2003 Supreme(Bom) 455

IN THE HIGH COURT OF BOMBAY
Thakker C.K., C.J. Dr. Chandrachud D.Y., J.
Ameeta Shah others .... Petitioners.
Versus
State of Maharashtra others.... Respondents.
PIL Writ Petition No. 2163 of 2002, decided on 1-4/10-4-2003.
Advocates appeared :
D.J. Khambata with Gautam Patel A.S. Doctor i/b. Gagrat Co., for petitioners.
R.M. Sawant, G.P., for respondent Nos. 1 3.
Ms. P.A. Purandare, for respondent No. 2.
E.P. Bharucha with M.N. Mulla i/b. Mulla Mulla, for respondent No. 4.
A.J. Rana with Satish Shah, K.J. Presswala i/b. T.C. Kaushik, for respondent 5.
H.V. Mehta, for respondent No. 6.

Headnote:Maharashtra Regional and Town Planning Act, 1966Section 31(1) - Environment (Protection) Act, 1986, Section 5(3)(d) - Coastal stretches in CRZ Notification - Declaration of - Revised draft development plan - Sanction to - Fishery Survey of India (FSI) reclaimed land near Sasoon Dock, Mumbai for construction of multi-storyed building - Resisted by residents to preserve ecology and environment - Construction within prohibition of CRZ Notification dated 19.2.1991 contended - Violates condition in permission granted by MOEF dated 23.10.1991 - Held - Construction being carried out by FSI neither at specific location nor in conformity with member of storeys envisaged in plan of FSI - Development plan of FSI not in accordance with permission granted by MOEF - F.S.I. directed to move MOEF again with complete documentary material regarding modification of proposal already approved by MOEF dated 23.10.1991 - F.S.I. also directed to produce statement of justification for sought proposed change. - The C.R.Z. Notification dated 19th February, 1991 makes that balance and dwells upon a specific part of the environment, and an important one at that, which is defined as the Coastal Regulation Zone. Within the Coastal Regulation Zone any development either by a private or a public body must be in accordance with the provisions of the notification. The burden must lie on the developer to establish before the authority before whom he seeks a sanction that the development which he proposes to undertake is in strict compliance of the parameters set out in the notification. The law must impose an absolute and unconditional obligation upon the developer to make a full, fair and candid disclosure to the sanctioning authority of all the features of the proposed development and to demonstrate that the development will not have a deleterious effect on the environment. The material disclosed to the authority (in the present case, M.O.E.F.) constitutes the basis for the grant of a sanction or permission. Consequently, a failure to disclose all relevant material and information will invalidate the grant of sanction. Furthermore, once a sanction has been granted, it is the written sanction which must operate at all times unless it is modified by a subsequent order having the force of law or by the operation of a legislative provision. The basis on which the sanction has been granted or the conditions subject to which the sanction has been granted, cannot be altered by the developer at his option. If the developer were to be permitted to alter the nature of the construction which is proposed after the sanction has been issued that would have far reaching ramifications which the law cannot possibly countenance. M.O.E.F. is vested with the duty and power of protecting the environment in its diverse aspects - aspects as unique as the manifold hues of nature itself and against all possible sources of pollution and contamination. These sources, as contemporary history would tell us, are infinite, if not insidious, and, therefore, a developer who is in breach of the basis on which an approval was granted by M.O.E.F. cannot be heard in law to say that he was after all relying upon M.O.E.F. to monitor the project. Caveat emptor is not a principle known to the law of environmental protection. F.S.I. has in Court s view, failed to discharge its bounden obligation of ensuring that its development would be strictly in accord with the permission granted by M.O.E.F. Whatever the reasons would be on the basis of which F.S.I. sought to alter the location, height, number of storeys or use of the structure beyond what was envisaged in the permission granted by M.O.E.F., it ought to have brought this to the attention of M.O.E.F. The modification ought to have been drawn to the attention of M.O.E.F. and its permission sought thereto. The appropriate order to be passed would be to direct that F.S.I. shall now once again move the M.O.E.F. with a complete set of documentary material in order to seek a modification of the proposal which was approved by the M.O.E.F. on 23rd October, 1991. F.S.I., in Court view, should be directed to provide a statement of justification of the basis upon which change in the location of the structure, of the height of the structure, the number of storeys and the use, if any, is sought.