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PETITIONER: P. NAVIN KUMAR AND OTHERS

       Vs.

RESPONDENT: BOMBAY MUNICIPAL CORPORATION AND OTHERS

DATE OF JUDGMENT:       26/04/1999

BENCH: D.P.Wadhwa, N.Santosh Hedge

JUDGMENT:

D.P. WADHWA, J.

     Petitioner  -  Indian Heritage Society and others  are aggrieved  by  the judgment of the Bombay High  Court  dated September 11, 1996 holding that construction of toilet block near  "Gateway  of  India"  in   Mumbai  by  the   Municipal Corporation of Greater Bombay is valid.

     The  petitioners had filed writ petition in the Bombay High  Court as Public Interest Litigation praying for a writ of  certiorari  or  any  other appropriate  writ,  order  or direction  to  quash  and  set  aside  all  permissions  and sanctions  granted  by the Municipal Corporation of  Greater Bombay  and the Municipal Commissioner for the  construction of "new public toilet block abutting the sea on the northern side  of  the  plaza  of the Gateway of India  and  for  the demolition  of  the existing old toilet block".  A  writ  of mandamus  was  also sought directing Indian  Hotels  Company Ltd.   to  take all necessary steps under the provisions  of the  Maharashtra  Regional  and Town Planning Act,  1966  to prevent  and  prohibit the Municipal Corporation of  Greater Bombay,   the  Municipal  Commissioner   and  the  State  of Maharashtra  from  proceeding with the construction  of  the said  new  toilet  block and for demolition  of  old  toilet block.   Lastly,  the petitioners prayed requiring Union  of India  in  the Ministry of Environment and Forests  to  take necessary   steps  under  the   provisions  of   Environment (Protection) Act, 1986 to prohibit the aforesaid respondents from proceeding with the construction of the said new public toilet block.  There was also a prayer for demolition of the existing  old  toilet block and of whatever construction  of the  new  public toilet block was there.  In short the  writ petition  was  directed against the construction of the  new toilet block near the Gateway of India and for demolition of the old toilet block.

     High  Court in the impugned judgment said that it  was not  a  fit case for interference under Article 226  of  the Constitution  when the Municipal Corporation was providing a facility  which  is a must for the human beings at  a  place which  is visited by thousands of persons everyday.  It said that  facility of providing toilet block was also to prevent nuisance because there could be unauthorized use of the open

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spaces  around  the  Gateway of India by persons  to  answer calls  of  nature.   It was noticed that the  resolution  to construct  toilet block was passed as far back on August  5, 1991  and  till after the toilet block was  constructed  the writ  petition was filed only March 13, 1992.  After  having said  so High Court also examined the merits of the case and dismissed  the writ petition.  Interim relief which the High Court  had  granted from using the new toilet block  by  the public was vacated.

     Before   us  the  petitioners   have  given  up  their challenge  to  the construction of the new toilet  block  or relief  for  demolition  of  the old  toilet  block.   Their grievance  is  that in the judgment High Court made  certain observations  which  will strike death-knell for other  writ petitions  pending  in the High Court seeking reliefs  under the  Coastal  Regulation  Zone   (CRZ)  Notification   dated February  19,  1991 and other provisions of the  Environment (Protection)  Act.  Once it is conceded that the petitioners are not challenging the construction of the new toilet block or  the  existence  of  the  old toilet  block  it  was  not necessary  for  us  to  deal with this  matter  as  all  the observations  made by the High Court would be with reference to the issue of the construction of new and existence of the old  toilet  blocks near the Gateway of India.  However,  we may note that the petitioners have objected to the following observations made in the impugned judgment :-

     1.   Necessarily  it would mean that once an  area  is covered under CRZ II, it would not be covered by CRZ I.

     2.  So far as the question of applicability of CRZ II, admittedly the area near Gateway of India is fully developed upto  shore  line.   It is within the  Municipal  limits  of Greater  Mumbai.   It is already completely built up and  it has been provided with drainage and approach roads and other infrastructural  facilities.   Hence,  the  entire  city  of Mumbai would fall within the ambit of CRZ II.

     3.   In view of clause (1) of CRZ II it is clear  that building  cannot  be  permitted to the seaward side  of  the existing  road  or  proposed in the  approved  Coastal  Zone Management  Plan.  Considering the above, it cannot be  said that  the construction of toilet block on the existing  road is in violation of CRZ II.  It is not beyond the road on the sea- ward side.

