Navi Mumbai Municipal Corporation v. The Union of India

1. The petitioner- Navi Mumbai Municipal Corporation MJJ 2 prays for direction to the respondent authorities to permit the Corporation to execute the proposed project of service road, drains and footpath from T.S. Chanakya Signal to Plot No.7, Sector 58, Nerul, Navi Mumbai, in view of the public importance of the project. Reliance is placed on the order of this Court recorded at paragraph 83(viii) of the Judgment and Order dated 17th September, 2018 passed in PIL No.87 of 2006 for seeking necessary permission.

2. The land where the proposed project is to be carried out falls in CRZ-II and situated within 50 mtrs. of mangroves buffer zone. The execution of the proposed project does not involve cutting of any mangrove trees and also does not require utilization of any mangroves forest area. The same is certified by the Range Forest Officer in his report.

3. The petitioner submitted proposal on 24th February, 2022 before MCZMA for CRZ clearance in prescribed format. By communication dated 11/12th April, 2022 MCZMA decided to recommend the proposal from CRZ MJJ 3 point of view to SEIAA subject to the 4 conditions stated therein. In 244th meeting of SEIAA, the proposal of the petitioner was deliberated and SEIAA decided to grant CRZ clearance in respect of project subject to the 4 conditions.

4. Mr. Milind Sathe, learned senior counsel for the petitioners submits that the Corporation has obtained approvals of Respondent No.2- MCZMA and Respondent No.5- SEIAA for execution of the proposed project and is approaching this Court for obtaining its permission before execution of the project at the site. It is submitted that the proposed project does not involve destruction of even a single mangrove tree or utilization of any forest land. The present petition is filed as the site is within 50 meters of mangroves buffer zone. It is further submitted that the proposed service road is in fact a missing link between the two ends of already existing service roads. The proposed project is on the seaward side and adjoining the existing Palm Beach Road. A copy of road alignment on Google image, photograph of the site is annexed to the MJJ 4 petition. A copy of CZMP Map in respect of the said project is annexed to the petiton. Site inspection report dated 18th August, 2021 of the Range Forest Officer, Mumbai Mangroves Conservation Unit, Navi Mumbai is enclosed. The said site visit and the report is in respect of four proposed projects and the project involved in the present petition is at Sr. No. 1 of the said report.

5. Mr. Sathe submitted that on 6th January, 2011, Ministry of Environment and Forest (“MOEF”) published in the Gazette, Coastal Regulation Zone Notification (“CRZ Notification”) to ensure livelihood and security to fisher communities and other local communities living in the coastal areas. This was to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, thereby declared the coastal stretches of the country and the water area upto its territorial water limit, excluding the islands of Andaman MJJ 5 and Nicobar and Lakshadweep and marine area surrounding these islands upto its territorial limit, as Coastal Regulation Zone and restricted the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances in the aforesaid Coastal Regulation Zone.

6. The petitioner submits that as per the para 3(iv) of the CRZ Notification, 2011 construction of road is a permissible activity. It is submitted that as per Clause 3 of the Notification, the activities which are prohibited in CRZ areas are set out, with sub clause (v) setting out the exception to such prohibitions, which exception includes construction of road.

7. While recommending the proposal from CRZ point of view to SEIAA, MCZMA made it subject to the four conditions: “(i) The proposed construction should be carried out strictly as per the provisions of CRZ Notification, 2011 (as amended from time to time) and guidelines / clarifications given by MoEF from time to time. MJJ 6

(ii) PP to ensure that mangrove should not be cleared / cut or anyway harmed during the construction phase of the project. PP to obtain the prior High Court permission, as per Hon’ble High Court order dated 17th September 2018 in PIL 87 / 2006, since proposed pipeline is passing through 50 m mangrove buffer zone at certain stitches.

(iii) Debris generated during the construction activity should not be dumped in CRZ area. It should be ensured that debris is processed in a scientific manner at a designated site.

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

8. The SEIAA while granting permission incorporated the four conditions extracted hereinbefore.

9. By an order dated 6th October, 2005 in PIL No.87 of 2006 a complete freeze was imposed on development activities in areas affected by mangroves. The said order came to be modified by a further order dated 27th January 2010 in PIL No.87 of 2006, wherein this Court directed that nothing would prevent statutory bodies to approach competent authorities to seek permission for their respective projects as required in accordance with law for the projects in mangrove areas and that such application would be considered strictly in accordance with law MJJ 7 keeping in mind the principle of sustainable development and that grant of such permission would be subject to the approval of this Court.

10. The PIL came be to disposed of by the judgment and order dated 17th September, 2018. Paragraph 83(viii) of the said judgment is reproduced hereinbelow for ease of reference:- “In view of applicability of public trust doctrine, the State is duty bound to protect and preserve mangroves. The mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court finds it necessary for the public good or public interest;”

11. In the affidavit-in-reply it is a stand of the Respondent No.6-Bombay Environment Action Group that the proposed service road is 610 meters with width of 8.[5] meters including a drain and footpath. It is submitted that the authorities have erred in considering that the construction of a road in CRZ-I is by itself a permissible activity since both Regulations 3(iv) and 3(v) of the CRZ Notification, 2011 relied on by the Petitioner do not include within their ambit the construction of a MJJ 8 bituminous road as a permissible activity in CRZ-I. It is further stated that the interpretation of the clauses in the Notification and consequently the question of whether any construction activity is permitted in these areas i.e. CRZ-IA is currently pending in the Hon’ble Supreme Court where order dated 29th October, 2021 is under challenge. The Hon’ble Supreme Court vide its earlier order dated 9th September, 2022 was pleased to tag and place all the matters arising out of the Mangrove judgment dated 17th September, 2018 in the month of February, 2023. It is further submitted that there are terrestrial trees to be cut for the proposed project comprising of service road, drain and foothpath. However, the petitioner has failed to annex the permission from the Tree Authority under Section 8(3) of the Maharashtra (Urban areas) Protection and Preservation of Trees Act, 1975, Protection of Tree Rules 2009 and Maharashtra Urban Areas Protection and Preservation of Trees Amendment Bill 2021. It is further submitted that test of “public importance” has to be met by the petitioner and the order passed prohibits the State to give a go-by to the provisions of the CRZ Notification MJJ 9 2011 and other laws enacted to protect the environment. Learned counsel placed reliance on para 58, 83(iii)-(v) and 85(A)(IV) of this Court’s order dated 17th September,

2018. Learned counsel urged that there is no propriety of constructing the road which comprises of a length of 465 mtrs. with width of 50 mtrs. and in respect of the other portion which has length of 151 mtrs. with width of 10 mtrs. The dimensions of the road are clarified by the petitioner in the rejoinder affidavit.