Brihanmumbai Municipal Corporation vs Union of India through the Ministry of Environment Forest and Climate Change

Ms. Deepali Bagla i/b Bagla and Associates, for the Respondent No.5. Ms. Savita Ganoo a/w Ms. Tanu Bhatia, for the Union of India. Mr. P. L. Dhanawade, SE, MCGM. Mr. P. S. Wankede, SE, MCGM.

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CORAM : REVATI MOHITE DERE &

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DR. NEELA GOKHALE, JJ.

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DATE : 4^th JULY 2025.

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P.C.:-

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The Petitioner essentially seeks a direction to the Respondent Authorities to permit the Petitioner to execute the project

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of construction of providing and laying 800 mm, 1200 mm, 1400 mm and 1800mm dia pipe sewer line by Micro tunneling method from Bhandup Pumping Station to Hari Om Nagar by discarding the Bombay Urban Disposal Project (‘BUDP’) pumping station at MHADA

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Colony, Mulund (East) in ‘T’ Ward, in view of the public importance

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of the project and the directions of this Court recorded at paragraph 83(viii) of the Judgment and Order dated 17^th September 2018 passed in PIL No. 87 of 2006.

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The Petitioner is the Brihanmumbai Municipal Corporation tasked with developing, conserving, regulating, facilitating and administering all the civic activities in the City of Mumbai. It has proposed a public utility project which entails construction of providing and laying 800mm, 1200 mm, 1400 mm and 1800mm dia. pipe sewer line by Micro tunnelling method from Bhandup Pumping Station to Hari Om Nagar by discarding BUDP pumping station at MHADA Colony, Mulund (East) in ‘T’ Ward. According to the Petitioner, the project is proposed to be developed for the purpose of expansion of sewerage network and collection efficiency. Implementation of the project has the potential to achieve effluent and receiving water quality standards for both industrial and municipal waters.

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The Ministry of Environment, Forest and Climate Change (MoEF) issued Gazette Notification on 18th January, 2019 (CRZ Notification 2019) for controlling and/or regulating the activities

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within the Coastal Regulation Zone. It is the Petitioner’s case that as per the report prepared by IRS, Chennai, a part of the project falls in CRZ-IA (50m. mangrove buffer zone), CRZ-IB, CRZ-II and also passes through CRZ-IA (Eco-sensitive Zone). An area of about 1924.89 mtrs of the said project falls outside CRZ area and the said project of laying of sewer pipeline is a permissible activity as per Clause 5.1.1 read with Clause 5.1.2 and Clause 5.2 of the CRZ Notification 2019. It is specifically stated that there is no destruction of mangroves contemplated in the implementation of the said project. It is however submitted that since the said project is in CRZ-II and III area and also happens to traverse through CRZ-I area, the CRZ clearance had to be considered by the Respondent No.1 based on the recommendations of the Respondent No. 2.

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The Petitioner thereafter, submitted an application vide a letter dated 1^st December 2023 to the Divisional Project Officer, MMCU for grant of approval from the Monitoring Committee of Thane Creek Flamingo Eco Sensitive Zone to carry out the said project as part of the project falls in the Eco Sensitive Zone notified area of the Thane Creek Flamingo Sanctuary. The Thane Creek

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Flamingo Sanctuary ESZ Monitoring Committee considered the said project in its 7^th committee meeting and it was found to be in the scope of regulated activities as per the Thane Creek Flamingo Sanctuary’s Notification dated 14^th October 2021.

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Pursuant to the condition imposed by the Respondent

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No.4 herein, the Petitioner, on 15th April 2024 duly made the payment of Rs. 2,68,260/-, i.e, 2% of Rs. 1,34,13,000/-,i.e., the total cost of the project falling within the protected area in favour of ‘Mangroves and Marine Biodiversity’.

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On 18^th April 2024, the Petitioner made an application to the Respondent No.2 for CRZ Clearance for the proposed project in accordance with the provisions of the CRZ Notification 2019. The Respondent No.2, on 21^st June 2024, after considering the presentation made by the Petitioner, the details of the said project and after considering all the relevant material factors, recommended the proposal of the said project for CRZ clearance to the Director, CRZ of the Respondent No. 1. As per the Specific Condition No. (ii) of the recommendation, prior leave of this Court is required before commencement of the project.

