Allowed

Bombay Environmetal Action Group Aand Anr. v. the State of Maharashtra and Ors. and S.H. Developers Pvt.Ltd. - Applicants

Bombay HC23 Feb 2012CHSW/31/2012

Case brief

AI extract

What is this about?

The High Court allowed a Chamber Summons application challenging a rejection of a construction commencement certificate. Relying on maps showing the plot was over 1500 meters from the creek and prior court approvals for other plots in the same sector, the Court directed the authorities to withdraw the notice and exempt the applicant from the 2005 prohibition order.

What did the court decide?

The NMMC was directed to withdraw the Notice dated February 4, 2011, and exempt the applicant from the Order dated October 6, 2005.

Bombay Environmetal Action Group Aand Anr. Vs the… — Environment and Pollution | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.31 OF 2012 IN PUBLIC INTEREST LITIGATION NO.87 OF 2006

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Bombay Environmental Action Group and another Petitioners versus The State of Maharashtra and others Respondents and

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S.H.Developers Private Limited

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Applicant

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Ms.Nityoah Mehta with Jay Mehta i/by M/s.Nityoah Suneel Associates for applicants. Mr.Gautam Patel with Gulnar Mistry and Ushajee Peri i/by M/s.M.V.Jayakar & Co. for petitioners.

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Mr.G.S.Hegade for respondent no.14 CIDCO.

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Mr.Niranjan Pandit, AGP for respondent nos.1, 5 and 6.

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Mr.A.A.Garge for NMMC.

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Mr.Rakesh Singh i/by M.V.Kini & Associates for applicant.

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Ms.Sharmita Deshmukh for respondent no.3.

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Ms.Rui Rodrigues with N.R.Prajapati for respondent no.2.

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CORAM : MOHIT S. SHAH, C.J. AND RANJIT MORE, J.

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DATE : February 23, 2012

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PC :

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By the impugned notice dated February 4, 2011 at Exhibit-C, the Navi Mumbai Municipal Corporation (`NMMC' in short) had rejected applicant's application for granting construction commencement certificate mainly on the ground that Plot No.101-B in Sector-50 of Nerul, Navi Mumbai, allotted to the applicant is within 50 meters of the area of Mangroves.

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Learned counsel for the applicant invites our attention to the map at Exhibit-F (page-79) and the maps annexed to the Architect's Certificate dated January 20, 2012 at Exhibit-L, particularly page 134. She also invites our attention to the averments made in paragraph 3 of the affidavit-in-support of the Chamber Summons pointing out that for the land of the villagers acquired by CIDCO, the villagers have been given a small plot of land admeasuring 514 sq.mtrs.. It is submitted that the plot is allotted by CIDCO to the villagers for constructing a building on the said plot and 50% of the constructed area will be used to house the villagers, as the land has been given under 12.5% Gavthan Expansion Scheme. It is submitted that the CIDCO itself has allotted the plot to the villagers and construction has been permitted on all other plots referred to in the lay-out. There is no justification for the Municipal Corporation to reject the application made as per the Tripartite Agreement between CIDCO, Villagers and the applicant-developer.

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Having seen the map (Exhibit-F), maps annexed to the Architect's Certificate at Exhibit-L as well as Photographs brought on

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record, it is clear that Plot No.101-B in Sector-50 of Nerul, Navi Mumbai is at a considerable long distance from Panwel Creek. According to the learned counsel for the applicant, the plot in question is at a distance of more than 1500 meters from Panwel Creek. This statement is not disputed by any other party to these proceedings. It is to be noted that the plot in question is allotted by CIDCO to the villagers for constructing a building on the said plot and 50% of the constructed area will be used to house the villagers, as the land has been given under 12.5% Gavthan Expansion Scheme.

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Learned counsel for the petitioner in PIL No.87 of 2006 has, however, submitted that this Court by order dated October 6, 2005 prohibited any construction activities within a range of 50 meters on all sides of all the Mangroves, whether sparse or otherwise.

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Our attention is invited to CRZ Notification dated January 6, 2011 and particularly Clause-7(i) thereof. It is submitted that land of about 75,000 sq.meters nearby is having Mangroves and therefore, permission should not be granted.

