LAW MANTRA THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321 6417)

MERGER AND AMALGAMTION OF BANKING COMPANIES: THE INDIAN
SCENARIO

Introduction
Sustainable development has been the magic word for the environmentalist, social activists etc
in the past few decades. And not without a reason, considering the massive development
projects and the rapid pace at which it is taking place, the ecological balance is at jeopardy lest
the principles of sustainable development are followed.
The concept of sustainable development originated in the realisation that the worlds
environment, its economics and the ways in which it treats its human and animal inhabitants
are all interlinked.
1

It is estimated that there are over 200 definitions of sustainable development. However the
definition offered by the Brundland report is the one in which the concept has become closely
associated-development that meets the needs of the present without comprising the ability of
the future generation to meet their own needs
2

The international community first made a substantial effort to engage with the principle at the
Earth Summit in Rio-de-J aneiro in 1990. The Rio Declaration marked a conceptual
breakthrough in that the natural world was added to the social and economic dimensions of
development to produce the concept of sustainable development.
3
Principle 3 and 4 are the
heart of the Declaration. The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of the present and future generation.
4
.In order to
achieve sustainable development, environmental protection shall constitute an integral part of
the development process and cannot be considered in isolation from it.
5


1
Justine Thorton and Silas Beckwith, Environmental Law 12 ( Sweet and Maxwell,2004)
2
Ibid
3
The Road from Rio: International Environmental Law after earth Summit6JEL 193(1994)
4
Principle 3
5
Principle 4


This article focuses on the coastal environment and the vulnerability that it faces in the absence
of strict regulations for sustaining the developmental activities in those regions. One must
accept that coastal zones are regions not only prone to environmental hazards like tsunami,
earthquakes but also have relevance to rich marine resources which are the mainstay for the
underprivileged fishing community in India. Human activities along Indias coastal areas have
impacted and in some areas heavily damaged coastal and marine ecosystems.
6
The article seeks
to emphasise on the lack of balancing of interests between the need for a safe and healthy
environment along the coast which is not only necessary for the coastal communities living
along the coast but for the general safety of the entire nation and the developmental projects
that are ultimately sanctioned in spite of the new CRZ Notification,2011.
The 1992 Rio declaration introduces several concepts not found in United Nation Convention
on the Law of the Sea including an emphasis on integrated and precautionary approaches of
marine and coastal environment.
7
For the first time the protection of the exclusive economic
zone is linked with sustainable development of coastal areas and sustainable use of marine
resources. "Protection of the oceans, all kinds of seas including enclosed and semi-closed seas,
coastal areas and the protection, rational use and development of their living resources'. It
includes a commitment of nations to sustainable development of coastal areas and the marine
environment under their jurisdiction. It also enjoins states to 'identify marine ecosystems
exhibiting high levels of biodiversity and productivity and other critical habitat areas' and
'provide necessary limitations on use in these areas, through inter alia, designation of protected
areas.'
8
In particular, it states that the priority should be accorded, as appropriate, to: Coastal
reef ecosystems, estuaries, temperate and tropical wetlands including mangroves, sea grass
beds and other spawning and nursery areas.
India is signatory to these documents and has a moral obligation to comply with the norms.
9

Healthy coastal environment is a desire of any country. India has a 7,516 km long coast of
which mainland accounts for 5,400 km and its 4,198 islands are spread across the Andaman
and Nicobar islands and Lakshadweep archipelagos. The coastal zone means coastal waters,

6
V.K. Pillai, Marine Pollution in the Coastal Waters of India, in MARINE
BIODIVERSITY:CONSERVATION AND MANAGEMENT143, 151 (N.G. Menon and C.S.G. Pillai eds,1996)

7
Agenda 21
8
Ibid
9
The Ministry of Environment and Forests, Government of India provides comprehensive information on national
laws, international environmental treaties and declarations signed and/or ratified by India, available at
http://www.moef.nic.in.



wetlands and shore land strongly influenced by marine water. This is the interaction between
the land and sea-nearly 250 million people live within a distance of 50 km from the coast- a
fragile area which needs aggressive forms of protection.
10
But sadly the development measures
have created manifold problems along the coast. Mushrooming housing colonies, sites for
industries, unrestrained tourism endeavor, modernisation of fishing industries, pollution from
municipal wastes and exploitation of industrial resources in areas have also brought about
adverse ecological consequences. Thus coastal pollution universally is an emerging problem.
So far as India is concerned it has already become a serious environmental problem. Besides
direct dumping of waste materials in the sea, discharge through marine outfalls, large volumes
of untreated or semi-treated wastes generated in various land based sources/activities
ultimately find way to the sea.
11

