Bombay High Court
Sameer Datta Kadam vs The Maharashtra Coastal Zone ... on 25 April, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-OS:7202-DB
17.wp.1493-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1493 OF 2021
Sameer Datta. Kadam,
An Adult, of Mumbai, Indian Inhabitant,
601, Shubhlaxmi,
7th and 12th Road Junction,
Khar (West), Mumbai - 400052.
Also residing at:
Sagareeka Farm,
Erangel Village, Madh Jetty Road,
Madh Island, Malad, Mumbai. ... Petitioner
Versus
1. The Maharashtra Coastal Zone
Management Authority,
A statutory authority constituted
under the provisions of
Section 3(1) and (3) of the
Environment (Protection) Act, 1986
through its Chairman having its office at:
Additional Chief Secretary,
Environment Department,
2nd Floor, Room No.217, Annex Building,
Mantralaya, Mumbai - 400032.
2. The Collector of Suburban
Collectors Office 10th floor,
Near Chetna College
Government Colony Bandra (East)
Mumbai-400051.
3. Municipal Corporation of Greater
Mumbai, a statutory body, constituted
under the B.M.C. Act, having office at
Municipal Head office,
Mahapalika Marg, Mumbai-400 001.
PMB 1
17.wp.1493-2021.odt
4. Municipal Commissioner,
Municipal Corporation of Greater Mumbai,
Having his office at:
Municipal Head Office,
Mahapalika Marg,
Mumbai-400 001.
5. The Assistant Commissioner,
Municipal Corporation of Greater Mumbai,
P/North Ward, Mangroves Cell, Mumbai
having office at:
Liberty Garden, Mamletdarwadi
Malad (West) Mumbai-400064.
6. The Deputy Municipal Commissioner,
Zone-IV, M.C.G.M.,
Having his office at:
S.V. Road Andheri (W) Mumbai-400058.
7. The Divisional Commissioner,
Having his office at
Konkan Division, Konkan Bhuvan,
Belapur Navi Mumbai-400614
8. Office of the Executive Engineer,
(SWM), Zone-IV,
Ashiyana Appartment,
Shantilal Modi Road,
Kandivali (West), Mumbai-400067.
9. The Assistant Conservator of Forests,
Having his office at:
Old M.H.B. Colony Borivili (W),
Lokmanya Tilak Road, M.H.B. Colony
Gorai nagar, Borivili Mumbai-400091.
10. The Commissioner of Police
Police Head Quarters,
Next to Crawford Market,
Mumbai-400001.
PMB 2
17.wp.1493-2021.odt
11. Shri. Ravindra Patil,
An Adult of Mumbai,
Indian inhabitant,
Having his place of residence at:
Chikkuwadi, Near ACP Malvani Office,
Malvani, Malad (West),
Mumbai-400095.
12. M/s. Unique Constitution,
A Company incorporated in India
under the provisions of
The Companies Act, 1956
Having its office at:
Manstree Sadan Brundavan Society,
Opp. Green Village Resorts,
Marve Road, Malwani Church,
Malad (West), Mumbai - 400064.
13. State Wetland Authority
Through the State of Maharashtra
Through the Office of Government Pleader
Having its Office at:-
New Administrative Bhavan,
15th Floor, Madame Cama Road,
Mantralaya, Mumbai 400032. .... Respondents
****
Mr. Rajesh G. Singh a/w Mr. Rishabh Singh, for the Petitioner.
Ms. Jaya Bagwe, for Respondent No.1.
Mr. Milind V. More, Additional Government Pleader, for
Respondent Nos.2, 7, 9 and 10.
Ms. Chaitalee Deochake i/b. Ms. Komal Punjabi, for
Respondent Nos.3 to 6 and 8-BMC.
Ms. Aditi S. Naikare, Mr. Rushikesh S. Kekane i/b. Mr Pradeep
J. Thorat, for Respondent No.11.
Mr. Manish Kelkar, for Respondent No.13.
