IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. _______ OF 2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
VICE ADMIRAL I.C RAO
PVSM AVSM (Retd.) AND ORS …PETITIONERS
VERSUS
UNION OF INDIA & ORS …. RESPONDENTS
Bar & Bench (www.barandbench.com)
Synopsis
1. This Public Interest Litigation petition has been filed under Article
32 of the Constitution to challenge the construction of the
Chatrapati Shivaji Maharaj Memorial along with an equestrian
statue of Chatrapati Shivaji Maharaj in the Arabian Sea off the
coast of Mumbai, Maharashtra by the Public Works Department,
State of Maharashtra (hereinafter referred to as the “proposed
project”).
Notices Issued in two Companion Matters
2. At the outset, petitioners state that against an interim order of
the High Court declining to grant interim relief, two petitioners
before the High Court namely- Conservation Action Trust and
Prof. Shweta Wagh filed SLP(C) No31997 of 2018and SLP (C) No.
9043/2019 respectively. On 11 Jan 2019 the Supreme Court
made the following order in SLP (C) No. 31997 2018:
“ITEM NO.17 COURT NO.1 SECTION IX
S U P R EME C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S).
31997/2018
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND
ORDER DATED 02-11-2018
Bar & Bench (www.barandbench.com)
IN PIL NO. 58/2017 PASSED BY THE HIGH COURT OF
JUDICATURE AT BOMBAY)
CONSERVATION ACTION TRUST & ANR. PETITIONER(S)
VERSUS
UNION OF INDIA & ORS. RESPONDENT(S)
(FOR ADMISSION AND I.R.)
Date: 11-01-2019 This petition was called on for hearing
today.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
For Petitioner(s) Mr. C.U. Singh, Sr. Adv.
Ms. Madhusmita Bora, AOR
Mr. B.D. Vivek, Adv.
Mr. Pawan Kishore Singh, Adv.
For Respondent(s)
Mr. Nishant Ramakantrao Katneshwarkar, AOR
UPON hearing the counsel the Court made the following
O R D E R
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Heard the learned counsel for the petitioners and perused
the relevant material.
Issue notice.
[VINOD LAKHINA] [ A N A N D
PRAKASH]
AR-cum-PS BRANCH OFFICER”
3. On 01.04.2019, this Hon’ble Court made the following
order in SLP (C) No 9043/2019
“ITEM NO.24 COURT NO.1 SECTION IX
SUPREME COURT OF INDIA RECORD OF PROCEEDINGS
SPECIAL LEAVE PETITION (CIVIL) Diary No.6890/2019
(Arising out of impugned final judgment and order dated
02-11-2018 in PIL No. 8/2018 passed by the High
Court of Judicature at Bombay)
MS. SHWETA WAGH & ORS. ...Petitioner(s)
VERSUS
UNION OF INDIA & ORS. … Respondent(s)
(With appln.(s) for c/delay in filing SLP, exemption from
filing c/c of the impugned judgment and interim
relief)
Bar & Bench (www.barandbench.com)
Date : 01-04-2019 This petition was called on for hearing
today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK GUPTA
HON'BLE MR. JUSTICE SANJIV KHANNA
For Petitioner(s) Ms. Aparna Bhat, AOR Ms. Shivangi Singh,
Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
ORDER
Delay condoned.
Issue notice.
Tag with S.L.P.(C) No.31997 of 2018.
(Chetan Kumar) (Anand Prakash)
A.R.-cum- P.S. Court Master”
Grounds of Challenge to the Project in the Present Petition
A. Grave doubt whether the soil/rock can sustain the
structure
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4. According to the Government of Maharashtra, itself a potentially
fatal flaw in the design of the project has emerged in that the
technical assessments regarding the capability of the
subterranean soil/rock to sustain the 8 lakh tons structure is
gravely in doubt. The two contradictory reports are that of IIT
Bombay dated 30.4.2014 and Larsen and Toubro report dated
08.08.2018. On perusing these two reports, Government of
Maharashtra found contradictory and inconsistent findings and
sought to get clarifications from IIT Bombay vide letter dated
24.09.2018, but no reply was provided. This letter dated
24.09.2018 is set out herein below in its entirety.
“Government of Maharashtra
Public Works Department
Office of the Executive Engineer
Chhattrapati Shivaji Maharaj Smarak Project Division,
Cuff Parade, Colaba, G.D. Somani Marg, Near Jhulelai
Temple, Mumbai, 400005
To,
Dr. Eldho T.I.,
Telephone No.
022-22184429,
022-22184811
Email id: -
No/CSMMP/PB-3/722 Date: 24/09/2018
Bar & Bench (www.barandbench.com)
Institute of Chair Professor & Head, Department of Civil Engineering, Indian Institue of Technology Mumbai- 400076
Sub:- Construction of Chhatrapati Shivaji Maharaj
Memorial in the Arabian sea at Mumbai (India)
Serious mistakes pointed out by M/S.Apali
Mumbai in IIT-B Geotech report 2014 and
disparity between rock strata found in
geotechnical report by IIT-B in 2014 and
Interim geotechnical report by M/s. L&T Ltd. In
August 2018 at the project site.
Ref:-
1. Work Order No. EEIU/PB/08-A, dated
16/01/2014 issued to Prof. P.M. Mujumdar,
Dean, R&D, IIT-B.
2. Work Order No.EE/IUPB/108, dated
16/01/2014 issued to Prof.Mr.A.G.Kazi, Pioneer
F o u n d a t i o n
Engineers
3. Work Order No. EEUPB/653, dated
03/05/2014 issued to Prof. Mr.A.G. Kazi, Pioneer
F o u n d a t i o n
Engineers.
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4. Letter from M/s. Aapli Mumbai bearing
No.NIL, dated 30 07/2018 addressed to Dean,
R&D, IIT-B and copied to Chief Engineer, (P.W.)
Region, Mumbai
5. This office letter No. CSMMP/PB-3/535,
dated, 01/08/2018.
6. Email from Dr. T.N. Singh, dated
07/08/2018.
7. M / s . L & T L t d . l e t t e r N o . S i t e
LTCD/018041/0004, dated 08/08/2018.
(Interim geotechnical report).
Sir,
Please find enclosed herewith all copies of referred
letters / reports.
2.This to inform you that the Geotechnical
investigation work in respect of the subject project
had been entrusted to IIT-B under esteemed
consultancy of Dr. T.N. Singh (Ref. No.1) for which
the advanced payment of about Rs,81.90 Lakhs made
to IIT-B for the scope listed in the quotation provided
by IIT-B
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3. Then the Contractor M/s. Pioneer was appointed
on recommendation of IT-B by PWD (Ref.No.2) for
carrying out actual geotech investigation work at the
project site and the geotechnical report of the
contractor for bores having about 30 meter bore
depth, was submitted by the contractor which
appears to have been forwarded by IIT-B with
signature of Dr.T.N.Singh thereon. The payment of
about Rs.100 Lakhs has been made to the contractor
or recommendation of IIT-B.
4. It was further advised by IIT-B that additional 3
nos. of bores of 60 meters depth were required to be
taken on account of increase in height of statue from
earlier 94 meter to 192 meter at the point of time.
Therefore work order (Ref.No.3) for additional work
was placed to the same contractor and payment of
about Rs .58 Lakhs was made to h im on
recommendations of IIT-B. 5.Lately, Aapli Mumbai,
NGO collected the above mentioned documents from
this office through RTI and pointed out that geotech
report of the concerned contractor having 3 bores of
having 60 meter bore depth and comprehensive
report of IIT-B for the scope given to them were not
found in office record.
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6. M/s. L&T Ltd. has been awarded the contract for
construction of Chhatrapati Shivaji Maharaj Memorial
and they commenced the geotechnical investigation
work at the project site in the month of April 2018
and the work had to be suspended due to monsoon.
They could complete total 17 nos. of bores at site,
out of which 2 nos. of bore having 100 meters depth
below statue location itself and the rest 15 bores of
15 to 30-meter depth for marine works were taken. It
was found necessary to compare the rock strata met
with during investigation so far done by M/s. L&T Ltd.
with geotechnical investigation done by IIT in year
2014.
7. Since the reports mentioned under para 2 & 4
were not traceable and they were required for the
purpose described in para 5 & 6 above, Prof.
Dr.T.N.Singh was requested by this office to furnish
the duplicate copies of the geotechnical investigation
reports for 60 meter bore depth and separate
comprehensive report of IIT-B for the given scope
vide reference No.5.
8. But on 01/01/2018 (Ref.No.6), he informed to this
office about his inability and difficulty to provide the
duplicate copies of the precious geotechnical
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investigation reports in respect of Work order under
ref No.1 to 3 placed on which the total expenditure of
about Rs.2.40 crore was already incurred by the
government to ascertain the competency of the
project site for construction of this prestigious
internationally acclaimed world tallest statue.
9. In the meanwhile, this office received a copy of
letter written to Prof. P.V. Balaji, Dean, R&D, IT-B
from Aapli Mumbai (RefNo.4). By this letter, Aapli
Mumbai revealed major mistakes in the report of 1
nos. of bores having about 30 meter bore depth
prepared by M/s. Pioneer and forwarded by Prof
T.N.Singh, on behalf of IT-B. The nomenclature of
rock stratification is found to be boulders, breccia,
marine soil, slate, fractured basalt and cobalt basalt
etc. However, Mr. Manish Joshi, geologist from M/s.
Pioneer who involved in supervision and preparation
of geotechnical report at project site in year 2014
was contacted by this office and he confirmed from
his records and conveyed that cores for 3 bore hole
of 60-meter depth were taken by them and it
revealed the rock stratification same as for 30-meter
depth bore ic. compact basalt extended to 60-meter
depth.
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10. Or late, M/s. L&T Ltd. vide reference No.7
submitted to this office an interim geotechnical report
for the investigation carried out by them at the
project site which comprises predominantly "Valcanic
Tuff" interbedded with shale that is weaker than
compact basalt as reported by IIT-B in year 2014.
Also, M/s. L&T Ltd. has reported that they don't find
much similarity in their report and available IT-B
report of 30 meter bore depth floated in the tender of
this subject project.
11.Looking to the disparity revealed between the rock
strata exhibited in available IIT-B report 2014 with
this office and interim report by M/s. L&T Ltd in
August 2018, It is found imperative to have
immediate through examination of IIT-B reports in
relation to interim report of M/s. L&T Ltd. for
founding this prestigious statue at the subject project
site.
12. In view of above, and in urgency of this
important project and in order above stated crucial
issue of disparity between rock stratification in both
reports, it is requested to your goodself to look into
the matter immediately for the followings.: -
Bar & Bench (www.barandbench.com)
(1) Critically examine the geotechnical reports of IIT-
B in relation to interim geotech report of M/s L&T Ltd
(2) Provide duplicate copies of comprehensive
geotechnical consultancy report of IIT-B as requested
vide reference No.5.
(3) provide the clarification to the mistakes
pointed out vide reference No.4 Mumbai at an early
date.
It is requested to note that the subject work at the site
cannot be commenced, unless and until this crucial issue of
disparity found in rock strata in IIT-B Ltd. report and M/s.
L&T report is resolved at an early date
Please do the needful as requested above at the earliest.
Executive Engineer.
Encl:- All referred letters with reports. CSMMject Division,
Mumbai
Copy submitted to Hon. Secretary. (Building), PWD,
Mantralaya, Mumbai for information and necessary
directions in this regard.
Copy submitted to Chief Engineer, (P.W.) Region, Mumbai
for information and for necessary directions in this regard.
Bar & Bench (www.barandbench.com)
Copy submitted to Superintending Engineer, Mumbai
Construction Circle, Chembur, Mumbai for information and
necessary directions in this regard.
Copy to Deputy Engineer, CSMMP Sub Dn.1/2, Cuff Parade,
Mumbai for information and necessary action.
Copy to M/s.Egis India Consulting Engineers Pvt.Ltd. for
information and necessary action.
2/- It is requested to note that despite several requests,
since LOA of this work issued you failed to deploy senior
geologist and geotechnical engineer. As a result, this office
is deprived of the expert advice from PMC in this regard.
Therefore the appointments as desired be made
immediately and CV with supporting documents including
master degree or Ph.D qualification of geologist and
geotechnical engineer please be submitted at the earliest
and amine the aforesaid matter thoroughly and submit the
report with your expert comment at the earliest.
Copy to M/s. Aapli Mumbai, C, Block A, Harbour Heights, N.
A. Sawant Marg, Colaba, Mumbai 400 005 for information.”
5. The Petitioners submit that the capability and strength of the rock on
which the statue will rest is fundamental to the project and unless it
is technically resolved with absolutely no ambiguity, the project
should not go ahead. In layman’s terms, IIT Bombay found the rock
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to be Basalt, whereas L&T found the rock to be Shale. Shale is much
weaker than basalt. If the finding of L&T is correct, the structure
ought not to be constructed on weak rock, notwithstanding the
assurances of the Consultants that left even the State Government
unconvinced. It cannot be that two reputed agencies will arrive at
two different findings in respect of the same location.
B. Erratic IIT Bombay Report.
The Arm and Sword of the Statue weighing 9200 tonnes makes the
statue unstable
6.The IIT Bombay report dated 23.08.2016 was found to contain
multiple errors. For example at page 7 of the report the column
giving figures for bending moment capacity and sheer load
capacity was found to be identical, which cannot be because
these two parameters are completely different measurements.
Given below is the relevant table:
Mem
-ber
C o n n -
ection
Lengt
h (m)
Oute
r
Rad .
(m)
Thic-
knes
s
Mc (kNm) Md (kNm) Sc (kNm) Sd (kNm)
1 1-2 50 2 1 1.47E+00
6
1.09E+00
6
1.47E+00
6
5.45E+00
4
2 2-6 33.8 4 1.5 1.06E+00
7
9.47E+00
6
1.06E+00
7
3.99E+00
5
3 3-6 22 5.5 0.1 2.31E+00
6
1.26E+00
6
2.31E+00
6
1.33E+00
5
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4 6-7 16 4.5 0.08 1.24E+00
6
8.24E+00
5
1.24E+00
6
9.53E+00
4
5 6-9 14 5 2.5 2.30E+00
7
2.07E+00
7
2.30E+00
7
9.72E+00
5
6 9-12 43.9 1.5 0.6 5.77E+00
5
5.42E+00
5
5.77E+00
5
1.12E+00
4
7 9-11 20 10 0.4 2.96E+00
7
2.29E+00
7
2.96E+00
7
1.17E+00
6
8 16-22 40 5 0.15 2.82E+00
6
1.97E+00
6
2.82E+00
6
9.84E+00
4
9 11-16 20 5 0.4 6.96E+00
6
5.74E+00
6
6.96E+00
6
1.81E+00
5
10 11-15 10 10 0.4 2.96E+00
7
2.10E+00
7
2.96E+00
7
1.47E+00
6
11 15-19 9 10 0.7 4.95E+00
7
4.75E+00
7
4.95E+00
7
2.83E+00
6
12 18-19 30 5 0.1 1.91E+00
6
0.00E+00
0
1.91E+00
6
2.60E+00
5
13 19-20 21 10 0.8 5.57E+00
7
5.45E+00
7
5.57E+00
7
1.91E+00
6
14 19-21 37.5 5 0.1 1.91E+00
6
0.00E+00
0
1.91E+00
6
9.21E+00
5
15 21-24 24.2 5 0.1 1.91E+00
6
0.00E+00
0
1.91E+00
6
1.47E+00
6
16 20-23 19 10 1 6.75E+00
7
6.40E+00
7
6.75E+00
7
3.77E+00
6
17 18-23 50 6 0.2 5.83E+00
6
5.20E+00
6
5.38E+00
6
7.86E+00
4
18 14-15 30 10 0.4 2.96E+00
7
2.38E+00
7
2.96E+00
7
1.09E+00
6
19 14a-14 20 10 0 . 0 0
5
3.92E+00
5
- 3 . 7 6 E
+006
3.92E+00
5
1.75E+00
5
20 14a-17 13.45 1.5 0.09 1.45E+00
5
1.26E+00
5
1.45E+00
5
1.87E+00
4
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7. The Petitioner no. 1 herein wrote an email dated 18 May 2018 to IIT
Bombay, stating as under:
“18 May 2018
To
Prof Siddhartha Ghosh
Dept of Civil Engineering
Indian Institute of Technology
Mumbai 400076
Subject: Structural Stability of the proposed
Chatrapati Shivaji Maharaj Memorial in Arabian sea
near Marine Drive
IITB Job No. DRD/CE/SG-4/15-16
Project Code 16CE033
Dear Prof Ghosh,
Apli Mumbai is a NGO established in June 2016
working on issues relating to regeneration of
Mumbai’s PortLands.
21 10-14 22.3 2.5 0.06 2.84E+00
5
2.69E+00
5
2.84E+00
5
6.40E+00
5
22 10-13 18 2.5 0.04 1.92E+00
5
- 1 . 4 8 E
+005
1.92E+00
5
1.65E+00
6
Bar & Bench (www.barandbench.com)
We have obtained through an application under RTI
Act, a copy of your report, Job No. DRD/CE/
SG-4/15-16.
We notice that in Table 1 the results in column under
Mc and Sc are the same.
We presume this is an error in printing and we will be
grateful if column Sc is revised and the revised results
are communicated to us either by letter, or email to
apliportlands @gmail.com or to phone 9820237595
on whatsapp or sms.
With our best regards
IC Rao”
8. Petitioner no. 1 received an astonishing reply dated 18.06.2018 to
its email as under:
“Dear Smt Gaikwad,
Recently an error has been pointed out to me on the
report that I had submitted to you in Aug 2016 on
the structural analysis of the proposed Chatrapati
Shivaji Maharaj memorial. In that report a column of
data (Mc) got copied to another (Sc) by mistake in
Table 1. I apologise for this unforeseen error.
Bar & Bench (www.barandbench.com)
I am submitting with this email a revised report
where the correct Sc (Shear capacity) values are
reported in Table !. The conclusions of the analysis do
not change from the previous report.
Kindly acknowledge a receipt of this report
Best Regards
Siddhartha”
9. When the author of the report was called for a meeting with the
government, he submitted a completely new report dated
24.07.2018 calling it a revised report and sent the following
explanation:
“ From: Siddhartha Ghosh
Date: Tue, Jul 24, 2018 at 11:37 AM
Subject: Revised Report on the Structural Stability of
CSMM Statue
To: Executive Engineer CSMMPD
Cc:
Dear Sir/Madam,
Bar & Bench (www.barandbench.com)
I am sending with this mail a revised report on the
structural analysis of the proposed Chhatrapati Shivaji
Maharaj Memorial.
I went through our structural calculations again and
found one unit conversion error. Going back to the
calculations allowed me to redo theanalysis. The
revised report presents additional details on the
considerations, assumptions, and calculations. The
overall findings of the report remain unchanged. The
most significant change from the previous report can
be noted in the thickness of individual sections in
Table 1. However, I would request your team to go
through the whole report for a better understanding
of the outcomes and how we have arrived at these.
Kindly acknowledge the receipt of this mail. I will be
happy to clarify any query on this report and the
calculations.
