Sonia Raj Sood vs Union of India and Ors

This application seeks quashing of final Coastal Zone Management Plan (CZMP) for Sub-Urban Mumbai to the extent of inclusion of Bandra Fort and its adjoining plots in Coastal Regulation Zone-II (CRZ-II). Particular objection is to inclusion of CTS Nos. B-1153 (part), B-1156, B-1150 and B-1155 in Bandra (West), as said area is within 100 meters of Bandra Fort. Objection is also to inclusion of Plot No. B-899/A Bandra (W) in CRZ-II area and to restore it to CRZ-III, as per State Approved CZMP. Further prayer is to restore the original status of the said area as CRZ-I(A), as indicated in the State Approved Draft CZMP.

According to the applicant, there are 30 to 35 other plots shown in CRZ-II by changing status of CRZ-III. The applicant also seeks depiction of marine life, mangroves, rocks etc. in Bandra Bandstand coast as per the original State Approved CZMP rather than what is shown in the impugned CZMP. The grievance of the applicant is that Bandra Fort is an ancient historical heritage. Hotel Sea Rock in the said area was demolished in the year 2008. 30 to 35 other plots adjoining Bandra Bandstand were proposed to be in 'No Development Zone' on account of High Tide Line (HTL) in the draft CZMP of Sub-Urban Mumbai. However, the Maharashtra State Coastal Zone Management Authority (MSCZMA), in connivance with the lessees of the property, proposed change of the said area to CRZ-II, thereby releasing the area from the restrictions to be observed meant to protect the said area, which is eco sensitive, from the adverse consequences of unsustainable development. The consequence of change of the area to CRZ-II will be threatening the existence of the ancient heritage monument and destruction of environment and natural habitat of flora, fauna, mangroves and marine species in the area.

According to the applicant, the change has been effected by the Ministry of Environment, Forests and Climate Change (MoEF&CC) without application of mind and in violation of 'Precautionary' and 'Sustainable Development' principles. The objections of the applicant are recorded in the notings of the Coastal Officer dated 16.05.2018, but the same have been ignored without any examination.

The matter was earlier considered on 06.03.2019 and having regard to the above averments, the Tribunal constituted a joint Committee comprising representatives of Central Pollution Control Board (CPCB), the National Coastal Zone Management Authority (NCZMA) and the representatives from MoEF&CC, MCZMA and Institute of Remote Sensing, Chennai to examine the objections and give its report for consideration by this Tribunal.

Before proceeding further, it may be mentioned that Coastal areas are highly complex and dynamic eco systems, sensitive to development pressures. To regulate activities in coastal areas, CRZs were notified on 19.2.1991 under section 3(2)(v) of the Environment (Protection) Act, 1986 read with rule 5(3)(d) of the Rules to prevent degradation of ecology of the said zones. The said notification was superseded by notification dated 6.1.2011, known as CRZ, 2011. The scheme of the regulations has been considered by the Hon'ble Supreme Court inter-alia in Indian Council for Enviro Legal Action v. UOI, (1996) 5 SCC 281 and Vaamika Islands v. UOI, (2013) 8 SCC 760. Broadly speaking, in CRZ I, no new constructions are allowed, except those specified. In CRZ II, constructions are allowed subject to specified restrictions. In other zones, there are restrictions on different activities.

In pursuance of order of this Tribunal dated 11.3.2019, the joint Committee gave its report dated 04.04.2019 which was considered by the Tribunal on 13.08.2019. The applicant objected to the report by submitting that although the report indicated that Survey Nos. 1153 and 1155 fell in CRZ-I-B category, being the areas between Low Tide Line (LTL) and High Tide Line (HTL), the NCZMA has approved the plan for a parking lot on Survey No. 1155 for Hotel Sea Rock. Applicant also objected to the location of Bandra Fort shown in the final CZMP which according to her has been found to be superimposed on the Hotel Sea Rock and refers to a 1981-2001 Municipal Corporation of Greater Bombay Sanctioned Development Plan (Sheet No. -W/52), where Bandra Fort has been shown distinctly as falling in the CRZ-I area.

