The Bombay High Court in a significant judgement, applied the principal of empty formality and granted permission for redevelopment of slums that was lying stuck for 20 years due to building restrictions under Coastal Regulation Zone 2011, without having to wait for preparation of coastal management plan.
The said principle states that if the doing of an act or the performance of an obligation is a mere formality the Court can waive the same.
Chief Justice Pradeep Nandrajog and Justice Bharati Dangre were hearing a writ petition filed by Akshay Sthapatya Pvt Ltd which intended to redevelop a slum known as Mariamma Nagar situated in South Mumbai's Worli area.
According to the petition, areas under Coastal regulatory Zone 2011 were divided into CRZ I, II, III, IV. Paragraph V under CRZ-2011 'dealt with areas requiring special consideration' for the purpose of regulating development or redevelopment. As per Para V, the development and redevelopment of slum clusters was to be undertaken directly by the State Government or through the Joint Ventures or through Public Private Partnerships or other similar models ensuring that the State of the State Government or its parastatal entities was not less than 51%.
On October 31, 2013 the Chief Executive Officer, Slum Rehabilitation Authority wrote to the Principal Secretary to the Government of Maharashtra stating that slums falling under CRZ II in Mumbai are inhabited by about 17 lakh people.
"There are restrictions on re-development of those slums regarding the FSI consumption. The Scheme referred to above was announced by the Ministry of Environment & Forest, Govt. of India so as to boost the re-development in CRZ II area by increasing the FSI. Since the inception of Scheme, the response is almost zero."
Essentially, the letter informed the ministry that on account of restrictions on redevelopment of slums regarding FSI consumption, there was no response and the slum dwellers evinced no interest. Thus, a request was made to amend CRZ-2011 and permit normal FSI to be utilized in areas comprised CRZ-II.
Thereafter, Coastal Regulatory Zone 2019 notification was issued on January 18, 2019 in supersession of CRZ 2011, wherein fresh coastal zone management plans were to be prepared by the State Coastal Zone Management Authorities.
The restrictions imposed by paragraph V of CRZ-2011 concerning FSI and redevelopment to be undertaken directly by the State or their Joint Venture was not incorporated in CRZ-2019.
Senior Advocates Aspi Chinoy, Milind Sathe and Vineet Naik appeared on behalf of the petitioner. They submitted that a land which was in CRZ-II under CRZ-2011 notification would continue to be under CRZ-II even under CRZ-2019. Thus, it hardly mattered whether the coastal zone management plan was finalized with respect to the petitioners' land. Therefore, the petitioners prayed that they should be relieved of the rigor under clause (i) of paragraph V of CRZ 2011.
The bench noted that respondents Ministry of Environment and Forests, State, Maharashtra Coastal Zone Management Authority, MCGM and SRA do not dispute that the subject land would fall under CRZ II under CRZ 2019 as well. Court observed-
"The purpose of paragraph 6 of CRZ-2019 is to remove a void. Pending preparation of coastal zone management plans under CRZ-2019 rights could be exercised under CRZ-2011. The development restrictions in terms of FSI envisaged under CRZ2 011 being removed from CRZ-2019 if the undisputed position would be that a land comprised in CRZ-II under CRZ 2011 would continue to be in CRZ-II under CRZ-2019, the preparation of coastal zone management plan in relation to the said plot would be a mere formality and thus for said plot of land development would be permissible under CRZ-2019 without formally awaiting the preparation of the coastal zone management plan."
Allowing the petition, Chief Justice Nandrajog said-
"We declare that qua the petitioners' land the development would be permitted as per CRZ-2019 i.e. sans the development restrictions vide paragraph 5 of CRZ 2011 because the same have been omitted in CRZ-2019. We direct the respondents to sanction the building plans by granting such FSI as would be available as per the Municipal Law. Needful shall be done within eight weeks."
ASG Anil Singh sought a stay on the said judgement but Court declined as there was sufficient time given to appeal before the Supreme Court.
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