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Supreme Court stays Bombay HC order on compensation to fishermen families

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The Supreme Court on Wednesday stayed the Bombay High Court order, directing interim compensation of Rs 10 crore to be paid to the families of fishermen, whose livelihood has been affected due to the ongoing construction of the third Thane creek bridge near Vash.

A Bench comprising Justice M.R. Shah and Justice B.V. Nagarathna stayed the the High Court verdict, which had directed the Registrar, Judicial to pay Rs 10 crore deposited by the Maharashtra State Road Development Corporation Ltd (MSRDC) to the Mariyayi Machhimaar Sahkari Sansthya Maryadit within two weeks from the order dated March 23, 2022, which shall be distributed to the members in the sum of Rs one lakh per family of fishermen.

On February 26, 2022, the High Court had noted that the determination of the exact amount payable as compensation to the affected fishermen was likely to take time, but as an interim measure, their families should be provided an interim compensation of Rs one lakh to every affected fisherman by MSRDC and have directed that a sum of Rs 10 crore be deposited in Court towards the said interim compensation.

Respondent No 1/Mariyayi Machhimaar Sahkari Sansthya Maryadit (MMSSM) had moved the High Court, seeking direction against petitioner MSRDC to provide appropriate compensation to the Project Affected Fishermen for loss of mangroves, mudflats and creeklets on account of construction of TCB III, all of which qualitatively and quantitatively impact on their means of livelihood through fishing; and a direction against the Respondents to frame a compensation scheme to protect socio-ecological interests of traditional fishermen in the state of Maharashtra on account of reclamation/damage/destruction of fishing areas for infrastructure projects.

The High Court had framed various issues for determination & dealt with them accordingly:-

(i) Whether the Petitioner can prove that the Project Affected Fishermen have a customary right to fish for a living in Thane Creek?

High Court observed that

a. The Project Affected Fishermen 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;

b. Various documents have recorded from time to time that the Project Affected Fishermen have inhabited Thane creek, and practiced fishing thereon. Therefore it is also regular and continuous

c. The Project Affected Fishermen’s use of the creek has uniformly been for the purpose of fishing, thereby making the usage certain and not varied;

d. 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. It is not even the case of Respondent No. 8 or the Petitioner & Respondent No. 2 that the activity of fishing carried out by the fisherfolk is unreasonable.

➢ Therefore, following establish with sufficient clarity that the Project Affected Fishermen have a customary right to do fishing for a living in Thane creek.

(Most importantly, the Affidavits in Reply of Petitioner (herein) also appears to accept this position.)

(ii) Whether TCB III is likely to detrimentally impact the practice of such customary rights?

High Court was of the view that TCB III is likely to impact the Project Affected Fishermen’s customary right to fish for a living, and therefore answer Issue (ii) in the affirmative.

(iii) Whether a state-wide policy for all categories of persons whose customary rights are affected by infrastructure projects is required? If yes, what is the framework for such a policy that can be recommended to the appropriate authorities?

High Court was of the view that a state-wide compensation policy for communities affected by government infrastructure projects needs to be framed.

High Court discussed the framework of MTHL Compensation Policy to illustrate how the policy framework can and has been implemented in an infrastructure project. It is in the same manner that it should be adopted for other projects going forward. And additionally a grievance redressal mechanism may be considered by the appropriate authorities while framing a compensation policy.

And further directed Petitioner to frame such a policy though not bound in regards to context of MTHL Compensation Policy.

(iv) If the answer to Issue (i), Issue (ii) and Issue (iii) is yes, what should be the contours of a policy compensating those affected by TCB III? ”

Petitioner recommended Constitution of a “TCB Compensation Committee to determine the type of loss that each of the Project Affected Fishermen will encounter as a result of construction of TCB III, as well as the amount of compensation due to each Project Affected Fisherman. Respondent No. 1 & 8 has recommended which members should be made to be a part of the TCB Compensation Committee.

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