State must compensate communities for loss of livelihood by infra projects: Bombay HC – Hindustan Times

The state is duty bound to compensate the community if its customary right to occupation for earning livelihood is affected by infrastructure projects, the Bombay high court (HC) held on Thursday and directed the Maharashtra government to consider framing a general policy for the payment of compensation to affected communities in such cases.

The division bench of justice SJ Kathawalla and justice Milind Jadhav held that once a customary right to carry out an occupation for livelihood is affected, the principles enshrined in Article 21 of the Constitution of India will come into play. “This forms the basis of the state’s duty to compensate in such cases,” HC observed.

With regards to the requirement of the policy, the bench said looking at a clear trend across all the modes of compensating affected persons and expansion of infrastructure and its impact on local communities, the state must consider framing a comprehensive policy for award of compensation to persons whose customary rights of occupation and livelihood are affected by infrastructure projects.

“We believe that such a state-wide compensation policy is required not only for fishermen, but for compensating any community whose customary rights to carry out an activity for their livelihood is impacted by government infrastructure projects,” the bench observed.

HC also directed the state government to appoint a six-member committee to determine compensation payable to fishermen whose livelihood is affected by construction of Thane Creek Bridge (TCB)-3, a proposed six-lane bridge on Sion-Panvel highway near Vashi.

The court was hearing a petition filed by Mariaayi Machhimaar Sahakari Sanstha Maryadit, on behalf of the fishing community from Vashi, Juhu, Koparkhairane, Ghansoli and Diva.

The petitioner claimed compensation for the fishermen, contending that they were inhabitants of the Thane creek area and their customary right to fish in the creek was adversely affected by the construction of the third bridge on the creek that connects Mumbai with mainland at Navi Mumbai.

Their counsel, advocate Zaman Ali, pointed out how their customary right of fishing was likely to be adversely affected by the third bridge. He submitted that Thane Creek consisted of extensive mudflats along its banks, characterised by the growth of mangroves. Due to the large-scale availability of inter-tidal lands such as mudflats and mangroves, Thane Creek provided an excellent catch of commercial fish and crustaceans. He added, due to the rich ecosystem and biodiversity, the Thane Creek area was declared as flamingo sanctuary in 2015.

Ali further pointed out that the proposed bridge will affect 1.4 hectares (ha) of mangrove forest and 6.76ha of CRZ-1 and CRZ-4 areas, comprising fishing areas and mudflats. The construction, Ali said, will involve heavy concretisation and reclamation of land that will block access to fishing routes and navigational channels for fishing activities.

Amicus curiae, senior advocate Sharan Jagtiani, supported him by submitting that the bridge will adversely affect the livelihood of the fishing community, causing direct and indirect losses.

HC accepted the contentions and observed that the livelihood of the fishing community is dependent on a healthy environment and balanced ecology.

The bench said that the destruction of mangroves for TCB-3 will disturb the ecological balance in Thane creek.

“The vital role that mangroves play in maintaining ecological balance and sustaining bio-diversity is well-documented. The Thane Creek Flamingo Sanctuary Management Plan and the Preliminary Report on Bio-diversity of Thane Creek also bear out that the destruction of mangroves often results, inter alia, in loss of biodiversity and reduced fish catch, which in turn would impact livelihood of the fishermen.”