Regards,
Siddharth”
10. The Petitioner no. 1, and other experts, after going through the
revised report found several fundamental flaws and addressed
the letter dated 29.07.2018 to IIT Bombay with enclosure 1
Bar & Bench (www.barandbench.com)
which is at Annexure P-34 at (page ____ to ____) and the
relevant part is as under:
“You have assumed that the dimensions of the sword will
be length 50 m, outer radius 2m and thickness 1m. The
weight of such a steel cylinder works out to 3600 Tons!
Assuming that the design will use a light space truss for the
sword it could be at least 1200 Tons. The arm dimensions
are length 33.8m outer radius 4m, thickness 1.5m which
works out to 8000 Tons. These sizes are untenable”
11. Through the aforementioned letter, the Petitioner no. 1 pointed
out that the arm and the sword itself will weigh 8000+1200
Tons, a total of 9200 Tons. This according to the petitioner was
an untenable structure.
C. Wind Tunnel Test Not Done
12. The Indian Standard: Code of Practice for Design Loads [IS:
875(part 3) 1987] governs the design of the present structure.
After consulting a structural engineer of repute, the petitioner no.
1 addressed a letter dated 30.01.2019 calling upon the
Government to insist on a Wind Tunnel Test to be performed
prior to accepting the design of the structure. This letter is set
out herein below:
“30 Jan 2019
To
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Chief Engineer, (Mumbai and Special Projects) PWD
4th Floor, Bandhkam Bhavan
Murzban Road
Fort, Mumbai, 400001
Sub: Structural Stability of
Chatrapati Shivaji Maharaj Memorial site in Arabian
Sea
Sir,
We have consulted structural engineers regarding
the stability of the statue structure of the proposed
Chatrapati Shivaji Maharaj Memorial based on the
concept design included in the Contract agreement
dated 28 Jun 2018 and their views are in the
succeeding paragraphs.
There is no doubt that the design of this structure
is governed by wind engineering, especially the
40m long sword. The design of the sword will be
driven by dynamics. The structural codes in general
will not alone determine the design of this element
due to the characteristics of the dynamic
properties.
All reputed International wind codes, including the
Indian Standard “Code of Practice for Design Loads
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for Buildings and Structures IS 875 part 3 – Wind
Loads”, stipulate that more advance studies are
required including wind tunnel testing for structures
that fall in the following category:
1. Height to min plan dimension ratio (slenderness
ratio) exceeds 5
2. The fundamental frequency of the structure/
element is less than 1Hz.
The structural engineers suggest that the proposed
sword concept design comes within the purview of
both of the above criteria by a significant margin.
The slenderness ratio as shown in the Concept
Design exceeds 16. Therefore there is no doubt
that a thorough study supported by wind tunnel
testing is a minimum requirement. All international
wind codes also have such a clause.
We therefore urge that the structural safety of the
concept design be analysed on the basis of wind
tunnel tests, and only if found satisfactory may any
further construction work be progressed.
Yours faithfully
IC Rao
President, APLI Mumbai
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Enclosure IS : 875 (part 3) 1987 (reaffirmed 2003)
pages 1,5,47,48,49”
13. There was no reply to the letter of the Petitioner. Enquiries made
by the Petitioner no. 1 revealed that since payments were
outstanding, nothing further could be done.
D. Boats cannot lawfully ply to the Statue
14. Petitioner no. 1 pointed out after taking expert opinions of six
Master Mariners that for passenger boats to ply between the
Gateway of India and the proposed statue, the boats will
necessarily have to cross Maritime Base Line (See map at
Annexure P- 5 at (page ____ to ____)). This will require
registration of passenger boats under the Merchant Shipping Act
or certification by the Indian Register of Shipping. The
implications of such registration are formidable. First, additional
navigation equipment as for seagoing ships will need to be
installed. Second, Additional life saving equipment will need to be
installed. Third, the boat will have to be certified for strength and
stability to withstand higher wave heights. The considerable
implications of building the structure outside the Maritime Base
Line which will require special kind of boats to approach the
structure is set out by an opinion given by 6 Master Mariners
which is set out herein below:
“To Whomsoever it May Concern
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I am a Master Mariner with knowledge of the sea
conditions off the west coast of Mumbai island. With
due regard to the safety of the general public, I do
not approve of the establishment of a passenger
boat service from any landing points to the site of
the Chatrapati Shivaji Maharaj memorial at Lat 18
deg 55’33” N and Long 72 deg 47’25” E
The reasons for my disapproval are as follows
1. The western side of the island of Mumbai is
open to the sea and mariners have not used this
stretch of water for local passenger transportation
over the last 3 centuries for good reason. For three
months of June, July and August, monsoon
conditions prevail with waves of height of 5m
breaking as they encounter the shallow depths along
the coast. During this period, no civilian passenger
boat can even dare to approach the proposed site of
the Chatrapati Shivaji Maharaj memorial at Lat 18
deg 55’33” N and Long 72 deg 47’25” E
2. Any attempt by a passenger boat to approach
the island during the three monsoon months will
lead to destruction of the boat and its inmates.
Bar & Bench (www.barandbench.com)
3. In the month of March winds increase as a
precursor to the monsoon. The days of high wind
occur without warning and hence no passenger boat
can ply safely along the west coast of Mumbai
island.
4. In the months of April and May a swell builds
up on several days without warning. The swell
abeam ( across the line of transit) can cause small
boats to roll excessively, and make it impossible to
ferry passengers. There is a risk of passenger boats
capsizing due to passengers getting alarmed under
critical conditions.
5. Dur ing September and October deep
depressions in the Arabian Sea create turbulent
conditions on the western side of Mumbai island.
These deep depressions as far away as the
Lakshadweep islands can affect wind conditions off
Mumbai.
6. Vessels of the Indian Navy, Coast Guard,
Merchant Marine and Fishing communities do ply in
these conditions because the crew are trained and
are qualified to sail under such conditions. These
conditions can be accepted without demur by trained
mariners and fishing communities. The categories of
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tourists however will include, the elderly, women and
children and non-swimmers who cannot be expected
to withstand the rigours imposed by sea conditions
beyond wave heights of 1 to 1.5m and wind
conditions upto Beaufort scale 3, which are found
only during four months in the year from November
to February. Any administration which will allow
regular passenger boats service to venture out of
Mumbai harbour in the sea conditions from March to
Oct will be considered irresponsible. Preconditions
imposed by MbPT on the project proponents with
respect to boats for trained marine professionals, as
recently as 10 Oct 2018 are stringent. The
stipulations for passenger boats will be even more
stringent.
7. Maharashtra Maritime Board has confirmed that
passage from the Gateway of India, Radio Club and
Ferry wharf to the proposed site will require the
vessels to cross Inland Vessel Limits. The maritime
base line demarcating IV limits is defined by the
Government of India Gazette Notification SO 1197
(E) dated 11-05-2009. In the case of Mumbai this
line is across the mouth of the harbour. Therefore
boats may be required by the Maharashtra Maritime
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Board to be registered under the Merchant Shipping
Act. The rules of the Merchant Shipping Act are very
stringent including approval of the drawings,
supervision of construction, classification under one
of the Classification Societies like Indian Register of
Shipping. The passenger vessels currently plying in
Mumbai harbour do not meet these criteria.
Signed on 5-12-2018 by
Capt Phillip Mathews
Capt Sudhir Kumar
Capt Sunil Thapar
Capt SS Naphade
Capt DK Mehta
Capt SK Chugh”
E.Construction in the Coastal Regulation Zone is banned
15. By notification dated 6th January 2011, the MoEF laid down
statutory guidelines for construction activity in the CRZ broadly
severely restricting and prohibiting construction activity in the
sea. This CRZ notification allowed for a very limited nature of
activities in the CRZ limiting the activities to ports, wharfs, jetties
and the like which, in the words of a recent Bombay High Court
judgment referred to herein below (Worli Koliwada Nakhwa vs
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The Municipal Corporation of Greater Mumbai WP (L) No.
560/2019) , allowed only for construction activities which are
“the dire need of the nation” and can only be done in the coastal
waters and not elsewhere. The relevant parts of this notification
is as under:
“3. Prohibited activities within CRZ,- The
following are declared as prohibited activities
within the CRZ,-
(i) Setting up of new industries and expansion of
existing industries except,- those directly related to
waterfront or directly needing foreshore facilities;
Explanation: The expression “foreshore facilities”
means those activities permissible under this
notification and they require waterfront for their
operations such as ports and harbours, jetties,
quays, wharves, erosion control measures,
breakwaters, pipelines, lighthouses, navigational
safety facilities, coastal police stations and the like.;
15. Land reclamation, bunding or disturbing the
natural course of seawater except those, required for
setting up, construction or modernisation or
expansion of foreshore facilities like ports, harbours,
jetties, wharves, quays, slipways, bridges, sealink,
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road on stilt, road on reclaimed surface without
affecting tidal flow of water, and such as meant for
defence and security purpose and for other
facilities that are essential for activities permissible
under the notification:
Provided that such roads shall not be taken as
authorised road for permitting development on
landward side of such roads till existing High Tide
Line-”
“2. Regulation of permissible activities in CRZ area.-
The following activities shall be regulated except
those prohibited in para 3 above,-
(i)(a) clearance shall be given for any activity
within the CRZ only if it requires waterfront and
foreshore facilities; “
16. By a subsequent notification dated 17.02.2015 the MoEF
amended the original notification allowing for construction
activity such as coastal roads but only in “exceptional cases”. The
relevant parts are as under:
“Prohibited activities within CRZ,- The following
are declared as prohibited activities within the
CRZ,-
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(ix) Reclamation for commercial purposes such as
shopping and housing complexes, hotels and
entertainment activities except for construction of
memorials/monuments and allied facilities, only in
CRZ-IV (A) areas, in exceptional cases, by the
concerned State Government, on a case to case
basis
(xii) Dressing or altering the sand dunes, hills,
natural features including landscape change for
beautification, recreation and other such purpose
except utilising the rocks/hills/natural features, only
in CRZ-IV (A) areas, for development of memorials/
monuments and allied facilities, by the concerned
State Government
“4. Regulation of permissible activities in CRZ area. -
The following activities shall be regulated except
those prohibited in para 3 above,-
(j) Construction of memorials/monuments and allied
facilities by the concerned State Government in CRZ-
IV (A) areas, in exceptional cases, with adequate
environmental safeguards, subject to the following,
namely: —
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a. The concerned State Government shall submit
justification for locating the project in CRZ –IV (A)
area along with details of alternate sites considered
and weightage matrix on various parameters
including environmental parameters, to State CZMA
who wi l l examine the pro ject and make
recommendation to the Central Government (MoEF)
for grant of Terms of Reference (ToRs) for
preparation of an environmental impact assessment
report by the State Government;
b. On grant of ToRs by the Central Government,
the concerned State Government shall submit the
draft Environmental Impact Assessment report (EIA)
with Environmental Management Plan(EMP), draft
Risk Assessment Report with Disaster Management
Plan (DMP) including on-site and off-site emergency
plan and evacuation plan during emergency, to the
State Pollution Control Board for conduct of public
hearing for the proposed project in accordance with
the procedure laid down under the Environment
Impact Assessment notification;
c. The concerned State Government shall, after
addressing the relevant issues raised by the public
during the public hearing referred to in sub-item (B),
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submit the final EIA, EMP, Risk Assessment and DMP,
to the State CZMA for their examination and
recommendation to MoEF;”
d. The Central Government may, if it considers
necessary so to do, dispense with the requirement of
public hearing referred to in sub-item (B), if it is
satisfied that the project wil l not involve
rehabilitation and resettlement of the public or the
project site is located away from human habitation.”
17. In the Mumbai Coastal Road case (Worli Koliwada Nakhwa vs The
Municipal Corporation of Greater Mumbai WP (L) No.560/2019),
the Bombay High Court interpreted “exceptional circumstances”
in the following terms:
“The exceptional case to be determined would be on
the same principle which justifies ports, harbours,
jetties, wharves, quays, slipways and bridges i.e. the
dying need of the society. The need has to be more
than a crying need. It has not to be a need of
convenience. It has to be a need based on
exhausting all possible solutions. Upon material
showing that the need is bordered between a crying
need and dying need, a deep and pervasive
environmental impact assessment has to be done.
The assessment has not to be perfunctory and the
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authority charged with the obligation to decide where
an exceptional case was made out requires piercing
evaluation of the data on which the project
proponent justified that it is an exceptional case.”
18. Thus, the Bombay High Court quashed the coastal road project
holding, inter alia, that the construction of a coastal road did not
constitute an exceptional case. The Appeal against this order is
pending before the Supreme Court in SLP No. 17471 of 2019
(Municipal Corporation of Greater Mumbai v Worli Koliwada
Nakhwa Matsya Vyavasay Sahkari Society Ltd.)
19. By notification dated 17.02.2015, MoEF relaxed the original CRZ
notification by modifying the exceptions to the restrictions
imposed on activities in CRZ 2011 areas. The modified paragraph
3 of the CRZ Notification of 2011 now restricts,
“(ix) Reclamation for commercial purposes such as
shopping and housing complexes, hotels and
entertainment activities except for construction of
memorials/monuments and allied facilities, only in
CRZ-IV (A) areas, in exceptional cases, by the
concerned State Government, on a case to case
basis;”
“(xiii) Dressing or altering the sand dunes, hills,
natural features including landscape change for
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beautification, recreation and other such purpose
except utilising the rocks/hills/natural features, only
in CRZ-IV (A) areas, for development of memorials/
monuments and allied facilities, by the concerned
State Government;”
20. In the same amendment notification dated 17.02.2015,
Paragraph 4(ii) of the CRZ Notification of 2011 also provided
that,
“the following activities shall require clearance from
MoEF after being recommended by concerned
CZMA…
(j) Construction of memorials/monuments and allied
facilities by the concerned State Government in CRZ-
IV (A) areas, in exceptional cases, with adequate
environmental safeguards, subject to the following,
namely:—
(A) The concerned State Government shall submit
justification for locating the project in CRZ –IV (A)
area along with details of alternate sites considered
and weightage matrix on various parameters
including environmental parameters, to State CZMA
who w i l l examine the p ro jec t and make
recommendation to the Central Government (MoEF)
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for grant of Terms of Reference (ToRs) for
preparation of an environmental impact assessment
report by the State Government;
(B) On grant of ToRs by the Central Government, the
concerned State Government shall submit the draft
Environmental Impact Assessment report (EIA) with
Environmental Management Plan(EMP), draft Risk
Assessment Report with Disaster Management Plan
(DMP) including on-site and off-site emergency plan
and evacuation plan during emergency, to the State
Pollution Control Board for conduct of public hearing
for the proposed project in accordance with the
procedure laid down under the Environment Impact
Assessment notification;
(C) The concerned State Government shall, after
addressing the relevant issues raised by the public
during the public hearing referred to in sub-item (B),
submit the final EIA, EMP, Risk Assessment and DMP,
to the State CZMA for their examination and
recommendation to MoEF;”
(D) The Central Government may, if it considers
necessary so to do, dispense with the requirement of
public hearing referred to in sub-item (B), if it is
satisfied that the project will not involve rehabilitation
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and resettlement of the public or the project site is
located away from human habitation.”
21. It is the submission of the Petitioner that a statue or a memorial
constructed in the sea in the CRZ prohibited zone can have no
justification at all, it is certainly not an exceptional case, it is
certainly not a dire need, it is contrary to the Environment
Protection Act and Rules, it is completely contrary to all the
MoEF’s notifications and forcing the sanctity of the CRZ and the
unquestionable need to protect the coastal areas and hence it is
ultra vires the Environment Protection Act and Rules and
unconstitutional and petitioner seeks the quashing of the
notification dated 17.02.2015 of MoEF.
F. MOEF’s notification dated 17.02.2015 allowing
environmental clearance without a public hearing for statues
22. The final amendment notified by the Respondent MoEF&CC
bearing S.O 556(E) dated 17.02.2015 pertaining to the
permission for constructing memorials and statues in CRZ IV A,
provided for an entirely new provision which permitted the
Central Government to dispense with the requirement of a public
hearing under certain circumstances.
23. The said amendment was completely alien to the draft
amendment S.O 3202 (E) dated 11.12.2014, as it permits the
dispensation of the very process that the draft amendment laid
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most emphasis on, which was the mandatory public hearing prior
to the establishment of any statue or memorial in CRZ IV-A
areas.
24. A provision conferring the Central Government with the
discretionary power to dispense with a public hearing for a
project pertaining to the establishment of any statue or memorial
in the CRZ IV-A cannot be reconciled to be consistent with the
provisions of the draft amendment notified on 11.12.2014.
25. By directly introducing Clause 4(ii)(j)(D) in the amendment
notification dated 17.02.2015 and not in the preceding draft
notification dated 11.12.2014, the Respondent MoEF&CC did not
provide the public at large with an opportunity to submit
objections or suggestions to the said sub-clause for the
consideration of the MoEF&CC in contravention to the procedure
envisaged under Rule 5(3) of the Environment Protection Rules
and its sub-clauses.
26. The amended Clause 4(ii)(j)(D) of the CRZ Notification, 2011
deserves to be set aside by this Hon’ble Court on account of
being arbitrarily added to the CRZ Notification and rendering the
process of accepting public objections to the draft amendment
notification of 11.12.2014 as an empty formality in contravention
to Article 14 of the Constitution of India.
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27. As per Clause 7(III) (vii) read with Appendix IV of the EIA
Notification of 2006, the proceedings of the public hearing are to
be incorporated within, or submitted as supplement to, the final
Environmental Impact Assessment (EIA) Report and EMP
presented to the regulatory authority which is to decide whether
or not a proposed project is granted an environmental clearance.
This process is therefore the only opportunity for the public to
have any meaningful say in the manner in which a large scale
development project requiring prior environmental clearance is
designed and engineered.
28. Since CRZ-IV A areas are defined under Clause 7 of the CRZ
Notification to be “the water area from the Low Tide Line to
twelve nautical miles on the seaward side.” any construction
within such areas will always affect the traditional coastal
community residing in the area concerned, that these coastal
communities, generally comprising of fishermen, should be
permitted to submit their grievances in a public hearing process
as envisaged under Clause 4(ii)(j)(A), (B) and (C) of the CRZ
Notification as well as the EIA Notification.
29. The public at large is vested with a right to put forth its
objections to a large scale, environmentally unsound construction
project, as such rights arise from the public trust doctrine as well
as Article 21 of the Constitution of India, which has been
interpreted by this Hon’ble Court in the matter of M/S. Sterlite
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Industries v The Chairman Tamil Nadu Pollution Control Board to
also give, by necessary implication, the right against
environmental degradation and that the right to clean
environment is a guaranteed fundamental right.
30. Any memorial, monument or statue located within CRZ-IV A
areas can never truly be considered to be away from human
habitation, as such sites will always be tourist destinations.
Indeed, the current estimates for the proposed projects suggests
that there will be 10,000 visitors to the proposed project
everyday. Hence, the establishment of a memorial, monument or
statue located within CRZ-IV under clause 4(ii)(j) of the CRZ
Notification of 2011 can never meet the parameter laid out in the
impugned Clause 4(ii)(j)(D) requiring the Central Government to
be satisfied that the project is away from human habitation.
