Bombay High Court
Shabnam Minwalla vs The Maharashtra Maritime Board on 15 July, 2025
2025:BHC-OS:10787-DB
13336.24-wp+.docx
BASAVRAJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GURAPPA
PATIL ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
BASAVRAJ GURAPPA
PATIL
Date: 2025.07.15
WRIT PETITION (L) NO. 13336 OF 2025
11:29:24 +0530
Clean and Heritage Colaba
Residents Association (CHCRA) ..... Petitioner
Vs.
The State of Maharashtra
& Ors. ..... Respondents
WITH
WRIT PETITION (L) NO. 14795 OF 2025
Dr. Laura D'Souza & Ors. .... Petitioners
Vs.
The State of Maharashtra,
through the Principal Secretary
Department of Ports & Transport,
& Ors. ..... Respondents
----------------
Mr. Aspi Chinoy, Senior Advocate with Mr. Prerak
Choudhary, Mr. Prakash Choudhary, Ms. Anisha
Balse, Ms. Trisha Ranka, Ms. Regina David,
Mr. Sunil Shetty & Ms. Rucha Bhole for Petitioner in
WPL/13336/2025
Mr. Sunip Sen, Senior Advocate with Mr. Abhijeet
Desai, Ms. Soma Singh, Smt. Anita Castellino,
Ms. Mohini A. Rehpade, Mr. Vijay Singh,
Mr. Digvijay S. Kachare, Ms. Daksha Punghera,
Mr. Abhishek Ingle & Mr. Karan Gajra, for Petitioner
in WPL/14795/2025
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Dr. Birendra Saraf, Advocate General with Mr. Jay
Sanklecha, 'B' Panel Counsel & Mr. Vishal Thadani,
Additional Government Pleader for the State -
Respondent No. 1 & 6 in WPL/13336/2025
Dr. Birendra Saraf, Advocate General with Mr. Jay
Sanklecha, 'B' Panel Counsel & Smt. Jyoti Chavan,
Additional Government Pleader for the State -
Respondent No. 1 & 6 in WPL/14795/2025
Dr. Birendra Saraf, Senior Advocate with Mr. Jay
Sanklecha, Mr. Ishwar Nankani, Mr. Huzefa
Khokhawala & Mr. Karan Parmar i/b Nankani &
Associates for Respondent No. 2 in
WPL/13336/2025 & WPL/ 14795/2025
Dr. Milind Sathe, Senior Advocate with Mr. Gaurav
Shrivastava, Mr. Aditya Mhase i/b Ms. Jaya Bagwe,
for MCZMA, Respondent No. 3 in WPL/13336/2025
& WPL/14795/2025
Dr. Milind Sathe, Senior Advocate with Ms. Oorja
Dhond i/b Ms. Komal R. Punjabi, for MCGM,
Respondent No. 5 in WPL/13336/2025
Mr. Umesh Shetty, Senior Advocate with
Mr. Gopalkrishna Nayak i/b Flavia Legal, for
Respondent No. 7 in WPL/13336/2025 and
WPL/14795/2025
JUDGMENT RESERVED ON : JULY 1, 2025
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WITH
WRIT PETITION (L) NO. 15735 OF 2025
Shabnam Minwalla & Ors. .....Petitioners
Vs.
The Maharashtra Maritime Board
& Ors. .....Respondents
----------------
Mr. Shiraz Rustomjee, Senior Advocae with
Mr. Jai Chhabria, Ms. Smriti Singh, Mr. Pratkeek
Pai, & Ms.Arunima Athavale i/b Keystone
Partners, for Petitioner.
Dr. Birendra Saraf, Senior Advocate with Mr. Jay
Sanklecha, Mr. Ishwar Nankani, Mr. Huzefa
Khokhawala & Mr. Karan Parmar i/b. Nankani &
Associates for respondent No. 1.
Dr. Birendra Saraf, Advocate General with
Mr. Jai Sanklecha, 'B' Panel Counsel &
Smt. Lavina Kriplani, AGP for State-Respondent
No. 2, 3, 4 & 9.
Mr. Rui Rodrigues for respondent No. 5.
Dr. Milind Sathe, Senior Advocate with
Mr. Gaurav Shrivastav, Mr. Aditya Mhase i/b
Ms. Jaya Bagwe, for respondent No. 7-MCZMA.
Dr. Milind Sathe, Senior Advocate with Ms. Oorja
Dhond i/b. Ms. Komal Punjabi for respondent
No. 8 (BMC).
Mr. Omprakash Jha with Ms. Heenal Wadhwa
i/b. The Law Point for respondent No. 10.
JUDGMENT RESERVED ON : JULY 11, 2025
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CORAM: ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
JUDGMENT PRONOUNCED ON : JULY 15, 2025
JUDGMENT (PER : CHIEF JUSTICE)
INDEX
Sr. Heading Page
No. Nos.
I The Project 6-7
II Challenge 7-8
III Background Facts
(a) The first report 8-10
(b) The second report 11-12
(c) The third Report 12-13
(d) The Approvals/Clearances 13-15
SUBMISSIONS:
IV On behalf of the Petitioner in Writ Petition 15-20
V On behalf of the Petitioners in Writ Petition 20-21
(L) No./14795/2025
VI On behalf of petitioners in Writ Petition (L) 21-23
VII Submissions on behalf of the MCZMA, HCC 23-29
and MCGM
VIII Submissions on behalf of the MMB 30-35
IX Rejoinder submissions 35-39
X Analysis
XI RELEVANT STATUTORY PROVISIONS
(a) The Environment Protection Act, 1986 39-40
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(b) The Environment (Protection) Rules, 40-41
(c) Environment Impact Assessment 41-44
Notification 2006
(d) Coastal Regulation Zone Notification 44-51
2019.
(e) Office Memorandum dated 29th 52-54
November 2022
XII Issues 54-55
(A) First Issue 55-63
(B) Second Issue 64-71
(C) Third Issue 71-72
(i) Scope of Judicial Review 72-78
(ii) Principles of sustainable development 78-79
and precautionary principles
(a) Non-consideration of alternative site of 80-87
Ferry Wharf
(b) Challenge to the location of the project 87-95
and non-consideration of principle of
sustainable development and
precautionary principle.
(c) Non-disclosure of Consulting 95-100
Engineers' report and accurate
information while seeking MCZMA
clearance
(d) Amphitheatre 100-101
(f) Existing Jetties 101-102
(D) Fourth Issue - Validity of Heritage 102-110
NOC
(E) Fifth Issue - Validity of Traffic NOC 110-111
XII Conclusion 111-113
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Rule. Rule is made returnable forthwith. By
consent of learned counsel for the parties, heard finally.
2. These petitions are filed by Residents'
Associations and its members in Colaba area voice
apprehensions that construction of 'Passenger Jetty and
Terminal Facilities' abutting Gateway of India at Radio Club
by the State of Maharashtra and Mumbai Maritime Board
(hereinafter referred to as the MMB) would cause excessive
and needless harm to pristine environment. The
petitioners, by these three petitions, seek to halt the
project, inter alia; on the ground of preservation of nature
and precautionary principle that guards it. The writ petitions
were, therefore, heard analogously and are being decided
by this common order.
(I) THE PROJECT:
3. The proposal for construction of "Passenger Jetty
and Terminal Facilities" involves erection of a "Terminal
Platform" area of 80 x 80 mtrs. providing for parking of 150
cars, VIP waiting area, a food court, cafe and ticket
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counters/administrative areas (for the sake of brevity,
hereinafter referred to as the Project). This terminal area
has frontage of 250 ft. on the sea side pavement is to be at
a height of 4.5 mtrs. from road level. The proposed
construction also involves a tennis racquet shaped 'jetty'
extending from the terminal for a further 570 mtrs. into the
sea and a width of 203 mtrs. with 10 boarding platforms
extending from the outer rim of the Jetty. The project
indicates that inner rim of this jetty is not proposed to be
used for any purpose. An open air amphitheatre is also
proposed to be located on the Jetty. The built-up area in
the sea on the stilts of piles is stated to be 25,116 sq.mtrs.
(II) CHALLENGE:
4. In these writ petitions, the petitioners seek to
quash and set aside the order dated 2nd March 2023 passed
by the Maharashtra Coastal Zone Management Authority
(hereinafter referred to as the MCZMA) granting clearance
to the project. The petitioners also seek to quash and aside
the 'No Objection Certificate' dated 28 th January 2025 issued
by the Mumbai Traffic Police and 'No Objection Certificate'
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dated 7th February 2025 issued by the Heritage
Conservation Committee (hereinafter referred to as HCC)
and Municipal Corporation of Greater Mumbai (hereinafter
referred to as MCGM), to the project.
(III) BACKGROUND FACTS:
(a) The first report:
5. In September, 2000 the Mumbai Port Trust
(hereinafter referred to as the MPT) had issued Terms of
Reference to M/s. Howe India Pvt. Ltd. (hereinafter referred
to as the Consulting Engineers) for determination of a
site for Passenger Water Terminal (hereinafter referred to
as the PWT) for ferries/launches transporting passengers
across the harbor. The Terms of Reference required the
Consulting Engineers to consider five sites for the proposed
PWT viz. (i) Off Arthur Bunder Road (near radio club) (ii)
South of Sassoon Dock (iii) Nariman Point (iv) Cuffe Parade
and (v) Trombay. Under the Terms of Reference, the
Consulting Engineers were required to comprehensively deal
with; (i) the general requirements of feasibility (ii)
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additional studies, required if any (iii) technical appraisal
(iv) environmental appraisal and (v) financial & economic
appraisal.
6. The Consulting Engineers submitted an interim
report in September 2000 in which sites at (i) Off Arthur
Bunder Road (near radio club) (ii) South of Sassoon Dock
(iii) Nariman Point (iv) Cuffe Parade and (v) Trombay were
not found suitable and feasible. The Consulting Engineers
recommended the location of the proposed PWT at Ferry
Wharf as suitable, inter alia; on the following grounds:
(i) there were existing wharf berths available,
(ii) that the PWT at Ferry Wharf would be able to
operate throughout the year in all weather conditions,
without the need for a break water,
(iii) that a back-up area with terminal building already
existed at Ferry Wharf,
(iv) that there would be no environmental impact on
the immediate surroundings as the area was a
business sector with no residential development in the
immediate vicinity and;
(v) that this site would result in the least interference
with port traffic and would totally avoid interference
with the Navy's operations.
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7. The MMB disagreed with the findings of interim
report and in its comment dated 3rd October 2000, inter
alia; stated that Consulting Engineers lack professional
approach. The CIDCO also vide letter dated 14 th November
2020 disagreed with the report. The Government of
Maharashtra, vide letter dated 9th November 2001 did not
agree for setting up of PWT at ferry wharf alone and stated
that terminal at Gateway of India is still needed.
8. The Consulting Engineers, in January 2002/April
2003 submitted their final report, wherein it was
recommended that the PWT should be located only at Ferry
Wharf. The Consulting Engineers, in pursuance of the
request of the Government, in their final report have also
provided for a floating type pontoon landing point secured
on one side to the wall of the Radio Club pier and in front of
the sea wall with two staircases cut into the block work of
the Radio Club Pier. It was, however, pointed out that this
pontoon pier would be operable in the non-monsoon
months. However, no further action was taken.
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(b) The second report:
9. The MMB, sometime in the year 2014 required
M/s.Terracon Ecotech to prepare and submit an
Environmental Impact Assessment Report (hereinafter
referred to as the EIA Report) for construction of a Ferry
Terminal and Passenger Jetty in the sea on piles, near the
Radio Club to enable it to approach the MCZMA and the
Ministry of Environment and Forest (hereinafter referred to
as the MoEF) for environmental clearance and Costal
Regulation Zone (hereinafter referred to as the CRZ)
approval. Thereupon, the M/s. Terracon Ecotech submitted
its report, in which it was stated that clearance was required
only under the EIA Notification, subject to the project being
recommended by the concerned State Coastal Zone
Management Authority. The proposal envisaged a waiting
area of 5050 sq.ft. in passenger terminal, a parking area of
2900 sq.ft. for 78 cars, restaurants and shops in the
terminal area and a fixed single pencil like jetty walkway of
385 mtrs. length, leading to a boarding area consisting of
multiple floating berths. It was mentioned in the report that
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the area required for development of project was around
1.3 hector and the jetty would be operational only during
fair-weather months i.e. not during monsoon.
10. The MCZMA, in its 93rd meeting held on 25th
August 2014, noted that the project would generate effluent
of 118 cubic metres per day grey and black water from the
restaurants and toilets and sewage from berthed vessels
which would be required to be treated in a modular STP.
The MCZMA decided to recommend the proposal to the
MoEF, subject to the exclusion of restaurants, shops, STP &
Taxi/Bus stands which were not allowed in CRZ-I area. On
27th February 2019 the said proposal was placed before the
State Environment Impact Assessment Authority
(hereinafter referred to as the SEIAA). Thereafter on 5th
March 2019 SEIAA gave its clearance, to the proposal.
However, on this proposal also no further action was taken.
(c) The third report:
11. The MMB, in March 2022 got prepared a new EIA
Report, which was prepared by one Building Environment
(India) P. Ltd. for seeking approval of its revised proposal
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for construction of the Passenger Jetty and Terminal
Facilities at Radio Club near Gateway of India, Mumbai. The
Building Environment (India) P. Ltd. submitted in its report
that the project falls in CRZ-IV-A area and also stated that
the project does not fall under the purview of the EIA
Notification of 2006, as the the Project is for construction of
passenger jetty with terminal facility for passenger
commute and does not involve any capital dredging during
the construction phase and cargo/fish handling during
operation phase.
(d) The Approvals/Clearances:
12. Thereafter, on 10th June 2022 MMB approached
the MCZMA with the revised proposal for passenger terminal
and jetty. In its 160th meeting held on 12th September 2022,
MCZMA decided that as substantial changes were suggested
in the project, the MMB needed to submit an application
afresh. Thereupon, the MMB, on 6 th October 2022 submitted
its fresh proposal in Form-I along with EIA report prepared
by the Building Environment (India) P. Ltd. The Vice
Admiral, Western Naval Command issued NOC on 29 th
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November 2022 to the project. The said proposal was
considered by the MCZMA in its 163 rd meeting held on 3rd
February 2023 and clearance to the proposal was granted
on the ground that it was for a standalone jetty. The
MCZMA, by communication dated 2nd March 2023 conveyed
its approval for the project in question to the MMB. The
Mumbai Traffic Police on 28th January 2025 granted NOC for
the construction of project, whereas Heritage NOC was
issued on 7th February 2025. The Archaeological
Department has also granted clearance under Maharashtra
Monuments and Archaeological Sites and Remains Act,
1960.
