Bombay High Court
Bandra Reclamation Area Volunteers … vs Union Of India on 26 August, 2025
2025:BHC-OS:14254-DB
Neeta Sawant PILs-22-2024 and 8224-2024-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO. 22 OF 2024
Zoru Darayus Bhathena .....Petitioner
: Versus :
1. Maharashtra State Road Development
Corporation
2. Maharashtra Coastal Zone Management
Authority
3. Government of Maharashtra, through
its Chief Secretary
4. Union of India through MoEF&CC
Through the Ministry of Law & Justice
Branch Secretariat.
5. Municipal Corporation of Greater
Mumbai, through Municipal Commissioner
6. Adani Properties Pvt. Ltd. ....Respondents
ALONGWITH
PUBLIC INTEREST LITIGATION (LODG.) NO. 8224 OF 2024
Bandra Reclamation Area Volunteers
Organization (BRAVO) .....Petitioner
: Versus :
1. Union of India, through the
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Neeta Sawant PILs-22-2024 and 8224-2024-FC
Secretary of Ministry of Environment
and Forest
2. State of Maharashtra, through the
Secretary of Ministry of Environment
and Forest.
3. Maharashtra State Road Development
Corporation
4. Maharashtra Coastal Zone Management
Authority, through its Principal Secretary,
Environment Department
5. Adani Properties Pvt. Ltd. ....Respondents
Mr. Tushad Kakalia i/b. Ms. Pushpa Thapa for the Petitioner in Public
Interest Litigation No. 22 of 2024.
Ms. Ronita Bhattacharya Bector i/by. Mr. Amar Garate for the Petitioner
in Public Interest Litigation (L.) No.8224-2024.
Mr. Milind Sathe, Senior Advocate with Mr. Bhushan Deshmukh with
Ms. Ravleen Sabharwal and Ms. Aarushi Yadav i/b. RS Justicia Law
Chambers for Respondent No.1-MSRDC in Public Interest Litigation
No.22/2024 and for Respondent No.3-MSRDC in Public Interest Litigation
(Lodg.) No.8224/2024.
Ms. Ravi Kadam, Senior Advocate with Mr. Zal Andhyarujina, Senior
Advocate with Mr. Karan Bhide, Ms. Rati Patni, Mr. Vikrant Dere, Ms.
Anushka Maurya and Ms. Kathleen Lobo i/b. Wadia Ghandy & Co. for
Respondent No.6 in Public Interest Litigation No. 22/2024 and for
Respondent No.5 in Public Interest Litigation (Lodg.) No. 8224/2024.
Mr. Anil Singh Additional Solicitor General with Ms. Savita Ganoo, Ms.
Carina Xavier, Mr. Raj Ambekar, Ms. Rama Gupta and Ms. Shrishti Shahi
for Respondent No.4-UOI in Public Interest Litigation No. 22-2024.
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Mr. Anil C. Singh, Additional Solicitor General with Ms. Shehnaz V.
Bharucha i/b. Mr. A.A. Ansari, for Respondent No.1 in Public Interest
Litigation (Lodg.)-8224/2024.
Ms. Jaya Bagwe for Respondent No.2-MCZMA in Public Interest
Litigation No. 22/2024 and for Respondent No.4-MCZMA in Public Interest
Litigation (Lodg.) No.8224/2024.
Mr. Akshay Shinde with Ms. Oorja Dhond i/b. Ms. Komal R. Punjabi for
Respondent No.5-M.C.G.M. in Public Interest Litigation No. 22/2024.
Mr. Milind V. More, Addl. Government Pleader for Respondent Nos.2 and
3 in Public Interest Litigation No. 22 of 2024 and for Respondent No.2 in
Public Interest Litigation (Lodg.) No. 8224/2024.
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Reserved On : 21 August 2025.
Pronounced On : 26 August 2025.
JUDGMENT :
– (Per : Sandeep V. Marne, J.)
A. THE CHALLENGE
1) These two petitions are filed pro-bono-publico for restraining
the Maharashtra State Road Development Corporation (MSRDC) from
commercially exploiting the land, which was reclaimed for construction
of Bandra Worli Sea Link in Mumbai. Petitioners contend that
permission to reclaim the land in question for construction of the Sea
Link was granted subject to the restriction of not utilizing the reclaimed
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land for residential or commercial purposes and that the said restriction
would continue to apply notwithstanding the fact that the land now falls
outside the Costal Regulation Zone (CRZ). They allege that in violation
of the said condition imposed by the Ministry of Environment and
Forests, the reclaimed land is being commercially exploited by MSRDC
by appointing Respondent No.6 as a contractor.
2) The short issue that arises for considerations in these Public
Interest Litigations is whether the restriction of non-exploitation of
reclaimed land for commercial or residential purposes imposed in the
Environmental Clearance issued as per Coastal Zone Regulation
Notification, 1991 would continue to apply even after the reclaimed
land subsequently falls outside CRZ area as per the Coastal Zone
Regulation Notification, 2019. To paraphrase, whether a reclaimed land
would remain undevelopable for perpetuity even after the same is no
longer a part of defined CRZ area?
B. FACTS 3) A brief factual narration as a prologue to the judgment
would be necessary. The first Development Plan for the City of Bombay
(later renamed as Mumbai City) came into force on 17 February 1966.
In and around 1974, Bombay Metropolitan Regional Development
Authority (BMRDA) was constituted under the provisions of Bombay
Metropolitan Region Development Act, 1977 for the overall
development of Bombay Metropolitan Region. On 7 March 1977, the
State Government appointed BMRDA as a Special Planning Authority
for the notified area of Bandra Kurla Complex. In 1984, a draft revised
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Development Plan of H-West Ward and G-North Ward of Municipal
Corporation of Greater Mumbai (MCGM) was published inviting
suggestions and objections by the Municipal Corporation. This revised
plan included ‘West Island Freeway’ going from the middle of the Bay
between Bandra’s ancient Fort and Mahim Fort, one going towards
toward Worli Sea Face in South and the other going towards North at
Bandra. On 7 May 1992, the State Government sanctioned the revised
Development Plan of G-North and H-West Wards of M.C.G.M. which
included the West Island Freeway.
4) On 19 February 1991, the Government of India, through
Ministry of Environment and Forests (MoEF) published Coastal
Regulation Zone Notification, 1991 (1991 CRZ Notification) declaring
the defined areas as CRZ and imposed various restrictions on setting up
or expanding of industries, operations or processes in the CRZ. The
restrictions inter alia included prohibition on reclamation of land
between High Tide Line (HTL) and Low Tide Line (LTL) and creation
of any obstruction in the flow of tidal waves. On 10 June 1993, the
Government of Maharashtra applied to MoEF for construction of
Bandra-Worli Sea Link as the same required reclamation of land.
During pendency of State Government’s application dated 10 June
1993, 1991 CRZ Notification was amended on 9 July 1977 which
permitted reclamation for construction of bridges and sea links. On
7 January 1999, MoEF granted clearance for construction of Bandra-
Worli Sea Link subject to various terms and conditions. One of the
conditions was that the reclaimed land should be kept to the bare
minimum (not exceeding 4.7 hectares) and the same to be monitored
closely so as not to violate the provisions of 1991 CRZ Notification. On
27 June 2000, MoEF issued amendment to the clearance modifying
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Condition No.(viii) which increased the reclaimed area to 27 hectares.
A specific condition was imposed that no portion of the reclaimed area
should be used for residential/commercial purposes.
5) In pursuance of the clearance granted by MoEF,
construction of Bandra-Worli Sea Link was undertaken by MSRDC and
the same was completed in 2009. In Rambhau Patil Versus. Maharashtra
State Road Development Authority1 challenge to the MoEF clearances as
well as to the validity of project of Bandra-Worli Sea Link was rejected.
6) By order dated 4 November 2016 passed under the
provisions of Section 40 of the Maharashtra Land Revenue Code, 1966
(MLRC), land admeasuring 2,32,465 sq.mtrs. was transferred by the
State Government to MSRDC for the purpose of its development after
securing requisite clearances from MCZMA and MoEF. In pursuance
of order dated 4 November 2016, the Collector, Mumbai Suburban
District passed order dated 30 January 2017 transferring the subject land
admeasuring 2,32,465 sq.mtrs. in the name of MSRDC with a condition
of securing prior permissions of MCZMA and MoEF in the event of
construction being caused thereon. MSRDC took possession of the
subject land on 17 February 2017.
7) The gross plot area of the subject plot is approximately
57.44 acres (2,32,465 sq. mtrs.), out of which MSRDC earmarked land
admeasuring 29.44 Acres for road, special amenities and garden. Out of
the balance 28 Acres of land, land admeasuring 24 Acres is kept
available for development and approximately 4 acres of land came to be
reserved for cemetery, cremation ground, burial ground, health posts etc
1 2002 (1) Bom.C.R. 76
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under the Development Control Promotion Regulations, 2034 (DCPR,
2034).
8) In the meantime, the 1991 CRZ Notification was
superseded by CRZ Notification issued on 6 January 2011 (2011 CRZ
Notification), under which the distance from HTL for applicability of
CRZ restrictions was changed in respect of tidal influenced water bodies
such as bays and creeks. The 2011 CRZ Notification provided for CRZ
area in resepct of land alongside bays and creeks upto the distance of
100 meters from HTL. In the year 2014, the water body at Mahim was
classified as ‘Bay’ and applicability of CRZ restrictions became
applicable only in resepct of lands situated upto the distance of 100 mtrs
from HTL. The 2011 CRZ Notification was superseded by another
Notification issued by MoEF on 18 January 2019 (2019 CRZ
Notification), which envisaged preparation of Coastal Zone
Management Plan (CZMP). Accordingly, CZMP for Mumbai City was
prepared and the same was approved by MoEF on 29 September 2021.
9) It is the case of the MSRDC that under the 2019 CRZ
Notification and as per the CZMP prepared in pursuance thereof, the
subject plot (including 24 acres available for development) is outside CRZ
area. Accordingly, MSRDC floated a tender for selection of developer
for development of MSRDC land parcel in Bandra as Construction and
Development Agency in January 2024. Upon learning about the
proposed the development, Petitioner in Public Interest Litigation
No.22 of 2024 filed a complaint with MCZMA on 21 February 2024.
He also sought information under the Right to Information Act, 2005
and received reply dated 4 March 2024 from MSRDC. Petitioners
believe that no development is permissible on the subject plot and have
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accordingly filed the present petitions to restrain MSRDC from planning
and executing any commercial development activities on the subject
plot. The prayers made in Public Interest Litigation No. 22/2024 are as
under :-
a. That this Hon’ble Court be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction in the nature of
mandamus restraining the Respondent No.1 from planning or
executing any commercial development activity at Plot bearing CTS
No 792 of Village Bandra-A, Mumbai Suburban District,b. That this Hon’ble Court be pleased to issue a writ of mandamus or
any other appropriate writ, order or direction in the nature of
mandamus directing Respondents that upon completion of their
public utility (casting yard) usage to take steps to protect and preserve
the Plot bearing CTS No 792 of Village Bandra-A, Mumbai Suburban
District as a Green Lung:
c. That pending the hearing and final disposal of this Petition, this
Hon’ble Court be pleased to direct the Respondent No.1 to refrain
from planning or carrying out any commercial development activity
at Plot bearing CTS No 792 of Village Bandra-A, Mumbai Suburban
District;
d. Ad-interim reliefs in terms of prayer clause (c) above;
e. For such other and further orders as this Hon’ble Court deems fit in
the facts and circumstances of this case.
f. For costs of this Petition.
10) The prayers in Public Interest Litigation (L) No. 8224/2024
are more or less similar and read thus:-
(a) that this Hon’ble Court be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order or
directions thereby declaring that permission and or steps which is been
taken by the Respondent in reservation of the plot of land admeasuring
24 acres of Bandra Reclamation Land is illegal null and void ultra vires,
bad in law as same is in complete violation of conditions stipulated in the
letter of approval dated 7th January, 1999 and letter dated- 26″ April
2000. EXH-“C”
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(b) that this Hon’ble Court be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order or
direction thereby directing that Respondents shall not take any further
steps in respect of the plot of land admeasuring 28 acres, out of which 24
pursuant to tender floated by Respondent No. 3 as same is incomplete
violation of conditions stipulated in the letter of approval dated 7th
January, 1999 and letter dated 26th April 2000 ie EXH. “C”
(c) that this Hon’ble Court be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order or
direction thereby directing that Respondent no. 1 to 3 shall not proceed
further with respect to the sanctioning of permission and or approval of
any nature whereby Development of the plot of land admeasuring 24
acres of Bandra Reclamation Land can proceed as same is in complete
violation of conditions stipulated in the letter of approval dated 7 th
January, 1999 and letter dated 26th April 2000.
(d) that this Hon’ble Court be pleased to issue a writ of mandamus or a
writ in the nature of mandamus or any other appropriate writ, order or
direction thereby directing that Respondents to develop a Public Park as
stipulated in the MSRDC plans submitted for Environment Clearances
for the Bandra Worli Sea Link.
(e) that pending the hearing and final disposal of the petition, this
Hon’ble Court be pleased to direct Respondents not to take any action in
exercise of any purported power purportedly vested in Respondents
pursuant to development of the plot of land admeasuring 24 acres of
Bandra Reclamation Land,
(f) that pending the hearing and final disposal of the present petition, this
Hon’ble Court be pleased to restrain Respondents from taking steps in
respect of the development of the plot of land admeasuring 24acres of
Bandra Reclamation Land in any manner whatsoever;
(g) Ad-interim and interim relief in terms of prayer clauses (e) and (f)
(h) for costs
(i) for such other and further relief’s as the nature and circumstances of
the case may require.
