Bombay High Court
Maharasshtra Maritime Board Thr. Chief ... vs Union Of India Thr. Ministry Of ... on 6 February, 2024
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:5615-DB
WP-8671-22.doc
BDP-SPS-
BHARAT
DASHARATH
PANDIT IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
BHARAT
DASHARATH
CIVIL APPELLATE JURISDICTION
PANDIT
Date: 2024.02.06
10:44:52 +0530 WRIT PETITION NO. 8671 OF 2022
Maharashtra Maritime Board ]
A Statutory Board constituted under ]
the Maharashtra Maritime Board ]
Act, 1996 through the Chief Executive ]
Officer, having office at 3rd Floor, ]
Indian Mercantile Chambers, Ramjibhai ]
Kamani Marg, Ballard Estate, ]
Mumbai - 400 038 ] ..... Petitioner.
V/s
1] Union of India ]
Through the Ministry of Environment ]
Forest & Climate Change, Paryavaran ]
Bhavan, New Delhi 110002 ]
Maharshi Karve Road, New Marine ]
Lines, Mumbai - 400 020 ]
]
2] Maharashtra Coastal Zone ]
Management Authority Through the ]
Additional Chief Secretary, ]
nd
Environment Department, 2 Floor, ]
Room No.217, Annexe Buildging, ]
Mantralaya, Mumbai - 400 032 ]
]
3] State of Maharashtra ]
Environment Department, through the ]
Office of Government Pleader, Bombay ]
High Court, PWD Building, Fort, ]
Mumbai - 400 001 ]
]
4] Chief Conservator of Forest ]
(Mangrove Cell), through the Office ]
1/13
::: Uploaded on - 06/02/2024 ::: Downloaded on - 24/02/2024 18:44:52 :::
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of Government Pleader, Bombay ]
High Court, PWD Building, Fort, ]
Mumbai 400 001 ]
]
5] State Environmental Impact ]
Assessment Authority, Maharashtra ]
through the Office of Government ]
Pleader, Bombay High Court, PWD ]
Building, Fort, Mumbai 400 001 ]
]
6] Bombay Environment Action ]
Group (BEAG), 203, Rajendra Chambers,]
19, Nanabhai Lane,Fort, Mumbai 400001] ......Respondents.
-----
Mr. Saket Mone a/w Ms. Anchita Nair i/b Vidhi Partners for the
Petitioner.
Mr. Nirman Sharma a/w Ms. Sheetal Shah & Mr. Sanjay Maji i/b M/s
Mehta & Girdharilal for Respondent No.6.
Mr. D.P. Singh i/b Mr. Arjun Gupta for Respondent No.1-UOI.
Mr. A.I. Patel, Addl. G.P. a/w Ms. Kavita N. Solunke, AGP for
Respondent No.3-State.
Ms. Jaya Bagwe for Respondent No.2- MCZMA.
-----
CORAM: A.S. CHANDURKAR &
JITENDRA JAIN, JJ.
ARGUMENTS HEARD ON : 04/01/2024
JUDGMENT PRONOUNCED ON : 06/02/2024
ORAL JUDGMENT: (Per A. S. Chandurkar, J.)
1] Rule. Rule made returnable forthwith and heard the learned
Counsel for the parties.
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2] The Petitioner, a statutory Board established under the provisions
of the Maharashtra Maritime Board Act, 1996, has filed this Writ
Petition under Article 226 of the Constitution of India, seeking leave to
undertake the project of constructing a passenger jetty and allied
activities at Kalher, Thane in the light of the judgment of this Court in
Bombay Environmental Action Group and Another Vs. State of
Maharashtra and Another in PIL No.87 of 2006 and connected Writ
Petitions decided on 17/09/2018.
3] According to the Petitioner, the aforesaid project is a part of the
Inland Water Transport project that connects Thane, Kalyan and Vasai
which has been declared as National Waterway 53. Since there is a
lack of proper connectivity from Vasai to Kalyan except for road
network, as an alternative, a water route has been proposed to connect
these points. In this backdrop and especially with a view to undertake
various allied activities, the Petitioner has approached this Court.
4] The Maharashtra Coastal Zone Management Authority - MCZMA
in its 158th meeting held on 11/12/2022 has recommended the
proposal from CRZ point of view to the State Environmental Impact
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Assessment Authority - SEIAA subject to various conditions including
the condition that no mangroves should be cut/cleared during
construction and operation of the said project. The SEIAA in its 244 th
meeting held on 14/06/2022, after deliberations, granted CRZ
clearance subject to complying with conditions stipulated by MCZMA.
By a further communication dated 20/06/2022, the SEIAA has
imposed specific conditions including the aspect that mangroves should
not be cut/cleared and the creeklet adjacent to the project site should
not be reclaimed. The proposed construction was required to be
carried out strictly as per the provisions of CRZ Notification, 2011. On
the basis of these permissions, leave of the Court has been sought in
terms of paragraph 83 of the decision in Bombay Environmental
Action Group and Another (supra).