****
PMB 3
17.wp.1493-2021.odt
CORAM : ALOK ARADHE, CJ &
M. S. KARNIK, J.
DATE : 25th APRIL, 2025
JUDGMENT (PER M. S. KARNIK, J.) :
1. The challenge in this Petition is to the inaction on the part of the concerned authorities in taking action against Respondent Nos.11 and 12. It is alleged that Respondent Nos.11 and 12 are destroying the wetlands by way of landfilling and dumping debris. No action is taken despite the complaints lodged against them and inspite of the order dated 10th April 2017 passed by the Lok Ayukta. The Petitioner complains that there is a failure on the part of the Corporation in recovering the dues from the Respondent Nos.11 and 12 to restore the wetland by applying the principle of "the polluter pays".
2. A few facts need to be stated. Respondent No.11 is the owner of the parcel of the land bearing CTS Nos.2152, 2166 and 2177 of Erangel Village, Madh Island, Malad, Mumbai. Respondent No. 12 is a Company incorporated under the provisions of the Companies Act, 1956 and have been PMB 4
17.wp.1493-2021.odt holding themselves out to be the developer appointed to develop the said wetlands. It is the Petitioner's case that the parcel of the land is a part of the wetland. The wetlands are an extremely fragile yet immensely important ecosystem comprising of a water body/lake and mangroves. The present Petition is filed to protect, restore and conserve the said wetlands that have been mercilessly destroyed by the landfilling activity of the owner and developer i.e. Respondent Nos.11 and 12 herein. The Petitioner says that for the last 7 or more years prior to the filing of the Petition, he has been running from pillar to post and from one authority to another to protect the said wetlands but to no avail.
3. The Respondent No.1 is The Maharashtra Coastal Zone Management Authority ('MCZMA'), a statutory authority constituted under the provisions of Section 3(1) and (3) of the Environment (Protection) Act, 1986. Respondent No.3 is the Municipal Corporation of Greater Mumbai. Respondent No.13 is the State Wetland Authority.
4. The concern of the Petitioner that the wetlands need to be protected is genuine. It is the responsibility of the PMB 5
17.wp.1493-2021.odt Respondent No.1, the Collector and MCGM as well as Respondent No.13 to ensure that the land parcels which have been identified as wetlands need to be preserved and conserved. Any attempt made by any person/developer to resort to landfilling or dumping of debris needs to be dealt with an iron hand by the authorities. It is well settled that those responsible for attempting to destroy/destruction of the wetlands is liable to pay compensation for its restoration on the principles of "the polluter pays" apart from facing the consequences of criminal action provided by law. Respondent No.11 has filed an affidavit denying that the said lands comprise part and parcel of a wetland.
5. An affidavit on behalf of Respondent No.9 duly affirmed by the Divisional Forest Officer, Mumbai Mangroves Conservation Unit has been filed on the basis of the records maintained by the office of the Mumbai Mangroves Conservation Unit. So far as Respondent No. 9 is concerned, it is stated that their concern is whether the subject land is notified under Section 4 or Section 20 of the Indian Forest Act, 1927 as Mangrove Reserved Forest. Upon scrutinizing the PMB 6
17.wp.1493-2021.odt notification issued under the Indian Forest Act, 1927, for the areas of mangroves declared as Reserved Forest, the said CTS numbers are not notified. The Mangrove Cell of the Forest Department as well as the Mumbai Mangroves Conservation Unit exercises jurisdiction in the field of protection and conservation of mangroves only over forests as defined in the Indian Forest Act and not otherwise.