It is to overcome such consequences that every nation puts in place coastal management
regulation for the benefit of the nation as a whole. In 1991, the Ministry of Forest and
Environment issued the CRZ Notification 1991.
12
There have been about twenty-five
amendments to this notification between 1991-2009.
13
. A fresh notification was made on
J anuary 6
th
, 2011 to overcome some issues in the earlier notification.
Coastal Regulation Zone Notification 2011- A brief description
The Central Government declared the following areas as CRZ and imposed with effect from
the date of the notification the following restrictions on the setting up and expansion of
industries, operations or processes and the like in the CRZ,-
(i)the land area from High Tide Line (HTL) to 500mts on the landward side along the sea
front.
(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek
whichever is less on the landward side along the tidal influenced water bodies that are
connected to the sea and the distance up to which development along such tidal influenced
water bodies is to be regulated shall be governed by the distance up to which the tidal effects

10
Prof M.S Swaminathan Report,(Ministry of Environment and Forests,2005)

11
,.Leelakrishnan, Environmental Law-Case Book 151( Lexis Nexis Butterworths, 2004)
12
The notification was issued under the S3 of the Environmental Protection Act,1986 ON February 19,1991)
13
Ashoo Gupta,Coastal Regulation Zone Notification 2011-An Evaluation available at www.business-
standard.com/article/economy-policycoastal-regulation-notification-2011


are experienced.
14
.The distance up to which tidal effects are experienced shall be clearly
identified and demarcated accordingly in the Coastal Zone Management Plans (CZMPs).
15

(iii) the land area falling between the hazard line and 500mts from HTL on the landward
side,in case of seafront and between the hazard line and 100mts line in case of tidal influenced
water body the word hazard line denotes the line demarcated by Ministry of Environment and
Forests through the Survey of India taking into account tides, waves, sea level rise and
shoreline changes.
(iv) land area between HTL and Low Tide Line(LTL) which will be termed as the intertidal
zone.
(v) the water and the bed area between the LTL to the territorial water limit (12 Nm) in case of
sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of
the bank, of tidal influenced water bodies.
Several activities are banned within the CRZ and several others regulated . Setting up of new
industries and expansion of existing industries have been banned except,- those directly related
to waterfront or directly needing foreshore facilities ;projects of Department of Atomic Energy;
facilities for generating power by non-conventional energy sources and setting up of
desalination plants in the areas not classified as CRZ-I(i) based on an impact assessment study
including social impacts; development of green field Airport already permitted only at Navi
Mumbai; reconstruction, repair works of dwelling units of local communities including fishers
in accordance with local town and country planning regulations. While in the earlier
notification the exception was limited to those activities which required access to water front,
four other exceptions have been incorporated through this notification.
Other activities that have been prohibited under the new notification includes manufacture or
handling oil storage or disposal of hazardous substance as specified in the notification of
Ministry of Environment and Forests,
16
with certain exceptions.
17
.The other activities being
setting up and expansion of fish processing units including warehousing except hatchery and

14
This shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the
driest period of the year.
15
Explanation.- For the purposes of this sub-paragraph the expression tidal influenced water bodies means the
water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds
connected to the sea or creeks and the like.
16
No. S.O.594 (E), dated the 28th July 1989, S.O.No.966(E), dated the 27th November, 1989 and GSR 1037 (E),
dated the December ,1989
17
Exceptions have been mentioned in section 3(ii)(a) and (b)


natural fish drying in permitted areas,
18
, Land reclamation, bunding or disturbing the natural
course of seawater,
19
, setting up and expansion of units or mechanism for disposal of wastes
and effluents with exceptions, discharge of untreated waste and effluents from industries, cities
or towns and other human settlements, dumping of city or town wastes including construction
debris, industrial solid wastes, fly ash for the purpose of land filling and the like and the
concerned authority shall implement schemes for phasing out any existing practice, if any, port
and harbour projects in high eroding stretches of the coast, except those projects classified as
strategic and defense related in terms of EIA notification, 2006, reclamation for commercial
purposes such as shopping and housing complexes, hotels and entertainment activities, mining
of sand, rocks and other sub-strata materials with exceptions, Drawl of groundwater and
construction related thereto, within 200mts of HTL; excepting the areas which are inhabited by
the local communities and only for their use.