31. Sub-clause (xv) (d) of clause 5.4 of the newly notified CRZ
Notification of 2019 dated 18.01.2019, which is worded as a
verbatim copy of Clause 4(ii)(j)(D) of the CRZ Notification of
2011, should also be set aside as being ultra vires of the the
Environmental Protection Act, 1986, the Constitution of India
and is contrary to the public trust doctrine
G. Environmental clearance wrongly granted
32. The proposed project requires an EIA clearance under the EIA
Notification of 2006 on account of falling under the category of
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“Building and Construction” projects under item 8(a) of the
Schedule to the EIA Notification of 2006. The construction of the
subject project exceeds 20,000 sq.m and the built up area
exceeds 1,50.000 sq. m, it falls under category B1 projects and
requires an Environmental Clearance to be granted by the State
Level Expert Appraisal Committee, and would require a public
consultation under Clause 7(III) of the EIA Notification 2006.
33. Various adverse environmental consequences identified within
the EIA Report have not been addressed by the Respondent
Authorities prior to the various clearances being granted to it.
34. The CSIR-National Institute of Oceanography (CSIR-NIO) in its
EIA Report recorded several concerns with regard to the
environmental consequences of the construction of the memorial.
An analysis of the phytoplankton composition revealed the area
in question sustains high generic diversity in seasons other than
monsoons and high production potentials for live food organism’s
resources for post-monsoon season too. The study also records
that the environmental consequences due to the activities related
to the construction, operation, and post operational phases of
the project include deterioration of reinforced concrete
structures, cyclone and storm surge, raising the ground level on
the rocky outcrop, and detrimental impacts on fisheries. It
further notes solid waste disposal occurring due to the presence
of construction machinery and materials as a source of nuisance.
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35. It is submitted that 15,000 fisher folk who are directly
dependent on the fisheries for livelihood purposes in and around
the project area will be adversely affected due to this project. As
per the EIA report of the project itself, the shallow waters around
the said project provide a conducive environment for fish eggs,
larvae, oysters, clams and planktons to sustain. The reclamation
and the increase in tourist boat traffic will cumulatively result in
massive habitat destruction.
36. As per the EIA Report prepared for the proposed project, the
project is estimated to draw 10000 visitors daily, with a peak of
4000 per hour, who will be ferried/ transported to the statue site
in boats from jetties located at the Gateway of India and
Nariman Point in South Mumbai.
37. The proposed project has also been emphatically criticised by the
public due to its exorbitant cost, and due to public opinion that
the funds allocated to it would be better spent by the State
Government in attempting to mitigate socio-economic issues as a
part of its responsibilities as a welfare state. It must be borne in
mind that the state of Maharashtra is facing repeated droughts
year after year consecutively and farmer suicides are at alarming
numbers.
38. The project is proposed to be constructed on a rocky outcrop
admeasuring 6.8 ha off the Arabian Sea upon land which has
been specially reclaimed for the project. The said project is
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admittedly being constructed in an eco-sensitive coastal region in
Mumbai, categorised as CRZ-IV A as well as CRZ-IA and CRZ-IB
(due to the presence of corals and the fact that that the area is
an intertidal region) under the CRZ Notification of 2011.
H. Project Site unsafe for the public
39. It is submitted that the route identified in Figure 1.12 of the EIA
report for the boats carrying Tourists from Nariman Point and
Gateway of India to the memorial site traverses over 4 exposed
wrecks and two submerged wrecks marked, on the very same
Hydrographic Chart 2016.The Petitioners submit that passing
over submerged shipwrecks is dangerous to surface navigation
and is unthinkable for a project of this nature, which is
purportedly being constructed to be a tourist attraction.
40. The Petitioners submit that the Inland Vessels (Construction and
Survey) Rules of 1957 issued by the Government of Maharashtra
also demarcate ‘fair weather’ and ‘foul weather’ lines. These lines
demarcate the mouth of the harbour of Mumbai city to indicate
how far towards the sea inland vessels can navigate during
monsoon weather conditions (foul weather line) and how far
towards the sea such inland vessels can navigate during the
non-monsoon weather conditions (fair weather line). As per Rule
1(ii)(a), the “fair weather” line is defined as the Tidal waters of
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the Bombay Harbour and rivers leading into it that are to the
north and East of an imaginary line drawn from Colaba point to
Thull Knob, during the period of fair weather season from 1st
September to 25th May. As per Rule 1(ii)(b),the “foul weather”
line is defined as the Tidal waters of the Bombay Harbour and
rivers leading into it that are to the north and East of an
imaginary line drawn from Colaba in Transit Sunk Rock
Lighthouse to the North Brow of the Great Karanja Hill during the
period of foul weather season from 26th May to 31st August.
41. The Petitioners submit that it is common practice in the Mumbai
harbour that no harbour craft can traverse beyond the foul
weather line during the monsoon months of 26th May to 31st
August every year, for example, from Gateway of India to
Mandwa. It is submitted that since the route to the proposed
project crosses through the foul weather line, the proposed
project will be inaccessible to the public during monsoon months
(approximately 3 months) of the year.
I. Exorbitant cost
42. Maharashtra remains the most indebted State in 2018-19, the
fiscal deficit of the State is estimated to be Rs 50,586 crore,
which is 1.8% of the GSDP. In 2018-19, the outstanding liabilities
of the State are expected at 16.5% of the Gross State Domestic
Product (GSDP). The revenue deficit for the financial year of
2018-2019 is targeted at Rs.15,735 crore, or 0.5% of the GSDP.
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43. While Respondent No.2 State Government is spending thousands
of crores for the proposed project, the 2019-20 Budget reveals
the blatantly misplaced priorities of the government of
Maharashtra. The State has reduced its budgetary allocation for
Social Welfare and Nutrition by 33% from the Revised Estimate
of the Budget of the State in 2018-2019 Rs.20,042 crores to Rs,
13,406 in 2019-2020, despite the fact that a report by the
Ministry of Statistics and Programme Implementation and The
World Food Programme lists Maharashtra as one of the six States
with high levels of stunting and under nourishment amongst
young children.A copy of the relevant analysis prepared by a
renowned think tank showing the total indebtedness of the State
of Maharashtra dated 25.06.2019 has been annexed hereto and
marked as Annexure P-47 (at page ____ to ____).
44. Similarly, the neglect shown by the State Government towards
the implementation of the provisions of the Right to Education
Act has resulted in over four thousand private schools across the
State go on strike earlier in 2019 as they were still awaiting
reimbursements from the State Government due to them under
the Right to Education Act, 2009. A copy of a news article dated
25.02.2019 regarding the strikes undertaken by 4000 private
schools after not having received reimbursements due to them
from the State Government has been annexed hereto and
marked as Annexure P-45 (at page ____ to ____).
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J. Designated fishing zone
45. The Petitioners further submit that the Hydrographic Chart of
2016 used in Figure 1.12 of the EIA report for the proposed
project also indicates that the site of the project has several
fishing stakes demarcated in its proximity, which indicates that
the region is used by traditional coastal communities to regularly
lay out fishing nets for catching fish, thereby rendering the area
to be unsuitable for commercial or tourist boat navigation.
LIST OF DATES AND EVENTS
11.05.2009 The Maritime Base Line was promulgated
by the Government of India Gazette
Notification No. S.O.1197(E) beyond which
passenger vessels registered under the
Inland Vessels Act, 1917 cannot traverse.
The E.I.A. Report of the proposed project
shows that the proposed route for tourists
to reach the memorial statue is beyond the
said Maritime Baseline.
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11.02.2013 At the 80th meeting the proposal for the
construction of the project was considered
by the respondent and the site for the
project was considered.
10.06.2013 -
12.06.2013
125th Meeting of the Expert Appraisal
Committee: After considering the proposal
by Respondent, suggestions were made to
incorporate certain studies at the 125th
Meeting of the Expert Appraisal Committee,
while preparation of the Detailed Project
Report of the said project through a letter
dated 14.08.2013.
31.01.2014 88th meeting of the Respondent MCZMA: the
Respondent PWD was directed to refer the
proposal to Respondent MoEF&CC to make
certain amendments to the CRZ Notification,
2011 to consider special dispensation for
said project as a permissible activity at the
88th meeting.
Bar & Bench (www.barandbench.com)
11.12.2014 The draft amendment notification to amend
the CRZ Notification of 2011 was published:
it sought to allow the construction of
memorials/monuments and statues by a
State Government in CRZ-IV A areas under
certain circumstances.
20.01.2015 The Environment Department of the
Maharashtra State Government addressed a
letter dated 20.01.2015 to the respondent
MoEF&CC enclosing the Environment Impact
Assessment Report prepared by National
Institute of Oceanography (NIO) and
National Environmental Engineering
Research Institute (“NEERI”).
30.01.2015 The 144th Meeting of the Expert Appraisal
Committee: the Expert Appraisal Committee,
considered the request of Respondent PWD
for waiving of a public hearing “in view of
the larger public interest importance and
National Monumental (sic) importance”.
Bar & Bench (www.barandbench.com)
09.02.2015 145th meeting of the Expert Appraisal
Committee: The EIA Report prepared by the
NIO and NEERI was presented before the
Expert Appraisal Committee which also
considered the request made by the
Respondent No.2 to waive the public
hearing despite there being no provision in
law authorizing them to do so and the
project was recommended by the Expert
Appraisal Committee for the grant of
Environment and CRZ Clearance. The
adverse effects of the project specified in
the EIA Report have not been examined by
the Expert Appraisal Committee and
observations or comments have been made
during the meeting.
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17.02.2015 The final amendment to the CRZ Notification
2011 was notified: The amendment
notification permitted the construction/
development of memorials and statues in
CRZ-IV A areas, and also allowed the
Central Government to dispense with the
public hearing under certain circumstances
for the said project. It stated that the
concerned State Government shall submit
justification for locating the project in CRZ
area along with details of alternate sites
considered and weightage matrix on various
parameters including environmental
parameters to State CZMA for their
examination and recommendation to MoEF
to obtain Terms of Reference (ToRs) to
p repa re an env i ronmen ta l impac t
assessment report.
23.02.2015 The project was accorded the Environment
Clearance based on the recommendations of
the Expert Appraisal Committee. No public
hearing was conducted for the project prior
to the grant of this clearance.
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23.08.2016 The First final report prepared by IIT
Bombay on the Structural Stability of the
Proposed CSM Memorial in Arabian Sea was
submitted
20.11.2016 The Western Naval Command issued an NOC
recording the presence of cables and
stipulating that prior clearance from VSNL is
required as their cables of 5000v DC are
within 200m of the site of the proposed
project. This clearance has not been obtained
from VSNL, despite the fact that the
reclamation work was permitted to start in
October of 2018. The construction of the
proposed project could prove to be fatal,
particularly for the engineers and workers
engaged in the construction work for the
proposed project.
07.04.2017 The Petitioner No. 1, through his NGO APLI
Mumbai submitted 25 reasons why the
memorial project is unviable and hence should
be halted. There has been no response from
the Government to the letter.
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May 2018
18.06.2018
Crucial errors pertaining to Table 1 of the IIT
Bombay Report dated 23.08.2016 were noted
by the Petitioners and pointed out to the IIT
Bombay team authoring the report vide a
letter submitted by the Petitioner No. 1
through his Non- Governmental Organisation
‘APLI Mumbai’
The first report submitted by IIT Bombay on
23.08.2016 was corrected and sent back.
Further IIT Bombay stated that the conclusion
of the analysis do not change.
Bar & Bench (www.barandbench.com)
28.06.2018 The contract between the Respondent PWD
and Larsen and Toubro, the contractors
engaged for the construction of the proposed
project calls for a wind tunnel tests to be
performed for the proposed project. Although
no wind tunnel test has been conducted, the
proposed project has been sanctioned by the
Respondent Authorities and the project has
been granted a variety of clearances and NOCs
despite the fact that the elementary aspects of
the project, such as its safety and structural
integr i ty have not been conclus ively
determined by the concerned authorities.
Bar & Bench (www.barandbench.com)
24.07.2018 The Senior Division Accounts Officer of the
Chatrapati Shivaji Maharaj Memorial Project
Division, Mumbai brought on record the details
of the meeting with Larsen and Toubro Ltd.
during the cost optimization process for the
project, and noted how these negotiations fall
foul of the Central Vigilance Committee’s
guidelines disallowing negotiations in tender.
Further, the contract between Larsen and
Toubro and the Respondent PWD was signed
by incorrect signatory, the Executive Engineer,
instead of the chief Engineer.
25.07.2018 A further revised report was submitted by the
IIT Bombay. This revised report had material
changes of the Report and had revised
Conclusions.
Bar & Bench (www.barandbench.com)
24.09.2018 A letter to the Department of Civil Engineering
of IIT Bombay, asking them to examine the
geotechnical reports of IIT-B in relation to the
interim Geotech report of Larsen and Toubro
Ltd., clarify the discrepancies and provide
dup l i c a t e c op i e s o f c omp rehen s i ve
geotechnical consultancy report of IIT-B.
14.10.2018 No commencement certificate was issued for
the proposed project in accordance with the
provisions of the Maharashtra Regional Town
Planning Act And hence the commencement
letter dated 14 October 2018 is in violation of
the Development Control regulations issued
under the Mumbai Metropolitan Regional
Development Authority Act 1974.
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24.10.2018 The route identified in the EIA report for the
project has, in the past, resulted in the death
one person when a delegation of officials
attempted to visit the site for the “bhoomi
puja”. This incident took place as the boat
capsized when it hit the underwater rock. Both
routes that have been proposed pose a great
danger to the travelers, the route from
Gateway of India is a memorial site which
traverses over four exposed wrecks and two
submerged wrecks. There is also a lack of
marker buoys, lack of accurate visual
navigation and many other such dangers. The
route from Nariman Point is proposed to
transverses over 1.5 km of shallow water, over
which the proposed boat carrying a hundred
people cannot pass.
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26.02.2019 Another letter was sent by the Divisional
Accounts Officer to the Senior Accounts Officer
stating that the project had serious infirmities
that made it necessary for the project to be
systematically audited by the officer of the
Auditor General. The said letter stated that the
Divisional Accounts Officer was unable to
follow any real direction with regard to the
project and acknowledged that there exists a
pressure from higher authorities to pay for the
work done and the Officer faced difficulties in
determining what the right course of action
was.
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. _______ OF 2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
1. Vice Admiral I.C Rao …PETITIONERS 1
PVSM AVSM (Retd.)
F.I.Mar E, of 11C Harbour Heights
Building ‘A’,
N.A. Sawant Marg, Colaba, Mumbai 400005.
2. Mr DM Sukthankar , IAS (Retd.) …PETITIONERS 2
5th floor ‘Priya’, Worli Sea Face,
Khan Abdul Gaffar Khan
Marg, Worli, Mumbai 400030
3. Vanashakti, a Public Trust …PETITIONERS 3
Through its Executive Director Stalin Dayanand
Having its registered office at 19/21
Unique Industrial Estate
Twin Towers Lane, Prabhadevi
Mumbai - 400025
4. Adivasi Koli Samaraj Samanavay Samiti …PETITIONERS 4
Through its Chief Convenor, Sharadchandra Jadhav
Moragaon Village,
Mangelawadi,
Janardhan Ramji Mhatre Marg,
Juhu, Mumbai - 4000049
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VERSUS
1. Union of India, …RESPONDENTS 1
Through the Secretary,
Ministry of Environment,
Forests & Climate Change
having its office at Indira Paryavaran Bhavan,
Jor Bagh Road, Aliganj, Lodi Colony,
New Delhi – 110 003
2. State of Maharashtra, …RESPONDENTS 2
Through the Chief Secretary,
Public Works Department, Maharashtra
having its office at Mantralaya,
Mumbai – 400 032
3. The Commissioner of Fisheries, …RESPONDENTS 3
Department of Fisheries,
Having its office at TaraporwalaM Aquarium,
Netaji Subhash Road, Charni Road,
Mumbai – 400 002
4. The Principal Secretary, …RESPONDENTS 4
Environment Department, State of Maharashtra)
Having its office at Room No. 217 (Annexe))
Mantralaya, Mumbai – 400 032
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WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF DECLARATION,
MANDAMUS AND CERTIORARI UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA
TO:
THE HON’BLE THE CHIEF JUSTICE
AND HIS OTHER COMPANION
JUSTICES OF THE HON’BLE
SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED MOST
RESPECTFULLY SHOWETH THAT:
1. This Writ Petition is being filed under Article 32 of the
Constitution of India in public interest to challenge the
construction of the Chatrapati Shivaji Maharaj Memorial along
with an equestrian statue of Chatrapati Shivaji Maharaj in the
Arabian Sea off the coast of Mumbai, Maharashtra by the Public
Works Department, State of Maharashtra (hereinafter referred to
as the “proposed project”) on account of the non-application
of mind and negligence of the Respondent Authorities while
designing and sanctioning the plans for the proposed project.
This Writ Petition also impugns sub-clause (ii)(j)(D) of clause 4 of
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the CRZ Notification of 2011 amended from time-to-time as well
as sub-clause (xv) (d) of clause 5.4 of the newly notified CRZ
Notification of 2019 dated 18th January 2019, as both sub-
clauses allow for the Central Government to dispense with the
requirement of public-hearing for constructions of memorials/
monuments and allied facilities in CRZ-IV A areas when it deems
fit, on the grounds that such provisions are arbitrary and contrary
to the principles of natural justice as enshrined in Article 14 of
the Constitution of India as well as the right against
environmental degradation and that the right to clean
environment guaranteed under the right to life under Article 21
of the Constitution of India.
IA. The Petitioners have not approached concerned authority with a
similar relief.
2. The Respondent No 1 is the Union of India through the Ministry
of Environment, Forest and Climate Change, which is the Ministry
of the Union Government entrusted with the task of overseeing
the conservation and protection environmentally sensitive natural
resources, including coastal regulation zones. The Respondent
No.1 is therefore responsible for the formulation and notification
of the CRZ Notification of 2011 and 2019, and has also granted
the final combined environmental and CRZ clearance for the
proposed project dated 23.02.2015 and the amendment made to
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it on 15.06.2018 The Respondent No. 2 is the State of
Maharashtra (Public Works Department) through its Chief
Secretary, who has been entrusted with the construction and
maintenance of roads, bridges and government buildings and is
the Project Proponent of the construction of Chatrapati Shivaji
Memorial Statue alongwith its allied activities. The Respondent
No. 3 is the Maharashtra Coastal Zone Management Authority
which is the agency responsible for granting the CRZ clearance to
the proposed project and monitoring the implementation of the
CRZ Notification in the State of Maharashtra.
FACTS OF THE CASE
3. It is submitted that the proposed project is touted to be the
world’s tallest monument at a staggering 212 metres (695.5 feet)
as per current plans. In addition to the statue itself (which, if
erected, would be twice the size of the Statue of Liberty in New
York) the structure is slated to host an art museum of about
4000 sqm area, an amphitheatre and auditorium of capacity 500
persons and 2000 persons respectively, an exhibition gallery, an
aquarium, a library and other viewing galleries within the statue,
an Administrative Block and a Helipad. As per the Environmental
Impact Assessment (“EIA”) Report prepared for the proposed
project, the project is estimated to draw 10000 visitors daily, with
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a peak of 4000 per hour, who will ferried/ transported to the
statue site in boats from jetties located at the Gateway of India
and Nariman Point in South Mumbai. The lowest bid price for the
project was Rs. 3826 crores, but the Respondent State
Government has awarded a contract for phase I at a reduced
cost of Rs.2581 crores while simultaneously increasing the height
of the project by 2 metres at a cost of Rs 63 Crores. It is
important to note that experts have expressed their reservation
about the recent decision of the Respondent State Government
to increase the height of the statue while reducing the cost of
the proposed project as they believe that such a decision has
been made at the cost of the safety measures of the proposed
structure.
