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    Construction of wall by Municipal Corporation of Greater Mumbai in CRZ areas/areas affecting mangroves a breach of Environment Clearance terms

    mangroove area
    Date : 10/06/2016

    MCGM V/s NGT and Ors. – Writ Petition (Civil) No. 1720 of 2014

      at Bombay High Court

     

    Synopsis:

    In this Petition that has been filed by the Municipal Corporation of Greater Mumbai, the Legality and validity of directions issued by Ministry of Environment & Forests  regarding demolition of compound wall constructed in the Coastal Regulatory Zone area has been challenged. We appear for the Respondent No. 2 and 3 who are an environmental organisation Vanashakti and its Project Director respectively.

     

    Facts:

    A Solid waste management project was set up by the Municipal Corporation of Greater Mumbai. Environmental Clearance (EC) dt. 17.03.09 was granted by Ministry of Environment and Forests. A Compound wall built by the MCGM to prevent entry of unauthorised persons or stray animals. The MoEF issued a show cause notice on 25.07.13 to MCGM regarding non- compliance of terms of the EC. After the MCGM replied to the said show-cause notice, MoEF issued a final direction under the Environment Protection Act, 1986 after rejecting the submissions made by the MCGM in response to the show-cause notice. A Writ Petition was filed challenging the sair directions by the MCGM.

     

    Status:

    Petition filed by MCGM was dismissed vide judgment dated 10.06.16.

    The MCGM was directed to demolish the compound wall to the extent directed within a period of two months from the date of the order. A Review Petition moved by BMC, and shall be listed for final hearing in July, 2017.

     

    Description :

    Arguments by petitioner:

    1) Construction of wall does not require approval from state authorities, alternatively, construction was approved under the EC

    2) By the CRZ notification of 2011,construction of solid waste management project is permitted in CRZ areas except CRZ I classified areas.

    3) Being an MCGM (BMC) project for public benefit, the impugned directions be quashed and that retention/regularisation of compound wall be considered.

     

    Arguments by Respondents (for whom we appear):

    1) Construction of wall in CRZ areas/ areas affecting mangroves, a breach of EC terms, CRZ notification ad EPA. No question of regularisation arises.

     

    1) Construction of compound wall is not permissible, only live/barbed wire with vegetative cover is permissible.

     

    Precedents:

    1) Residents’ Association of Chincholi Bunder Area V/s MCGM, Supreme Court in SLP (Civil) No.18717/2011.

    Govt. of Maharashtra to hand over 50% of the Kanjur Marg site admeasuring 141.77ha  to MCGM to establish and operate the project to “strict observance of law relating to pollution.”

     

    2) Krishnadevi Malchand Kamathia and ors. V/s Bombay Environmental Action Group & Ors. (2011) 3 SCC 363.

    Mangroves fall within the ambit of CRZ I; regulations allow for certain activities in such areas that are not ecologically sensitive and important.

     

    3) Piedade Filomena Gonsalves V/s State of Goa & Ors. (2004) 3 SCC 445.

    The Court will not interfere with the directions for demolition of constructions put up within areas affected by the CRZ notification of 1991 as they have been issued in the interest of protecting environment and ecology in coastal areas.

     

    4) Maharashtra Land Development Corporation & Ors. V/s. State of Maharashtra & Anr. (2011) 15 SCC 616.

    Judicial review in these matters analysed. Whether irrational and disproportionate action taken decided by the ‘Wednesbury Principle of unreasonableness.’

     

    5) Intellectuals Forum, Tirupathi V/s. State of A.P. & Ors. (2006) 3 SCC 549.

    It is the responsibility of the state to protect the environment. Decisions in such matters can’t be based solely on investments made by any party in a project.

     

    6) Jal Mahal Resorts (P) Ltd. V/s. K.P. Sharma (2014) 8 SCC 804.

    Credence has to be accorded to decisions state authorities, if it is based on expert opinions about project reports, etc.

     

    7) Urban Improvement Trust, Bikaner V/s. Mohan Lal (2010) 1 SCC 512.

    Govt. and statutory authorities should be model or ideal litigants.

     

    8) Union Territory of Lakshadweep & Ors. V/s. Seashells Beach Resort & Ors. 2012 (6) SCC 136.

    No grant of relief in matters of violation of CRZ notification.

     

    9) M/s. Royal Parasdise Hotel (P) Ltd. V/s State Of Haryana & Ors. 2006 (7) SCC 597.

    Unauthorised constructions should not be encouraged. Hence no interference of the court in regularisation sought by the petitioners/appellants.

     

    10) Friends Colony Development Committee V/s. State Of Orissa & Ors. (2004) 8 SCC 733.

    Regularisation of unauthorized constructions is by way of exception.

     

    11) Shanti Sports Club V/s. Union of India (2009) 15 SCC 705.

    No relief to violator of town planning scheme, etc. on the ground that a substantial amount has been spent.

     

    12) Esha Ekta Apartments Cooperative Housing Society Limited And Ors. V/s. Municipal Corporation of Mumbai & Ors. (2013) 5 SCC 357.

    No authority administering municipal laws can encourage violation of sanctioned plans; courts to refrain from exercising equitable jurisdiction for regularisation.

     

    Holdings:

    “..it is expected that the MCGM sets a good example, particularly, when it comes to protection of ecologically sensitive areas within CRZ areas or areas affected by mangroves.” – M. S. SONAK, J.

    This Writ petition challenges an Order made by Ministry of Environment and Forest(MoEF) which directs demolition of a compound wall, within the CRZ area, surrounding a Solid Waste Management Project.The Court directed the demolition of compound wall as it was entirely against the letter and spirit of the CRZ Notification, 2011. Also, the Court held that there is no post facto provision under CRZ notification to regularise any compound wall.

     

    The judgment focuses on illegal constructions in CRZ, environmentally sensitive areas, even if for welfare of citizens, and disregard of the Environment Protection Act as well as provisions of CRZ.

     

    Following are the key points from the judgment:

    • Government bodies must carry on activities in accordance with regulations stated by environmental bodies and relevant clearance guidelines.

     

    • Issues related to environment and protection of ecology cannot rest on basis of implied approvals, when permit is granted only on strict compliance of law, permissions.

     

    • The Court will not interfere with directions of environmental bodies when grounds are insufficient and the directions are based on relevant considerations; and the parameters of judicial review are limited.

     

    •  Even if a project is for in public interest, different standards should not be applied if the activity is illegal and degrades the environment, and rather, the government body needs to set a good example.
    Order dt. 10.6.2016
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