In a significant order, the Bombay High Court bench of Justices Shahrukh Kathawalla and Milind Jadhav on Thursday ordered the Maharashtra government to come up with a state-wide policy to compensate communities, whose customary rights of occupation and livelihood are affected by infrastructure projects.
The bench while allowing construction of the six laned Thane Creek Bridge III (TCB), which would connect Mumbai and Navi Mumbai, has appointed a Compensation Committee that would study the social impact of the project on the fisherfolk of the area and would accordingly fix a compensation to be granted to the community as their customary right to fish for a living is being affected by the project.
The bench has issued detailed guidelines as to how these Compensation Committees will have to be appointed and how these committees would study the social impact and arrive at a just amount to be given to people or communities whose occupation is being affected by any development project in the state.
The judges were hearing a petition filed by Mariyayi Macchimaar Sahkari Sanstha Maryadit (MMSSM) challenging the TCB III work and also seeking compensation as the project will affect their livelihood.
In order to prove that a party's customary right or occupation is being affected by a project, the bench said such a party will have to show that the usage of the site where the project is proposed, is ancient or from time immemorial; the usage is regular and continuous; the usage is certain and not varied; and the usage is reasonable.
To substantiate their claim that their customary right to fish in the Thane Creek is affected by the proposed TCB III bridge, the MMSSM produced the Ethnographic Survey titled ‘The Tribes and Castes of Bombay’ to show they have been carrying out fishing at Thane Creek since more than 100 years. It even cited dozens of other documents to prove their claim of having a customary right of fishing at Thane Creek.
Having gone through the documents on record, the bench held, "The Project Affected Fishermen (PAF) have inhabited Thane creek and practiced fishing as their main source of livelihood for at least the last 100 years, likely more. This qualifies as an activity being practiced since time immemorial. Their use of the creek has uniformly been for the purpose of fishing, thereby making the usage certain and not varied."
"Finally, their use for the purposes of fishing has been for their own livelihood, and not on some industrial scale which makes the exploitation of their right unreasonable. The documents, therefore, establish with sufficient clarity that the PAF have a customary right to fish for a living in Thane creek," the judges held.
The bench further noted that the "livelihood of fishermen is dependent on a healthy environment andbalanced ecology".
To further conclude that the TCB III bridge will affect the fisherfolk adversely, the bench said, "Destruction of mangroves for TCB III will disturb the ecological balance in Thane Creek. The vital role that mangroves play in maintaining ecological balance and sustaining biodiversity is well documented. The destruction of mangroves often results, inter alia, in loss of biodiversity, and reduced fish catch, which in turn would impact livelihood of the PAF".
The bench, however, didn't proceed to ascertain the "extent of impact" the project would have on this community. "Since we hold that the Project Affected Persons’ customary rights are being impacted, we also hold that they are entitled to be compensated for their loss," the bench held.
The bench further noted that as of today, no state-wide compensation policy exists which providesguidance on how to constitute a committee to look into fine print of a compensation policy.
"We are of the view that a state-wide compensation policy for communities affected by government infrastructure projects needs to be framed. Theaward of compensation in similar situations has been achieved by legislation, policy (specific to projects), and judicial orders," the bench said.
"Looking to a clear trend across all of these modes of compensating affected persons and also considering the expansion of infrastructure and its impact on local communities, there must be a consideration by the executive in the state to frame a comprehensive policy for award of compensation to persons whose customary rights of occupation and livelihood are affected by the projects," the bench ordered.
The bench further said that when a customary right to carry out an occupation for means of livelihood is affected, then the provisions of right to life as envisaged under the Constitution of India will come into the picture. "This forms the basis of the state’s duty to compensate in such cases," the judges added.
The bench accordingly issued guidelines on how to ascertain if the people claiming to be affected by a project, are having any customary right of occupation nearby the project site.
In determining whether the Project Affected Persons have a customary right, the existence of such a customary right may be determined on the basis of the following criteria: (a) whether the usage has been for a substantial period of time;(b) whether the usage is regular and continuous;(c) whether the usage is certain and not varied; and (d) whether the usage is reasonable.
After this exercise, the bench said, if the state concludes that the affected persons indeed have a customary right to practice a livelihood is being impacted by the project, then the state government or the agency implementing the Public Project should make provisions in the cost of the Public Project to compensate these persons.
Appointing Compensation Committees
For ascertaining the impact on the PAPs the bench said there will be many details that need to be looked into, such as – the exact number of families in a community that need to be compensated; the type of vocation being practiced by the family/person;the type of loss being suffered; the manner of calculating quantum of compensation; the amount of compensation to be paid to each family/person; and various other such questions.
Who will be in such Committees
1. A member from the implementing agency
2. A representative of the Project Affected Persons
3. A representative from the office of the District Collector who exerts control over the land in question
4. A member each from other government agencies that might be relevant to the Public Project, such as MCZMA, Revenue & Forest Department etc.
5. A representative from an independent agency having expertise in the relevant field
6. The representative of the project proponent should ideally not be the Chairman of the Compensation Committee, to avoid any conflict of interest.
Guidelines for the Compensation Committees
For the Public Projects where the state or the implementing agency recognizes and acknowledges a customary right, the Compensation Committee will find it helpful to make the following determinations:
1. Direct impact of the Public Project on the exercise of customary rights and means of livelihood of the Affected Persons. It would be restriction to the access to parts of land or water over which the Affected Persons exercise customary rights to earn a livelihood.
2. Indirect impact of the project on the exercise of customary rights and means of livelihood of the Affected Persons. This includes potential ecological damage caused by the Public Project, loss of biodiversity, change of tidal flows or any other aspects affecting the yield from that land or water (fish catch, quality of timber in the forest etc.), discharge of effluents, pollutants or debris, and the potential of the Project to cause an influx human population, or increase in footfall which might affect the Affected Persons’ practice of their customary rights.
3. In relation to both, direct and indirect impact, whether the impactwould be of a permanent or a temporary nature;
4. The income derived by such affected class on a per capita basis, or any other relevant basis, from the exercise of such customary right for a specified period of time;
5. If the impact is permanent and substantial, the ability or the potentialof such affected persons to be rehabilitated in any other occupation or vocation for the future;
6. Looking to the factors above, a formula should be applied – which for obvious reasons can never be mathematically precise – for determining the amount of compensation to be paid to the Affected Persons;
7. The proof, documentary or by way of sworn affidavit, to be requiredfrom individuals to demonstrate that they belong to the affected class or community.
Quantum of Compensation
The bench has said that one way of calculating the quantum of compensation would be by assigning a monetary value to each type of loss described above, determining what type of loss a family/person has suffered, and then compensating the family/person on the basis of the figure arrived at.