Bombay High Court
Mumbai Metropolitan Region ... vs Union Of India And 3 Ors on 26 April, 2022
Author: V. G. Bisht
Bench: Dipankar Datta, V. G. Bisht
3-WP(L)-7245-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.7245 OF 2020
MUMBAI METROPOLITAN REGIONAL)
DEVELOPMENT AUTHORITY )...PETITIONER
Versus
UNION OF INDIA AND OTHERS )...RESPONDENTS
Mr. A.A.Kumbhakoni, Advocate General a/w. Mr.
Akshay Shinde, Advocate for the Petitioner.
Mr. Rui Rodrigues a/w. Mr. N.R.Prajapati, Advocate
for Respondent No.1.
Mrs. Sharmila Deshmukh, Advocate for Respondent
No.2-MCZMA.
Mr. Abhay Patki, Additional Government Pleader,
for Respondent No.3-State.
Mr. Rohan Kelkar a/w. Ms. Sheetal Shah and Dimple
Bitra i/by. Mehta & Girdharlal, Advocate for
Respondent No.5.
CORAM: DIPANKAR DATTA, CJ &
V. G. BISHT, J.
DATE : APRIL 26, 2022 P.C.:
1. Heard fnally with the consent of parties.
2. Mr. Kumbhakoni, learned Advocate General submits that the petitioner intends to implement the work of providing a pedestrian walkway from Thane Railway Station to Vitava (Kalwa). The reason and necessity for the same, according to Page 1 of 5 AVK 3-WP(L)-7245-2020.doc the learned Advocate General, is that the distance from Vitava village to Thane railway station is about 3 kms by road and takes about half an hour by bus / autorickshaw depending on the trafc conditions, to reach the station. In order to save the time, the commuters prefer to walk along the railway track by risking their lives to cut their long and circuitous road route to reach Thane station. In past, precious human lives have been lost because of accidents, and therefore, it has become necessary to construct a skywalk.
3. This project involves 0.30308 Ha. of land out of which an area of 0.16 Ha. consists of Mangrove area, while remaining area is private area and creek. According to learned Advocate General, it has been proposed to construct total 19 piers for the project and since the site required for the project falls in CRZ-I area and crossing Thane creek, the petitioner had subnmitted application to the second respondent. According to the learned AG all the clearances have been granted. In order to substantiate this, learned Advocate General invited our attention to the letter addressed by the Member Secretary, MCZMA to Executive Engineer, MMRDA, Bandra- Kurla Complex. The Member Secretary also informed, by the said letter, that the authority has recommended the proposal from CRZ point of view to concerned authority subject to compliance of various specifc conditions mentioned in the said letter (Exhibit A).
4. The next document is the letter written by Additional Principal Chief Conservator of Forests & Nodal Ofcer, to recommend the proposal i.e. Diversion of 0.016 Ha. of forest land for construction of pedestrian walkway (skywalk) from Thane Railway Station to Vitava (Kalwa) Thane for approval.
Page 2 of 5AVK 3-WP(L)-7245-2020.doc Although the learned counsel for the respondent no.5, during the course of arguments, has raised objection that no permission has been taken from the Additional Principal Chief Conservator of Forests & Nodal Ofcer for the said purpose but by the communication dated 12th March 2018 the Additional Principal Chief Conservator of Forests & Nodal Ofcer has recommended the proposal for approval to the Secretary (Forests), Revenue and Forests Department, Mantralaya, Mumbai, and therefore the apprehension so raised by the learned counsel for the respondent no.5 is not of much consequence.
5. The learned counsel for the respondent no.5 raised two more objections that there is no plan for aforestation and no Debris Management Plans are in the scheme of things while carrying out the proposed construction of pedestrian walkway (skywalk) from Thane Railway Station to Vitava (Kalwa) Thane.
6. As far as the objection qua the plan for aforestation is concerned, we are mindful of the observations of this Court made in the judgment dated 17 th September 2018 in PIL No.87 of 2006. It was provided in paragraph 83 (viii) as under :
"(viii) In view of applicability of public trust doctrine, the State is duty bound to protect and preserve mangroves. The mangroves cannot be permitted to be destructed by the State for private, commercial or any other use unless the Court fnds it necessary for the public good or public interest."
In the said judgment, this Court also passed directions to the following efect :
"(iii) The project proponent should take appropriate clearance from the authorities such as Forest Page 3 of 5 AVK 3-WP(L)-7245-2020.doc Department and/or Hon'ble High Court as the case may be for cutting of mangroves."
7. The learned AG invited our attention to Exhibit D which is a letter written by Executive Engineer to Divisional Forest Ofcer, Mumbai Mangrove Conservation Unit, wherein the petitioner has given undertaking at Serial No.2 of the table which provides that the petitioner has paid an amount of Rs.308236.00 as Compensatory Aforestation via RTGS to Maharashtra Campa on 7th September 2018 as per demand note of Forest Department Payment UTR No.MAHBH18250335835. Needless to say, this amount of compensatory aforestation at the cost of the user agency on 1.00 Ha. is towards degraded forest land made available by the Forest Department. Thus, this concern is also taken care of by the petitioner.
8. We may incidentally note here the submissions of the learned AG that only 13 mangrove trees are required to be cut down for the purpose. Having regard to the larger public interest and the fact that not only due permission has been taken from the Forest Department but at the same time compensatory aforestation has already been raised at the cost of petitioner, in our considered view, this also satisfes the direction given by this Court in PIL No.87 of 2006.
9. As far as the Debris Management Plan is concerned, during the course of arguments, learned AG informed this Court that such plan has already been forwarded to the respondent no.5. In such view of the matter, we permit the respondent no.5 to take exception, if any, to the Debris Management Plan by submitting an appropriate representation before the respondent no.2. The exception to Page 4 of 5 AVK 3-WP(L)-7245-2020.doc be taken by the respondent no.5 shall be forwarded to the petitioner to meet the same. The respondent no.2 shall thereafter in its next meeting decide the objection raised by the respondent no.5 qua the Debris Management Plan and make appropriate directions, if any, for compliance by the petitioner. Based on the decision of the respondent no.2, the parties shall be at liberty to take further steps in accordance with law.
10. In view of above discussion, the writ petition stands disposed of in terms of aforesaid observations.
(V. G. BISHT, J.) (CHIEF JUSTICE) ARTI VILAS KHATATE Digitally signed by ARTI VILAS KHATATE Date: 2022.04.27 18:34:10 +0530 Page 5 of 5 AVK