5] Mr. Saket Mone, the learned Counsel appearing for the Petitioner
referred to the aforesaid statutory permissions and submitted that since
the project was of public importance and the object was to provide an
environmental friendly and cost effective alternative to the road and
rail commuters, leave of the Court may be granted. It was submitted
that during the course of execution of the said project, no mangroves
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would be cut. He invited our attention to the allied activities as
proposed to be carried out while executing the project which were as
under:-
"1. Jetty with offshore area 1160 Sq. m
2. Terminal Bldg. 144 Sq.m
3. UDT & Pump Room 18 Sq.m
4. Parking Area 875 Sq.m
6. Offshore Area 1580 Sq.m
7. Onshore Area 928 Sq.m
8. Septic Tank 30 Sq.m
9. Security Cabin area 9 Sq.m"
Since no mangroves were proposed to be cut and that the allied
activities including construction of a jetty were not a prohibited activity
within the Coastal Regulation Zone (CRZ) under Notification dated
06/01/2011, the Petitioner was entitled to grant of such leave. To
substantiate this contention, the learned Counsel relied upon the orders
passed by this Court in Writ Petition (L) No.44 of 2019 (Maharashtra
Maritime Board vs. Union of India and others) decided on 25/02/2019,
Writ Petition No.2710 of 2020 (Maharashtra Maritime Board vs. Union
of India and others) decided on 07/08/2020 as well as the judgment in
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Writ Petition No.759 of 2021 (Maharashtra Maritime Board vs. Union
of India, through the Ministry of Environment Forest & Climate Change
and others) and connected Writ Petitions decided on 29/10/2021
wherein it was held that in the context of CRZ Notification, 2011, the
setting up of a jetty was not a prohibited activity but was a regulated
activity. Our attention was also invited to the orders passed by the
Hon'ble Supreme Court in the proceedings arising out of challenge to
the judgment of this Court in Writ Petition No.759 of 2021 referred to
hereinabove and it was stated that permission to construct the jetty
therein was permitted by keeping the question of law open. Reference
was thereafter made to the affidavit dated 18/12/2023 filed on behalf
of the Petitioner to submit that alongwith the construction of the jetty
with offshore area, ticket counter, security cabin and mooring facility
was intended to be carried out in the mangrove buffer zone and other
allied activities approved by MCZMA and SEIAA would be constructed
at 60 meters or beyond 60 meters of the mangrove buffer zone. It was
thus prayed that the leave as sought be granted.
6] Mr. D.P. Singh, the learned Counsel for Respondent No.1, Mr. A.I
Patel, the learned Additional Government Pleader for Respondent No.3
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and Ms. Jaya Bagwe, the learned Counsel for Respondent No.2 -
MCZMA did not dispute the grant of statutory permissions. Mr. Nirman
Sharma, the learned Counsel appearing for Respondent No.6 however
submitted that the construction of the jetty alongwith allied activities
sought to be undertaken by the Petitioner ought not to be permitted
since the same was a prohibited activity under the CRZ Notification,
2011. Reference was made to Clause-3 of the Notification of 2011 to
urge that the same was a prohibited activity. Since the jetty was sought
to be put up at an ecologically sensitive area, such activity was not
permissible under the said Notification. It was further submitted that
by undertaking various allied activities, it was likely that the mangroves
would be destroyed, thus defeating the object of Notification of 2011. It
was also pointed out that besides the allied activities permitted by the
statutory authorities, additional activities in the form of ticket counter,
security cabin and mooring facility were also sought to be undertaken.
It was thus submitted that the leave as prayed for was not liable to be
granted even for the additional activities proposed by the Petitioner.
7] We have heard the learned Counsel appearing for the parties and
we have perused the documents on record. It is not in dispute that the
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MCZMA has recommended the proposal moved by the Petitioner from
CRZ point of view subject to various conditions which include the
prohibition to cut mangroves or clear them in any way. The SEIAA has
also imposed specific conditions to that effect, requiring the
construction to be carried out as per the provisions of the Notification
of 2011. Considering the fact that the MCZMA as well as the SEIAA
have recommended the proposal from CRZ point of view, the prayer
made by the Petitioner for grant of leave can be considered.
8] Coming to the contention raised by BEAG, we find that the issue
with regard to construction of jetty under the Notification of 2011 has
been considered by this Court in its decisions relied upon by the
learned Counsel for the Petitioner. We find that very same contentions
raised on behalf of the Bombay Environment Action Group had been
raised for consideration in Writ Petition No.759 of 2021 and connected
Writ Petitions decided on 29/10/2021. In paragraph 23 of the said
decision, it has been observed as under:-
"23. Thus, from a combined reading of paragraph
1, 3 and 4, it is clear that the activities which are
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related to waterfront or directly needing foreshore
facilities are expressly permitted under the 2011
Notification. Setting up of a jetty is clearly not
seen to be a prohibited activity but a regulated
activity, which becomes clear from a reading of
paragraph 4(i)(a) and (f)."