11) During pendency of the petitions, MoEF has granted
environmental clearance under the Environment Impact Assessment
Notification dated 14 September 2006 (EIA Notification 2006) for
undertaking development on the subject plot on 8 April 2025.
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Petitioner submits that reclamation of land for execution of project on
Bandra Worli Sea Link was undertaken and environmental clearance
therefor was secured under a specific understanding that the reclaimed
land shall not be used for any developmental activities. That specific
condition No.(viii) was included in permissions dated 7 January 1999 as
amended on 26 April 2000 prohibiting use of the reclaimed land for
residential/commercial purposes. That Condition No. (viii) is
independent of whether the subject land falls within the CRZ or not.
That the said condition provided for non-violation of the 1991 CRZ
Notification, which sufficiently addresses the restrictions on the subject
reclaimed land made available as a result of the said Notification. The
said condition was not included on account of subject land falling
within CRZ area but the same was included to prevent what MSRDC is
now seeking to do, that is to reclaim the land for said purpose of
construction of sea link and then change the user thereof to allow
private development thereon. The condition was added on the basis of
representation made by MSRDC and State Government that the
reclaimed land would be not only kept open but would be developed
into a green area. That the land can be used only for the purpose of
execution of Project of Bandra-Worli Sea Link which is clear form
Condition No.(ix) of the Environmental Clearance which prohibits any
activities on landward side except collection of toll for users of sea link.
Thus, the conditions are imposed in the clearance for the purpose of
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binding MSRDC by the representations it made while securing the
clearance.
13) Mr. Kakalia would further submit that the restriction on
development of land by MSRDC is further clear from order dated
4 November 2016 for transfer of land to MSRDC which also provides
for securing approval of MCZMA/MoEF in respect of any activities
over the subject plot. Similar condition was also imposed by the
Collector in transfer order dated 30 January 2017.
14) Mr. Kakalia would further submit that the restrictive
Condition No. (viii) in clearance dated 26 April 2000 continues to apply
to the subject land notwithstanding the changes brought by the 2019
CRZ Notification. That originally Clause No.2 (viii) of the 1991 CRZ
Notification prohibited land reclamation completely. By Notification
dated 9 July 1997 amendment was made in the 1991 CRZ Notification,
which allotted land reclamation for specified purposes including
construction of projects and sea links. That therefore the environmental
clearances dated 7 January 1999 and 26 April 2000 were granted under
the 1991 CRZ Notification as amended by the 1997 amendment. That
the 2011 CRZ Notification expressly saved all things done or omitted to
be done while superseding the 1991 CRZ Notification. Similarly, the
2019 CRZ Notification saved all things to be done or omitted to be done
while superseding the 2011 CRZ Notification. That the effect of the
saving clauses under the 2011 and 2019 CRZ Notifications is that the
reclaimed land, which has become available on account of
environmental clearance granted under the 1991 CRZ Notification
would continue to be governed by the conditions imposed while
granting the said environmental clearance. He would rely upon
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judgment of the Apex Court in Pune Municipal Corporation Versus. Sus
Road Baner Vikas Manch and others 2 in support of his contention that the
expression ‘all things done’ is comprehensive enough to take in not only
the things done but also legal consequences arising therefrom. Reliance
is also placed on the judgment of the Apex Court in Maharashtra
Chamber of Housing Industry, Mumbai and others Versus. State of
Maharashtra and another3 in support of the contention that the
conditions attached to the exemption granted vide environmental
clearances dated 7 January 1999 and 26 April 2000 would continue to
be saved by virtue of saving clauses in the 2011 and 2019 CRZ
Notifications.
15) Mr. Kakalia would further submit that even dehors the
environmental clearance issued under the 1991 CRZ Notification,
commercial exploitation of the land would not be permitted if the
project was to be undertaken today under the 2019 Notification. That
under Clause-5.1.2 of the 2019 CRZ Notification, reclamation of land is
allowed only for permitted activities which does not include
construction of residential or commercial buildings. That the status of
land as a reclaimed land, which is reclaimed for public purpose, cannot
be altered and the same would always remain as a reclaimed land
attracting prohibition under Clause-5.1.2 of the 2019 CRZ Notification.
That interpretation advanced by MSRDC and the sixth Respondent, if
accepted, would lead to an absurdity and would defeat the very purpose
of the CRZ Notification. The a project proponent would reclaim land
within the tidal influenced water body for permitted purpose and then
contend that the land so reclaimed which is beyond the distance of 50
meters from HTL falls outside CRZ and can be commercially exploited.
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The Court cannot countenance such a manifestly absurd interpretation
of CRZ Notifications as held in Commissioner of Income Tax Versus.
National Taj Traders4.
16) Mr. Kakalia would then invite our attention to the
Affidavit-in-Reply filed by MCGM to demonstrate that MCGM also
believed that the subject plot is affected by CRZ. That the Affidavit
refers to Notification dated 22 May 2023, by which draft Development
Plan of 2034 of Bandra A-block is transferred from MMRDA to
MCGM which includes a table showing that even in the year 2023 (well
after preparation of CZMP in pursuance of 2019 CRZ Notification), the
zoning of the subject land was proposed within ‘C’ Zone ignoring
environmental clearance dated 26 April 2000. That the State
Government has refused to sanction the proposed Notification. That in
any case, what is evident from MCGM’s initial Affidavit in Reply that
MCGM itself has understood applicability of Condition No. (viii) in
environmental clearance dated 26 April 2000 as a restriction for
commercial exploitation of the subject plot. That MCGM has latter
attempted to change its stand, which cannot be countenanced in law.
That even MCZMA has stated in its Reply that CRZ clearance would
be necessary from MOEF in the light of condition No. (viii) of EC dated
26 April 2000.
17) Mr. Kakalia would then rely on the six-Monthly
Monitoring Report submitted by MSRDC to MoEF on 8 July 2024
indicating thereby that the conditions mentioned in the environmental
clearance dated 26 April 2000 still continue to apply requiring MSRDC
to submit a six Monthly Monitoring Report.
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commercial exploitation of the subject land violates the public trust
doctrine. That a specific representation was made (after raising of
concerns for excessive reclamation of land) that the entire reclaimed
land would be kept open as open space/garden without any commercial
exploitation (letter of Government of Maharashtra dated 10 February
2000). That the environmental clearance dated 26 April 2000 was issued
in respect of reclaimed land of 27 hectares acting on the said
representation. After having reclaimed land by making a representation
that the same would be kept open as green belt/garden, it is
impermissible for MSRDC to take a volte-face and utilize the land for
commercial purposes. He would rely upon judgment of the Apex Court
in Karnataka Industrial Areas Development Board Versus. C. Kenchappa
and others5 in support of the contention that the public trust doctrine
enshrines upon the Government and its Instrumentalities a duty to
protect public resources such as the land and the sea for enjoyment of
general public. That the present case does complete violence to the
doctrine of public trust. That the present project has no public trust
element at all as what has been planned to be developed by Adani
Properties is high end luxury project which will be accessible only to
affluent sections of the Society. That permitting commercial exploitation
of the subject land would be gross breach of public trust doctrine. On
above broad submissions, Mr. Kakalia would pray for making the
Public Interest Litigation No.22/2024 absolute in terms of the prayers
made therein.
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Petitioners in Public Interest Litigation (L.) No.8224/2024 would adopt
the submissions of Mr. Kakalia. Additionally, she would submit that the
CRZ Notifications are not to be read in the manner as if they are
Development Control Regulations. CRZ Notifications are not enabling
framework for development but a mitigative framework for permitting
only limited activities while seeking to protect coastal areas. That the
reclaimed land can never lose its status as a reclaimed land. That
reclaimed land is not specified as a separate category in 2019 CRZ
Notification and that therefore all the restrictions occurring under 1991
and 2011 CRZ Notifications would continue to apply with full force to
land which is reclaimed under permission secured in pursuance of the
said Notifications.
20) Ms. Bector would press into service the doctrine of non-
regression while submitting that environmental law cannot be
interpreted or modified detrimental to environmental protection. That
after enactment of CRZ Notifications, reclaimed land in Mahim, as a
practice, is reserved for open spaces. She would draw parallels with
CRZ clearance granted in 2017 to Mumbai Coastal Road Project
providing that 70 acres out of 90 acres of reclaimed land would be used
only for open spaces and that the reclaimed land would not be used for
residential and commercial purposes. She would rely upon judgment of
the Apex Court in Royal Orchid Hotels Limited and another Versus. G.
Jayarama Reddy and others6 in support of the contention that land
6 (2011) 10 SCC 608
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acquired by the Government in exercise of power of eminent domain
cannot be used for another purpose and doing so would be abuse of
power of eminent domain of the Government.
21) Ms. Bector would further submit that substantial portion of
the land of subject plot was reserved for ‘plantation’ or ‘green belt’ as
approved plan for Bandra-Worli Seal Link which is yet to be developed
and maintained as green zone. That reliance by MSRDC on the report
of Institute of Remote Sensing, Anna University, Chennai is misplaced
as the same institute was never informed that the land was earlier
reclaimed. That the EIA Notification requires continuous monitoring
without specifying any time limit and any deviation amounts to false
information/concealment. She would invite our attention to the
environmental clearance granted by MoEF on 8 April 2025 which also
specifies the condition for securing CRZ clearance from Competent
Authority indicating that the land still falls under CRZ restrictions.
That the very fact that monitoring reports are required to be submitted
even today leave no manner of doubt that CRZ restriction continue to
apply in respect of the subject plot.
22) Lastly, Ms. Bector would submit that MSRDC is not a
statutory authority and has been created merely under a Government
Resolution by the State Government with the object of development of
roads in the State. It is not the objective of MSRDC to undertake
commercial development of land. That this is yet another reason why
the land reclaimed by a road building authority exclusively for the
construction of sea link project cannot be permitted to be commercially
exploited by such an agency which is not constituted with the object of
commercial exploitation of land. On above broad submissions, Ms.
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Bector would pray for making the Public Interest Litigation (L)
No.8224/2024 absolute in terms of the prayers made therein.
C.3 SUBMISSIONS ON BEHALF OF RESPONDENT NO.1-MSRDC
23) Dr. Sathe, the learned Senior Advocate appearing for
Respondent No.1-MSRDC would oppose both the petitions submitting
that the subject plot does not fall within the CRZ area under the 2019
CRZ Notification and that therefore CRZ restrictions prescribed in the
2019 CRZ Notification are inapplicable to the activities to be
undertaken on the subject plot. He would submit that CRZ
Notifications do not have any universal application and they apply only
to the defined areas. That 1991 CRZ Notification apply only to area
falling within the distance of 500 meters from HTL and did not provide
for any restrictions beyond the said area. That the 2011 Notification
brought about a change which reduced the defined area in so far as Bays
and creeks are concerned to 100 meters. That the subject plot is situated
in proximity of Mahim Bay for which the defined area was only 100
meters from HTL. In support of his contention of Mahim Sea being
declared as Bay, Dr. Sathe would rely upon order passed by this Court
in Deepak Rao Versus. The State of Maharashtra and Ors. 7 and Hoary
Realty Ltd. & Anr. Versus. Municipal Corporation of Greater Mumbai &
Ors.8. That if declaration of Mahim water body being a ‘bay’ was
available at the time of execution of Bandra-Worli Sea Link Project, the
land would have fallen outside CRZ limit as the same is even outside
100 meters distance from HTL. That 2019 CRZ Notification has
reduced the defined area affected by Bay to only 50 meters from HTL.
7 Writ Petition No. 327 of 2013 dated 25 November 2013.
8 Writ Petition (L.) No. 2383/2014 dated 7 October 2014
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He would take us through various documents to demonstrate as to how
the subject plot no longer falls in CRZ area under the 2019 CRZ
Notification.
24) Dr. Sathe would submit that the permissions dated 7
January 1999 and 26 April 2000 were secured under 1991 CRZ
Notification. That the said permissions are not issued under EIA
Notification of 1994 which is apparent from the fact that the application
for permission was made on 10 June 1993 well before issuance of the
EIA Notification dated 27 January 1994. That since defined areas are
governed by various CRZ Notifications issued from time to time, the
moment there is change in the defined areas, restrictions imposed in the
previous permission based on then existing CRZ regime would become
inapplicable if subsequent CRZ Notification throws the subject plot
outside the defined CRZ area.
25) Dr. Sathe would further submit that the interpretation of
Petitioners about saving clauses in 2011 and 2019 CRZ Notifications is
flawed. That the saving clauses only mean that ‘things done and omitted
to be done’ under the previous CRZ Notification are protected. That the
expression ‘things done’ means permissions already secured under
previous CRZ Notifications are saved and need not be obtained afresh.
That the expression ‘omitted to be done’ refers to the things which were
not required to be done in previous CRZ Notifications but are required
to be done under the new CRZ Notification are saved and a person is
not held responsible for non-doing of such omitted thing. That saving
clauses do not mean that the condition imposed under environmental
clearance would continue to operate in perpetuity. He would rely upon
the provisions of Section 6 of the General Clauses Act, 1897 in support
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of his contention that the effect of repeal merely protects the things done
under the repealed enactment and does create an actionable claim in
favour of a third party.