6. An affidavit-in-reply is filed by Respondent No.1 - MCZMA. It is stated that as per paragraph 3 of the CRZ Notification, 1991 the coastal States and Union Territory Administrations were required to prepare the Coastal Zone Management Plan (CZMP) classifying the CRZ areas in accordance with the guidelines given in the CRZ Notification, 1991 and to obtain the approval from the Ministry of Environment and Forests (MOEF). The CRZ Notification, 1991 has been superseded by CRZ Notification, 2011 which was published on 6th January 2011. The validity of the CZMP prepared under the CRZ Notification, 1991 was extended by MOEF from time to time till the preparation and approval of the CZMP under CRZ Notification, 2011. As per paragraph 5 of PMB 7
17.wp.1493-2021.odt the said CRZ Notification, 2011 the coastal States and Union Territory were mandated to prepare the CZMP identifying and classifying the CRZ areas in accordance with the guidelines given in the CRZ Notification, 2011. The final coastal zone management plans under the CRZ Notification, 2011 for the City of Mumbai were finalised in August 2018. The MCZMA is responsible for monitoring and enforcement of the provisions of CRZ Notification, 2011. The CRZ Notification, 2011 has been superseded by CRZ Notification, 2019 published on 18 th January 2019. The validity of the CZMP prepared under the CRZ Notification, 2011 Notification was extended by the MOEF&CC from time to time till the preparation and approval of the CZMP under the CRZ Notification, 2019. As per paragraph 6 of the CRZ Notification, 2019 the coastal States and Union Territory shall prepare draft CZMP in 1:25,000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in Annexure-IV to the CRZ Notification 2019, which involve public consultation. The final coastal zone management plans under the CRZ Notification, 2019 for the City of Mumbai were approved by MOEF&CC, New Delhi in September 2021. PMB 8
17.wp.1493-2021.odt
7. The State Environment Department, Government of Maharashtra under paragraph 6(c) of the CRZ Notification, 2011 has constituted the District Coastal Zone Monitoring Committee (DCZMC) vide GR dated 23 rd March 2011. The DCZMC under the chairmanship of District Collector/ Magistrate is empowered for monitoring and actions in case of CRZ violations at the district level. As per paragraph 9(iii) of the CRZ Notification, 2019 stipulates the constitution of DCZMCs for monitoring and enforcement of the CRZ Notification at the district level. The DCZMC is empowered to identify the violations in the CRZ area and take action against the violations under the Environment (Protection) Act, 1986. The powers vested with the DCZMC are as follows :-
"i. The Committee shall identify violation in CRZ-1 areas (i.e. encroachment on Mangroves, Chowpatty, Beach area, etc.), CRZ-II areas and CRZ-III areas, within their respective jurisdiction and initiate action under Section 19 of the Environment Protection Act 1986, under the powers delegated to District Collector and Sub Divisional Officer under Environment (Protection) Act, 1986 in their respective jurisdiction.
ii. The Committee shall be responsible for removal of encroachments and unauthorized structures, coastal areas of CRZ-I, CRZ-II and CRZ-III, if necessary, the District Collector being the Chairman of the Committee is directed to use powers as vested in him to levy penalty or to recover cost from unauthorized constructions.
iii. The Committee shall take time bound steps for identification of violations of the provisions of CRZ Notification and the approved CZMP there under, for PMB 9
17.wp.1493-2021.odt initiation of action under the Environment Protection Act, 1986.
iv. The Committee will also take on priority the issues/complaints of coastal communities including fishermen and if desires so, may recommend the matter to the concerned department in the State Government for appropriate action.
v. The Committee can take up cases suo-motu or on the basis of complaints made by an individual or representative body or through newspaper report or through MCZMA or an organization or any member of the Committee. The Committee may refer cases to the concerned authorities/ departments in the district for appropriate legal action, if needed. Committee shall submit its action taken report on complaints to Department of Environment and Divisional Commissioner, Konkan on every month.
vi. District Police authorities will assist this committee to help in removing encroachment, unauthorized and illegal structures from coastal regulation zone areas."
8. In the affidavit, MCZMA says that so far as the subject lands are concerned, the said lands fall majorly in CRZ I (B) i.e. intertidal area and partly falls within 50 meter mangrove buffer zone as observed as per the CZMP in 1:25000 scale which was prepared under the CRZ Notification, 2019. So far as the subject land is concerned and with respect to the issue in the present matter, the MCZMA has not received any representation from the Respondent No.3 - Municipal Corporation of Greater Mumbai, Respondent Nos.11 and 12 for landfilling on the said site and never granted any kind of permission to the Respondent Nos.3, 11 and 12. PMB 10
17.wp.1493-2021.odt
9. The MCZMA sought action report from Respondent No.2 - The Collector Mumbai Suburban District and the Corporation with respect to the said land and on 11 th September 2024, the Respondent No.5 - The Assistant Commissioner of the Corporation has furnished the action report stating that "the opinion of Executive Engineer (Development Plan), P/R, the subject site was designated as 'Natural Area Zone' under Excluded Part (EP. PN-52). The proceeding were pending before the Hon'ble Lokayukta with respect to the said land since 2017 till date and as per the directions of the Hon'ble Lokayukta, with the approval of the Deputy Commissioner (Circle-4), the work of removal of debris was commenced from 03.03.2023 through their department and the said fact was informed to Hon'ble Lokayukta on 07.02.2023. Now, complete 1000 brass has been removed on 21.02.2023 from the subject site and the matter has been disposed off before the Hon'ble Lokayukta".
