Bombay High Court
Akshay Sthapatya Private Limited And ... vs Union Of India And 4 Ors on 20 October, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
907-ASWP-32454-2022.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 32454 OF 2022
Akshay Sthapatya Pvt Ltd & Anr ...Petitioners
Versus
Union of India & Ors ...Respondents
Mr Aspi Chinoy, Senior Advocate, with Karl Tamboly, i/b
Negandhi Shah & Himaytullah, for the Petitioner.
Mr Amogh Singh, with Deepak Shukla, for Respondent No.1-UOI.
Mr Abhay Patki, Addl GP, for Respondent No. 2-State.
Ms Jaya Bagwe, for Respondent No. 3-MCZMA.
Ms Akansha Kalyanpur, i/b Ravleen Sabharwal, for Respondent No.
5-SRA.
Mr Sagar Patil, for MCGM.
CORAM G.S. Patel &
Gauri Godse, JJ.
ASHWINI HULGOJI DATED: 20th October 2022 GAJAKOSH Digitally signed by PC:-
ASHWINI HULGOJI GAJAKOSH Date: 2022.10.21 11:25:53 +05301. Rule. The issue involved is extremely narrow. We exercise our discretion and make Rule returnable forthwith dispensing with service of the Rule on the contesting Respondents.Page 1 of 10
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2. The matter raises an extremely narrow issue regarding the Coastal Regulation Zone Notification ("CRZ Notification").
3. The Petitioners are a development firm and one of its directors. The 1st Petitioner is redeveloping a slum known as Mariamma Nagar near Nehru Centre, Worli. The project area is about 20,500 sq mtrs and there are 1500 slum units. These lie to the north and east of the Nehru Centre and are clearly visible spread over this large tract of land from the higher floors of the Nehru Centre. The project has been pending for about 20 years.
4. On 6th January 2011, the then Ministry of Environment and Forests of the Union of India, now the Ministry Of Environment, Forests and Climate Change ("MOEFCC") issued the first CRZ notification ("CRZ Notification 2011"). This inter alia classified coastal areas into four zones. It then made provisions for restricting activities, especially development activities in these four zones. CRZ I areas were the most restricted. Each of these zones was defined by their distance from what was called the High Tide Line or HTL. CRZ I areas were the once closest to the HTL. A different distance was specified for CRZ II areas. Other areas also had other definitions or defining characteristics. Much of the Island City of Mumbai, if not all of it, falls within CRZ II, since the city is bounded on three sides by the sea.
5. Clause (V)(1)(iii)(b) of the CRZ Notification 2011 said that in CRZ II areas, slum schemes under the Maharashtra Slum Areas (Improvement, Clearance And Redevelopment) Act, 1971 could be Page 2 of 10 20th October 2022 907-ASWP-32454-2022.DOC implemented by government agencies directly or through public- private partnerships as joint ventures with private enterprises. In such joint ventures, the government agencies were to have a minimum stake of 51%. On 31st October 2013, the Slum Rehabilitation Authority ("SRA") wrote to the Government of Maharashtra, Respondent No. 2, saying that this condition of public-private partnership with public enterprises being required to hold the 51% had halted a number of slum rehabilitation schemes in CRZ II areas. SRA sought a deletion of this condition. The Government in turn sent on this recommendation or proposal to the MOEF of the Union of India.
6. On 18th January 2019, the MOEFCC issued a revised Coastal Zone Notification ("CRZ Notification 2019"). Among other things, the CRZ Notification 2019 relaxed the distance requirements for CRZ areas in CRZ I, II, III and IV. Importantly for our purposes, the CRZ Notification 2019 did not include a restriction similar to clause (V)(1)(iii)(b) of the CRZ Notification 2011 regarding slum schemes in CRZ II areas. But Regulation 6(i) of the CRZ Notification 2019 said that until the Coastal Zone Management Plans ("CZMP") were revised and updated as required by the CRZ Notification 2019 and received MOEFCC approval, the relaxations of CRZ Notification 2019 would not apply.
7. There is no doubt that the slum land being developed by the Petitioners falls in CRZ II even if the revised/relax distant norms of the CRZ notification 2019 are applied. The Coastal Zone Management Authority of the State Government declined to entertain applications for the slum scheme under the CRZ Page 3 of 10 20th October 2022 907-ASWP-32454-2022.DOC Notification 2019 saying that the Coastal Zone Management Plans had not been revised, updated or approved by the MOEF.
