Home   |   About us   |   Contact us   |   Request Callback  
 
   
ALREADY A MEMBER ?
Username
Password

Translate

This Page To:

 
SNEHA MANDAL CO-OPERATIVE HOUSING SOCIETY LTD., MUMBAI AND OTHERS V/S UNION OF INDIA AND OTHERS , decided on Friday, October 1, 1999.
[ In the High Court of Bombay, Writ Petn. No. 2475 of 1998 . ] 01/10/1999
Judge(s) : Y. K. SABHARWAL, C. J., S. H. KAPADIA
Advocate(s) : Siraj Rastomji With R. A. Dada, M. V. Jaykar, Co., S. G. Page, D. T. Palekar (Nos. 1(a), 1(b), 5), R. V. Govilkar, Agp (Nos. 2, 6), R. M. Sawant (No. 3), D. Y. Chandrachud, Addl. Solicitor General With M. B. Rao (No. 4 Corporation), I. M. Chagla With D. J. Khambatta, H. M. Vakil, M/s. Mulla, Mulla, Cragie Blunt, Caroe (No. 7).
Judgment Full Text : Existing LawyerServices Members, kindly login above.

Non Members, Enter your email address:- and , to request this judgment.

Alternatively, you may send a request by email to info@lawyerservices.in for the Full Text of this Judgment (chargeable).

LawyerServices Facebook Page


Judgments that may be related:-


  Anant H. Ulahalkar & Another Versus Chief Election Commissioner & Others,   09/12/2016.  

  Ameeta Shah & others Versus State of Maharashtra & others ,   10/04/2003.  

  Kisan Mehta & others Versus State of Maharashtra & others ,   02/08/2000.  




#LawyerServices #bestlegalsoftware #legalsoftware #judgment #caselaw

  "2000 AIR (Bom) 121"  ==   "2000 (1) BCR 395"  







    Environment (Protection) Act 1986 Secs. 3(1) & 19---Environmental Control Rules 1986 R. 5(3)(d)---Coastal Regulation Zone Notification 1991 Cl. 3(2)(ii)Case Law Referred :1.Indian Council for Enviro-Legal Action v. Union of India Judgment Today 1998 (7) S.C. Page 31 (Para 3).2.Ramnathan & others v. State of Tamil Nadu (Appeal No.1287 of 1995 decided on 24th January 1996) (Madras High Court) (Para 5)3.Dr. Navin Kumar v. Indian Heritage Society decided on 10/ 11th September 1996 vide Writ Petition No.619 of 1992 alongwith Writ Petition No.761 of 1992 (Para 8).     KAPADIA J. By this Public Interest Writ Petition the petitioners pray that the constructions and the development activities carried out or proposed to be carried out on Plot Nos. 146 147 and 148 of Backbay Reclamation area is illegal as the same contravenes the Environment (Protection) Act 1986 and the Notification dated 19th February 1991 issued thereunder (hereinafter referred to for the sake of brevity as the CRZ Notification). Before coming to the facts and the points for determination a short prelude is required to be stated.PRELUDE :Greater Bombay comprises of the City of Bombay and the suburbs. The island city came into being due to joining of seven (7) islands through a massive programme of reclamation carried out during the last two centuries. The island city is a narrow North - South strip of land with two bays viz. Backbay in the South and Mahim in the North both along the Western coast. Almost the whole of the Eastern coast is in use as Port. The whole of the island city is historically intensively developed. However today it is bursting at the seams. This can be seen from the figures of the Census 1991. At present the urban dynamics show that there is no likelihood of any appreciable reduction in the intensity of development in the areas in near future. The coastline has also been intensely developed. The coastline constitutes basic premise indicating the patten of development. The coastline is truncated at several places. It is for this reason that while controlling development activity the specified authorities are required to issue amendments/guidelines to the CRZ Notification issued in 1991. With this prelude the points for determination and facts of the present case may be seen.2. The points for determination are as follows :(a) Whether construction of a Bulk Receiving Station on Plot No. 148 by Tata Electrict Company (Respondent No. 7) contravenes CRZ Notification 1991?(b) Whether construction of a helipad by Respondent No. 7 on Plot No. 148 contravenes provisions of the said Notification of 1991 as also provisions of the Air Craft Act 1934 read with the rules framed thereunder?(c) Whether change of user from garden/playground to Government Housing on Plot Nos. 146 and 147 is in contravention of the CRZ Notification 1991?3. For the sake of convenience the judgment proceeds according to the above points for determination. Before coming to points for determination we may mention that pursuant to the judgment of the Supreme Court in the case of Indian Council for Enviro-Legal Action v. Union of India reported in 1998 (7) JT 31 the Central Government has constituted an authority to be known as Maharashtra Coastal Zone Management Authority vide Notification dated 26th November 1998. The said Authority is empowered to take certain steps to protect and improve the quality of coastal environment and to prevent abating and controlling environment pollution in coastal areas of the State. The said steps include examination of proposals for changes/modifications in classification of CRZ areas; enquiry into cases of alleged violations of the provisions of the Environment (Protection) Act 1986(a) Whether construction of a Bulk Receiving Station on Plot No. 148 by Tata Electric Company (Respondent No. 7) contravenes CRZ Notification 1991 ?FACTS :I. Prior to 19th February 1991 Plot No. 150-A of Backbay Reclamation was reserved for Electricity Receiving Station. This position is not in dispute. This Plot was on the seaward side of Plot No. 148. Part of Plot 150-A even today is covered by sea. Therefore any construction or development of Plot 150-A required reclamation. In the circumstances after considering various objections the Government reserved Plot 148 in lieu of Plot 150-A for Receiving Station to be constructed by Respondent No. 7 - Tata Electric Company. At this stage it may be mentioned that the Cuffe Parade area is in need of Bulk Receiving Station. This fact is not in dispute. In fact the Members of Colaba Cuffe Parade Citizens Group as far back as July 7 1990 welcomed the decision of the authorities to construct Bulk Receiving Station on Plot 150-A. This was prior to the CRZ Notification of 1991. However in view of the fact that area of plot 150-A goes on the seaward side and partly covered by sea the reservation came to be shifted from plot 150-A to Plot 148. Further during the period 1991 till date Tata Electric company has carried out the work of laying of cables at a substantial cost of Rs. 150 crores. This work of laying of cables started sometime in 1995. This was to the knowledge of the petitioners who did not raise any objections till 7th December 1998 when the above Writ Petition came to be filed. The Project involves establishment of 220 KV Sub-Station. The Project involves laying of 220 KV Cables. From Dharavi Receiving Station to Backbay Bulk Receiving Station the cable runs along the Western