Shiv Shakti Welfare Association vs State of Maharashtra Th. Principal Secretary Maharashtra, Forest Dept

(32)wP-3082-2024.doc

rajshree

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3082 OF 2024 ALONGWITH

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INTERIM APPLICATION NO.1776 OF 2024

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IN

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WRIT PETITION NO.3082 OF 2024

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Shiv Shakti Welfare Association ] .. Petitioner vs. State of Maharashtra ] .. Respondents

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Mr.Akshay Patil a/w Mr.Lalit Doshi i/b Doshi & Co. for the Petitioner. Mr.Abhay Patki, Addl. GP a/w Mr.Suraj Gupte, AGP for the StasteRespondent Nos.1 and 2.

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Ms.Jaya Bagwe for Respondent No.3 (MCZMA).

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Ms.Oorja Dhond i/b Ms.Komal Punjabi for Respondent No.4-BMC. Mr.Satish Kamat for Respondent No.6.

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CORAM : ALOK ARADHE, CJ. & BHARATI DANGRE, J. DATE : 4^th FEBRUARY, 2025.

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JUDGMENT (PER BHARATI DANGRE, J) :

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The Petition filed by Shiv Shakti Welfare Association, an Association of persons formed by the occupants/ residents of Bhagat Singh No.1, Goregaon (West), Mumbai, seek following reliefs :

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a. That this Hon'ble court may be pleased to issue the order and direct to issue Writ of Certiorari to the Respondent No.2, 3 & 6, that order of this

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Hon'ble Court, in PIL No. 87 of 2006 is not applicable for domestic electricity connection for the residents of the Petitioners Members in Survey No.161 Plot No. 1A/D 29 & 1A/D 35, under the D.P. Plan 2034 not required permission of this Hon'ble Court.

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b. The Members of the Petitioners are entitled for electricity connection, Currently, there is no mangroves in their plots and for that the permission of the High Court is not required and / or it is not necessary under Forest Conservator Act 1980 to submit the proposal after calling records and papers pertaining to the impugned order dated 22/02/2024 and after considering the legality and propriety thereof be pleased to quash and set aside and direct the Respondent No.6 to provide domestic electricity connection to the Petitioners and their Members.

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c. In alternative to prayer (a) & (b) the Present Petition has been treated as in compliance of order in PIL No. 87 of 2006 direct the Respondent No.6 after ascertaining from the D.P. Plan, and its Remarks 2034 and ascertaining order in Column 9 of the said order dated 22/02/2024, when there are no mangroves on the said plots. This Hon'ble Court direct the Respondent No.6 to provide new electricity connection to the Members of the Petitioners.

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d. Pending hearing and final disposal of the above petition interim and adinterim reliefs in terms of prayer (a) & (b) above be granted to the Petitioners and their Members under the Provisions of temporary electricity connection under the Electricity Act 2003 till hearing and final disposal of the above Petition be granted and directed the Respondent No.6 to provide temporary electricity connection to the Petitioners premises.

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e. that, cost of the petition be provided for.

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f. that such other and further reliefs as the nature and circumstance of the case may require by the petitioners and its members.”

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The Petition has impleaded the State of Maharashtra through its Forest Department as well as the Additional Principal Chief Conservator of Forest (Kandalvan Cell) as Respondent Nos.1 and 2. The Maharashtra Coastal Zone Management Authority (MCZMA) is impleaded as Respondent No.3, whereas Municipal Corporation of Greater Mumbai alongwith Union of India through Ministry of Environment, Forest and Climate Change (MOEFCC) are impleaded as Respondent Nos.4 and 5 respectively. Respondent No.6 is Adani Electricity Company.

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By consent of the learned counsel for the Petitioner and the Respondents, we issue ‘Rule’. Rule is made returnable forthwith.

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The Petition is filed being aggrieved by a communication of the Divisional Forest Officer, Mumbai Kandalvan Conservation Unit addressed to the Petitioner in reference to the Application for NOC from the Forest Department, for new electricity connection and informing that in the wake of order of the High Court in PIL No.87/2006 dated 17/09/2018 contemplating that “No development permission whatsoever should be be issued by any Authority in the State of Maharashtra in respect of any area under mangroves’ and to seek permission of the High Court to carry out the proposed work. Another direction to which a reference is made is about construction activities taking place within 50 meters on all sides of mangroves areas to be forthwith stopped, regardless of the ownership of the land having mangroves.

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On 07/05/2024 this Court issued notice to the Respondents.

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On 24/06/2024 the grievance of the Petitioner in respect of non supply of electricity connection was noted and it was also noted that for supplying the connection of electricity, Sub-station needs to be installed. But despite no objection being granted by the MCZMA, the Forest Department has refused the requisite NOC.

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The attention of the Court was drawn to the order dated 22/02/2024 passed by the Divisional Forest Officer, Mumbai Kandalvan Conservation Unit, mentioning that the concerned area is partly coming under the mangroves and there were some mangroves as on 31/12/2005, but currently there are no mangroves on the site. However, in the light of the directions issued in the PIL No.87/2006 on

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17/09/2018, which interalia mandated that regardless of ownership of the land having mangroves and the area of the land, no construction shall be permitted within 50 meters on all sites of all mangroves area, the contention of the Petitioner, that the entire area does not fall within the prohibited area in terms of the order passed in PIL No.87/2006, was also taken on record.