8. This led to the Petitioners filing Writ Petition No. 1534 of 2019 before this Court. The challenge there was to Regulation 6(i) of the CRZ Notification of 2019. In short, the Petitioners assailed that portion of CRZ Notification 2019 that held its relaxations in abeyance pending a revision, updating, finalisation and approval of the CZMPs. The MCZMA and the MOEFCC were both parties to that Writ Petition. In their Affidavits they contended that in view of the impugned Clause 6(i) of the CRZ Notification 2019, the relaxations could not be acted upon or their benefits availed of until the CZMPs had been revised, updated and approved by the MOEFCC.
9. This Writ Petition received a final disposal order on 28th September 2019 by a Division Bench of this Court. A copy of that order is at Exhibit "F" at pages 139 to 155 of the present Petition paper book. The Division Bench held that it was undisputed that the plot being developed by the Petitioners continued to be in CRZ II even after the relaxation of the defining distance norms in the CRZ Notification 2019. That very Notification had deleted the restrictions applicable to slum redevelopment projects in CRZ II areas, at the cost of repetition, namely, that these could only be done by state agencies or by public-private partnerships in which the public enterprises held a minimum of a 51% stake. The Court held that these relaxations could not be held in abeyance pending the finalisation of the Coastal Zonal Management Plans. The reasoning seems to have been that the Coastal Zonal Management Plans would Page 4 of 10 20th October 2022 907-ASWP-32454-2022.DOC only alter the location of various sites as a result of the relaxation of the defining distance criteria for the four CRZ zones. Once it was shown that the relaxation would make no difference to the zoning of the Petitioners' land, i.e., that it would even so continue to be in CRZ II, other than a merely doctrinaire approach, there was no logical reason to hold in abeyance those relaxations. For these reasons, the Division Bench directed the Respondents to sanction the Petitioners' building plans by granting such FSI as was permissible under Municipal Planning Law and to do so within eight weeks.
10. The MCZMA filed a Special Leave Petition against this order. By its order of 29th November 2018, the Supreme Court stayed the Division Bench's order of 20th September 2019. It was not until 29th September 2021, a good two years later that the MOEFCC approved the revised/updated CZMPs for Mumbai City and the Suburban Districts. Reference may be had to Exhibit "H" at page
157. As anticipated, the Petitioners' land continued to be in CRZ II and its zoning did not change on the revision of the CZMPs. Consequently, by then, the Petitioners had applied to the MCZMA for appraisal and approval of its slum project now in accordance with the CRZ Notification 2019.
11. The MCZMA took this up at its 159th Meeting on 7th June 2022. It specifically noted (Exhibit "J" at page 160) that the Petitioners' plot was indeed a CRZ II area even under the revised and approved CZMP. It was also on the landward side of an existing road, another important consideration in the application of CRZ notification law.
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12. Strangely, the Minutes of this Meeting noted that the matter was deferred because the State Government by a letter of more than two and half years earlier, 8th February 2019, had sought a 'clarification' about the 'permissibility' of the SR schemes in CRZ II areas as per the CRZ Notification 2019. The MCZMA said that a clarification from the competent authority was awaited. It was of the view that a reminder should be sent to the competent authority. The letter of 8th February 2019 was from the then Chief Minister. What that letter said, and a copy is at Exhibit "K" at page 161, was that the CRZ Notification 2019 'was silent' about permitting SR scheme projects in CRZ II areas.
13. We pause here for a moment to consider what precisely this meant or might reasonably be held to have meant. Slum projects were never prohibited in CRZ II areas. The CRZ Notification 2011 permitted these subject to the conditions noted in Clause (V)(i)(iii)
(b), namely that they would be taken up only by public authorities or in public-private partnerships with the public element holding a 51% stake. There was no question, to our minds, of a 'silence' about the permissibility of SRA projects. In any case, it seems to us self- evident that a silence in a statute cannot be equated to a prohibition.
14. On 29th June 2022, the Petitioner filed a representation with State of Maharashtra pointing out the facts of the earlier Writ Petition and submitting that the MCZMA should confine itself to the terms of its governing notification and not some extraneous correspondence, no matter what its origin or provenance. The Petitioners sought that their application should be taken up at the earliest in terms of the CRZ Notification 2019.
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15. By now there was an empathetic change in law with the finalization for the CZMPs. This materially affected the pending Special Leave Petition before the Supreme Court. By its order of 6th September 2022, the Supreme Court set aside the Division Bench order of 20th September 2019. The Supreme Court noted that the CZMPs for Mumbai had been revised and approved by the MOEFCC. The Supreme Court itself directed that the Petitioners plan be considered by the competent authority 'as per the extant notification' in accordance with law as expeditiously as possible. A copy of the Supreme Court order is at pages 166 to 168.