     According   to  petitioners  the   effect   of   these observations  would  be (1) that the entire city  of  Mumbai fall  within the ambit of CRZ II;  (2) that once an area  is covered  under CRZ II, it could not fall within the ambit of CRZ  I or CRZ III;  and (3) that for construciton to be  not in  violation  of CRZ II, it must fall beyond  the  existing road on the seaward side, as against being on the road which is the condition prescribed in the CRZ Notification, 1991.

     We  have  examined the record of the case.  We do  not think  it  is anybody’s case that whole of the Mumbai  would fall  within the ambit of CRZ II.  Observations of the  High Court that entire city of Mumbai would fall within the ambit of CRZ II do not appear to be quite warranted.

     Central  Government in the Ministry of Environment and Forests issued Notification No.  S.O.  114(E) dated February 19,  1991  under the provisions of Section 3(1) and  Section

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3(2)(v)  of the Environment (Protection) Act and Rules  made thereunder declaring coastal stretches as Coastal Regulation Zone  (CRZ)  and  regulating the activities in the  CRZ.   A corrigendum  bearing No.  S.O.  190(E) dated March 18,  1991 was   issued  in  partial   modification  of  the  aforesaid notification  dated  February  20,  1991.   There  has  been amendment  to  these regulations by Notification  No.   S.O. 494  (E)  dated  July  9,  1997.   Central  Government  also addressed  a  communication dated September 27, 1996 to  the Chief  Secretary,  Government of Maharashtra, Mumbai on  the subject   of   Coastal  Zone   Management  Plan  (CZMP)   of Maharashtra  conveying  its  approval   subject  to  certain conditions  and modifications mentioned in the said  letter. It  is  not  necessary for us to refer to  the  notification dated  July  9, 1997 and the letter of approval to the  CZMP dated September 27, 1996 as these developments have occurred after  the impugned judgment and the effect thereof would be considered in an appropriate case.

     Central Government before us has submitted that as per approval  dated September 27, 1996 construction of  building shall be permitted only to the landward side of the existing road.   Central Government does not accept the view that the entire  city of Bombay falls within the ambit of CRZ II.  It is stated that the impugned CZMP of Maharashtra CRZ areas of Mumbai  city have been categorized as CRZ I, CRZ II and  CRZ III  as  per  definition  given in  the  notification  dated February  20,  1991.  It is further stated that  "the  areas that  are  relatively  undisturbed and those  which  do  not belong  to either category I or II will qualify for CRZ- III category.   These  areas  will include Coastal Zone  in  the rural  areas  (developed  and undeveloped)  and  also  areas within municipal limits or in other legally designated urban areas  which  are  not substantially built  up.   From  this provision,  it  is clear that CRZ- III areas can exist  even within  the  municipal  limits  or  urban  areas."   Central Government has also submitted that since the revised CZMP of Maharashtra has not yet been received from the Government of Maharashtra,  the Ministry of Environment and Forest is  not aware  whether  the  area under reference (area  around  the Gateway  of  India) is categorized as CRZ-I or  CRZ-II.   In case  the area is categorized as CRZ-I, no new  construction is permissible in the CRZ area only to the extent upto which the area has been categorized as CRZ-I.  In case the area is categorized  as  CRZ-II  construction of buildings  are  not permitted  on the seaward side of the existing road (or road proposed in the approved CZMP of the area) or on the seaward side of the existing authorized structures.

     Stress  of the Municipal Corporation of Greater Bombay has  been  to  the validity of the construction of  the  new toilet  block.   That  is something which is not  now  being challenged.  As to the observations in the impugned judgment that  "the entire city of Bombay would fall within the ambit of  Coastal  Regulation Zone II", it was submitted that  the High  Court  was not concerned with the other  areas  except Fort  area  where  the  structure of  Gateway  of  India  is situated  and whole of the area is built up within roads and all  infrastructural  facilities to the structure.  In  this view  of  the  matter  it  was submitted  that  it  was  not necessary  in this case to consider whether the structure or any  other  place falls within the CRZ I or CRZ II.  It  was then  submitted that State Government had clarified that  it would  be sending the revised guidelines for CRZ and it  was most  unlikely that the structure of Gateway of India  would

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be  falling with the CRZ I and the area around it would fall in  CRZ II and that the said revised proposal was likely  to be issued by the State Government "very soon".

     Having  said so we do not think it is necessary for us to  consider  the  matter any further and  would  leave  the consideration  of  notification dated July 9, 1997  amending the  earlier  notification dated February 20, 1991 and  also the  communication dated September 27, 1996 addressed by the Central  Government  to  the  State  of  Maharashtra  in  an appropriate case.

     With  these observations these petitions are  disposed of.