Amit Maru vs MoEF & Ors.

The Applicant alleges inaction on the part of the Environment Department, Government of Maharashtra, on his complaint dated 23.10.2013 pointing out massive construction raised by M/s. Windsor Reality Pvt. Limited, the Respondent No. 9, in Andheri West, Oshiwara, Mumbai, without obtaining statutory permission of the Maharashtra Coastal Zone Management Authority (MCZMA). It is stated that the land on which the construction has been done falls within CRZ-I area, i.e., between the High Tide Line and the Low Tide Line, as per the statutory Coastal Zone Management Plan (CZMP) prepared for the city of Mumbai. This building construction is stated to be located on plot bearing CTS No. 1A/1/B/4, 1A/1/B/5 and 1A/1/B/7 in village Goregaon, Mumbai.

It is contended that as per the Costal Regulation Zone (CRZ) Notification, 1991 (which was the Notification relevant during that period) only limited nature of construction such as those related to port based activities could be done in a CRZ-I area. No permission for construction of residential and commercial buildings could be permitted.

It is the case of the Applicant that despite such stringent restriction, permission was granted by the Municipal Corporation of Greater Mumbai (MCGM) to the Respondent No. 9 to raise the construction in the area. The Applicant asserts that the area falls within the CRZ-I area as per the statutory CZMP prepared for the city of Mumbai.

It is further contended that even if the area falls within the CRZ-II, no such permission could have been accorded as construction could be permitted only if there was no existing building or authorised road between the edge of the creek and the proposed construction. Referring to the provisions of the CRZ Notification, 1991 and the clarifications to the CZMP of Maharashtra, it was inter alia contended that no construction could be permitted on the seaward side of the existing roads nor on the seaward side to the existing authorized structures until those areas had been examined by the Chief Secretary, Maharashtra to determine the CRZ-II for categorization of such areas and acknowledged by the Ministry of Environment, Forests and Climate Change (MoEF&CC) as having been taken on record. Referring to para 3 of the letter dated 08.09.1998 issued by the MoEF&CC, it was contended that the phrase "Existing Authorized Buildings" would mean those buildings of a permanent nature that were existing prior to 19.02.1991 and constructed in accordance with the building regulations and bye-laws in vogue prior to 19.02.1991 with requisite sanctions, including commencement and occupation certificates from the concerned local authority prior to 19.02.1991. Further the construction of buildings, including expansion and reconstruction proposed should be in accordance with the FSI/FAR norms and all other Town & Country Planning regulations. Summarising the provisions of the CRZ Notification and the clarificatory letter of the MoEF dated 08.09.1991, it is contended that in order to be permissible for utilization of such land for development, it was necessary for authorized building to be in existence as on 19.02.1991 adjacent thereto or a road towards the seaward side of the proposed building. According to the Applicant both these features were absent in respect of land upon which the construction was being undertaken by the Respondent No. 9.

The MoEF&CC, the Respondent No. 1, has not alluded to the various contentions raised by the Applicant except to set out the relevant provisions of the CRZ Notifications, 1991 and 2011 and, therefore, do not find it to be of much assistance.

In their joint affidavit, Respondent Nos. 3 and 4, i.e., the Secretary, Environment Department, Government of Maharashtra and the Member Secretary, MCZMA, it has been conceded that the Applicant had sent a complaint vide letter dated 23.10.2013 to the MCZMA regarding the alleged construction of building in the area without Environmental Clearance (EC) apart from the fact that the site falls in the CRZ-I area, where no construction was permissible. This led to the MCZMA writing to the Municipal Commissioner, MCZM and District Collector and Chairman, District Coastal Zone Monitoring Committee, Mumbai Suburban on 06.12.2013. In response the MCGM vide its letter dated 29.01.2014 had intimated that the developer/architect of the project had been directed to stop the work immediately and to submit an explanation regarding the matter. It appears that a complaint was also filed against the Respondent No. 9 with the Metropolitan Magistrate, Andheri on 25.03.2010 that was registered as criminal case no. 159/SW/2014 which was stated to be still pending as on 11.05.2014, i.e., the date on which Respondent Nos. 3 and 4 had filed their joint affidavit.

Respondent Nos. 5 and 6, the Regional Director, Central Ground Water Board, Nagpur and the Central Ground Water Board, Pune, who also filed a joint affidavit have not stated anything of substance with regard to the question in dispute except that the project proponent had not obtained prior permission of the CGWA for dewatering of groundwater before construction of the basement.