In view of above objections, response was sought thereto from the same Committee. Such response has been filed on 10.10.2019. The applicant is still not satisfied with the response.

Before considering the objections of the applicant, we may refer to the summary of findings in the report of the joint Committee dated 04.04.2019 as follows:

"4. Summary of findings of the Joint Committees

a) The data on all "Areas or structures of archaeological importance and heritage sites" were provided by the Archeological of India (ASI) for the coastal areas of the entire country, including Mumbai and Maharashtra and the corresponding ESA/CRZ IA areas have been demarcated by the National Centre for Sustainable Coastal management (NCSCM), Ministry of Environment, Forest & Climate Change, Chennai. The CRZ IA area marked at the Bandra Fort site (South West corner of the Google Image (Fig. 1)) in green colour in the final approved CZMP is not very clear/prominent due to the scale limitations of:25,000 scale and due to other prominent colours being present at the same location in the map. The Joint Committee recommends that the name "Bandra Fort" should be indicated in the map by a label, for a better cartographic representation.

b) As on the date of the CRZ Notification, 1991, the Sea Rock Hotel stood as an authorized structure. Thus, sea rock hotel site has been correctly shown in the final approved CZMP as CRZ II. Also there is no provision in the CRZ Notification 2011 to categorize areas within 100 m of Archeological sites as ESA/CRZ IA. Thus, only the actual area or the structure of the Archeological site (Bandra Fort) should be CRZ IA and not areas within 100 m of the Archeological sites. Definitions of prohibited and regulated areas within 100 m and 200 m of Ancient Monuments and Archeological Sites have been dealt separately in the Ancient Monuments and Archeological sites and Remains Act, 1958.

c) Para 8 V1(iii)(e) of page 14 of CRZ Notification 2011 states, "In order to protect and preserve the 'green lung' of the Greater Mumbai area, all open spaces, parks, gardens, playgrounds indicated in development plans within CRZ II shall be categorized as CRZ III, that is, 'no development zone". This data layer consisting of open spaces, parks gardens, playgrounds indicated in development plans within CRZ II areas in Greater Mumbai was depicted in the published draft CZMP as CRZ III, but is not shown in the approved CZMP as the same has to be read in conjunction with the Development Plan in view of the provisions as stated above.

However, the joint Committee is of the opinion that provisions contained in this regard in the CRZ Notification 2011 should be strictly followed and as given in para 8 V1(iii)(e) of page 14 of the CRZ Notification 2011, all open spaces, parks, gardens, playgrounds indicated in development plans within CRZ II to be shown as CRZ III, that is, 'no development zone' (NDZ) in the CZMP for Greater Mumbai.

However, there are certain limitations of the mapping scale on 1:25,000 scale to show the correct boundaries of CRZ III comprising of open spaces etc. and the same is recommended to be shown in 1:4000 scale local level CZMP at local level planning stage. Further, this additional information layer (CRZ III pockets in CRZ II belt of Greater Mumbai) can be put in CZMP approved by MoEF&CC in 1:25000 scale for better understanding in order to avoid any confusion for reading CZMP.

d) The green patches (northern side of CTS No. 1155) shown in Bandra Area in CRZ IA category in the final map are mangroves. As per Para 7(i)A(a) of CRZ Notification 2011 Mangrove areas which are more than 1000 sq. m in area are to be provided with 50 m buffer. Even small patches of Mangroves have also been depicted in the final CZMP subject to the limitations of the scale of 1:25000. More details need to be mapped, which are to be carried out on 1:4000 scale as per the CRZ Notification 2011.

e) All areas between the HTL and LTL which are Inter-Tidal have been correctly marked in the final approved CZMP as CRZ IB which is a no-go area for many development activities.

f) Within the limit of Municipal Corporation, all CRZ area in Mumbai city, other than CRZ IA, CRZ IB, CRZ III/NDZ (open areas within Greater Mumbai) and CRZ IV, will be CRZ II.

g) Annexure I Para V 1 and 2 of the CRZ Notification 2011, already contains a provision and a procedure outlined for rectification/revision/verification of the CZMP and the corresponding clauses are reproduced below:

"V. Revision of Coastal Zone Management Plans

Whether there is a doubt the concerned State of Union Territory Coastal Zone Management Authority shall refer the matter to the National Centre for Sustainable Coastal Management who shall verify the CZMP based on latest satellite imagery and ground truthing.