4. The Petitioners submit that the project is proposed to be
constructed on a rocky outcrop admeasuring 6.8 ha off the
Arabian Sea upon land which has been specially reclaimed for the
project. The said project is admittedly being constructed in an
eco-sensitive coastal region in Mumbai, categorised as CRZ-IV A
as well as CRZ-IA and CRZ-IB (due to the presence of corals and
the fact that that the area is an intertidal region) under the CRZ
Notification of 2011.
5. The project will be at a distance of 1.2 km from Raj Bhavan and
3.2 kms from Girgaum Chowpatty and about 2 kms from the
Cuffe Parade Koliwada. It is submitted that the Respondent No. 1
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PWD has increased the height of the proposed project from its
initial planned height from time to time. Media reports suggest
that the most recent enhancement of the height of the proposed
project has been made by the Respondent State Government, to
ensure that the proposed statue can claim to be the tallest
statue in the world. The proposed statue comprises of a pedestal
admeasuring 88.8m, the body of the statue admeasuring
admeasuring 87.4 meters and the sword wielded by the statue
admeasuring 45.5 metres.
6. It is submitted that since its announcement, the proposed project
has been marred by controversy and public protest, primarily due
to the absurdity of its location, the negative environmental impact
and the toll the proposed project will take on traditional coastal
communities. It is submitted that 15,000 fisher folk who are
directly dependent on the fisheries for livelihood purposes in and
around the project area will be adversely affected due to this
project. The shallow waters around the said project provide a
conducive environment for fish eggs, larvae, oysters, clams and
planktons to sustain. There exist corals and endangered marine
wildlife in the shallow waters at the site. The reclamation and the
increase in tourist boat traffic will cumulatively result in massive
habitat destruction. Additionally, The project aims to bring in more
visitors to Mumbai and create an additional tourist attraction.
While this aspect may be laudable on face value, the fact remains
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that the infrastructure in South Mumbai is at tipping point and is
saturated well beyond its capacity. The EIA Report of the Project
itself records that “road widths in the area are not sufficient to
accommodate the increase of 10000 vehicles per day“ and that
“unimaginable traffic jams are anticipated with expected increase
in number of vehicles”. True copy of the relevant extracts of the
EIA Report pertaining to the CRZ area categorisation of the
proposed project as well as the estimates of the number of daily
visitors and the traffic of the region have been annexed hereto
and marked as Annexure P-10 (at page ____ to ____).. The
proposed project has also been emphatically criticised by the
public due to its exorbitant cost, and due to public opinion that the
the funds allocated to it would be better spent by the State
Government in attempting to mitigate socio-economic issues as a
part of its responsibilities as a welfare state.
7. Despite the concerns of the public regarding the statue that have
been vociferously expressed over the past few years, the
Respondent Authorities have decided to continue with the
construction of the project. The Petitioners therefore seek to
challenge the proposed project vide the present Writ Petition
before this Hon’ble Court under its Writ jurisdiction under Article
32 of the Constitution of India on the following grounds:
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A. the introduction / insertion of Clause 4(ii)(j)(D) into the
CRZ Notification 2011 by the amendment Notification dated
17.02.2015 is inconsistent with the CRZ Notification of
2011, and is ultra vires of the Environment Protection Act,
1986 and Articles 14,19(1)(g) and 21 of the Constitution of
India;
B. The combined Environmental & CRZ clearance dated
23.02.2015 given by the Respondent No.1 to construct the
Chatrapati Shivaji Maharaj Memorial and "allied facilities"
along with the amendment of the Clearance allowed on
15.06.2018 has been granted without due consideration of
the environmental consequences of the project and exhibits
non-application of mind on the part of the Respondent
Authorities;
C. That the decision of the Respondent PWD to construct the
statue and memorial of Chatrapati Shivaji Maharaj and
"allied facilities" on reclaimed land in the Arabian Sea off
the coast of Mumbai, is a gross wastage of public funds
that would be better utilised in public welfare schemes like
upgrading the existing transport network which has been
neglected for decades.
8. This petition also impugns (xv) (d) of clause 5.4 of the CRZ
Notification of 2019 dated 18.01 2019 on the grounds that it is
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inconsistent with the CRZ Notification of 2011, and is ultra vires
of the Environment Protection Act, 1986 and Articles 14,19(1)
(g) and 21 of the Constitution of India;
Timeline of clearances granted to the Proposed Project
9. It is submitted that the proposed project has been considered
for, and granted, various clearances and NOCs spanning
between the period of January 2013 and June 2018. It is the
contention of the Petitioners that several of these clearances are
bad in law and should be set aside on account of being granted
without proper application of mind by the concerned authorities,
because of undeniable procedural irregularities in the manner in
which these clearances have been granted, and lastly because
the said clearances have been granted under provisions of law
that have been impugned in the present petition for being ultra
vires of the Constitution of India, the Environment Protection
Act, 1986 and its corresponding Rules, as well as the CRZ
Notification of 2011, A brief timeline and summary of the
relevant meetings of the concerned statutory bodies vested with
the powers to grant such clearances is put forth below:
10.80th Meeting of the Respondent MCZMA dated 11.02.2013 - The
proposal for construction of the said project was first considered
and studied by the Respondent MCZMA in its 80th meeting held
on 11.02.2013. At this meeting, the selection of site for the
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proposed project was considered. Since the project area was
referred to as CRZ-I in the meeting, the Respondent MCZMA
proposed a reference to the Respondent MoEF&CC. True copy
annexed and marked hereto as Annexure P-6 (at page ____ to
____) is the minutes of the 80th meeting dated 11.02.2013 of the
Respondent MCZMA.
11.125th Meeting of the Expert Appraisal Committee 10th-12th June,
2013. - After having considered the proposal by Respondent
MoEFF&CC, at the 125th Meeting of the Expert Appraisal
Committee, suggestions were made to incorporate certain studies
while preparation of the Detailed Project Report of the said project
through a letter dated dated 14.08.2013. True copy marked and
annexed as Annexure P-7 (at page ____ to ____) is the minutes
of the 125th Expert Appraisal Committee Meeting held on 10th-12th
June, 2013.
12. 88th meeting of the Respondent MCZMA held on 31.01.2014 -
the Respondent PWD was directed to refer the proposal to
Respondent MoEF&CC to make certain amendments to the CRZ
Notification, 2011 to consider special dispensation for the said
project as a permissible activity at the 88th meeting held on 31st
January, 2014. True copy hereto marked and annexed as
Annexure P-8 (at page ____ to ____) is the minutes of the
88th meeting of MCZMA.
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13.11.12.2014- A draft amendment notification bearing S.O 3202 (E)
to amend the CRZ Notification of 2011 was published by the
Respondent MoEF&CC which sought to allow the construction of
memorials/monuments and statues by a State Government in
CRZ-IV A areas under certain circumstances. True copy of the
draft amendment notification bearing S.O 3202 (E) dated
11.12.2014 has been annexed hereto and marked as Annexure
P-14 (at page ____ to ____).
14. 20.01.2015- the Respondent Environment Department of the
Maharashtra State Government addressed a letter dated
20.01.2015 to Respondent MoEF&CC enclosing the Environment
Impact Assessment Report prepared by National Institute of
Oceanography (NIO) and National Environmental Engineering
Research Institute (“NEERI”).
15. The 144th Meeting of the Expert Appraisal Committee held on
30.01.2015 - the Expert Appraisal Committee, considered the
request of Respondent PWD for waiving of a public hearing “in
view of the larger public interest importance and National
Monumental (sic) importance” True Copy of the minutes of the
meeting of the 144th Meeting of the Expert Appraisal Committee
is annexed hereto and marked as Annexure P-18 (at page
____ to ____)..
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16.145th meeting of the Expert Appraisal Committee dated
09.02.2015 - The EIA Report prepared by the NIO and NEERI was
presented before the Expert Appraisal Committee. The committee
also considered the request made by the Respondent No.2 to
waive the public hearing, even though at the time there was no
provision in law authorizing them to do so and the said project
was recommended by the Expert Appraisal Committee for the
grant of Environment and CRZ Clearance. The minutes of the
meeting reveal that the adverse effects of the said project
stipulated in the EIA Report have not been examined by the
Expert Appraisal Committee and in fact no observations or
comments have been made on the same. True Copy of the
minutes of the meeting of the 145th Meeting of the Expert
Appraisal Committee is annexed hereto and marked as Annexure
P-19 (at page ____ to ____).
17.17.02.2015 - the final amendment to the CRZ Notification 2011
was notified by the Respondent MoEF&CC bearing S.O 556(E).
The said amendment notification not only permitted the
construction/development of memorials and statues in CRZ-IV A
areas, but also allowed the Central Government to dispense with
the public hearing under certain circumstances for the said
project. True copy of the final amendment to the CRZ Notification
2011 dated 17.02.2015 bearing S.O 556(E) has been annexed
hereto and marked as Annexure P-20 (at page ____ to ____).
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18. 23.02.2015 - The final amendment to the CRZ Notification 2011
was notified by the Respondent MoEF&CC bearing S.O 556(E)
On 23.02.2015 the said project was accorded the Environment
Clearance based on the recommendations of the Expert
Appraisal Committee. No public hearing was conducted for the
project prior to the grant of this clearance. True copy of the
impugned Environmental Clearance dated 23.02.2015 granted
to the proposed project is annexed hereto and marked as
Annexure P-21 (at page ____ to ____).
No Objection Certificates
19. The Petitioners submit that the Proposed Project also requires a
variety of No Objection Certificates (“NOCs”) from 12
Government bodies/agencies. While some of these requisite
NOCs have not yet been applied for by the Respondent PWD,
conditions of the remainder NOCs obtained thus far are either
not being complied with, or contradict one another such that it
would not be possible for them to be complied with
simultaneously. True copy of table summarising the requisite
NOCs with their status of compliance has been annexed hereto
and marked as Annexure P-37 (at page ____ to ____).
20. A perusal of these NOCs reveal that the Coast Guard, in its NOC
to the establishment of the memorial in the Arabian Sea dated
10.03.2015, stipulated several guidelines for maintenance of
security that must be compulsorily followed. One of them
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requires 500 mtrs sea area around the memorial to be declared
as a ‘no fishing zone’ through a state gazette notification and
that the fishing community is suitably sensitized. Such a guideline
goes on to provide evidence to the fact that the rights of the
fishermen community will be severely and detrimentally affected,
and also sheds light upon the security concerns that arise
subsequent to the commencement of the construction of the
memorial and thereafter. True copy of the NOC issued by the
Coast Guard is annexed hereto and marked as Annexure P-22
(at page ____ to ____). It is further submitted that such a
condition directly contradicts the provisions pertaining to
protection of the fishing community in the NOC issued by the
Commissioner of Fisheries dated 18.07.2014, wherein it is
stipulated that during the reclamation period, caution should be
exercised to avoid inconvenience to incoming and outgoing
vessels.
21. The said NOC of the Commissioner of Fisheries further provides
that Traffic of tourist vessels should not affect existing fishing
vessels. The Petitioners submit that these stipulations would
preclude a no-fishing zone 500 m around the site of the
proposed project as required by the Coast Guard. True copy of
the NOC dated 18.07.2014 issued by the Commissioner of
Fisheries has been annexed hereto and marked as Annexure
P-9 (at page ____ to ____).
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22. Further, the NOC of the Commissioner of Police dated
13.01.2015 also identified vulnerabilities of the site of the
proposed project, in light of the fact that the terrorists who
attacked Mumbai city on 26.11.2008 entered the the harbour
through this region. Accordingly, the said NOC of the
Commissioner of Police stipulated that certain anti-terrorism
safeguards and measures were needed to be undertaken. Such
measures included the calling of a meeting of all concerned
authorities such as the MCGM, MTNL, BEST, Traffic Police, Fire
Department, Hospitals in proximity of the proposed project,
Coast Guard in order to determine a protocol for emergencies.
The Petitioner submits the NOC called for such measures to be
undertaken prior to construction work commencing so that the
protocols and anti-terrorism safeguards could be formally
worked into the construction and plans for the proposed project.
True copy of the NOC of the Commissioner of Police dated
13.01.2015 has been annexed hereto and marked as Annexure
P-15 (at page ____ to ____).
23. December 2016 - the Petitioners further state that in December
2016, the Respondent PWD applied to Respondent No. 2
MoEF&CC for an amendment to the Environmental and CRZ
clearance it had been granted on 23.02.2015 due to revisions
and modification it had sought to make in the plans for the
proposed project. As per the modified proposal:
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i. The total height of the structure is increased from 190
metres to 210 metres: including a pedestal of 84 metres
height and a statue of 126 metres height
ii.The built-up area of the pedestal is 37000 sq m with
provision for addition of 3 more floors in phase II
iii. The height of the pedestal is increased from the
original 32.50 metres to 84 metres and the same is to be
a two-tiered structure.
iv. An Oceanarium of 10,431 sq metres and a Convention
Centre of 6824 sq metres have been included in Phase II
& the ground coverage for these two buildings: 17,255 Sq
Metres is almost equal to the ground area of 18,353 for
Phase I: i.e. for the pedestal & statue.
24. 15.06.2018 - On 15.06.2018, the Respondent MoEF&CC granted
the amendment to the previous Environmental and CRZ
clearance dated 23.02.2015 as sought for by the Respondent
PWD. True copy of the amendment to the previous
Environmental and CRZ clearance dated 23.02.2015 issued on
15.06.2018 has been annexed hereto and marked as Annexure
P-30 (at page ____ to ____).
25. The Petitioners submit that the aforementioned events raise the
following questions of law to be determined by this Hon’ble
Court.
QUESTIONS OF LAW
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1. Whether the design of the project has been prepared arbitrarily
without due consideration to the structural integrity of the project
and without meeting the safety parameters required by the Bureau
of Indian Standards in violation of Article 14 of India?
26. The Petitioners submit that the Indian Institute of Technology (IIT)
Bombay had been commissioned to prepare a report on the
Structural Stability of the Proposed CSM Memorial in Arabian Sea.
The said Final Report No. IIT – B Report Job No. DRD/CE/
SG-4/15-16 was first submitted on 23.08.2016. The Petitioners
submit that upon a perusal of the aforementioned report, the
Petitioners uncovered crucial errors pertaining to Table 1. These
errors were pointed out to the IIT Bombay team authoring the
report vide a letter submitted by the Petitioners through their Non-
Governmental Organisation ‘APLI Mumbai’ in May 2018. The errors
within the report were corrected by the IIT Bombay team and
submitted on 18.06.2018. While submitting the corrected data in
Table 1, the author of the report from IIT Bombay stipulated that
the “ conclusions of the analysis do not change...”. True copy of the
email message from the Author of the IIT Report dated 18.06.2018
has been annexed hereto and marked as Annexure P-31 (at
page ____ to ____).
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27. The Petitioners submit that a day prior to a meeting with the Chief
Engineer of the Respondent PWD scheduled for 25.07.2018, a
further revised report was submitted by the IIT Bombay hours
prior to the said meeting. This revised report had drastic changes
made in Table 1 of the Report and had revised analyses. The
Petitioners submit that information obtained through RTI
applications show that this new report had the following email
cover message of 24.07.2018.“I went through our structural
calculations again and found one unit conversion error. Going back
to the calculations allowed me to redo the analysis. The revised
report presents additional details on the considerations,
assumptions, and calculations. The overall findings of the report
remain unchanged.” True copy of the covering email along with the
revised report of the IIT Bombay dated 24.07.2018 has been
annexed hereto and marked as Annexure P-33 (at page ____ to
____).
28. The Petitioners submit that there was no communication as to how,
despite errors in calculations, the conclusions remain the same
through two sets of revision. All three versions 23.08.2016,
04.06.2018 and 24.07.2018, are all titled ‘Final Report’ Job No.
DRD/CE/SG-4/15-16 without any caution to the reader that earlier
versions are superseded.
29. It is submitted that in para 5 of the report of August 2016 and
June 2018 it was stated “The capacity of the member 1-2 (sword)
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is less than its demand which makes the design of the sword
critical”. The report of 24.07.2018 is silent on this aspect, but
highlights criticality in another area of the statue i.e the scabbard
(called or ‘sleeve’) of the sword tucked below, and the base of the
statue. True copy of the relevant extract of the IIT Bombay report
04.06.2018 have been annexed hereto and marked as Annexure
P-29 (at page ____ to ____).
30. The Petitioners further submit that they have consulted structural
engineers regarding the stability of the statue structure of the
proposed Chatrapati Shivaji Maharaj Memorial based on the
concept design included in the Contract agreement dated
28.06.2018 and their views are in the succeeding paragraphs.
“There is no doubt that the design of this structure is
governed by wind engineering, especially the 40m long
sword. The design of the sword will be driven by
dynamics. The structural codes in general will not
alone determine the design of this element due to the
characteristics of the dynamic properties.
All reputed International wind codes, including the
Indian Standard “Code of Practice for Design Loads for
Buildings and Structures IS 875 part 3 – Wind Loads”,
stipulate that more advance studies are required
including wind tunnel testing for structures that fall in
the following category:
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a)Height to min plan dimension ratio (slenderness
ratio) exceeds 5
b)The fundamental frequency of the structure/element
is less than 1Hz.
Structural engineers suggest that the proposed sword
concept design comes within the purview of both of
the above criteria by a significant margin. The
slenderness ratio as shown in the Concept Design
exceeds 16. Therefore, there is no doubt that a
thorough study supported by wind tunnel testing is a
minimum requirement. All international wind codes
also have such a clause.”
35.True copy of the submission by NGO APLI Mumbai to the Chief
Engineer PWD dated 30.01.2019 based on the views of the
structural engineers consulted by the Petitioners regarding the
stability of the statue structure has been annexed hereto and
marked as Annexure P-42 (at page ____ to ____).
36.The Petitioners submit that the Indian Standard (“IS”) 875 (part
3) – 1987 (Reaffirmed 2003) Code Of Practice For Design Loads For
Buildings And Structures as prescribed by the Bureau of Indian
Standards calls for Wind Tunnel Tests for a project of the scale of
the proposed project at clause 1.1.3 Note 1; clause 7.1 Notes 2 and
9; clause 7.2 Note 1. True copy of Extracts of the IS 875 have been
annexed hereto and marked as Annexure P-2 (at page ____ to
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____). It is submitted that an acknowledgment for the need of a
wind tunnel test can even be found in the contract dated
28.06.2018 between the Respondent PWD and Larsen and Toubro,
the contractors engaged for the construction of the proposed
project. The Petitioners submit that clause 5.3 of the said contract
stipulates that a wind tunnel test be conducted for the proposed
project. However, to the astonishment of the Petitioners, the said
wind-tunnel test appears to be called for by the Respondent
Authorities as an afterthought to the commencement of the
proposed project.