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6. Taking note of the aforesaid direction, following order was passed:

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“ Accordingly, we direct that such survey and demarcation shall be undertaken and completed by the Divisional Forest Officer with the help of the Revenue Officers and also the Officers of the Municipal Corporation of Greater Mumbai within three weeks. The demarcation shall clearly be made to depict the area which does not fall within the prohibited zone in terms of the order passed by this Court in Public Interest Litigation No.87 of 2006. Once the demarcation is done as per this order, the appropriate authority of the Forest Department shall reconsider the prayer for grant of NOC for the aforesaid purpose.”

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On 21/10/2024, this Court recorded thus :

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“1. The affidavit-in-reply filed by respondent No.6 today is taken on record.

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On 24 June 2024, we have passed the detail order directing the survey and demarcation of the area to distinguish the area falling within and outside the prohibited area. An affidavit has been filed by the Divisional Forest Officer stating therein that for various reasons demarcation is not easy and not possible. The affidavit-in-reply has been filed on behalf of the Maharashtra Coastal Zone Management Authority, according to which, the entire area does not fall within the prohibited zone.

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However, in the order dated 22 February 2024, passed by the Divisional Forest Officer concerned, it has been mentioned that the area is partly coming under the mangroves and that there were some mangroves as on 31 December 2005 and currently there are no mangroves on site.

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In the aforesaid circumstances, we direct that a meeting between the Divisional Forest Officer concerned and the appropriate officer of MCZMA shall be held within two weeks to consider and decide finally as to whether the area in respect of which electricity connection is being sought falls within the prohibited zone or not and further as to whether such area falls partially in prohibited zone and partially out side prohibited zone. On the basis of said

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consideration to be made in the meeting between the Divisional Forest Officer concerned and the Authorities of the MCZMA, minutes of the said meeting along with requisite documents shall be produced before the Court on the next date of listing.

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Stand over to 14 November 2024. To be placed High on Board.”

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During the course of hearing of the Petition, the learned counsel representing MCZMA has placed before us the compliance of aforesaid direction in form of Minutes of Meeting held on 25/10/2024 between Chairman, MCZMA and Additional Principal Chief Conservator of Forest Mangroves Cell at Environment Department, Mantralaya, Mumbai. The said Minutes are taken on record and marked as ‘x’ as identification.

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According to Mr.Patil the learned counsel for the Petitioner and Ms.Jaya Bagwe, the counsel representing Respondent No.3-MCZMA, the issue stand resolved after the said meeting and it is prayed that the Court should give green signal to the said project.

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We have perused the minutes of meeting, which, with reference to the directions issued by this Court on 21/10/2024 has recorded the following deliberation :

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“5. As per the said approved CZMP, 2019, subject site bearing CTS No. 161, Plot No. 1/A D 29 & D 35. Bhagat Singh Nagar, Goregaon, Mumbai is situated in the vicinity of creeket from the main Malad creek at Goregoan. However, the subject site is situated beyond the applicable CRZ limit of 50 meter from the creeklet ie the site is situated outside CRZ area. This has also been supplemented with the CRZ remarks of the subject site dated 5.9.2023 of the Municipal Corporation of Greater Mumbai, which states that subject site does not fall under CRZ. MCGM has provided the superimposed image of CZMP on DP 2034 (1:4000 scale)”.

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“7. After detailed deliberation and discussion, it is concluded that, the subject matter is out of ambit of the CRZ Notification, 2019 and CZMP approved

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under the said CRZ Notification by the Central Government. Moreover, presently, there are no mangroves on the subject site and it is privately owned and not in possession of Forest Department. This is submitted for decision of Hon. High Court of Mumbai.”

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In the wake of the conclusion derived as above, since an understanding between the MCZMA as well as Forest Department of State of Maharashtra is that the subject mater is out of ambit of CRZ Notification 2019 and CZMP approved under the said Notification and since it is agreed that there are no mangroves on the subject site and the land is privately owned and not in possession of the Forest Department, we find the issue to be resolved.

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The learned Additional Government Pleader Mr.Abhay Patki however, made an attempt to suggest that the Court shall take into consideration even the position of mangroves existing in the past and he would faintly suggest to us that the mangroves map of 2005 prepared by the Maharashtra Remote Sensing Centre of the subject site on part, had shown presence of mangroves.

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We fail to have this consideration before us in particular when the Additional Chief Conservator of Forest has agreed that presently there are no mangroves on the subject site and therefore we must express that there is no impediment in the project to take off, as it is of public importance and the Petitioners claim their entitlement for electric connection and this can happen only on construction of the sub station and since we are of the view that availability of electricity is a basic and integral part of life and its denial would violate rights under Article 21 of the Constitution of India and now the issue having been resolved amongst the Respondent Authorities, we had no hesitancy in granting relief as sought by the Petitioner.

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