The rectified map would be submitted to MoEF for its record."

We may now refer to the second report dated 10.10.2019 as follows:

"2. Issue before the Committee

The Committee considered the following issues for deliberations and for submitting the report to the Hon'ble NGT, based on

• Issues raised by the Applicant in her written submissions and

• Issues mentioned in the Hon'ble NGT order dated 13.08.2019 and I.A. 92/2019 and additional affidavit dated 08.04.2019 in OA No. 89/2018 of the applicant.

Issues raised as mentioned in Hon'ble NGT order, are as follows:

Preparation of map/plan in 1:4000 scale in order to allay apprehensions on part of the applicant.

As per applicant's contention, Survey Nos. 1153 and 1155 falls in CRZ-IB category being the areas between Low Tide Line (LTL) & High Tide Line (HTL), and the NCZMA has approved the plan for a parking lot on Survey No. 1155 for Hotel Sea Rock.

As per applicant's contention, location of Bandra Fort shown in the final CZMP found to be superimposed on the Hotel Sea Rock refers to a 1981-2001 Municipal Corporation of Greater Bombay Sanctioned Development Plan (Sheet No. W/52) where Bandra Fort has been shown distinctly as falling in the CRZ-1 area.

The Joint Committee went into the above issues and replies are as follows:

2.1. With respect to above said point 1:

As per the provisions of the CRZ Notification, 2011, the MoEF&CC, New Delhi has approved the CZMP of the Bandra area. Based on the said approved CZMP, the NCSCM, Chennai has prepared plan/map in 1:4000 scale as per the order of the Hon'ble NGT Principal Bench, New Delhi dated 13/08/2019. In addition the open space/garden/parks etc. as indicated the DP, as mentioned in the CRZ Notification, 2011 has been incorporated for better understanding. State approved draft CZMP had a brief note in this respect. A copy of the above said 1:4000 scale plan/map is attached herewith as Annexure-2.

2.2. With respect to point no. 2:

The map/plan prepared on 1:4000 scale (Annexure-2) clearly shows that major part of the CTS 1155 falls in CRZ-II and the remaining minor part falls in CRZ IB area. Also, a small part of CTS No. 1153 falls under CRZ II and the rest falls in CRZ IB. Plots bearing CTS Nos. 1150 and 1156 fall in CRZ II. This has also been observed by the Joint Committee during the site visit on 20/09/2019.

As per the EC&CRZ clearance issued by the MoEF vide its letter No. 11-128/2008-IA III dated 17.03.2009, "the CTS B/1150, B/1156, B/1155 and B/1153 (pt) are in Coastal Regulation Zone-II area and on seaward side of the existing road. As per the zoning remarks of MCGM, the existing structures of the sea rock hotel is in Coastal Regulation Zone-II i.e. on CTS No. B/1150, B/1156, B/1155 and B/1153 (pt). No construction is proposed on the plot which is in Coastal Regulation Zone-I (ii) i.e. CTS No. B/1153 (pt). Existing protection wall which was constructed prior to 1991 to reduce the erosion of hotel building also separates area between Coastal Regulation Zone I and Coastal Regulation Zone II and coincide with the High Tide Line" (HTL). It is also to state that the said EC&CRZ clearance clearly mentions that the parking structures are permitted as a part of the main building. The map/plan prepared on 1:4000 scale (Annexure-2) clearly shows that major part of the CTS 1155 falls in CRZ-II and the remaining minor part falls in CRZ IB area. Also, a small part of CTS No. 1153 falls under CRZ II and the rest falls in CRZ IB. Plots bearing CTS Nos. 1150 and 1156 fall in CRZ II. As on date, the said EC&CRZ clearance is not valid with respect to the validity of the clearance as per EIA Notification, 2006 and its amendment from time to time. Further, the MCZMA in its 127th meeting (copy enclosed as Annexure-3), held on 2nd November, 2018 has cancelled the recommendation granted to revise additional FSI proposal of the Sea Rock Hotel.