16. The reason for setting aside the Bombay High Court Division Bench order was only because of the temporary or transitory abeyance directions in Clause 6(i) of the CRZ Notification 2019 and which the Division Bench had dealt with. That restriction was supposed to be in place only until the finalisation by the MOEFCC of the CRMPs. That having been done, the restriction could not apply, and hence the Supreme Court order.
17. Following this, on 12th September 2022, the Petitioners submitted a fresh representation to Respondent No. 3, the MCZMA to take up its application at its next meeting. The direction of the Supreme Court was pointed out: Exhibit "N", page 169. There is no response from the MCZMA. Hence this Petition.
18. Across the Bar, our attention is invited to a more recent communication of 14th June 2022 from the then Minister for Tourism Environment and Climate Change of the State of Page 7 of 10 20th October 2022 907-ASWP-32454-2022.DOC Maharashtra. This references the earlier letter of 8th February 2019 and it says that there is a 'long-standing issue of SRA scheme' in Mumbai. It seeks the same clarification. The letter is addressed to the Minster for Environment, Forests and Climate Change of the Union Government. To this there is a reply of 28th September 2022. That letter says that a meeting was held on 5th August 2022 between the officials of the MOEFCC and the Environment Department of the State of Maharashtra 'to understand the issues related to slum rehabilitation projects in CRZ areas and issues related to CRZ II (NDZ) of Mumbai'. The second reference it to No Development Zones, with which we are not concerned. The reply from the Hon'ble Minister of MOEFC says that "the matter is under re-examination for necessary action". The other matters referred to in the 14th June 2022 letter of the State of Maharashtra are immaterial because they relate to the appointment of the Chairperson of the State Environment Appraisal Committee. That is not a matter of concern to us.
19. We fail to understand how this question of development of SRA projects in CRZ II areas requires to be clarified or re-examined. There is nothing to clarify or re-examine. The law is abundantly clear. As we have noted above, SRA projects in CRZ II areas were never prohibited or forbidden. There was only a condition attached to those under the CRZ Notification 2011. The SRA found this condition to be harsh and unworkable and sought its deletion. The condition was deleted in the CRZ Notification 2019. In addition, there is the completely unambiguous direction of the Supreme Court in its order dated 6th September 2022.
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20. We fail to see how any of the Respondents can ever contend that there is still open a question of whether or not to include SRA projects in CRZ II areas. This was never in controversy. The only question was whether special conditions should apply to SRA projects in CRZ II areas. Those conditions have been removed. SRA Projects have not been excluded from the CRZ Notification 2019. What the government seems to now say is that the inclusion of SRA projects in CRZ II areas must be specifically done in the CRZ Notification 2019. In other words, as a matter of law, it submits that whatever is not specified is prohibited. To our mind, it is exactly the other way around: that which is not specifically prohibited is permitted. It is impossible to expect that any statute will completely and accurately envision every possibility and will then make express provision for its inclusion. There is nothing in the CRZ Notification 2019 either to suggest that SRA projects must be mentioned in the CRZ Notification 2019 expressly or else they stand excluded.
21. Clause (4) of the CRZ Notification at page 80 contains a list of prohibited activities within the CRZ. Under Clause (5) there is a zone-wise regulation of permissible activities in the four CRZ zones. Once it is found that SRA projects are not prohibited within CRZ-II, such a prohibition cannot be read into the notification. Again, at the cost of repetition, even under the CRZ Notification 2011 SRA projects were permitted in CRZ-II, but subject to a condition. That conditions stood deleted, not the inclusion of SRA Projects in CRZ- II areas.
22. In this view of the matter, we have no hesitation in making Rule absolute in terms of prayer clause (c). We do not grant the Page 9 of 10 20th October 2022 907-ASWP-32454-2022.DOC certiorari in prayer clause (a) because that seems to us assail nothing more than an adjournment). Prayer clause (c) reads thus:
"(c) That this Hon'ble Court be pleased to issue a writ of mandamus or any other writ or order or direction in the nature of mandamus under article 226 of the Constitution of India directing the Respondent No. 3 to appraise slum rehabilitation project the Petitioner No. 1 on the subject plot by applying Regulation 5.2(ii) and (iii) of the CRZ 2019 Notification and applicable laws within a time bound manner and disregarding the clarification sought by the Respondent No. 2 in its letter dated 8th February 2019.
23. Rule is made absolute in these terms.
24. In the facts and circumstances of the case, there will be no order as to costs.
(Gauri Godse, J) (G. S. Patel, J)
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