side of Mumbai. The Dharavi Receiving Station draws its powers from Trombay Thermal Station and also from Hydro Electric Station both belonging to Respondent No. 7. One more fact may also be mentioned that 220 KV Cables interconnect 6110 KV circuits through B.E.S.T. Sub-Station which is located on adjoining Plot Nos. 149 and 150. The B.E.S.T. Sub-Station is an authorised structure located on the Plots adjacent to Plot 148 and which is in existence before 1991. This position of the plots is very important. The Sub-Station of Tatas is a Bulk Receiving Sub-Station. It supplies power to the B.E.S.T. whose Sub-Station is located on the adjoining plot. For the purposes of this judgment the plan prepared by the Planning Authority as incorporated in the Coastal Zone Management Plan is annexed to the judgment as Appendix-A. Taking into account the location of Bulk Receiving Station to be constructed by Tata Electric Company in juxtaposition to the Sub-Station of B.E.S.T. it is clear that the Bulk Receiving Station is in fact akin to a feeder plant to the B.E.S.T. Sub-Station which is already in existence on Plot Nos. 149 and 150 which is exactly adjacent to Plot 148. The location of the above plots the fact that plots 149 and 150 have the B.E.S.T. Sub-Station in existence clearly shows that the three plots from the point of view of user constitute a developed area.ARGUMENTS :5. Mr. Rustomji learned counsel appearing on behalf of the petitioners invited our attention to the CRZ Notification. He submitted that Plot 148 abuts the sea on the Southern and Western side. He pointed out that Plot 148 is on the seaward side and not on the landward side of General Jagannath Bhosale Marg. He further pointed out that plot Nos. 149 and 150 are also on the seaward side but they have a B.E.S.T. Sub-Station on them already in existence to which no objection could be taken. He contended that the requirement of the Bulk Receiving Station in the area is there. However he contended that since Plot 148 is on the seaward side and since it falls within 500 meters the CRZ Notification is clearly attracted. He contends that the sea exists on the Southern side as well as on the Western side of the plot and taking into account location of the Plot 148 from both the above two sides the Sub-Station cannot be permitted as it violates CRZ Notification. Mr. Rustomji invited our attention to subsequent guidelines issued by the Government from time to time after 1991. He contended that drawing of an imaginary line which is one of the guidelines issued after 1991 was not possible in the present case. In this connection our attention was invited to the letter dated 27th March 1998 issued by the Ministry of Environment and Forests (hereinafter referred to for the sake of brevity as MOEF). This letter refers to drawing of an imaginary line between two existing authorised structures. Mr. Rustomji pointed out that in the present case at the highest the existing authorised structure is only on one side of the plot in the adjoining plot viz. the B.E.S.T. Sub-Station. He contended that in the absence of the other authorised structure on the plot bearing No. 148 it was not possible to draw the imaginary line so as to demarcate Plot 148 as falling on the landward side. Mr. Rustomji contended that drawing of the imaginary line would not be possible in every case. He contended that even the length of the imaginary line could not be unlimited as it would defeat the very purpose of CRZ Notification. He contended by way of illustration that if an imaginary line is required to be drawn only from the seaward side of the authorised structure and without prescribing any limit then in that event such a line could be drawn right across Marine Drive and upto Raj Bhavan. He further invited our attention to the clarification issued by MOEF that line cannot extend beyond the single plot adjoining the authorised structure. In the circumstances he contended that drawing of the imaginary line as a yardstick or a guideline was not practical in respect of the plot in question as there were no two structures in existence between Plot Nos. 149 and 148. Mr. Rustomji further contended that if the impugned structure violates the provisions of CRZ then delay or laches should not come in the way of this Court declaring the structure to be illegal. Mr. Rustomji fairly conceded that by the above letters dated 7th July 1990 which are prior to the CRZ Notification of 1991 the residents of Cuffe Parade did welcome construction of the Bulk Receiving Station in plot 150-A. However he contended that on coming into force of the CRZ Notification in 1991 Respondent No. 7 cannot construct the Bulk Receiving Station on Plot 148 as stated above as it violated CRZ Notification.6. Mr. Chagla learned senior counsel appearing on behalf of Tata Electric Company submitted that the petitioners herein suppressed the letter dated 7th July 1990 at time of filing the Writ Petition. He contended that the petitioners had full knowledge about proposed construction of Bulk Receiving Station but they chose not to object to the setting up of the Bulk Receiving Station right from July 1990 upto 7th December 1998 when the present Writ Petition came to be filed. He contended that the citizens of the entire Cuffe Parade welcomed the Bulk Receiving Station in 1990. He further pointed out that the citizens of Cuffe Parade welcomed the Government Notification regarding reservation of Plot 150A in 1990 inasmuch as they were fully aware of the fact that there is acute requirement of the Bulk Receiving Station in the said area. Mr. Chagla further contended that Respondent No. 7 during the aforestated period has invested more than Rs. 150 crores for laying of the cables as stated hereinabove Mr. Chagla further contended that Respondent No. 7 was given permission to cordon the plot by construction of a wall so that trespassers do not encroach upon the land. Mr. Chagla further contended that the petitioners did not raise any objection all these years and in the circumstances he submitted that the petition should be rejected in limine. Mr. Chagla further contended that in any event the Bulk Receiving Station is also in public interest. He contended that the Court should give more weightage to the larger public interest which requires permission to construct a Bulk Receiving Station. Mr. Chagla contended that in cases where the Court is required to weigh public interests more weightage should be given to comparatively larger public interest. Mr. Chagla further pointed out that extensive cables had been laid at huge costs and the petitioners never objected to the construction of Bulk Receiving Station for all these years and in the circumstances he contended that no interference is called for in this matter under Article 226 of the Constitution. Mr. Chagla further contended that looking to the location of the plot the imaginary line