13. On 14th March 2025, a pandal was erected on the
pavement along the sea side wall near the Radio Club and
ground-breaking ceremony of the Passenger Jetty and
Terminal Facility was done by the State Minister for Ports
Development. During the said Ground-breaking ceremony,
a brochure regarding the proposed construction of
Passenger Jetty and Terminal Facility at Radio Club near
Gateway of India, Mumbai was published. The members of
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the petitioners' association obtained documents under the
Right to Information Act and approached this Court by filing
a writ petition.
14. A Bench of this Court, by order dated 7 th May
2025 in writ petition (L) No.13336 of 2025 declined to grant
interim relief to stay the implementation of the project
work. The petitioners in writ petition (L) No.13336 of 2025
filed Special Leave to Appeal (C) 15709 of 2025, which was
dismissed by an order dated 29 th May 2025 by the Supreme
Court. In the aforesaid factual background, these petitions
arise for our consideration.
(IV) SUBMISSIONS ON BEHALF OF THE
PETITIONER IN WRIT PETITION (L) NO.13336 OF
2025:
15. Learned senior counsel for the petitioner in writ
petition (L) No.13336 of 2025 submitted that the decision of
the State Government and the MMB to construct the project
is ex-facie irrational, arbitrary and violative of rights of the
members of the petitioner association, which are
guaranteed to them under Article 14 and 21 of the
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Constitution of India. It is further submitted that the
project in question will excessively and needlessly affect the
environment. It is pointed that the project has a built-up
area of 25116 sq.mtrs and will envelope a sea area of
approximately 15 acres. It is urged that the aforesaid
project is located in ecologically sensitive CRZ-I and CRZ-IV
area and therefore, it casts heavy onus on State
Government and the MMB to justify the location of the
project and the public interest involved therein. It is argued
that the proposed design envelopes 12 acres of sea area
with no additional facilities of inner side of the proposed
Jetty. In support of the aforesaid submission, reliance has
been placed on the decision of Division Bench of this Court
in HANUMAN LAXMAN AROSKAR VS. UNION OF
INDIA1, TATA HOUSING DEVELOPMENT COMPANY
LIMITED VS. AALOK JAGGA & OTHERS 2,
T.N.GODAVARMAN THIRUMULPAD, IN RE VS. UNION
OF INDIA & OTHERS3 and GOA OUNDATION
THROUGH ITS SECRETARY DR. CLAUDE ALVARES &
1 (2019) 15 SCC 401
2 (2020) 15 SCC 784
3 (2022) 10 SCC 544
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ANR. VS. TOWN AND COUNTRY PLANNING
DEPARTMENT THROUGH THE CHIEF TOWN PLANNER
& ORS.4.
16. It is contended that the Consulting Engineers had
conducted detailed study at the instance of MPT and the
State Government concluded that the ferry wharf site is the
suitable location for construction of passenger jetty. It is
urged that without conducting any further expert
study/report, the MMB has proceeded to locate the project
in the sea off the road near Radio Club. It is pointed out
that no basis has been disclosed by the MMB either in the
EIA report or in its application for CRZ clearance for
departing from the aforesaid recommendations/ conclusion
made by the Consulting Engineers.
17. It is pointed out that the MMB, in its application
submitted in Form-I for seeking clearance for project
attracting CRZ Notification, has failed to disclose the
material and relevant fact that at the instance of MPT and
the State Government, the Consulting Engineers had
4 2024 SCC OnLine Bom 1232
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submitted a detailed report, wherein ferry wharf site was
recommended to be suitable for the passenger Jetty. It is
contended that the affidavit-in-reply filed on behalf of the
MMB does not disclose any basis for MMB's decision to
depart from the accepted / approved Ferry Wharf location
and for shifting the project to the sea area near Radio club
except to say that it was a policy decision. It is argued that
the MMB has failed to discharge its burden for justifying the
change in location under the precautionary principle. It is
submitted that the impugned decision is, therefore,
arbitrary and irrational and it is not for public purpose and
same violates principle of sustainable development and
precautionary principle, which is part of Article 14 and 21 of
the Constitution of India.
18. It is contended that the MCZMA's purported CRZ
permission is without jurisdiction and contrary to the CRZ
Notification of 2019 as under clause 7 (ii) of CRZ 2019,
Notification all development activities in CRZ-I and CRZ-IV
are required to be dealt with by the Central Government for
CRZ clearance with the exception of standalone jetties i.e.
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basic/simple jetty without any additional port facilities. It is
submitted that the project is ex-facie not for a standalone
jetty but is a passenger jetty and terminal facility. It is
pointed that the MCZMA and SEIAA, previously between
2014 and 2019, had accepted and proceeded, with the
proposal for construction of passenger wharf jetty terminal
facility on the basis that the proposal fell under Entry
No.7(e) of Schedule to the EIA Notification 2006 and treated
it as a Port or Harbour. It is urged that the MCZMA's
minutes and subsequent permission letter do not consider
as to how the present project can be treated as a
standalone jetty. It is contended that the MCZMA's affidavit
does not contain any explanation for treating the proposed
project as a standalone jetty. Therefore, MCZMA's
permission is vitiated by absence of jurisdiction.
19. Alternatively, it is contended that even assuming
that the MMB's proposal could be treated as a standalone
jetty in view of CRZ Notification of the year 2019 and EIA
Notification dated 14th September 2006, the MCZMA could
not have granted clearance to the project, but should have
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referred the project to SEIAA, which was required to
consider the same for grant of environmental clearance ,
after compliance with the requirements of EIA Notification of
2006. It is urged that the MCZMA, while purporting to grant
CRZ clearance, has failed to apply the principle of
sustainable development and the precautionary principle
and has failed to advert to consider and deal with material
facts and circumstances, which has rendered the CRZ
clearance/permission being vitiated as being arbitrary,
perverse and illegal. It is argued that Heritage NOC dated
7th February 2025 is not granted by the Commissioner of
MCGM and therefore, the same is liable to be quashed. It is
pointed out that the traffic NOC dated 28 th January 2025
has been issued by Mumbai Traffic Police only for the period
of construction of project and is not an NOC for the project
itself.
(V) SUBMISSION ON BEHALF OF THE
PETITIONERS IN WRIT PETITION (L) No.14795/2025
20. Learned senior counsel for the petitioners in writ
petition (L) No.14795 of 2025 submitted that the CRZ is
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divided into four categories viz. I to IV with sub categories.
It is submitted that in addition to said categories, there is
also fifth category, which includes specific areas selected
from 12000 km of coastline and the estuaries, creeks etc.
It is contended that the aforesaid fifth category requires
superior care and handling and are classified as critically
vulnerable coastal areas and includes the entire municipal
area of Greater Mumbai. It is pointed out that the project
site is included in the aforesaid fifth category. Therefore,
the project cannot be located in the critically vulnerable
coastal area.
21. It is submitted that the project is situated within
Mumbai Port and is an expansion or addition of a Port
comprising of whole complex of jetties and covered under
the EIA Notification. It cannot be treated as a standalone
jetty. It is also submitted that the NOC is required to be
obtained from MPT.
(VI) SUBMISSIONS ON BEHALF OF PETITIONERS
IN WRIT PETITION (L) 15735/2025
22. Learned senior counsel for the petitioner submits
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that proposed passenger jetty is nothing but an extension/
expansion of the existing port. Therefore, the old project
was treated as ports/harbour and the permission of SEIAA
was obtained on 5th March 2019 by treating the project as
governed by Entry No. 7(e) of EIA Notification. In this
connection, reference has been made to EIA report
submitted at the instance of MPT in the year 2014 in which
there is admission of applicability of EIA Notification 2006 to
the old project treating the same as harbour. It is
contended that other passenger jetties in the vicinity has
been set up after securing environmental clearance by
treating the same as falling under Entry No.7(e) of EIA
Notification 2006. It is urged that cargo/fish handling
capacity is not determinative factor for deciding applicability
of Entry No.7(e) of EIA Notification to the project. It is
argued that activity of break water and dredging do not
involve cargo/fish handling capacity indicated in column 3
and 4 of the Schedule to the EIA Notification for assigning
the jurisdiction to MoEF and SEIA. It is submitted that the
passengers are likely to transport their luggage in the
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jetties, therefore, the activity at jetty would involve inter
alia; cargo handling as well.
23. It is urged that the whole object sought to be
advanced for execution of the project of decongesting the
Gateway of India area is wholly misconceived and as
construction of a new jetty 250 mtrs. away from the
existing jetty is being undertaken, same would not
decongest Gateway of India area in any manner. In this
connection, reference has been made to traffic simulation
study indicated in the report dated 12th February 2025
prepared at the behest of MMB indicating that 75%
passengers will continue to visit Gateway of India first and
thereafter board the jetty, whereas 25% travellers would
directly travel to the mainland by using the jetty.
(VII) SUBMISSIONS ON BEHALF OF THE MCZMA,
HCC AND MCGM:
24. On the other hand, learned Advocate General for
respondent MCZMA, HCC and MCGM submitted that MMB
had submitted an application for clearance under CRZ
Notification dated 6th January 2011 of a project called
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Passenger Jetty and ancillary facilities at Apollo Bunder off
Gateway of India which was considered by the MCZMA in its
meeting held on 25th August 2014 and a recommendation
was sent to MoEF on 29 th November 2014. It is further
submitted that in view of amendment to the procedure for
clearance of application, the proposal was required to be
cleared by the SEIAA, instead of MoEF and accordingly, on
28th May 2016 the proposal was sent to SEIAA. It is pointed
out that clearance to the project was granted on 25 th March
2019. However, subsequently, MMB submitted an
application to MCZMA on 10th June 2022 and sought
amendment to the clearance, which was granted. It is
pointed out that the aforesaid application was considered by
the MCZMA on 12th September 2022 and since there were
substantial modifications, the project proponent was asked
to submit a fresh application.
25. It is contended that MMB, on 6th October 2022,
submitted a fresh application seeking CRZ clearance, which
was accompanied by EIA report for construction of
passenger jetty and ancillary facilities, which was prepared
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by an accredited agency viz. Building Environment (India)
Pvt. Ltd. The said application of MMB dated 6 th October 2022
was considered by MCZMA in its meeting held on 2nd/3rd
February 2023 and after considering the permissibility of
project and other relevant factors, MCZMA decided to grant
clearance to the project, subject to conditions mentioned
therein. Thereafter, on 2nd March 2023, MCZMA granted
clearance to the project. It is urged that the clearance
granted to the project by MCZMA was in terms of notice
dated 18th January 2019 as amended on 24th November
2022 and as per the procedure laid down in Office
memorandum dated 29th October 2022.
26. It is submitted that the contention that MCZMA
has no jurisdiction since the project is not a standalone
project, is misconceived. It is contended that the project in
question is a standalone passenger jetty and is not a port. It
is submitted that facilities like lounge, cafe, parking etc. are
only incidental to passenger jetty for embarking and
disembarking the passengers. It is urged that for
ascertaining the nature of project, the dominant purpose or
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dominant nature of the project or the "common parlance"
test is required to be applied. In this connection reference
has been made to decision of Supreme Court in RE NOIDA
MEMORIAL COMPLEX, NEAR OKHLA BIRD
SANCTUARY5. It is contended that the project being
standalone jetty, is a permissible activity within CRZ area in
terms of clause 5.4 of CRZ Notification dated 18 th January
2019.
27. It is argued that in terms of amendment to sub
clause (ii) of paragraph 7 of the CRZ Notification by the
amending Notification dated 24th November 2022 and in
terms of Office Memorandum dated 29th November 2022,
the authority and power to consider the application for
clearance and grant of clearance under sub clause (ii) of
paragraph 7 of Notification is now conferred on the State
Level Coastal Zone Management Authority and therefore,
the application for clearance made by MMB was within the
jurisdiction of MCZMA.
28. It is contended that the application for clearance
5 (2011) 1 SCC 744
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of the project was appropriately considered by the MCZMA
in the light of the application and accompanying documents
including the EIA report and Naval NOC dated 29 th
November 2022. It is further contended that relevant
considerations for scrutiny of such application have been
taken into account and clearance was granted after due
consideration and on application of mind to all aspects,
which is evident from the minutes of MCZMA dated 2 nd
February 2023 and the clearance dated 2 nd March 2023. It
is submitted that EIA Notification dated 14th September
2006 does not apply to the project, as the same is
standalone passenger jetty and terminal facility which is not
a part of the schedule to EIA Notification dated 14 th
September 2006 and there is no estoppel against the law. It
is urged that the purpose of the project is to decongest the
traffic movement of boats and yachts and visitors at the
Gateway of India, a Grade-I Heritage Structure. It is
submitted that new passenger jetty is situated about 350
mtrs. away from the Gateway of India and will help
decongest Gate of India and preserve and protect it in
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better manner. It is also submitted that the CRZ clearance
is a matter within the domain of experts and justiciability of
such decision is limited on the ground of lack of jurisdiction
or the decision which actuated by mala fide. It is pointed
out that in the instant case, the decision of MCZMA is not
challenged on any of the aforesaid grounds and perception
of the petitioners is not a ground for judicial review. In
support of aforesaid submission, reliance has been placed
on decisions of Supreme Court in CONSERVATION
ACTION TRUST VS. DAHANU TALUKA ENVIRONMENT
PROTECTION AUTHORITY , ESSAR OIL LTD. VS.
HALAR UTKARSHA SAMITI , and CITIZEN FOR
GREEN DOON VS. UOI 8.
29. It is submitted that the contention that project
proponent ought to have mentioned alternative sites in the
Form under which an application seeking clearance is made,
is based on misreading of the requirement of the column
and is therefore, misconceived.
6 2024 SCC ONLINE BOM 1114
7 (2004) 2 SCC 392
8 (2023) 17 SCC 711
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30. It is urged that on the basis of parameters in
regulation 52.9(C) of Development Control and Promotion
Regulations-2034 for Greater Mumbai (hereinafter referred
to as the DCPR 2034) NOC is granted by the HCC and
neither there is any substantive nor any procedural
violation. It is pointed out that the NOC has been granted
on the recommendation of Mumbai Heritage Conservation
Committee (hereinafter referred to as the MHCC) on the
basis of its decision dated 16 th January 2025. It is
contended that MHCC consists of experts from the field of
engineering, environment, architecture, history, public
administration and archaeology and the decision of MHCC is
a decision taken by experts and no case for interference is
made out with the decision taken by the experts. In
support of aforesaid submission reliance has been placed on
decision of Supreme Court in MIG CRICKET CLUB VS.
ABHINAV SAHKAR EDUCATION SOCIETY and a
reference has also been made to Glossary of terms from
Dictionary of Shipping and Oxford Dictionary.
9 (2011) 9 SCC 97
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(VIII) SUBMISSIONS ON BEHALF OF MMB:
31. Learned Advocate General for MMB submitted that
petitioners are neither aggrieved by the location of the
project nor by the concept of the project. It is contended
that project seeks to address an urgent need for a safe,
modern and properly equipped jetty facility for improving
connectivity between the mainland and other areas
including Navi Mumbai, Mandwa (Alibaug) and Elephanta
Island etc. and to decongest the passenger and road traffic
right next to the iconic Gateway of India monument. It is
further submitted that there are five operational antiquated
jetties which have been in use for almost a century and
approximate 30 to 35 lac passengers travel every year
through the aforesaid jetties. It is contended that the
existing facilities are unable to handle the passenger traffic
and provide proper berthing to ferries and yachts. It is
pointed out that there are no proper infrastructure in terms
of waiting area, parking facilities, disability accessibility and
emergency services etc.
