Mira Bhaindar Municipal ... vs State Of Maharashtra And Ors
2023 Latest Caselaw 1634 Bom

Kishor V. Kamble                                 905 WP. 15940 OF 2022.odt

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 15940 OF 2022


Mira Bhaindar Municipal Corporation,                    )
Through the Commissioner                                )
S/at : Indira Gandhi Bhavan,                            )
Chatrapati Shivaji Maharaj Marg,                        )
Bhaindar (W), Dist. Thane                               )...Petitioner


               VERSUS


1. State of Maharashtra                                 )
   Through Secretary, Environment Deptt.                )
   S/at : Mantralaya, Mumbai.                           )

2. Addl. Principal Chief Conservator of Forests         )
   Mangrove Cell, S/at : 302, Wakefield House,          )
   Madam Kama Road, Mumbai 400 032                      )

3. State Environment Impact                             )
   Assessment Authority                                 )
   Room No. 217, 2nd Floor, Mantralaya Annex,           )
   Madam Kama Road, Mumbai 400 032                      )

4. Maharashtra Coastal Zone                             )
   Management Authority                                 )
   S/at 15th Floor, New Administrative Building,        )
   Opp. Mantralaya, Mumbai 400 032                      )

5. The Bombay Environment Action Group                  )
   203, Rejendra Chambers, 19, Nanabhai lane,           )
   Fort, Mumbai 400 001.                                ) ...Respondents




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 Kishor V. Kamble                                                 905 WP. 15940 OF 2022.odt

Mr. N. R. Bubna for Petitioner.
Ms. Nisha M. Mehra, AGP for State - Respondent Nos. 1 & 2.
Ms. Jaya Bagwe for Respondent No. 4 (MCZMA).
Ms. Sheetal Shah a/w. Ms. Dimple D. Bitra i/b. M/s. Mehta &
Girdharlal for Respondent No. 5.


                                 CORAM : S. V. GANGAPURWALA, ACJ &
                                         SANDEEP V. MARNE, J.

                                 DATE        : 17th FEBRUARY, 2023.


JUDGMENT (per : SANDEEP V. MARNE, J.)

1. Rule. Rule is made returnable forthwith with the consent of

the parties and is taken up for final disposal. Learned AGP waives

notice on behalf of respondent Nos. 1 & 2 - State. Ms. Jaya Bagwe

waives notice on behalf of respondent No. 4 and Ms. Sheetal Shah

waives notice on behalf of respondent No. 5.

2. This petition is filed by Mira Bhaindar Municipal

Corporation seeking leave of this court to execute the project of

proposed reconstruction of Community Hall (Samaj Mandir) and

Wrestling Court at Dr. Babasaheb Ambedkar Nagar within the limits

of the Municipal Corporation ('the project').

3. It is averred in the petition that there is existing Ground + 1

structure of Community Hall (Samaj Mandir) at Dr. Babasaheb

Kishor V. Kamble 905 WP. 15940 OF 2022.odt

Ambedkar Nagar. The plot on which Samaj Mandir is located comes

within 50 meter mangrove buffer zone and falls in CRZ II area on

landward side. It is further averred that the existing structure of

Samaj Mandir and Wrestling Court is not only old but also insufficient

to cater to the growing population of the area. It has therefore been

proposed to reconstruct a new Ground + 2 structure of Samaj

Mandir and Wrestling Court on the same plot by demolishing old

structure. It is contended that the project is for public purpose.

4. Petitioner approached Maharashtra Coastal Zone

Management Authority (MCZMA) seeking its approval for execution

of the project. MCZMA in its meeting held on 24 th August, 2022

recommended the proposal of the petitioner from CRZ point of view.

Petitioner has accordingly filed present petition seeking leave of this

court to execute the project.

5. Leave is sought in view of judgment and order dated 17 th

September, 2018 passed by this court in P.I.L. No. 87 of 2006 filed

by Bombay Environment Action Group (BEAG). This court has

imposed total freeze of destruction or cutting of mangroves in the

entire State of Maharashtra as well as stoppage of all constructions

within 50 meters site of mangroves area. Leave of this Court is

Kishor V. Kamble 905 WP. 15940 OF 2022.odt

required to be taken if any project is to be executed within CRZ

areas or mangrove's buffer zone areas.

6. Appearing for petitioner Mr. Bubna the learned counsel

would submit that execution of the proposed project is for public

purpose. He assures the court that the reconstruction of Samaj

Mandir and Wrestling Court would be done on the same plot without

exceeding its boundaries. That there is no requirement of felling any

mangrove tree nor there is any necessity of diversion of mangrove

forest. He submitted that petitioner corporation has already obtained

permission from MCZMA.

7. On our directions, petitioner has impleaded BEAG as

respondent No. 5. Ms. Shah the learned counsel appearing for

BEAG would submit that since petitioner has already obtained

necessary permission of MCZMA for execution of the project and

since such execution does not involve felling of any mangrove trees

or diversion of any mangrove forest area, BEAG would not oppose

execution the project.

8. Ms. Bagwe the learned counsel appearing for MCZMA

confirms the position that petitioner corporation has obtained

necessary permission from MCZMA for execution of the project. We

Kishor V. Kamble 905 WP. 15940 OF 2022.odt

have also heard Ms. Mehra the learned AGP.

9. The site at which the proposed project is to be executed is

located in mangrove buffer zone and CRZ II area. However,

execution of the project does not involve falling of any mangrove

trees. There already exists building of Samaj Mandir and Wrestling

Court. The Municipal Corporation wants to demolish the existing

Ground + 1 structure and intends to replace it with Ground + 2

structure within the same plot. Learned counsel for the petitioner has

assured this court that petitioner corporation would not exceed the

boundaries of plot on which the existing structure is located.

10. The MCZMA has already recommended the proposal of

petitioner corporation in it's 160 th meeting held on 24th August, 2022

and has imposed following conditions.

i. The Local Body to ensure that FSI for the proposed reconstruction is as per the town and country planning regulation existing as on 19.02.1991 before issuing commencement certificate to the project.

ii. PP to obtain the prior High Court permission, since the part of the project activity falls within 50 m mangrove buffer zone area.

Iii. Debris generated during the project activity should not be dumped in CRZ area. It

Kishor V. Kamble 905 WP. 15940 OF 2022.odt

should be processed scientifically at a designated place.

iv. All other required permission from different statutory authorities should be obtained.

11. Mr. Bubna the learned counsel appearing for the

corporation further assures this court that all the conditions imposed

by MCZMA would be scrupulously followed. Statement is accepted

as an undertaking to this Court.

12. In view of position emerging before us, we deem it

appropriate to grant leave to petitioner Municipal Corporation to

execute the proposed project. The writ petition is accordingly

allowed in terms of prayer clause (a) which reads thus-

a. "That permission may kindly be granted to execute the project of proposed reconstruction of Samaj Mandir and Wrestling Court at Dr. Babasaheb Ambedkar Nagar within limits of petitioner corporation

annexed to present petition at Exh. A."

13. Rule is made absolute in above terms.

SANDEEP V. MARNE, J. S. V. GANGAPURWALA, ACJ