It has been further held that the object of the Notification of 2011 was
not merely to protect the environment but also to promote
development in a sustainable manner. By referring to principle of
sustainable development, it was held that leave was being granted to
execute the work of proposed passenger jetty in the said case. It is
true that this decision is the subject matter of challenge before the
Hon'ble Supreme Court. While modifying the initial interim orders, the
jetty constructed was permitted to be used by keeping the question of
law open.
9] Having perused the decision of the co-ordinate Bench in Writ
Petition No.759 of 2021, we are in agreement with what has been held
therein insofar as the aspect of construction of jetty under the
Notification of 2011 is concerned, that it was a regulated activity rather
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than a prohibited activity. We are therefore inclined to follow the ratio
of the aforesaid decision insofar as construction of the jetty is
concerned. We have also noted that in the affidavit filed on behalf of
Mumbai Mangroves Conservation Unit through its Divisional Forest
Officer dated 27/01/2023, it has been stated that the site in question
which is village Kalher is not a notified reserved forest and that it is at a
distance of 43 meters from the nearest mangrove which would be
within 50 meters of the buffer zone. It has been stated that since there
were no mangroves on the site and area was not notified as a reserved
forest, there was no objection to the construction of the jetty, subject to
compliance of forest laws and the leave of this Court.
We find from the material on record that the project intends to
reduce the traffic congestion and vehicular pollution that is caused by
the use of road net work by providing an alternate water route. The
object is to provide connectivity between Mira-Bhyandar and
Dombivali-Kalyan. It is stated that the project would have a positive
effect on tourism in the adjoining areas. We therefore find that there
being no private interest sought to be achieved by the Board and the
aim being to satisfy larger public interest coupled with the fact that no
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destruction of any mangroves is necessitated, the Board is found
entitled to grant of leave in terms of paragraph 83 (viii) of the decision
in the Bombay Environmental Action Group & Anr (Supra) as regards
the activities mentioned by it in its application.
10] In the affidavit filed on behalf of the Petitioner on 18/12/2023
further allied activities such as construction of ticket counter, security
cabin and mooring facility are sought to be undertaken in the
mangrove buffer zone area. Undisputedly, these additional activities
were not a part of the application that was moved by the Petitioner
while seeking clearance for the said project. For this reason, the allied
activities such as ticket counter, security cabin and mooring facility do
not find place in the recommendation by the MCZMA and that
recommendation is only for the proposed activities that have been
referred to in the application moved by the Petitioner. The Board has
not furnished relevant details as regards the exact area that would be
occupied by the ticket counter, security cabin and mooring facility. So
also the proposed location of these activities is also not indicated except
for stating that the same would be in the mangrove buffer zone area.
No doubt, these activities could be treated to be ancillary to the
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construction of the jetty but in the absence of the same being made part
of the application moved by the Board before the statutory authorities
and finer details of the same also not having been placed on record, we
are inclined to permit the Board to take appropriate statutory approval
for these activities in the light of the fact that the same are sought to
be undertaken in the mangrove buffer zone area. Granting leave as
sought by the Petitioner without the actual dimensions and location of
these facilities would not be permissible in the light of the ratio of the
decision in the Bombay Environmental Action Group & Anr (supra). To
that extent, the Board would be required to take requisite steps.
11] Hence, for aforesaid reasons the Writ Petition is allowed in
terms of prayer clause (a) which reads as under:-
"a) This Hon'ble Court be pleased to issue a
Writ of Mandamus or any other appropriate
writ or order or direction in the nature of
mandamus under Article 226 of the
Constitution of India, thereby directing the
Respondent Authorities to permit the Petitioner
to execute the proposed passenger jetty and
allied facilities at Kalher, Thane, in view of the
public importance of the project finding of this
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Hon'ble Court recorded at paragraph 83(viii)
of the Judgment and Order dated 17th
September 2018 passed by this Hon'ble Court
in PIL No.87 of 2006;"
The Board shall within a period of two weeks from today file on
record an affidavit of its responsible Officer undertaking to comply with
all the conditions imposed by the MCZMA, SEIAA as well as the
Mumbai Mangroves Conservation Unit.
Insofar as the activities of construction of ticket counter, security
cabin and mooring facility are concerned, the Board is at liberty to take
such steps as are found necessary and obtain necessary
permissions/clearance from the statutory authorities in accordance
with law. In case such request is made by the Board, the concerned
authorities shall consider that application in accordance with law
expeditiously considering the larger public interest involved.
12] Rule is made absolute in the aforesaid terms leaving the parties to
bear their own costs.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.]
