IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2035 OF 2007 Majid Iqbal Shaikh ...Petitioner V/s. Maharashtra Coastal Zone Management Authority & Ors. ...Respondents ...... Mr.Rajiv Patil with Mr.Kartikeya Desai i/b Kartikeya & Associates for Petitioner. Ms.Ratna Bhargava for Respondent No.2. Mrs.N.V.Sanglikar for Respondents 4 to 4e. Ms.Archana Joshi for Respondent No.5. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 13, 2008. MARCH 13, 2008. MARCH 13, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. Perused the relevant pleadings and documents on record. 2. Rule. Ms.Bhargava waives notice for Respondent No.2. Mrs.Sanglikar waives notice for Respondents 4 to 4e. Ms.Joshi waives notice for Respondent No.5. : 2 : 3. Rule made returnable forthwith by consent. 4. By this Writ Petition, the Petitioner has essentially questioned the direction issued by the Respondent No.1 Authority as recorded on 1st August 2006 and 27th November 2006 respectively. It is not necessary to burden this order with all the events that have led to filing of the present Petition, except to observe that the Petitioner has been permitted to occupy structure No.4, which is described as Paradise Book Stall on license granted by Respondent No.2 Board commencing from 1st January 2006 until 31st December 2006. It is the case of the Petitioner that as per the license condition, the Petitioner was entitled for renewal of license for future period on same or similar terms and conditions. It is not necessary to address that issue in the present proceedings. Inasmuch as, the present Petition arises from the direction issued by the Respondent No.1 Authority to the Respondent No.2 calling upon the Respondent No.2 Board to forthwith stop the user of Book Stall standing on the disputed land. After receipt of : 3 : show cause notice, the Petitioner submitted reply on 28th September 2006, specifically asserting that the Book Stall is behind Otters Club building and not on the sea front. In other words, it was situated on the landward side and falling within CRZ-II area where temporary structure is permitted. The Authority has adverted to that stand, in fact, reproduced the same in the proceedings dated 27th November 2006. Nevertheless, the Authority proceeded to issue direction to Respondent No.2 to ensure forthwith stoppage of user of the said Book Stall on the reasoning that the same was permitted by the Respondent No.2 Board without taking CRZ clearance. It is argued before me that if the structure is standing on land situated in CRZ-II area, no prior CRZ clearance is necessary; as erecting temporary structure on the landward side of the existing authorised structure is permissible under the extant regulations. That is a matter which ought to be considered by the Authority in the first place. The Authority was obliged to record a clear finding about the location of the structure whether falls within CRZ-II facing the sea front or is on the landward side and behind the : 4 : authorised structure. If it is facing the sea front, obviously the Authority may insist for prior CRZ clearance. But if the structure is located behind some other authorised structure and is on the landward side, in that case, prior CRZ clearance from the Authority may not be necessary. Once again, this is an issue which will have to be addressed by the Authority in the first place. 5. Suffice it to observe that the proceedings of the Authority dated 27th November 2006 do not indicate that these crucial aspects have been addressed by the Authority before issuing directions to the Respondent No.2 Board to forthwith stop the Book Stall business conducted from the said structure. 6. Besides this shortcoming, there is another irregularity committed by the Respondent No.1 Authority before issuing the impugned direction. My attention is invited to order issued by the Ministry of Environment and Forests dated 2nd September 2005 which plainly provides that the Authority shall ensure that at least 2/3rd members : 5 : of the Authority are present during the meetings. Under the said order, in all, 12 members including one Chairman have been appointed by name and description. Whereas, the meeting in question dated 27th November 2006 on the basis of which directions have been issued by the Respondent No.1 Authority to the Respondent No.2 was attended only by five members including one Chairman, which is obviously less than 2/3rd members of the Authority to remain present during the meetings. In other words, for want of quorum in terms of order dated 2nd September 2005, the meeting could not have been proceeded further. I am informed by the Counsel for the Respondent No.2 that in the first instance when the members assembled at the appointed time, as there was no quorum, the meeting was adjourned for some time and the adjourned meeting was attended by five members including the Chairman and proceeded further. If that procedure was followed in the present case, perhaps that may be a good justification for accepting the legitimacy of the proceedings dated 27th November 2006. 7. Be that as it may, for the reason already : 6 : recorded that the Authority has not addressed to the crucial aspects of the matter, the appropriate course, in my opinion, is to set-aside the direction issued by the Authority in terms of proceedings dated November 27, 2006 as well as August 2006 in respect of the disputed structure. Instead, the action is restored to the file of the Authority to be decided afresh on its own merits in accordance with law by following necessary procedure. All questions in that behalf are left open. 8. The Authority shall decide the restored proceedings preferably within ten weeks from today. 9. Petition succeeds on the above terms. 10. Copy of this order be forwarded to the Secretary of the Authority forthwith so as to enable the Secretary to ensure that the next meeting is scheduled before the stipulated period, in which, appropriate decision can be taken by the Committee on the relevant aspects. : 7 : 11. It is made clear that the possession of the Petitioner in regard to the suit structure would be protected so long as the the Board does not take a final decision on the pending application for renewal of the license. The Respondent No.2 Board is directed to decide the pending application for renewal of the license period within two weeks from the decision to be rendered by the Authority in terms of the above order. 12. Till the said decision is taken, it is expected that the Respondent No.2 Board will not precipitate the matter having regard to the fact that the Petitioner is admittedly a physically disabled person, who has been permitted to conduct the Book Stall business from the suit structure on that consideration by the Respondent No.2 Board. 13. Petition disposed of on the above terms. A.M.KHANWILKAR, J.