1 srk nm-463-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.463 OF 2010 IN PUBLIC INTEREST LITIGATION NO.87 OF 2006 The Bombay Environmental Action Group and another. ... Petitioners Versus The State of Maharashtra and others. ... Respondents And Shri Habib Umar Khan ... Applicant/intervener Mr. G.M. Savagave for the applicant. Mr. G.S. Patel i/by J/s. M.V. Jayakar & Co. for the petitioners. Mr. K.K. Singhvi, Senior Advocate with Ms. Geeta Joglekar for MCGM. Mr. N. Pandit, Assistant Government Pleader for State. Mr. Rui Rodrigues with Mr. N.R. Prajapati for Union of India. Mr. A.A. Garge for NMMC. CORAM : MOHIT S. SHAH, C.J. & S.J. KATHAWALLA, J. Friday, December 03, 2010 P .C. The applicant Shri Habib Umar Khan has taken out this notice of motion in PIL No.87 of 2006 for direction to withdraw and cancel notice dated 27th October, 2010 with respect to his building property at Plot Nos.84A, 83B. 84A, Sector No.50, Gaothan Expansion Scheme, Nerul, Navi Mumbai. The applicant has also prayed for exemption from the interim order dated 6th October, 2005 of this Court. 2. By the impugned order dated 27th July, 2010, Navi Mumbai Municipal Corporation (Town Planning Department), hereinafter referred to as 2 srk nm-463-10.sxw the Municipal Corporation, has rejected the petitioners' application for construction commencement certificate for residential purpose. The Municipal Corporation has given four grounds for rejecting the application and has further mentioned that it is open to the applicant to make a new application for obtaining construction commencement certificate in respect of the said plot of land alongwith all the necessary documents and after complying with all the requisitions mentioned in the impugned order. 3. The fourth ground in the impugned order states that as per the forest plan prepared by the MRSAC, there are bushes of mangroves in the nala which is adjacent to the proposed plot of land and that the said bushes are at a distance of 50 mtrs. from the proposed plot of land. Reference is also made to the impugned order dated 16th October, 2005 of this Court in PIL No.3245 of 2004. 4. The learned counsel for the applicant invites our attention to the order dated 14th January, 2009 in notice of motion no.416 of 2006 and states that the plot in question is adjacent to the plot which was subject matter of the order dated 14th January, 2009. Reliance is placed on the following observations in the said order: "It is the contention of the applicants that their building does not come within CRZ I or II both and does not fall within 50 meters from the mangroves. This fact has now been accepted by the Respondent-Municipal Corporation, who had issued stop work notice and the respondent-Coastal Zone Management Authority. In view of this, no orders are required to be passed in the Notice of Motion for the reason that the applicants can complete their project as it does not contravene any statutory provisions including CRZ I and II and as the building is located 50 meters away from the mangroves, the prohibitory orders passed by this Court on 6th December, 2005 do not apply to their case." 3 srk nm-463-10.sxw 5. Relying on the above observations, the learned counsel for the applicant submits that the interim order dated 16th October, 2005 cannot come in the way of the petitioners that is the commencement certificate. 6. The learned counsel for the petitioners -The Bombay Environmental Action Group also invites our attention to the subsequent order dated 27th January, 2010 of this Court and particularly, the following observations made in para 8 of the order which reads thus- "8. So far as the grievance of the applicants, as regards permission which is sought to be granted by the authorities is concerned, we make it clear that nothing prevents the statutory or local and private bodies and their contractors to approach the competent authorities to seek permission for their respective projects as required in accordance with the law for the projects which are likely to affect mangroves area in the State of Maharashtra as specified in mapping of mangroves whereby mangrove areas stand delineated and the authorities on such an application being filed, would consider it strictly in accordance with law in the light of the interim orders passed by this court from time to time and keeping in mind principle of sustainable development. If such permission is granted by the competent authority the same shall be subject to approval of this court and the parties should obtain leave of the court before implementing the project in mangroves area. This will enable the court to monitor whether the principle of sustainable development is being scrupulously followed or not for the preservation, protection of mangroves area which is ecologically fragile area." 6. Though served, none appears for the Navi Mumbai Municipal Corporation. 7. Having heard the learned counsel for the writ petitioners and the learned counsel for the applicant, we are of the view that since the Corporation 4 srk nm-463-10.sxw has given liberty to the applicant to make a fresh application after complying with all the requisitions, this petition can be disposed of directing the Navi Mumbai Municipal Corporation that upon the applicant making a fresh application, the Municipal Corporation shall consider the same in accordance with law. We make it clear that while making the fresh application, it will be open to the applicant to refer to the order dated 14th January, 2009 of this Court in notice of motion No.416 of 2006 and that it is for the Municipal Corporation to satisfy itself about the location of the applicant's land and as to whether it is within or beyond 50 meters distance from the mangroves. The Municipal Corporation shall consider both the orders dated 14th January, 2009 and 27th January, 2010 of this Court referred to hereinabove. 8. The notice of motion, accordingly, stands disposed of in terms of the above directions. 9. Any order which may be passed by the Municipal Corporation on the fresh application if adverse to the applicant, the applicant will be at liberty to take out appropriate proceedings to challenge the same. CHIEF JUSTICE S.J. KATHAWALLA, J.