32. It is urged that during embarking and
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disembarking from the existing facilities, the passengers,
specially, elderly persons, women and children are at risk.
It is submitted that Gateway of India attracts large crowd of
tourists which results in overcrowding and traffic congestion
in the junction near Gateway of India/Taj Mahal Hotel. It is
contended that the project will improve connectivity and
cater to the increased demand for water transport facility
and will decongest passenger load and road traffic at the
Gateway of India monument.
33. It is contended that the project has been assessed
by the multiple regulatory authorities who have
independently evaluated the project and have accorded
their permission/No Objection to the same in accordance
with the statutory mandate. It is pointed out that NOCs
dated 14th October 2021 and 29th November 2022 have
been obtained from Mumbai Port Authority from Vice
Admiral, Western Command. It is also pointed out that the
No-Objection Certificates dated 5th April 2022 and 28th April
2025 have been obtained from Archaeological Department,
Mumbai under the Maharashtra Ancient Monuments and
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Archaeological Sites and Remains Act, 1960 and No-
Objection Certificate dated 28th January 2025 has been
obtained from Assistant Commissioner of Police (Traffic). It
is pointed out that the No-Objection Certificate dated 7 th
February 2025 has been obtained from MHCC under
Regulation 52 of the DCPR-2034. It is pointed out that the
CRZ Clearance dated 2nd March 2023 has been obtained
from MCZMA. It is urged that the MMB has also obtained
permission dated 30th April 2025 from MCGM for barricading
the footpath on PJ Ramchandani Marg.
34. It is contended that decision to undertake the
project is a policy decision in larger public interest, which
has been taken after due care and deliberations. It is
further contended that decision, whether to undertake an
infrastructure project, what type of project to undertake,
how to execute it, belong to the domain of policy-making
and scope of interference with such policy decision by this
Court, in exercise of powers of judicial review, is extremely
limited. In support of aforesaid submissions, reliance has
been placed on the decisions of Supreme Court in
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NARMADA BACHO ANDOLAN VS. UNION OF INDIA 10,
RAJIV SURI VS. DELHI DEVELOPMENT AUTHORITY 11
and DAHANU TALUKA ENVIRONMENT PROTECTION
GROUP VS. BOMBAY SUBURBAN ELECTRICITY SUPPLY
CO. LTD.12 It is contended that the project has been
approved by the expert/technical bodies and minimal
interference is called for with the decisions which are
outcome of the technical experts.
35. It is argued that this Court cannot reevaluate the
factual findings made by an expert regulatory body. In
support of aforesaid submission, reference has been made
to CENTRE FOR PUBLIC INTEREST LITIGATION VS.
UNION OF INDIA13, PROJECT IMPLEMENTATION UNIT
VS. P. V. KRISHNAMOORTHY and DELHI
INTERNATIONAL AIRPORT LTD. VS. AERA15. It is
submitted that the petitioners' challenge to the project
suffers from gross delay and laches as the media reports on
10 (2000) 10 SCC 664
11 (2022) 11 SCC 1
12 (1991) 2 SCC 539
13 (2016) 6 SCC 408
14 (2021) 3 SCC 572
15 (2024) 1 SCC 716
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the development of the project at the present site was
published in 2012. It is pointed out that Notice Inviting
Tender for the project was floated by MCGM on 8 th July 2024
and work order was issued on 11th October 2024. It is
further pointed out that project site was handed over to the
successful bidder on 11th October 2024 with direction to
commence the work and the instant writ petitions have
been filed only in the month of April, 2025 and May, 2025.
It is submitted that the belated challenge to a policy
decision cannot be entertained and any challenge to a
project must be taken before execution of project is
commenced. In this connection reliance has been placed on
RAUNAQ INTERNATIONAL LTD. VS. IVR
CONSTRUCTION CO.16 and NARMADA BACHO
ANDOLAN (SUPRA).
36. It is submitted that the project requires clearance
from MCZMA only. It is contended that permission by MHCC
has been granted in accordance with the regulation 52.9(C)
and 52.9(D) of DCPR 2034. It is submitted that for the
16 (1999) 1 SCC 492
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purpose of construction of the project, NOC has been
obtained from the traffic department. It is urged that
feasibility report was commissioned by the MPT in entirely
different circumstances and there has been substantial
change in the circumstances in past over two decades. It is
urged that no reliance can be placed on the feasibility report
for the purposes of challenging the location of the present
project. It is argued that decision relied upon by the
petitioner in HANUMAN LAXMAN AROSKAR (SUPRA) has
no application to the facts and circumstances of the case.
Reference has also been made to ERIC Sullivan's Marine
Encyclopaedic Dictionary Sixth Edition.
(IX) REJOINDER SUBMISSIONS:
37. By way of rejoinder, learned senior counsel for
the petitioner in WP/13336/2025 fairly submitted that the
petitioner in the said writ petition does not dispute the need
for new facility and the fact that new facility will result in
decongestion of traffic. It is contended that the petitioner is
aggrieved only by its location. It is further contended that
there is no rationale in selection of a location which would
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not operate for a period of five months in a year as one of
the purposes of the project is to facilitate water
transportation. It is submitted that no attempt has been
made by the project proponent to discharge the burden to
justify the location of the project.
38. It is contended that no basis has been disclosed
by MMB either in its EIA report or in its application for CRZ
clearance or even in its affidavit in reply for departing from
the aforesaid recommendations/conclusions of the report of
Consulting Engineers, not to locate the passenger terminal
near the radio club and that only feasible and practical
location was at Ferry Wharf. Therefore, the decision to
locate the PWT in sea near radio club is ex-facie irrational
and manifestly arbitrary. It is urged that no attempt has
been made by MMB to discharge its onus/burden under the
precautionary principle and principle of sustainable
development regarding necessity of locating the passenger
jetty and terminal facility in the ecologically sensitive CRZ-I
and CRZ-IV area near radio club and revised design of jetty
which envelopes a sea area in excess of 12 acres.
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39. It is urged that petitioners do not dispute that
present jetties are unsafe and inadequate and there is a
need to set up a new jetty to enhance the connectivity
between mainland and other lands including Navi Mumbai,
Mandwa (Alibaug) and Elephanta Island and to decongest
the passenger road and road traffic next to Gateway of
India. It is contended that mere labeling of a decision as a
policy decision is not a legally adequate response to the
petitioners' submission that ferry wharf location for PWT
was environmentally benign and more feasible. It is
submitted that decision of respondent Nos.1 and 2 to locate
the project at a location which has been held to be neither
practical nor feasible without carrying out any further study
or expert report, cannot be termed as a well-considered
policy decision taken after due care and deliberations.
40. It is argued that mere assertion of respondents
that there has been a substantial change of circumstances
since the said Howe report was published, is a mere bald
assertion without any reference to alleged change in
circumstances. It is submitted that decision of MCZMA
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establishes that it has not applied its mind/overlooked to
divers material and important aspects while purporting to
grant clearance. It is further submitted that MCZMA
minutes and permission do not even exclude the VIP
lounges, cafe, food court and STP plant which MCZMA had
excluded while making its recommendation in 2014 on the
ground that such activities are not permissible in sea area.
It is also urged that the minutes and approval letter of
MCZMA do not consider or exclude the proposed
amphitheatre of 1362 sq.mtr., which is proposed on jetty.
It is submitted that the writ petition, which has been filed
within few weeks of detail disclosure of proposed jetty and
terminal at the ground-breaking ceremony and subsequent
disclosure of the documents in April 2025, cannot be treated
to be barred by delay or laches.
41. It is argued that MCZMA's failure to advert to,
consider and decide on the fundamental/basic
environmental aspect vitiates its purported clearance, is
clearly without jurisdiction as the clearance has been
granted on the assumption that the proposal was for a
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standalone jetty. It is contended that MCZMA has failed to
consider that the proposal was for passenger jetty and
terminal facility and not a standalone jetty. It is pointed out
that MMB's earlier EIA report of 2014 itself had recorded
that proposed jetty and terminal facilities would constitute a
harbour for the berthing of ferries and leisure craft.
42. Learned Senior Counsel for the petitioner in WP(L)
14795 of 2025 has submitted that the project is in inter
tidal zone and has reiterated his submissions made earlier.
(X) ANALYSIS:
43. We have considered the rival submissions made
on both sides and have perused the record. Before
proceeding further, it is apposite to take note of relevant
statutory provisions.
(XI) RELEVANT STATUTORY PROVISIONS:
(a) The Environment Protection Act,
1986:
43.1 The Environment Protection Act, 1986 (hereinafter
referred to as the 1986 Act) is an Act to provide for
protection and improvement of environment and for matters
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connected therewith. The 1986 Act seeks to implement the
decision taken at United Nations Conference on Human
Environment held at Stockholm in June 1972 for protection
and improvement of Environment, prevention of hazards to
human being, other living creatures, plants and property.
Section 3 mandates the Central Government to take
measures to protect and improve the environment. Section
3(2) of the 1986 Act contains an inclusive list of the matters
in respect of which the Central Government can take
measures. Section 3(2)(v) provides for restriction of areas
in which any industries, operations of processes or class of
industries, operations or processes shall not be carried out
or shall be carried out subject to certain safeguards. Section
6 of the 1986 Act empowers the Central Government to
frame rules to regulate environmental pollution, whereas
Section 25 confers power on the Central Government to
make rules for carrying out the purposes of the 1986 Act.
(b) The Environment (Protection)
Rules, 1986:
43.2 In exercise of powers under Section 6 and 25 of
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the 1986 Act the Central Government has framed rules the
Environment (Protection) Rules, 1986. Rule 5 provides for
prohibition and restriction on the location of industries and
for carrying out the processes and operations in different
areas. Rule 5(iii) empowers the Central Government to
issue notification imposing prohibition or restriction on
location of industries and carrying on of processes or
operations in an area.
(c) Environment Impact Assessment
Notification 2006.
43.3 In exercise of powers under Section 3(1)(v),
Section 3(2) of the 1986 Act and Rule 5(3)(d) of the 1986
Rules, the Central Government, Ministry of Environment and
Forest has issued a Notification dated 14th September 2006
(hereinafter referred to as the EIA Notification of 2006)
directing that project or activities listed in the schedule to
the Notification shall be undertaken in all parts of India after
prior environmental clearance from the Central Government
or as the case may be by the State or the Union Territory
Level Environment Impact Assessment Authority. Para 2 of
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the Notification enlists the projects which require
environmental clearance whereas para 3 of the Notification
provides for constitution of State Level Environment Impact
Assessment Authority (SEIAA). Para 4 of the Notification
prescribes for categorization of projects and activities into
Category A and B and which is reproduced below for the
facility of reference:
"4. Categorization of projects and activities:-
(i) All projects and activities are broadly categorized in
to two categories - Category A and Category B, based on
the spatial extent of potential impacts and potential
impacts on human health and natural and man made
resources.
(ii) All projects or activities included as Category 'A' in
the Schedule, including expansion and modernization of
existing projects or activities and change in product mix,
shall require prior environmental clearance from the
Central Government in the Ministry of Environment and
Forests (MoEF) on the recommendations of an Expert
Appraisal Committee (EAC) to be constituted by the
Central Government for the purposes of this notification;
(iii) All projects or activities included as Category 'B' in
the Schedule, including expansion and modernization of
existing projects or activities as specified in sub paragraph
(ii) of paragraph 2, or change in product mix as specified
in sub paragraph (iii) of paragraph 2, but excluding those
which fulfill the General Conditions (GC) stipulated in the
Schedule, will require prior environmental clearance from
the State/Union territory Environment Impact Assessment
Authority (SEIAA). The SEIAA shall base its decision on
the recommendations of a State or Union territory level
Expert Appraisal Committee (SEAC) as to be constituted
for in this notification. " "In the absence of a duly
constituted SEIAA or SEAC a Category 'B' project shall be
considered at Central Level as a Category 'B' project."
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43.4 The Schedule to the EIA Notification 2006
provides for list of projects and activities requiring prior
environmental clearance. The Schedule also divides the
projects or activities in Category A or B depending upon
threshold limits prescribed in the schedule. Entry-7 in the
Schedule 2 EIA Notification of 2006 deals with "physical
infrastructure including environmental services". Entry-7 (e)
is in respect of "ports, harbours, break waters, dredging",
which is relevant for the purpose of controversy involved in
the instant petition is extracted below:
(1) (2) (3) (4) (5)
7(e) "Ports, ≥5 million TPA ≤5 million TPA General
harbours, of cargo of cargo condition shall
break handling handling apply.
waters, capacity capacity and/or
Note :
dredging (excluding ports/harbours
fishing 1. Capital
harbours) dredging inside
and outside the
ports or harbors
and channels
are included.
2. Maintenance
dredging is
exempt provided
it formed part of
the original
proposal for
which
Environment
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Management
Plan (EMP) was
prepared and
environmental
clearance
obtained.
43.5 Thus, it is evident that for projects of establishing
ports, harbours, break waters or dredging, compulsory
environmental clearance is needed. The said works are
classified in two categories. Category - A project comprises
of ports, harbours etc. with more than 5 Million ton per
annum (TPA) of cargo handling capacity (excluding fishing
harbours) and such project would require environmental
clearance of the Central Government. The projects of ports,
harbours, having capacity of less than 5 Million TPA of cargo
handling capacity and/or port/harbours having more than
10000 TPA of fish handling capacity requires clearance from
SEIAA.
(d) Coastal Regulation Zone
Notification 2019.
43.6 In exercise of powers under Section 3(2)(1)(v) of
the 1986 Act, the Ministry of Environment Forest and
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Climate Change (hereinafter referred to as the MoEFCC)
had issued Notification dated 6th January 2011 declaring
Coastal stretches of the country and waters upto its
territorial water limits as CRZ. The aforesaid Notification
was superseded by a Notification dated 11 th January 2019.
The said Notification is issued with an object to conserve
and protect the environment of coastal stretches and
marine areas besides providing for security of livelihood to
fisher communities and other local communities in coastal
area and to promote sustainable development based on
scientific principles taking into account the dangers of
natural hazards, sea level rise due to global warming etc.
43.7 Para 2 of the Notification provides for
classification of coastal zone areas into CRZ-I to CRZ-IV.
