Allowed

Dev Land and Housing Ltd. v. Union of India and 5 Ors.

Bombay HC5 Mar 2014WP/2331/2013

Case brief

AI extract

What is this about?

The Court allowed a writ petition seeking direction to the MCGM to consider a redevelopment plan. It held that the petitioner could proceed as lands fall outside CRZ, refusing to wait for a new Coastal Zone Management Plan when survey reports indicated the land was unaffected.

What did the court decide?

Directed the MCGM to consider the petitioner's application for FSI on the basis that the lands fall outside the CRZ area.

Dev Land and Housing Ltd. Vs Union of India and 5 Ors. — Land Acquisition | Bombay HC (2014)

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WP. 2331-13

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VPH

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

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WRIT PETITION No. 2331 OF 2013

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Dev Land and Housing Ltd. & Ors. ... Petitioners Vs. Union of India and Ors. ... Respondents

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Mr. V. A. Thorat, Sr. Counsel i/b Lakshmi Murali & Associates for the Petitioners.

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Mr. Jaydeep Deo, for Respondent Nos. 1 & 2. Ms. Sharmila Deshmukh, for Respondent Nos. 3 & 5. Mr. Vinod Mahadik, for Respondent No. 4.

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CORAM : V. M. KANADE, & A. K. MENON, JJ. DATE : MARCH 5, 2014 PC.

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Heard the learned counsel appearing on behalf of the Petitioners and the learned counsel appearing on behalf of the Respondents. By this petition which is filed under Article 226 of the Constitution of India, petitioners are seeking appropriate writ, order and direction on account of inaction on the part of the Respondent No. 1 in granting No Objection Certificate / NOC in respect of the Coastal Regulation Zone clearance. It is submitted that three other petitions concerning other area in the same plot of land CTSS No. 195 (Pt) of revenue village Andheri at Andheri (West) were allowed by this

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Court and direction was given to the Bombay Municipal Corporation of Greater Mumbai (for short “MCGM”) to grant permission on the basis that the Coastal Regulation Zone clearance has been deemed to be granted by the Respondents.

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Brief facts, which are relevant for the purpose of deciding the petition are as under:

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. Respondent No. 6 Society is constructed by Respondent No. 5 / MHADA and flats in the said building were allotted to the members of the Society. The said building viz. Building No. 31 (35) is situate on Survey No. 106 (A), CTS No. 195 (Pt) admeasuring 796.20 sq. mtrs. has become dilapidated and dangerous, and therefore, was required to be demolished. On 2.2.2011 the Petitioner was granted redevelopment rights in respect of the said building which was demolished by Respondent No. 6 Society. There were 40 members and all of them had to vacate the premises, occupied by them in the said building. On 30.3.2011 a proposal for redevelopment was made to MHADA by the Petitioner. On 8.4.2013 MHADA issued its offer letter and consequent thereto payment of Rs. 2,86,84,121/- was made by the Petitioner to the MHADA. In view of the provisions of the modified DCR 33(5) further payment of Rs. 39,95,766/- is also made to the MCGM as infrastructure charges. Thereafter on 27.5.2013 plans were filed for approval with the MCGM. However, final approval has not been given by the MCGM and the said approval is still pending.

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Prior to submitting the said plan, sometime in 2011 Centre for Earth Science Studies Trivandrum (for short “CESS”) had surveyed the plot location and its distance from the sea, and had stated in their report that the land is not affected by the CRZ. On 185.2011 an application was also made by the Petitioner to Respondent Nos. 2 and 3 seeking certification that the plot under reference is not affected by the CRZ. Thereafter several letters were written by the Society to the said Respondents for certification. However, no decision has been taken by Respondent Nos. 2 and 3.

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On account of the inaction on the part of the Respondent No. 1's Ministry of Environment & Forest and Maharashtra Coastal Zone Management Authority (for short “MCZMA”), Petitioner has suffered immense loss and 40 members who have vacated their premises have not been given an alternate permanent accommodation in the newly constructed building. It is submitted that the land was already surveyed by the CESS on 23.4.2005 and it had given a report that the land was not affected by delineation. He further submitted that in March 2009 a National Institute of Oceanography re-surveyed the land and held that one other project (marked in blue in the location plan) is not affected by CRZ demarcation. It is submitted that CESS again surveyed the plot in 2008 and in May 2011 and had in terms stated that the land is not affected by the CRZ land.

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Learned senior counsel appearing on behalf of the Petitioner has invited our attention to the two judgments of the

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Division Bench of this Court, dated 28.3.2012 (in Writ Petition No. 647 / 2012) and 27.4.2012 (in Writ Petition (L) No. 953 / 2012 with Writ Petition No. 647 / 2012). It is submitted that in respect of Plot No. 195 (Pt) itself, in these two petitions directions were given by this Court. It is submitted that similarly in one more petition the Division Bench of this Court in Writ Petition (L) No. 953 of 2012 by order dated 3.5.2013 had passed a similar order. It is not in dispute that CESS and the National Institute of Oceanography are the institutes recognised by the CRZ Authority. It is also not in dispute that in the above three petitions, this Court had given directions to the MCGM to sanction the plan. Writ Petition (L) No. 953 / 2012, decided on 3.5.2013 this Court in paragraph 6 and 7 of the judgment has noted the inaction on the part of Ministry of Environment & Forest (for short “MOEF”). It is also noticed that MOEF is not in a position to take firm stand only because NCZMA and MCZMA were in the process of preparing New Coastal Zone Management Plan for the Mumbai region and Raigad district. The Division Bench of this Court observed in paragraph 9 of said judgment as under:

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“9. Hence, in the facts and circumstances of the present case, when 120 members of respondent nos. 6 to 9 societies have already vacated their own tenements which are by now even demolished, the said societies and the petitionerdeveloper cannot be asked to wait for more year merely because NCZMA and MCZMA are going to revise Coastal

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Zone Management Plan in accordance with the self same CRZ Notifications which have already been considered by Centre for Earth Science Studies while preparing the aforesaid surveys.”

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The Division Bench in the circumstances directed the MCGM to consider the Petitioner's application for FSI in respect of the construction proposed to be put up on the lands of Respondent No. 6 Society, as permissible under the DCR, on the basis that they fall outside the CRZ area. The Petitioner is seeking a similar relief in this petition. Since the facts of the present case are identical to the facts of the above three cases, decided by the Division Bench of this Court, we have no hesitation in holding that MOEF cannot stop the Petitioners / Developer from proceeding with the construction on the ground that new Coastal Zone Management Plan is not published and implemented. Accordingly, we allow the petition and direct the MCGM to consider the Petitioners' application for FSI in respect of construction which was to be put up on the lands of Respondent No. 6 / Society, as is permissible under the Development Control Regulation for the lay out, on the basis that the lands of Respondent No. 6 Society fall outside the CRZ area. Writ petition is accordingly allowed and disposed of in the aforesaid terms.

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Vinayak Halemath

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Dev Land and Housing Ltd. v. Union of India and 5 Ors.

Case brief

What is this about?

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Dev Land and Housing Ltd. v. Union of India and 5 Ors.

Case brief

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