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Writ Petition No. 369 of 2011. Case: Adarsh Co-op. Housing Society Ltd. and Ors. Vs Union of India and Ors.. High Court of Bombay (India)

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Case NumberWrit Petition No. 369 of 2011
CounselFor Appellant: Navroz Seervai, Senior Advocate, Manish Desai, Saket Mone, Vishesh Kalra and Subit Chakraborti i/b. Vidhi Partners and For Respondents: R.S. Apte, Senior Advocate, Rui Rodrigues and Parag Vyas, Advs.
JudgesR. V. More and R. G. Ketkar, JJ.
IssueBombay General Clauses Act, 1904 - Section 21; Constitution of India - Articles 14, 166(3), 226, 32, 320, 323, 39(b); Environment Protection Act, 1986 - Sections 2(a), 24, 3, 3(1), 3(2)(v), 5; Government of India Act, 1935 [Repealed] - Section 59(3); Land Acquisition Act, 1894 - Sections 17, 17(1), 6; Maharashtra Land Revenue Code 1966 - ...
Judgement DateApril 29, 2016
CourtHigh Court of Bombay (India)

Judgment:

R. G. Ketkar, J.

  1. By administrative order dated 25.08.2015 passed by the Hon'ble the Chief Justice, this Special Bench was reconstituted for hearing of above Petition and other connected matters from the Division Benches available at Original/Appellate Side. In pursuance thereof, we have heard Mr. Navroz Seervai, learned Senior Counsel for petitioners, Mr. R.S. Apte, learned Senior Counsel for respondent No. 1, Mr. Daraius Khambata, learned Senior Counsel for respondent No. 6, Mr. Shailesh Shah, learned Senior Counsel for respondents No. 7 and 8 and Mr. Toor, learned Counsel for BEST at length. At the request and by consent of the parties, the Petition is taken up for final hearing.

  2. This Petition is instituted by Adarsh Co-operative Housing Society Limited (for short 'Adarsh Society') and one of its members under Article 226 of the Constitution of India against respondent No. 1 -Union of India, Ministry of Environment and Forests (for short 'MOEF'), respondent No. 2 - Mr. Jayram Ramesh, the then Hon'ble Minister of State holding independent charge of MOEF, respondent No. 3 - Dr. Bharat Bhushan, Director, MOEF, respondent No. 4 - Dr. Nalini Bhat, Advisor and Competent Authority appointed by MOEF, respondent No. 5 - National Coastal Zone Management Authority (for short 'NCZMA'), respondent No. 6 - Maharashtra Coastal Zone Management Authority (for short 'MCZMA'), respondent No. 7 - State of Maharashtra and respondent No. 8 - Secretary, Urban Development Department (for short 'UDD'), Government of Maharashtra.

  3. By this Petition, petitioners have challenged -(i) recommendations made in the minutes of the 20th meeting of NCZMA convened on 11.11.2010 (exhibit-C, pages 81-85), (ii) show cause notice dated 12.11.2010 (exhibit-D, pages 89-95) issued by the respondent No. 3 - Dr. Bharat Bhushan, Director MOEF, (iii) report dated 13.01.2011 (exhibit-E, pages 96-118) of respondent No. 4 - Dr. Nalini Bhat, Advisor and Competent Authority appointed by MOEF, (iv) order dated 14.01.2011 (exhibit-F, pages 333-335) passed by respondent No. 3 - Dr. Bharat Bhushan, Director, MOEF, and (v) order dated 16.01.2011 (exhibit-G, pages 336-337) passed by the respondent No. 2-Mr. Jayram Ramesh, the then Hon'ble Minister, MOEF. The relevant and material facts, albeit topic-wise, giving rise to the filing of the present Petition, briefly stated, are as under:

    (

    1. Notifications, Correspondence relating to C.R.Z.

  4. In exercise of powers conferred by Section 3(1) and Section 3(2) (v) of the Environment (Protection) Act, 1986 (for short 'E.P. Act') and Rule 5(3)(d) of Environment (Protection) Rules, 1986 (for short 'E.P. Rules'), MOEF issued Notification on 19.02.1991 (for short '1991 Notification') declaring coastal stretches as Coastal Regulation Zone (for short 'CRZ') prohibiting and regulating activities under the CRZ. Paragraph 2 thereof prohibits activities enumerated in clauses (i) to (xiii) within CRZ. Paragraph 3 thereof provides for regulation of permissible activities. Paragraph 4 thereof lays down the procedure for monitoring the enforcement. Paragraph 6(2) of Annexure-I lays down norms for regulation of activities.

  5. On 27.09.1996, MOEF approved Coastal Zone Management Plan (for short 'CZMP') for Maharashtra. MOEF issued Notification dated 09.07.1997 (for short '1997 Notification), amending the 1991 Notification. On 12.11.1997, Principal Secretary to Government of Maharashtra addressed a letter to the Municipal Commissioner of Municipal Corporation of Greater Mumbai (for short 'Corporation') wherein it was clarified that the total development permission cannot be stopped in CRZ area. Municipal Commissioner was requested to scrutinize the proposals as per 1991 Notification, subsequent letters dated 27.09.1997 and 1997 Notification. It was further set out therein that the development proposals within a CRZ area in which investment exceeds rupees five crores should only be referred to State Government for clearance and other proposals should be cleared by the Corporation as per the approval of the Government of India, MOEF Notification and letter.