CRZ-I areas are environmentally most critical and have
been further classified into CRZ-IA and CRZ-IB. The CRZ
classification made under para 2 of the Notification reads as
under:
Para-2.0 of the Notification provides for classification of
Coastal Regulation Zones into CRZ-I to CRZ-IV. ÇRZ-1
areas are environmentally most critical and have been
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further classified as CRZ-1 A and CRZ-I B. The CRZ
classification unde: para-2.0 of the Notification is, as
under :-
2.0 Classification of CRZ - For the purpose of
conserving and protecting the coastal areas and marine
waters, the CRZ area shall be classified as follows,
namely:
2.1 CRZ-I areas are environmentally most critical and are
further classified as under:
2.1.1 CRZ-1 A:
(a) CRZ-I A shall.constitute the following ecologically
sensitive areas (ESAs) and the geomorphological features
which play a role in maintaining the integrity of the coast
viz.:
(i) Mangroves (in case mangrove area is more than 1000
square meters, a buffer of 50 meters along the mangroves
shall be provided and such area shall also constitute CRZ-
1 A);
(ii) Corals and coral reefs;
(iii) Sand dunes;
(iv) Biologically active mudflats;
(v) National parks, marine parks, sanctuaries, reserve
forests, wildlife habitats and other protected areas under
the provisions of Wild Life (Protection) Act, 1972 (53 of
1972), Forest (Conservation) Act, 1980 (69 of 1980) or
Environment (Protection) Act, 1986 (29 of 1986),
including Biosphere Reserves;
(vi) Salt marshes;
(vii) Turtle nesting grounds,
(viii) Horse shoe crabs' habitats;
(ix) Sea grass beds;
(x) Nesting grounds of birds;
(xi) Areas or structures of archaeological
importance and heritage sites.
(b) A detailed environment management plan shall be
formulated by the states and Union territories for
such ecologically sensitive areas in respective
territories, as mapped out by the National Centre for
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Sustainable Coastal Management (NCSCM), Chennai
based on guidelines as contained in Annexure-I to
this notification and integrated with the CZMP.
2.1.2 CRZ-1 B:
2.2 CRZ-II:
2.3 CRZ-III:
2.4 CRZ-IV:
The CRZ-IV shall constitute the water area and shall be
further classified as under:-
2.4.1 CRZ-IVA:
The water area and the sea bed area between the Low
Tide Line up to twelve nautical miles on the seaward side
shall constitute CRZ-IV A.
2.4.2 CRZ-IVB:
CRZ-IV B areas shall include the water area and the
bed area between LTL at the bank of the tidal
influenced water body to the LTL on the opposite
side of the bank, extending from the mouth of the
water body at the sea up to the influence of tide,
i.e., salinity of five parts per thousand (ppt) during
the driest season of the year.
(emphasis added)
43.8 Para-5 of the Notification deals with regulation of
permissible activities in CRZ. For the purpose of the present
petitions, para-5.1.2 of the Notification dealing with
regulation of permissible activities in CRZ-1B is relevant as
the impugned project comes under CRZ 1B area on account
of location of the heritage structure of Gateway of India in
the vicinity:-
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5. Regulation of permissible activities in CRZ:
5.1.2 CRZ-I B-The inter tidal areas:
Activities shall be regulated or permissible in the CRZ-I
areas as under:-
(i) Land reclamation, bunding, etc. shall be permitted only
for activities such as,-
(a) foreshore facilities like ports, harbours,
Jetties, wharves, quays, slipway, bridges,
hover ports for coast guard, sea links, etc;
(b) projects for defence, strategic and security
purposes;
(c) road on stilts, provided that such roads shall not
be authorised for permitting development on the
landward side of such roads, till the existing High
Tide Line:
Provided that the use of reclaimed land may be
permitted only for public utilities such as mass rapid
or multimodal transit system, construction and
installation of all necessary associated public utilities
and infrastructure to operate such transit or
transport system including those for electrical or
electronic signaling system, transit stopover of
permitted designs; except for any industrial
operation, repair or maintenance;
(d) measures for control of erosion;
(e) maintenance and clearing of waterways,
channels, ports and hover ports for coast guard;
(f) measures to prevent sand bars, installation of
tidal regulators, laying of storm water drains or for
structure for prevention of salinity ingress and
freshwater recharge.
(ii) Activities related to waterfront or directly needing
foreshore facilities such as ports and harbours, jetties,
quays, wharves, erosion control measures, breakwaters,
pipelines, lighthouses, navigational safety facilities, coastal
police stations, Indian coast guard stations and the like.
(emphasis added)
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43.9 Para-5.4 of the CRZ Notification deals with
permissible activities in CRZ-IV areas, which is also relevant
for deciding the present petitions as the impugned project
also comes within CRZIV area. Para 5.4 reads thus:-
5.4 CRZ-IV:
Activities shall be permitted and regulated in the CRZ IV
areas as under:-
(i) Traditional fishing and allied activities undertaken by
local communities.
(ii) Land reclamation, bunding, etc. to be permitted only
for activities such as.
(a) foreshore facilities like ports, harbours, Jetties,
wharves, quays, slipway, bridges, sea links and
hover ports for coast guard, ete;
(b) projects for defence, strategic and security
purpose including coast guard;
(c) measures for control of erosion;
(d) maintenance and clearing of waterways,
channels and ports;
(e) measures to prevent sand bars, installation of
tidal regulators, laying of storm water drains or for
structure for prevention of salinity ingress and
freshwater recharge.
(iii) Activities related to waterfront or directly needing
foreshore facilities, such as ports and harbours, jetties,
quays, wharves, erosion control measures, breakwaters,
pipelines, navigational safety facilities and the like.
(emphasis added)
43.10 Para-6 of the CRZ Notification provides for
preparation of Coastal Zone Management Plan (CZMP).
Para-7 of the Notification deals with CRZ clearance for
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permissible and regulated activities and provides that all
permitted and regulated project activities attracting the
provisions of the Notification shall require CRZ clearance
prior to their commencement. Para-7 of the Notification
reads thus:-
7. CRZ clearance for permissible and regulated
activities- Delegation:
(i) All permitted or regulated project activities
attracting the provisions of this notification shall be
required to obtain CRZ clearance prior to their
commencement.
(ii) All development activities or projects in CRZ-I
and CRZ-IV areas, which are regulated or
permissible as per this notification, shall be dealt
with by Ministry of Environment, Forest and Climate
Change for CRZ clearance, based on the
recommendation of the concerned Coastal Zone
Management Authority.
(iii) For all other permissible and regulated activities as
per this notification, which fall purely in CRZ-II and CRZ-
III areas, the CRZ clearance shall be considered by the
concerned Coastal Zone Management Authority and such
projects in CRZ -II and III, which also happen to be
traversing through CRZ-I or CRZ-IV areas or both, CRZ
clearance shall, however be considered only by the
Ministry of Environment, Forest and Climate Change,
based on recommendations of the concerned Coastal Zone
Management Authority.
(iv) Projects or activities which attract the
provisions of this notification as also the provisions
of EIA notification, 2006 number S.O. 1533(E),
dated the 14th September, 2006, shall be dealt with
for a composite Environmental and CRZ clearance
under EIA Notification, 2006 by the concerned
approving Authority, based on recommendations of
the concerned Coastal Zone Management Authority,
as per delegations i.e., State Environmental Impact
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Assessment Authority (hereinafter referred to as the
SEIAA) or the Ministry of Environment, Forest and
Climate Change for category 'B' and category 'A'
projects respectively.
(v) In case of building or construction projects with
built-up area less than the threshold limit stipulated for
attracting the provisions of the EIA Notification, 2006
these shall be approved by the concerned local State or
Union territory Planning Authorities in accordance with this
notification, after obtaining recommendations of the
concerned Coastal Zone Management Authority. (vi) Only
for self-dwelling units up to a total built up area of 300
square meters, approval shall be accorded by the
concerned local Authority, without the requirement of
recommendations of concerned Coastal Zone Management
Authority and such authorities shall, however, examine
the proposal from the perspective of the Coastal
Regulation Zone notification before according approval.
(emphasis added)
43.11 The CRZ Notification dated 18 January 2019 has
been amended by Notification dated 24 November 2022. For
the purpose of the present petitions, amendment to para-
7(ii) is relevant and the amended para-7(ii) reads thus :-
"(ii) All development activities or projects in CRZ-I and
CRZ-IV areas, which are regulated or permissible as per
this notification, shall be dealt with by the Central
Government for Coastal Regulation Zone clearance, based
on the recommendation of the concerned Coastal Zone
Management Authority with the following exceptions,
namely: -
Stand-alone jetties, Salt works, Slipways, Temporary
structures and Erosion Control Measures (like Bunds,
Seawall, Groynes, Breakwaters, Submerged reef, Sand
nourishment, etc.)
which shall be dealt by concerned Coastal Zone
Management Authority.";
(emphasis added)
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(e) Office Memorandum dated 29th
November 2022:
43.12 The Government of India, MoEFCC with a view to
bring about greater clarity about processing of the proposals
for CRZ clearances has issued OM dated 29th November
2022, which prescribe the approving authorities for CRZ
clearances for various types of projects and the procedure
which is required to be adopted. The OM provides for
clarification and procedure in the form of a chart by dividing
the projects which do not require environmental clearance
and the ones which requires environmental clearance under
the EIA Notification of 2006. The relevant portion of the OM
is extracted below for the facility of reference:
"(ii) The concerned State/Union Territory Coastal Zone
Management Authority (CZMA) shall examine the above
documents in accordance with the approved Coastal Zone
Management Plan (CZMP)/Island Coastal Regulation Zone
(ICRZ) Plans or Integrated Islands Management Plan
(IIMP) in accordance with the procedure laid down an
dmake recommendations as per the provisions of CRZ
Notification, 2019/ ICRZ Notification 2019, clearly
specifying the permissibility, section/clause of the
notification permitting the project/activity, to the
concerned authority as under:-
Sr. Scenario as per the Clearance Approving Procedure
No. CRZ Notification 2019 Authority
Projects requiring only CRZ clearance
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1 (a)All development Application at
activities or projects CZMA by the
in CRZ-I and CRZ-IV PP
areas except those
mentioned at S.No.
2(a) below Recommendat
ion of CZMA
(b) All construction
activities related to
projects of
Application in
Department of Atomic
the Ministry
Energy or National
Defend or Strategic or Standalon
Ministry
Security importance, e CRZ
except those
mentioned at S. Recommendat
No.2(a) below. ion of EAC
(CRZ)
(c) Projects in CRZ-II
and III, which also
traverse through CRZ- Clearance by
I or CRZ-IV or both. the Ministry
(d) Construction of
sewage treatment
plants in CRZ-I for the
purpose of treating
the sewage from the
municipal area of
Greater Mumbai.
2 (a) Stand-alone
jetties, Salt works,
Slipways, Temporary
structures and Erosion
Control Measures (like
Application
Bunds, Seawall,
at CZMA by
Groynes, Breakwaters
the PP
Submerged reef, Sand
Nourishment, etc.)
located in CRZ-I and
CRZ-IV.
(b) Permissible and Standalo CZMA
regulated activities ne CRZ Clearance by
which fall purely in the CZMA
CRZ-II and CRZ-III
areas
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All construction
Activates related to
projects of
Department of Atomic
Energy or National
Defence or Strategic
or Security
importance mentioned
in S. no. 29(a) and
2(b)
(emphasis added)
Thus, it is evident that the project involving standalone
jetty can be cleared directly by the Coastal Zone
Management Authority (CZMA) without referring the
proposal to the MoEFCC.
(XI) ISSUES:
44. After having noticed the relevant statutory
provisions, we may advert to the issues, which arise for our
consideration:
(i) Whether the project is not a standalone jetty
and therefore, CRZ clearance can be granted
only by the Central Government?
(ii) Whether the order dated 2nd March 2023
passed by MCZMA is liable to be quashed on
the ground that MCZMA has no jurisdiction to
grant the approval to the project?
(iii) Whether the impugned decision of construction
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of the project at the radio club site being
irrational, arbitrary, violative of the rights of
the petitioners under Article 14 and 21 of the
Constitution of India and is in breach of
precautionary principle and principle of
sustainable development, is liable to be
quashed and set aside ?
(iv) Whether the heritage NOC dated 7th February
2025 is legal and valid?
(v) Whether the traffic NOC dated 28th January
2025 issued by the Mumbai Traffic Police is
legal and valid?
45. We shall now proceed to deal with the issues ad
seriatim.
(A) FIRST ISSUE:
(i) Whether the project is not a standalone jetty
and therefore, CRZ clearance can be granted only
by the Central Government?
46. The challenge to the order dated 2 nd March 2023
passed by the MCZMA has been made on the following
grounds:
(a) The project cannot be treated as a
standalone jetty and therefore, CRZ clearance can
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be granted only by the Central Government.
(b) Even if the project is to be treated as
standalone jetty, para 7(iv) of the Notification
2019 would require composite clearance under
EIA Notification 2006 as well as CRZ clearance
and that in the absence of environmental
clearance, the grant of CRZ clearance by MCZMA
is without jurisdiction.
47. Before proceeding further, it would be apposite to
take note of the deliberations made by the MCZMA and the
decision taken in the meeting held on 2 nd and 3rd February
2023, which are extracted below:
DELIBERATIONS:
The MMB officials presented that the project is very
important since it aims to decongest the traffic at
Gateway of India, proposed passenger jetty would
prove to be alternative to Gateway jetty. There would
not be vehicle movements through the jetty. All necessary
permissions have been obtained by the MMB for the
project, Even the State Arachnology Department has
granted the NOC for the project. MMB officials further
informed that-there is no ecologically sensitive features,
mangrove in the project site The Authority noted that the
PP has submitted the EIA/ EMP report prepared by MoEF
Accredited consultant (Building environment). The EIA
report states the proposed project is located on left side of
Radio Club, Mumbai. The spring tide range in the proposed
area of development of passenger craft near Radio club
jetty is about 4.5 which gives rise to high tidal currents
especially during the flood tide. The hydrodynamic and
sedimentation studies were carried out to study the
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suitability of the proposed jetty infrastructure at Radio
Club for 5 different options, option 1 to 5 were studied
using MIKE-21 HD/MT. The EIA report further states that
the present Gateway India attracts large no. of
passengers' movements and high amount of road traffic in
area which has consequences of littering and generation of
solid waste by the passengers which may affect the
archeologically monument. The proposed jetty at Radio
Club will reduce the passenger load as well as road
traffic from Gateway of India and also will provide a
better access and safe berthing facility to the
boats/yachts along with parking facility and
amenities considering the social benefit aspect of
the project, and the suggestion of Indian Navy the
jetty location is decided at Radio Club for
embarkation point of view. The Authority noted the
probable impacts and mitigation measures stated in the
EIA report. The Authority suggested MMB to ensure that
during construction phase noise and vibration level should
be kept within prescribed limits. Sewage from the public
utilities should not be disposed of in the sea. Zero
discharge practice should be implemented by the MMB.