26) Dr. Sathe would further submit that part of the reclaimed
land has been reserved for various purposes under DCPR 2034
including reservation of cemetery. That as a result of order passed by
this Court in Public Interest Litigation No.101/2024 dated 27 March
2024, the land reserved for cemetery has been handed over to MCGM.
That thus part of the reclaimed land is permitted to be used by this
Court for setting up a cemetery belying the contentions of the
Petitioners that the same cannot be used for any developmental
activities on account of restrictions imposed under the environmental
clearance issued on 26 April 2000. That Petitioners have selectively
challenged execution of the subject project without raising any objection
for use of part of the reclaimed land as cemetery. So far as the Six
Monthly Compliance Reports submitted by MSRDC is concerned, he
would submit that Reports are submitted in a prescribed format and
cannot be read to mean as if the act of MSRDC in submitting six
monthly reports amounts to admission of application of Condition No.
(viii) of environmental clearance dated 26 April 2000. Dr. Sathe would
pray for dismissal of the petitions.
C.4 SUBMISSIONS ON BEHALF OF RESPONDENT-MOEF 27) Mr. Singh, the learned Additional Solicitor General
appearing for the Respondent-Union of India would also oppose the
petitions submitting that once the subject plot is found to be falling
outside the CRZ area, the same becomes developable and the previous
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conditions issued by MoEF on 7 January 1999 and 26 April 2000 would
no longer apply. That Condition No.(viii) in environmental clearance
dated 26 April 2000 was imposed because the land was falling under
CRZ area as per 1991 CRZ Notification as amended in 1997. That if the
land was not falling in CRZ at the relevant time, the condition could not
have been imposed. That therefore the moment the land goes outside
the CRZ area, condition would also automatically become inapplicable.
That MoEF has granted environmental clearance for the project after
considering the fact that the Plot is not affected by CRZ Notification.
He would pray for dismissal of the petitions.
C.5 SUBMISSIONS ON BEHALF OF RESPONDENT NO.6 28) Mr. Kadam, the learned Senior Advocate appearing for
Respondent No.6 would oppose the petition submitting that the subject
plot no longer forms part of CRZ area. He would take us through
several documents to demonstrate that the subject plot is no longer a
part of CRZ restrictive area. That Petitioners also admit that the subject
plot is outside the distance of 50 meters from HTL of Mahim Bay. That
the moment, the plot is found to be outside CRZ area, there is no
question of applying any CRZ related restrictions. That the land can no
longer be described as a reclaimed land and the same cannot be treated
as reclaimed land in perpetuity. That a reclaimed land ultimately
assumes the character of ‘land’ and development thereon can be carried
out subject to CRZ restrictions. That 2019 CRZ Notification does not
impose any restriction on use of the subject plot. That therefore no CRZ
related restrictions can apply for carrying out development on the
subject plot. That considering the size of the plot taken up for
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development, permission from MoEF has been secured on 8 April 2025.
Mr. Kadam would accordingly pray for dismissal of the petitions.
29) Ms. Bagwe, the learned counsel appearing for MCZMA
would adopt the submissions of the Additional Solicitor General.
30) Mr. Shinde, the learned counsel appearing for MCGM
would draw our attention to the Affidavits-in-Reply filed on behalf of
the Municipal Corporation. He would submit that the subject plot now
falls outside CRZ area and that therefore no CRZ related restrictions
can be applied for carrying out any development on the subject plot.
D. REASONS AND ANALYSIS 31) The core issue that requires determination in present PIL
petitions is whether the restrictive conditions imposed while granting
CRZ clearance for undertaking reclamation of land would continue to
apply even when the reclaimed land falls under CRZ area under the
current coastal zone regulatory regime. In other words, whether a
project proponent who has secured permission to reclaim land under
1991 CRZ Notification by undertaking not to use the reclaimed land for
residential or commercial development, can be permitted to undertake
such development merely because the 2019 CRZ Notification puts such
reclaimed land outside the CRZ area ?
32) The issue arises in light of peculiar facts of the case where
Bandra Worli Sea Link project has been executed during 1991 CRZ
regime which included the location where reclamation is done in CRZ
area (500 meters from HTL). Since land reclamation for construction of
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a sea link was permissible activity under the amended 1991 CRZ
Notification, Environment Clearance was granted by MoEF for
undertaking land reclamation by putting a restriction that the reclaimed
land shall not be used for residential or commercial development.
However subsequently 2011 CRZ Notification reduced the CRZ defined
area to 100 meters from tidal influenced water bodies like bay and
creeks. The concerned water body at Mahim has been declared as a
‘bay’. By further CRZ Notification of 2019, the CRZ area is now
reduced to only 50 meters from HTL of Mahim Bay. On account of
these changes, the reclaimed land now falls outside CRZ area and on
that count, MSRDC has taken up development for commercial and
residential use on the subject plot contending that CRZ restrictions no
longer apply to such development. Petitioners, on the other hand,
contend that MSRDC cannot secure permission to reclaim the land on a
representation that reclaimed land would not be used for residential or
commercial development and then turn around and undertake such
development contrary to the conditions subject to which permission to
reclaim the land was granted. Petitioners contend that the conditions
imposed in clearances issued under previous CRZ Notification are
saved and continue to operate even if any subsequent change is made in
CRZ area by successive Notifications. This is the broad controversy
involved in the present petitions.
D.1 CRZ NOTIFICATIONS
33) The Environment (Protection) Act, 1986 is enacted to
provide for protection and improvement of environment and for matters
connected therewith. Section 3 of the Act empowers the Central
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Government to take measures to protect and improve the environment.
Sub-section (2) of Section 3 contains inclusive list of matters in respect
of which the Central Government can take measures. Section 3(2)(v)
provides for restriction of areas in which any industries, operations or
processes or classes of industries, operations and processes cannot be
carried out or can be carried out subject to certain safeguards. Sections 6
and 25 of the Act empowers the Central Government to make Rules,
and in exercise of that power, the Environment (Protection) Rules, 1986
have been notified. Rule-5 regulates the procedure for prohibiting and
restricting location of industries and carrying on processes and
operations in different areas. Sub-Rule (3) of Rule 5 empowers the
Central Government to issue notifications imposing prohibition or
restriction on location of industries and carrying on of processes or
operations in an area.
D.1.1 1991 CRZ NOTIFICATION 34) In exercise of powers conferred by clause (d) of sub-rule (3)
of Rule 5 of the Environment (Protection) Rules, 1986, the MoEF
issued Notification dated 19 February 1991 (1991 CRZ Notification)
declaring coastal stretches of seas, bays, estuaries, creeks, rivers and
back waters which are influenced by tidal action (in the landward side)
upto 500 meters from HTL and the land between LTL and HTL as
“Coastal Regulation Zone”. The Notification imposed the enumerated
restrictions on setting up and expansion of industries, operations or
processes, etc. in the defined Coastal Regulation Zone. The 1991 CRZ
Notification prohibited inter alia the activity of land reclamation. The
relevant portion of 1991 CRZ Notification reads thus :-
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Neeta Sawant PILs-22-2024 and 8224-2024-FCNow, therefore, in exercise of the powers conferred by Clause (d) of
sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986,
and all other powers vesting in its behalf, the Central Government
hereby declares the coastal stretches of seas, bays, estuaries, creeks,
rivers and backwaters which are influenced by tidal action (in the
landward side) upto 500 metres from the High Tide Line (HTL) and
the land between the Low Tide Line (LTL) and the HTL as Coastal
Regulation Zone,; and imposes with effect from the date of this Noti-
fication, the following restrictions on the setting up and expansion of
industries, operations or processes etc. in the said Coastal Regulation
Zone (CRZ). For purposes of this Notification, the High [Tide Line
(HTL) will be denned as the line upto which the highest high tide
reaches at spring tides.
Note.–The distance from the High Tide Line (HTL) to which the
proposed regulations will apply in the case of rivers, creeks and back-
water; may be modified on a case by case basis for reasons to be
recorded while preparing the Coastal Zone Management Plans (re-
ferred to below) ; however, this distance shall not be less than 100 me-
tre or the width of the creek, river or backwater whichever is less.
The following activities are declared as prohibited within the Coastal
Regulation Zone, namely :
(i)
(ii)
(viii) land reclamation, bunding or disturbing the natural course of sea
water with similar obstructions, except those required for control of
coastal erosion and maintenance or cleasing of waterways, channels
and ports and for prevention of sandbars and also except for tidal
regulators, storm water drains and structures for prevention of salinity
ingress and sweet water recharge;
35) The 1991 CRZ Notification was amended by Notification
dated 9 July 1997, under which sub-paragraph (viii) was substituted as
under :-
(viii) land reclamation, bunding or disturbing the natural course of sea
water except those required for construction of ports, harbours, jetties,
wharves, quays, slipways, bridges and sea-links and for other facilities
that are essential for activities permissible under the notification or for
control of coastal erosion and maintenance or clearing of water ways,
channels and ports or for prevention of sandbars or for tidal regulators,
storm water drains or for structures for prevention of salinity ingress and
sweet water recharge”
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36) Thus, as against complete prohibition on land reclamation
under the 1991 CRZ Notification, the amended paragraph (viii) vide
Notification dated 9 July 1997 permitted land reclamation for
construction of ports, habours, jetties, wharves, ways, slip-ways, bridges
and sea link and other facilities that are essential for activities that are
permissible under the Notification.
D.1.2 2011 CRZ NOTIFICATION 37) In supersession of 1991 CRZ Notification, MoEF issued
2011 CRZ Notification. While various other changes were bought into
effect by 2011 CRZ Notification, the major change included the
declaration of areas as CRZs. While land area from HTL of 500 meters
on landward side along sea front continued to be declared as CRZ,
major change was bought about in respect of land area alongside tidal
influenced water bodies. The land area between HTL upto distance of
100 meters on landward side along tidal influenced water bodies was
declared as CRZ by 2011 CRZ Notification. The relevant part of 2011
CRZ Notification reads thus :-
Now, therefore, in exercise of the powers conferred by sub-section (1)
and clause (v) of sub-section (2) of section 3 of the Environment
(Protection) Act, 1986 (29 of 1986), the Central Government, with a
view to ensure livelihood security to the fisher communities and other
local communities, living in the coastal areas, to conserve and protect
coastal stretches, its unique environment and its marine area and to
promote development through sustainable manner based on scientific
principles taking into account the dangers of natural hazards in the
coastal areas, sea level rise due to global warming, does hereby,
declare the coastal stretches of the country and the water area upto its
territorial water limit, excluding the islands of Andaman and Nicobar
and Lakshadweep and the marine areas surrounding these islands
upto its territorial limit, as Coastal Regulation Zone (hereinafterPage No.25 of 68
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Neeta Sawant PILs-22-2024 and 8224-2024-FCreferred to as the CRZ) and restricts the setting up and expansion of
any industry, operations or processes and manufacture or handling or
storage or disposal of hazardous substances as specified in the
Hazardous Substances (Handling, Management and Transboundary
Movement) Rules, 2009 in the aforesaid CRZ.; andIn exercise of powers also conferred by clause (d) and sub rule (3) of
rule 5 of Environment (Protection) Act, 1986 and in supersession of
the notification of the Government of India in the Ministry of
Environment and Forests, number S.O.114(E), dated the 19 th
February, 1991 except as respects things done or omitted to be done
before such supercession, the Central Government hereby declares the
following areas as CRZ and imposes with effect from the date of the
notification the following restrictions on the setting up and expansion
of industries, operations or processes and the like in the CRZ,-
(i) the land area from High Tide Line (hereinafter referred to as the
HTL) to 500mts on the landward side along the sea front.
(ii) CRZ shall apply to the land area between HTL to 100 mts or
width of the creek whichever is less on the landward side along the
tidal influenced water bodies that are connected to the sea and the
distance upto which development along such tidal influenced water
bodies is to be regulated shall be governed by the distance upto which
the tidal effects are experienced which shall be determined based on
salinity concentration of 5 parts per thousand (ppt) measured during
the driest period of the year and distance upto which tidal effects are
experienced shall be clearly identified and demarcated accordingly in
the Coastal Zone Management Plans (hereinafter referred to as the
CZMPs).
Explanation.- For the purposes of this sub-paragraph the expression
tidal influenced water bodies means the water bodies influenced by
tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters,
lagoons, ponds connected to the sea or creeks and the like.
38) Under para-3(ix) of the 2011 CRZ Notification, reclamation
for commercial purposes was prescribed as a prohibited activity within
the CRZ. However, under para-3(iv)(a), land reclamation, bunding or
disturbing the natural course of sea water was permitted for construction
of bridges and sea link.
