Allowed

Marin Drive Hospitality and Realty Pvt.Ltd. and Anr. v. Maharashtra Coastal Zone Management Authority and 3 Others

Bombay HC17 Dec 2014WP/3132/2014

Case brief

AI extract

What is this about?

The Bombay High Court directed the Maharashtra Coastal Zone Management Authority to issue a clearance certificate to the petitioners, confirming their project site is outside the CRZ area beyond 100 meters from the High Tide Line. The court held that the lack of a new Coastal Zone Management Plan does not justify halting development where the land falls clearly outside CRZ based on existing notifi

What did the court decide?

Direction to MCZMA to issue clearance certificate within six weeks, and direction to MCGM to consider the development application in accordance with law.

Marin Drive Hospitality and Realty Pvt.Ltd. and Anr. Vs… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 3127 OF 2014

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Marine Drive Hospitality & Realty Pvt. Ltd. & Anr. ...Petitioners

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Vs.

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Maharashtra Coastal Zone Management Authority & Ors. ...Respondents

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Mr. S. M. Kamdar, Senior Advocate a/w Ms. Jyoti Sinha i/b. M/s. Negandhi, Shah & Himayatullah for Petitioners Ms. Sharmila Deshmukh for Respondent No. 1. Ms. T. H. Puranik for Respondent Nos.2 and 3 – MCGM. Mr. H. S. Venegaonkar, Additional Government Pleader,for Respondent No.4.

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CORAM: MOHIT S. SHAH, C.J. & B. P. COLABAWALLA,J.

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DATE : DECEMBER 17, 2014

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ORAL JUDGMENT (Per : Chief Justice)

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Rule. With consent of the parties, Rule is made returnable forthwith.

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The petitioners have prayed for the direction to Respondent Nos. 1 to 3 the Municipal Corporation of Greater Mumbai and its officers to process, consider and sanction the petitioners application for development of the petitioner's property

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being C.S.No.2193 (part) of Bhuleshwar Division admeasuring 8983 sq. mtrs. The petitioners have also prayed for direction to MCZMA

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to grant clearance that the petitioners property falls outside the purview of the CRZ area and CRZ Notification.

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The petitioners rely upon CRZ Notification dated 6 January 2011, the classification of CRZ areas is as under:

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“...........................................the Central Government hereby declares the following areas as CRZ and imposes with effect from the date of the notification the following restrictions on the setting up and expansion of industries, operations or processes and the like in the CRZ, (i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500 mts on the landward side along the sea front. (ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance upto which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans (hereinafter referred to as the CZMPs).

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Explanation. For the purposes of this subparagraph the expression tidal influenced water bodies means the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like.”

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The petitioners rely upon the certificate dated 25 June, 2014 issued by Institute of Remote Sensing, Anna University, Chennai - 600025 (Exhibit ' E' page 76) certifying that as per the CRZ map submitted by IRS at 1:4,000 scale, the project site falls outside CRZ.

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Mr. S.U. Kamdar, learned Senior Counsel for the

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petitioners states that the petitioners application for development is only on land admeasuring 8983 sq. meters which falls outside CRZ.

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However, in the affidavit in reply dated 4 October 2014 filed on behalf of the MCZMA in Writ Petition (L) No.2383 of 2014, the MCZMA itself has contended that the petitioners has relied upon the plan certified by the Institute of Remote Sensing in which the water body is CRZ IVA but in respect of the Mahim Bay in the case of Deepak Rao the water body is not classified as CRZ IVA and therefore in view of these conflicting certificates issued by the

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Institute of Remote Sensing, MCZMA has sought for clarification from the petitioners, which the petitioners may obtain from the Institute of Remote Sensing, Chennai.

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Having heard learned counsel for the parties, we are of the view that there is no substance in the contention being raised by MCZMA in its Minutes dated 19 July, 2014 Exhibit “G” at Page 78. The petitioners' case is similar to the case of Deepak Rao and the case of the petitioners in Writ Petition (L) No.2383 of 2014, in its 92nd meeting held on 19 July, 2014 (Exhibit 'G' page 78) the MCZMA took the following decision:

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“Authority observed that IRS Report concludes that the Project site is being situated at the frontage to Back Bay, 100 meters buffer line as per CRZ Notification, 2011 is drawn. The Project site is out of CRZ. CRZ map also mention water body as a “Back Bay”. However, legend mentioned in CRZ Map shows, water body as CRZ IV-A, which indicates sea front and not tidally influenced water bodies.”

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“Authority decided to direct the proponent to get clarification regarding the issue from IRS, Chennai who prepared the said CRZ map.”

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As far as the present case is concerned, the Institute of Remote Sensing, has clearly certified the project site falls outside 100 meters. Once this position is not disputed, it is of no consequence whether in petitioners' case the Institute of Remote Sensing has classified the water body as CRZ IVA and in case of Deepak Rao and of the Petitioners in Writ petition (L) No 2383 of 2013, no specific classification is made. Classification of water body as CRZ IVA and IVB is made in paragraph 7.B. (iv) is as under:

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“(iv). CRZIV

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A. the water area from the Low Tide Line to twelve nautical miles on the seaward side;

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B. shall include the water area of the tidal influenced water body from the mouth of the water body at the sea upto the influence of tide which is measured as five parts per thousand during the driest season of the year.”

