The cut mangroves were found
to have been used in increasing the height of the bund.
Breathing roots and branches of mangroves were found
stuck in the muddy area of the bund.
D
- ..... 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..... E
. . .. There were 3-4 patches where mangroves
appeared to have been destroyed manually. "(Emphasis
added)
27. The CRZ Regulations define for regulating F
developmental activities, coastal stretches within 500 metres
of the landward side of the High Tide line into 4 categories.
Category I (CRZ-1) is defined as under:
"(i) Areas that are ecologically sensitive and important, G
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,·
H
312 SUPREME COURT REPORTS (2011) 3 S.C.R.
A 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 Govemm.ent or the concerned authorities
at the State/Union Territory level from time to time."
B (emphasis added)
28. The regulation of development or construction
activities in CRZ-1 areas is to be in accordance with the
I
following norms:
I c "CRZ-1
xxxxx
Between LTL and HTL in areas which are not
ecologically sensitive and important, the following may
D be permitted : (a) Exploration and extraction of Natural
Gas; (b) activities as specified under proviso of sub-
paragraph (i) and (ii) of paragraph 2; (c) Construction of
dispensaries, schools, public rain shelters, community
toilets bridges, roads, jetties, water supply, drainage,
E sewerage which are required for traditional inhabitants of
the Sunderbans Biosphere Reserve area, West Bengal,
on a case to case basis, by the West Bengal State
Coastal Zone Management Authority; (d) salt harvesting
by solar evaporation of sea water; (e) desalination plants;
F (f) storage of non-hazardous cargo such as edible oil,
fertilizers and food grain within notified ports; (g)
construction Of trans-harbour sea links. •
(emphasis added)
G 29. From the above, it is evident that mangroves fall
squarely within the ambit of CRZ-1. The regulations allow for salt ·
harvesting by solar evaporation of sea water in CRZ-1 areas
only where such area is not ecologically sensitive and
important. In the instant case it has been established that
H
'
KRISHNADEVI MALCHAND KAMATI-llA v. BOMBAY 313
ENVIRONMENTAL ACTION GROUP [DR. B.S. CHAUHAN, J.]
mangrove forests are of great ecological importance and are A
also ecologically sensitive. Thus, salt harvesting by solar
evaporation of sea water cannot be permitted in an area that
is home to mangrove forests.
30. In view of the aforesaid discussion, we reach the
8
following inescapable conclusions:
(1) The land in dispute has not been used for
manufacturing of salt for more than two decades.
(2) The land in dispute stands notified as a reserve forest, c
though it may be a private land and requires :to be
protected.
(3) The direction issued by the High Court while disposing
of the writ petition filed by the Action Group has issued
several directions including the direction to·. identify D
mangrove area and declare/notify it as a forest.
(4) The Central Regulatory Zone Regulations 1991
imposes certain restrictions on the land in dispute.
E
(5) The District Collector while deciding the application of
the applicants for according permission to repair the bund
has explicitly incorporated the conditions that the
appellants would only repair the old bund without raising
its height and ensure full protection of mangroves.
F
(6) This Court while 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.
G
(7) In respect of the repairing of the bu11d, ~.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 ' H
314 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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 :
B
(i) Closing the natural flow of water which has adverse
effect on existing mangroves;
(ii) A large number of mangroves had been cut/
c 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
D 15 ft. while the old bund was not beyond 6 ft width.
(iv) Instead of mud, big boulders, concrete, debris had
been used. Several platforms of 25 to 30 mtrs with
the width of 16 to 20 mtrs. have been constructed;
E
(v) Debris was being dumped beyond the area of
platform in the land in dispute making an attempt
to increase the width of the platform;
(vi) The cut mangroves have been used to increase
F the height of the bund;
(vii) Breathing roots and branches of mangroves were
found stucking C'' 1t of the muddy area of the bund;
and
G
(viii) A large number of mangroves died because of
removal of mud and stagnation of water.
31. In view of the above, we have no hesitation to hold that
the appellants are guilty of willful defiance of the orders passed
H by this Court as well as by the District Collector and they have
-
ft
KRISHNADEVI MALCHAND KAMATHIA v. BOMBAY
ENVIRONMENTALACTION GROUP [DR B.S. CHAUHAN, J.]
315
filed the contempt petitions using it as a legal thumb screw to A .
enforce their claims though, totally unwarranted and unfounded
on facts. It is a crystal clear case of contumacious conduct, as
the conduct of the appellants not explainable otherwise, for the
reason that disobedience is deliberate. The appellants cannot
be permitted to make allegations against the authorities and s
drag them to the court alleging disobedience of the orders of
this court without realising that contempt proceedings are quasi
criminal in nature. They have knowingly and purposely damaged ·
the mangroves and other vegetation of the wet land of the CRZ-
1area, which could not have been disturbed. Under the garb c
of repairing the old bund, a sort of pukka bund using boulders,
and debris has been constructed along with a huge platform,
violating the norms of environmental law and in flagrant violation
and utter disregard of orders passed by the courts and the
District Collector. No court can validate an action which is not
0
lawful at its inception.
It is often re-iterated that justice is only blind or blindfolded
to the extent necessary to hold its scales evenly. It is not, and
must never be allowed, to become blind to the reality of the
situation, lamentable though that situation may be. E
32. In view uf the above, the contempt proceedings filed
by the District Collector and the Action Group are allowed and
the contempt petition filed by the appellants i.e. Cont. Pet. 169/
2010 is hereby dismissed with the following directions: F
(1) The appellants are directed to restore the height and
width of the bund as it was existing prior to the order
passed by the District Collector dated 27.1.201 O within a
period of 60 days from today by removing all debris, grit,
boulders etc., dismantling of platforms and reducing the G
height and width of the bund.
(2) All culverts, drains which existed prior to 27.1.2010
which could facilitate the natural flow of sea water into the
land, shall be restored H
316 ·SUPREME COURT REPORTS [2011] 3 S.C.R.
-
A (3) In case the appellants fail to carry out the aforesaid
directions within the stipulated period, the District
Collector, Suburban District shall carry out the aforesaid
directions and recover the cost from the appellants as
?rrears of land revenue and shall ensure in future that the
B appellants would not act in a manner detrimental to the
ecology of the area and ensure the preservation of
. mangroves and other vegetation.
33. In the facts and circumstances of the case, we request
the Bombay High Court to expedite the trial of the suit filed by
C the appellants. ln,.view of the above, the contempt petitions and
interlocutory application stand disposed of.
8.8.B. Applications disposed of.
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