which could be drawn could only be across the shoreline. Mr. Chagla contended that if that test is applied then the imaginary line would be in the form of a wave. He further contended that in the present matter the said Plot 148 is on the landward side of the B.E.S.T. structure in the sense that even if an imaginary line is drawn from the developed area of B.E.S.T. Sub-Station upto the sea touching Plot 148 then the plot would come within the landward side of the developed area on Plots 149 and 150. Mr. Chagla further relied upon the judgment of the Division Bench of the Madras High Court in the case of Ramnathan v. State of Tamil Nadu decided on 24th January 1996 in Appeal No. 1287 of 1995. One of the contentions raised before the Division Bench of the Madras High Court was that there is no existing structure or road between the impugned construction and the sea. The impugned construction violates CRZ Notification of 1991. On the other hand it was contended on behalf of the contesting Respondents that CRZ Notification refers to two expressions viz. area and developed area as defined in Annexure-I to the said Notification. Accordingly it was contended on behalf of the contesting Respondents that once an area is developed with drainage and other infrastructural facilities then in that event the norms laid down by CRZ Notification stand satisfied. On consideration of the above arguments made by the parties the Division Bench of the Madras High Court held that the norms laid down in CRZ Notification referred to developed areas and once it is found that the area in question is a developed area then it is not open to the petitioners to contend that the impugned construction violates CRZ Notification on the ground that there is no existing structure or road between the impugned construction and the sea. In other words the Division Bench of the Madras High Court has laid down that once the impugned construction falls within a developed area the norms laid down by the CRZ Notification of 1991 stand satisfied if the impugned construction is located in a developed area consisting of roads buildings drainage and other infrastructural facilities. This decision of the Division Bench of the Madras High Court came to be challenged before the Apex Court by way of S.L.P. which was disposed of on 13th February 1998 on the ground the questions of law argued and decided by the High Court are expressly kept open to be decided in an appropriate case and that the findings of the High Court were restricted to the special facts of the case. The SLP was accordingly disposed of. Mr. Chagla learned senior counsel appearing on behalf of the petitioners accordingly contended that the test laid down by the Madras High Court is equally applicable to the facts of the present case and since Plot 148 falls within a developed area the norms laid down by the CRZ Notification stand complied with. He contended that the entire area right upto the sea front on the Western side is fully developed. He further contended that the area has infrastructural facilities and amenities. He further contended that there is a retaining wall touching Plot 150-A towards the Western side abutting the sea. He further contended that structures near the retaining wall as well as the said retaining wall existed prior to CRZ Notification of 1991. Accordingly Mr. Chagla contended that in the present case applying the ratio of the decision of the Madras High Court in the case of Ramnathan v. State of Tamil Nadu (supra) the plot 148 is not hit by the CRZ Notification 1991.FINDINGS ON POINT NO. (i) :7. The CRZ Notification dated 19th February 1991 came to be issued under Section 3(1) and Section 3(2)(v) of the Environmental (Protection) Act 1986. By the said Notification Government of India brought into force Rules/Regulations severely restricting development and construction activities in the area known as Coastal Regulation Zone as defined in the said Notification. The Statement of Objects and Reasons preceding the said Act 1986 shows growing concern of the Central Government about the decline in environmental quality as evidenced by increase in the pollution loss of vegetal cover and biological diversity excessive concentrations of chemicals in the ambient atmosphere and in food chains growing risks of environmental accidents and threats to life support systems. The world communitys resolve to protect and enhance the environmental quality found expression in the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June 1972. Government of India participated in the Conference and strongly voiced their environmental concerns. Taking stock of the existing legal provisions dealing with environment protection and finding them to be hazardously inadequate the Parliament enacted the Environment (Protection) Act 1986. Under this Act Sections 3 4 and 5 authorise the Central Government plenary powers to take all steps and measures as it deems necessary or expedient for the purposes of protecting and improving the quality of environment and for the purposes of preventing controlling and abating environmental pollution. The Act also contemplates appointment of several authorities for the purposes of overseeing the effective implementation of the environment protection policy envisaged by the Act. Section 5 of the said Act gives specific powers to the Central Government for issuing directions in writing from time to time to any person officer or any authority in connection with the Act which such person is bound to comply with. Under the Act the Central Government is authorised to monitor the implementation of the Act. The Act is intended to put severe restrictions on untrammelled depredation of environmental resources. However as observed by the Apex Court in the case of Indian Council for Enviro-Legal Action v. Union of India reported in 1996 (3) AD(SC) 641 1996 (2) CCC 165 1996 (4) JT 263 1996 (3) Supreme 741 1996 (3) Scale 579 1996 (5) SCC 281 the Central Government shall while issuing Notifications has to balance various interests including economic ecological social and cultural. In the said judgment vide Para 31 the Supreme Court further observed that while economic devleopment should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other development. It is further laid down that both development and environment must go hand in hand. In other words there should not be development at the cost of environment and vice versa. That there should be development while taking due care to protect environment. In other words in order to prevent ecological imbalance and degradation the development activity should also be simultaneously regulated. The above observations of the Supreme Court in Para 31 of the judgment in the case of Indian Council (supra) applies to the facts of the present case particularly with regard to setting up of Bulk Receiving Station by Respondent No. 7. Pursuant