37. The Petitioners submit that although no wind tunnel test has
been conducted thus far, the proposed project has been sanctioned
by the Respondent Authorities and the proposed project has been
granted a variety of clearances and NOCs despite the fact that the
elementary aspects of the project, such as its safety and structural
integrity have not been conclusively determined by the concerned
authorities. In fact, the Design Basis of the statue structure, Design
Strategy. Design Approach, and the of course the Design itself is
not available with the project Proponents even 8 months after the
award of the final contract on 28.06.2018. True copy of the PWD
letter dated 18.02.2019 has been annexed hereto and marked as
Annexure P-44 (at page ____ to ____).
38.A copy of the body of the contract dated 28.06.2018 between
the Respondent PWD and Larsen and Toubro, without its
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appendixes has been annexed hereto and marked as Annexure
P-32 (at page ____ to ____).
39.The Petitioners submit that the length of the sword alone is
equivalent to 15 storied building and the overall height of the
monument is equivalent to a 70 storied building. Yet, the lack of
concern regarding the structural security of the proposed project
which is specified to withstand cyclonic winds of 198 kmph, is
perhaps the most blatant instance of arbitrariness and violation of
Article 14 of the Constitution of India with regards to the proposed
project on the part of the Respondent Authorities. The Petitioners
therefore urge that the structural safety of the concept design be
analysed on the basis of wind tunnel tests, and only if found
satisfactory may any further construction work be progressed.
40.The Petitioners submit that replies to RTI applications widely
covered in the press indicates that on two occasions, two different
officers of the Chatrapati Shivaji Maharaj Memorial Project Division,
Mumbai had noted that due to several irregularities with respect to
the proposed project, the officers felt compelled to bring specific
instances of legal and procedural lapses pertaining to the project to
the attention of their superiors. In a letter dated 24.07.2018, the
Senior Divisional Accounts officer of the Chatrapati Shivaji Maharaj
Memorial Project Division, Mumbai brought on record the details of
the negotiations undertaken by Larsen and Toubro Ltd. during the
cost optimisation process for the proposed project, and noted how
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these negotiations fall foul of the Central Vigilance Committee’s
guidelines disallowing negotiations in tender. The said officer also
noted that the contract between Larsen and Toubro and the
Respondent PWD was signed by the incorrect signatory, the
Executive Engineer, instead of the Chief Engineer.
41.In another letter dated 26.02.2019, the Divisional Accounts
Officer (GR. 1) wrote to the Senior Accounts officer (W.M Cell) that
the proposed project was plagued with serious infirmities that
made it necessary for the project to be systematically audited by
the office of the Auditor General. The said letter clearly illustrates
the anguish of the Divisional Accounts Officer (GR. 1) as he was
unable to follow any real direction with regard to the project, and
acknowledged that since “there may be pressure from higher
authority to pay the finance for the work done till now as
demanded by the agency” the officer was facing difficulty in
determining what was the correct course of action he should
pursue further. True copy of the RTI reply dated 07.03.2019 bearing
the two letters dated 24.07.2018 and 26.02.2019 has been
annexed hereto and marked as Annexure P-46 (at page ____ to
____).
42.The Petitioners therefore submit that since the officers who
oversee and work closely on the proposed project have also put
forth their apprehensions to the project on record, until such time
as a detailed audit is performed by the Auditor General as
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requested by the the Divisional Accounts Officer (GR. 1), the
proposed project should not be proceeded with.
2. Whether the Amendment Notification of the Respondent
MoEF&CC No. S. O. 556(E) dated 17.02.2015 introduced sub-clause
(ii)(j)(D) of clause 4 of the CRZ Notification of 2011 for the first time
without first being published in the draft amendment notification
bearing S.O. 3202 (E) dated 11.12.2014?
43.On 11.12.2014, the Respondent MoEF&CC published a draft
notification bearing S.O 3202 (E) to amend the CRZ Notification of
2011. True copy of the said draft notification, annexed to the
present petition at Annexure P-14 (at page ____ to ____) above,
was published under Rule 5(3) of the Environment Protection Rules,
1986, for the information of the public likely to be affected thereby.
It is noteworthy that Rule 5 and its sub-rule 3(a) and 3(b) provides
for the manner in which the Central Government can publish notice
in the Official Gazette of its intention to impose restrictions on the
carrying on of processes and operations in an area. Sub-rules 3(c)
and 3(d) of Rule 5 further provide that any person interested in
filing an objection against the imposition of prohibition or
restrictions as notified by the Central Government may do so in
writing to the Central Government within sixty days from the date
of publication of the notification in the Official Gazette. Following
the submission of objections, the Central Government is to consider
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the objections received within a further sixty-day period and within
one hundred and eighty days of the publication of the original
notification, the Central Government is to take a decision whether
to implement the said restrictions/prohibitions etc.
44.In the aforesaid draft notification S.O 3202 (E) dated 11.12.2014,
the MoEF&CC sought to introduce an exception to the existing
prohibition of construction and development in CRZ IV-A areas by
providing for memorials/monuments and allied facilities to be
constructed by State Governments in exceptional circumstances
after taking adequate environmental safeguards. The draft
notification provided that (i)the concerned State Government
seeking to construct such statues or memorials were to submit a
justification for locating the project in CRZ areas along with details
of alternate sites on the basis of a weighted matrix in order to
obtain the Terms of Reference (“ToR”) (ii)the submission of a draft
EIA Report and the Environment Management Plan (EMP), draft
Risk Assessment Report with Disaster Management Plan (DMP)
including an on-site and off-site emergency plan and evacuation
plan was to be discussed during the public hearing of the project
(iii) the final EIA Report, EMP, Risk Assessment Report with DMP
submitted by the State Government had to address the relevant
issues raised by the public during the public hearing.
45.It is submitted, however, that the final amendment notified by
the Respondent MoEF&CC bearing S.O 556(E) dated 17.02.2015
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(hereinafter referred to as the “impugned amendment”) pertaining
to the permission for constructing memorials and statues in CRZ IV
A, provided for an entirely new provision which permitted the
Central Government to dispense with the requirement of a public
hearing under certain circumstances. In the said notification, which
amended the CRZ Notification 2011 by substituting Clause 3(ix),
Clause 3(xiii) & inserting Clause 4(ii)(j)(A), (B) & (D), the newly
added Clause 4(ii)(j) (D) now provides,
“The Central Government may, if it considers
necessary so to do, dispense with the requirement of
public hearing referred to in sub-item (B), if it is
satisfied that the project will not involve rehabilitation
and resettlement of the public or the project site is
located away from human habitation.”
It is submitted that the aforementioned provision was completely
alien to the draft amendment S.O 3202 (E) dated 11.12.2014, as it
permits the dispensation of the very process that the draft
amendment laid most emphasis on, which was the mandatory public
hearing prior to the establishment of any statue or memorial in CRZ
IV-A areas.
True copy of final amendment notified by the Respondent MoEF&CC
bearing S.O 556(E) dated 17.02.2015 is annexed and hereto marked
as Annexure P-20 (at page ____ to ____).
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46.It is submitted that the draft amendment dated 11.12.2014 as
notified expressly required the State Pollution Control Board to
conduct a public hearing for such proposed Memorial projects in
accordance with the procedure laid down under the Environment
Impact Assessment notification and required the State Government
to address the issues raised by the public in the Public Hearing
before submitting the final EIA, EMP & other reports to the CZMA
for their examination and recommendation to MoEF. Hence, it can
be seen that the primary focus of the draft amendment, to the
extent that it pertained to the establishment of any statue or
memorial in the CRZ IV-A area, was to ensure that a public hearing
was undertaken prior to such projects, and that the grievances
raised at the time of the public hearing were adequately addressed
prior to the project being considered finally for a CRZ clearance.
47. The impugned amendment notification dated 17.02.2015,
particularly Clause 4(ii)(j) (D) however, considerably diluted the
provisions of the draft it was purportedly enforcing. The Petitioners
submit that a provision conferring the Central Government with the
discretionary power to dispense with a public hearing for a project
pertaining to the establishment of any statue or memorial in the
CRZ IV-A cannot be reconciled to be consistent with the provisions
of the draft notified on 11.12.2014.
48. It is submitted that by directly introducing Clause 4(ii)(j)(D) in
the amendment notification dated 17.02.2015 and not in the draft
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notification dated 11.12.2014, the Respondent MoEF&CC did not
provide the public at large with an opportunity to submit objections
or suggestions to the said sub-clause for the consideration of the
MoEF&CC in contravention to the procedure envisaged under Rule
5(3) of the Environment Protection Rules and its sub-clauses. It is
further submitted that it is settled law that when a statutory body
invites objections to a published draft rule or bye-law, as required
by the governing statute, it is open for the concerned authority to
consider objections and suggestions and thereafter make changes
to it. However, changes so made by the said authority, must be
incidental or ancillary to the draft, which was published for the
purpose of inviting objections. Changes, therefore must be
conceivable within the framework of the draft rule or bye-law and
not alien to it. Accordingly, it is submitted by the Petitioners that
the decision of the Respondent MoEF&CC to introduce Clause 4(ii)
(j)(D) in the amendment notification dated 17.02.2015 and not in
the draft notification dated 11.12.2014 was contrary to the
procedure envisaged under Rule 5(3) of Environment Protection
Rules and the well-established judicial precedent as per judgments
of this Hon’ble Court in the matter of State of Punjab v. Tehal
Singh, (2002) 2 SCC 7
49.Accordingly, the Petitioners submit that the amended Clause 4(ii)
(j)(D) of the CRZ Notification, 2011 deserves to be set aside by this
Hon’ble Court on account of being arbitrarily added to the CRZ
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Notification of 2011 and rendering the process of accepting public
objections to the draft amendment notification of 11.12.2014 as an
empty formality in contravention to Article 14 of the Constitution of
India .
3. Whether sub-clause (ii)(j)(D) of clause 4 of the CRZ Notification
of 2011 and sub-clause (xv) (d) of clause 5.4 of the newly notified
CRZ Notification of 2019 dated 18th January 2019, are ultra vires of
Article 14 and 21 of the Constitution of India as well as the CRZ
Notification 2011 and the Environmental Protection Act, 1986?
50.It is submitted that the importance of a public hearing in
environmental matters is settled law. While discussing the
importance of a public hearing as required under the Environmental
Impact Assessment Notification, 2006 in its judgment in the matter
of Alaknanda Hydro Power Company Limited v/s Anuj Joshi & Ors.
[2014 (1) SCC 769], this Hon’ble Court observed:“The purpose of
public hearing, it may be noted, is to know the concerns of the
affected people and to incorporate their concerns appropriately into
the EMP and it is after incorporation of the concerns and revision/
modifying plan, the final EMP would be submitted to the MoEF for
granting environmental clearance.”
51.F u r t h e r, w h i l e s e t t i n g o u t t h e s t r i c t g u i d e l i n e s
required to be followed for environmental matters, this Hon’ble
Court, in the landmark judgment of Lafarge Umiam Mining Private
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Ltd. v/s Union of India & Ors (AIR 2011 SC 2781), held “The public
consultation or public hearing as it is commonly known, is a
mandatory requirement of the environment clearance process and
provides an effective forum for any person aggrieved by any aspect
of any project to register and seek redressal of his/her grievances”.
52.The Petitioners submit that the aforementioned observations of
this Hon’ble Court correctly notes the importance of a public
hearing as being the only effective forum for affected persons to
put forth their grievances pertaining to a project. As per Clause
7(III) (vii) read with Appendix IV of the EIA Notification of 2006,
the proceedings of the public hearing are to be incorporated within,
or submitted as supplement to, the final Environmental Impact
Assessment (EIA) Report and EMP presented to the regulatory
authority which is to decide whether or not a proposed project is
granted an environmental clearance. It is submitted that this
process is therefore the only opportunity for the public to have any
meaningful say in the manner in which a large scale project
involving major construction/reclamation and requiring prior
environmental clearance is designed and engineered. It is
noteworthy that all projects requiring prior environmental
clearances are of a scale that will necessarily have an adverse
impact on the environment and often the livelihoods of locals, and
therefore with each such project, there arises a right of the affected
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locals to put forth their grievances with relation to a project that
they otherwise play no role in planning.
53. It is further submitted that the impugned amendment dated
17.02.2015 seeks to confer discretionary powers to the Central
Government to dispense with public hearings, and when invoked,
will entirely eliminate an opportunity for the public to put forth their
grievances with regards to the project concerned. The Petitioners
submit that the conditions put forth in the impugned amendment
as to when Clause 4(ii)(j)(D) can be invoked can be summarised as
follows:
a) That the project in question should involve the construction
of a memorial or statue by the State Government
b) The said memorial or statue should be sought to be built in
CRZ -IV A areas
c) the Central Government must be satisfied that the project
will not involve rehabilitation and resettlement of the public
d) the Central Government must be satisfied that the project
site is located away from human habitation
54. It is humbly submitted by the Petitioners, that since CRZ-IV A
areas are defined under Clause 7 of the CRZ Notification to be “the
water area from the Low Tide Line to twelve nautical miles on the
seaward side.” any construction within such areas will always affect
the traditional coastal community residing in the area concerned.
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Accordingly, the Petitioners submit that these coastal communities,
generally comprising of fishermen, should be permitted to submit
their grievances in a public hearing process as envisaged under
Clause 4(ii)(j)(A), (B) and (C) of the CRZ Notification of 2011 as
well as the EIA Notification of 2006.
55.It is submitted that large scale development in CRZ-IV A areas
will inevitably adversely impact the water within which these
constructions are being made as well as the livelihood of these
coastal communities. Indeed, the EIA report of the proposed
project shows that, the shallow waters around the said project
provide a conducive environment for fish eggs, larvae, oysters,
clams and planktons to sustain.There are coral reefs in the region
which are teeming with rare forms of flora and marine fauna. The
reclamation and the increase in tourist boat traffic will cumulatively
result in massive habitat destruction. The EIA Report of the Project
also records that “road widths in the area are not sufficient to
accommodate the increase of 10000 vehicles per day“ and that
“unimaginable traffic jams are anticipated with expected increase
in number of vehicles”. The Petitioners submit that further details of
the environmental consequences of the proposed project and the
impact of the livelihood of the fishermen as identified by the EIA
report have been described elsewhere in the present petition.
56.It is submitted that as per its preamble, the CRZ notification of
2011 stipulates that it was notified, “with a view to ensure
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livelihood security to the fisher communities and other local
communities, living in the coastal areas”. The Petitioners submit
that across the notification, various provisions are made to ensure
that traditional fishing activities are not hampered within coastal
regulation zones, whilst restrictions are placed on development and
construction activities. Therefore, it is evident that the CRZ
Notification of 2011 clearly recognises the importance of
maintaining the ecological sanctity of coastal areas in order to
protect traditional communities and their livelihood. It is
noteworthy that most traditional coastal communities have existed
for hundreds of years while exclusively practising their customary
forms of employment such as fishing. Members of these
communities often have little or no training to seek other forms of
employment and livelihood, and the protections granted to them
under the CRZ Notification of 2011 to practice their trade and
profession are therefore necessary and consistent with their rights
under Article 19(g) of the Constitution of India. The Petitioners
therefore submit that prior to the impugned amendment
notification, the CRZ Notification of 2011 prioritised the needs and
interests of the coastal communities as well the need to maintain
the ecological sensitivity of coastal areas over economic and
commercial interests. However, the impugned amendment, if left as
it currently is, would result in undoing the protections otherwise
granted to these coastal communities and would be contrary to the
rights of the coastal communities under Article 19(1)(g) of the
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Constitution, as the coastal communities would be bereft of any
opportunity to gainfully present their grievances pertaining to a
proposed monument, memorial or statue in a CRZ-IV A area.
57. In its judgment in the matter of M.C. Mehta v. Kamal Nath,
(1997) 1 SCC 388 at page 413, this Hon’ble Court observed as
follows,
“We are fully aware that the issues presented in this
case illustrate the classic struggle between those
members of the public who would preserve our rivers,
forests, parks and open lands in their pristine purity
and those charged with administrative responsibilities
who, under the pressures of the changing needs of an
increasingly complex society, find it necessary to
encroach to some extent upon open lands heretofore
considered inviolate to change. The resolution of this
conflict in any given case is for the legislature and not
the courts. If there is a law made by Parliament or the
State Legislatures the courts can serve as an
instrument of determining legislative intent in the
exercise of its powers of judicial review under the
Constitution. But in the absence of any legislation, the
executive acting under the doctrine of public trust
cannot abdicate the natural resources and convert
them into private ownership, or for commercial use.
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The aesthetic use and the pristine glory of the natural
resources, the environment and the ecosystems of our
country cannot be permitted to be eroded for private,
commercial or any other use unless the courts find it
necessary, in good faith, for the public good and in
public interest to encroach upon the said resources.”
58. The Petitioners submit that in accordance with the above
described findings of the Hon’ble Supreme Court, it is evident that
the legislative intent behind the CRZ Notification of 2011 is to
preserve coastal regions from indiscriminate and ecologically
unsound development while simultaneously upholding the rights
of traditional coastal communities under Article 19(1)(g) of the
Constitution, and hence the impugned Clause 4(ii)(j)(D) is
inconsistent with the CRZ Notification of 2011 and is ultra vires of
the Constitution of India. It is further submitted that the CRZ
Notification of 2011 is notified under its Parent Act, namely the
Environment Protection Act, 1986, which was enacted by the
Parliament to adopt the commitments made by Central
Government with regards to the ratification of the United Nations
Conference on the Human Environment held in Stockholm in June,
1972. It is submitted that the impugned Clause 4(ii)(j)(D) is also
contrary to the Environment Protection Act, 1986. It is humbly
submitted that the impugned Clause 4(ii)(j)(D) of the CRZ
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Notification of 2011 should be struck down from the CRZ
Notification of 2011 in accordance with the doctrine of severability.
59. It is further submitted, that even otherwise, it is not only the
right of the coastal communities that will be adversely affected by
Clause 4(ii)(j)(D) of the CRZ Notification of 2011. The public at
large is also vested with a right to put forth its objections to a
large scale, environmentally unsound development project, as
such rights arise from the public trust doctrine as well as Article 21
of the Constitution of India, which has been interpreted by this
Hon’ble Court in the matter of M/S. Sterlite Industries v The
Chairman Tamil Nadu Pollution Control Board to also give, by
necessary implication, the right against environmental degradation
and that the right to clean environment is a guaranteed
fundamental right.
60. It is therefore submitted that the rights of the public at large to
participate in a public hearing for a project sanctioned under the
Clause 4(ii)(j) of the CRZ Notification of 2011 should not be
curtailed by the impugned Clause 4(ii)(j)(D)
61. It is also submitted that any memorial, monument or statue
located within CRZ-IV A areas can never truly be considered to be
away from human habitation, as such sites will always be tourist
destinations. Indeed, the current estimates for the proposed
projects suggests that there will be 10,000 visitors to the
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proposed project everyday. Hence, the establishment of a
memorial, monument or statue located within CRZ-IV A under
clause 4(ii)(j) of the CRZ Notification of 2011 can never in reality
meet the parameter laid out in the impugned Clause 4(ii)(j)(D)
requiring the Central Government to be satisfied that the project is
away from human habitation. The Petitioners therefore humbly
submit that the Clause 4(ii)(j)(D) of the CRZ Notification of 2011
should be struck down from the CRZ Notification of 2011 on
account of being ultra vires to the right against environmental
degradation and that the right to a clean environment under
Article 21 of the Constitution of India as well as being contrary to
the public trust doctrine.
