Bombay High Court
Maharashtra Maritime Board Thr. Chief ... vs Union Of India Thr. Ministry Of ... on 1 March, 2024
Author: A. S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:11013-DB
905 WP-8672-22.doc
BDP-SPS-
BHARAT
DASHARATH IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PANDIT
Digitally signed by
BHARAT
DASHARATH
PANDIT
CIVIL APPELLATE JURISDICTION
Date: 2024.03.07
10:27:58 +0530
WRIT PETITION NO. 8672 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 ]
And also at : Aayakar Bhavan, 2nd floor
]
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 Building, ]
Mantralaya, Mumbai - 400 032 ]
]
3] State of Maharashtra ]
Environment Department, through the ]
Office of Government Pleader, Bombay ]
High Court, PWD Building, Fort, ]
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Mumbai - 400 001 ]
]
4] Chief Conservator of Forest ]
(Mangrove Cell), through the Office ]
of Government Pleader, Bombay ]
High Court, PWD Building, Fort, ]
Mumbai 400 001 ]
]
5] Divisional Forest Officer, ]
Mumabi Mangrove Conservation ]
Unit, through the Office of Government ]
Pleader, Bombay High Court, PWD ]
Building, Fort, Mumbai 400 001 ]
]
6] Range Forest Officer, ]
Mangroves Cell, Navi Mumbai ]
through the Office of Government ]
Pleader, Bombay High Court, PWD ]
Building, Fort, Mumbai 400 001 ]
]
7] Bombay Environment Action ]
nd
Group 80, 2 Floor, Empire Building, ]
CST Area, 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 i/b M/s Mehta & Girdharilal
for Respondent No.7-Bombay Environment Action Group.
Ms. Jaya J. Bagwe for Respondent No.2-MCZMA.
Mr. Mr. Arjun Gupta for Respondent No.1-UOI.
Mr. N.C. Walimbe, Addl. G.P. a/w Ms. Kavita N. Solunke, AGP for
Respondent-State.
----
CORAM: A.S. CHANDURKAR &
JITENDRA JAIN, JJ.
DATE: 1ST MARCH, 2024
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ORAL JUDGMENT: (Per A. S. Chandurkar, J.)
1] The learned Additional Government Pleader has clarified that
affidavit in reply that was filed in the writ petition No.8675 of 2022
ought to be treated as having been filed in Writ Petition No.8672 of
2022 and vice versa.
2] Rule. Rule made returnable forthwith and heard the learned
Counsel for the parties.
3] 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 pile jetty as an extension to the
existing jetty with two turning circles and a parking area at village
Murbe, Palghar 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.
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4] According to the Petitioner, the aforesaid project aims to provide
better access to health and educational facilities by improving
connectivity between Murbe, Satpati and adjoining villages. In this
backdrop that the Petitioner has approached this Court.
5] The application made in May 2021 was considered by the
Maharashtra Coastal Zone Management Authority - MCZMA in its
158th meeting held on 11th and 12th/4/2022 and it recommended the
proposal from CRZ point of view to the State Environmental Impact
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. In
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the affidavit in reply filed by the Assistant Conservator of Forests dated
21/02/2022, it has been stated that Site No.191 has been notified as
mangrove reserved forest. Hence the permission of the Central
Government is necessary under the Forest (Conservation) Act 1980.
Accordingly, the Petitioner has applied for such permission on
16/10/2023. On the basis of aforesaid, leave of the Court has been
sought in terms of paragraph 83 of the decision in Bombay
Environmental Action Group and Another (supra).
6] 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
would be cut. He invited our attention to the allied activities viz two
turning circles of 10 m x 10 m each and a parking area of 20 m x 20 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
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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
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
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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.
7] Mr. D.P. Singh, the learned Counsel for Respondent No.1, Mr. A.I
Patel, the learned Additional Government Pleader for Respondent No.3
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,
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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.
8] 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
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.
9] 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
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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
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.
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10] 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
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
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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
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.
11] 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
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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
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.
12] 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
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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 pile jetty at village
Murbe District, Palghar in view of the public
importance of the project;"
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. The permission to carry out the
aforesaid work is subject to obtaining necessary permission under the
Forest (Conservation) Act, 1980 pursuant to the Petitioner's application
dated 16/10/2023 since Site No.191 has been notified as mangrove
reserved forest.
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
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authorities shall consider that application in accordance with law
expeditiously considering the larger public interest involved.
13] Rule is made absolute in the aforesaid terms leaving the parties to
bear their own costs.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.]