to the authority given to the Central Government under the Act 1986 various guidelines have been issued from time to time by the Central Government keeping in mind the above observations of the Supreme Court in the case of Indian Council (supra). Some of these guidelines recommend case to case study. This is in view of the fact that in certain cases it was found that development may be hampered on account of peculiar location and size of the plot or on account of coastal belt having a peculiar size and shape. One more fact needs to be mentioned. After issuance of the CRZ Notification 1991 the State Government was required to prepare Coastal Zone Management Plan which in turn was required to be approved by the Government of India Ministry of Environment and Forests. Many of the States did not prepare Coastal Zone Management Plan for considerable length of period and in the circumstances the Supreme Court was required to step in and direct the States to submit Coastal Zone Management Plan to the Central Government for approval. During this interregnum i.e. prior to the preparation of Coastal Zone Management Plan the judgment of the Madras High Court came to be delivered in the case of Ramnathan v. State of Tamil Nadu (supra). This fact is important particularly in view of the fact that various guidelines which have been subsequently issued by the Central Government were not in existence when the Madras High Court delivered its judgment. Further the approved Coastal Zone Management Plan was not before the Madras High Court when it delivered the above judgment whereas in the present matter we are required to consider the CRZ Notification 1991 in the light of the subsequent amendments/directions issued by the Ministry of Environment and also in the light of the approved Maharashtra State Coastal Zone Management Plan.8. The CRZ Notification was issued on 19th February 1991 in exercise of the powers conferred under Section 5(3)(d) of the Environment (Protection) Act 1986. The Notification came to be issued to protect ecology balance in the coastal areas. Rule 5 provides for prohibition and restriction of location of industries and on carrying of processes and operations in different areas. With regard to Coastal Zone the Notification has imposed various restrictions on setting up and expansion of Industrial operations or processes in the Regulation Zone. Clause 2 of the Notification provides for prohibition on thirteen activities within Coastal Regulation Zone. Clause 3 provides for regulation of permissible activities within Coastal Regulation Zone and in that connection Annexure-I to the said Notification provides that for regulating development acitivities the Coastal stretches within 500 meters of the High Tide Line on the landward side are classified into four categories viz. CRZ-I CRZ-II CRZ-III AND CRZ-IV. The area that stands developed upto or close to the shortline falls in CRZ-II which reads as follows :The areas that have already been developed upto or close to the shore-line. For this purpose developed area is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural faci-lities such as water supply and sewerage mains. * In the present case it is not in dispute that the plot in question bearing 148 Backbay Reclamation Scheme falls in CRZ-II. It is within the Municipal Limits of Greater Bombay. It is surrounded by the road on the Eastern side. On the North it has a B.E.S.T. Sub-Station. It has infrastructural facilities and therefore the totality of Plots 148 149 and 150 shows that the area to that extent is a developed area. Under CRZ-II building is not permitted on the seaward line of the existing road or authorised structure. Building is also not permitted on the seaward side of the road proposed in the approved Coastal Zone Management Plan. After issuance of the said Notification on 19th February 1991 in terms of the said Notification the State Government submitted the Coastal Zone Management Plan for the State of Maharashtra to MOEF New Delhi. This was around 22nd November 1995. On 27th September 1996 Coastal Zone Management Plan for the State of Maharashtra came to be approved by MOEF subject to incorporation of certain conditions/modifications. On 9th July 1997 the Government of India (MOEF) issued a Notification amending CRZ Notification 1991. By the said amendment CRZ-II came to be substituted. The said substituted version of CRZ-II so far as it applies to the facts of the present case is as follows :Buildings shall be permitted only on the landward side of the existing road (or roads proposed in the approved Coastal Zone Management Plan of the area) or on the landward side of existing authorised structures. Buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio. * Pursuant to the said amendment certain difficulties were felt by the Urban Development Department State of Maharashtra with regard to the concept landward and seaward sides of the authorised structures. Accordingly clarification was sought by the Government vide their letter dated 25th September 1997 to MOEF. In reply MOEF by way of clarification dated 27th March 1998 stipulated inter alia that in areas categorized as CRZ-II new construction along the waterfront can be permitted on the landward side of the imaginary line drawn along the existing authorised structure. In other words if there exist authorised structures along the water front then an imaginary line parallel to the High Tide Line is required to be drawn between two existing authorised structures. Accordingly it was stipulated that no new construction could be erected beyond the imaginary line towards the sea but new construction would be permissible behind the imaginary line connecting two authorised structures. In other words new construction could come up behind the authorised structures because it would fall on the landward side of the imaginary line parallel to the High Tide Line. The question still remained as to what would be the effect if the distance between the two authorised structures spread over several plots. The question still remained as to whether the new construction could come on the plot adjoining the authorised structure if no space is available behind the authorised structure as in the present case. In the present case the plan indicates that plot 149 and 150 are fully occupied by B.E.S.T. Sub-Station. On the Eastern side there is General Jagannath Bhosale Marg and on the Western side there is the sea. Plot 148 is adjoining plot 149. Pursuant to the said letter dated 27th March 1998 MOEF has issued further guidelines on 8th September 1998 which are relevant for the purpose of deciding this petition and are reproduced hereinbelow :1. Construction of new building construction/expansion of existing authorised buildings shall not be permitted on the seaward side direction in the CRZ-II area of Mumbai Municipal Corporation unless the following conditions are satisfied.