The Authority noted that the MoEF&CC, New Delhi
has published amendment dated 24.11.2022 to
original CRZ Notification, 2019 as per which, in
paragraph 7, for sub-paragraph (ii) the following
sub-paragraph shall be substituted, namely: "(ii) All
development activities or projects in CRZ-I and CRZ-
IV areas, which are regulated or Permissible as per
this notification, shall be dealt with by the Central
Government for Coastal Regulation Zone clearance,
based on the recommendation of the concerned
Coastal Zone Management Authority with the
following exceptions, namely: -
Stand-alone jetties, Salt works, Slipways,
Temporary structures and Erosion Control Measures
(like Bunds, Seawall, Groynes, Breakwaters,
Submerged reef, Sand nourishment, etc.)
Subsequently, the MoEF&CC, New Delhi has issued
an OM dated 29,11.2022, as per which, project
activities such as Stand-alone jetties, Salt works,
Slipways, Temporary structures and Erosion Control
Measures (like Bunds, Seawall, Groynes,
Breakwaters, Submerged reef, Sand nourishment,
etc.) require clearance by the CZMA.
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DECISION:
In the light of above, the Authority after deliberation
decided to grant clearance to proposal form CRZ point of
view subject to following conditions:
1. Proposed activity should in accordance with provision of
the CRZ Notification, 2019 (amended from time to time).
2. MMB to obtain Heritage / Archaeology Noc from the
competent Authority.
3. MMB to ensure that during construction phase decibel
and vibration level should be kept at minimum level. It
should not exceed the prescribed standards.
4. Sewage from the public utilities should not be disposed
of in the sea. Zero discharge practice should be
implemented by the MMB.
5. Debris generated during the project activity should not
be dumped in CRZ area. It should be processed
scientifically at a designated place.
6. Adequate onboard waste storage bins should be
maintained on boat as well as in jetty and all terminal
facility premises. Regular waste collection and disposal
should be implemented.
7. MMB to implement recommendations of the EIA / EMP
report for mitigation of environment impacts.
8. Solid waste generated should be properly collected and
segregated. Dry/inert solid waste should be disposed of to
the approved site for land filling after recovering
recyclable materials.
9. All other required permission from different statutory
authorities should be obtained.
From the aforesaid decision, it is evident that MCZMA
treated the project to be a standalone jetty and examined
the issue of clearance from the CRZ point of view.
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48. It is also relevant to mention here that under
unamended para 7 (ii) of CRZ Notification, 2019, all
permissible activities in CRZ-I and CRZ-IV area were to be
dealt with by the Government of India, Ministry of MoEFCC
and MCZMA was merely a recommendatory authority and
final CRZ clearance would be issued only by the Central
Government. However, by Notification dated 24 th November
2022, para 7(ii) of CRZ Notification 2019 was amended and
amended provision carved out an exception in respect of
certain activities including standalone jetties for which CRZ
clearance has to be granted at the level of concerned
Coastal Zone Management Authority without requirement of
referring the proposal to the Central Government. In order
to notice the change brought about by the amendment, the
provision of unamended and amended para 7(ii) of CRZ
Notification 2019 are required to be read in conjunction
which are reproduced below in the form of a chart.
Unamended para-7(ii) of the Amended para-7(ii) of the CRZ
CRZ Notification dated 18 Notification dated 24
January 2019 November 2022
(ii) All development activities or "(ii) All development activities or
projects in CRZ-I and CRZ-IV projects in CRZ-I and CRZ-IV
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areas, which are regulated or areas, which are regulated or
permissible as per this permissible as per this
notification, shall be dealt with by notification, shall be dealt with by
Ministry of Environment, Forest the Central Government for
and Climate Change for CRZ Coastal Regulation Zone
clearance, based on the clearance, based on the
recommendation of the concerned recommendation of the concerned
Coastal Zone Coastal Zone Management
Management Authority. Authority with the following
exceptions, namely:
Stand-alone jetties, Salt works,
Slipways, Temporary structures
and Erosion Control Measures
(like Bunds, Seawall, Groynes,
Breakwaters, Submerged reef,
Sand nourishment, etc.)
which shall be dealt by concerned
Coastal Zone Management
Authority.";
49. Thus, after issuance of Notification dated 24 th
November 2022, the excepted projects enumerated under
para 7(ii) can now be dealt with by MCZMA for CRZ
clearance. One of the excepted projects under amended
para 7(ii) is standalone jetty. Thus, for CRZ clearance, for
standalone jetties, MCZMA can grant clearance by itself,
without referring the proposal to the Central Government.
50. Therefore, it is necessary to examine whether the
project is a standalone jetty. Para 5.1.2 of CRZ Notification
2019 dealing with regulated or permissible activity for CRZ-
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IB area clearly spells out ports and jetties as different and
distinct activities. The CRZ Notification 2019 creates a
conscious distinction between "ports" and "jetties".
Similarly, the activities mentioned in para 5.4 of aforesaid
Notification also make a conscious distinction between
"ports" and "jetties". Therefore, the term standalone jetty
as contra distinct from the "port" would mean where no
porting activities are carried out and the facilities used only
by the passengers. A port can have jetties for tying the
boats and the passengers boarding on and alighting from
such boats. Such a port having jetties would not be
covered by exceptions under amended para 7(ii) of CRZ
Notification 2019. However, every jetty, which does not
have a port facility, would be covered by the said exception.
The term "standalone" signifies absence of any port or
harbour like facilities where the platform is used only by the
passengers to board or alight from the boats.
51. The object of the project is to provide a facility of
jetty for parking of boats and to provide for embarkation
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and disembarkation point to the passengers. The project
does not involve handling of cargo or fish and same is only
for the benefit of passengers. The Supreme Court, in Re :
NOIDA MEMORIAL COMPLEX, NEAR OKHLA BIRD
SANCTUARY (SUPRA), has evolved the test of dominant
purpose of dominant nature of the project or common
parlance test i.e. how a common person using or enjoying
the facilities would view it. On the touchstone of aforesaid
principle, if the dominant purpose of the project is seen, the
same is to provide facilities to the passengers. The facilities
like lounge, cafe and parking are only incidental to the
passenger jetty. The project provides for basic facilities to
the passenger who will be embarking and disembarking and
therefore, the facilities which are incidental to the project
does not alter the dominant nature of the project i.e.
passenger jetty. The ancillary facilities required for making
passenger jetty functional does not make it something else
other than the jetty. Every jetty set up for use by the
passengers (where cargo or fish is not handled) would be
covered by the term 'standalone jetty' used in para 7(ii) of
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the CRZ Notification. Thus, the project is a standalone jetty
and is a permissible activity in CRZ area in terms of CRZ
Notification dated 18th January 2019.
52. In the instant case, MCZMA which is a statutory
authority comprising of experts, has treated the project to
be standalone jetty. The view taken by the statutory
authority is a plausible view and the same cannot be said to
be either perverse, arbitrary or irrational. This Court,
therefore, in exercise of powers of judicial review in the
absence of any infirmity with a decision taken by a body of
experts, cannot sit like an appellate authority and record
any contrary opinion.
53. Thus, the inevitable conclusion is thus, that the
project is a standalone jetty and submissions made by the
petitioners to the contrary do not deserve acceptance.
Accordingly, the first issue is answered in the negative by
stating that the project is a standalone jetty and there is no
need to seek CRZ clearance from the Central Government.
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(B) SECOND ISSUE:
(ii) Whether the order dated 2nd March 2023
passed by MCZMA is liable to be quashed on the
ground that MCZMA has no jurisdiction to grant
the approval to the project?
54. It is the case of the Petitioners that the Project in
question is covered by Entry No.7(e) of the EIA Notification
and therefore, it requires environmental clearance from the
Central Government. The contention of the Petitioners about
the Project being covered by Entry No.7(e) of the EIA
Notification is essentially based on the fact that the
previous proposal for setting up pencil-like jetty was placed
before the SEIAA, with a clear finding that the said project
was covered by Entry No.7(e) of the EIA Notification. It
appears that the 2014 proposal was recommended by the
MCZMA in its 93rd meeting held on 25th August 2014. The
proposal was thereafter placed before SEIAA in March 2019.
The petitioners also relied upon the proposal submitted by
Project Component, MMB in March 2022 in which a
representation was made that the Project is covered by
Entry No.7(e) of the EIA Notification. Since MCZMA had
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directed submission of revised proposal for passenger
terminal and jetty, a fresh proposal was submitted by
Project Component, MMB on 6 October 2022 in which a
representation was made in the Certificate of Accreditation
dated 6th December 2022 that the Project is covered by
Entry No.7(e) of the EIA Notification. The petitioners
contend that even otherwise the Project is covered by Entry
No.7(e) of the EIA Notification taking into consideration the
plain language of the said entry.
55. We have already reproduced Entry No.7(e) and
the EIA Notification which pertains to the activity of physical
infrastructure for 'ports, harbours, break waters and
dredging'. It would be impermissible to read the fifth
activity of establishment of 'passenger jetty' into Entry No.
7(e) of the EIA Notification. Furthermore, upon comparison
of the entries under Entry. No.7(e) of the EIA Notification
that with the activities in para-5.4(iii) of the CRZ
Notification, conscious exclusion of 'jetty' in Entry No.7(e) of
the EIA Notification is more than apparent. For better
understanding, the comparison of the activities in para-
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5.4(iii) of the CRZ Notification and in Entry No.7(e) of the
EIA Notification is, as under:-
Para 5.4(iii) of CRZ Entry No.7(e) in EIA
Notification Notification
(iii) Activities related to waterfront "Ports, harbours, break water,
or directly needing foreshore dredging".
facilities, such as ports and
harbours, jetties, quays, wharves,
erosion control measures,
breakwaters, pipelines,
navigational safety
facilities and the like.
56. Thus, while activities of ports, harbours and break
waters are common to both CRZ Notification as well as EIA
Notification, there is a conscious exclusion of activities of
'jetty' in EIA Notification.
57. The fact that the activity of establishment of jetty
is excluded from Entry No.7(e) of the EIA Notification
becomes evident if column Nos.3 and 4 of the Schedule are
seen in which the activities are subdivided in Category 'A'
and Category 'B' which have to be dealt with by the Central
Government or the SEIAA, respectively. If ports, harbours,
break waters or dredging involves the threshold limit of
more than 5 million TPA of cargo handling capacity
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(excluding fishing activities), the clearing authority is the
Central Government. On the other hand, if ports, harbours,
break waters or dredging involves threshold limit of less
than 5 million TPA of cargo handling capacity and/or
ports/harbours exceeding 10,000 TPA of fish handling
capacity, the clearing authority is SEIAA. Thus, column Nos.
3 and 4 clearly show that all the four activities included in
Entry No.7(e) must necessarily involve either the cargo
handling or fish handling activities. None of the four entries
envisages handling of only passengers. This is why there is
conscious exclusion of the activity of 'jetty' in Entry No.7(e)
of the EIA Notification.
58. Now the issue which arises for our consideration is
whether the MMB must be tied to the representation it had
made in respect of the previous project being governed by
Entry No.7(e) of EIA Notification, when in fact, the project
envisages construction of standalone jetty which is not
included in Entry No.7(e) of EIA Notification. The question,
whether or not the project is covered by Entry No.7(e) of
EIA Notification cannot be decided on the basis of conduct
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of the parties and there is no estoppel in law against MMB in
respect of the representation it has made about the
previous project which was never set up. The MMB, after
having realized that execution of the project involves setting
up of passenger jetty and the same is not covered by Entry
7(e) of the EIA Notification, is entitled to take a stand that
project is not governed by Entry 7(e) of the EIA Notification.
Therefore, the project cannot be treated as governed by
Entry 7(e) of the EIA Notification on account of MMB's
conduct.
59. The contention that project must be treated as
governed by Entry 7(e) of the EIA Notification only on
account of securing environmental clearance for other
jetties in the vicinity also sans substance. It is pertinent to
note that construction of Ro-Ro jetty and other terminal
facility at ferry wharf cannot be compared with present
project, as Ro-Ro jetty comprises of large size vessel aimed
mainly at transporting wheeled cargo where vehicles can
drive directly on and off the vessel. The Ro-Ro jetty
involves transportation of vehicles; therefore, it may be
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governed by Entry 7(e) of the EIA Notification based on the
cargo handling capacity.
60. Now we advert to another contention urged on
behalf of the petitioners that the project is a part of the
existing MPT. Merely because MPT is licensing authority for
the boards and yachts plying across the harbour, the same
does not mean that proposed jetty would form part of MPT
as MPT has never treated the proposed project as its own.
It is noteworthy that MPT in the year 2001 was proposing to
execute a separate project for establishing PWT for
providing water transportation system between Navi
Mumbai and Mumbai. The present project is being executed
by altogether different agency viz. MMB. Therefore, the
contention that proposed project is part of existing port of
MPT cannot be considered.
61. The EIA Notification of 2006 has been amended
by S.O.3067 (E) dated 1st December 2009 by which the
entries 'breakwaters and dredging' were added in Clause
7(e) of the Schedule to EIA Notification 2006. The
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amendment effected by S.O. dated 1st December 2009 also
included insertion of two notes relating to activity of
dredging. Thus, so far as ports and harbours are
concerned, the entry in Clause 3 and 4 of the Schedule
clearly go to show that determinative factor for deciding
jurisdiction of MoEF or SEIAA is only the quantum of
cargo/fish handling capacity. This would necessarily mean
that boat or berthing facility like the jetty which does not
involve cargo/fish handling, is not governed by entry 7(e) of
the EIA Notification.
62. We are, therefore, of the view that the activity of
setting up of passenger jetty is not covered by Entry
No.7(e) of EIA Notification and therefore, para-7(iv) of the
CRZ Notification has no application for the project. In other
words, since environmental clearance under EIA Notification
is not needed, provisions of para-7(iv) of CRZ Notification
are wholly inapplicable to the present case. Therefore,
environmental permission of SEIAA or of the Central
Government was not necessary for execution of the Project
and the CRZ clearance granted by MCZMA is
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found to be in order.
63. For the aforesaid reasons, the second issue is
answered by stating that the project does not require
environmental clearance from the Central Government and
the grant of CRZ clearance by MCZMA is legal and valid.
(C) THIRD ISSUE:
(iii) whether the impugned decision of
construction of the project at the radio club site
being irrational, arbitrary, violative of the rights of
the petitioners under Article 14 and 21 of the
Constitution of India and is in breach of
precautionary principle and principle of
sustainable development, is liable to be quashed
and set aside ?
64. For the facility of reference, we have sub-divided
the challenge of the petitioners to the project under third
issue with following sub-headings:
(a) Non-consideration of alternative site of Ferry
Wharf.
(b) Challenge to the location of the project and
non-consideration of principle of sustainable
development and precautionary principle.
(c) Effect of non-disclosure of Howe report and
accurate information while seeking MCZMA
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clearance :
(d) Amphitheatre
(e) Restaurant/Cafe
(f) Existing jetties
65. Admittedly, the impugned decision of construction
of the project at radio club site is a policy decision.
Therefore, it is apposite to take note of well settled
principles with regard to scope of judicial review in the
matter of policy decision and with regard to applicability of
principles of sustainable development and precautionary
principles in relation to a development activity.