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Notification issued on 18 January 2019. The major change brought
about by 2019 CRZ Notification for the purpose of deciding the issue at
hand, is reduction of the distance from HTL for classification of area as
CRZ from tidal influenced water bodies. Thus, under the CRZ
Notification 2019, the land area between HTL upto the distance of 50
meters on landward side along tidal influenced water bodies falls in
CRZ. The relevant portion of 2019 CRZ Notification is extracted below
for facility of reference :-
And Whereas, the Ministry of Environment, Forest and Climate
Change has received representations from various coastal States and
Union territories, besides other stakeholders, regarding certain
provisions in the Coastal Regulation Zone Notification, 2011 related
to management and conservation of marine and coastal ecosystems,
development in coastal areas, eco-tourism, livelihood options and
sustainable development of coastal communities etc.;
And Whereas, various State Governments and Union territory
administrations and stakeholders have requested the Ministry of
Environment, Forest and Climate Change to address the concerns
related to coastal environment and sustainable development with
respect to the Coastal Regulation Zone Notification, 2011;
Now, therefore in exercise of the powers conferred by sub-section (1)
and clause (v) of subsection (2) of section 3 of the Environment
(Protection) Act, 1986 (29 of 1986) and in supersession of the Coastal
Regulation Zone Notification 2011, number S.O. 19(E), dated the 6 th
January, 2011, except as respects things done or omitted to be done
before such supersession, the Central Government, with a view to
conserve and protect the unique environment of coastal stretches and
marine areas, besides livelihood security to the fisher communities
and other local communities in the coastal areas and to promote
sustainable development based on scientific principles taking into
account the dangers of natural hazards, sea level rise due to global
warming, do hereby, declares the coastal stretches of the country and
the water area up to its territorial water limit, excluding the islands of
Andaman and Nicobar and Lakshadweep and the marine areas
surrounding these islands, as Coastal Regulation Zone as under:-
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(i) The land area from High Tide Line (hereinafter referred to as the
HTL) to 500 meters on the landward side along the sea front.
Explanation. – For the purposes of this notification, the HTL means
the line on the land upto which the highest water line reaches during
the spring tide, as demarcated by the National Centre for Sustainable
Coastal Management (NCSCM) in accordance with the laid down
procedures and made available to various coastal States and Union
territories.
(ii) CRZ shall apply to the land area between HTL to 50 meters or
width of the creek, whichever is less on the landward side along the
tidal influenced water bodies that are connected to the sea and the
distance upto which development along such tidal influenced water
bodies is to be regulated shall be governed by the distance upto which
the tidal effects are experienced which shall be determined based on
salinity concentration of five parts per thousand (ppt) measured
during the driest period of the year and distance up to which tidal
effects are experienced shall be clearly identified and demarcated
accordingly in the Coastal Zone Management Plan (hereinafter
referred to as the CZMP):
Provided that the CRZ limit of 50 meters or width of the creek
whichever is less, shall be subject to revision and final approval of the
respective CZMPs as per this notification, framed with due
consultative process, public hearing etc. and environmental safeguards
enlisted therein, and till such time the CZMP to this notification is
approved, the limit of 100 meters or width of the creek whichever is
less, shall continue to apply.
Explanation.- For the purposes of this sub-paragraph the expression
“tidal influenced water bodies” means the water bodies influenced by
tidal effects from sea in the bays, estuaries, rivers, creeks, backwaters,
lagoons, ponds that are connected to the sea.
(iii) The “intertidal zone” means land area between the HTL and the
Low Tide Line (hereinafter referred to as the LTL).
(iv) The water and the bed area between the LTL to the territorial
water limit (12 Nm) in case of sea and the water and the bed area
between LTL at the bank to the LTL on the opposite side of the bank,
of tidal influenced water bodies.
(emphasis added)
40) The effect of 2019 CRZ Notification is such that the land
between the distance of 51 meters to 100 meters from tidal water
influenced bodies like creeks and bays are now outside the CRZ
regulatory framework.
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would thus indicate that the Notifications provide for a regulatory
framework by prohibiting most of the activities in defined CRZ areas
and permitting very few activities, subject to various restrictions. The
CRZ Notifications are not aimed at promoting development in coastal
areas unlike Development Control Promotion Regulations of a Planning
Authority, but provide for a mitigative framework based on the principle
of sustainable development. The CRZ Notifications define the area
within which the stipulated prohibitions, restrictions and permissions
are applicable. This follows that the restrictions imposed by CRZ
Notifications do not apply to the lands which are not included in
defined CRZ areas.
D.2 ENVIRONMENTAL CLEARANCES DATED 7 JANUARY 1999 &
26 APRIL 2000 FOR BANDRA-WORLI SEA LINK PROJECT
42) Having considered the three CRZ Notifications issued in
1991 (as amended in 1997), 2011 and 2019, it would be necessary to
consider the background in which the environmental clearance was
sought and secured for execution of Bandra Worli Sea Link project. The
Urban Development Department of Government of Maharashtra had
submitted application dated 10 June 1993 to MoEF seeking
environmental clearance for construction of Bandra Worli Sea Link
project. It must be observed here that as on the date of application dated
10 June 1993, the only regulatory framework requiring environmental
clearance was in the form of 1991 CRZ Notification. The Environment
Impact Assessment Notification dated 27 January 1994 was issued
subsequent to the application dated 10 June 1993. There is some degree
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of debate between the parties as to whether environment clearance
issued in respect of Bandra Worli Sea Link project is referable only to
1991 CRZ Notification or has any reference with regard to EIA
Notification dated 27 January 1994. This aspect is being discussed in
latter part of the judgment. The State Government’s application dated
10 June 1993 was allowed by MoEF, which accorded environmental
clearance to the proposed Bandra Worli Sea Link project on
7 January 1999. The approval was accorded subject to the condition that
the land reclamation should be kept bare minimum (not exceeding 4.7
Hectares) and that the same should be monitored closely so as to not
violate conditions of 1991 CRZ Notification. The approval was also
subject to the condition of impermissibility to undertake commercial or
residential activity/development on seaward side of the road and no
commercial activity on the landward except relating to collection of the
toll for users of the sea link. It would be apposite to reproduce the
relevant portion of Environmental Clearance dated 7 January 1999
which reads thus:-
No. Z-12011/92-JA-III
Government of India
Ministry of Environment & Forests
Parayavarn Bhawan CGO Complex,
Lodhi Road, New Delhi-440 003Dated the 7th January, 1999.
Subject : Construction of Worli Bandra link Road,
Project in Mumbai Environmental Clearance reg.
The Undersigned is directed to refer to letter No.
BMRDA-1092-25/CR-4/UD-10 dated 10th June, 1993 from the
Urban Development Department, Government of Maharashtra and
subsequent correspondence regarding the subject mentioned above,
Further information submitted by Mumbai Metropolitan Regional
Development Authority vide their letter No- T/WELR/EIA/Vol. VI
dated 25.8.97 and clarification submitted vide their letters dated 28 thPage No.30 of 68
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Neeta Sawant PILs-22-2024 and 8224-2024-FCNovember, 1977, 10th December, 1977 have also been examined. In
addition, the information furnished by Maharashtra State Road
Development Corporation vide their letter No. MSRDC/WBLR/402
dated 23rd March, 1998 and clarifications offered during discussions
have also been examined Ministry of Environment & Forests herby
accords environmental clearance to the proposed Worli Bandra Link
Road Project Subject to strict compliance of terms and conditions
mentioned below.
i.
ii.
iii.
viii. The land reclamation should be kept to the bare minimum (not
exceeding 4.7 hectares) and the same should be monitored closely so
that it does not violate the provisions of the Coastal Regulation Zone
(CRZ) Notification, 1991 as amended subsequently.
xi. No commercial or residential activity/ development would be
allowed on the seaward side of this road. On the land ward side
(within 100 meters) between existing habitations/ establishments and
the road, no commercial activity except that relating to collection of
toll for the users of the road would be permitted.
xxx
The above-mentioned stipulations shall be enforced among others
under the Water (Prevention and Control of Pollution) Act, 1974, the
Air (Prevention and Control of Pollution) Act, 1981, the Environment
(Protection) Act, 1986, the Hazardous Chemical (Manufacture
Storage and Import) Rules, 1989, the Environmental Impact
Assessment (EIA) notification, 1994, the Coastal Regulation Zone
(CRZ) Notification, 1991 as amended on 9th July, 1997, the public
Liability Insurance Act, 1991 and the amendments and rules made
there under from time to time.
(emphasis added)
43) It appears that MSRDC, which was the executing agency
for Bandra Worli Sea Link project carried out reclamation of land
exceeding 4.7 hectares, for which clearance was granted on 7 January
1999. By letter dated 20 December 1999, MoEF sought clarification
from MSRDC. By letter 7/9 February 1999 MSDRC not only justified
its action but sought further clearance for reclamation of 22.2 Hectares
of additional land in addition to 4.7 Hectares for which permission was
already granted. The request was followed by another letter dated 10
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February 2000, this time by Chief Secretary, Government of
Maharashtra to MoEF in which following assurance was given :-
You may kindly appreciate that omission of not seeking specific
clearance for reclamation of 22 ha. of land did take place because of
certain presumptions made by MSRDC. Moreover, this reclaimed
land will be kept as open space/garden and no commercial
exploitation will be done.
(emphasis added)
44) It appears that MoEF sought certain clarifications vide letter
dated 27 March 2000 and MSRDC, while clarifying the queries, stated
in its letter dated 28 March 2000 as under :-
2. Reclamation of road and for the filing of ditch between the existing
shoreline and the proposed road were also included in the sanctioned
development plan of State Government.
4. Condition No. (xi). The filled up area on the landward side of the
road and for the promenade will be developed as “Green Area”.
MSRDC have got detailed plans prepared for this by a reputed
Architect and based on them provision has already been made in the
awarded contracts for Bandra Worli Sea Link Project.
9. Studies were carried out by the CWPRS in 1984 to ascertain the
effect of construction of approach road and bridge on the waves and
tidal conditions in Mahim bay. Hydraulic model studies were carried
out for two sets of conditions ie. (i) For existing conditions and (ii)
Superimposing the bridge having different openings and approach
road. The CWPRS studies had clearly brought out the following:
(a) The construction of bridge and approach road at Bandra-end is not
likely to create any adverse conditions along the coast, and
(b) The tidal wave direction in the Mahim bay is in the North-South
direction and the bay gets filled up due to raising of level of the water
and the area on the South-East of the bay is slack zone and is prone to
sedimentation as flushing velocity is not available.
45) It appears that for considering MSRDC and State
Government’s requests for environmental clearance in respect ofPage No.32 of 68
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representatives from MoEF and two representatives from State
Government to examine the extent of reclamation required/done and
the need and justification for the same. The team conducted site
inspection and submitted report dated 16 March 2000 opining as under:-
9. Apart from reclamation issue MSRDC & BMC officials also
explained to the team the following issues.
A). After constructing the bridge, there will be no hindrance to the
movement of fishing boats in Mahim bay.
B). As per the studies carried out, this project has no adverse effect
along the coast
Conclusions
After examining the various factors and the details of the project, the
Team is of the view that suitable modifications may be considered by
the Ministry of Environment & Forests in the environmental
clearance, permitting reclamation not exceeding 27 ha so that
MSRDC may complete the balance work of the project.
46) After considering the report and as per the requests made by
the MSRDC and State Government, MoEF granted further
Environmental Clearance on 26 April 2000 relevant portion of which
reads thus :-
2 The Ministry of Environment and Forests constituted a team
consisting of an officer from the Central Government and two officers
form the Maharashtra State Government to look into the actual
requirement of land for the approach road and promenade and also
need and justification for the same. The team made a visit to the site
during 14th-15th March, 2000 and submitted its report after examining
the report of the team and the project authority the Ministry of
Environment & Forests has decided to modify the conditions in the
clearance letter dated 7th January, 1999, Following are the modified
conditions.
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i. Condition No viii The existing provisions is replaced with the
following:-
The land reclaimed should be kept to the bare minimum and should
in no case exceed 27 hectare. The land reclaimed should be monitored
closely in order to avoid violation of the provisions of the CR/
Notification 1991 and as subsequent amendments. No portion of the
reclaimed land should be used for residential/commercial purposes.
ii. Condition No viii the existing provision is replaced with the
following
A six- Monthly monitoring report shall be submitted to the Regional
office of this Ministry at Bhopal regarding implementation of the
stipulated conditions An assessment of the impact of reclamation
should also be included in the report.
(emphasis added)
47) Thus, MoEF granted environmental clearance for
reclamation of additional land subject to the condition of not exceeding
reclamation beyond 27 Hectares and close monitoring of the reclaimed
land so as to avoid violation of provisions of 1991 CRZ Notification and
subsequent amendments. A specific condition was imposed by “no
portion of reclaimed land should be used for residential / commercial
purposes”. It is this condition imposed in EC dated 26 April 2000 which
is the hotbed of controversy between the parties. It is Petitioner’s
contention that condition imposed in EC dated 26 April 2000 continues
to operate and prevents MSRDC from using the reclaimed land for
residential/commercial purposes.
48) As observed above the validity of Environmental Clearance
granted vide letter dated 7 January 1999 and 26 April 2000 as well as
the validity of Bandra Worli Sea Link Project came to be upheld
Division Bench of this Court in Rambhau Patil (supra).
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D.3 HANDING OVER OF RECLAIMED LAND TO MSRDC
49) After completion of construction Bandra Worli Sea Link
project, Government of Maharashtra decided to handover land
admeasuring 2,32,465 sq.mtrs. (57 Hectares) to MSRDC under
provisions of Section 40 of MLRC. Accordingly, State Government
issued Memorandum dated 4 November 2016 which contained
following conditions :-
(iii) Usage of the said land will be permissible as per the provisions in
Development Control Regulations of the concerned Planning
Authority and it will be binding to take prior approval from Municipal
Corporation of Gr. Mumbai before commencing such usage.
(v) If there are any proposed scheme here, it will be necessary to
obtain prior approvals from MCZMA/MOEF and all the concerned
competent authorities.
50) In pursuance of Memorandum dated 4 November 2016,
Collector, Mumbai Suburban District, passed order dated 30 January
2017 transferring the land admeasuring 2,32,465 sq.mtrs. in favour of
MSRDC, in which again following conditions were stipulated :-
a) The above land can be used for the approved purposes with the aproval of the
planning authority. As per Government decision, Public Works Dept. No.