(i) The CRZ-II area should be within the territorical jurisdiction of the Mumbai Municipal Corporation as it existed in 19-2-1991 i.e. the date of coming into effect of the Coastal Regulation Zone Notification 1991.(ii) This construction/promotion towards the seaward side should not go beyond the imaginary line drawn from the seaward side of the existing authorized structure on the adjoining plot.(iii) The imaginary line will be parallel to the High Tide Line.(iv) The building(s) to be constructed will be restricted to the single plot (plot boundary as on 19-2-91) immediately abutting/adjoining the existing authorized structures between which the imaginary line is drawn.(v) The imaginary line to be drawn should not cut across any river creek backwater estuary water body sandy beach or man-groven.(vi) In case of reconstruction change in the existing use of the building shall not be permitted. Further any permissible extension of the Plinth in seaward direction vis-a-vis the existing plinth limits will be governed by the stipulations mentioned in the above paras.2. Construction shall neither be permitted on the seaward side of existing roads nor on the seaward side of the existing authorised structures in areas not covered by para 1(i) above until these areas have been examined by the Committee headed by the Chief Secretary Maharashtra to determine the CRZ-II categorization of these areas as have been acknowledged at having been taken on record in the Ministry of Environment and Forests.3. It is clarified that the phrase Existing Authorised Buildings means those buildings of a permanent nature that were existing prior to 19-2-1991 and were constructed in accordance with the building regulations and bye-laws in vogue prior to 19-2-91 and had received necessary sanctions including commencement and occupation certificates from the concerned loan authority prior to 19-2-1991. Further the construction of building including expansion and reconstruction should be in accordance with the FSI/FAR norms and all other Town and Country Planning regulations including maximum permissible density height zoning etc. that were prevalent and in force as on 19-2-1991. The phrase building means a permanent fixed structure with a roof forming an enclosure and providing protection from the elements.9. Now applying CRZ Notification 1991 read with the clarification dated 8th September 1998 as applicable to the facts of the present case it is clear that plot 148 149 and 150 are all abutting the sea on two sides viz. Southern side and Western side. On Plot 149 and 150 there is an authorised structure which is not in dispute viz. B.E.S.T. Sub-Station. This structure has been in existence prior to 1991. The important point to be noted is that Plot 149 and 150 are fully built up. They are covered by the Sub-Station of B.E.S.T. To the East of Plot 149 and 150 there is the main road viz. General Jagannath Bhosale Marg. In the circumstances no building could be constructed behind Plot 149 and 150 as the above plots are fully occupied by the Sub-Station. The plan further shows that all the three plots have sea frontage on the Western side. The above clarification dated 8th September 1998 requires an imaginary line to be drawn parallel to High Tide Line. The said High Tide Line is on the Western side of the three plots. It has been vehemently urged on behalf of the petitioner that under CRZ Notification 1991 read with various guidelines issued the impugned structure is protected only if there is an authorised structure in front of the impugned structure. It is further contended that if there are two authorised structures between the impugned structure and the sea separated by some distance then an imaginary line is required to be drawn on the seaward side of the structure connecting the two authorised buildings and behind the authorised structures the impugned structure can be set up as long as it does not cross the imaginary line drawn between the two structures. It is further pointed out that even under the clarification dated 8th September 1998 the new construction would be only on the adjoining plot to the authorised structures otherwise structures on either side of the imaginary line may be several plots away and entire area would be covered with new constructions which would defeat the object of the CRZ Notification. In the present matter however even according to the learned counsel for the petitioner the authorised structure is only on Plot 149 and 150. It is to the North of Plot 148 and to the South of Plot 148 we have the sea and therefore an imaginary line cannot be drawn from the authorised structure on Plot 149 as there is no other authorised structure which would form the point to which the imaginary line could be extended. In the circumstances even according to the petitioner an imaginary line is not possible to be drawn. Mr. Govilkar learned Government Pleader on the other hand contended that the clarification dated 8th September 1998 reproduced hereinabove clearly shows that an imaginary line is required to be drawn from the authorised structure parallel to the High Tide Line up to the adjoining plot. Mr. Govilkar contended that initially MOEF had issued clarifications which were not clear. However by the clarification dated 8th September 1998 it is now clear that an imaginary line has to be drawn from the authorised structure towards the adjoining plot. He contended that in the present matter the adjoining plot is 148 followed by sea on the Southern side. He contended that the imaginary line falls on the seaward side of the authorised structure. He contended that the imaginary line does not cut across the sea. He contended that the impugned structure falls on the landward side and that the line drawn in red on Appendix A called as the building line cannot be crossed by the impugned structure which clearly shows that the impugned structure can only come on the landward side of the B.E.S.T. Sub-Station. Mr. Chagla learned senior counsel appearing on behalf of respondent No. 7 however contended that the test laid down by the Madras High Court in the case of Ramnathan v. State of Tamil Nadu (supra) is squarely applicable to the facts of the present case as the entire area is a developed area. A perusal of the guideline dated 8th September 1998 issued by the MOEF shows that a new construction/building shall not be permitted on the seaward side unless the following conditions are satisfied viz. that the construction towards the seaward side should not go beyond the imaginary line drawn from the seaward side of the existing authorised structure on the adjoining plot (emphasis supplied by us.) Further the imaginary line shall be parallel to the High Tide Line. Further the imaginary line should not come across any creek river backwater etc. and lastly that the building to be constructed will be restricted to the