Bombay High Court
Municipal Corporation Of Greater ... vs The Bombay Environmental Action ... on 5 January, 2021
Bench: G. S. Kulkarni
13-wpl-8571-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally
signed by
WRIT PETITION (ST.) NO.8571 OF 2020
Prashant V.
Prashant Rane
V. Rane Date:
2021.01.07
18:46:52
+0530
Municipal Corporation of Gr.Mumbai ...Petitioner
versus
1. The Bombay Environmental Action )
Group (BEAG) )
)
2. Mr.Debi Goenka )
)
3. The State of Maharashtra )
)
4. The Union of India through the )
Ministry of Environment & Forest, )
)
5. The Coastal Zone Management )
Authority )
)
6. The Collector, Mumbai )
Old Custom House. )
)
7. Chief Conservator Forest (Wildlife) )
)
8. The Collector, Mumbai, )
Bandra (East) )
)
9. Addl. Principal Chief Conservator )
of Forest & Mangrove Cell Head Mumbai )
)
10. Mumbai Metropolitan Region )
Development Authority )
)
11. Navi Mumbai Municipal Corporation )
)
12. Collector, Thane. )
)
13. Tahsildar Thane )
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13-wpl-8571-20.doc
14. Om Shree Vinayak CHS )
)
15. Dhanraj CHS )
)
16. Goodwill Developers )
)
17. CIDCO )
)
18. Shri kashiram Laxman Chinchecha )
)
19. Shri Moreshwar Laxman Chinchecha )
)
20. Smt. Vatsala Laxman Chinchecha )
)
21.Shri Vishwanath Laxman Chinchecha )
)
22. Shri Vijay Krishnaji Sawant )
)
23.Mira Bhayandar Municipal Corporation ) ..Respondents
----
Ms. K.H. Mastakar for Petitioner MCGM.
Ms. Shreya Parikh, Mr. Peterasp Sasuri i/b. Jayarar & Partners, for
Respondent Nos.1 and 2.
Ms. Geeta Shastri, AGP for State of Maharashtra.
Ms. Jaya Bagwe i/b. Ms. Sharmila Deshmukh for Respondent No.3
(MCZMA).
.....
CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- JANUARY 05, 2021.
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ORAL ORDER: (Per G.S.Kulkarni, J.)
1. Rule returnable forthwith. Respondents waive service. By
consent of the parties, heard finally.
2. The petitioner is the Municipal Corporation of Greater
Mumbai (for short 'MCGM') which intends to execute the "upgradation
work of design, fabrication, installation and commissioning of heavy
duty back rake type mechanical screening for Irla Nalla at Irla storm
water pumping station in K/West Ward." Such work is stated to be of
public importance, being undertaken to remove huge quantity of
floating material discharged into sea, which would otherwise adversely
affect environment and more particularly the aquatic condition of the
sea. It is stated that floating materials in the Irla Nalla adversely affect
the smooth operation of the flood gates and of the pumping station. The
MCGM has contended that if the installation of the back rakes are
undertaken, the trash would be arrested and removed from the drain
structure and the drainage(nalla).
3. The MCGM accordingly, moved a proposal with the
Maharashtra Coastal Zone Management Authority (for short 'MCZMA')
seeking its approval as the proposed work fell under the Coastal Zone
Regulations. The MCZMA in its 144th meeting held on 11 June 2020
considered the MCGM's proposal and recommended the same from the
CRZ point of view to the State Environment Impact Assessment
Authority (for short 'SEIAA'), subject to compliance of certain
conditions. One of the conditions being of a prior permission of this
Court to be obtained for the reason of the project being within 50
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meters of the mangroves buffer zone. The proposal was also sent to
Mangroves Cell for its approval on 20 July 2020. The MCGMs proposal
was submitted to SEIAA on 14 September 2020.
4. The MCGM has contended that the MCGM shall abide by
all conditions as may be imposed in the approvals that may be granted
by the different authorities before commencing the work. It is the case
of the MCGM that the proposed work does not require cutting of
mangroves, however, as the works fall under buffer zone of mangroves,
permissions were required to be obtained from the MCZMA and the
other authorities. To support this contention MCGM has annexed a
Google Earth Location showing the Existing Gate, Existing Screen and
Proposed Mechanical Screen at 'Exhibit D' to the petition.