Khakshes-2002/Pra. Kra.182/Raste-8 dt. 5.7.2016, separate ‘Land Disposal
Rules’ will be prepared in respect of the land held by Maharashtra State Road
Development Corporation Ltd. and unless these rules are approved by the
competent authorities, no disposal of this land can be made in any manner.
Maharashtra State Road Development Corporation Ltd. will exercise caution
in this regard.
b) It will be binding upon Maharashtra State Road Development Corporation
Ltd. to use the land only for essential and approval purposes only.
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c) The sanctioned land cannot be transferred/sold without prior permission
from the Government / Dist. Collector, nor can it be given on lease or
mortgaged.
d) The land or any of its part cannot be transferred or no third party rights can
be created without government permission.
e) Prior permission will be required from the Government / Dist. Collector if
the land is to be used for the purpose other than the sanctioned purposes.
D.4 CLASSIFICATION OF WATER BODY AT MAHIM AS “BAY”
51) An important event occurred sometime in the year 2014
when the water body of Mahim was classified as “Bay”, which is one of
the recognised tidal influenced water bodies under the CRZ
Notifications. On account of classification of the water body at Mahim
as ‘Bay’, the CRZ applicability got restricted to a distance of only 100
mtrs from HTL. There is no debate about this position as this Court in
numerous cases has recognised that the applicability of CRZ has been
reduced to only 100 mtrs from HTL of Mahim Bay. In this regard, Dr.
Sathe has relied on orders passed in Deepak Rao (supra) and Hoary
Realty Ltd. (supra). The Petitioners also do not seriously dispute the
position of declaration of water body at Mahim as ‘Bay’ and
applicability of CRZ restrictions only to the specified distance from
HTL of Mahim Bay under the CRZ Notifications.
52) Here Dr. Sathe points out that the moment the water body
of Mahim got declared as Bay, the subject plot actually fell outside CRZ
area as the same was not within 100 mts distance of HTL. He has
submitted that CRZ clearance under 1991 CRZ Notification was
required to be secured only on account of the fact the Mahim water
body, at that point of time, was treated as Arabian sea and the subject
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plot fell within the distance of 500 meters from HTL of Arabian sea. It is
thus sought to be contended on behalf of MSRDC that the subject plot
was actually outside CRZ area even under 1991 or 2011 CRZ
Notifications if declaration of body water at Mahima as Bay was
available during 1999/2000. We need not delve further into this aspect.
53) The 2019 CRZ Notification has further reduced the distance
from HTL of a Bay upto a distance of only 50 meters as noted above.
Thus under 2019 CRZ Notification any land falling outside the distance
of 50 meters from HTL of tidal influenced water body (Bay) falls outside
CRZ area. This is how MSRDC now contends that the subject plot is
now outside CRZ area and that therefore the restrictions imposed under
the 2019 CRZ Notification are no longer applicable for developing the
24 acres of land for which tender was floated by MSRDC and contract
has been awarded to Respondent No.6.
54) To buttress the position that the subject plot falls outside
CRZ area, reliance is placed on CZMP prepared in pursuance of 2019
CRZ Notification, which certifies that the subject plot is outside the
CRZ area.
55) Here it must be pointed out that Petitioners do not really
dispute the position that the subject land falls outside 50 meters distance
of HTL of Mahim Bay. They however contend that the subject plot
would still be governed by CRZ restrictions on account of saving clauses
in Notifications of 2011 and 2019. They also contend that since the
subject plot forms part of reclaimed land, the CRZ restrictions under the
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2019 CRZ Notification, as applicable to reclaimed lands, would
continue to apply to the subject plot.
D.5 STAND TAKEN BY MCZMA, MOEF AND MCGM
56) Maharashtra Coastal Zone Management Authority
(MCZMA) is the regulatory authority, which receives proposals and
makes recommendations for CRZ clearance under the CRZ
Notifications. MCZMA has clarified in its Affidavit that the subject plot
is situated outside the purview of CRZ area. In its Affidavit dated 24
January 2025, MCZMA has pleaded as under :-
10. I say that the environmental clearance with respect to Worli
Bandra Link Road Project had been granted by the Ministry of
Environment and Forest on 07/01/1999 which was subsequently
amended on 26/04/2000 vide Condition mentioned at Sr. Viii was
replaced with the following:
“The land reclaimed should be kept to the bare minium and
should in no case exceed 27 hectare. The land reclaimed
should be monitored closely in order to avoid violation of the
provisions of the CRZ Notification 1991 and as subsequent
amendments. No portion of the reclaimed land should be used
for residential / commercial purpose.”
And now the subject plot is situated falls out of the preview of the
CRZ area, as per prevailing CRZ Notification, 2019 and therefore
clarification from Ministry of Environment, Forest and Climate
Change, New Delhi is inevitable as to the applicability of the
amended aforesaid condition at in the letter dated 26 th April, 2000
issued by the Ministry of Environment, Forests & Climate Change,
New Delhi.
(emphasis and underlining added)
57) Thus, while clarifying that the subject plot falls outside the
purview of CRZ area, MCZMA has pleaded that clarification from
MOEF is necessary in the light of conditions stipulated in
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environmental clearance dated 26 April 2000. The MoEF has filed
Additional Affidavit dated 14 February 2025 referring to the Affidavit of
MCZMA and has pleaded therein as under :-
5. It is humbly submitted that the ECs to the extant project vide letter
dated 07/01/1999 and 26/04/2000 were granted as per the provisions
of Coastal Regulation Zone Notification, 1991 (hereinafter referred to
as ‘CRZ Notification, 1991’) as amended on 9th July 1997 and the
Environment Impact Assessment (EIA) Notification, 1994 applicable
at that point of time. Copies of the CRZ notification 1991, CRZ
notification dated 09.07.1997, EIA notification, 1994 has been
annexed herewith as Annexure-R4/3, Annexure-R4/4, and
Annexure-R4/5, respectively.
6. It is humbly submitted that CRZ Notification, 1991 since then had
been superseded by CRZ Notification, 2011, which has now been
superseded by CRZ Notification, 2019. A copy of the CRZ
notification, 2019 has been annexed herewith as Annexure-R4/6.
Further, Coastal Zone Management Plans (hereinafter referred to as
‘CZMPs’) as per CRZ Notification, 2019 have been approved for the
State of Maharashtra and all the concerned activities in the CRZ areas
of the State would attract the provisions of CRZ Notification, 2019.
As confirmed by Maharashtra Coastal Zone Management Authority
(hereinafter referred to as ‘MCZMA’), the subject plot falls out of the
purview of the CRZ area, as per CRZ Notification, 2019. The copy of
the affidavit filed by MCZMA in this regard is annexed herewith as
Annexure-R4/7.
(emphasis added)
58) Thus while the MCZMA expected a clarification from
MoEF with regard to condition No. (viii) in EC dated 26 April 2000,
the MoEF has not really pleaded any such clarification in its additional
affidavit-in-reply. The MoEF had however accepted MCZMA’s plea of
the subject plot falling outside the CRZ area. Be that as it may. During
the course of his submissions, Mr. Singh, the learned ASG has clarified
the stand on behalf of MoEF that the subject plot not only falls outside
the CRZ area but the conditions of the EC dated 26 April 2000 would
no longer apply for the development of the subject plot.
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Affidavit on behalf of MCGM. It its Affidavit filed on 6 March 2025, it
was pleaded by MCGM as under :-
7) The said land is partly situated in ‘Residential Zone’ and partly in
‘Commercial Zone’. Also the part of land bearing CTS No 792 i.e.
bounded on South side by Rajiv Gandhi Sea Link, on West side K.C.
road, on North side proposed 9.15m wide DP road on East side
existing road falls within MMRDA’s (Special Planning Authority)
jurisdiction. The ownership of the said land is vest with MSRDC.
8) As per approved Coastal Zone Management Plan 2021, the said
land bearing CTS No. 792 of Village Bandra-A is affected by Coastal
Regulation Zone (CRZ) -‘IB’, CRZ- ‘II’ and No Development Zone
(NDZ) within CRZ II-Greater Mumbai.
(emphasis added)
60) However, by filing Additional Affidavit, MCGM has
clarified as under:-
5) I say that alongwith the aforesaid proposal the Architect has
submitted a demarcation plan and report dated 25/10/2024 which is
prepared by Institute of Remote Sensing Anna University, Chennai.
In the report the said Institute was given the task of preparing a local
level Coastal Regulation Zone map in the vicinity of the project site
by superimposing on approved CZMP as per CRZ Regulations, 2019.
The main objective was to superimpose the project site on approved
CZMP (Map No. MH 75) published by MCZMA for Mumbai
Suburban District. The said report records the following conclusions:-
The project site of M/s. MSRDC, RGSL Project Office, Near
Leelavati Hospital, Bandra (W), Mumbai 400036 bearing CTS No. A-
792 of Bandra-A village situated in H/W ward, Mumbai,
Maharashtra falls fully outside the 50m. setback line from HTL of
Mahim Bay as per approved CZMP published vide CRZ Notification
2019. Hence the project site falls fully outside CRZ as per approved
CZMP.”
The copy of the said Demarcation plan and said Report is hereto
annexed and marked as Exhibit-AR2 and Exhibit-AR3.
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6) I say that the Assistant Engineer (DP), H/West Ward in his
remarks dated 27/12/2024 pertaining to CRZ has stated that as per
approved CZMP 2019 published on 29/09/2021, the land bearing
CTS No. 792 (pt.) of Bandra-A Village in ‘H-West’ ward as shown
bounded blue on the accompanying plan does not fall under CRZ.
Hereto annexed and marked as Exhibit-AR4 is a copy of the said
remarks.
7) Thus, from the aforesaid documents namely demarcation plan,
report of Institute of Remote Sensing Anna University and CRZ
remarks, it can be safely said that the project site namely Sub-Plot A
and Sub-plot B whereupon residential development is proposed falls
outside the CRZ line.
8) I therefore say that the earlier affidavit filed on behalf of
Respondent No. 5 ought to be read alongwith this Additional
Affidavit, for completion of record and for clarity.
61) Thus, all the authorities are ad-idem that the subject plot
now falls outside CRZ area as per 2019 CRZ Notification.
D.6 EC FOR SEA LINK PROJECT ISSUED UNDER WHICH
NOTIFICATION
62) Some degree of debate is sought to be created on behalf of
the Petitioners about the exact Notification under which the
environmental clearances dated 7 January 1999 and 26 April 2000 are
issued. It is the contention of MSDRC that both the clearances of
7 January 1999 and 26 April 2000 are issued only in accordance with
1991 CRZ Notification. On the other hand, it is sought to be orally
suggested on behalf of Petitioners that the said clearances were also
issued independent of 1991 CRZ Notification and under 1994 EIA
Notification. There are multiple reasons why we are not inclined to
accept the contention of the Petitioners. Firstly, in the written note
submitted on behalf of Petitioners in Public Interest Litigation No. 22 of
2024, following submission is made:-
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10. The EC dated 7 January 1999, as amended, was thus granted
under 1991 CRZ Notification, as amended by the 1997 amendment.
63) Thus, a specific admission is given in the written
submissions on behalf of the Petitioners that the environmental
clearance dated 7 January 1999 and 26 April 2000 are both issued under
1991 CRZ Notification. Furthermore, both the clearances specifically
incorporate a condition of close monitoring of reclaimed land so as to
avoid violation of provisions of 1991 CRZ Notification. When the
application was made to MoEF on 10 June 1993, the EIA Notification
of 1994 was not even issued. Mere reference to the 1994 EIA
Notification in last paragraph of environmental clearance dated
7 January 1999 does not mean that the said environmental clearance is
issued under EIA Notification of 1994. Petitioners have not even
produced copy of EIA Notification of 1994 alongwith any of the
pleadings nor there is a specific contention in the petition that
environmental clearance dated 7 January 1999 and 26 April 2000 is
issued under 1994 EIA Notification. On the contrary there is specific
admission in the written note of submissions that the said environmental
clearance is granted under 1991 CRZ Notification. Once it is held that
environmental clearances dated 7 January 1999 and 26 April 2000 were
issued under 1991 CRZ Notification alone, the moment the subject plot
falls outside the CRZ area no CRZ related restrictions can be made
applicable for developing the subject plot.
64) Even otherwise, the debate about the exact Notification
under which the EC was granted to the Bandra Worli Sea Link Project
is rendered academic in the light of the position that during pendency of
the Petitions, the MoEF had granted Environment Clearance under the
EIA Notification, 2006 to the current project undertaken by the
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MSRDC. Therefore, even if Petitioners’ contention is accepted that the
EC 7 January 1999 and 26 April 2000 were issued under both CRZ as
well as EIA Notifications, there is EIA clearance for the project in
question.
D.7 EFFECT OF SAVING CLAUSES IN 2011 AND 2019 CRZ
NOTIFICATIONS
65) It is contended on behalf of Petitioners that even if the
reclaimed land may physically fall outside 50 meters distance from HTL
of Mahim Bay, the same would not be a ground for presuming that the
restrictions put in Environmental Clearance dated 7 January 1999 and
26 April 2000 for non-use of land for residential or commercial
development would cease to apply. It is contended on behalf of the
Petitioners that once land is reclaimed subject to a restriction, the
reclaimed land can only be used subject to the condition on which the
reclamation was permitted and mere change in CRZ Notification would
not nullify the condition on which reclamation permission was granted.