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The Expert Appraisal Committee ( “EAC” ) of the MoEF & CC duly considered the said project for CRZ clearance and on 11^th September 2024 the MoEF & CC has granted the CRZ clearance for the said project. It was however stipulated that the leave of this Court is necessary before commencement of the project at the Specific condition No. 3. All the documents are place on record of this Court as annexed to the present petition.

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In PIL No. 87 of 2006, filed by the Respondent no.6 – Bombay Environmental Action Group, a Division Bench of this Court, issued several guidelines and while disposing the said PIL declared that in view of applicability of the public trust doctrine, the State is duty bound to protect and preserve the mangroves. The mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court finds it necessary for public good or public interest. In its order dated 17th September, 2018, it was, inter alia, held as under: -

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“83 (viii) In view of applicability of public trust doctrine, the State is duty bound to protect and preserve mangroves. The mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless

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the Court finds it necessary for the public good or public interest. ”

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Thus, the order dated 17th September 2018 passed by this Court clearly envisages seeking of leave of this Court for execution of any project in the CRZ area.

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Mr. Saket Mone, learned counsel for the Petitioner submits that the project of the Petitioner are public utility project. It is further submitted that project do not entail felling of any mangroves and the Petitioner has obtained all the statutory permissions. Therefore, it is contended that the permission be granted for the project of the Petitioner. He also submits that in addition to the specific permission of obtaining the leave of this Court, the Petitioner has also obtained specific permissions which are as under:

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a. Specific Condition No. (ii) imposed by the Respondent

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No. 2 in its 174^th minutes of meeting held on 3^rd and 4^th of June 2024 vide its letter dated 21^st June 2024;

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b. Specific Condition No. (iii) imposed by the Expert

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Appraisal Committee of MoEF&CC in its 369^th meeting dated 11^th July 2024;

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c. Specific Condition No. (e) imposed by the Thane Creek Flamingo Sanctuary ESZ Monitoring Committee and Divisional Forest Officer in its ESZ Approval dated 8^th August 2024;

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d. Specific Condition No. (ii) in the CRZ Clearance dated 11^th September 2024 issued by the Respondent No. 1;

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On the other hand, Ms. Savita Ganoo, learned counsel representing the Union of India and Ms. Jaya Bagwe, learned counsel for the MCZMA submitted that the clearances have been granted to the project of the Petitioner and the Petitioner is bound to comply with the terms and conditions subject to which the clearances have been granted. She further stated that in addition to the permissions taken from various authorities, the Petitioner is also bound to take permission from the Salt Department, if such permission is necessary.

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We have heard the counsel appearing for the parties and perused the record with their assistance.

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The project in question is a public utility project. All the authorities, i.e., MoEF and MCZMA have granted permissions to the project of the Petitioner. It is also pertinent to note that the project of

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the Petitioner does not involve cutting of any mangroves. It is seen that the MCZMA has recommended the project for grant of CRZ clearance by the MoEF, which in turn granted the CRZ clearance.

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Thus, the Petition is allowed in the aforesaid terms, subject to the condition that a responsible officer of the Petitioner shall file an undertaking before this Court within a period of two weeks stating that the Petitioner shall ensure strict compliance of the conditions which are imposed in the permissions secured by it from various authorities. The Petitioner shall also take the permission from

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the Salt Department of the Union of India, if such permission is necessary, before commencement of the proposed project.

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List the Petition on 25^th July 2025 for recording compliance i.e. filing of Petitioners undertaking as stated in Paragraph 13 of this order. The Respondent No.4 to also file an affidavit detailing the utilization of the amounts deposited by the Petitioner as stated in Paragraph No.5 of this Order.

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The Petition is disposed of accordingly.

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All parties to act on an authenticated copy of this order.

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(DR. NEELA GOKHALE, J.) (REVATI MOHITE DERE, J.)

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Brihanmumbai Municipal Corporation v. Union of India through the Ministry of Environment Forest and Climate Change

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Brihanmumbai Municipal Corporation v. Union of India through the Ministry of Environment Forest and Climate Change

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