In the area between 200mts-500mts zone the drawl of groundwater was to be permitted only
when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries
and where no other source of water is available, Construction activities in CRZ-I except those
specified in section 8 of this notification, Dressing or altering the sand dunes, hills, natural
features including landscape changes for beautification, recreation and other such purpose
,facilities required for patrolling and vigilance activities of marine/coastal police stations.

In essence its mandate is to protect the natural habitat, ensure species proliferation and thus
support sustainable livelihoods of traditional coastal communities.
For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area
has been classified as follows:
20

CRZ-I,
A. The areas that are ecologically sensitive and the geomorphological features which play a
role in the maintaining the integrity of the coast,-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50 meters along
the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;

18
Section 3 (iii)
19
here also several exceptions have been made-Section3 (iv) a to d
20
Section 7


(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other
protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the
Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection)Act, 1986 (29 of
1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds;
(j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites.

B. The area between Low Tide Line and High Tide Line;

CRZ-II,-
The areas that have been developed upto or close to the shoreline.
21


CRZ-III,-
Areas that are relatively undisturbed and those do not belong to either CRZ-I or II which
include coastal zone in the rural areas (developed and undeveloped) and also areas within
municipal limits or in other legally designated urban areas, which are not substantially built up.

CRZ-IV,-
A. the water area from the Low Tide Line to twelve nautical miles on the seaward side;
B. shall include the water area of the tidal influenced water body from the mouth of the water
body at the sea upto the influence of tide which is measured as five parts per thousand during
the driest season of the year.

CRZ IV has been changed from 1991 notification which covered coastal stretches in the
islands of Andaman and Nicobar and Lakshwadeep. The Ministry of Environment and Forests
has issued a separate notification titled Island protection Zone 2011 in relation to these areas.


21
Explanation.- For the purposes of the expression developed area is referred to as that area within the existing
municipal limits or in other existing legally designated urban areas which are substantially built-up and has been
provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage
mains)



Some highlights of the Notification

A new category called areas requiring special consideration has been created
22
which consists
of CRZ area falling within municipal limits of Greater Mumbai; the CRZ areas of Kerala
including the backwaters and backwater islands and CRZ areas of Goa. Also Critically
Vulnerable Coastal Areas (CVCA) such as Sunderbans region of West Bengal and other
ecologically sensitive areas identified as under Environment (Protection) Act,1986 and
managed with the involvement of coastal communities including fisher folk

Clearance for obtaining CRZ approval has been made time bound.
23
There is also a
requirement for post clearance monitoring of project. It has been made mandatory for the
project proponent to submit half-yearly compliance reports in respect of the stipulated terms
and conditions of the environmental clearance in hard and soft copies to the regulatory
authority(s) concerned, on 1st J une and 31st December of each calendar year and all such
compliance reports submitted by the project proponent shall be published in public domain and
its copies shall be given to any person on application to the concerned CZMA.
24


In Great Mumbai, the redevelopment of approximately 1.46 existing slums in CRZ areas has
been permitted provided that the stake of the State Government or its agencies in these projects
is not less than 51%. Redevelopment and reconstruction of old, dilapidated and unsafe building
in the CRZ II area has also been permitted.
25
Also the floor space index and floor area ratio
prevailing in Town and Country Planning Registration as on date of project being sanctioned
will apply. In order to ensure that redevelopment of slums and dilapidated structures in
Mumbai are done in the most transparent manner, the right to Information Act 2005 will be
applicable and auditing will be done by the Comptroller and Auditor General of India.

The main change in the scope of the regulation from the previous one has been to expand the
CRZ
26
to include territorial water as a protected zone. The concept of hazard line has been
introduced where the notification merely states that the hazard line will be demarcated by
Ministry of Environment and Forests through Survey of India, taking into account tides, waves,

22
Section 7(v)
23
All projects attracting this notification shall be considered for CRZ clearance within a period of sixty days from
date of receipt of complete application.
24
Section 4.2(v)
25
Section 8(v)
26
Section 1(iii).


sea level rise and shoreline changes. The stated purpose of demarcating such a hazard line is to
protect life and property of coastal communities and infrastructure in coastal areas.
The notification also takes note of the problem of erosion in coastal areas due to human
interventions, and proposes to classify the coastline into high eroding, medium eroding
and low or stable stretches. Ports and harbour projects, with the exception of projects for
strategic and defence-related purposes, will not be permissible in high eroding areas, while
comprehensive environmental impact assessment (EIA) reports with cumulative studies will be
required for projects in stretches classified as low- and medium-eroding.
All in all the notification certainly seems to be an improvement on the earlier regulations.