66) Petitioners have relied upon the saving clauses under 2011
and 2019 CRZ Notification in support of their contention that the said
clauses have the effect of continuation of the conditions imposed in
environmental clearances dated 7 January 1999 and 26 April 2000. Both
2011 and 2019 CRZ Notifications use the expression “except as respects
things done or omitted to be done before such supersession”. It is
Petitioners’ contention that use of the above expression in both CRZ
Notifications is aimed at protecting not only the things already done in
pursuance of previous CRZ Notifications, but also the compliances and
conditions subject to which such thing was permitted to be done.
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supersession of 1991 CRZ Notification, on account of which, it became
necessary to protect the things done in pursuance of 1991 CRZ
Notification which was being superseded. Thus, what is protected and
not superseded are i) things done and ii) things omitted to be done. This
essentially means that if any activity is performed as a permissible
activity under 1991 CRZ Notification, such activity would remain
protected under 2011 CRZ Notification, notwithstanding the fact that
the said activity may be prohibited under 2011 Notification. This also
means that a clearance already secured for an activity under 1991 CRZ
Notification need not be again secured under 2011 Notification. To
illustrate, if a port was constructed after securing permission under 1991
CRZ Notification, construction of such port would not be rendered
illegal after coming into effect of 2011 CRZ Notification nor fresh
permission is necessary under the 2011 CRZ Notification. This is the
true purport of the words ‘things done’ used in 2011 CRZ Notification.
68) Similarly, the words “things omitted to be done” used in
2011 CRZ notification means that if any act was not required to be
performed under 1991 CRZ Notification, non-performance of such act
does not per se become illegal after coming into effect of 2011 CRZ
Notification.
69) This is all that the saving clause “except as respects things
done or omitted to be done before such supersession” used in 2011 CRZ
Notification would mean.
70) The 2019 CRZ Notification, issued in supersession of 2011
CRZ Notification uses the similar expression and protects ‘things done
or omitted to be done before such supersession’ .
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activity was permissible subject to a condition under 1991 CRZ
Notification and if the very same activity is not restricted in any manner
in 2011 or 2019 CRZ Notifications, the conditions subject to which the
earlier permission was granted would continue to operate. This is not
the purport of the saving clause under 2011 and 2019 CRZ
Notifications. If interpretation placed by Petitioners is accepted, the
same would lead to absurdity. To illustrate, if a particular piece of land
was included in CRZ area under 2011 CRZ Notification and a
restrictive activity was performed by the landowner on the land with due
clearance of MoEF/MCZMA and subsequently the 2019 CRZ
Notification excludes the said land from CRZ area, the interpretation of
Petitioners would mean that the restrictions which were imposed in the
EC would continue to operate notwithstanding exclusion of such land
from the purview of CRZ by the 2019 CRZ Notification. Such an
interpretation would completely destroy the very objective of relaxation
granted under the 2019 CRZ Notification. In our view, therefore the
interpretation placed by the Petitioners on the saving clause is clearly
misplaced and the saving clause under 2019 CRZ Notification cannot be
read to mean that the conditions imposed in the environmental
clearances dated 7 January 1999 and 26 April 2000 would continue to
operate even though the subject plot falls outside the CRZ area.
72) Petitioners have relied on the judgment of the Apex Court
in Pune Municipal Corporation (supra) in support of their contention that
the saving clause protects not only the things done but also the effect of
legal consequences flowing therefrom. The Apex Court after referring to
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its judgment in State of Punjab Versus. Harnek Singh9 held in paragraphs-
44 and 45 of the judgment as under:-
44. It will be relevant to refer to the following observations of this Court
in State of Punjab v. Harnek Singh [State of Punjab v. Harnek Singh, (2002)
3 SCC 481 : 2002 SCC (Cri) 659 : 2002 INSC 84] , wherein this Court after
considering the earlier decisions has observed thus : (SCC p. 490, para 16)
“16. The words “anything duly done or suffered thereunder” used in
clause (b) of Section 6 are often used by the legislature in saving
clause which is intended to provide that unless a different intention
appears, the repeal of an Act would not affect anything duly done or
suffered thereunder. This Court in Hasan Nurani Malak v. S.M.
Ismail [Hasan Nurani Malak v. S.M. Ismail, 1966 SCC OnLine SC 45
: AIR 1967 SC 1742] has held that the object of such a saving clause is
to save what has been previously done under the statute repealed. The
result of such a saving clause is that the pre-existing law continues to
govern the things done before a particular date from which the repeal
of such a pre-existing law takes effect. In Universal Imports
Agency v. Controller of Imports and Exports [Universal Imports
Agency v. Controller of Imports and Exports , 1960 SCC OnLine SC
42 : AIR 1961 SC 41 : (1961) 1 SCR 305] this Court while construing
the words “things done” held that a proper interpretation of the
expression “things done” was comprehensive enough to take in not
only the things done but also the effect of the legal consequence
flowing therefrom.”
45. It can thus be seen that this Court has in unequivocal terms held that the
term “things done” was comprehensive enough to take in not only the things
done but also the effect of the legal consequences flowing therefrom.
73) The issue before the Apex Court in Pune Municipal
Corporation was about the applicability of Municipal Solid Waste Rules,
2000 or Municipal Solid Waste Rules, 2016 to the Garbage Processing
Plant put up by the Pune Municipal Corporation. The Municipal
Corporation had contended that the plant would be governed by 2000
Rules whereas the first Respondent contended that the same would be
governed by the 2016 Rules. The 2016 Rules, though superseded 2000
Rules, the things done or omitted to be done before such supersession
9 (2002) 3 SCC 481
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were protected. The Municipal Corporation had applied for and secured
authorisation from Maharashtra Pollution Control Board for setting up
the plant in accordance with 2000 Rules, which was renewed from time
to time. The National Green Tribunal however held that the plant of the
Municipal Corporation was in violation of Rule 20 of MSW Rules,
2016. It is in the context of this controversy that the Apex Court held
that all the acts done as well as legal consequences flowing therefrom
under the Rules of 2000 would stand protected even after supersession
thereof by Rules of 2016. This ratio if applied in the context of
supersession of 2011 Notification by 2019 Notification would only
mean that all the legal consequences flowing out of an EC secured for
an activity under the 2011 CRZ Notification would continue to apply
even after coming into effect of 2019 CRZ Notification and an act done
in pursuance of that EC would not rendered illegal nor fresh EC for the
activity would be necessary under the 2019 CRZ Notification. In our
view, therefore the neither the judgment in State of Punjab Versus.
Harnek Singh (supra) nor the judgment in Pune Municipal Corporation
assist the case of Petitioners for holding that the conditions imposed in
the environmental clearance dated 26 April 2000 would be saved by
saving clauses stipulated in 2011 or 2019 CRZ Notifications.
74) Petitioners have also relied on judgment of Full Bench of
this Court in Maharashtra Chamber of Housing Industry, Mumbai (supra)
in which the issue was about applicability of conditions prescribed in
exemption orders issued under Urban Land (Ceiling and Regulation)
Act, 1976 after its repeal. This Court held in paragraphs-54 and 56 as
under :-
54. The validity of exemption order is saved so as to ensure that the
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Legislature has left unaffected by repeal only the validity of the
exemption order, but not its conditions. The argument that the
conditions on which the exemption order is based or passed are no
longer valid, but it is only the exemption order whose validity is
saved, is required to be stated only for being rejected. While
canvassing such an argument the counsel lost sight of clause (c) of
sub-section (1) of section 3 of the Repeal Act. If as a condition for
grant of exemption any payment has to be made to the State
Government, then, the repeal of the Principal Act was not to affect
such payment or condition under which the same is made. The
insertion of the words “as a condition for granting exemption” in
clause (c) of sub-section (1) of section 3 would demonstrate the
legislative intent. If the payment made to the State Government as a
condition for granting exemption and which may be incorporated in
the exemption order is saved, then, there is no warrant to exclude
from the provision in question the validity of other conditions in the
exemption order. The entire order of exemption together with the
conditions subject to which it has been granted is thus saved. That is
because the Legislature was aware that the Principal Act was a social
legislation. That its misuse and abuse by some sectors resulting in
laudable social objective being not achieved that its repeal was
necessitated. However, despite the repeal the validity of the
exemption order or any action taken thereunder and notwithstanding
anything to the contrary in any order of the Court has been expressly
saved. That could never have been inserted and merely to save the
validity of the exemption order on paper. The validity of the order is
saved so as not to affect the legal consequences of such valid order. To
save them and the order as a whole together with the conditions
incorporated therein that section 3(1)(b) and (c) has been inserted in
the Repeal Act. By that the State’s powers incidental and ancillary to
the power to exempt can thus, be exercised and despite the repeal.
The exemption order, validity of which has been saved, can,
therefore, be enforced, so also, its terms and conditions. These terms
and conditions may have been incorporated simply to reaffirm that
the power to exempt which is conferred in the highest executive
functionary in the State, namely, Government is presumed to be
exercised for public good and in public interest. The exercise of such
powers is, therefore, presumed to be bona fide and for achieving the
object and purpose for which it is conferred. It is with these
presumptions and which were always present to the Legislature that
the validity of exemption order has been saved. Having said that and
also saving the payment or monetary aspect related to the exemption,
it was not necessary for the Parliament to then spell out separately all
the legal consequences flowing from such valid order. Even otherwise,
that there is no intention contrary to what is spelled out by section 6
of the General Clauses Act is, therefore, apparent. There is no
substance in the argument of the Petitioners that only the exemption
order is saved, but not its terms and conditions and further by not
referring to sub-section (2) of section 20 the State’s power to withdraw
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the exemption is taken away by repeal of the Principal Act. The
argument is that the power to withdraw the exemption in terms of
section 20(2) of the Principal Act conferred in the State cannot be
exercised because of repeal of the Principal Act. This argument is
premised on the fact that once the State Government withdraws the
exemption order the only consequence could be that the excess vacant
land vests in the State under section 10(3) of the Principal Act and
that vesting cannot take place after repeal of the Principal Act.
56. The fallacy in the above arguments can be demonstrated by
perusing section 20 of the Principal Act. The difference in the
language in section 19 and section 20 is that section 19 says that
Chapter-III will not apply to certain vacant lands whereas what
section 20 sets out is the power to exempt the vacant land in excess of
ceiling limit and which power can be exercised by the State
Government in cases covered by clauses (a) and (b). That the said
exemption can be withdrawn provided the Government records a
satisfaction that any condition subject to which the exemption order is
granted is not complied with by any person. Therefore, a conditional
order of exemption can be withdrawn on reaching this satisfaction
and conclusion. However, section 20 does not mandate withdrawal,
but confers a discretion in the Government to withdraw the
exemption order after giving a reasonable opportunity to such person
of making a representation against the proposed withdrawal. It is only
when the power of withdrawal is exercised that the provisions of
Chapter-III will apply. The language of section is, therefore, clear
inasmuch as it is only when the exemption order is withdrawn that
the Chapter-III of the Principal Act applies to the excess vacant land.
So long as the exemption order is in force to protect its validity despite
a contrary Court order a saving provision in the Repeal Act will have
to be inserted. The Legislature was aware that not only the terms and
conditions of the exemption order need to be enforced, but if that
order is acted upon by parties the validity as a whole must be saved.
That needs to be saved so as to enable the State Government to apply
the provisions of Chapter-III to the excess vacant land covered by the
exemption order and the terms and conditions after it is noticed that
the exemption is either misused or misutilized or not acted upon so as
to subserve the larger public interest. A breach or violation of some of
its vital conditions may result in its withdrawal and cancellation. If
one way of applying Chapter-III is by withdrawing the exemption
order, then, the power to withdraw the same which is implicit and
inherent in the power to grant exemption is also saved and not
affected by repeal of the Principal Act. That is because the vacant land
held by a person is undisputedly in excess of ceiling limit. The power
to exempt is exercised when a person holds the vacant land in excess
of ceiling limit. That such power can be exercised even after
declaration under section 10(3) of the Principal Act is further
undisputed.
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Housing Industry, Mumbai needs to be appreciated in the light of
provisions of Section 3(1)(b) of the Urban Land (Ceiling and
Regulation) Repeal Act, 1999 which contained a specific provision that
validity of any order granting exemption under sub-section (1) of
Section 20 or any action taken thereunder shall not be affected by the
Repeal Act. The conditions in exemption orders required the landowner
to perform particular acts such as handing over constructed flats to the
Government, etc. it was sought to be contended that since the ULC Act
was repealed, the conditions in exemption orders would stand negated.
However Section 3(b) of the Repeal Act protected the exemption order
granted under Section 20(1) even after repeal of the Act and the Full
Bench of this Court held that since the exemption order remained intact,
the conditions subject to which the exemption was granted would also
continue to apply. Thus, findings in para-54 of the judgment are
rendered in the light of peculiar provisions of Section 3(1)(b) of the
Repeal Act. The judgment in our view has no application for resolving
the controversy at hand.
