1wp-10014-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No.10014/2009 Dinesh Surendra Kotecha and others.. .. Petitioners. v/s The Union of India and others .. Respondents. Dr V. V. Tulzapurkar, Sr. Advocate (with Mr Prakash Shah, Sumit Raghani, Hardik Sanghavi i/b P.D.S.Legal for the Petitioners. Shri Rajiv Chavan and Jaydeep Deo for Respondent No.1. Shri V.A. Sonpal, Advocate for Respondent Nos.2 and 3. Smt. Sharmila A. Deshmukh for Respondent No.4. Smt V.K. Khatu and Shri R.A. Malandkar for Respondent No.5. CORAM: D.K. DESHMUKH AND A.R.JOSHI,JJ DATED: 23rd FEBRUARY,2010 2wp-10014-09 P.C.:- 1. Rule, returnable forthwith. Heard finally by consent of parties. 2. By this petition, the petitioners challenge the decision of respondent No.4 taken in the 54th Meeting dated 16.7.2009. The decision which is challenged reads as under:- Item No. 5:- Proposed building on plot bearing S.No.49 (pt) and CTS No.299-C of village Valnai, Malad (West); The matter was placed before the Authority. Authority noted that the plot under reference falls in CRZ-I and CRZ-II as per the MoEF approved CZMP of Mumbai on 19.1.2000 and attached by 36.60 meters proposed road passing through CRZ-I. As per the old DP Romarks (manually prepared) given by MCGM, the road falls in CRZ-I area. Hence, the construction proposed on the landward side of this road is not permissible. But, as per the new DP remarks obtained by GIS system some changes in HTL and CRZ areas are observed. Due to these changes, the plot under reference falls only in CRZ II instead of CRZ-I and CRZ-II. Authority raised questions on these two contradictory DP remarks for the same location due to difference in methods of preparation. Authority also noted that the new GIS based DP remarks show 3wp-10014-09 the change in actual HTL position, which is differing from the approved CZMP. After the discussion, Authority decided to go by the approved CZMP and earlier DP remarks and decided not to allow the proposed work on the above mentioned plot. 3. The petitioners have submitted a proposal for construction of building on the plot of land bearing C.T.S. No.299-C of village Valnai Malad (West), Link Road to the Planning Authority i.e. Bombay Municipal Corporation  Respondent No.5. By letter dated 12-10-2007 the Authority of the Corporation pointed out the compliance that is to be made by the petitioners. One of the compliance was obtaining N.O.C from Urban Development Department (U.D.D.) from C.R.Z.point of view. Thereafter, the petitioners informed the State Government by letter dated 26.9.07 that under the Sanctioned Revised Development Plan the plot under reference is situated in Residential Zone and falls within the Coastal Regulation Zone (CRZ) under the Government of India Notification dated 19.2.1991. It was also stated that the plot is situated in CRZ-II. A proposal was submitted to the Government as per D.C. Regulation,1991 and the Government was requested to issue N.O.C. It appears that a reference was made pursuant to the letter written by the petitioners by the State Government to the Corporation. Pursuant to that 4wp-10014-09 reference, a communication dated 27-12-07 was addressed by the Corporation to the Government. In that communication it was stated that the plot is situated in the Residential Zone but it is affected by 30.60 meters wide D.P.road. The column no.5 of that communication which is relevant, reads as under. Sr.No. Description Remarks 5. Coastal Regulation Zone as per CZMP approved by MOEF dated 19/2/1991 A) Landward side of existing roads B) Seaward side of existing road Yes, landward side of existing 36.60 M. Wide existing D.P.road known as Link Road. No. 4. Perusal of the above quoted portion shows that according to the Corporation, construction was to be made only on the landward side of the existing road which is known as Link Road. In column no.9 of the communication dated 27.12.2007 it was stated that the entire construction would be on the landward side of the existing road. It appears that on the basis of the responses received from the Corporation a note was prepared by the U.D.D.,and the opinion of the Department was; (1) proposed construction on the land affected by CRZ is for residential use and within permissible 5wp-10014-09 1:00 F.S.I, (2) as per the report submitted by the Mahanagarpalika the land under reference as per Coastal Zone Management Plan (CZMP) approved dated 19.1.2000 for the Brihan Mumbai Mahanagarpalika area by the Central Government s Environment and Forest Department, part of land road is situated in CRZ-I and remaining portion is in CRZ-II category. As per the report submitted by the Corporation land under reference as per Coastal Zone Management Plan, part of land in CRZ-I and CRZ-II category. Also on site, Link Road is developed. Hence, to allow proposed construction, it is requested to the Environment Department that the proposal may be taken in the Meeting of the Authority. It is, thus, clear that as per the departmental note a road which is shown as proposed road in the approved development plan has already been constructed and the entire construction proposed is on landward side of that road. 5. It is on the basis of this note that ultimately the resolution which we have quoted above was passed and permission was denied to the petitioners. It is clear that permission has been denied to the petitioners mainly because the D.P. Road which is actually constructed goes through CRZ- I. Though it is a proposed road its construction has not been approved by the Government of