Apart from the Coastal Regulation Zone Notification, 2011, there are many legislations
relating to coastal activities. Important ones are Indian Fisheries Act,1897, Indian Ports
Act,1902, Merchant Shipping Act 1974, Wildlife protection Act 1972, Water Act, 1974, Air
Act 1981, Indian Coast Guards Act 1974 and Maritime Zones of India (Regulation of Fishing
by Foreign Vessels) Act 1981 and Environmental Protection Act,1986, Petroleum Act 1934,
National Environmental Tribunal Act 1995, Hazardous Wastes (Managing and Handling
)Rules 1989.In addition India has signed and ratified several International Conventions relating
to ocean and related activities. Some of these are related to Marine Environment and applicable
to coastal areas also. The important ones are MARPOL 1973/1978, London Dumping
Convention 1972, Convention on Civil Liability for Oil Pollution Damages, 1969 and its
Protocol of 1976 Convention on Biodiversity 1992 etc.
27


Nevertheless ,we find that the main legislation that continue to regulate the CRZ is the 2011
Notification.

The CRZ Notification fails to balance interests

To start it is important to highlight some of the important changes that were brought about by
the notification. In particular we find that while the CRZ 2011 covered coastal shores only on
the land side of the coast, the new notification extends the CRZ zone up to 12 nautical miles
into the sea and the entire water area of tidal bodies such as rivers, creeks and estuaries,
without any restriction on the fishing activities. The shrinking of the no development zone

27
Refer to M.S Swaminathan Report,2005


from 200mts from high tide line to 100 mts is seen as a positive step to help the increasing
housing demands of the fishing and coastal communities. Further the notification also
introduces the participation of local communities in coastal management plans.( Critical
Vulnerable Coastal Areas (CVCA) which includes Sunderbans and other identified ecological
sensitive areas which shall be managed with the involvement of the local coastal communities
including the fisher folk.

The basic idea behind any coastal zone regulation is to facilitate the protection of the
traditional fishing community who are dependent on the coast for their livelihoods ,also protect
the natural resources ,marine resource prohibiting any form of exploitation. Also there need to
be a general awareness to ban any form of pollution which is detrimental to the environment.
Coasts are vulnerable regions susceptible to myriad forms of hazards ,hence their protection is
pertinent to the health of the Coastal State.

However the new notification along with some of its vibrant features also carries with it certain
camouflaged features which can have adverse effects on the coastal communities. The attempt
to de-link the Andaman & Nicobar and Lakshadweep Island from the ambit of CRZ
Notification 2011 is a cause of concern. Separation of the island State will destroy the fragile
economy of these islands and also increase the pressure of livelihoods of local communities.
28

This move of the Ministry of Environment and Forest will legitimise the existing violations
that are rampantly made by the tourist establishments operating in these regions .The Island
protection Zone notification for these regions dilute the regulatory provisions contained in
CRZ IV of the CRZ Notification1991. This is particularly alarming in the context of the
Tsunami tragedy that caused major destruction to life and property along the coast of Andaman
and Nicobar.

The Notification makes it mandatory for certain projects to take separate clearance under
Environment Impact Assessment Notification 2006.
29
.Examples of activities requiring this is-
construction involving more than 20,000sq mts built-up area in CRZ-II, construction activities
relating to projects of Department of Atomic Energy or Defense requirements for which
foreshore facilities are essential such as, slipways, jetties, wharves ,quays; except for classified
operational component of defense projects. Residential buildings, office buildings, hospital

28
http://www.equitabletourism.org/files
29
S.O.1533 (E), dated the 14th September, 2006


complexes, workshops of strategic and defense projects etc.
30
.The notification does not take
into consideration the inherent problems in the existing EIA notification 2006. One important
lacuna in the EIA is its ignorance of social impact assessment of the projects

On one hand it was found difficult to undertake housing schemes for fishermen in the coastal
areas, but at the same time the Act was lenient towards the tourism sector and big resorts
coming up in coastal areas without hindrance.
31
Torism continues to be allowed in vacant plots
between 200 and 500 mts in CRZ III area,. This provision has been misused by allowing
tourism establishments by converting common property resources and agricultural land.
32
The
notification continues to allow activities that are not directly related to the waterfront or which
need foreshore facilities,such as atomic and nuclear power plants and the green field airport at
Navi Mumbai. And it sidelines the inalienable right of the fishing community to their habitats.