76) Petitioners have placed reliance of provisions of Section 24
of General Clauses Act, which provides thus :-
24. Continuation of orders, etc., issued under enactments repealed
and re-enacted.–
Where any Central Act or Regulation, is, after the commencement of
this Act, repealed and re-enacted with or without modification, then,
unless it is otherwise expressly provided any appointment notification,
order, scheme, rule, form or bye-law, made or issued under the
repealed Act or Regulation, shall, so far as it is not inconsistent with
the provisions re-enacted, continue in force, and be deemed to have
been [made or] issued under the provisions so re-enacted, unless and
until it is superseded by any appointment notification, order, scheme,
rule, form or bye-law, made or issued under the provisions so re-
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enacted [and when any Central Act or Regulation, which, by a
notification under section 5 or 5A of the Scheduled Districts Act,
1874 or any like law, has been extended to any local area, has, by a
subsequent notification, been withdrawn from and re-extended to
such area or any part thereof, the provisions of such Act or Regulation
shall be deemed to have been repealed and re-enacted in such area or
part within the meaning of this section.
77) In our view, all that the provisions of Section 24 of the
General Clauses Act contemplate is protection of any appointment,
notification, order, scheme, rule, form or bye-law made or issued under
the repealed Act, which continues to operate notwithstanding repeal of
the Act, under which they are made or issued. If provisions of Section
24 of the Act are applied in the context of CRZ Notifications, it would
only mean that if CRZ clearance was necessary under 2011 CRZ
Notification, the clearance already secured under 2011 CRZ
Notification would continue to remain valid notwithstanding
supersession thereof. This further clear from the provisions of Section 6
of the General Clauses Act which protects everything done under the
repealed Act. Section 6 of the General Clauses Act provides thus:-
6. Effect of repeal.–
Where this Act, or any Central Act or Regulation made after the
commencement of this Act, repeals any enactment hitherto made or
hereafter to be made, then, unless a different intention appears, the
repeal shall not–
(a) revive anything not in force or existing at the time at which the
repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or
anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued
or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of
any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid;
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and any such investigation, legal proceeding or remedy may be
instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed as if the repealing Act or Regulation had
not been passed.
78) In our view neither the saving clauses under 2011 and 2019
CRZ Notifications nor any provisions of General Clauses can be read to
mean that conditions imposed for grant of environmental clearance at
the time when came land came in CRZ area would continue to operate
and govern development of that land even after the land is kept outside
CRZ area by subsequent CRZ Notification. As observed above such an
interpretation would lead to an absurdity. To illustrate if any restrictive
construction activity was undertaken in pursuance of 1991 CRZ
Notification on a plot of land situated at a distance of 70 meters from
HTL of Mahim water body (on account of it not being declared Bay at
the relevant time), the restriction would continue to operate even after
the land is taken outside the purview of CRZ area on account of its
location beyond 50 meters from HTL of Mahim Bay under the 2019
CRZ Notification. Mr. Kalakia has appreciated this point and has fairly
conceded that the Petitioners do not wish to overstretch the contention
with regard to saving clauses to mean that every plot on landward side
would continue to be governed by CRZ restrictions notwithstanding the
relaxation granted under 2019 CRZ Notification. He has however
contended that the relaxation under the 2019 CRZ Notification, though
may be applicable to normal lands situated within the distance of 51 to
100 meters, the same cannot be made applicable to a reclaimed land.
Petitioners contend that a special dispensation needs to be read into the
2019 CRZ Notification to protect something which was never a land
and was reclaimed after seeking permission under 1991 CRZ
Notification. We proceed to consider this contention.
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reclaim land within tidal influenced water body for a permitted purpose
and then contend that the land so reclaimed falls outside CRZ on
account of its location at a distance beyond 50 meters from HTL. The
contention may appear to be impressive at the first blush, but is without
any basis. There is nothing in the 2019 CRZ Notification which
provides that the land reclaimed under previous CRZ Notifications shall
remain as reclaimed land forever and can never be developed. If the
intention of MoEF was to make a special provision in relation to land
already reclaimed, a specific restriction to that effect ought to have been
provided in 2019 CRZ Notification. The Notification on the other hand
does not make any conscious distinction between a ‘land’ and a
‘reclaimed land’. Every land, whether reclaimed or not, which is beyond
the defined CRZ area stands excluded from applicability of CRZ
restrictions.
80) It must be borne in mind that the CRZ Notifications apply
only to the defined area and have absolutely no application to land
falling outside the defined area. For applying the CRZ related
restrictions, the land needs to be included in CRZ area. Therefore, the
moment a land falls outside the defined CRZ area, no restrictions under
CRZ Notifications can be made applicable to such a land, even if the
land has been reclaimed by securing clearance under the previous CRZ
Notifications.
81) The Notifications issued under the provisions of the
Environment Protection Act, 1986 have been held to be subordinate
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pieces of legislations by the Apex Court in Vanashakti Versus. Union of
India10. A plain and literal reading of the 2019 CRZ Notification would
indicate that the same does not provide for any restriction in respect of
the land which was once reclaimed but now falls outside the CRZ area.
While interpreting the 2019 CRZ Notification, it would be
impermissible to import therein something which is not provided for. In
this regard, it would be apposite to make a useful reference to the
observations of the Apex Court in recent judgment in Vanashakti in
which it is held in para-26 as under :-
26. It is a settled principle of law that while interpreting any
legislation including a subordinate legislation, the first principle that
has to be adopted is the literal rule of interpretation. Applying literal
interpretation to the 2006 notification, it would be clear that said
notification does not provide for applicability of the General
Conditions to projects in Entry 8(a) and 8(b) of the Schedule. As
already observed hereinabove, wherever the delegated legislation
wanted the General Conditions to be made applicable it has been
specifically provided in column 5 of the projects/activities.
(emphasis and underlining added)
82) In Vanashakti, the challenge was to the Notification dated
29 January 2025 and Office Memorandum dated 30 January 2025
issued by MoEF amending the provisions of the EIA Notification dated
14 September 2006 on the ground that the same has the effect of diluting
the restrictions provided in 2006 EIA Notification. It was contended
that the general conditions were applicable to projects or activities
covered by entry no.(viii) of Schedule-II 2006 of EIA Notification,
which are illegally sought to be deleted vide Notification dated 29
January 2025.The Apex Court held in paras-18 and 19 of the judgment
that wherever the delegated legislation (2006 EIA Notification) required
application of general conditions, the Notifications specifically provided
10 Writ Petition (C) No. 166 of 2025 decided on 5 August 2025.
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for the same. It has further held that Entry Nos.8a and 8b did not
provide for applicability of general conditions but provide for
application of some other conditions.
83) Since the Apex Court has held in Vanashakti that the EIA
Notifications are delegated legislation, even the CRZ Notifications
issued under the same enactment (Environment Protection Act, 1986)
would also be delegated legislation. Therefore, the CRZ Notifications
also need to be literally construed and interpreted without reading into it
something which is not expressly provided for. If the lawmakers desired
that the reclaimed land should always be treated as CRZ area, a specific
provision to that effect would have to be made in the CRZ Notification.
There is nothing in 2019 CRZ Notification which provides that if a land
is reclaimed for construction of a bridge or sea link, such land would
always remain affected by CRZ restrictions irrespective of its location
from HTL. In the present case, the land which is reclaimed for
construction of Bandra Worli Sea Link now falls outside the distance of
50 meters from HTL of Mahim Bay and therefore is no longer part of
CRZ area. In absence of any specific provision in the 2019 CRZ
Notification applying the restrictions to a reclaimed land located outside
the defined CRZ area, we are unable to accept Petitioners’ contention
that the land reclaimed for construction of sea link would never fall
outside the CRZ area.
84) Once it is held that the land is no longer a part of CRZ area,
no restriction imposed at the time of its reclamation would continue to
operate after the land is taken outside the purview of CRZ area. If
contention of Petitioners is accepted, the conditions subject to which the
permission was granted under 1991 CRZ Notification would continue
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to operate in perpetuity, which is not the legislative intent. From the
historical background of issuance of the three CRZ Notifications, it is
seen that the restrictions have been relaxed from time to time. Earlier,
under the 1991 CRZ Notification, everything falling in the distance upto
500 meters from HTL was CRZ with some relaxation in respect of
rivers, creeks and back waters. The 2011 CRZ Notification reduced the
applicability of CRZ areas along the tidal influenced water bodies such
as bays, estuaries, rivers, creeks, back waters, lagoons, ponds connected
to the sea or creeks, etc. and declared lands falling within only 100
meters of HTL to be CRZ areas. The 2019 CRZ Notification further
relaxed application of CRZ restrictions to lands alongside tidal
influenced water bodies by reducing the distance to only 50 meters from
HTL. Thus, with issuance of successive CRZ Notifications, the land
which was earlier part of CRZ area, got excluded from CRZ area and
became available for development without any CRZ restrictions. As
discussed above land situated at distance of 70 meters from HTL of
Mahim Bay had CRZ related restrictions under the 2011 CRZ
Notification, but now falls outside CRZ area under 2019 CRZ
Notification. It cannot be contended that merely because the said plot
was previously under CRZ area, it must always continue to be under
CRZ area by ignoring the provisions of 2019 CRZ Notification.
Following this principle, if permission was required to be sought from
MoEF on account of location of the concerned land in the CRZ area as
per the 1991 CRZ Notification, the conditions imposed in such
permission would cease to apply the moment the land falls outside the
CRZ area.
85) CRZ Notifications are exception to the Development
Control Regulations formulated by the Planning Authority and
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sanctioned by the State Government. Even though a DCR may permit
use of a land for particular purpose and for carrying out of a
development activity thereon, if such land is affected by CRZ, the same
can be put to use strictly in accordance with the CRZ Notification. Since
the CRZ Notification is exception to the DCR, no restriction which is
not specifically provided for in CRZ Notification, can be applied for
restricting the development activities which are permissible under the
DCR. Therefore, what is not specifically provided for in the CRZ
Notification can neither be read into it nor can be inferred for the
purpose of restricting any particular activity. CRZ being a delegated
piece of legislation, the same must be strictly and literally construed and
interpreted and a restriction which is not specifically provided cannot be
read into the same. The 2019 CRZ Notification does not include a
reclaimed piece of land into CRZ area, which otherwise falls outside the
defined CRZ area.
86) Under the 2019 CRZ Notification, only four types of lands
enumerated in Para 1(i) to (iv) have been included in the ambit of the
term ‘Coastal Regulation Zone’ and every piece of land which is not
covered by the four items in para-1 of the 2019 CRZ Notification would
necessarily fall out of Coastal Regulation Zone. If law makers wanted to
include a land which has been reclaimed after seeking permission under
the 1991 or 2011 CRZ Notification as a separate class of land for being
included in Coastal Regulation Zone, the same would have been
specifically included in the list of Items enumerated in para-1 of the
Notification. Since this is not done, the land reclaimed after seeking
clearance under the 1991 or 2011 CRZ Notifications, which does not
form part of the four enumerated items in para-1 cannot be treated as
the one forming part of defined CRZ area.
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under the 2019 CRZ Notification, no restriction provided for in the said
Notification can apply to such piece of land. This is because the CRZ
Notification does not apply to land which is not Coastal Regulation
Zone. Therefore, CRZ Notification cannot be pressed into service for
the purpose of enforcing any restriction on any land which is not a part
of Coastal Regulation Zone.
88) Reliance by the Petitioners on conditions imposed by the
Secretary, Revenue and Forest Department in Memorandum dated 4
November 2016 or by Collector in allotment order dated 30 January
2017 is misplaced. The said conditions were imposed under an
impression that the transferred piece of land was a part of CRZ area
under the 2011 CRZ Notification which was then applicable. In any
case, the allotment orders issued by the Secretary or Collector cannot
decide the issue as to whether the concerned land is a part of CRZ area
or not.
89) We are therefore unable to accept Petitioners’ contention
that the land reclaimed for Bandra Worli Sea Link Project can never be
developed even though the same falls outside defined CRZ area.
D.9 PUBLIC TRUST DOCTRINE AND PRINCIPLE OF SUSTAINABLE
DEVELOPMENT
90) It is Petitioners’ contention that the proposed commercial
exploitation of the subject land violates the public trust doctrine. It is
contended that after having reclaimed land by making a representation
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that the same would be kept open as green belt/garden, it is
impermissible for MSRDC to take a volte-face and utilize the land for
commercial purposes. Reliance is placed on judgment of the Apex
Court in Karnataka Industrial Areas Development Board (supra) in
support of the contention that the public trust doctrine enshrines upon
the Government and its Instrumentalities a duty to protect public
resources such as the land and the sea for enjoyment of general public.
91) Petitioners have referred to the “green belt plan” submitted
by MSRDC while securing environmental clearance permission in
support of their contention that the reclaimed land was agreed to be
maintained as green belt. In our view, such a representation for
maintaining the reclaimed land as green belt made at the time at
securing 1999/2000 environmental clearance would not bind MSRDC
to maintain the reclaimed land as green belt forever. The representation
of green belt was required to be made on account of specific condition
imposed in 1999/2000 environmental clearances for not carrying out of
any residential or commercial development on the land. Now that the
land is outside the purview of CRZ, the said condition is no longer
applicable and therefore MSRDC cannot be held bound by the
representation for keeping the land as green belt.
92) The 2019 CRZ Notification has reduced the ambit of
defined CRZ area alongside the tidal influenced water bodies from 100
meters to 50 meters of HTL. Petitioners have not challenged the 2019
CRZ Notification in the present petitions. The said Notification relaxes
the restrictions on development of lands falling along tidal influenced
water bodies like Bays. The relaxation is granted following the principle
of sustainable development, where the need of protecting environment is
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balanced against the need of undertaking developmental activities.