10. The MCZMA has taken a stand that it is carrying out its duties for implementation of CRZ Notification and protection of CRZ areas. From the stand of the MCGM one PMB 11
17.wp.1493-2021.odt thing is clear that the said lands fall majorly in CRZ I (B) i.e. intertidal area and partly falls within 50 meter mangrove buffer zone as observed as per CZMP in 1:25000 scale which was prepared under the CRZ Notification, 2019. It is a matter of concern that the DCZMC has not received any representation from the Respondent No.3 - MCGM or for that matter from the Respondent Nos.11 and 12 for landfilling on the said site. The record does indicate that there was landfilling at the site. The Corporation/the appropriate authorities have to not only remove the said debris and restore the wetland to its original position but recover the cost from those responsible for such landfilling.
11. We must also make a reference to the affidavit-in- reply filed on behalf of Respondent No.2 duly affirmed by Dr. Bhagwat Gavande, Sub Divisional Officer, Mumbai Western Suburban District. Paragraphs 2 to 9 of the affidavit it is stated thus :-
"2. I say that the subject land of this petition is Survey No. 86/13, 136/B and 90/18 having CTS Nos. 2152, 2166 and 2177 respectively of Village Erangal, Madh Island, Malad, which is a private property as per the 7/12 extract. The details of land holders in the 7/12 extract are mentioned as under.
PMB 12
17.wp.1493-2021.odt
Survey Occupier Name Area ( )
No.
86/13 Carol Miranda 2226 Sq. Mtr.
136/B Asmita Ravindra Patil & Ors. 9402 Sq. Mtr.
90/18 Carol Miranda 202 Sq. Mtr.
I say that, the complaint dated 21.04.2014 which is annexed as Exhibit J-1 at page No.101 to the Petition was addressed to the Ministry of Environment Maharashtra by the Petitioner.
3. I say that, the Petitioner had filed the Complaint dated 14.03.2017 before Lok Ayukta regarding filling of pond by dumping debris / mud garbage and thus destroying mangroves and the pond (wet land) on land of CTS No. 2152, 2166 and 2177 of Erangal Village. The said Complaint dated 14.03.2017 is annexed as Exhibit-O at page 117 of the Petition.
4. I say that the Respondent No. 2, Collector, MSD vide letter dated 06.04.2017 directed the Sub Divisional Officer (SDO), MSD to inquire into the said complaint dated 16/03/2017 of the Petitioner and to submit the Report.
5. I say that, Sub Divisional Officer (SDO) MSD, vide letter dated 06.04.2017 had directed the Tahsildar, Borivali to visit the site and submit Report regarding the position at site.
6. I say that, Tahsildar, Borivali visited the site and submitted his Report dated 07.04.2017 to the Sub Divisional Officer, MSD. The said report mentions that there has been land filled and the said site was within 50 meters of the Mangrove i.e. in buffer zone. On the basis of the report of Tahsildar Borivali, the concerned Circle Officer filed First Information Report (FIR) vide CR No. 219 of 2017 dated 07.04.2017 in Malvani Police Station against the Ms. Carol Miranda and Mr. Ravindra Bapurao Patil i.e. land holder of CTS No. 2166/ S. No. 136/B of Erangal Village, under Section 15 (1) and (2) of Environment Protection Act- 1986. I say that, the Learned Metropolitan Magistrate had dismissed it after classifying case as C-Category on 09.07.2018.
7. I say that after receipt of Report dated 07.04.2017 and after filing of FIR as stated above, the Sub Divisional Officer, MSD vide letter dated 16.05.2017 PMB 13
17.wp.1493-2021.odt had requested the MCGM to remove the debris from the CTS No. 2166 village of Erangal.