62. It is also submitted that sub-clause (xv) (d) of clause 5.4 of the
newly notified CRZ Notification of 2019 dated 18th January 2019,
which is worded as a verbatim reproduction of Clause 4(ii)(j)(D) of
the CRZ Notification of 2011, should also be set aside as being
ultra vires of the Environmental Protection Act, 1986, the
Constitution of India and is contrary to the public trust doctrine on
the aforementioned grounds described with relation to Clause 4(ii)
(j)(D) of the CRZ Notification of 2011.
4. Whether the proposed project would require a public hearing
under the EIA Notification, 2006?
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63. It is submitted that assuming without admitting that the public
hearing for the proposed project can be dispensed with under the
amendment to the CRZ Notification, 2011, the proposed project
would still require a public hearing to be conducted as per the
provisions of the EIA Notification 2016
64. As per the provisions of the paragraph 4 of the CRZ Notification,
2011, the projects listed under the CRZ Notification, 2011 which
attract the provisions of the EIA Notification, 2006, requires prior
environmental clearance under the EIA Notification, 2006 subject
to being recommended by the concerned State or Union territory
Coastal Zone Management Authority.
65. It is submitted that the proposed project requires an EIA
clearance under the EIA Notification of 2006 on account of falling
under the category of “Building and Construction” projects under
item 8(a) of the Schedule to the EIA Notification of 2006. The
construction of the subject project is admittedly proposed at a
location being an oval shaped rocky outcrop of approximately 650
m x 325 m in size, and it measures 1,59,600 sq.m. during the
lowest tide. As the area of the proposed project exceeds 20,000
sq.m and the built-up area exceeds 1,50.000 sq. m, it falls under
category B1 projects and requires an Environmental Clearance to
be granted by the State Level Expert Appraisal Committee, and
would require a public consultation under Clause 7(III) of the EIA
Notification 2006. Accordingly, even though the construction
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activities contemplated in the subject project are per se prohibited
under the CRZ Notification, 2011 as stated above, the subject
project in any case admittedly attracts the provisions of EIA
Notification, 2006 and hence prior environmental clearance is
required after undertaking the mandatory public consultation.
66. However, the proposed project was granted a combined
Environmental and CRZ clearance on 23.02.2015 without first
undertaking a public hearing as per the impugned amendment,
even though clause 4(i)(b) the CRZ Notification of 2011 requires
the procedure of the EIA Notification of 2006 to be complied with
when a project attracts the application of both the CRZ
Notification of 2011 and the EIA Notification. It is accordingly
submitted that the combined Environmental and CRZ Clearance
dated 23.02.2015 as amended on 15.06.2018 should be set aside
on account of the fact that no mandatory public hearing as
required under under Clause 7(III) of the EIA Notification 2006
read with clause 4(i)(b) the CRZ Notification of 2011 was
undertaken.
5. Whether the proposed project is environmentally sound?
67. It is submitted that a consequence of the absence of a public
hearing of the project has been that various adverse
environmental consequences identified within the EIA Report have
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not been addressed by the Respondent Authorities prior to the
various clearances being granted to it.
68. The Petitioners state and submit that there are various fishing
villages near Mumbai (Mumbai Koliwadas) that will be directly
affected through the proposed reclamation of about 40 acres of
land and the erection of this 212 mtr. statue with allied activities
on the shallow waters and the designated fishing zone. The
Koliwadas that are directly and substantially affected by this
project are Babulnath Chowpatty Koliwada, Cuffe Parade Koliwada,
Sudam Zhopad Koliwada and Colaba Koliwada. These Koliwadas
are either on the periphery or beyond by a distance of 2 kms from
Marine Drive. It is an undisputed fact, that the project site falls in
the Mumbai Fishing Zone of Mumbai District as notified under the
Maharashtra Marine Fishing Regulation Act, 1981.
69. Based on all previous scientific reports, occurrence of species,
biomass and density observed through experimental trawling on
the project area, the EIA Report for the proposed project has
categorically stated that “the fishing grounds encompassing the
project domain are under the influence of intense fishing
pressure”. Further, it is a scientific fact that fish eggs and larvae
are essential to commercial fisheries in the area and survival of
such sensitive fish eggs and fish larvae depend on the rich
phytoplankton and zooplankton biomass, which act as a good
nursery ground afforded by the surrounding environment. The EIA
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Report for this project specifically recognizes the fact that fish
eggs and larvae are relieved from heavy fishing pressure in the
area:
“Commercial fish species are abundant ones and
during their adult lives, most migrate from feeding
grounds to spawning ground and back again every
year. The spawning season may last for few days or
few months for particular species. The eggs take up
water as they are released and spawn in batches. In
the present case, not a single fish having mature
ovary was detected. It can be stated that spawning
takes place in offshore waters. From there, the eggs
and larvae could get drifted away by tides and
currents to Mumbai coast where the eggs hatch out
into larvae and mature into young fish. Furthermore,
the presence of rocky outcrops in the project domain
offers relief from heavy fishing pressure and may also
act as a shelter for the young ones to complete their
life cycle. Thus, based on the limited data, it appears
that the coastal marine waters of Mumbai having rich
phytoplankton and zooplankton biomass could act as
a good nursery ground for the commercially
important fishes for a limited period as evident from
the predominant zero-year (i.e. <1 year) size-class of
the fishes, fish egg and larval distribution.”
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70. It is therefore evident that the destruction of 40 acres of this
rocky outcrop, which is submerged during high tides and visible
only during the neap tides, will result in the primary resource base
getting wiped out, and the livelihood of such fishermen in the
neighboring Koliwadas and fishing villages will be in serious
jeopardy and shall instill high livelihood insecurity, leading to the
primary objective of the CRZ Notification, 2011 being defeated.
True Copy of the relevant paragraphs of the EIA Report on the
study of fisheries resources is annexed hereto and marked as
Annexure P-12 (at page ____ to ____).
71. The EIA report has acknowledged the fact that that shallow
waters around the said project have abundance of
phytoplankton (Microscopic plants) and zooplankton
(Microscopic animals). Phytoplankton and Zooplankton are the
foundation of aquatic food web as they are the primary
producers who feed on bacteria and get grazed by small fish
and invertebrates and with nutrient concentration and
conditions being optimal in the waters of the said region, there
is a healthy growth of both. The EIA has revealed that surface
waters in the study area indicates that the phytoplankton
contribution to the organic pool is significant. The report
acknowledges that that Zooplankton by virtue of its food value
to higher animals forms a vital link between phytoplankton and
fish and hence, is an indicator of fish productivity of a marine
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area. It also recognizes the fact that the project area has
standard reduction potentials for live food organism’s resources
for fish and shellfishes. Such planktons act as a good nursery
ground for the commercially important fishes. True copy of the
relevant study on Phytoplankton and Zooplankton extracted
from the EIA report are annexed as Annexure P-13 (at page
____ to ____).
72. It is submitted that there has been a study on socio-economic
outcomes due to land reclamation in development projects
implemented between 1970 and 2011 in Mumbai undertaken by
Mumbai Transformation Support Unit (hereinafter referred as
“MTSU”) in May, 2015. MTSU is a body set up by the Government
of Maharashtra along with the World Bank in 2004 to facilitate the
process of Mumbai’s transformation by advising on, coordinating
and monitoring projects to improve the overall quality of life.
MTSU’s study on socio-economic outcomes of reclamation pertains
to what changes in the livelihood pattern have fishing
communities of Mumbai faced due to past developments on
reclaimed land and scrutinized the impact of urbanization on 3
fishing villages; one of them being Cuffe Parade, Koliwada. The
said study states that Cuffe Parade Koliwada is selected as one of
the 3 study area locations amongst 37 Koliwadas in Mumbai
because Cuffe Parade Koliwada is likely to have the maximum
impact due to the proposed South Mumbai Financial Centre and
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the Chatrapati Shivaji Statue. The MTSU study on Cuffe Parade,
Koliwada has specifically dealt with the issue of the Statue in the
sea and the reclamation for accessing the statue by categorizing
its environmental effects and socio-economic effects. The
environmental effect of this statue has been analysed to have the
effect of causing change in the flow of water, causing rise of water
level. On an equal position, the socio-economic effects have been
analysed to have the effect of “narrowing the approach way for
the fishing affecting the rock based fish production and due to rise
in water level and further reclamation, the possibility of water
accumulation may occur.” This clearly reflects the need to preserve
the livelihood security of fisher folk community as the area is
prone to increase in sea water level rise after the reclamation for
the statue which would collapse the primary fishery resources.
True copy of the relevant extracts of the MTSU study called
“Socio-Economic outcomes due to land reclamation in
development projects implemented between 1970 and 2011 in
Mumbai” undertaken in May, 2015 is annexed hereto and marked
as Annexure P-23 (at page ____ to ____).
6. Whether there has been proper application of mind on the part
of the Respondents Authorities while granting clearances to the
proposed project?
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73. The Petitioners submit that the EIA report of the proposed
project at Figure 1.12 indicates the Routes for the boats carrying
Tourists from Nariman Point and Gateway of India. A perusal of
the said figure reveals that the proposed route has been marked
in red over an extract of Hydrographic Chart No. 2016. True copy
of the relevant extracts of the EIA report of the proposed project
has been annexed hereto and marked as Annexure P-11 (at
page ____ to ____). It is submitted that this route identified in
Figure 1.12 shown from Gateway of India to the memorial site
traverses over 4 exposed wrecks and two submerged wrecks
marked, on the very same Hydrographic Chart 2016.The
Petitioners submit that passing over submerged shipwrecks is
dangerous to surface navigation and is unthinkable for a project of
this nature, which is purportedly being constructed to be a tourist
attraction.
74. It is submitted that marking the track without reference to safety
of navigation indicates complete negligence and non-application of
mind on the part of the Respondent Authorities that have
sanctioned the proposed project. It is further submitted that route
shown from Nariman Point to the site of the proposed project also
traverses, for 1.5 km, over shallow water unsuitable for the 100
passenger boats selected for the project as per the Detailed
Project Report. (“DPR”). True copy of th extracts of the DPR
indicating the boat design for ferrying passengers from various
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embarkation points at Mumbai to the memorial site has been
annexed hereto and marked as Annexure P-25 (at page ____ to
____). It is submitted that these boats are capable of
withstanding wave heights of only 0.5m and are hence incapable
of transporting passengers to the memorial site safely.
75. Considering the fact that access to 10,000 visitors per day by
boat is central to the project concept, the cavalier treatment and
non-application of mind of the aspect of accessibility by boat
requires postponement of the project, till feasible solutions are
found, or the project relocated.
76. It is submitted that the route identified in the EIA report of the
proposed project resulted in the death of one person, when a
delegation of officials attempted to visit the site of the proposed
project to conduct a “bhoomi puja” on 24.10.2018. The boat
carrying the said delegation capsized en route to the site of the
proposed project upon hitting an underwater rock, leading to the
unfortunate and avoidable death of a young man. True copy of
news report chronicling the accident on 24.10.2018 has been
annexed hereto and marked as Annexure P-38 (at page ____ to
____). The Petitioners submit that responses to RTI applications
submitted by them reveal that there has been no progress made
into an enquiry about the accident of 24.10.2018.
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77. True copy of responses dated 13.02.2018 to the RTI Applications
of the Petitioner regarding the status of the enquiry into the
accident of 24.10.2018 has been annexed hereto and marked as
Annexure P-43 (at page ____ to ____)
The Inland Vessels Act, 1917
78. The Petitioners submit that the proposed project, as it is
currently planned, would result in gross violations of the Inland
Vessels Act of 1917 and its corresponding Rules of 1957. The
Petitioners submit that the E.I A. report of the proposed project
failed to state that passenger vessels registered under the Inland
Vessels Act, 1917 cannot cross the Maritime Base Line as
promulgated by the Government of India Gazette Notification No.
S.O.1197(E) dated 11.05.2009. True copy of the said Notification
No. S.O.1197(E) dated 11.05.2009 has been annexed hereto and
marked as Annexure P-4 (at page ____ to ____).
79. It is submitted that the Maritime Base Line as promulgated by
the aforementioned notification defines the internal or inland
waters of India. This base line defines the limit of the areas of
operation of Inland Vessels, or vessels registered under the Inland
Vessels Act, 1917. True copy of the Maritime Base Line relevant to
Western Mumbai region is a series of lines joining Mehti Khada –
Outer Reef Backbay- Prongs Reef – Kanhoji Angre Light, as
annexed hereto and marked as Annexure P-5 (at page ____ to
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____). It is therefore submitted that the site of the proposed
project is not reachable by Inland vessels from harbours along the
coast of Maharashtra or ports in Mumbai region e.g. Bandra,
Versova, Manori and Vasai who will have to cross the baseline to
leave their harbours.
80. It is submitted that responses to RTI Applications submitted by
the Petitioners reveal that:
A. Mumbai Port Trust, which regulates operations in the
Mumbai Harbour Area has not licensed any passenger
boat to ply outside the limits of Inland waters or the
Maritime Base Line.
B. Mumbai Port Trust has also not permitted any
passenger boat to proceed to the memorial site. True
copy of the cumulative RTI replies from the Mumbai
Port Trust are dated 13.12.2018 and have been
annexed hereto as Annexure P-40 (at page ____ to
____).
81.Maharashtra Maritime Board has no passenger boats registered
with Indian Register of Shipping which would entitle them to
proceed to CSM Memorial Copies of responses to the RTI
Applications of responses to the RTI Applications of the Petitioner
by the Maritime Board dated 26.04.2017 and 9.05.2017. True copy
of the responses to RTI applications dated 26.04.2017 and
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9.05.2017 have been annexed hereto and marked as Annexure
P-27 (at page ____ to ____).
82.The Petitioners submit that the Inland Vessels (Construction and
Survey) Rules of 1957 issued by the Government of Maharashtra
also demarcate ‘fair weather’ and ‘foul weather’ lines. These lines
demarcate the mouth of the harbour of Mumbai city to indicate
how far towards the sea inland vessels can navigate during
monsoon weather conditions (foul weather line) and how far
towards the sea such inland vessels can navigate during the non-
monsoon weather conditions (fair weather line). As per Rule 1(ii)
(a), the “fair weather” line is defined as the Tidal waters of the
Bombay Harbour and rivers leading into it that are to the north and
East of an imaginary line drawn from Colaba point to Thull Knob,
during the period of fair-weather season from 1st September to
25th May. As per Rule 1(ii)(b), the “foul weather” line is defined
as the Tidal waters of the Bombay Harbour and rivers leading into
it that are to the north and East of an imaginary line drawn from
Colaba in Transit Sunk Rock Lighthouse to the North Brow of the
Great Karanja Hill during the period of foul weather season from
26th May to 31st August. True Copy of the Inland Vessels Rules of
1957 has been annexed hereto and marked as Annexure P-1 (at
page ____ to ____).
83.The Petitioners submit that it is common practice in the Mumbai
harbour that no harbour craft can traverse beyond the foul weather
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line during the monsoon months of 26th May to 31st August every
year, for example, from Gateway of India to Mandwa. It is
submitted that since the route to the proposed project crosses
through the foul weather line, the proposed project will be
inaccessible to the public during monsoon months (approximately 3
months) of the year.
84. The Petitioners accordingly submit that the decision to locate
the proposed project beyond the boundaries of inland waters,
which will consequently not be accessible through inland vessels
indicates complete non-application of mind by the Respondent
Authorities. The lack of consideration of the consequences of
the Inland Vessels Act of 1917 on the proposed project by the
Respondent Authorities is further borne out by the fact that the
Respondent PWD has not sought any additional or supplemental
clearances from the relevant government bodies to ensure that
passenger vessels can legally access the proposed project. The
requirement or intention to obtain such clearances are not
mentioned in the EIA Report or DPR for the proposed Project.
The Petitioners submit that the arbitrariness of the site selection
of the proposed project is exacerbated when one considers the
fact that the Statue will not be accessible at all for the 3
monsoon months of June, July, August, even to superior vessels
registered under the Merchant Shipping Act and authorised to
sail outside the limits of Inland waters.
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85.It is submitted that it is noteworthy that six Master Mariners have
issued a statement that “any administration which will allow regular
passenger boat service to venture out of Mumbai harbor in sea
conditions from march to October will be considered irresponsible”.
True Copy of the statement of six master mariners regarding the
proposed project has been annexed hereto and marked as
Annexure P-39 (at page ____ to ____).
Geotechnical Investigation
86.The Petitioners submit that the results of the Geotechnical
Investigation work in respect of the proposed project also reveals
non-application of mind and recklessness toward the construction
of the proposed project as the geotechnical investigation at current
site of the project conducted by Larsen and Toubro Ltd, the
contractor awarded the construction of the proposed project,
revealed different results than those of the investigation of a
private contractor recommended by IIT-Bombay.
87. The Petitioner submits that upon the recommendation of IIT
Bombay, a private contractor was commissioned to conduct
geotechnical investigation for the proposed project in 2014. The
said investigations were conducted across two phases, first for 11
bores having about 30-meter depth, and then further for 3 bores of
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60 metres depth. The Petitioner submits that while the reports of
the second phase of the geotechnical investigation conducted by
the contractor engaged upon the recommendation of IIT Bombay
appears to have not yet been submitted to the Respondent PWD,
the reports of the first phase revealed that the investigation
showed the presence of boulders, breccia, marine soil, slate,
fractured basalt and compact basalt. However, the geotechnical
investigation conducted by Larsen and Toubro Ltd in 2018 revealed
that the presence of Volcanic Tuff was predominant at the site of
the proposed project, and was interbedded with shale (which is
weaker than compact basalt).
88.The Petitioners submit that these discrepancies in the two
reports as well as the non-submission of the report of the second
phase were brought to the attention of the Respondent PWD by the
Petitioners through their NGO. Consequently, the Respondent PWD
was inclined to issue a letter dated 24.09.2018 to the Department
of Civil Engineering of IIT - Bombay, calling upon the Institute to :
a. Critically examine the geotechnical reports of IIT-B in
relation to the interim Geotech report of Larsen and
Toubro Ltd:
b. Prov ide dupl icate copies of comprehens ive
geotechnical consultancy report of IIT-B
c. Provide clarification to the discrepancies pointed out
between the two-conflicting report.
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True Copy of the letter of the Respondent PWD dated 24.09.2018 to
the Department of Civil Engineering of IIT has been annexed hereto
and marked as Annexure P-35 (at page ____ to ____). It is
noteworthy that responses to RTI application reveals no response has
been received by the Respondent PWD to the said letter.