India. According to respondent No.4, mere approval of the plan which shows that the road is 6wp-10014-09 proposed from CRZ-I is not enough, even construction of that road is required to be approved subsequently. This stand is taken by Respondent No.4 on the basis of notification. The relevant portion of that notification which is relied on by respondent No.4 reads as under. “CRZ-II i.Buildings shall be permitted only on the landward side of the existing road (or roads approved in the Coastal Zone Management Plan of the area) or on the landward side of existing authorized structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorized structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio: Provided that no permission for construction of buildings shall be given on landward side of any new roads (except roads approved in the Coastal Zone Management Plan) which are constructed on the seaward side of an existing road. 7wp-10014-09 Provided further that the above restrictions on construction, based on existing roads/authorized structures, roads proposed in the approved Coastal Zone Management Plans, new roads shall not apply to the housing schemes of State Urban Development Authorities implemented in phases for which construction activity was commenced prior to 19 th February, 1991 in at least one phase and all relevant approvals from State/Local Authorities were obtained prior to 19 th February,1991; in all such cases specific approval of the Ministry of Environment and Forests would be necessary on a case to case basis. (amended on 21 st May, 2992) (ia) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure  III appended to this notification and facilities for regasification of liquefied natural gas subject to the conditions as mentioned in para 2 (ii). (ib) desalination plants (ic) storage of non hazardous cargo such as edible oil, fertilizers and food grain in notified ports. (id) facilities for generating power by non conventional energy sources. 8wp-10014-09 (ie) construction of airstrips and associated facilities in the Islands of Lakshadweep and Andaman and Nicobar (amended on 19 th Oct 2002) (if) development of green field airport and related activities at Navi Mumbai. (amended on 15 th May 2009) (ii) Reconstruction of the authorized buildings to be permitted subject to the existing FSI/FAR norms and without change in the existing use. (iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style. 6. Perusal of the above quoted portion from the notification shows that the road which is proposed should be approved. The petitioners have produced Gazette notification. The relevant portion of that Gazette notification reads as under:- CRZ-II (i) Buildings shall be permitted neither on the seaward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorized structures, Buildings 9wp-10014-09 permitted on the landward side of the existing and proposed roads existing authorized structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR. (ii) Reconstruction of the authorized buildings to be permitted subject with the existing FSI/FAR norms and without change in the existing use. (iii) The design and construction of buildings shall be consistent with the surrounding landscape and local architectural style. 7. Comparison of the notification produced by the petitioners and respondent No.4 shows that in the opening part of the notification instead of road proposed road approved is written. Therefore, in view of this controversy we asked the learned Advocate appearing for the Union of India to clarify the position as to whether in the Gazette notification dated 19.2.1991 there is any amendment made for substitution of the word proposed with the word approved . The learned counsel after taking instructions, submitted that there is no such amendment made. In view of the statement made on behalf of the Union of India in relation to the correct wordings of the notification, the learned counsel appearing for respondent No.4 also conceded that the decision 10wp-10014-09 of Respondent No.4 which is impugned in the petition was on the basis of a wrong copy of the relevant notification. It is, thus, clear that if a road is proposed which runs through CRZ-I in the development plan and if that plan is sanctioned by the Government of India, then construction can be permitted on the landward side of that road and for permitting construction on landward side of the road it is not necessary that again an approval of the Union of India is to be taken. Thus, the reason that has been given by respondent No.4 for rejecting the N.O.C., to the petitioner, is, obviously, wrong. 8. The learned counsel for respondent No.4 then submitted that part of the plot in relation to which development permission is sought, is situated in CRZ-I wherein construction can not be permitted. This issue was not raised earlier. The learned counsel for the petitioners clarified that the proposed building plan does not envisage or include any proposal to raise any construction on that part of the plot which is covered by CRZ-I. The learned counsel for respondent No.4 also accepted this position. Therefore, as in the building plan there is no proposal to raise any construction on that part of the plot which is covered by CRZ-I, in our opinion, there can be no objection raised by respondent no.4 in that regard also. 11wp-10014-09 7. In the result, therefore, the petition succeeds and is allowed. Rule made absolute in terms of prayer clause (b). No order as to costs. (JUSTICE D.K. DESHMUKH,J) (JUSTICE A.R.JOSHI,J)