Another paradox that we can see is the major liberalization of principles in the case of Greater
Mumbai. The floor space index (FSI) applicable for redevelopment of slums and dilapidated
buildings that fall in the regulated area has been increased thus allowing high rise building to
replace the existing low rise dwellings. Koliwadas once the residential villages of traditional
fishermen would also see construction activity as the more liberal CRZ-III norms will apply
compared to the earlier CRZ-II.
33
The environmentalists and fishing community groups, on the
other hand, feared that allowing for redevelopment of slums illegally located within the CRZ
and providing a higher FSI for the purpose, would not only set a bad precedent, but would also
be used by the private builder lobby to promote massive projects on prime coastal lands. These
projects would ultimately end up in the hands of people other than slum dwellers. The fishing
community groups were particularly concerned that if their koliwadas were clubbed together

30
Construction, operation of lighthouses; laying of pipelines, conveying systems, transmission line; exploration
and extraction of oil and natural gas and all associated activities and facilities; Foreshore requiring facilities for
transport of raw materials, facilities for intake of cooling water and outfall for discharge of treated wastewater or
cooling water fromthermal power plants; Mining of rare minerals as listed by the Department of Atomic Energy;
Facilities for generating power by non-conventional energy resources, desalination plants and weather radars;
Demolition and reconstruction of (a) buildings of archaeological and historical importance, (ii)heritage buildings;
and buildings under public use which means buildings such as for the purposes of worship, education, medical
care and cultural activities
31
http://article.economictimes.indiatimes.com
32
Analysis of Coastal Regulation Zone 2011 available at www.scribd.com
33
Kasturi Kannan, Coastal Regulations-Exigent, not principled ,at http://indiatogether.org/crz-environment


with slums for redevelopment, they would end up losing their rights to their traditional lands to
the powerful real estate lobby.
34

Thus the new Notification fails to balance the interests of the environmentalist and the fishing
community with that of the developmental activities permitted to be undertaken along the
coast. Hence there is no sustainable development. This can be hazardous to the future of
coastal environment and those dependent on it for their habitat and livelihood.



Suggestions
There is a lack of clarity and the use of vague terms makes it difficult for a lay man to
understand the law.

There is a need to close the loopholes allowing for activities that actually do not need
the shorefront or else the coast will continue to be threatened by developmental
activities unsuitable to its environment.

Violation made under the 1991 notification must be identified and dealt with stringently
Violations continue to take place rampantly. In the coastal state of Goa, several recent
news reports stated that the High Court has issued orders for the demolition of
thousands of illegal structures that were constructed in violation of the CRZ
Notification as identified by the State government.
35


At present there are no restrictions for expansion of housing for rural communities in
CRZ III .This should be changed and restrictions must be put in place.


34
Chandrika Sharma ,CRZ Notification 2011:Not the End of the Road, EPW, (Feb12th) at
www.indiawaterportal.org
35
5-star Hotels Within CRZ Will Go, HERALD REPORTER, 4 November 2010, HERALD REPORTER, CRZ
Violation: 30 Structures Served Demolition Notices at Agonda, 26 November 2009, G. Dsouza,Court Reins in
Goa Coast Violations, DOWN TO EARTH, 15 August 2010 page 20, available at
www.downtoearth.org.in/node/1651



By adding activities which do not require the waterfront, the coast will be threatened by
developmental activities unsuitable to the coastal environment. A re-thinking is needed
on this aspect.

The existing EIA 2006 amended till 2009 does not require all projects to undergo
mandatory EIA and public hearings and does not address the issue of social impacts. It
is first and foremost necessary to amend the EIA 2006 and environment and social
impact assessment should be made compulsory for any developmental activity along
with public review process.

There is a need for a clear and comprehensive law which takes into consideration the
needs of the fishing communities and the environmentalist

By:- Dr Sheeba Pillai, Assistant Professor. School of Indian Legal Thought, Mahatma
Gandhi University, Kottayam