  6. On 08.09.1998, MOEF issued letter clarifying the expression "Existing Authorized Buildings". In exercise of powers conferred by sub-sections (1) and (3) of Section 3 of the E.P. Act, the Central Government issued order on 26.11.1998 constituting MCZMA consisting of various officials for a period of 2 years with effect from date of publication of that order in the Official Gazette. The Secretaries of Department of Environment and UDD, Government of Maharashtra, among others were the members of the MCZMA. On 19.01.2000, MOEF approved the revised CZMP of Greater Mumbai. By order dated 04.01.2002, the Central Government reconstituted MCZMA consisting of various officials for a period of 3 years with effect from the date of publication of that order in the Official Gazette. The Principal Secretaries of Department of Environment and UDD, among others were the members of MCZMA.

  7. To the same effect, orders were passed on 02.09.2005 and 31.12.2008 reconstituting MCZMA with effect from the date of publication of that order in the Official Gazette for a period of three years. Principal Secretary/Secretary, Environment Department and Principal Secretary/Secretary, UDD, Government of Maharashtra, among others were members.

  8. In the meantime, in exercise of the powers conferred by Section 3(1) and 3(2)(v) of the E.P. Act read with Rule 5(3) and (4) of the E.P. Rules, the Central Government issued Notification on 22.04.2003 (for short "2003 Notification") as it was of the opinion that the 1991 Notification should be amended with a view to preventing further ecological damages. On 06.01.2011, CRZ Notification was published (for short "2011 Notification").

    1. Relevant Development Control Regulations and Notifications

  9. In 1967, the Development Control Rules for Greater Bombay were sanctioned by the State Government (for short '1967 DCR') and FSI as far as land bearing CTS No. 652, Block VI, Colaba Division, Captain Prakash Pethe Marg, adjacent to Backbay Bus Depot, Colaba, Mumbai - 400 005 (for short 'subject plot') was 3.5. On 10.06.1977, Notification was issued by the Bombay Metropolitan Region Development Authority (for short 'BMRDA') restricting the permissible FSI in the municipal limits of Corporation to 1.33. The said Notification was to have effect for a period of two years from the date of its issue. On 05.10.1989, BMRDA issued Notification restricting the permissible FSI in the municipal limits of Corporation to 1.33. The said Notification was to have effect and be in force until 10.10.1991. By Notification dated 20.07.1990, the State Government sanctioned separately that part of the draft plan of 'A' Ward as shown in Schedule II annexed thereto, subject to the modifications specified in the Schedule I thereto annexed, which shall be final Development Plan for the 'A' Ward and fixed 01.09.1990 to be the date on which the final Development Plan of 'A' Ward of the Island City (excluding the said excluded part of the draft Plan of 'A' Ward as shown in Schedule II) was to come into force.

  10. On 20.02.1991, the final development plan as also the Development Control Regulations for Grater Mumbai, 1991 were sanctioned (for short '1991 DCR') and they were brought in force with effect from 25.03.1991. On 10.04.2002, UDD of Government of Maharashtra in exercise of powers conferred under sub-section (2) of Section 37 of the Maharashtra Regional and Town Planning Act, 1966 (for short 'M.R.&T.P. Act') sanctioned the proposed reduction of Captain Prakash Pethe Marg from 60.97 mtrs to 18.40 mtrs and the area so deleted was included partly in residential zone (marked as A-B-C-D, subject plot), partly included in Parade Ground (marked as G-H-I-J), partly included in Helipad and Garden area (marked as E-F-G-H) and partly included in BEST Depot (marked as C-D-E-F). In exercise of powers vested under Section 50(1) of the M.R.&T.P. Act, Government of Maharashtra issued Notification dated 03.03.2006 sanctioning the proposal of deletion of reservation of the Bus Depot on land adjacent to plot No. 87-C of B.B.R. Block No. 6 admeasuring about 2661,68 sq.mtrs. and including the same in the residential zone subject to certain conditions.

    1. CORRESPONDENCE

  11. On 03.08.2000, Adarsh Society addressed a letter to the Hon'ble Chief Minister of Maharashtra, who was at the relevant time also the Urban Development Minister, for deletion of the proposed road in military area. On 05.10.2002, Mr. P.V. Deshmukh, Deputy Secretary, UDD, Government of Maharashtra addressed a letter to the Secretary, MOEF requesting the latter to issue NOC for development of subject plot. On 02.12.2002, Dr. A. Senthil Vel, Joint Director of MOEF addressed a letter to Mr. P.V. Deshmukh, Deputy Secretary, UDD, Government of Maharashtra. On 04.01.2003, Mr. P.V. Deshmukh, Deputy Secretary, UDD, Government of Maharashtra addressed a letter to the Joint Director of MOEF enclosing therewith the documents sought for by letter dated 02.12.2002. On 11.03.2003, Dr. A. Senthil Vel, Joint Director, MOEF addressed a communication to Mr. P.V. Deshmukh, Deputy Secretary, UDD, Government of Maharashtra. On 15.03.2003, Mr. P.V. Deshmukh, Deputy Secretary, UDD, Government of Maharashtra addressed a communication to the Chief Engineer (Development Plan) of Corporation.

    1. Allotment of land and permissions from the Planning Authority:

  12. On 18.01.2003, Government of Maharashtra issued Letter of Intent (LOI) proposing to allot the subject plot on lease or on the basis of the occupancy rights on terms and conditions to be decided by the Government in due course. On 09.07.2004, the Government allotted land to Adarsh Society on payment of Rs. 10,19,19,652/- subject to conditions. Possession was handed over to the petitioners on 04.10.2004. On 05.08.2005, Revenue and Forests Department of Government of Maharashtra sanctioned use of FSI of...

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