(i) Scope of Judicial Review:
66. The Supreme Court in DAHANU TALUKA
ENVIRONMENT PROTECTION GROUP & ANR. VS.
BOMBAY SUBURBAN ELECTRICITY SUPPLY COMPANY
LTD. & ORS.,17 while dealing with validity of clearance by
the State of Maharashtra to the proposal of Bombay
Suburban Electricity Supply Company for construction of a
thermal power project over an area of 800 hectors or
17 (1991) 2 SCC 539
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thereabouts in Dahanu, Maharashtra, in paragraph 2 of the
decision dealt with the scope of judicial review in
environmental matters. Relevant extract of paragraph 2 is
extracted below for the facility of reference:
"2.........The observations in those decisions need not be
reiterated here. It is sufficient to observe that it is
primarily for the governments concerned to consider the
importance of public projects for the betterment of the
conditions of living of the people on the one hand and the
necessity for preservation of social and ecological
balances, avoidance of deforestation and maintenance of
purity of the atmosphere and water free from pollution on
the other in the light of various factual, technical and
other aspects that may be brought to its notice by various
bodies of laymen, experts and public workers and strike a
just balance between these two conflicting objectives. The
court's role is restricted to examine whether the
government has taken into account all relevant aspects
and has neither ignored nor overlooked any material
considerations nor been influenced by extraneous or
immaterial considerations in arriving at its final decision."
67. The scope of judicial review of governmental
policy is now well defined. The Courts do not and cannot
act as appellate authorities examining the correctness,
suitability and appropriateness of a policy, nor are the
courts advisors to the executive on matters of policy which
the executive is entitled to formulate. The scope of judicial
review, when examining a policy of the Government, is to
check whether it violates the fundamental rights of the
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citizens or is opposed to the provisions of the Constitution,
or opposed to any statutory provision or manifestly
arbitrary. The Courts cannot interfere with policy either on
the ground that it is erroneous or on the ground that a
better, fairer or wiser alternative is available. Legality of
the policy, and not the wisdom or soundness of the policy, is
the subject of judicial review (VID ASIF HAMEED VS.
STATE OF J & K 18), SITARAM SUGAR CO. LTD. VS.
UNION OF INDIA19, KHODAY DISTILLERIES LTD. VS.
STATE OF KARNATAKA20, BALCO EMPLOYEES' UNION
VS. UNION OF INDIA21, STATE OF ORISSA VS.
GOPINATH DASH 22, AKHIL BHARAT GOSEVA SANGH
VS. STATE OF A.P.23, and DIRECTORATE OF FILM
FESTIVALS VS. GAURAV ASHWIN JAIN 24.
68. A three Judge Bench of the Supreme Court in
NARMADA BACHAO ANDOLAN VS. UNION OF INDIA &
18 1989 SUPP (2) SCC 364
19 (1990) 3 SCC 223
20 (1996) 10 SCC 304
21 (2002) 2 SCC 333
22 (2005) 13 SCC 495
23 (2006) 4 SCC 162
24 (2007) 4 SCC 737
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ORS.25 dealt with the scope of judicial review in respect of
infrastructural projects and held that conception and
decision to undertake a project must be regarded as a
policy decision and it is for the Government to decide how
to do its job. Paragraphs 227, 229 and 234 of the aforesaid
decision which are relevant for the purposes of controversy
involved in the instant writ petition are extracted below for
the facility of reference.
"227. There are three stages with regard to the
undertaking of an infrastructural project. One is
conception or planning, second is decision to undertake
the project and the third is the execution of the project.
The conception and the decision to undertake a project is
to be regarded as a policy decision. While there is always
a need for such projects not being unduly delayed, it is at
the same time expected that a thorough possible study
will be undertaken before a decision is taken to start a
project. Once such a considered decision is taken, the
proper execution of the same should be undertaken
expeditiously. It is for the Government to decide how to
do its job. When it has put a system in place for the
execution of a project and such a system cannot be said
to be arbitrary, then the only role which a court may have
to play is to see that the system works in the manner it
was envisaged.
229. It is now well settled that the courts, in the exercise
of their jurisdiction, will not transgress into the field of
policy decision. Whether to have an infrastructural project
or not and what is the type of project to be undertaken
and how it has to be executed, are part of policy-making
process and the courts are ill-equipped to adjudicate on a
policy decision so undertaken. The court, no doubt, has a
duty to see that in the undertaking of a decision, no law is
25 2000(10) SCC 664
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violated and people's fundamental rights are not
transgressed upon except to the extent permissible under
the Constitution. Even then any challenge to such a policy
decision must be before the execution of the project is
undertaken. Any delay in the execution of the project
means overrun in costs and the decision to undertake a
project, if challenged after its execution has commenced,
should be thrown out at the very threshold on the ground
of laches if the petitioner had the knowledge of such a
decision and could have approached the court at that
time. Just because a petition is termed as a PIL does not
mean that ordinary principles applicable to litigation will
not apply. Laches is one of them.
234. In respect of public projects and policies which are
initiated by the Government the courts should not become
an approval authority. Normally such decisions are taken
by the Government after due care and consideration. In a
democracy welfare of the people at large, and not merely
of a small section of the society, has to be the concern of
a responsible Government. If a considered policy decision
has been taken, which is not in conflict with any law or is
not mala fide, it will not be in public interest to require the
court to go into and investigate those areas which are the
function of the executive. For any project which is
approved after due deliberation the court should refrain
from being asked to review the decision just because a
petitioner in filing a PIL alleges that such a decision should
not have been taken because an opposite view against the
undertaking of the project, which view may have been
considered by the Government, is possible. When two or
more options or views are possible and after considering
them the Government takes a policy decision it is then not
the function of the court to go into the matter afresh and,
in a way, sit in appeal over such a policy decision."
69. Another three Judge Bench of Supreme Court in
RAJIV SURI VS. DELHI DEVELOPMENT AUTHORITY &
OTHERS 26, reiterated the scope of interference with policy
26 (2022) 11 SCC 1
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decisions and in paragraphs 202, 203 and 211 has held as
under:
"202. A policy decision goes through multiple stages
and factors in diverse indicators including socio-economic
and political justice, before its final culmination. As per the
nature of the project, the Government executes the
project by taking certain steps -- legislative,
administrative, etc. and it is this which comes under the
radar of the Court. The increasing transparency in
Government functioning by means of traditional and
modern media is reducing the gap between citizens and
Government and Government actions are met with a
higher level of scrutiny on a real-time basis.
203. In a democracy, the electors repose their faith in the
elected Government which is accountable to the
legislature and expect it to adopt the best possible course
of action in public interest. Thus, an elected Government
is the repository of public faith in matters of development.
Some section of the public/citizens may have another view
point if not complete disagreement with the course of
action perceived by the elected Government, but then, the
dispensation of judicial review cannot be resorted to by
the aggrieved/dissenting section for vindication of their
point of view until and unless it is demonstrated that the
proposed action is in breach of procedure established by
law or in a given case, colourable exercise of powers of
the Government. Therefore, it is important for the Courts
to remain alive to all the attending circumstances and not
interfere merely because another option as in the
perception of the aggrieved/dissenting section of public
would have been a better option.
211. To sum up the above discussion, it may be noted
that judicial review primarily involves a review of State
action -- legislative, executive, administrative and policy.
The primary examination in a review of a legislative action
is the existence of power with the legislature to legislate
on a particular subject-matter. For this purpose, we often
resort to doctrines of pith and substance, harmonious
construction, territorial nexus, etc. Once the existence of
power is not in dispute, it is essentially an enquiry under
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Article 13 of the Constitution which enjoins the State to
not violate any of the provisions of Part III in a law-
making function. The review of executive action would
depend upon the precise nature of the action. For, the
domain of executive is wide and is generally understood to
take within its sweep all residuary functions of the State.
Thus, the precise scope of review would depend on the
decision and the subject-matter. For instance, an action
taken under a statute must be in accordance with the
statute and would be checked on the anvil of ultra vires
the statutory or constitutional parameters. The enquiry
must also ensure that the executive action is within the
scope of executive powers earmarked for State
Governments and Union Government respectively in the
constitutional scheme. The scope of review of a pure
administrative action is well settled. Since generally
individuals are directly involved in such action, the Court
concerns itself with the sacred principles of natural justice
-- audi alteram partem, speaking orders, absence of bias,
etc. The enquiry is also informed by
the Wednesbury [Associated Provincial Picture Houses
Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2
All ER 680 (CA)] principles of unreasonableness. The
review of a policy decision entails a limited enquiry. As
noted above, second guessing by the Court or substitution
of judicial opinion on what would constitute a better policy
is strictly excluded from the purview of this enquiry. Under
the constitutional scheme, the Government/executive is
vested with the resources to undertake necessary
research, studies, dialogue and expert consultation and
accordingly, a pure policy decision is not interfered with in
an ordinary manner. The burden is heavy to demonstrate
a manifest illegality or arbitrariness or procedural lapses in
the culmination of the policy decision. However, the
underlying feature of protection of fundamental rights
guaranteed by the Constitution must inform all enquiries
of State action by the constitutional court."
(ii) Principle of sustainable development and
precautionary principle:
70. A three Judge Bench of Supreme Court in
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VELLORE CITIZENS' WELFARE FORUM VS. UNION OF
INDIA & ORS.27 has taken note of the concept of
sustainable development and precautionary principle. It has
been held that traditional concept that development and
ecology are opposed to each other is no longer acceptable
and sustainable development is the answer. It has further
been held that sustainable development, as a balancing
concept between ecology and development, has been
accepted as part of customary international law. It has also
been held that 'precautionary principle' and 'polluter pays'
principle are essential features of sustainable development
and since these principles have been accepted as part of
customary international law, there would be no difficulty in
accepting it as part of domestic law. The similar view has
been reiterated in VELLORE DISTRICT ENVIRONMENT
MONITORING COMMITTEE VS. THE DISTRICT
COLLECTOR, VELLORE DISTRICT & OTHERS 28.
27 (1996) 5 SCC 647
28 2024 SCC ONLINE SC 4758
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(a) Non-consideration of alternative site of Ferry
Wharf:
71. The challenge to the project has been made on
the ground that non-consideration of alternative site at ferry
wharf has vitiated the decision in respect of the project at
radio club. In support of aforesaid contention, petitioners
have relied on the report of Consulting Engineers, wherein a
recommendation was made for construction of PWT at
South of ferry wharf. It is contended that decision for
construction of the project at radio club has been taken in
ignorance of report of the Consulting Engineers and without
carrying out any independent study. Therefore, the decision
is arbitrary and irrational and suffers from the vice of non-
application of mind.
72. The Consulting Engineers were appointed to
submit a report to avoid collision between passenger crafts
proposed to be used for water transport service between
Mumbai and Navi Mumbai and ports', cargo and vessels.
The aforesaid fact is evident from the following observations
in the Consulting Engineers' interim report.
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"Two separate studies were conducted on the subject in
the past at different points of time -- one in 1992 by M/s
Kirloskar Consultants and the other in 1995 by M/s
Consulting Engineering Services -- which resulted in the
selection of the location of one PWT terminal in South.
Mumbai next to the Gateway of India near Radio Club and
the other terminal in Navi Mumbai at Belapur as shown in
Fig.1.1
Mumbai Port Trust (MbPT), however, harboured certain
concerns on the location of the terminal in South Mumbai
particularly in the context of possible collisions between
the passenger crafts and the ports' cargo vessels during
the crossings of the port's main navigation channel by the
passenger crafts along the then recommended navigation
route (reference pages 4 and 5 of the Terms of Reference
- Section 2).
It is with their apprehension in view that MbPT
appointed Howe (India) Pvt Ltd (HIPL) to freshly
review constructively the scenario of the past with the
objective to examine feasible locations offering the
minimum interference of the PWT traffic with the seaborne
traffic of MbPT, JNPT and the Indian Navy, for siting of the
proposed PWT terminal."
(emphasis added)
73. The Consulting Engineers, in the interim report
conducted comparison of five alternative locations and
recommended the proposed PWT to be located at ferry
wharf. The said report was circulated amongst the stake
holders for their responses. The MMB disagreed with the
findings of the interim report and in its comments on 3 rd
October 2000 stated that approach of Consulting Engineers
(Howe) was aimed only at negating the potential site at
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Gateway of India at radio club and to locate PWT within MPT
premises. In the report, MMB also stated that Consulting
Engineers lack professional approach to suggest viable
suggestion to establish PWT at a location which will be
useful to public. The relevant extract of the said
communication dated 3rd October 200 reads as under:
"5. The Report of M/s. Howe (I) Ltd. is not considered
wholesome as it is aimed only at negating potential
sites at Gateway / Radio Club area and within the
Mumbai Port Trust premises. Instead of finding out a
solution and suggesting ways and means of
accommodating much needed passenger ferry service, the
Consultant appears to have taken a fixed stand as to why
it cannot be done at other places other than Ferry Wharf.
No professional approach appears to have been made to
suggest a viable solution for establishing water transport
services in the location which would be useful to the public
and will be able to reduce passenger load from the road
and rail network of Mumbai."
(emphasis added)
74. The CIDCO, vide letter dated 14 th November 2000
also objected to the report of Consulting Engineers, wherein
it was stated that a biased assessment has been made by
the Consulting Engineers. The Government of Maharashtra,
vide letter dated 9th November 2001, did not agree for
setting up of PWT at ferry wharf. It was further stated in
the said communication that a terminal at Gateway of India
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is still needed as ferry wharf was not a suitable substitute.
The State Government, therefore, suggested that PWT be
developed at ferry wharf and Gateway of India.
75. The Consulting Engineers, after considering the
objections and suggestions by various stake holders,
submitted a final report sometime in January 2002/April
2003, in which following recommendations were made:
i) It is strongly recommended that the PWT system be
established at the earliest at Ferry Wharf.
ii) Provision of the two flyovers on P.D'mello road, as
proposed in the report, would considerably ease out the
access and dispersal of the passengers to and from the
proposed PWT. Also, the alternative access proposed by
MbPT, involving two level crossings, is technically feasible.
Therefore, a judicious selection between the two
alternative access schemes will be necessary.
iii) It is recommended that 50% subsidy be granted to the
PWT system in the interest of public service.
76. Thus, it is evident that the purpose of
appointment of Consulting Engineers was to examine the
technical and economic viability of providing Passenger
Water Transport System across the harbour between the
Mumbai and Navi Mumbai cities. The MPT had assigned the
project to the Consulting Engineers, as there was an
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apprehension of possible collision between passenger crafts
and port cargo vehicles during crossing of ports' main
navigation channel by passenger crafts.
77. Thus, the recommendation by the Consulting
Engineers was made in the context of providing water
transport facilities which was to be operated through
passenger crafts, like shuttle services between Mumbai and
Navi Mumbai cities and setting up of a terminal, which was
part of the project. The feasibility study was conducted by
the Consulting Engineers for the purpose of choosing most
convenient points for setting up terminal for such passenger
movement.
