Disposed

M/S. Earth Builders v. the Municipal Corporation of Greater Mumbai and 3 Ors.

Bombay HC1 Feb 2012WP/2553/2011

Case brief

AI extract

What is this about?

Petitioners challenging construction halt due to CRZ compliance issues sought directions to the Coastal Zone Management Authority to reconsider their proposal under the CRZ Notification of 2011 and to decide the matter expeditiously amidst the Authority's term expiry.

What did the court decide?

Directed respondent No.4 to consider the proposal under CRZ Notification 2011 and reconstitute the Authority within one month.

M/S. Earth Builders Vs the Municipal Corporation of… — Environment and Pollution | Bombay HC (2012)

gopi

wp.2553-11

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

¶5

ORDINARY ORIGINAL CIVIL JURISDICTION

¶6

WRIT PETITION NO.2553 OF 2011

¶7

M/s.Earth Builders .Petitioners

¶8

V/s.

¶9

The Municipal Corporation of Greater Mumbai & Ors.

¶10

..Respondents.

¶11

Mr. P.K. Samdani, Senior Advocate with Mr. Mayur Khandeparkar i/b. M/s.Kishore Thakordas & Co., for petitioners. Ms. S.M. Modle for B.M.C.

¶12

Ms. Sharmila Deshmukh, for respondent No.4.

¶13

Mr. Rui Rodrigues with Ms. Neeta Masurkar and Mr. H.V. Mehta for respondent No.5.

¶14

Mr. Shiraz Rustomjee, Senior Advocate i/b. Ms. Mehernaqaz Sam Wadia for Dani Sadan Co-op. Housing Society Ltd.- Intervenor.

¶15

CORAM: MOHIT S. SHAH, C.J. &

¶16

RANJIT V. MORE, J. DATED : 01 February 2012.

¶17

P.C.

¶18

Leave to add State of Maharashtra as party respondent. Notice be served on the Ministry of Environment & Forests.

¶19

In this petition under Article 226 of the Constitution the petitioners have prayed the following reliefs in respect of the construction which is going on, on the land in question which is the subject matter of this petition being property known as “Dani Chawl” situate at Walkeshwar, Mumbai:-

¶20

“(a) This Hon’ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction

gopi

wp.2553-11

under Article 226 of the Constitution of India directing the Respondent Nos.1, 2 and 3 to issue further commencement certificate in respect of the property described in Exhibit “A” to the Petition;

¶25

(b) In the alternative to prayer (a) above, this Hon’ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the Respondent No.4 and/or Respondent No.5, as the case may be, to grant N.O.C. under the Coastal Regulation Zone Notification of 1991 as amended from time to time including by Notification dated 6^th January, 2011 and on such N.O.C. Being granted the Respondent Nos. 1, 2 and 3 be directed to issue further commencement certificate to the Petitioners.”

¶26

It is the case of the petitioners that there was a building known as “Dani Chawl” consisting of ground plus three storeys and was in occupation of tenants since last 125 years. The petitioners had applied for redevelopment N.O.C., from MHADA which had granted such N.O.C. on 9 February 1996 and thereafter the petitioners were granted CRZ permission by the Urban Development Department of the State of Maharashtra on 31 May 1999. The petitioners thereafter applied for building plans and the Municipal Corporation granted IOD on 30 December 2005 and Commencement Certificate on 13 February, 2006. According to the petitioners the construction has already reached upto 7^th floor out of the 12 storeys construction sanctioned by the Municipal Corporation.

wp.2553-11

gopi

According to the Maharashtra Coastal Zone Management Authority the matter regarding CRZ permission for redevelopment of the above property was considered at the 65^th meeting held on 9 September 2010 and it was decided to recommend the petitioners’ case to MOEF subject to compliance of the following conditions:-

¶31

“2. As per the decision of the Authority, it was decided to recommend the case to MoEF subject to the compliance of following conditions:-

¶32

Construction should be carried out strictly as per the Development Control Rules, 1967 provisions of CRZ Notification 19.02.1991 (Amended time to time)and guidelines clarifications given by MoEF time to time.

¶33

Construction should be on the landward side of the existing plinth and should be as per guidelines of the MoEF vide letter dated 08.09.1998.

¶34

Computation of FSI should be as per the Rule No.51(vi) of the Development Control Rule 1967.

¶35

Proponent should obtain prior permission of Ground Water Board for the proposed project.

¶36

This was communicated to the Director, Coastal Zone Regulation, Government of India, Ministry of Environment & Forests.

wp.2553-11

gopi

Ms. Sharmila Deshmukh, learned counsel appearing for the respondent No.4-Maharashtra Coastal Zone Management Authority states that in view of the subsequent CRZ Notification of 2011 superseding the CRZ Notification of 1991 the Government of India, in the Ministry of Environment & Forests sent the matter back to the Maharashtra Coastal Zone Management Authority vide their letter dated 27 May 2011 with the following observations:-

¶41

“You may be aware that Ministry has notified CRZ Notification, 2011 which supersedes the CRZ Notification, 1991. As per the CRZ Notification 2011:

¶42

(i) The Clearance for the projects covered under Category 8(a) and 8(b) of the EIA Notification, 2006 as amended in 2009 viz. The Building/Construction projects/Area Development Projects and Townships projects and located within CRZ area, irrespective of project cost, required to be considered under EIA Notification, 2006 as amended in 2009 and CRZ Notification, 2011 based on the recommendations of the State Coastal Zone Management Authority. The clearance shall be issued by the SEIAA.