8. Hon'ble Lokayukt Maharashtra State vide order dated 10/01/2017 issued the following Direction "In my opinion, in view of the provisions of section 53(6) of the MRTP Act, the planning authority can remove debris, if of is not removed by Shri. Ravindra Patil within the notice period. I am also of the opinion that whatever amount is spent by the planning authority for removal of debris can be recovered by way of land revenue. A request can be made by them to the revenue authorities for the recovery in accordance with the provisions of Maharashtra Land Revenue Code"
Again, the Honble Lokayukt vide order dated 10/01/2023 issued the following Direction 'The Competent Authority shall within four weeks remove all the debris filled on the City Survey no. 2152, 2166 and 2177 of Erangal Village Pereira Wada Near L&T and Madh Jeety Bus Depot Madh Island Malad Mumbai'.
9. In Pursuant of above-mentioned direction of Hon'ble Lokyaukt the Assistant Commissioner P/North Division MCGM submitted compliance report dated 01/03/2023 to Hon'ble Lokyaukt mentioning therein that 1100 brass debris was removed from CTS No. 2152, 2166 and 2177 of Village Erangal. The said report is annexed hereto and Marked as Exhibit-"A". Also, the Assistant Commissioner P/North ward addressed a letter dated 23/05/2023 to the land owner Mr. Ravindra Patil regarding deposition of expenses Rs. 26,08,770/- incurred for debris removal. The said letter is annexed hereto and marked as Exhibit-"B"."
12. In the affidavit-in-reply filed by the Corporation it is stated that the Hon'ble Lokayukta by the order dated 10 th January 2023 had directed the Corporation to remove all the debris filled on the pond on City Survey No.2152, 2166 and 2177 of Erangel Village. The work of removal of 1100 brass debris from the said land was commenced on 3rd February PMB 14
17.wp.1493-2021.odt 2023 and it was completed on 21st February 2023. The compliance report was submitted to the Hon'ble Lokayukta. The said report was accepted by the Hon'ble Lokayukta and the complaint of the Petitioner was disposed of. Respondent No.11 was directed to pay the amount spent by the Corporation for removal of debris. As per the provisions of Section 56(6) of the Maharashtra Regional and Town Planning Act, 1966 and in view of the leave granted by the Hon'ble Lokayukta in its earlier order dated 10th April 2017, a request letter dated 19th July 2023 was sent to the revenue authority i.e. to the District Collector, Mumbai Suburban District for recovering the amount of expenses incurred for removal of debris, as arrears of land revenue. The Deputy Collector directed the Tahsildar, Borivali for further action.
13. Considering the stand of the authorities and also the stand of the Respondent No.11, it is necessary for the District Committee to initiate all necessary action in view of the report of MCGM. We expect the Corporation, the Committee under the chairmanship of the Collector, Mumbai Suburban District to file a compliance report by the next date. It is open for the PMB 15
17.wp.1493-2021.odt Respondent Nos.11 and 12 to place their stand before the Committee headed by the Collector as well as before the Corporation. The MCGM to place the status regarding the recovery of dues from the Respondent No.11 on the next date when the matter is listed for compliance.
14. We therefore direct the District Coastal Zone Monitoring Committee under the chairmanship of District Collector to immediately carry out an inspection of the subject land bearing CTS Nos.2152, 2166 and 2177 situated at Erangel Village, Madh Island, Malad, Mumbai in the light of the affidavit of Respondent No.1 - MCZMA and identify if there are any violations and initiate action under Section 19 of the Environment (Protection) Act under the powers delegated to the District Collector and Sub Divisional Officer under the Environment (Protection) Act, 1986. The District Collector to follow the procedure laid down in paragraph 7 of the affidavit of Respondent No.1 at page 273 of the paper book. The District Collector may regard this petition itself as a complaint made by the petitioner and if it is found that there is any violation, the case may be referred to the concerned PMB 16
17.wp.1493-2021.odt authorities/departments in the district for appropriate legal action, if needed. The DCZMC shall submit its action taken report to the Department of Environment and Divisional Commissioner, Konkan within a period of one month from the date of uploading of this order. Needless to mention that the district police authorities will assist the committee to help in removing an encroachment, unauthorized and illegal structures from the coastal regulation zone areas as mentioned in paragraph 8 of the affidavit of Respondent No.1. The details of the action taken and the action taken report be submitted to this Court when this Petition is listed next for compliance on 2nd July 2025.
15. The Writ Petition is disposed of in the aforesaid terms. List the matter under the caption "for compliance" on 2 nd July 2025.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge
Date: 29/04/2025 20:38:40 PMB 17