78. Admittedly, passenger jetty service as conceived
in the year 2000 has not been set-up by the State
Government or any other agency in past 25 years.
Undeniably, on account of construction of several fly-overs,
increase of lanes of Vashi creek bridge and construction of
trans-harbour bridge (Atal Setu), the time taken to
commute between the cities of Mumbai and Navi Mumbai
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has reduced considerably and the road connectivity between
the two cities has improved significantly. The Consulting
Engineers' interim report indicates that average journey
time between two cities was 110 minutes. The purpose of
setting-up of PWT in the year 2000 was for operation of
passenger water transport services to connect Mumbai and
Navi Mumbai cities, whereas, the purpose of the present
project is to decongest the existing small antiquated jetties
at Gateway of India, where hundreds of boats, ferries and
yachts are berthed. Approximately 35 lac passengers face
immense difficulty in embarkation and disembarkation. The
object of the present project is to provide better facilities to
the existing passengers using old jetties and to decongest
the Gateway of India area rather than establishing
connectivity between two cities through water transport
service. The project of construction at radio club is not
aimed at the same purpose for which the Consulting
Engineers had conducted the study in the year 2000.
79. The position has undergone a change during the
past 25 long years as majority of port activities have shifted
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from MPT to JNPT located at Nava Shea, District-Raigad. It
is relevant to mention that one of the reasons for rejecting
the site at radio club pier by Consulting Engineers was the
requirement of conducting rock blasting, which is evident
from the following findings in Consulting Engineers' report:
"It is to be noted that this scheme is characterized by
large quantity of rock dredging requiring blasting and
grab dredging in the vicinity of the residential area
across T. Ramchandani Marg and the Gateway of
India.
iv) Rock blasting for dredging to -2 M CD would be
unavoidable since no cutter suction dredger can operate in
the shallow depths encountered at the location.
v) Extreme precautions would need to be taken while
rock blasting in view of the close proximity of
Gateway of India -- a heritage structure, as well as the
existing residential buildings across T. Ramchandani
Marg."
80. Thus, it is evident that Consulting Engineers'
report was in the context of altogether different need and
was principally aimed at suggesting site for PWT at a
location other than Gateway of India. The said report was
prepared for a different purpose i.e. for establishing PWT
system to connect Mumbai and Navi Mumbai. Therefore,
the same was not required to be brought to the notice of
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MCZMA for seeking environmental clearance. For the
similar reason, MCZMA was not required to consider the
alternative sites as the project is undertaken with main
object to provide facilities and safety to the passengers
travelling between the existing location at Gateway of India.
Thus, it is evident that the non-consideration of alternative
site at ferry wharf has not vitiated the decision to construct
the project at radio club. In our opinion, MMB was not
under an obligation to mention the alternative sites in the
application seeking clearance of the project.
(b) Challenge to the location of the project and
non-consideration of principle of sustainable
development and precautionary principle:
81. In so far as the challenge to the impugned policy
decision on the ground that ferry wharf is a more suitable
location for setting up of the jetty and construction of jetty
and passenger terminal would result more congestion and
traffic chaos in the area is concerned, suffice it to say that
multiple regulatory authorities, after application of mind,
have granted approval to the project. Primarily, it is for the
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Government to consider the project and the role of Courts is
restricted to examine whether Government has taken into
account all relevant aspects or has neither ignored nor
overlooked any material consideration. The Supreme Court
in NARMADA BACHAO ANDOLAN (SUPRA), after taking
into the precautionary principle applicable to a project
affecting environment in para 122, 123 and 124, has held
as under:
"122. It is this decision which was the subject-
matter of challenge in this Court. After referring to the
different concepts in relation to environmental cases like
the "precautionary principle" and the "polluter-pays
principle", this Court relied upon the earlier decision of
this Court in Vellore Citizens' Welfare Forum v. Union of
India [(1996) 5 SCC 647] and observed that there was a
new concept which places the burden of proof on the
developer or industrialist who is proposing to alter the
status quo and has become part of our environmental law.
It was noticed that inadequacies of science had led to the
precautionary principle and the said "precautionary
principle" in its turn had led to the special principle of
burden of proof in environmental cases where burden as
to the absence of injurious effect of the actions proposed
is placed on those who want to change the status quo. At
p. 735, this Court, while relying upon a report of the
International Law Commission, observed as follows: (SCC
para 38)
"38. The precautionary principle suggests that where
there is an identifiable risk of serious or irreversible harm,
including, for example, extinction of species, widespread
toxic pollution in major threats to essential ecological
processes, it may be appropriate to place the burden of
proof on the person or entity proposing the activity that is
potentially harmful to the environment."
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123. It appears to us that the "precautionary principle"
and the corresponding burden of proof on the person who
wants to change the status quo will ordinarily apply in a
case of polluting or other project or industry where the
extent of damage likely to be inflicted is not known. When
there is a state of uncertainty due to lack of data or
material about the extent of damage or pollution likely to
be caused then, in order to maintain the ecology balance,
the burden of proof that the said balance will be
maintained must necessarily be on the industry or the unit
which is likely to cause pollution. On the other hand where
the effect on ecology or environment of setting up of an
industry is known, what has to be seen is that if the
environment is likely to suffer, then what mitigative steps
can be taken to offset the same. Merely because there will
be a change is no reason to presume that there will be an
ecological disaster. It is when the effect of the project is
known that the principle of sustainable development would
come into play which will ensure that mitigative steps are
and can be taken to preserve the ecological balance.
Sustainable development means what type or extent of
development can take place which can be sustained by
nature/ecology with or without mitigation.
124. In the present case we are not concerned with the
polluting industry which is being established. What is
being constructed is a large dam. The dam is neither a
nuclear establishment nor a polluting industry. The
construction of a dam undoubtedly would result in the
change of environment but it will not be correct to
presume that the construction of a large dam like the
Sardar Sarovar will result in an ecological disaster. India
has an experience of over 40 years in the construction of
dams. The experience does not show that construction of
a large dam is not cost-effective or leads to ecological or
environmental degradation. On the contrary there has
been ecological upgradation with the construction of large
dams. What is the impact on environment with the
construction of a dam is well known in India and,
therefore, the decision in A.P. Pollution Control Board
case [(1999) 2 SCC 718] will have no application in the
present case."
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82. Thus, in view of aforesaid enunciation of law, it is
evident that in the light of precautionary principle, the
burden of proof is on the project proponent to prove that
such activity is not potentially harmful to the environment in
every case where there is identifiable risk of serious or
irreversible harm. The precautionary principle usually is
applied where the extent of damage likely to be inflicted is
not known due to lack of data or material. However, in a
case where impact on the environment on account of
execution of the project is well known, the precautionary
principle would not apply and principle of sustainable
development would come into play. The principle of
sustainable development would ensure that mitigative steps
are taken and can be taken to preserve ecological balance.
In the instant case, the project envisages construction of
passenger jetty and terminal facilities involving virtually no
reclamation of the sea. The project is aimed at not creating
altogether a new facility but to substitute a new facility at
the existing antiquated jetties. The extent of damage likely
to be caused by the construction of the jetty is well-known
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as was in the case before the Supreme Court in NARMADA
BACHAO ANDOLAN (SUPRA), where the project of
construction of dam and its impact on environment was
well-known. Therefore, in the fact situation of the case, the
precautionary principle would not strictly apply.
83. At present, there are five antiquated operational
jetties right next to the iconic Government of India
monument, which have been in use for almost a century.
One of the said five jetties is exclusively used by Bhabha
Atomic Research Center. The other four jetties are used by
daily commuters, who travel to work in South Mumbai as
well as by the tourists who make use of ferries to reach
Elephanta Caves, Alibaug etc. or for excursion in the sea.
The jetties are also used by yacht owners and operators.
According to the affidavit filed by MMB, approximately 30 to
35 lac passengers currently travel every year from the said
four jetties. The said affidavit highlights the position that
the existing jetties facilities are wholly inadequate as there
is no proper infrastructure in terms of waiting area, parking
facilities, disability accessibility, emergency services,
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physical frisking/checking of the passengers, etc. Location
of those jetties next to the iconic Gateway of India
monument, as well as proximity to the Taj Mahal hotel leads
to overcrowding and high amount of road traffic at the
junction of the Gateway of India. It is pointed out in the
affidavit that during embarkation/ disembarkation from the
jetties, passengers are required to cross 3-4 boats to get to
their boat/ferry or to the shore. In the said process of
embarkation, elderly persons, women and children are at
the risk of serious injuries. The MMB has placed on record
photographs of the existing jetty facilities at the Gateway of
India, which depict overcrowding at the spot as well as
serious security and safety hazards where passengers are
seen crossing several jetties to reach the desired boat/ferry.
84. Bearing in mind the above concerns, the MPT has
conceived the project of setting up passenger jetty and
terminal, which involves construction of 10 fixed pile jetties
(with 20 berths) with walkway, passenger terminal
platforms and parking in pile and a terminal (porta cabins
having heritage like look) over an aggregate area
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admeasuring 25116.3 sq.mtrs. The project site is 350 mtrs.
away from the Gateway of India monument. The Affidavit
indicates that MMB has considered the feasibility of other
locations for the Project and has also taken into
consideration the suggestions of Western Naval Command.
Since the project is at close proximity of naval
establishment, MMB has placed on record letter dated 29
November 2022 of Western Naval Command which has
imposed several conditions including the condition of
clearance of all boats from the sea area around Gateway of
India, as well as provision of one jetty and office space on
the passenger terminal to be allotted to the Indian Navy for
berthing of Indian Navy Craft and associated administrative
purposes.
85. Thus, the decision taken by MMB to set up
passenger jetty and terminal at Radio Club appears to be
well considered decision and is aimed at addressing several
safety, security and other concerns in respect of the existing
five outdated jetties being used by 30-35 lac passengers
annually at the Gateway of India.
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86. In our view, the Project also meets the principle
of sustainable development where the proposed
development is being carried out with minimum damage to
the environment. It is noteworthy that an expert body
namely, MCZMA has applied its mind to all the
environmental concerns and has thereafter given clearance
to the project. In absence of any expertise at our command,
we cannot sit as an appellate authority over the decision of
expert body like MCZMA. We also cannot judge the wisdom
of the Government in setting up of the jetty near the site
where lakhs of passengers have already undertaken sea
journeys, instead of expecting them to shift to another
location, which is not considered as a feasible alternative by
the Government to achieve the objective of decongesting
the existing jetty facilities at Gateway of India.
87. The aforesaid policy decision has been taken by
the Government and MMB, which does not suffer from vice
of arbitrariness, irrationality and vice of non-application of
mind. The MMB has taken into account relevant factors.
The decision to construct the project, cannot be said to be
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either arbitrary or irrational. The project cannot be termed
as violative of Article 14 and 21 of the Constitution of India
and principles of sustainable development and
precautionary principle. The decision to locate the project
at radio club is also a well-considered decision.
(c) Non-disclosure of Consulting Engineers'
report and accurate information while seeking MCZMA
clearance :
88. The petitioners have contended that MMB is guilty
of suppression of material facts while seeking CRZ clearance
from MCZMA. It is contended that once non-disclosure of
accurate information to the clearing body is apparent, the
environmental clearance granted to the project must
necessarily be set aside. In this connection reliance is
placed on judgment of the Apex Court in Hanuman
Laxman Aroskar Versus. Union of India 29 in which the
Apex Court has held in paras-34, 37, 38, 62, 72, 73, 80 and
82 as under:-
34. The objective of the EIA process is to ensure that
environmental and developmental concerns are
appropriately balanced on the basis of the most accurate
29 (2019) 15 SCC 401
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information available.
37. The application, which was to be made in
accordance with the schedule provided in the notification
was to be submitted with a project report which included
with it an EIA report, an Environment Management Plan
(EMP) and the details of a public hearing which had been
carried out in accordance with guidelines issued by the
Central Government from time to time. Limited exceptions
to the public hearing process and the submission of an EIA
were provided.
38. MoEF as the Impact Assessment Agency (IAA) would
then evaluate the application and reports submitted. IAA
was empowered to constitute a committee of experts, if
necessary, which would have a right of entry into and
inspection of the site during or after the commencement
of the preparations relating to the project. IAA would
prepare a set of recommendations based on the
documents furnished by an applicant within 90 days from
the receipt of the documents and a decision would be
conveyed to the applicant within 30 days thereafter. EC
granted was valid for a period of five years and a
successful applicant was required to submit half-yearly
reports to IAA. Concealing factual data or submitting false
or misleading information would make the application
liable for rejection and would lead to the cancellation of
any EC granted on that basis.
62. The information provided in Form 1 serves as a base
upon which the process stipulated under the 2006
Notification rests. An applicant is required to provide all
material information stipulated in the form to enable the
authorities to formulate comprehensive ToR and enable
persons concerned to provide comments and
representations at the public consultation stage. The
depth of information sought in Form 1 is to enable the
authorities to evaluate all possible impacts of the
proposed project and provide the applicant an opportunity
to address these concerns in the subsequent study.
Missing or misleading information in Form 1 significantly
impedes the functioning of the authorities and the process
stipulated under the notification. For this reason, any
application made or EC granted on the basis of a defective
Form 1 is liable to be rejected immediately. Clause (vi) of
Para 8 of the notification provides thus:
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"Deliberate concealment and/or submission of false or
misleading information or data which is material to
screening or scoping or appraisal or decision on the
application shall make the application liable for rejection,
and cancellation of prior environmental clearance granted
on that basis. Rejection of an application or cancellation of
a prior environmental clearance already granted, on such
ground, shall be decided by the regulatory authority, after
giving a personal hearing to the applicant, and following
the principles of natural justice."
72. We cannot gloss over the patent and abject failure
of the State of Goa as the project proponent in failing to
disclose wetlands, water sources, water bodies,
biospheres, mountains and forests within an aerial
distance of 15 km as required by Form 1. The disclosure in
Form 1 constitutes the very foundation of the process
which is initiated on the basis of the information supplied
by the project proponent. Following the disclosure in Form
1, ToR are formulated, and this leads to the preparation of
the EIA report. A duty is cast upon the project proponent
to make a full, complete and candid disclosure of all
aspects bearing upon the environment in the area of
study. The project proponent cannot profess an ignorance
about the environment in the study area. The project
proponent is bound by the highest duty of transparency
and rectitude in making the disclosures in Form 1.
73. There can be no manner of doubt that Form 1 is an
important ingredient in the entire process envisaged
under the 2006 Notification. Hence, clause (vi) of Para 8
of the 2006 Notification provides that deliberate
concealment or submission of false or misleading
information or data which is material to screening or
scoping or appraisal or decision on the application shall
make the application liable for rejection and lead to the
cancellation of a prior EC granted on that basis. The
declaration which is required of the project proponent is to
a similar effect.