The MCGM, Respondent No. 8 in its reply has denied all material allegations contained in the original application stating categorically that the disputed plot does not fall within CRZ-I area. As per the CZMP prepared by the State Government vide its letter dated 19.01.2000, the disputed plot is shown as being in CRZ-II area but, as per the Development Control Rules prevailing on 19.02.1991, granting of building permission comprising of residential as well as commercial, was permissible in such area. The MoEF&CC had also communicated vide letter dated 06.04.2000 to the Urban Development Department, Mantralaya, Bombay, that the HTL demarcated by the Chief Hydrographer, Government of India, be taken into consideration by the State Government while considering the proposal for issue of No Objection Certificate (NOC) for development of the disputed plot. It is further contended that the building permission relating to the disputed plot had been granted as per the recommendation of the MoEF&CC and permission granted by the State Government and that NOC from MCZMA was not necessary prior to the granting of the building permission by the Respondent. It is further stated that the construction being carried out as per the building permission granted by the Respondent No. 8, was beyond CRZ-I & II area.

The project proponent, Respondent No. 9, reiterating the stand of the Respondent No. 8, the MCGM, has pleaded that the area where the construction has been carried out neither falls in CRZ-I nor in CRZ-II and, therefore, did not attract the provisions of the CRZ Notification. As regards the grant of prior EC is concerned, it is stated that such requirement for building construction and some other activities was added in the EIA Notification, 1994 by way of an amendment to the Notification dated 07.07.2004 by which time the Respondent No. 9 had already received Commencement Certificate in the year 2001 for both the residential and commercial phases. On the request of the Respondent No. 9, the Respondent No. 7 had also clarified that the project may not attract the provision of the EIA Notification dated 07.07.2004. It is contended that although the Respondent No. 9 was exempted from the necessity of obtaining EC, yet by way of abundant caution and without prejudice, application was made for an EC to the Respondent No. 4, MCZMA which in turn recommended the project for EC to the State Environment Impact Assessment Authority (SEIAA), Maharashtra from the CRZ point of view. It is contended that the State Level Expert Appraisal Committee-2 (SEAC-II) after deliberating the matter in its meeting held on 3rd-5th, March, 2016, recommended the project for grant of EC. SEIAA in its turn granted the EC after detailed appraisal subject to compliance of the terms and conditions contained in the EC.

In their oral arguments, the Learned Counsel for the Applicant and the Respondent No. 9, the project proponent, reiterated their contentions raised in their affidavits and, therefore, need not be dealt with for the sake of brevity.

Upon hearing the Learned Counsel for the parties, examination of the averments contained in the various affidavits filed on behalf of the parties and on careful consideration of all the documents referred to by them, we find that the principal question that requires determination in this case is as to whether the area in question falls under CRZ-I or CRZ-II area prepared for the MCGM.

As per Coastal Area Classification and Development Regulations prescribed under Annexure-I to the MoEF&CC Notification, 1991 Category I (CRZ-I) and Category II (CRZ-II) are described as follows:

"Category I (CRZ-I):

(i) Areas that are ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historical/heritage areas, areas rich in genetic-diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.

(ii) Area between the Low Tide Line and the High Tide Line.

Category-II (CRZ-II):

The areas that have already been developed upto or close to the shoreline. For this purpose, "developed area" is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewerage mains."

The MCGM in its affidavit has unambiguously stated that the disputed area falls outside the purview of both the CRZ-I & CRZ-II. This being the stand of the authority directly responsible for maintenance of CRZ areas, it deserves due weightage. Although the Applicant imputes malafide on the part of the authorities in suppressing that the land fell under CRZ-I area, no material has been produced to even remotely suggest that any fraud had been played upon by any of the authorities. Mr. Aditya Prasad, Learned Counsel for the Applicant drew our attention to a Google Earth Image relevant to the area taken in the year 2002 to show that it was vacant when the image was taken and that it fell towards the seaward side and within the CRZ-I area. He then referred to a Google Image of the present time to substantiate that massive structures had been raised in the area in question which according to him clearly established the fact that the provisions of the CRZ Notification had been violated. However, a close examination of the first Google Image (of the year 2002) shows that there were a large number of existing structures surrounding the site in question which also find place in the 2nd Google Image of the later period.