single plot immediately adjoining the existing authorised structures between which the imaginary line is drawn. Now in the present case Plot 148 is bounded on the East by General Jagannath Bhosale Marg and by the sea on the West. It is also bounded on the Southern side by sea and by B.E.S.T. Sub-Station [authorised structure] on the North. There is no space behind Plots 149 and 150 as the entire plot is built upon by B.E.S.T. The point at issue is whether a structure could come up on the adjoining Plot 148. If we analyze the arguments advanced on behalf of the petitioners and on behalf of the Planning Authority it is clear that the impugned structure can be put up on the adjoining plot i.e. plot adjoining the authorised structure. The only difference in the respective submissions is whether an imaginary line should be drawn only between two existing authorised structures. In this connection the correspondence clearly indicates that initially MOEF had issued clarifications which clearly show that the imaginary line should be drawn between the two existing structures and that the impugned structure can come up only behind the existing authorised structure. This led to certain difficulties in implementation. If the two existing authorised structures stand apart by several Blocks/Plots would it cover the entire area. Therefore the above clarification came to be issued on 8th September 1998 which clearly stipulates that an imaginary line should be drawn from the seaward side of the existing authorised structure on the adjoining plot. In other words the adjoining plot need not be only behind the authorised structure. The adjoining plot can also be on the Southern side of the authorised structure. This clarification further indicates that the imaginary line drawn between the two structures will not protect all the structures but it will protect the adjoining plot to the authorised structures. In the present matter Plot 148 is adjoining to the authorised structure on Plots 149 and 150. In the present case on facts we also find that beyond Plot 148 on the Southern side there is the sea. The imaginary line from the authorised structure which is shown in red runs parallel to the High Tide Line. The impugned structure cannot cross the building line shown in red in the Plan. In the facts and circumstances of the present case therefore we are of the view that the impugned proposed structure does not violate the CRZ Notification. In fact the Plan (Appendix A) supports our interpretation. The matter can be looked at also from one more angle. Under the CRZ Notification of 1991 areas which stood developed up to the shoreline have come under Category-II (CRZ-II). The expression developed area in the said Category in the said Notification of 1991 is defined to mean area within the Municipal limits or an area falling under a designated urban area which is substantially built up and which has been provided with drainage and approach road and other infrastructural facilities such as water supply and sewerage mains. Relying on the definition of the word developed area the Madras High Court in the case of Ramnathan v. State of Tamil Nadu (supra) came to the conclusion that since the impugned structure in that case came within a developed area the CRZ Notification stood complied with although there was no building in existence between the impugned structure and the sea. The Madras High Court laid down that the CRZ norm cannot be tested with reference to each of the building situated on the seashore and therefore once it is found that the area is a developed area and there are buildings and roads in the said area which are nearer to the sea then the impugned construction would fall on the landward side and therefore the norms prescribed in the Notification stands fully satisfied. The judgment of the Madras High Court was delivered prior to approval of Coastal Zone Management Plan. The said judgment was delivered prior to issuance of subsequent guidelines. It is for this reason that in the judgment of the Madras High Court it has been specifically stated by the Division Bench that the State Government had not prepared and forwarded the Coastal Zone Management Plan for the State of Tamil Nadu and therefore the Madras High Court proposed to dispose of the Writ Petition without prejudice to the rights of the Central Government if any to take appropriate action within the power conferred by the Act Rules and Notification. However in our opinion the test laid down by the Madras High Court with regard to the structure falling in a developed area under the CRZ Notification could be usefully applied in a restricted sense. In the present case the authorised structure is put up on Plot 149 and 150 by B.E.S.T. It is a Sub-Station which has been constructed prior to 1991. It is a fully developed Sub-Station with underground cables. With the increase of the population in the Backbay area there is likelihood of paucity of electricity supply and in the circumstances the project was undertaken prior to 1991. In the present case the Tata Electric Company has set up a Receiving Station on the plot adjoining B.E.S.T. Sub-Station. It is a part of a Development Project in the sense that the Bulk Receiving Station would in turn be supplying the electricity to B.E.S.T. Sub-Station. In other words the Bulk Receiving Station of Tata Electric Company would operate as a feeder plant to the B.E.S.T. Sub-Station. Let us assume for the sake of arguments that instead of respondent No. 7 constructing the Bulk Receiving Station the B.E.S.T. was required to extend the existing Sub-Station or to put up a Bulk Receiving Station on Plot 148. As a part of development therefore there is nothing to prevent construction of a Sub-Station of a Bulk Receiving Station on Plot 148 as the entire block of three plots conjointly would constitute a developed area with underground cables and other infrastructural facilities. In fact with the growing demand for electric supply the Bulk Receiving Station will not only operate as a feeder plant but also will form part of functionally integrated plant consisting of the Bulk Receiving Station of Tata Electric Company on the one hand and the Sub-Station of B.E.S.T. This interpretation would support the development on the one hand and environment on the other as both concepts go hand in hand. This is also the object of the CRZ Notification as laid down by the Supreme Court in the case of Indian Council for Enviro-Legal Action v. Union of India 1996 (3) AD(SC) 641 1996 (2) CCC 165 1996 (4) JT 263 1996 (3) Supreme 741 1996 (3) Scale 579 1996 (5) SCC 281 (supra). As stated hereinabove the judgment of the Madras High Court can be usefully applied to a particular developed area. In the present case the entire Cuffe Parade cannot be earmarked as a developed area. It would defeat the very purpose of the CRZ Notification. However in the context of