Spreading the sails

THE obsession of the present governments at the Centre and in Maharashtra for gigantic infrastructure networks is well known. That these projects often steamroll other concerns is also public knowledge. The latest such is the resurrection of a port plan in Maharashtra that had been rejected in its totality two decades ago. The State is now again talking seriously about building the port.

About 125 kilometres from Mumbai, Dahanu taluk is within striking distance of urbanisation. It is a coastal green belt that is so peaceful that the word sylvan could have been coined for it. Its cosmopolitan population includes the fishing community, tribal people and Zoroastrian Iranis. Their livelihoods are sustained by fishing, chikoo orchards, agriculture and die-making. But Dahanu’s coastal location, its proximity to Mumbai and its easy access to rail and road networks turned out to be its nemesis. As industrialisation crept towards it, the residents realised that their lands and livelihoods were under threat. As it is Dahanu’s coastline is fragile, and so it is extra vulnerable to erosion by the sea.

On February 19, 1991, Dahanu was “notified” (or classified) under the Indian Coastal Regulation Zone (CRZ) by the Ministry of Environment and Forests (MoEF). The CRZ bans new construction and development activities within 500 metres of the high-tide line. Four months later, Dahanu was declared an “eco-fragile” area by a government notification of June 20, 1991. Made under the Environment Protection Act, 1986, the notification restricts the development of industries, mining operations and other development work in the region.

Despite these safety nets, the area was still industrialised rapidly. This led the environmentalist Bittu Sehgal to file a writ petition in the Supreme Court in 1994 in which he submitted that the notifications be implemented. The court appointed the National Environmental Engineering Research Institute (NEERI) to look into it. On the basis of its report, the court upheld the June 20, 1991, notification, popularly known as Dahanu notification. It forbade change of land use in the region.

But it was not to be all that hunky-dory. In 1997, local people were alerted to the possibility of a port being built in the village of Vadhavan in Dahanu taluk. This plan was repulsed by them and the Dahanu Taluka Environment Protection Authority (DTEPA), a Supreme Court-constituted 15-member body of experts formed under Section 3 of the Environment Protection Act to ensure the implementation of environmental laws to protect Dahanu. The MoEF had forwarded a proposal (which it had received from the government of Maharashtra) to the DTEPA showing plans for the construction of a modern, all-weather port in Dahanu taluk that the State government had received from P&O Ports, Australia.

Categorical rejection

A DTEPA letter dated September 19, 1999, shows that it had rejected the port project in no uncertain terms. It states: “Initially this Authority was inclined to decide both the questions, namely legality and feasibility of the proposed project…. With this sole object in spite of the objection raised by Dahanu Taluka Environment Welfare Association [DTEWA], we permitted the P&O Ports (India) Pvt. Ltd. to carry out work of survey and collection of data…. However, it appears that the Company has not availed itself of the said opportunity and is insisting that unless the question as to legality of the project is decided it is not interested in proceeding further. In view of this, we have no other alternative but to decide this question, treating it as a preliminary issue.”

This preliminary issue in question had to do with the objections raised by the DTEWA, the Vadhavan Bandar Virodhi Sangharsh Samiti and others who rejected the plans for building the port. Basing its decision on law, the DTEPA came to the conclusion that the construction of a mega port at Vadhavan would be “wholly impermissible and, therefore, will be illegal”.

Despite this categorical statement, the government has persistently pushed for the port. In June 2015 the Jawaharlal Nehru Port Trust (JNPT) and the Maharashtra Maritime Board (MMB), on behalf of the Government of Maharashtra, signed a memorandum of understanding to develop a new major port off Vadhavan. It was pegged as a corporate port under the Companies Act, 2013, with equity being shared by the JNPT and the Maharashtra government.

Realising that the battle was still on, fishermen of Vadhavan and 12 other villages rallied together and on December 3 last year prevented a government team from carrying out preliminary land surveys.

Locational advantage

The government is keen on Vadhavan because of its ideal location. In the larger picture of the national infrastructure network, Vadhavan is of particular interest because it has a good natural draft with a deep water contour (the boundary between safe and shallow water) of more than 20 metres and is free from heavy coastal fishing activity. It is well connected by rail and road to the rest of the country. It is close enough to service both Mumbai and Jawaharlal Nehru ports, both of which the government say are saturated.

