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2017 Supreme(Bom) 2622
IN THE HIGH COURT OF BOMBAY
MANJULA CHELLUR, G.S. KULKARNI, JJ.
PERVIN JEHANGIR - Appellant
Vs.
UNION OF INDIA - Respondent
Writ Petition No. 814 of 2017
Decided On : 05-05-2017
For the Petitioner:Robin Jaisinghani a/w Jacinta D'Silva, Advocate, Janak Dwarkadas, Senior Advocate, a/w Mr. Zal Andhyarujina & Mr Saeed Mulani i/b Mulani & Co.
For the Respondents:Aspi Chinoy, Senior Advocate a/w Ms. Kiran Bagalia i/b Mrs. Chitra Phadke, Advocate, Ms. Kiran Bagalia i/b Mrs. Chitra Phadke, Advocate, Ms. S.S. Deshmukh, Advocate, Dr. Milind Sathe, Senior Advocate a/w Mr. Parimal Shroff, Mr. D.V. Deokar, Mr. Sachin Pande, Mr. Pinakin Modi i/b M/s. Parimal K. Shroff & Co.
For the Union of India :A.C. Singh, ASG, a/w Y.S. Bhate, Anand Singh and Ms. Indrayani Deshmukh, Advocate.
For the State : Ms. Poornima Kantharia, GP.
For the Corporation :A.Y. Sakhare, Senior Advocate, a/w R.S. Mirupury and Sagar Patil, Advocate.
The main legal point established in the judgment is the need to balance environmental protection with development, particularly in the context of infrastructure projects like the Metro Rail project.
Headnote:
CRZ Notification - Metro Rail Project - 3(i), 4(i)(d), 8(e) - The court examined the challenge to the Metro Rail Project under the Coastal Zone Regulations (CRZ) notification. The court found that the project had obtained necessary clearances from the authorities under the CRZ notification and held that the project was permissible under the CRZ regulations. The court also rejected the contention that each Metro station should be considered as a single unit for the purpose of clearances under the CRZ notification. The court emphasized the need to balance environmental protection with development and vacated the interim order restraining the felling of trees for the project.
Fact of the Case:
The case involved a challenge to the Mumbai Metro Line 3 project on the grounds of illegal felling of trees and lack of appropriate clearances under the Coastal Zone Regulations (CRZ) notification.
Finding of the Court:
The court found that the Metro Rail project had obtained necessary clearances from the authorities under the CRZ notification and was permissible under the regulations. The court emphasized the need to balance environmental protection with development.
Issues: The issues involved the legality of felling trees for the Metro Rail project and the compliance with the Coastal Zone Regulations (CRZ) notification.
Ratio Decidendi: The court held that the project had obtained necessary clearances from the authorities under the CRZ notification and rejected the contention that each Metro station should be considered as a single unit for the purpose of clearances under the CRZ notification. The court emphasized the need to balance environmental protection with development.
Final Decision: The court vacated the interim order restraining the felling of trees for the Metro Rail project and directed the project to file an undertaking for re-plantation and transplantation of trees.
By our order dated 09/02/2017 awaiting returns to be filed, we had directed that none of the parties would proceed to cut any tree till further orders. The respondents have appeared and have filed counter-affidavits, as also additional affidavits. We have accordingly heard learned Counsel for the parties on the interim prayers as made in the Writ Petitions.
2. These two petitions raise a challenge to the Metro Rail Project namely Mumbai Metro Line 3 to operate between Colaba-Bandra-Seepz (for short 'the Metro 3 project'). The challenge is principally on two grounds, firstly, that the respondent - Mumbai Metro Rail Corporation Ltd. (for short 'the MMRCL) is undertaking illegal felling of trees and secondly on the ground that appropriate clearances are not obtained by MMRCL from the authorities under the Coastal Zone Regulations as contained in the notification dated 06/01/2011 issued by the Government of India, Ministry of Environment and Forest (for short, 'the CRZ notification') and / or the clearances which are granted by the authorities are contrary to the provisions of the CRZ notification.
3. Mr. Janak Dwarkadas, learned Senior Counsel for the petitioner in Writ Petition (L) No. 365 of 2017, in support of the interim prayers, would submit that the Metro 3 project is an activity inter alia, hit by the CRZ notification dated 06/01/2011, the object of which is to protect and conserve coastal stretches and for which it restricts setting up of industries, operations etc. Mr. Dwarkadas would submit that the proposed Metro stations fall in the defined CRZ areas and therefore, the stipulations as contained in the CRZ notification have become squarely applicable prohibiting certain activities which would include undertaking a Metro Rail project. Mr. Dwarkadas has drawn our attention to para 3 of the CRZ notification which speaks about prohibited activities within the CRZ and more particularly sub-para (x) which prohibits mining of sand and rocks and substrata material except those rare minerals not available outside the CRZ area, and exploration and exploitation of oil and natural gas. He also relies on sub-clause (xi) which prohibits construction activities except those specified in para 8 of the notification which, according to him, would become applicable for one of the Metro Station namely the Bandra Kurla Complex station (BKC).
4. Mr. Dwarkadas has laid much emphasis on paragraph 4(i) (b) of the said CRZ notification which provides, for applicability of Environmental Impact Assessment (EIA) Notification 2006 (dated 14/09/2006) for certain projects and for which clearance under the EIA notification would be necessary, subject to the recommendation by the concerned State or Union Territory Coastal Zone Management Authority ('CZMA'). He refers to sub-clause (d) of para 4(i) of the said notification which reads thus:
"(d) Construction involving more than 20,000 sq. mtrs. built up area in CRZ II shall be considered for approval in accordance with the EIA Notification 2006, and in case of projects less than 20,000 sq.mtrs built up area shall be approved by the concerned State or Union Territory Planning Authorities in accordance with this Notification after obtaining the recommendations from the concerned CZMA and prior recommendation of the concerned CZMA shall be essential for considering the grant of environmental clearance under EIA Notification 2006 or grant of approval by the relevant planning authority."
5. The contention relying on clause 4 (supra) is that for construction of certain Metro stations falling in CRZ II, there is an apprehension that the construction would exceed 20,000 sq.mtrs. built up area, for which approval of the Central Government would be mandatory as per the Environmental Impact Assessment Notification dated 14 September 2006 and any approval granted by the local planning authority or the State authority would not suffice the requirement of sub-clause (i)(d) of paragraph 4 of the CRZ notification (su