Plot 149 and Plot 150 Plot 148 could easily form part of the developed area. In fact further North we have a Fire Station which indicates that the entire belt of three or four plots is earmarked for a public utility service. The view which is taken is also supported by the judgment of the Division Bench of this Court in the case of Dr. Navin Kumar v. Indian Heritage Society decided on 10/11th September 1996 vide Writ Petition No. 619 of 1992 along with Writ Petition No. 761 of 1992. In that matter a public toilet was constructed on the road near Taj Mahal Hotel. The impugned structure came to be challenged. One of the tests applied by the Division Bench of the High Court was that the area was well developed with infrastructural facilities and in the circumstances it was held inter alia that there was violation of CRZ Notification. At this stage it may be clarified that in the same judgment certain observations were made to the effect that the entire Fort area was well developed and therefore the entire Fort area fell within CRZ-II. The matter was carried in Appeal to the Supreme Court. A bare reading of the judgment of the Supreme Court shows that the test of developed area can be applied to a limited extent. The Supreme Court kept the question as to whether the entire Fort area is covered by CRZ-II expressly open. This was in view of the fact that even within CRZ-II there could be a plot falling under CRZ-I like a heritage building.In the present case therefore our view is fortified in the sense that the test of a developed area could be applied usefully to the nearby plots and not to the entire area.10. In the present matter detail arguments were advanced regarding delay and laches on the part of the petitioners in moving the Court during the period 1991 to 1998 and during which period huge investment has been made by respondent No. 7. It is also submitted vehemently that citizens had welcomed construction of the Bulk Receiving Station in 1990 and coupled with the fact that no objecton has been taken by the petitioners all over the years the construction of the Bulk Receiving Station by Tata Electric Company should not be stopped. In the present matter it is important to note that the process for construction of Bulk Receiving Station started prior to 1991. Initially Plot 150-A was earmarked for the Bulk Receiving Station. However the land was required to be reclaimed and during this period the CRZ Notification came into force. In the circumstances the Government decided to permit Tata Electric Company to construct the Bulk Receiving Station on Plot 148. Construction of a Bulk Receiving Station is a long-drawn process. It has various stages. It starts from laying of underground cables. These cables are long distance cables. They come from Dharavi. It is only after these cables are laid that actual construction of the structure commences. It is for this reason that Government permitted Tata Electricity Company to cordon Plot 148 by a wall so that encroachment does not take place particularly as the process was a long-drawn up process involving various different stages. The point which is required to be borne in mind is that the process started prior to CRZ Notification in 1991. Today as the matter stands the Project is at a stage where the building is required to be put up as underground cables at huge costs have already been laid down. Looking from this perspective it is clear that before the CRZ Notification came into force the process had already commenced. The Project involves various stages and to our mind the initial allocation of the Plot 150-A which was subsequently shifted to Plot 148 itself is a part of the onzgoing process. In the circumstances the CRZ Notification of 1991 is required to be considered in the context of the facts of this case. Lastly we find merit in the contention of Mr. Chagla that in any event the larger public interest should be weighed and since there is utmost need in the locality for the Bulk Receiving Station the larger public interest should prevail particularly when two public interests compete with each other.(b) Whether construction of a helipad by Respondent No. 7 on Plot No. 148 contravenes provisions of the said Notification of 1991 as also provisions of the Air Craft Act 1934 read with the Rules framed thereunder.?11. On the Western side of the plot bearing No. 148 referred to hereinabove respondent No. 7 has constructed a helipad. Petitioners have objected to the construction of the helipad on the ground that it would be hazardous to permit helicopters belonging to respondent No. 7 to land and to take off particularly in view of the fact that Plot 148 is surrounded by human habitat. That it is surrounded by hutments constructed by local fishermen at some distance. That it is surrounded by multi-storeyed buildings at some distance away from Plot 148 and in the circumstances respondent No. 7 should not be permitted to use the said plot as helipad. It is also alleged that every week there is landing and take-off at least twice a week. On the other hand respondent No. 7 contended that various on-going Projects of Tata Electricity Company are located to the South of Plot 148 at Alibag Murud-Janjira etc. That apart from the on-going Projects the Officers of Tata Electric Company are regularly required to visit the Sub-Station/Bulk Receiving Stations at various sites in Mumbai. That the Head Office of respondent No. 7 is in Greater Bombay. That the Head Office is very close to Plot 148. That the aerial distance between Juhu Airport where the helicopters are stationed in their hangars and Plot 148 is very short and that during emergencies or even otherwise the Officers could be easily transported from Juhu Airport to Plot 148 and in the circumstances a portion of the Plot 148 is being used as helipad. * ARGUMENTS :12. Mr. Rustomji learned counsel appearing in behalf of the petitioners submitted that the construction of helipad on part of Plot 148 violates CRZ Notification. He contended that the part of Plot 148 abuts the sea on the Western side. It is not necessary to repeat the submissions made by the learned counsel for the petitioners with regard to violation of CRZ in the context of Plot 148. However it has been urged that even under the said CRZ Notification 1991 respondent No. 7 was required to obtain permission of the Ministry of Environment before using part of Plot 148 as helipad. He further contended that the said plot is surrounded by fishermen colony. That the landing of helicopters is across the said colony and also across multi-storeyed buildings which lie in the vicinity and therefore it was contended that it would be hazardous to use part of Plot 148 as helipad. He further points out that there is great danger of birds hitting helicopters belonging to respondent No. 7 and in the process the situation is accident-prone. He further submits that landing of