Further, even in the notes of the concerned authorities of the MCGM which was signed by the Dy. Ch. E.D.P. on 08.01.20071 in respect of utilization of development rights pertaining to the area in question, we find following observations amongst various others:

"Whether the land is within the 500mt. of CRZ2

The receiving plot marked 'B' on the plan is partly situated in Coastal Regulation Zone, CRZ I & II, D.P. remarks may please be seen. However, TDR is restricted for the non CRZ area only.

The area of the plot falling under CRZ-I & CRZ-II as per the area statement submitted by the Architect is 640.00 sq.mt. & 3957.00 sq.mt. the net plot area for utilization of TDR has therefore been restricted after deducting the area falling CRZ-I & CRZ-II. Further, no construction has been proposed at present on the portion of plot affected by CRZ. Hence utilization has been accordingly permitted."

[underlining supplied]

Considering these materials and the categorical stand taken by the MCGM, we cannot but hold that the area does not fall either within CRZ-I or CRZ-II.

Even when we consider the area in light of CRZ-II, the norms laid down for regulation and development of construction activities in coastal area3 provides as under:

"CRZ-II

(i) Buildings shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio:

Provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads approved in the Coastal Zone Management Plan) which are constructed on the seaward side of an existing road.

(ii) Reconstruction of the authorised buildings to be permitted subject to the existing FSI/FAR norms and without change in the existing use.

(iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style."

When we examine this aspect in light of the two Google Images referred to earlier, we find that in the year 20024 when it was taken, permanent structures did exist when the area in question was vacant and, the later image5 taken of the area shows the very structures surrounding the now completed structure on the vacant land. It is also nobody's case that the structures which were in existence in the year 2002 were unauthorized.

We have also examined the minutes of the 107th meeting of the MCZMA held on 07.11.2015, wherein, while dealing with the project in question, under Item No. 436 it has been recorded as follows:

"Item No. 43: Proposed development of plot bearing CTS No. 1A/1/B/7A/1, 1A/1/B/7A/2, 1A/1/B/7A/3, 1A/1/B/7A/4, 1A/1/B/4, 1A/1/B/5 and 1A/1/B/8 village Goregaon, Mumbai by M/s. Windsor Grande Residence & Windsor Corporate Park.

Shri Gopal Narang presented the proposal before the Authority in the meeting. The proposal is of development of plot bearing CTS No. 1A/1/B/7A/1, 1A/1/B/7A/2, 1A/1/B/7A/3, 1A/1/B/7A/4, 1A/1/B/4, 1A/1/B/5 and 1A/1/B/8 village Goregaon, Mumbai by M/s. Windsor Realty Pvt. Ltd. the PP presented that the plot under reference abuts nalla on North boundary of the plot, where CRZ belt is prescribed as per approved CZMP. Proposed construction is beyond this CRZ belt, by using captive FSI potential (1.00) of CRZ belt. The matter was earlier deliberated in 102nd meeting of the MCZMA held on 31.7.2015 & 1.8.2015. The PP has submitted the report of IRS, Chennai dated 14.8.2014, as per which, the building plan provided by the PP has been superimposed on CRZ map prepared by IRS. The building line as shown in approved plan after superimposition is found beyond the CRZ belt from the HTL demarcated by the Chief Hydrographer in April, 1991.

After deliberation, the Authority decided to recommend the proposal from CRZ point of view to SEIAA subject to following conditions:

The MCGM should strictly ensure that the construction on the site under reference is Non CRZ area. No construction should be allowed in CRZ portion of the land under reference."

[underlining supplied]

Going back to an earlier period, on 12.10.20007 the Urban Development Department, Mantralaya, Bombay had also written to the project consultant of the Respondent No. 9 in respect of clearance for the proposed development stating inter-alia as under:

"Under the circumstances, I am directed to inform you that, there is no objection to develop the land under reference as per HTL demarked by the Chief Hydrographer in April, 1999 subject to condition that the development shall be as per Development Control Rules prevailing as on 19.02.1991."

[underlining supplied]

The above clearance indisputably appears to be in accord with the MoEF&CC guidelines communicated vide Ministry's letter dated 06.04.2004 referred to earlier.

We have also noted that the project had obtained EC on 28.06.20169 which inter alia refers to the recommendations of the MCZMA in its 107th meeting alluded to earlier. It is undisputed that no appeal has been filed assailing the EC.

For the aforesaid reasons, we find that the primary contention raised by the Applicant that the area in question falls within the CRZ area do not appear to be correct rendering the other contentions of the Applicant redundant.

In the result, this original application stands dismissed.

No order as to cost.