80. Though the EIA report adverts to the presence of
forests within the study area in Goa and Maharashtra, we
have to consider whether this by itself warrants the grant
of an EC in spite of the fact that there has been a patent
failure on the part of the project proponent to make a
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transparent and candid disclosure of material facts in
Form 1. Information furnished in Form 1 is crucial to the
preparation of ToR by EAC. EAC comprises of experts. It is
constituted, among other reasons, for the specific purpose
of assessing the information furnished in Form 1 and
preparing comprehensive ToR. There is an intrinsic link
between the disclosures in Form 1 which constitute the
basis for formulating ToR and between the ambit of the
EIA report required by ToR and the final EIA report. ToR
guide the preparation of the EIA report. A failure to
disclose information in Form 1 impairs the functioning of
EAC in the preparation of ToR and in consequence, leads
to preparation of a deficient EIA report.
82. The failure on part of a project proponent to disclose
material information in Form 1 as stipulated under the
2006 Notification has a cascading effect on the salient
objective which underlies the 2006 Notification. The 2006
Notification represents an independent code with the
avowed objective of balancing the development agenda
with the protection of the environment. An applicant
cannot claim an EC, under the 2006 Notification, based on
substantial or proportionate compliance with the terms
stipulated in the notification. The terms of the notification
lay down strict standards that must be complied with by
an applicant seeking an EC for a proposed project. The
burden of establishing environmental compliance rests on
a project proponent who intends to bring about a change
in the existing state of the environment. Whereas, in the
present case, there has thus been a patent failure on the
part of the project proponent to make mandatory
disclosures stipulated in Form 1 under the 2006
Notification, that must have consequences in law. There
can be no gambles with the environment : a "heads I win,
tails you lose" approach is simply unacceptable;
unacceptable if we are to preserve environmental
governance under the rule of law.
89. In so far as reliance placed by the petitioners in
case of HANUMAN LAXMAN AROSKAR (SUPRA) is
concerned, the Supreme Court found that material
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information i.e. failure to disclose wetlands water sources,
water bodies, bio-spheres, mountains and forest within an
aerial distance within 15 km from an International Airport,
which was expressly provided in Form-I stipulated in the
EIA Notification was not furnished to the Ministry. The
Supreme Court, thereupon remitted the matter for
reconsideration. In the instant case, the project proponent
has not concealed any material information from the
MCZMA, which has granted CRZ clearance. We have
already held that it was not necessary to disclose the report
of Consulting Engineers to the MCZMA, as the same did not
consider any environmental impact while suggesting the site
for establishment of PWT for altogether different purpose
and at a distinct point of time. Therefore, the decision in
HANUMAN LAXMAN AROSKAR (SUPRA) has no
application to the obtaining factual matrix of the case.
90. We have already held that Consulting Engineers'
report was not relevant for the purposes of project in
question. We have also held that MCZMA was not required
to consider any alternative site for the project. There is no
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suppression of any information while seeking MCZMA
clearance. Therefore, non-disclosure of Consulting
Engineers' report does not affect the validity of the decision
to construct the project at radio club.
(d) Amphitheatre :
91. It is pertinent to note that while dealing with the
second report, which was prepared in the year 2014 at the
instance of M/s. Terracon Ecotech, the MCZMA, in its 93 rd
meeting held on 25th August 2014 had noted that project
would generate effluent of 118 c/mtr. per day from
restaurants and toilets and sewage from berthed vessels
therefore, the same would be required to be treated in
modular sewage treatment plant. The MCZMA, therefore,
had required exclusion of restaurants, shops, sewage
treatment plant, taxi/bus stand. However, the project does
not contain any proposal for sewage treatment plant.
Therefore, in our opinion, every endeavour should be made
to ensure that the project is only used as a facility for the
passengers and only ancillary facilities are provided to the
passengers. Therefore, we made a query to the learned
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Advocate General with regard to amphitheatre. Thereupon,
learned Advocate General stated that the place described in
the project as amphitheatre would only be used as a sitting
area for the waiting passengers and the same is not
envisaged as a place of entertainment in any manner.
(e) Restaurant/Cafe:
92. In response to a query made by this Court,
learned Advocate General has clarified that MMB is not
proposed to set-up any restaurant in the proposed jetty and
that food stalls for catering to the passengers for provision
of water and packed food products would only be set-up.
The facility is being provided to the passengers and the
same shall not be used for providing dining facility but shall
be treated as ancillary service to the passenger jetty. The
aforesaid submission is placed on record.
(f) Existing Jetty :
93. This Court has made a query to learned Advocate
general about the existing five jetties at Gateway of India
after completion of the project. Thereupon learned
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Advocate General stated that after completion of the
project, five existing jetties at Gateway of India would be
discontinued in a phase-wise manner as directed by Indian
Navy. The aforesaid submission is also placed on record.
94. For the aforementioned reasons, the issue No.(iii)
is answered in the negative by stating that construction of
project is neither in breach of Article 14 and 21 of the
Constitution of India nor principle of sustainable
development or precautionary principle.
(d) FOURTH ISSUE :
Validity of Heritage NOC:
95. In exercise of powers conferred under Section
22(m) read with Section 159 of the Maharashtra and
Regional and Town Planning Act, 1960, the State
Government, by a Notification dated 8th May 2018, has
notified Development Control and Promotion Regulations for
Greater Mumbai 2034 (hereinafter referred to as the DCPR-
2034). Part-X of the DCPR contains special provisions,
containing Regulations 52 to 56. Regulation 52 deals with
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conservation of heritage. Regulation 52.2 provides that the
Regulation shall apply to the heritage as shall be notified by
the Government of Maharashtra from time to time and to
any draft heritage list as published by Government of
Maharashtra/ Municipal Commissioner. Regulation 52.4
prescribes for preparation of a list of heritage buildings and
heritage precincts. The aforesaid Regulation provides that
the heritage list shall not be considered as part of DCPR for
the purpose of Section 37 of the MRTP Act and the list can
be supplemented, altered, deleted or modified from time to
time by the Government on receipt of proposals from the
Commissioner or by the Government, sou-moto, provided
that objections and suggestions from the public be invited
and duly considered by Commissioner and/or Government
of Maharashtra, before Notification.
96. It is pertinent to note that the Government of
Maharashtra on 19th June 2019, has issued a heritage list of
'A' Ward area, in which Gateway of India is mentioned at
Sr.No.211-D. It is not in dispute that Gateway of India is
Grade-1 heritage building. The relevant extract of
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Regulation 52.9(D) which deals with procedure in respect of
development permission for changes in respect of Grade-1
building is extracted below for the facility of reference:
(D) Procedure:
Development permission for the changes shall be given by
the Commissioner in consultation with/ taking into
consideration the recommendation of the MHCC.
97. Regulation 5 of DCPR 2034 deals with Delegation
of Powers. Regulation 5 is extracted below for the facility of
reference:
5. Delegation of Powers:
Except where the Commissioner's special
permission is expressly stipulated, the powers or
functions vested in him by these Regulations may
be delegated to any municipal official under his
control, subject to his revision if necessary and to
such conditions and limitations, if any, as he may
prescribe. In each of the said Regulations, the
word "Commissioner" shall, to the extent to which
any municipal official is so empowered, be
deemed to include such official."
In exercise of powers the MHCC, on 15 th March 2022
passed the following resolution :
"It was also recorded that although as per GR
Chief Engineer (D.P.) serves as a Member
Secretary for the MHCC, for all practical purposes
the Dy. Municipal Architect (D.P.) is delegated
as Member Secretary and conveyer of all official
communication of the MHCC."
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98. The MHCC comprises the following persons who
are experts in various fields :
1. Shri Ramnath Jha, Retired Principal Secretary
- Chairman
2. Head of the Department Structural
Engineering Dept., Sardar Vallabbhai Patel
College of Engg. Andheri, Mumbai - Member.
3. Head of the Department Structural
Engineering Dept., V.J.T.I., Mumbai - Member.
4. Principal, Sir J.J. College of Architecture,
Mumbai - Member
5. Head of the Department / Senior Professor in
Environmental Engg. VJTI, Matunga, Mumbai
- Member
6. City Historian from Mumbai University, as
suggested by the V.C. - Member
7. Director, Prince of Wales Museum, Mumbai -
Member
8. Chief Architect to Govt. Public Works
Department, Government of Maharashtra -
Member
9. An officer from MCGM not below the rank of
Chief Engineer (to be suggested by the
Municipal Commissioner) - Member Secretary.
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99. In the instant case, the MMB made an application
on 9th January 2025 to the HCC seeking permission for
construction of the project. The HCC, in its 57 th meeting
held on 16th January 2025 considered the application and
decided to grant the NOC. Thereupon, the HCC, on 7 th
February 2025 issued the NOC, subject to following
conditions:
(i) That this NOC is granted only from heritage
point of view and all other applicable permissions
from concerned departments shall be obtained
prior to starting any work at site.
(ii) That structural integrity of surrounding
heritage sites and Gateway of India monument
shall be ensured under the guidance of a
structural consultant.
(iii) That remarks from Traffic Department could
be taken to ensure the better management of
traffic.
(iv) That further discussions with all stakeholders
shall be done to finalize the detailing of the
proposal.
(v) That NOC is valid for 2 years from the date
of issuance.
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(vi) That completion certificate of the MHCC shall
be obtained on completion of the work at site.
100. From close scrutiny of the provisions of DCPR-
2034, the scheme which emerges is that Regulation 52.9
applies only when development permission is necessary for
execution of a particular project. If a development
permission is required for undertaking construction in
surrounding areas/vistas of Grade-I heritage structure, such
development permission can be granted by the Municipal
Commissioner in consultation with/taking into
considerations of MHCC. The execution of the project does
not involve procurement of development permission. The
Municipal Architect has not himself issued the NOC but has
merely communicated that NOC is issued by the MHCC. The
Dy. Municipal Commissioner has been delegated the power
of Principal Secretary and conveyor of all official
communications of MHCC. Therefore, the contention that
the communication dated 7th February 2025 issued by the
Dy. Municipal Architect conveying the no-objection of MHCC
is without jurisdiction, does not deserve acceptance.
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101. In so far as the challenge to the decision taken by
MHCC on merits is concerned, the same is taken by a
committee comprising of experts. The MHCC has taken into
account the provisions of DCPR 2034 in which a
development in surrounding areas/vistas of heritage Grade-
1 can be permitted after ensuring that such development
does not mark the grandeur or views from heritage Grade-
1. It is relevant to note that even though, MHCC was
required to take note of development of area within 100
mtrs. as vista of heritage Grade-1, the MHCC has
considered, whether construction of project mar the view
from Gateway of India even though the monument is
located beyond 100 mtrs. from the proposed jetty i.e. at the
distance of 300 mtrs. The Minutes of MHCC clearly record
that 'the proposed jetty top is kept only 1.50 M above road
level and the top of temporary structures like porta cabin
will be 4.5 M from the road level so as not to obstruct the
view of the surrounding heritage structures'.
102. Thus, it is evident that MHCC, which is a body
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comprising experts from the fields of Engineering,
Environment, Architecture, History, Public Administration
and Archaeology etc., has taken into account all relevant
factors as enumerated in Regulation 52.9(C) of DCPR 2034
while making the recommendation. The aforesaid decision
cannot be said to be affected by Wednesbury Principle of
reasonableness, ultra vires the power or authority or
actuated by mala fides. In fact, neither the
recommendation made by MHCC nor the Heritage NOC has
been challenged on the said grounds. It is trite law that this
Court, in exercise of powers of judicial review cannot sit in
an appeal over the decision taken by an expert body and
substitute its views [SEE : MIG CRICKET CLUB
(SUPRA)].
103. It is noteworthy that no provision in DCPR 2034
has been brought to our notice which mandates conduct of
public hearing before issuing Heritage NOC. For the
aforementioned reasons, the inevitable conclusion is that
the Heritage NOC issued for the project does not suffer from
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any infirmity. Accordingly, the issue No.(iv) is answered in
the affirmative by stating that Heritage NOC dated 7 th
February 2025 is legal and valid.
(E) FIFTH ISSUE:
Traffic NOC :
(v) Whether the traffic NOC dated 28th January
2025 issued by the Mumbai Traffic Police is legal
and valid?
104. The traffic NOC dated 28th January 2025 has been
issued by the ACP, Traffic and has been granted for the
purpose of construction work. The aforesaid NOC has been
challenged on the ground that the NOC has not been issued
for the project but has been issued only for the purpose of
construction of project and therefore, the same discloses
non-application of mind. It is pertinent to note that the
petitioners have failed to point out any legal provision,
which requires the MMB to obtain NOC from Traffic Police for
construction of the project. The aforesaid contention,
therefore, is wholly misconceived. The impact of the project
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on traffic has been considered by a consultant in the traffic
simulation report. The report indicates that there will be
marked improvement in traffic conditions with the
development of jetty and terminal building. The MMB has
introduced an additional lay-over/pick-up and drop lane of
the existing road to regulate the traffic in a better way. The
project contemplates a parking facility on the jetty which
will de-congest the traffic on P.J.Ramchandani marg. The
ACP (Traffic) has applied its mind to all relevant factors.
Therefore, we are not inclined to accept the submission
made on behalf of the petitioners that the traffic NOC dated
28th January 2025 requires to be quashed and set aside. In
the result, the fifth issue is also issued in the affirmative by
stating that the traffic NOC dated 28th January 2025 issued
by the Mumbai Traffic Police is legal and valid.
(XII) CONCLUSION:
105. The pursuit of development is not an affront to
the environment, when it walks the careful path of
sustainability, guarded by regulations and reason. After
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traversing the entire expanse of material on record, expert
opinions, statutory clearances and upon weighing the scales
between the progress and preservation and taking into
account the fact that the project stands fortified by
statutory clearance, we uphold the validity of the decision of
MMB and the State Government in constructing the project
i.e. "Passenger Jetty and Terminal Facilities" in sea
face/promenade abutting the Gateway of India near the
Radio Club.
106. We have already assigned reasons in the
preceding paragraphs to record a conclusion that dominant
purpose of the project is to provide facilities to the
passengers for embarkation and disembarkation. The other
facilities like amphitheatre and restaurant/cafe are only
ancillary to the project. Therefore, the same have to be
used only to make passenger jetty functional. We are also
conscious of the fact that there is no sewage treatment
plant envisaged in the project. The functioning of the
facilities should not be detrimental to the environment.
Therefore, we deem it appropriate to issue following
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directions:
(i) The project proponent i.e. MMB shall ensure
that the amphitheatre shall only be used as a
sitting area by the passengers waiting to board
the jetty and shall not be used as a place of
entertainment in any manner.
(ii) The MMB shall further ensure that the
proposed restaurant/cafe shall be used only to
provide water and packed food products to the
passengers and shall not be used for providing
dining facility.
(iii) The MMB shall also ensure that after
completion of the project at Gateway of India, the
existing jetties shall be discontinued in a phased
manner, as directed by the Indian Navy.
107. Accordingly, the writ petitions are disposed of.
108. Rule stands discharged.
(SANDEEP V. MARNE, J.) (CHIEF JUSTICE)
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