Case Note & Summary
The writ petition arose from a solid waste management project established by the Municipal Corporation of Greater Mumbai at Kanjur Marg, Mumbai. The Ministry of Environment and Forest granted environmental clearance on 17 March 2009 with specific terms and conditions. Two public interest litigation petitions challenged the clearance, leading to court-directed inspections and a show cause notice issued by the Ministry on 25 July 2013 to MCGM for non-compliances. By order dated 4 November 2013, the Ministry directed MCGM to demolish a compound wall constructed in the Coastal Regulation Zone and mangrove-affected area, while permitting replacement with live or barbed wire fencing. MCGM complied with all other directions but challenged the demolition direction in the Bombay High Court under Article 226. MCGM also initially challenged interim orders of the National Green Tribunal in an appeal filed by the NGO Vanashakti, but that appeal became infructuous and the challenge was withdrawn. MCGM argued that the construction of the compound wall in 2010 did not require prior approval under the EIA Notification 2006, that the environmental clearance impliedly approved the wall as an allied facility referenced in project reports and public hearing minutes, and that the Ministry's order was vitiated by non-application of mind because it referred to an inapplicable CRZ Notification 2011. The High Court found no merit in MCGM's contentions, holding that any construction in the CRZ area required prior approval, which was not obtained, and that the environmental clearance did not cover the compound wall as it was not part of the approved site layout and extended beyond the project area. The Court held that the Ministry had jurisdiction under Section 5 of the Environment (Protection) Act, 1986 to issue corrective directions, and judicial review under Article 226 is limited to examining jurisdictional errors. Consequently, the writ petition was dismissed, and the Ministry's direction to demolish the compound wall was upheld.
Headnote
A) Environmental Law - Coastal Regulation Zone - Prior Approval - Environment (Protection) Act, 1986 Section 5; CRZ Notification - The construction of a compound wall in CRZ area requires prior approval from the Ministry of Environment and Forest or State Agency under the Environment (Protection) Act, 1986. MCGM argued that approval was not needed under EIA Notification 2006, but the direction for demolition of unauthorized construction in CRZ was held to be within MoEF's jurisdiction. (Paras 1-8)
B) Environmental Law - Interpretation of Environmental Clearance Conditions - Allied Facilities - MCGM contended that the compound wall was an 'allied facility' covered by Clause 5(ii) of the Environmental Clearance dated 17 March 2009, and that the project report and public hearing minutes implied approval. The court found that the EC and site layout did not include a compound wall, and the wall extended into CRZ area without prior approval, thus not covered by the clearance. (Paras 8-8)
C) Environmental Law - Judicial Review - Non-Application of Mind - Constitution of India Article 226 - MCGM alleged that the MoEF order suffered from non-application of mind by reference to Annexure III of CRZ Notification 2011 which was not in existence at the time of EC grant. The court held that such reference did not vitiate the order as the core finding of unauthorized construction in CRZ remained valid, and judicial review under Article 226 is limited to jurisdictional errors. (Paras 8-8)
Issue of Consideration
Whether the MoEF's direction to demolish the compound wall constructed in the Coastal Regulation Zone area was legal and valid under the Environment (Protection) Act, 1986 and the terms of the environmental clearance.
Final Decision
The Bombay High Court dismissed the writ petition and upheld the validity of the MoEF's direction to demolish the compound wall.