However, it is an unsuitable choice for a large port because of the region’s fragile ecology. The ecological significance of the Dahanu taluk coastline stems from its marine benthic life—organisms such as sea cucumbers, clams, oysters, sea stars, brittle stars and sea anemones that live on the seabed and are a crucial part of the food chain for other marine life and humans. The coastline also has dense mangrove, which is essential to prevent the already severe erosion, and is the breeding and spawning grounds of a number of fish and other sea species. Dahanu is also the last green belt in the region. North of it is industrial Gujarat, where a former Chief Minister once bragged that he would not allow a blade of grass to stand in the way of industrial development.

On the socio-economic front, the region is largely one of rural plenty, with prosperity coming from agriculture, horticulture and fishing. There is also a significant cottage industry of die-making that has flourished for more than a century. A non-polluting industry, it employs one or more members in almost every home in the area.

It is recognising this entire package of a sustainable environment and seeing the inherent fragility of the taluk’s coastal landscape that the Environment Ministry declared Dahanu taluk an ecologically fragile area and said that development activities had to be consistent with the principles of environmental protection and conservation.

Dahanu taluk’s advantage is in the form of a slew of laws: the approved Master Plan/Regional Plan of Dahanu taluk; the Supreme Court order dated October 31, 1996, in writ petition No. 231 of 1994; the notifications of the MoEF on CRZ dated January 6, 2011 (superseding the notification dated February 19, 1991); and the Dahanu taluk notification of June 20, 1991.

CRZ violations

To build a port in Dahanu taluk would be a total violation of the CRZ. The coastline all along Dahanu taluk up to 500 m from the high-tide line and the inter-tidal area between the high-tide and low-tide lines have been given the classification CRZ-IA; this means the strongest protection. Large-scale construction and development activities like a port cannot just be permitted here. There is a mistaken notion that the modified CRZ rules allowed construction, but there is no change in the heavy protection given to CRZ-IA.

In fact, there is a clause in the CRZ notification that specifically forbids “Ports and harbour projects in high eroding stretches of the coast”. The area under Vadhavan definitely falls in this category as is proved by the “Shoreline Change Atlas of India, Volume 2 Maharashtra and Goa 2014”, prepared by the Space Applications Centre (Indian Space Research Organisation) and the Coastal Erosion Directorate, Ministry of Water Resources, Government of India. This map proves that this coast is subject to harsh erosion. Using comparisons from 1989-91 and 2004-06, the map shows a high-tide line that is pushing deeper inland.

The CRZ rules are strengthened by the Dahanu notification, which categorically makes no provision for a new port in the taluk. The approved Regional Plan also does not allow change of land use in green areas, orchards, tribal areas or other environmentally sensitive areas as demarcated in the Master Plan or the Regional Plan for the taluk. Furthermore, the total area within the taluk for location of permissible industries is restricted to a maximum of 500 acres (202 hectares) within the industrial area earmarked in the Master Plan.

Lastly, there is the stamp of approval from the Supreme Court in writ petition No. 231 of 1994 that had been filed in the Supreme Court for the proper implementation of the notifications concerning Dahanu taluk. In its judgment of October 31, 1996, the Supreme Court upheld the Dahanu notification and its provision prohibiting any change of land use in the region. The court ordered that the DTEPA was to consider and implement the two notifications of 1991 as well as the recommendations of the NEERI report. Given this fortress-like protection accorded to the region, the State government’s persistence in resurrecting the proposal for a port at the same location is suspicious.

Perhaps the interested authorities are thinking of using the watered-down version of the January 6, 2011, amendment to the CRZ notification, but even this is categorical in not permitting port construction in CRZ-IA.

Port builders’ arguments

Port builders argue that the CRZ does not apply as the port will be built in the sea and not on land. The DTEPA has pointed out that the port will require vast back-up facilities, which will be on land and will violate the CRZ. The port will also be handling cargo such as cement, coal, petroleum products and chemicals that has the potential to pollute. Furthermore, access to the port will also require the construction and widening of roads, railway lines, residential accommodation and truck bays all of which will all be located on land.

Perhaps they hold out hope for the port thinking that the Regional Plan can be amended to include ports as part of the local development activity. But even if this were possible the Regional Plan cannot supersede the Dahanu notification.

Maybe the government is hoping to split hairs over the fact that the word industry is not painstakingly defined. But here too the order states “words and expression not defined in the Act… must receive a general construction and should be understood in their generic sense. If so understood such a vast port will obviously fall within the ambit and scope of the word ‘industry’. Therefore, the construction or establishment of such a mega port is wholly prohibited by notification dated 20th June 1991 popularly known as Dahanu Notification.”

Looked at from any angle, the case against the port at Vadhavan seems to be watertight with the law bolstering it at every stage. But the question is whether the law will be allowed to hold its own.