Municipal Corporation Of Greater ... vs The State Of Maharashtra And 4 Ors
2021 Latest Caselaw 5086 Bom

                                                                     18. WP(L) 2058-2021.doc


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

                             WRIT PETITION (L) NO. 2058 OF 2021

         The Municipal Corporation of Greater Mumbai                  .Petitioner
                       Vs.
         The State of Maharashtra & ors.                              .Respondents

         Ms Kiran Bhagalia a/w Mr. Musharaf Shaikh & Ms K. H. Mastakar
         i/b. Ms Aruna Savla, Advocate, for the Petitioner
         Ms Geeta Shastri, AGP, for the Respondent - State
         Mr. Rui Rodrigues, Advocate, for the Respondent No. 2
         Ms Jaya Bagwe i/b. Ms Sharmila Deshmukh, Advocate, for the
         Respondent Nos. 3 & 4
         Mr. Yazad Udwadia a/w Ms Sheetal Shah i/b. M/s. Mehta &
         Girdharilal, Advocate, for the Respondent No. 6
         Smt. Ashwini Pawar, Sub. Engineer (SWD) E. S., MCGM present
         Shri Rushikesh Naik, Sub. Engineer (SWD) Eastern, MCGM
         present

                           CORAM       :   SUNIL P. DESHMUKH &
                                           G. S. KULKARNI, JJ.

                           DATE        :   22.03.2021
         P. C.

         .                 This is a Petition by the Municipal Corporation of

Greater Mumbai ( for short 'MCGM' ) praying for reliefs that

permission be granted to the MCGM to undertake a public work

of, "Training / widening / deepening and construction of

protection wall alongwith construction of adjoining service road

of Laxmi Baug Nalla System at Ramabai Ambedkar Nagar in N

Ward."

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2. This Petition has been filed in the light of the

directions of this Court in PIL No. 87 of 2006 ( Bombay

Environmental Action Group and another Vs. The State of

Maharashtra and others ) decided on 17.09.2018, ( for short

"BEAG's case" ) by which this Court ordered a total freeze on the

destruction and cutting of mangroves in the entire State of

Maharashtra. However, as per the directions as contained in para

83(viii) of the said Judgment an exception was carved out qua

public works. The Court observed that considering the

applicability of public trust doctrine, the State is duty bound to

protect and preserve mangroves, and that 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 the public

good or public interest.

3. What is espoused by the MCGM in the present

proceedings is the public interest concerning the construction of a

protection wall as specifically described in paragraph one of the

Petition.

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4. Ms Bhagalia, learned counsel for the Petitioner has

drawn our attention to an order passed by the Maharashtra

Coastal Zone Management Authority ( for short 'MCZMA' ) on

10.10.2019, whereby on an application/proposal as made by the

petitioner, for the work in question, a conditional permission has

been granted subject to a final approval to be granted by the State

Level Environment Impact Assessment Authority (for short

'SEIAA').

5. In pursuance of the CRZ clearance as granted by the

MCZMA, the petitioner approached the SEIAA, which considered

the said proposal of the Petitioner in its 194th meeting and granted

its approval to the works in question, subject to specific conditions

and general conditions as set out in para 4 of its decision dated

31.3.2020. From a perusal of such clearance, it is quiet clear that

both these authorities have considered the project in question to

be a public project and subject to compliance of conditions as

incorporated in the approvals have permitted the Petitioner to

proceed with the project. The SEIAA has incorporated condition

No.5 in its approval, whereby the Petitioner has been called upon

to take approval of this Court in terms of the directions issued by

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this Court in the BEAG's case.

6. Ms.Shastri, learned AGP for the State, learned counsel

for the 'BEAG' and Mr. Rodrigues, learned counsel for the Ministry

of Environment and Forest (MOEF) would submit that they have

no objection for this Court to grant the prayers as made in the

petition, however, it should be subject to the petitioner complying

the conditions as set out in the approval, as granted by the

authorities.

7. We have also heard Mr.Udwadia and Ms Shah, learned

counsel for the BEAG-Respondent No. 6. On the last occasion on

15.03.2021 this Court had passed an order calling upon the BEAG

to inform its concerns in relation to the project to the petitioner.

Accordingly, a letter was addressed by the BEAG to the Petitioner

in regard to the dimensions of the construction to be undertaken.

Ms Bhagalia has tendered an Affidavit placing on record the

response of the petitioner to such concerns of the BEAG. Learned

counsel for the BEAG desired some clarification in respect of the

width of the wall. Ms Bhagalia, learned counsel for the Petitioner

on instructions from the concerned officers, who are present in

Court informs that width of the wall would be one meter. On such

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information being furnished by Ms Bhagalia, learned counsel for

the BEAG submits that her client would not have any objection for

such construction to be undertaken.

8. Ms Bhagalia during the course of her arguments has

also submitted that the mangroves are in fact on the opposite side

of the site of construction of the wall and hence, would not suffer

any destruction, however, as they are in the vicinity of the area of

such construction as per the directions of this Court in BEAG's

case, the petitioners have approached this Court.

9. We have heard learned counsel for the parties. We

have also perused the record. We are satisfied that the Petitioner

has obtained requisite permissions to undertake the work in

question, which is a public project. We may observe that the

mangroves are on the opposite side of the wall and hence, are not

likely to be affected. Ms Bhagalia, learned counsel for the

Petitioner has also stated that her client undertakes to comply all

conditions which are set out in the clearances/approvals and an

undertaking to that effect of such compliance would be placed on

record of this Court within one week from today.

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10. In the above circumstances, we propose to allow the

Petition. It is allowed in terms of prayer clause (a). Disposed of in

the above terms. No costs.

( G. S. KULKARNI, J. ) ( SUNIL P. DESHMUKH, J. )

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