Recently, the Hon’ble Bombay High Court has directed the State government to formulate a state-wide policy for those communities whose customary rights to carry out an activity get influenced by Governmental infrastructure projects.
A Bench consisting of Justice SJ Kathawalla and Justice Millind Jadhav stated that the compensation of fisherfolk and any other community whose customary rights were affected by government infrastructure projects need to be framed.
The court further observed that, if the customary rights to carry out an occupation are affected, it is the infringement of Article 21 and therefore it’s the duty of the State to compensate for the same.
A plea was filed by Mariyayi Macchimaar Sahkari Sanstha Maryadit (society of traditional fisherman community) stated that the construction of the Thane Creek Bridge project has caused loss of livelihood to fishermen and therefore they sought compensatory relief.
Though the court allowed the project to continue, it has sought compliance after six weeks on both, framing statewide policy and determination of compensation for the fisherman affected by Thane Creek Bridge Project III.
The implementing agency Maharashtra State Road Development Corporation (MSRDC) Ltd claimed that the project was undertaken in the public interest and also claimed that possible impact on the biodiversity in the region could not be denied.
It was recommended by the court that for the continuation of the project, a broad framework for the government to be considered while framing a “comprehensive compensation policy.”
Senior counsel Sharan Jagtiani, appointed by the court as Amicus Curiae (friend of the court) to assist the court, said that information reveals that the fishing community has a customary right to fish in the Thane Creek, hence they should be entitled to compensation.
The Hon’ble High Court framed four issues and through that, he concluded the Thane Creek fishing community has a customary right.
After the documents, Acts, various judgments, and applying a four-pronged test of what forms were examined by HC a customary said “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.’’