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The aforesaid classification would show that CRZ IVA

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would be the water body from the low tide line to twelve nautical miles on the seaward side. This is precisely what the Institute of Remote Sensing has indicated in the report/map prepared by it in

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the context of the petitioners' property. Merely because the same water body is not given any classification in the report/map prepared in the context of Deepak Rao's property and of the Petitioners in Writ Petition (L) No.2383 of 2014, is really of no consequence when it is an admitted fact that the reports pertain to the lands abutting the Mahim Bay/Back Bay. In all these cases, the Institute of Remote Sensing was basically concerned with determining whether the water body at Mahim /Back Bay was indeed a 'Bay' and if so, demarcation of the HTL and area of 100 meters therefrom, which could be identified as CRZ area. Therefore, the circumstance that in one of the reports/maps there was an icon demarcating CRZ IVA area and similar icon was not there in the other report/map, is really not at all relevant for the issue which arises in the present petition. Suffice that the reports/maps identify the water body at Mahim and Back Bay as a 'Bay' and further the development proposed is in the area beyond 100 meters from the HTL of such Back Bay.

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We also find that in the petitioners case the National Hydrographer's Office at Dehradun has also certified that Back Bay

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is considered as a Bay and is also depicted as Bay on the Official Navigational Chart of the National Hydrographer Office. The petitioner is therefore justified in contending that the petitioners case is similar to the case of Deepak Rao and of the Petitioners in Writ Petition No (L) 2383 of 2014 against which S.L.P. No.30128 of 2014 filed by Respondent No.1 before the Supreme Court, came to be dismissed by an order dated 19 November 2014.

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Learned counsel for the Municipal Corporation of Greater Mumbai however submitted that they may have to go by Coastal Zone Management Plan as it obtains today since the new Coastal Zone Management Plan is not yet prepared, published or implemented. We had the occasion to consider and reject an identical submission in the case of Murlidhar Ramchandra Panvelkar & Ors. vs. The State of Maharashtra and Ors. in (AS) Writ Petition No.1694 of 2013 decided on 12 August 2013 , in which one of us (Mohit S. Shah, C.J.) was a party. Therein, we observed thus:

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“9. In the above factual background, the question is whether the respondents-authorities should be permitted to stop the petitionerdeveloper from proceeding with the construction as per the approved plans on the ground that new

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coastal zone management plans is not yet prepared, published or implemented.

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10. In similar case being that of Rustomjee Realty Private Limited & anr. v/s Union of India & ors. (Writ Petition No.647 of 2012) decided on 25 March 2013 as well as in Andheri New Kapaswadi Juhu Ekta Co-op. Hsg. Soc. Ltd. and ors. v/s. State of Maharashtra and ors, (Writ Petition No. 161 of 2008) decided on 21 June 2013, after considering provisions of CRZ Notification dated 6 January 2011 this Court dealt with similar situation and held as under:

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“16. It appears that the NCZMA is in the process of preparing a New Coastal Zone Management Plan for the Mumbai region and Raigad district. The question is whether the respondent authorities should be permitted to stop the petitioner-developer from proceeding with the construction as per the approved Municipal plans on the ground that the new Coastal Zone Management Plan is not yet prepared, published and implemented.

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17. It is clear that the petitioner's case is not a borderline case, with uncertainties whether the land would fall in CRZ area in the new Coastal Zone Management Plan. The present case is a clear case that while measuring CRZ area, instead of taking the creek as the tidal body, sea was erroneously taken as the tidal body. The MCZMA's view in favour of the petitioner is based on the survey conducted by National Institute of Oceanography (NIO) Goa and Centre for Earth Science and Studies (CESS) Trivendrum, both expert agencies recognized by NCZMA. “The doubt

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about dusk is not the doubt about noon” (Salmond on Jurisprudence).”

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11. In the present case also, as recorded in the minutes of the meeting of the MCZMA on 10 June 2013, it is specifically noted that the project proponent i.e. petitioner developer has submitted CRZ map prepared by the Institute of Remote Sensing, (IRS) Chennai in 1:4000 scale, which shows the site is at 240.6 mt. from Ulhas River. Learned counsel for the petitioners also pointed out that the site is also at about 1.5 km from the distance up to which tidal effects are exercised, as indicated in the CRZ Notification dated 6 January 2011 (Exh.`H' page 136).

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12. In view of the above material on record, we are of the view that petitioners' case is similar to the case of Rustomjee Realty Private Limited and another (supra) and therefore respondents Nos.3, 4 & 5 are required to be directed not to raise any objection against the petitioners commencing construction on lands in question as per the approved municipal plans, merely on the ground that new coastal zone management plan is not yet prepared, published or implemented or on the ground that petitioners have not obtained any CRZ clearance from MCZMA or NCZMA.”

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The petition is accordingly disposed of with a direction to MCZMA to issue clearance certificate to the petitioners on the basis of certificate granted by Institute of remote Sensing indicating that the project site is beyond 100 meters from the high tide line of Back Bay i.e. the land falls outside the CRZ area. This shall be done

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within a period of six weeks from the date of receipt of this order. After receiving clearance from the MCZMA, the Municipal Corporation for Greater Mumbai, is directed to consider the petitioners' application for development on the land which falls outside the CRZ area, in accordance with law.

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Rule is made absolute to the aforesaid extent. There

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shall be no order as to costs.

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Parties to act on the basis of a copy of this judgment duly authenticated by an Associate of this Court.

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CHIEF JUSTICE

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(B.P. COLABAWALA,J.)

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Marin Drive Hospitality and Realty Pvt.Ltd. and Anr. v. Maharashtra Coastal Zone Management Authority and 3 Others

Case brief

What is this about?

What did the court decide?

Marin Drive Hospitality and Realty Pvt.Ltd. and Anr. v. Maharashtra Coastal Zone Management Authority and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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