Unsuitability of The Site of The Proposed Project For
Reclamation
89.The Petitioners submit that “reclamation for commercial purposes
such as shopping and housing complexes, hotels and entertainment
activities except for construction of memorials/monuments and
allied facilities, only in CRZ-IV (A) areas, in exceptional cases, by
the concerned State Government, on a case to case basis” was
purportedly authorised in the impugned Amendment to the CRZ
Notification of 2011 dated 17.02.2015. While the constitutional
vires of the said amendment notification has been challenged
elsewhere in the present Writ Petition, the Petitioners submit that
assuming without admitting that the reclamation of land is
permissible within CRZ IV A areas for the purpose of constructing a
memorial such as the proposed project, the present site of the
proposed project is not suitable for the reclamation of land. True
Copy of the extract of the Detailed Project Report Vol II of IV cover
page and page 27 have been annexed hereto and marked as
Annexure P-26 (at page ____ to ____). The Detailed Project
Report also introduced in October 2016, subsequent to the
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Environment Clearance of 23 February 2015, two breakwaters of
total length of 610m without approval of the Central Water and
Power Research Station, Khadakvasla, which is the sole authority
for approving such designs within Mumbai harbour limits.
90.It is submitted that the Hydrographic Chart No. 2016, which has
been cited and used within the EIA Report of the proposed project
itself, indicates that there are internet and communication cables
laid by VSNL falling within 200m of the site of the project. These
cables lie under water along the seabed from Mumbai City to
overseas destinations and have an exceptionally high lethal voltage
of 5000 Volts DC. The Petitioners submit the proximity of such
cables to the tourist site, renders the project site completely
unsuitable for reclamation activities as envisaged for the proposed
project.
91.The Petitioners submit that the NOC for the project issued by the
Western Naval Command on 20.11.2016 records the presence of
these cables and stipulates that prior clearance from VSNL is
required as their cables of 5000v DC are within 200m (minimum
safety distance) of the site of the proposed project. The Petitioners
submit that this clearance has not been obtained from VSNL. and
yet the Commencement date for the construction of the proposed
project was promulgated as 19th October 2018. Warnings by the
Western Naval Command dated 20 November 2006, and repeated
on 23 July 2015, and a letter by the Mumbai Port Trust dated
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10.10.2018 to liaise with the Videsh Sanchar Nigam Ltd (VSNL)
have all been ignored by the project proponents. True Copy of the
letter dated 20.11.2006, and are annexed hereto and marked as
Annexure P-3 (at page ____ to ____).
92.True Copy of the letter dated 23.07.2015 are annexed hereto and
marked as Annexure P-24 (at page ____ to ____).
93.True Copy of the letter dated 10.10.2018 are annexed hereto and
marked as Annexure P-36 (at page ____ to ____).
94.The Petitioners further submit that it is also noteworthy that no
Commencement Certificate was issued for the proposed project in
accordance with the provisions of the Maharashtra Regional Town
Planning Act And hence the commencement letter dated 14
October 2019 is in violation of the Development Control regulations
issued under the Mumbai Metropolitan Regional Development
Authority Act 1974
Unsuitability of The Site Of The Proposed Project for
Reclamation
95.The Petitioners state and submit that apart from the aforesaid
issues there are other procedural lacunae in the manner in which
the Respondents have dealt with the requirement of considering
alternate sites, Clause 4(ii)(j)(A) of the impugned Amendment
Notification dated 17.02.2015 specifically states:
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“(A) The concerned State Government shall submit
justification for locating the project in CRZ area
along with details of alternate sites considered and
weightage matrix on various parameters including
environmental parameters to State CZMA for their
examination and recommendation to MoEF to obtain
Terms of Reference (ToRs) to prepare an
environmental impact assessment report.”
96.It is submitted that the weightage matrix includes 9 different
sites and each site needs to be analyzed extensively. Such 9
alternate sites that have been analysed are:
(i) Elephanta Caves
(ii) Cross Island
(iii) Independent oil ring type structure in
the harbor
(iv) Khanderi Island
(v) Oyester Rock
(vi) Underi Island
(vii) Back bay
(viii)Mahim bay
(ix) Bandra Reclamation
Each site has been assessed by providing brief information of the
site first and further, parameters such as distance of the Site from
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Apollo Bunder, accessibility to the site in all tides, Space available,
construction conditions i.e. feasibility in construction, heritage
monument/fort, safety, environment issues, construction cost and
subsequently the final verdict based on point mechanism was
assessed. Not only has the complete analysis ignored other
important aspects such as social consequences, but the information
within the parameters have been provided with no specific details
such as the reasons for why “construction conditions are feasible/not
feasible” for a specific site, it only includes vague comments such as
‘not fair’, ‘not easy’, ‘fair’, etc. Further, no detailed information on the
safety aspects as well as the available space (only shows ‘sufficient’
and ‘insufficient’ with no figures). The remarks include gross errors
such as presence of gas tanks and oil seepage at Cross Island which
has been uninhabited for over 70 years. Further, the site selection
under the EIA Report includes only 3 areas whereas the weightage
matrix Table has 10 sites in total. Such gross misrepresentation and
underreporting of the alternate site in the final EIA Report shows
complete disregard to the EIA process under the EIA Notification,
2006 and against the letter and spirit of the CRZ Notification, 2011.
True Copy of the weightage matrix table of alternate sites is annexed
hereto and marked as Annexure P-16 (at page ____ to ____).
97. It is submitted that apart from lack of detailed information on the
weightage matrix of alternate sites, the process of site selection
itself had no parameter to assess the vital sociological aspects of
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the construction of such a project for each site and this in itself
shows the authorities to have completely neglected the study of the
development, structure and functioning of the fisher folk
community in the alternate sites analysed. Therefore, Respondent
Authorities, have failed to consider to secure the necessities of
fisher folk community as all alternate sites that have been analysed
are in CRZ areas. It can be clearly ascertained that the entire
project has excluded the oldest residents of Mumbai; the fisher
folk.
98.It is therefore submitted that the combined Environmental and
CRZ Clearance dated 23.02.2015 and its amendment granted on
15.06.2018 is arbitrary, invalid and inconsistent with the EIA
Notification, 2006 and the CRZ Notification, 2011 as well as Article
14 of the Constitution of India. The decision to go ahead with the
proposed project without considering the response of the most
vulnerable section of public is arbitrary, illegal and the process for
the clearance is void in law. Public Consultation is based on the
principle of participatory democracy, community participation and it
also ensures that the affected persons have a say and their voice is
heard.
99.It is further submitted that the fact that the proposed project
admittedly falls within the CRZ - I area as classified under the CRZ
Notification of 2011 has not been considered at all by the
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Respondent Authorities prior to the issuance of the CRZ clearance
to the proposed project. It is submitted that the presence of corals
at the site of the proposed project and the fact that this region is
an intertidal region as per the EIA Report for the proposed project
renders the site of the proposed project to be CRZ - IA and CRZ -IB
areas respectively. Accordingly, assuming without admitting that the
proposed project can be permitted to be constructed on CRZ-IV A
areas in light of the amendment to the CRZ Notification dated
17.02.2015, the proposed project does not fall within the realm of
permissible development/activities in CRZ I areas.
100.The Petitioners submit that the EIA report of the Proposed
Project records the presence of ecologically sensitive corals and
sponges in the site of the proposed project. The said report notes
the following:
“Few soft coral species (octocorals) were also recorded
from the rock pools of the study site region (Plate 2.17).
While Zoanthus sansibaricus is a coral associate and
known for its biomedical properties, the sponges are
sessile and filter feeders and typically live in rock
crevices, sucking up plankton and organic matter
released into the sea by corals. They filter water
through their porous bodies and ingest food particles.
With their higher water filtering rate help in maintaining
good environmental conditions and hence they can be
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termed as “natural water filters”. Sponges can grow
successfully in an area with a strong current and often
found attached to marine reefs. It is also observed that
sponges soak up nutrients in seawater and turn them
into food for reef organisms. Consequently sponges
keep the reef alive - by recycling vast amounts of
organic matter to feed the other habitants such as
snails, echinoderms, shrimps, crabs and others. On the
other hand, soft coral or octocorals deposit calcite
sclerites as internal supporting structures which is very
useful in coral growth and thus are considered as “Reef
Builders”.
101.The Petitioners therefore submit that damaging these unique
corals and sponges would result in irreparable damage to the
presence of such eco-sensitive underwater marine ecosystems, and
would also amount to a breach of the CRZ Notification of 2011,
particularly sub-clause b of clause 7 (i) (A) of the Notification,
which protects Corals and coral reefs and associated biodiversity
from further development.
102.The Petitioners further submit that Mumbai and Mangalore are
the two Indian Cities most vulnerable to rising sea levels. Another
report prepared by the MTSU titled, ‘The Study of Land Reclamation
in Mumbai (Pase I - 1970-2012),’ noted that “as much as
54.73sq.km. of Mumbai’s land is under process of reclamation as
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observed in the satellite image of 2012 ...and most of the
reclamation has been done in the inter-tidal zone which comes
under CRZ I. This is categorized as ecologically sensitive areas
where no action is permitted. It is pertinent to note that there has
been a deliberate attempt to push forward the high tide line and
restrict the inter-tidal area.” The said report cautions that, “land
reclamation in one area may affect other parts of coastline
disrupting the natural coastal processes that are in dynamic
equilibrium and causes sedimentation and beach erosion in other
parts.There are certain other environmental impacts in case of
Mumbai viz. loss of natural ecosystem, e.g. mangroves, fishing
activity. Loss of habitats such as mangroves can perturb the
vicinage. Increased sedimentation and water pollution takes place
as erodible coastal materials are pushed out to sea...Reclaimed
area often blocks flow of currents and sediment transport. Storm
water channels which were in existence about a century ago are
often blocked and there are changes in current patterns and water
movement. There are also impacts of consequent development and
traffic impacts, visual and aesthetic impacts observed in Mumbai –
the after effects of reclamation. Thereby it is vital to safeguard
physical system, biological system, and socio-economic system of
Mumbai. It is also a first concern for economic assessment of
Mumbai’s reclamation including cost benefit analysis. It is necessary
to carry out mitigation and abatement measures. Thrust should be
to chalk out Environment Management Plan for coastal reclamation
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for monitoring of impacts and effectiveness of mitigation measures
for social purpose. It should be ensured that reclamation is not a
‘sore thumb’ for Mumbai.”
103.Accordingly, it is submitted that the chronology of events leading
upto the publication of the impugned notification dated 17.02.2015
adding clause 4(ii)(j) of the CRZ Notification, 2011 and the grant of
the impugned combined Environmental and CRZ Clearance dated
23.05.2015 shows that there has been a deliberate, premeditated
and coordinated effort on the part of the Respondent Authorities to
allow the proposed project to be sanctioned while no regard has
been paid to the environmental consequences of the proposed
project by the very Authorities vested with the Statutory powers to
protect and preserve the environment. The proposed project was
granted its combined Environmental and CRZ clearance by
invoking the aforementioned Clause 4(ii)(j)(D) within a week of the
impugned amendment being notified, and the EAC had granted its
approval for the project prior to the amendment even being notified
during its 144th and 145th meeting dated 30.01.2015 and
09.02.2015.
7. Whether the proposed project is a reasonable expenditure of funds
on the part of the Respondent State Government?
104. The Petitioners state and submit that as per the official
Addendum of changes between the Original and Revised Plan of
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the proposed project submitted by the Respondent PWD, the
sanctioned cost of the project is now Rs. 2581 crores for Phase 1
and 3643.78 crores for Phase I and II, without considering the land
side facilities and infrastructure required. True Copy of the
Addendum of changes between the Original and Revised Plan of
the proposed project submitted by the Respondent PWD, has been
annexed hereto and marked as Annexure P-17 (at page ____ to
____). It is submitted that bearing in mind the current state of the
economy of the State of Maharashtra and its duties towards the
welfare of its citizens, it would prove to be less than prudent to
spend the estimated costs of the proposed project on the
construction of a memorial which is manifestly dangerous to the
environment and the ability of the fishermen community if the city
to retain their livelihood.
105.It is noteworthy that the State of Maharashtra had among the
lowest expenditure per-capita on health – Rs. 996 per person in
2017-18. In fact, there is a budgeted decrease of 7% in health
expenditure between 2017-18 and 2018-19 with a further decrease
between 2018-19 and 2019-20 by 1%, thereby portraying the
continuous decrease in the span of last two years. The Petitioners
submit that in contrast to this number, an analysis of budget data
compiled by labour unions and health activists reveal that the
national average of expenditure per-capita on healthcare is Rs.
1,538 and in lesser developed states such as Chhattisgarh is Rs.
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1,671 and Telangana is Rs.1,801. The Petitioner submits that such
statistics are inexplicable, when contrasted with the fact that
Maharashtra’s per capita income (2018-19) at Rs. 1,76,102 exceeds
the national per capita income of Rs 1,14,958.
106.Meanwhile, analysis developed by a leading think tanks shows
that Maharashtra remains the most indebted State in 2019-20, the
fiscal deficit of the State is estimated to be Rs 61,670 crore, which
is 2.07% of the GSDP.
107.While Respondent No.2 State Government is spending
thousands of crores for the proposed project, the 2019-20 Budget
reveals the blatantly misplaced priorities of the government of
Maharashtra. the State has reduced its budgetary allocation for
Social Welfare and Nutrition by 33% from the Revised Estimate of
the Budget of the State in 2018-2019 Rs.20,042 crores to Rs,
13,406 in 2019-2020, despite the fact that a report by the Ministry
of Statistics and Programme Implementation and The World Food
Programme lists Maharashtra as one of the six States with high
levels of stunting and under nourishment amongst young children.
True Copy of the relevant analysis prepared by a renowned think
tank showing the total indebtedness of the State of Maharashtra
dated 25.06.2019 has been annexed hereto and marked as
Annexure P-47 (at page ____ to ____).
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108.Similarly, the neglect shown by the State Government towards
the implementation of the provisions of the Right to Education Act
has resulted in over four thousand private schools across the State
go on strike earlier in 2019 as they were still awaiting
reimbursements from the State Government due to them under the
Right to Education Act, 2009. True Copy of a news article dated
25.02.2019 regarding the strikes undertaken by 4000 private
schools after not having received reimbursements due to them from
the State Government has been annexed hereto and marked as
Annexure P-45 (at page ____ to ____).
109.Aggrieved by the introduction / insertion of Clause 4(ii)(j)(D)
into the CRZ Notification 2011 by the amendment Notification dated
17.02.2015 on account of it being ultra vires of the CRZ
Notification of 2011, the Environment Protection Act, 1986 and
Articles 14,19(1)(g) and 21 of the Constitution of India, as well as
the combined Environmental & CRZ clearance dated 23.02.2015
given by the Respondent No.1 to construct the proposed project
and the amendment of the Clearance allowed on 15.06.2018
without due consideration of the environmental consequences of
the project which exhibits non-application of mind on the part of
the Respondent Authorities amounting to exorbitant, wasteful
expenditure; the Petitioners have approached this Hon’ble Court on
the following grounds which are without prejudice to one another
and are independent of each other:
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GROUNDS
A. That the reports prepared by IIT Bombay, which had been
commissioned to study and evaluate the Structural Stability of the
Proposed CSM Memorial in Arabian Sea, have been amended thrice
to rectify errors regarding the data used to prepare the report, but
the conclusions of the report have not been altered to incorporate
the consequences of the change of the relevant data.
B.That the requirement of a wind tunnel test has been stipulated
under clause 5.3 in the contract dated 28.06.2018 between the
Respondent PWD and Larsen and Toubro, the contractors engaged
for the construction of the proposed project. A wind tunnel test for
a project of the size and scale of the proposed project is also called
for by Indian Standard (“IS”) 875 (part 3) – 1987 ( Reaffirmed
2003) Code Of Practice For Design Loads For Buildings And
Structures as prescribed by the Bureau of Indian Standards calls for
Wind Tunnel Tests for a project of the scale of the proposed project
at clause 1.1.3 Note 1; clause 7.1 Notes 2 and 9; clause 7.2 Note
1.Lastly, the opinion of Structural Engineers consulted by the NGO
of the Petitioner No.1 is also that the proposed project requires a
wind tunnel test. However, no such test has taken place to this
date.
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C.That replies to RTI applications widely covered in the press
indicates that on two occasions, two different officers of the
Chatrapati Shivaji Maharaj Memorial Project Division, Mumbai had
noted that due to several irregularities with respect to the proposed
project, the officers felt compelled to bring specific instances of
legal and procedural lapses pertaining to the project to the
attention of their superiors, and that a full review of the project was
required from the office of the Auditor General.
D.That the final amendment notified by the Respondent MoEF&CC
bearing S.O 556(E) dated 17.02.2015 pertaining to the permission
for constructing memorials and statues in CRZ IV A, provided for an
entirely new provision which permitted the Central Government to
dispense with the requirement of a public hearing under certain
circumstances.
E.That the said amendment was was completely alien to the draft
amendment S.O 3202 (E) dated 11.12.2014, as it permits the
dispensation of the very process that the draft amendment laid
most emphasis on, which was the mandatory public hearing prior to
the establishment of any statue or memorial in CRZ IV-A areas.
F. That a provision conferring the Central Government with the
discretionary power to dispense with a public hearing for a project
pertaining to the establishment of any statue or memorial in the
CRZ IV-A cannot be reconciled to be consistent with the provisions
of the draft notified on 11.12.2014.
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G. That by directly introducing Clause 4(ii)(j)(D) in the amendment
notification dated 17.02.2015 and not in the draft notification dated
11.12.2014, the Respondent MoEF&CC did not provide the public at
large with an opportunity to submit objections or suggestions to the
said sub-clause for the consideration of the MoEF&CC in
contravention to the procedure envisaged under Rule 5(3) of the
Environment Protection Rules and its sub-clauses.
H.That in the matter of the Municipal Corpn. v. Misbahul Hasan,
(1972) 1 SCC 696, this Hon’ble Court held that “Assuming however,
that the modification of the age of retirement could be made by a
rule made under Section 433 of the Act and not merely by a bye-
law, as contemplated by the Act, we find, that a condition
precedent for an amendment of a rule has not been followed here.
Section 433 of the Act enacts: “The State Government may after
previous publication in the Gazette make rules for the purpose of
carrying into effect the provisions of this Act”. Section 24 of the
Madhya Pradesh General Clauses Act, 1957, lays down:’24.
Provisions applicable to making of rules or bye-laws, etc., after
previous publication.—Where, by any Madhya Pradesh Act, a power
to make rules or bye-laws is expressed to be given subject to the
condition of the rules or bye-laws being made after previous
publication, then the following provisions shall apply, namely—(a)
the authority having power to make the rules or bye-laws shall,
before making them, publish a draft of the proposed rules or bye-
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laws for the information of persons likely to be affected thereby;(b)
The publication shall be made in such manner as that authority
deems to be sufficient, or if the condition with respect to previous
publication so requires, in such manner as the Government
prescribes;(c) there shall be published with the draft a notice
specifying a date on or after which the draft will be taken into
consideration;(d) the authority having power to make the rules or
bye-laws; and where the rules or bye-laws are to be made with the
sanction, approval or concurrence of another authority, that
authority also shall consider any objection or suggestion which may
be received by the authority having power to make the rules or
bye-laws from any person with respect to the draft before the date
so specified;(e)the publication in the Official Gazette of a rule or
bye-law purporting to have been made in exercise of a power to
make rules or bye-laws after previous publication shall be
conclusive proof that the rule or bye-law has been duly made.’ The
legislative procedure envisaged by Section 24, set out above, is in
consonance with notions of justice and fair-play as it would enable
persons likely to be affected to be informed so that they may take
such steps as may be open to them to have the wisdom of a
proposal duly debated and considered before it becomes law. This
mandatory procedure was not shown to have been complied with
here.”