5. In paragraph 9(g) of the petition, the MCGM has stated
that the proposed work would commence only after appropriate NOCs/
approvals are issued by the respective authorities namely the SEIAA, the
Mangroves Cell and on the orders passed by this Court as per the
directions as containing in the decision of the co-ordinate Bench of this
Court in Public Interest Litigation no.87 of 2006 in the BEAG's case
("The Bombay Environmental Action Group (BEAG) & Anr. Vs. State of
Maharashtra", dated 17 September 2018).
6. Ms.Mastakar, learned Counsel for the petitioner has taken
us through the averments as made in the petition and the documents as
placed on record. Ms.Mastakar has also drawn our attention to the
order dated 17 September 2018 in BEAG's case wherein although orders
are issued prohibiting cutting of mangroves, however a window has
been kept open for removal of mangroves, as per directions contained
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in paragraph 83 (viii) of the judgment, if the Court finds it necessary for
public good or in public interest. In any event the mangroves are not
being removed for the project in question in the present case.
7. On the above conspectus, the MCGM has prayed for the
following substantive relief:-
"(a) That this Hon'ble Court be pleased to issue a Writ of
Mandamus or a Writ Order or direction or any other appropriate
Writ, direction or order under Article 226 of the Constitution of
India, to grant permission to the petitioner, to carry proposed
upgradation work of design, fabrication, installation and
commissioning of heavy duty back rake type mechanical
screening for Irla Nalla at Irla storm water pumping station in K/
West Ward, as necessary permissions from the concerned
authorities have been received by the petitioner.
8. Ms.Parikh, learned Counsel for respondent no.1 - the BEAG
would not contest the factual matrix that the mangroves are not being
removed by the MCGM. Ms.Parikh would also not dispute that the work
in question is being undertaken by the MCGM in public interest. It is
also not being disputed that the MCZMA has recommended the
proposal to the SEIAA. Her only contention is that the better methods
can be adopted to implement the project.
9. Ms.Shastri, learned AGP would submit that the State
Government would not dispute what is contended by the MCGM. She
would, however, submit that the MCGM should abide by all the terms
and conditions which would be imposed by the authorities in
undertaking the project.
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13-wpl-8571-20.doc
10. Ms.Mastakar for the MCGM in responding to Ms.Shastri's
submission, makes a statement that the Corporation would strictly
adhere to all the conditions as imposed by different authorities which
would grant approval to the project.
11. Having heard learned Counsel for the parties and having
perused the record, it is quite clear to us that per se there is no
destruction of the mangroves by the MCGM in implementation of the
project work. The mangroves however being in the vicinity of 50
meters, the MCGM hence has approached this Court praying for the
above relief. Also the MCZMA has found it appropriate that the MCGM
approaches this Court and seeks permission considering the orders
passed by this Court in BEAG's case. It is also not in dispute that the
work in question is a public work and is of considerable importance,
and if executed it would safeguard and protect the environment. As
regards the contention as urged on behalf of respondent no.1 that
MCGM can have alternative/better methods to execute the work in
question, cannot be an issue which can be gone into in the present
proceedings. The MCGM with the technical expertise available at its
disposal has planned the project which is being implemented in the
public interest. In our opinion, methods to implement the project are
required to be left to the wisdom of the MCGM.
12. In the above circumstances, we are inclined to permit the
MCGM to undertake this project as per the permissions/approvals it
may obtain for this project from the concerned statutory authorities.
We accordingly allow the petition, in terms of the following order:-
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ORDER
I The State Environment Impact Assessment Authority shall
expeditiously consider the proposal as recommended by the MCZMA
and if the proposal meets all the necessary norms, pass such appropriate
orders permitting the MCGM to undertake the project, subject to
conditions which it may otherwise impose.
II The MCGM shall undertake the work in question in
compliance of all the terms and conditions which may be imposed by
the MCZMA and SEIAA and/or any other appropriate authority as
required by law.
III Rule is made absolute in the above terms. No costs.
13. This order will be digitally signed by the Private Secretary/
Personal Assistant of this Court. All concerned will act on production by
fax or e-mail of a digitally signed copy of this order.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
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