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Clause-7 of CRZ Notification reads as under :

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" 7. Classification of the CRZ .- For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely :-

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(i) CRZ-I ,-

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A. The areas that are ecologically sensitive and the geomorphological features which play a role in the

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maintaining the integrity of the coast,-

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(a) Mangroves, in case mangrove area is more than 1000 sq.mts. a buffer of 50 meters along the mangroves shall be provided;

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(b) Corals and coral reefs and associated biodiversity;

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(d) Mudflats which are biologically active;

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(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;

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(f) Salt Marshes;

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(g) Turtle nesting grounds;

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(h) Horse shoe crabs habitats;

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(i) Sea grass beds;

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(j) Nesting grounds of birds;

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(k) Areas or structures of archaeological importance and heritage sites.

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

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(ii) CRZ-II ,-

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The areas that have been developed upto or close to the shoreline.

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Explanation.- For the purposes of the expression

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"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."

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We may note at this stage that when some other plots in the same lay-out in Sector-50 of Nerul, Navi Mumbai allotted by CIDCO were sought to be developed and the owners of those plots had filed applications seeking permission of this Court, this Court had passed order dated January 14, 2009 in Notice of Motion No.416 of 2006 specifically stating as under :-

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"1. This Notice of Motion has taken out by the applicants for directing the authorities to withdraw the notice dated 5th December, 2005 issued against the applicants in respect of building property at Plot No.56, Sector 50, Nerul Node, Navi Mumbai and the same be exempted from the order dated 6th October 2005.

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It is the contention of the applicants that their building does not come within CRZ I or II both and does not fall within 50 meters from the mangroves. This fact has now been accepted by the RespondentMunicipal Corporation , who had issued stop work notice and the respondent-Coastal Zone Management Authority . In view of this, no orders are required to be passed in the Notice of Motion for the reason that the applicants can complete their project as it does not contravene any statutory provisions including CRZ I and II and as the building is located 50 meters away from the mangroves, the prohibitory orders passed by this Court on 6th December, 2005 do not apply to their case ."

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(Emphasis supplied)

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Similar order was passed by this Court on December 3, 2010 in respect of Plot No.121 in the same Sector-50 of Nerul Node, Navi Mumbai.

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It is thus clear that in respect of some other plots in this very Sector-50 of Nerul Node, Navi Mumbai, this Court has held that the respondent Municipal Corporation as well as Coastal Zone Management Authority have accepted that the plots in question do not fall within the range of 50 meters from Mangroves.

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Having seen the lay-out plan of Sector-50 wherein several buildings have already been constructed or are in the process of construction as per the permission granted by the NMMC and following the aforesaid orders granting permission in respect of Plot Nos.56 and 121 in the same Sector No.50 of Nerul Node, Navi Mumbai, we allow this Chamber Summons in terms of prayer clause (b) which reads as under :-

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"(b) That the Navi Mumbai Municipal Corporation (NMMC) i.e. Respondent no.8 and/or any other concerned authorities be directed by a mandatory order and injunction of this Hon'ble Court to forthwith withdraw and cancel the Notice dated 4th February, 2011 against the Applicants with respect to refusal of commencement to construct their building property at Plot No.101B, Sector 50, Nerul Mode, Navi Mumbai, and be exempted from the Order dated 6th October, 2005 and 27th January 2010 passed by this Court".

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It is accordingly directed that Navi Mumbai Municipal Corporation shall consider applicant's application for commencement certificate in respect of Plot No.101-B, Sector-50, Nerul, Navi Mmbai in light of the above observations.

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11. Chamber Summons is accordingly disposed of.

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(CHIEF JUSTICE)

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(RANJIT MORE, J.)

Bombay Environmetal Action Group Aand Anr. v. the State of Maharashtra and Ors. and S.H. Developers Pvt.Ltd. - Applicants

Case brief

What is this about?

What did the court decide?

Bombay Environmetal Action Group Aand Anr. v. the State of Maharashtra and Ors. and S.H. Developers Pvt.Ltd. - Applicants

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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