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I. That The Division Bench of the Hon’ble Bombay High Court in
Prashant Babusaheb Ghiramkar v. The State of Maharashtra and
Ors, 2013(6) Mah Lj 703 has held that when a statutory body
invites objections to a published draft rule or bye-law, as required
by the governing statute, it is open for the concerned authority to
consider objections and suggestions and thereafter make changes
to it. However, changes so made by the said authority, must be
incidental or ancillary to the draft, which was published for the
purpose of inviting objections. Changes, therefore must be
conceivable within the framework of the draft rule or bye-law and
not alien to it.
J. At paragraph 14 of the aforementioned judgment in the Hon’ble
Bombay High Court held as follows, We are in respectful agreement
with the principle of law enunciated as above by the Rajasthan
High Court (Maula Bux v The Appellate Tribunal of State Transport
Authority, AIR 1962 Raj. 19). When a draft rule or bye-law is
published and objections are invited to it as required under Section
24 of the Bombay General Clauses Act, it is open for the rule
making authority to consider objections and suggestions and
thereafter make changes to it, but those changes must be
incidental or ancillary to the draft rule or bye-law. Those changes
must be conceivable within the framework of the draft proposal and
not foreign to the draft. For example, in our case, when two or
more Talukas are proposed to be included within a sub-division with
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headquarters at one Taluka, the proposal after consideration of
suggestions and objections may well be altered by dropping one or
the other Taluka/s from the proposal or changing the headquarters
from one of those Talukas to the other of them. But providing for a
headquarters at an altogether different place not included in any of
the Talukas forming the sub-division was a proposal foreign to the
draft. There was no opportunity afforded to the members of public
to make objections or suggestions to such a proposal. Such a
proposal was not conceivable within the framework of the draft
proposal.”
K.The Division Bench of the Hon’ble High Court of Rajasthan, in
Maula Bux and Ors v. The Appellate Tribunal of State Transport
Authority, Jaipur and Ors, AIR 1962 Raj 19, held:“ It is incumbent
on the rule making authority to publish a draft of the rule under
Section 23 of the General Clauses Act and to invite objections from
all concerned. The authority has further to consider the objections,
if any, and to make a rule in exercise of its rule making power. The
powers of rule making under Sec. 68 of the Motor Vehicles Act are
subject to the condition of previous publication only and after a
draft of the amendment of rules is published as required by Section
23, it is open to the authority to make rules with or without
changes in the previously published draft, subject however to the
condition that the rule so made is not absolutely foreign to the
draft.”
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L. That the Division Bench of the Hon’ble Court has further held in
Avinash Ramkrishna Kashiwar v. The State of Maharashtra, 2015
(5) Mah Lj 830:“17. It could thus be seen that it appears to be
settled position of law that the requirement of previous publication
inviting objections and suggestions is not an empty formality. It is
with an intention to enable persons likely to be affected, to be
informed, so that they may take steps as may be open to them and
the objections/suggestions made would be required to be taken
into consideration by the authorities before issuing a final
notification. In the present case, the draft notification provided for
establishment of headquarter of the sub-division at Sadak-Arjuni.
However, the final notification provides for establishment of the
headquarter at Morgaon-Arjuni. It could thus be seen that insofar
as the establishment of headquarter is concerned, the final
notification is totally different from the draft notification.”
M.That the aforementioned judgments indicate that the process of
inviting objections from the public is an important procedure in the
finalisation of a draft document of public importance, and the final
version of such a document must not be foreign to the draft, as
such an outcome would render the entire process of inviting
objections from the public to the draft to be an empty formality.
N.That the amended Clause 4(ii)(j)(D) of the CRZ Notification,
2011 deserves to be set aside by this Hon’ble Court on account of
being arbitrarily added to the CRZ Notification and rendering the
process of accepting public objections to the draft amendment
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notification of 11.12.2014 as an empty formality in contravention to
Article 14 of the Constitution of India.
O.That the importance of a public hearing in environmental matters
is settled law. While discussing the importance of a public hearing
as required under the Environmental Impact Assessment
Notification, 2006 in its judgment in the matter of Alaknanda Hydro
Power Company Limited v/s Anuj Joshi & Ors. [2014 (1) SCC 769],
this Hon’ble Court observed:“The purpose of public hearing, it may
be noted, is to know the concerns of the affected people and to
incorporate their concerns appropriately into the EMP and it is after
incorporation of the concerns and revision/modifying plan, the final
EMP would be submitted to the MoEF for granting environmental
clearance.”
P. That while setting out the strict guidelines are required to be
followed for environmental matters, this Hon’ble Court, in the
landmark judgment of Lafarge Umiam Mining Private Ltd. v/s Union
of India & Ors (AIR 2011 SC 2781), included “The public
consultation or public hearing as it is commonly known, is a
mandatory requirement of the environment clearance process and
provides an effective forum for any person aggrieved by any aspect
of any project to register and seek redressal of his/her grievances”.
Q.That As per Clause 7(III) (vii) read with Appendix IV of the EIA
Notification of 2006, the proceedings of the public hearing are to be
incorporated within, or submitted as supplement to, the final
Environmental Impact Assessment (EIA) Report and EMP presented
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to the regulatory authority which is to decide whether or not a
proposed project is granted an environmental clearance. That this
process is therefore the only opportunity for the public to have any
meaningful say in the manner in which a large scale development
project requiring prior environmental clearance is designed and
engineered.
R.That since CRZ-IV A areas are defined under Clause 7 of the CRZ
Notification to be “the water area from the Low Tide Line to twelve
nautical miles on the seaward side.” any construction within such
areas will always affect the traditional coastal community residing in
the area concerned, that these coastal communities, generally
comprising of fishermen, should be permitted to submit their
grievances in a public hearing process as envisaged under Clause
4(ii)(j)(A), (B) and (C) of the CRZ Notification as well as the EIA
Notification.
S. That prior to the impugned amendment notification, the CRZ
Notification of 2011 prioritised the needs and interests of the
coastal communities as well the need to maintain the ecological
sensitivity of coastal areas over economic and commercial interests.
However, the impugned amendment, if left as it currently is, would
result in undoing the protections otherwise granted to these coastal
communities and would be contrary to the rights of the coastal
communities under Article 19(1)(g) of the Constitution, as the
coastal communities would be deprived of any opportunity to
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gainfully present their grievances pertaining to a proposed
monument, memorial or statue in a CRZ-IV area.
T. That the legislative intent behind the CRZ Notification of 2011 is
to preserve coastal regions from indiscriminate and ecologically
unsound development while simultaneously upholding the rights of
traditional coastal communities under Article 19(1)(g) of the
Constitution, and hence the impugned Clause 4(ii)(j)(D) is
inconsistent with the CRZ Notification of 2011, the Environment
Protection Act, 1986 and is ultra vires of the Constitution of India.
U.That even otherwise, it is not only the right of the coastal
communities that will be adversely affected by Clause 4(ii)(j)(D) of
the CRZ Notification of 2011. The public at large is also vested with
a right to put forth its objections to a large scale, environmentally
unsound development project, as such rights arise from the public
trust doctrine as well as Article 21 of the Constitution of India,
which has been interpreted by this Hon’ble Court in the matter of
M/S. Sterlite Industries v The Chairman Tamil Nadu Pollution
Control Board to also give, by necessary implication, the right
against environmental degradation and that the right to clean
environment is a guaranteed fundamental right.
V. That any memorial, monument or statue located within CRZ-IV A
areas can never truly be considered to be away from human
habitation, as such sites will always be tourist destinations. Indeed,
the current estimates for the proposed projects suggests that there
will be 10,000 visitors to the proposed project every day. Hence,
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the establishment of a memorial, monument or statue located
within CRZ-IV under clause 4(ii)(j) of the CRZ Notification of 2011
can never meet the parameter laid out in the impugned Clause 4(ii)
(j)(D) requiring the Central Government to be satisfied that the
project is away from human habitation.
W.That sub-clause (xv) (d) of clause 5.4 of the newly notified CRZ
Notification of 2019 dated 18.01.2019, which is worded as a
verbatim copy of Clause 4(ii)(j)(D) of the CRZ Notification of 2011,
should also be set aside as being ultra vires of the the
Environmental Protection Act, 1986, the Constitution of India and is
contrary to the public trust doctrine
X.That the proposed project requires an EIA clearance under the
EIA Notification of 2006 on account of falling under the category of
“Building and Construction” projects under item 8(a) of the
Schedule to the EIA Notification of 2006. The construction of the
subject project exceeds 20,000 sq.m and the built-up area exceeds
1,50.000 sq. m, it falls under category B1 projects and requires an
Environmental Clearance to be granted by the State Level Expert
Appraisal Committee, and would require a public consultation under
Clause 7(III) of the EIA Notification 2006.
Y. That the subject project in any case admittedly attracts the
provisions of EIA Notification, 2006 and hence prior environmental
clearance is required after undertaking the mandatory public
consultation.
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Z.That various adverse environmental consequences identified
within the EIA Report have not been addressed by the Respondent
Authorities prior to the various clearances being granted to it.
AA.That CSIR-National Institute of Oceanography (CSIR-NIO) in its
EIA Report recorded several concerns with regard to the
environmental consequences of the construction of the memorial.
An analysis of the phytoplankton composition revealed the area in
question sustains high generic diversity in seasons other than
monsoons and high production potentials for live food organism’s
resources for post-monsoon season too. The study also records
that the environmental consequences due to the activities related
to the construction, operation, and post operational phases of the
project include deterioration of reinforced concrete structures,
cyclone and storm surge, raising the ground level on the rocky
outcrop, and detrimental impacts on fisheries. It further notes solid
waste disposal occurring due to the presence of construction
machinery and materials as a source of nuisance.
BB.That the Amendment Notification dated 17.02.2015 provides for
an exemption for monuments or memorials but in clause states in
Clause (b) that the State Government shall submit justification for
locating the project in CRZ area along with details of alternate sites
considered and weightage matrix on various parameters including
environmental parameters to State CZMA for their examination and
recommendation. This step has essentially been by-passed as such
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as important step has been cursorily and arbitrarily dispensed with,
without proper justification.
CC.That in case of the approval of a site several criteria have to be
factored in namely, distance of the site, accessibility to the site in
all tides, space available, construction condition, i.e. feasibility in
construction, heritage monument, safety view, environmental
issues, construction cost and thereafter the final verdict as to which
site would prove to be the most sociologically and environmentally
fit for the said construction.
DD.That the Environment and CRZ Clearances have disregarded in
entirety the procedure established by law. The analysis provided
does not satiate sufficiently the awarding of a clearance, as no
reasons have been provided as for whether certain “Construction
Conditions are feasible/not feasible” for a specific site. There is
much ambiguity in the clearance in the form of comments such as
“Not fair”, “Not easy”, “Easy”, as no details are provided on the
weightage matrix of alternate site.
EE.That the Expert Appraisal Committee in predetermined manner
and without any legal backing states that “in view of the larger
public interest importance and National Monumental importance” at
the 144th Meeting of the Expert Appraisal Committee for Projects
Related to Infrastructure Development, CRZ, Building/Construction
and Miscellaneous Projects held on 30.01.2015 called for the
waiving of the public hearing.
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FF.That the fact that the proposed project admittedly falls within
the CRZ - I area as classified under the CRZ Notification of 2011
has not been considered by the Respondent Authorities prior to the
issuance of the CRZ clearance to the proposed project. It is
submitted that the presence of corals at the site of the proposed
project and the fact that this region is an intertidal region as per
the EIA Report for the proposed project renders the site of the
proposed project to be CRZ - IA and CRZ -IB areas respectively.
GG. That the proposed project does not fall within the realm of
permissible development/activities in CRZ I areas. That the CRZ
and Environment Clearances dated 23.02.2015 are predetermined,
arbitrary and inconsistent with the EIA Notification, 2006 and CRZ
Notification, 2011.
HH.That in the matter of M.C. Mehta vs. Union of India (Writ
Petition 4677 of 1985), the Hon’ble Supreme Court held that when
faced with a situation where if an activity is allowed to go ahead,
there may be irreparable damage to the environment and if it is
stopped, there may be irreparable damage to economic interest,
protection of the environment would have precedence over the
economic interest. The Precautionary Principle requires anticipatory
action to be taken to prevent harm. The harm can be prevented
even on a reasonable suspicion. It is not always necessary that
there should be direct evidence of harm to the environment.
II.That bearing in mind the current state of the economy of the
State of Maharashtra and its duties that towards the welfare of its
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citizens, it would prove to be less than prudent to spend the
estimated costs of the proposed project on the construction of a
memorial which is manifestly dangerous to the environment and
the ability of the fishermen community if the city to retain their
livelihood.
JJ.That despite the common notion that Mumbai city in
Maharashtra is the financial capital of the country, the state of
Maharashtra had among the lowest expenditure per-capita on
health – Rs. 996 per person in 2017-18. The Petitioners submit that
in contrast to this number, the national average of expenditure per-
capita on healthcare is Rs.1,538 and in lesser developed states
such as Chhattisgarh is Rs.1,671 and Telangana is Rs.1,801.
KK.That Maharashtra remains the most indebted State in 2018-19,
the fiscal deficit of the State is estimated to be Rs 50,586 crore,
which is 1.8% of the GSDP. In 2018-19, the outstanding liabilities of
the State are expected at 16.5% of the Gross State Domestic
Product (GSDP). The revenue deficit for the financial year of
2018-2019 is targeted at Rs.15,735 crore, or 0.5% of the GSDP.
LL.That the expenses involved in the construction could rather be
used to restore and refurbish 300 medieval forts in Maharashtra.
There are over 336 forts in Maharashtra, of which over 40 come
directly under the ASI. This would be a more earnest tribute to
Shivaji’s memory and the heritage of the state, who himself was a
propagator of the welfare of the citizens of the State.
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96.That the present Petitioners have not filed any other petition in
any High Court of the Supreme Court of India on the subject
matter of the present petition.
PRAYERS
In the above premises, the Petitioners before this Hon’ble Court pray:
A. For, a writ of declaration or any other appropriate writ,
order or direction in the nature of declaration to declare
Clause 4(ii)(j)(D) of the CRZ Notification of 2011, clause
3(ix) of notification dated 17.02.2015, and sub-clause (xv)
(d) of clause 5.4 of the CRZ Notification of 2019 dated
18.01.2019 on the grounds that the provisions are
inconsistent with the CRZ Notification of 2011 and is ultra
vires of the Environment Protection Act, 1986 and Articles
15, 19(1)(g) and 21 of the Constitution of India;
B. For, a writ of certiorari or any other appropriate writ, order
or direction in the nature of certiorari calling for the records
and papers pertaining to the impugned combined
Environmental & CRZ Clearance dated 23.02.2015 and the
amendment granted thereto on 15.06.2018 after
considering the legality and propriety thereof be pleased to
quash and set aside the same;
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C. For an order quashing and setting aside the entire project
for the Chatrapati Shivaji Maharaj statue and Memorial to
be constructed in the Arabian Sea at Mumbaias currently
envisaged by the State of Maharashtra and to set aside in
its entirety all the permissions and clearances granted for
the said project on the basis that the project is entirely
irrational and arbitrary and not in the public interest as well
as an extravagant and wasteful use of public resources at a
time when the State of Maharashtra is unable to meet and
satisfy the basic human rights of the people of the state
including food, public healthcare, public housing and
education.
D. Pending hearing of this Writ Petition, this Hon'ble Court be
pleased to stay the impugned combined Environmental &
CRZ Clearance dated 23.02. 2015 and the amendment
granted thereto on 15.06.2018;
E. Pending hearing of this Writ Petition, this Hon'ble Court be
pleased to direct the Respondent Public Works Department
to strictly review the designs and plans for the proposed
project and submit a fresh EIA and DPR report re-
examining an alternate site for the proposed project and
including the results of a wind tunnel test and a
confirmation of the final results of the geotechnical
investigation;
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F. for ad-interim reliefs in terms of prayer clause (d) and
(e) hereinabove;
G. for costs;
H. for such other and further reliefs as this Hon’ble Court
may deem fit and proper and as the nature and
circumstances of the present case may require.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS IN DUTY
BOUND, EVER PRAY:
Drawn By: Ms Ronita Bhattacharya, Adv
(Satya Mitra)
Advocate for the Petitioner
Filed On: .11.2019
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Appendix
The Constitution of India 1949
Article 15. Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only
of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place
of birth or any of them, be subject to any disability, liability, restriction
or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or dedicated to
the use of the general public
(3) Nothing in this article shall prevent the State from making any
special provision for women and children
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the
State from making any special provision for the advancement of any
socially and educationally backward classes of citizens or for the
Scheduled Castes and the Scheduled Tribes.
Article 19(1)(g). to practise any profession, or to carry on any
occupation, trade or business.
Article 21 Protection of life and personal liberty No person shall be
deprived of his life or personal liberty except according to procedure
established by law.
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA No. of 2019
IN
WRIT PETITION (CIVIL) NO. _______ OF 2019
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
VICE ADMIRAL I.C RAO
PVSM AVSM (Retd.) AND ORS …PETITIONERS
VERSUS
UNION OF INDIA & ORS …. RESPONDENTS
APPLICATION FOR PERMISSION TO FILE LENGTHY SYNOPSIS
AND LIST OF DATES
To
Hon’ble Chief Justice of India
And his Companion Justices of the Supreme Court of India
Humble Petition of
The Petitioner herein
Most respectfully showeth:
1. That this Public Interest Litigation petition is being filed under
Article 32 of the Constitution of India challenging the
construction of the Chhatrapati Shivaji Statue Memorial in the
midst of eco-sensitive areas within the Coastal Regulation Zone
area of Mumbai due to the introduction / insertion of Clause 4(ii)
(j)(D) into the CRZ Notification 2011 by the amendment
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Notification dated 17.02.2015 without due consideration of the
environmental consequences of the project which exhibits non-
application of mind on the part of the Respondent Authorities
amounting to exorbitant, wasteful expenditure.
2. The contents of the petition are dealt in the Petition and hence
not repeated herein for the sake of brevity and repetition and the
same may be read as part of the present application.
3. The present petitioner has moved for permission to file the
detailed Synopsis and List of dates with this Petition as the issues
involved are necessary to narrate the synopsis in detail to
accommodate the facts and circumstances
4. The balance of convenience lies in favour of the applicant and
has every likelihood of succeeding in this case.
5. This application is bonafide and made in the interest of justice.
Prayer
In view of the facts and circumstances mentioned hereinabove, it is
most respectfully prayed that this Hon’ble Court may be pleased to:
a. Allow and take on record the lengthy Synopsis and List of dates
filed by the petitioners along with the Writ Petition.
b. And pass such other order or orders as this Hon'ble Court may
deem fit in the facts and circumstances of the case.
c. Pass any such order/s as this Hon’ble Court may deem fit and
proper in the facts and circumstances of the present case.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT AS IN DUTY
BOUND SHALL EVER BE GRATEFUL.
Drawn By: Ms Ronita Bhattacharya, Adv
(Satya Mitra)
Advocate for the Petitioner
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Filed On: .11.2019
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