¶43

(ii) The clearance for the projects below the threshold limits of Category 9(a) and 8(b) under EIA Notification, 2006 as amended in 2009, located within CRZ area are to be considered by the State Coastal Zone Management Authority and clearance shall be issued by the State Coastal Zone Management Authority irrespective of the Project Cost”.

¶44

It is submitted that in view of the above decision of the MoEF the matter will be examined by the Maharashtra Coastal Zone Management Authority provided the petitioners make a fresh application

gopi

wp.2553-11

under the CRZ Notification of 2011.

¶49

Mr. Samdani, learned Counsel for the petitioners submits that the CRZ Notification of 2011 would apply only in respect of construction involving more than 20,000 sq. meters built up area in CRZ as provided in Clause 4(i)(d) of the Coastal Regulation Zone Notification of 2011 and, therefore, the petitioners are not required to make any such application under CRZ Notification of 2011, but in order to avoid any delay the petitioners have made such an application in May 2011. However, the Authority is not considering the same and on that ground the Municipal Corporation is not issuing further commencement certificate for the 8^th floor upwards. It is submitted that the Maharashtra Coastal Zone Management Authority already having made recommendation on 22 August 2010 as per the minutes of the meeting held on 9 September 2010 nothing further is required to be done by the Maharashtra Coastal Zone Management Authority, but to follow the recommendation and to issue an order on those lines.

¶50

At this stage Mr.Shiraz Rustomjee, learned counsel appearing for Dani Sadan Co-operative Housing Society Limited submits that the construction in question is coming up on the adjoining land and that the said construction is being put up in violation of the various statutory Regulations and CRZ laws and, therefore, the proposed intervenors had also filed Public Interest Litigation No.36 of 2011 which was permitted to be withdrawn by this Court on March 7, 2011 with liberty to file a fresh petition in case it becomes necessary to do so after hearing is completed by the Maharashtra Coastal Zone Management Authority. It is, therefore, submitted that before the respondent No.4 Authority takes any final decision in the matter the proposed intervenors

gopi

wp.2553-11

should be permitted to submit its representation.

¶55

Having heard learned counsel for the parties we dispose of this petition with a direction that respondent No.4-Maharashtra Coastal Zone Management Authority shall consider the petitioners' proposal which was considered at the meeting held on 9 September 2010 in accordance with law including the CRZ Notification of 2011, if applicable.

¶56

In the course of taking the decision on the said proposal, it will be open to respondent No.4-Maharashtra Coastal Zone Management Authority to decide whether to consider the representation which may be made by Dani Sadan Co-operative Housing Society Ltd.

¶57

We keep all the contentions of all the parties open including the contentions of the proposed intervenors and the contentions of the petitioners about the locus standi of Dani Sadan Cooperative Housing Society Ltd., and the contention about delay and laches on the part of Dani Sadan Co-operative Housing Society Ltd.

¶58

Respondent No.4-Maharashtra Coastal Zone Management Authority shall take the decision in the matter as expeditiously as possible and in any case by 30 April 2012.

¶59

It is brought to our notice by Ms.Sharmila Deshmukh, learned Counsel for respondent No.4 that the term of the respondent No. 4 Authority has come to an end by efflux of time on 31 December 2011. It is, therefore, necessary to direct the concerned competent authority to reconstitute the Maharashtra Coastal Zone Management Authority as expeditiously as possible.

wp.2553-11

gopi

Therefore, the concerned Authority competent to reconstitute the Maharashtra Coastal Zone Management Authority shall reconstitute the Maharashtra Coastal Zone Management Authority as expeditiously as possible and in any case within one month from the date of receipt of this order.

¶64

Parties to act on an ordinary copy of this order duly authenticated by the Associate of this Court.

¶65

CHIEF JUSTICE

¶66

(RANJIT V. MORE, J.)

M/S. Earth Builders v. the Municipal Corporation of Greater Mumbai and 3 Ors.

Case brief

What is this about?

What did the court decide?

M/S. Earth Builders v. the Municipal Corporation of Greater Mumbai and 3 Ors.

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

Similar cases

Skol Breweries Ltd. Vs M.P. Beer Products Pvt. Ltd.

Citispace and Ors. Vs State of Maharashtra and Ors.

Anand Prabhakar Joshi Vs Civil Court and Ors.

Ketan Tirodkar Vs Hon'Ble High Court, Registrar General and Anr.

Ashish Enterprises Vs M/S. Rajesh Estates and Nirman Ltd.

M/S. Gupta Synthetics Limited Vs SBI Global Factors Ltd.(Formerly Known as M/S/ Global Trade Finance Ltd)