2.3 With respect to point 3:

The reconstituted Joint Committee once again examined the draft CZMP map recommended by Govt. of Maharashtra, in which the Sea Rock Hotel site has been erroneously shown as Bandra Fort and classified as CRZ IA. This has been corrected in the approved CZMP.

The Joint Committee visited the subject site on 20/09/2019. The Joint Committee observed and surveyed the mangroves which were not cartographically discernable in the scan copy of the final approved CZMP due to the scale limitations of 1:25,000 scale. In the map/plan prepared on 1:4000 scale (Annexure-2) as per the order of the Hon'ble NGT Principal Bench, New Delhi dated 13/08/2019, these two patches of mangroves are clearly depicted. In fact, there is one single isolated mangrove tree standing on the northern side of and just outside the boundary of survey plot bearing no. 1156. These single isolated trees cannot be shown even in 1:4000 scale map, due to limitation of scale. Filed photographs taken during the site visit are enclosed as Appendix-2.

It is pertinent to mention that the CRZ Notification mandates preparation of project level CRZ maps on 1:4000 scale for clearance of all projects, in which even minute details including project layouts can be superimposed.

On examination of the large scale map/plan prepared on 1:4000 scale (Annexure-2), the joint Committee clearly sees that all the apprehensions of the applicant namely, regarding land bearing survey no. 1155 being in CRZ II category, presence of mangroves, location and classification of Bandra fort and the sea rock hotel site, etc. have all been allayed. These aspects have also been verified by the Joint Committee during the site visit conducted on 20/09/20-19. The replies of the reconstituted Joint Committee to the Applicant's written submissions are enclosed as Appendix-1.

The Joint Committee members have received written submissions from M/s. ELEL Hotel and Investment Ltd. dated 4th Sep, 2019 (Copy enclosed as Annexure-7) in the matter. However, the joint Committee decided not to take this into cognizance since it is outside the purview of Hon'ble NGT order."