Petitioners otherwise do not question grant of such relaxation. This
means that Petitioners do have objection to development activities on
lands falling within the distance of 50 to 100 meters from HTL of tidal
influenced water bodes. They however selectively seek to challenge the
impugned development activity undertaken by MSRDC. The objection
stems essentially on Petitioner’s belief that the land once reclaimed must
continue as open piece of land and cannot be used for development or
for residential or commercial use. However, what is pertinent to note
here is that the restriction on use of reclaimed land was imposed in the
environmental clearance dated 26 April 2000 because the land fell in
CRZ area at that point of time. As pointed out by Dr. Sathe, the
concerned land was actually outside CRZ area even in 1999/2000 if the
Mahim water body was to be identified as “bay” at that time. We
however are not delving deeper into this aspect which is being argued by
MSRDC to quell the notion that the land created by landfill activity into
the sea is being developed commercially by MSRDC. If the land was
outside the CRZ area, the project would not have required CRZ
clearance. The key therefore is whether the land falls in CRZ area or
not. If it does, CRZ clearance is necessary and all conditions granted
while granting CRZ clearance would continue to apply. However, the
moment the land falls outside CRZ area, there is no question of
application of conditions imposed when the land was part of CRZ area.
The object behind imposing various restrictions vide 1991, 2011 and
2019 Notifications is both to manage and conserve marine and coastal
ecosystem, as well as to regulate development activities in coastal areas.
In this regard, the two recitals of the 2019 CRZ Notification read thus :-
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Neeta Sawant PILs-22-2024 and 8224-2024-FCAnd Whereas, the Ministry of Environment, Forest and Climate
Change has received representations from various coastal States and
Union territories, besides other stakeholders, regarding certain
provisions in the Coastal Regulation Zone Notification, 2011 related
to management and conservation of marine and coastal ecosystems,
development in coastal areas, eco-tourism, livelihood options and
sustainable development of coastal communities etc.;
And Whereas, various State Governments and Union territory
administrations and stakeholders have requested the Ministry of
Environment, Forest and Climate Change to address the concerns
related to coastal environment and sustainable development with
respect to the Coastal Regulation Zone Notification, 2011;
93) Since sustainable development is one of the goals of
regulating activities in coastal areas through CRZ Notifications, once a
conscious relaxation is granted qua a particular activity by issuance of
new Notification in supersession of earlier Notification, such relaxation
must be allowed to fully operate without reading any restriction in the
same.
94) In para-31 of the judgment in Vanashakti (supra), the Apex
Court has emphasized the need for balancing developmental activities
while protecting environment and natural resources. It has been held in
paras-31to 34 as under :-
31. No doubt that the courts have consistently insisted upon protecting
environment and consistently held that the natural resources are held in trust
by the present generation for the future generations. However, at the same
time, the courts have also consistently taken into consideration the need for
developmental activities.
32. A country cannot progress unless the development takes place. As such,
this Court in a catena of decisions has adopted the principle of sustainable
development. Some of the notable decisions of this Court are Vellore
Citizens’ Welfare Forum v. Union of India2, Jagannath v. Union of
India3, Consumer Education & Research Society v. Union of
India4, Intellectuals Forum, Tirupathi v. State of A.P.5, Tata HousingPage No.61 of 68
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Neeta Sawant PILs-22-2024 and 8224-2024-FCDevelopment Company Limited v. Aalok Jagga6 and State of Uttar
Pradesh v. Uday Education and Welfare Trust7.
33. A reference in this respect can also be made to the recent judgment of this
Court rendered In Re: Zudpi Jungle Lands8, wherein all the earlier
judgments of this Court have been considered by a coordinate bench, to
which one of us (B.R. Gavai, CJI.) was a party. It would be apposite to refer
to paragraphs 117, 118 and 119 of the said judgment:
“117. Another aspect that needs to be considered is the balance between
environmental protection and the need for sustainable development. It
will be apt to refer to paras 87-88 of the judgment of this Court in the case
of State of Uttar Pradesh v. Uday Education and Welfare Trust, (2022
SCC OnLine SC 1469), which read thus:
“87. It cannot be disputed that Section 20 of the NGT Act itself
directs the learned Tribunal to apply the principles of sustainable
development, the precautionary principle and the polluter pays
principle. Undisputedly, it is the duty of the State as well as its citizens
to safeguard the forest of the country. The resources of the present are
to be preserved for the future generations. However, one principle
cannot be applied in isolation of the other.
88. It is necessary that, while protecting the environment, the need
for sustainable development has also to be taken into consideration
and a proper balance between the two has to be struck.”
118. Much prior to that, this Court, in the case of Vellore Citizens’
Welfare Forum v. Union of India, (1996) 5 SCC 647 : 1996 INSC 952,
had an occasion to consider the conflict between the development and
ecology. This Court observed thus:
“10. The traditional concept that development and ecology are
opposed to each other is no longer acceptable. “Sustainable
Development” is the answer. In the international sphere, “Sustainable
Development” as a concept came to be known for the first time in the
Stockholm Declaration of 1972. Thereafter, in 1987 the concept was
given a definite shape by the World Commission on Environment and
Development in its report called “Our Common Future”. The
Commission was chaired by the then Prime Minister of Norway, Ms
G.H. Brundtland and as such the report is popularly known as
“Brundtland Report”. In 1991 the World Conservation Union, United
Nations Environment Programme and Worldwide Fund for Nature,
jointly came out with a document called “Caring for the Earth” which
is a strategy for sustainable living. Finally, came the Earth Summit
held in June 1992 at Rio which saw the largest gathering of world
leaders ever in the history — deliberating and chalking out a blueprint
for the survival of the planet. Among the tangible achievements of the
Rio Conference was the signing of two conventions, one on biological
diversity and another on climate change. These conventions were
signed by 153 nations. The delegates also approved by consensus
three non-binding documents namely, a Statement on Forestry
Principles, a declaration of principles on environmental policy andPage No.62 of 68
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Neeta Sawant PILs-22-2024 and 8224-2024-FCdevelopment initiatives and Agenda 21, a programme of action into
the next century in areas like poverty, population and pollution.
During the two decades from Stockholm to Rio “Sustainable
Development” has come to be accepted as a viable concept to
eradicate poverty and improve the quality of human life while living
within the carrying capacity of the supporting ecosystems.
“Sustainable Development” as defined by the Brundtland Report
means “Development that meets the needs of the present without
compromising the ability of the future generations to meet their own
needs”. We have no hesitation in holding that “Sustainable
Development” as a balancing concept between ecology and
development has been accepted as a part of the customary
international law though its salient features have yet to be finalised by
the international law jurists.”
119. The principle of Sustainable Development as a balancing concept
between ecology and development has been accepted as a part of the
Customary International Law by this Court in various judgments
including S. Jagannath v. Union of India, (1997) 2 SCC 87 : 1996 INSC
1466, Consumer Education & Research Society v. Union of India, (2000)
2 SCC 599 : 2000 INSC 81, Intellectuals Forum, Tirupathi v. State of
A.P., (2006) 3 SCC 549 : 2006 INSC 101 and Tata Housing
Development Company Limited v. Aalok Jagga, (2020) 15 SCC 784 :
2019 INSC 1203.”
34. It is thus clear that the courts have taken a view that while development is
permitted to be undertaken, it is also required that a precaution is needed to
be taken so that the least damage is caused to the environment and ecology.
The courts have also insisted upon the mitigation and compensatory
measures so as to compensate the loss which is caused to the environment
and ecology on account of the damage that would be caused by the
developmental activities.
95) There is no challenge in the present Petitions to the 2019
CRZ Notification and in that sense, the public trust doctrine is not really
relevant and cannot be pressed into service for the purpose of reading
into the Notification, something which is not specifically provided for.
D.10 PRINCIPLE OF NON-REGRESSION
96) Ms. Bector has strenuously relied on the principle of non-
regression in support of her contention that any new provision relating
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to environmental law cannot be interpreted in such a manner that it
amounts to environmental destruction. Reliance is placed on judgment
of NGT in Society for Protection of Environment & Biodiversity Versus.
Union of India and others11. In our view, the principle of non-regression
does not have any application to a case where a undevelopable plot
becomes developable on account of its exclusion from CRZ area due to
relaxation in CRZ norms. The principle that the land once affected by
CRZ restrictions must always remain subject to CRZ restrictions would
lead to absurdity. Also, the principle of non-regression would have been
of some relevance if the Petitioners were to challenge the relaxation
granted under 2019 CRZ Notification. The principle prohibits the State
from reversing or weakening the existing standards of environmental
protection once they have been adopted. Since relaxation granted by the
2019 CRZ Notification is not under challenge, the principle of non-
regression cannot be cited for interpreting the 2019 CRZ Notification in
a manner which results in reading into the same something which is not
expressly provided therein.
D. 11 NON CHALLENGE TO OTHER DEVELOPMENT ACTIVITIES IN
RECLAIMED LAND
97) There is yet another interesting aspect suggesting selective
challenge by the Petitioners to the project undertaken by MSRDC for
commercial exploitation of the plot. Petitioners have not objected to
some portion of the land being used for development of cemetery. As
discussed while narrating the facts, out of gross area of the land of 57.44
Acres (2,32,465 sq.mtrs.) land admeasuring 29.44 Acres is earmarked
11 2017 SCC OnLine NGT 981
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Neeta Sawant PILs-22-2024 and 8224-2024-FC
for road, social amenities and gardens. Out of the balance land of 28
Acres, land admeasuring 24 Acres is earmarked for development and
balance 4 Acres land is earmarked for reservations as cemetery,
cremation ground, burial ground, health post, etc. under DCPR, 2034.
MSRDC has given the land used under the DCPR 2034 as under :-
SrNo Zone/Reservation Purpose Tentative Area
on sqm
1 Residential/Commercial Residential/Commercial 98,521.65
2 Road Road 73,693.19
3 Social Amenities
RSA 4.8 Cemetery 8,037.74
Cremation Ground
Burial Ground
4 RH1.1 Health Post 1,482.21
5 Open Space
2 Nos. DOS1.2 Public Walk 50,729.18
7 Nos. ROS1.5 Garden
4 Nos. DOS1.5 Garden
1 Nos.DOS2.7 Green Belt
Total 2,32,463.97
98) So far as the land reserved for use of cemetery is concerned,
the same has already been handed over to MCGM by MSRDC in
pursuance of various orders passed by this Court in PIL No. 101 of
2016. Petitioners are not objecting to part of the reclaimed land being
developed as cemetery by contending that no part of the reclaimed land
can ever be developed for any purposes.
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submitted by MSRDC to MoEF cannot lead to presumption that
condition No. (viii) of environmental clearance dated 26 April 2000
continues to apply. Under Condition No. (xvii) of environmental
clearance dated 7 January 1999 as amended on 26 April 2000, six
monthly monitoring report are required to be submitted regarding
implementation of the stipulated conditions. The six monthly
monitoring reports are submitted in a prescribed format by MSRDC and
there is nothing in the said reports for inferring that there is any
admission on the part of MSRDC about applicability of Condition No.
(viii) of environmental clearance dated 26 April 2000 even after the land
is taken out of purview of CRZ area. In any case, such six monthly
reports cannot decide the permissibility of development of the land in
question.
D.13 ENVIRONMENTAL CLEARANCE DATED 8 APRIL 2025
100) During pendency of the present PIL, MoEF has granted
environmental clearance to the project on 8 April 2025. The said
environmental clearance is required to be obtained on account coverage
of project under Item 8(a) of the EIA Notification, 2006. Mere condition
in the EC that project proponent shall obtain necessary CRZ clearance
from competent authority is not sufficient to infer that such permission
is necessary in law. The EC dated 8 April 2025 is only on account of the
size of the land exceeding the prescribed limit under Item 8(a) of EIA
Notification, 2006. Since the subject plot falls outside the CRZ area, it is
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not necessary for the MSRDC to secure separate clearance from
MCZMA.
D. 14 WHETHER DEVELOPMENT OF LAND CAN BE UNDERTAKEN
BY MSRDC
101) Petitioners in PIL (L) No. 8224 of 2024 have raised an
objection that MSRDC cannot undertake the activity of commercial
exploitation of the subject plot on account of its activity being mainly
restricted to construction of roads. MSRDC is an Instrumentality of
State and requires funds for undertaking various projects relating to
construction of roads, bridges, etc. The State Government has
transferred the land in question to MSRDC and transfer of the land by
the State Government to the MSRDC has not been challenged. Once
the MSRDC has become owner of the land in question, it is for
MSDRC to decide its use and exploitation. The activity of development
of the land in question undertaken at the instance of MSRDC cannot be
set aside by holding that MSRDC cannot do anything beyond the
activity of construction of roads. Since the main point raised in the
Petition about permissibility to develop reclaimed land is answered in
the affirmative, we are not inclined to enteratin the debate about who
can carry out such development. The reclaimed land was in the
ownership of the State Government. Once it became developable, it is
for the State Government to decide about the exact State Agency which
can carry out the development. In the present case, since the land has
been made available on account of construction of Sea Link by
MSRDC, the State Government has decided to transfer ownership of
land in favour of MSRDC for the purpose of developing the same. We
therefore cannot see any illegality in MSRDC undertaking development
of the land in question.
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view that Petitioners have failed to make out a valid ground of challenge
to development of the subject plot at the instance of MSRDC. Both the
petitions are devoid of merits. They are accordingly dismissed.
However, considering the facts and circumstances of the case, there
shall be no order as to costs.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.08.26
21:04:47
+0530
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