Law Points
- Construction in Coastal Regulation Zone requires prior approval
- Environment (Protection) Act 1986 Section 5 empowers directions for violations
- Environmental Clearance conditions must be strictly complied with
- Judicial review under Article 226 limited to jurisdictional errors
Case Details
2016 LawText (BOM) (06) 51
Writ Petition No. 1720 of 2014
D. H. Waghela, C.J., M. S. Sonak, J.
S. U. Kamdar, Ms. Komal Punjabi, Mr. U. H. Kedar, Ms. Gayatri Singh, Mr. Zaman Ali, Mrs. S. U. Deshmukh, Ms. Rupali Dixit, Mr. B. H. Mehta, Mr. J. S. Saluja, Mr. M. M. Chuniwala, Mr. D. R. Shah, Mr. Saket Mone, Mr. Subit Chakrabarty, Mr. Vishesh Kalra
Municipal Corporation of Greater Mumbai
National Green Tribunal Western Zone Bench, Pune; Vanashakti Public Trust; Dayanand Stalin; Maharashtra Pollution Control Board; Maharashtra Coastal Zone Management Authority; State of Maharashtra; Principal Secretary Department of Environment; Principal Secretary (Forest); Principal Secretary Department of Urban Development; Union of India; Antony Lara Enviro Solutions Pvt. Ltd.
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Writ petition under Article 226 of the Constitution of India challenging the order/directions of the Ministry of Environment and Forest to demolish a compound wall in a CRZ area.
Remedy Sought
MCGM sought to quash the impugned directions for demolition of the compound wall.
Filing Reason
MoEF directed demolition of compound wall on grounds of construction without prior approval and non-compliance with terms of environmental clearance.
Previous Decisions
MoEF issued directions under Section 5 of Environment (Protection) Act, 1986 on 4 November 2013 after show cause notice; MCGM complied with other directions except demolition. National Green Tribunal had passed interim orders in Appeal No.1/2014, but the appeal became infructuous and writ petition against those orders was withdrawn.
Issues
Whether the MoEF had jurisdiction to direct demolition of the compound wall constructed in the CRZ area.
Whether the compound wall was covered under the Environmental Clearance dated 17 March 2009.
Submissions/Arguments
Construction of compound wall in 2010 did not require approval under EIA Notification 2006; MoEF direction ultra vires.
Compound wall was approved under EC dated 17 March 2009, expressly or impliedly through Clause 5(ii) permitting allied facilities, project report references, and public hearing minutes.
MoEF order vitiated by non-application of mind due to reference to inapplicable CRZ Notification 2011 Annexure III.
Demolition would cause hardship and violate Article 14 as similar walls exist in other projects.
NGT lacked jurisdiction over the matter.
Ratio Decidendi
MoEF has power under Section 5 of the Environment (Protection) Act, 1986 to issue directions for violation of environmental clearances; construction in CRZ area requires prior approval and not covered under a general EC for the project; judicial review under Article 226 limited to jurisdictional errors.
Judgment Excerpts
The challenge in this petition is to the order dated 4 November 2013 made by the Ministry of Environment and Forest (MoEF) to the extent it directs the demolition of the compound wall within the Coastal Regulation Zone (CRZ) area and the area affected by the mangroves, whilst granting liberty to replace the same with live/barbed wire fencing with vegetative cover.
The impugned directions are vitiated by non application of mind, inasmuch as it refers to annexure III to CRZ notification 2011, which was not even in existence when EC dated 17 March 2009 was granted for the said project at the said site.
Procedural History
17 March 2009 - MoEF granted environmental clearance for solid waste management project at Kanjur Marg. 2012-2013 - PILs filed in Bombay High Court challenging clearance; court directed inspection. 25 July 2013 - MoEF issued show cause notice to MCGM. 4 November 2013 - MoEF issued directions under Section 5 of Environment (Protection) Act, including demolition of compound wall. MCGM filed Writ Petition No. 1720/2014 challenging the demolition direction. Concurrently, National Green Tribunal Appeal No.1/2014 was filed by Vanashakti seeking revocation of clearance, and NGT passed interim orders. MCGM and contractor challenged NGT orders in separate writ petitions. Later, MCGM withdrew challenge to NGT orders as the appeal became infructuous. The challenge to the demolition direction alone survived. 10 June 2016 - Bombay High Court dismissed the petition.
Acts & Sections
- Environment (Protection) Act, 1986: 5
- Constitution of India: 226