The applicant has filed IA 267/2020 on 10.08.2020 by way of objections to the second report dated 10.10.2019. Main objection of the applicant is that Sea Rock Hotel is divided from Bandra Fort by a thin short wall. There are allegations of collusion of the authorities in permitting FSI of 3. The applicant has also stated that HTL is touching plot CTS B- 1150, and is entering plots B-1155 and B-1153 (part). Since B-1157 is reserved for garden by Heritage Committee, the deception of the joint Committee report regarding the zoning of these said plots is clearly evident. The applicant has also pointed out that the city survey plan annexed in IA 8/20 at page 416, shows that CTS B-1155 is Arabian Rocks. Yet the second joint committee report states that B-1155 is mostly in CRZ-II by again relying upon the zoning remarks of MCGM. CTS B-1156 is kept for reserved garden as per the Heritage Committee NOC mentioned in the said minutes of MCZMA meeting. Also the sanctioned plan of the respondents dated 10.07.17 annexed by the respondents show that CTS 1153(pt) is touching HTL. The same plan shows HTL dividing plots CTS B-1150 from B-1153. HTL is coming in plots B-1155 and B-1153. These areas cannot be in CRZ-II. CTS-1155 is allowed to be used for ramp parking as per the second joint committee report. Objection of the applicant is that the respondents have wrongly stated that Hotel Sea Rock is on plot B-1150 and is 100 mts. away from Bandra Fort and in their arbitrary representation to the Joint Committee Report on page 262 in point 10 they have contradicted their own earlier statement and written that Bandra Fort is 125 mts away from Hotel Sea Rock and the same contention has been repeated in point 11(a) of their representation. Bombay High Court, in Sadanand Varde vs. State of Maharashtra in year 2000, held that Sea Rock Hotel was within 100 meters of Bandra Fort and the same observation was made by the MCZMA in its minutes of meeting attached on pages 67, 68 of this OA. In fact the NOC of the heritage committee clearly states that CTS B -1156 and B 1153 (Part) are to be used only as a reserved garden. Hence, when the State Approved CZMP showed Hotel Sea Rock in CRZ IA, it was correct, for it is within 100 meters of Bandra Fort being a protected Heritage site. The contradictory statements of the owners of Hotel Sea Rock regarding the distance of the hotel from Bandra Fort are on record. Bandra Fort was first correctly shown in CRZ 1A in the State Approved CZMP. However after the changes asked for officially by the proposed respondents the respondents acting as their advocates first superimposed Bandra Fort on Hotel Sea Rock, then finally pink washed it in CRZ-II along with the two hotels of the Tata group. CTS B-1155 is being used for parking as per the latest sanctioned plan of MCGM of Sea Rock Hotel dated 10.7.17 annexed both by the applicant and the respondents in their representation to the joint committee report. The area is covered by Arabian Rocks as per Annexure 'G' on page 416 of the OA, which is the city survey plan. The proposed respondents are admitting in point 5 of their representation on page 261 of the joint committee report that CTS survey no. 1155 was proposed as access to the basement ramp of the proposed building. This is where reclamation of land will take place as shown by the photos of sea rock site annexed at pages 54, 55, 56 of the OA which clearly show the magnitude of the rocks both in low tide and high tide. This is the area referred to as intertidal in the letter of MoEF&CC asking whether there will be construction in intertidal area also annexed at page 424 of the IA 8/20. which is in complete contravention to point 27 on page 278 of the joint committee report which says that a major part of CTS 1155 falls in CRZ-II. The applicant states that once FSI of 2.5 had been given to the proposed respondents under section 10(2) of DCR 1967 how can FSI of 3 be again given.

The above objections of the applicant have been opposed by learned Counsel for the respondents, including the project proponent, MCZMA and MoEF&CC. They have supported the report and submitted that the CZMP has been rightly approved. NCSCM has prepared the plan and correctly depicted the open areas. Major part of the area is in CRZ-II. The existing structure of the hotel is in CRZ-II. No construction is proposed on the area in CRZ-I. EC and CRZ clearances mention that the parking structure is permitted as part of the main building. The MCZMA in its 122nd meeting on 02.11.2018 has cancelled the additional FSI proposal for the hotel. In the draft CZMP map, hotel site was erroneously shown as Bandra Fort classified as CRZ-IA which has been now corrected. The joint Committee observed that mangroves are not discernible in the final approved CZMP as scale used is 1:25,000 as against the scale of 1:4,000 in the map now prepared wherein the mangroves are clearly depicted. In fact, there is only a single mangrove tree which cannot be shown in the map due to the scale used. Thus, the contention that survey no. 1155 is in CRZ-II is not correct which has also been verified by the joint Committee during site visit on 20.09.2019.

We find that the joint Committee has visited the site and duly verified the factual position exhaustively. There is no justification to cast aspersions on the Committee of experts who are public servants. The factual position with respect to all the three objections of the applicant-location of the hotel in CRZ II, the FSI and the mangroves has been clearly explained, as mentioned and quoted earlier. We have considered the objections of the applicant and heard her at length. We do not find any ground to quash the final Coastal Zone Management Plan in question. We, however, direct the MCZMA to maintain strict vigil against any violation of the Coastal Zone Management Plan.

The application is disposed of accordingly.

In view of order in the main application, all I.A.s will also stand disposed of, without any separate order.

A copy of this order be forwarded to the MCZMA by e-mail for compliance.