helicopters in the midst of the human habitat also causes noise pollution which is not conducive to good health of Cuffe Parade Citizens. In the circumstances the learned counsel for the petitioners contends that respondent No. 7 should not be permitted to use part of Plot 148 as helipad.12A. Learned Additional Solicitor General also submitted that respondent No. 7 was duty-bound to comply with provisions of Air Craft Act 1934 read with the Rules framed thereunder. He contended after relying upon various Sections of the Act and the Rules that there is a dichotomy between permission to be obtained for constructing helipad and also permission for the purposes of landing of helicopters on the site. He contended that none of the provisions of the Act and the Rules have been complied with regard to the use of the said plot as helipad. On the other hand learned counsel for respondent No. 7 pointed out that no licence/permission is required to be obtained by respondent No. 7 for using the above plot as helipad. It was contended that during war like situation helicopters land at sites which are not licensed. Similarly it was contended that during elections politicians travel by helicopters which land at sites which are not licensed. It was pointed out that the Officers of respondent No. 7 are required to be transported during emergencies at short notice from Juhu Airport to various sites where Sub-Stations are located and as a part of public utility service plot 148 is being used as helipad. It was further pointed out that the plot is used only once or twice in a week for helicopters to land and that it was not a daily affair. It was pointed out that respondent No. 7 has purchased latest state of art helicopters manufactured by Mcdonnel Douglas and which helicopters do not have tail-rotors. It is pointed out that with the elimination of tail-rotors the helicopters manufactured by Mcdonnel Douglas [hereinafter referred to as MD520N has a great level of manoeuvrability and it can land and take-off with ease even in confined areas. That it permits even water landing and it is the quietest helicopter in the world. Mr. Chagla contended that with the purchase of MD520N by respondent No. 7 there is least possibility of accidents and minimum noise pollution. Mr. Chagla further contended that under the said Act and the Rules respondent No. 7 is not taking off or landing helicopters as a part of Scheduled Air Transport Service and in the circumstances it is not required to obtain licence from the authorities under the said Act vis-a-vis the helicopters. Mr. Chagla further pointed out that no aircraft or helicopter could take off or land without the permission of the Director of Aviation. Mr. Chagla produced before us the requisite chart/flight plan duly signed by the competent authority. He pointed out that the flight plan clearly indicates the aircraft identification the place of destination the date and the time the type of flight etc. Mr. Chagla submitted that no aircraft could operate without permission and the flight plan being sanctioned. He contended that the flight plan indicates sufficient safeguard and in the circumstances no objection could be raised with regard to use of the said plot by helicopters.13. FINDINGS :(a) Whether construction of a helipad requires permission of Ministry of Environment and Forests.?14. Under CRZ Notification dated 19th February 1991 broadly the activities are classified into two categories viz. prohibited activities and permissible activities. Clause 3 of the CRZ Notification deals with regulations of permissible activities. Clause 3(2)(ii) reads as follows :3. Regulation of permissible activities :(1) ... ... ..... ... ....(2) The following activities will require environmental clearance from the Ministry of Environment and Forests Government of India namely : (i) ... ... ..... ... ....(ii) Operational constructions for ports and harbours and light houses and constructions for activities such as jetties wharves quays and slipways: * **(Provided that for expansion or modernisation of existing ports and harbours including fishing harbours operational construction of jetties wharves quays slipways Single Point Mooring and Single Buoy Mooring and for reclamation for facilities essential for operational requirements of ports and harbours in area within the existing port limits except the areas classified as category CRZ-I(i) shall require environmental clearance from Government of India in the Ministry of Surface Transport which shall take decision on these activities on the basis of Environmental Impact Assessment Report. 15. A bare reading of the above clause indicates that operational constructions such as jetties wharves slipways require prior permission of MOEF. In fact in the present matter the correspondence indicates that permission has been sought from MOEF for construction of helipad. A bare reading of the above clause indicates that all operational constructions require environmental clearance from MOEF. The said clause is not exhaustive. For example jetties wharves and slipways form part of operational constructions. These constructions are required for Ports harbours lighthouses and other activities for vessels to come towards the shoreline particularly in cases of water transport which is the need of the hour for Mumbai. Jetties are required to be constructed. Similarly wharves are required to be erected. All these form part of operational construction. To our mind construction of helipad is also a part of an operational construction. In the circumstances on a bare reading of the above clause we are satisfied that part of the plot cannot be used as a helipad without clearance from MOEF. Moreover in the plan of Backbay Reclamation Scheme (Coastal Zone Management Plan) annexed as Appendix A to this Judgment there is nothing to indicate that part of Plot 148 is earmarked for being used as helipad. On the said plan Plot 148 is earmarked for Bulk Receiving Station. Taking into account the above facts we are of the view that without permission/clearance from Maharashtra Coastal Zone Management Authority and without the plot being earmarked on the plan part of Plot 148 cannot be used as helipad.16. (b) Whether construction of helipad requires permission under the Air Craft Act 1934.?The Air Craft Act 1934 has been enacted to make better provision for control of use and operation of Aircraft. Section 2(1) defines aircraft to mean any machine which can derive support in the atmosphere from reactions in the air and includes balloons airships gliders and flying machines. Section 2(2) defines aerodrome to mean any definite or limited ground intended to be used either wholly or in part for landing or departure of aircraft and it would include buildings sheds vessels piers and other structures. At this stage it may be mentioned that even a pier is included in the definition of the word aerodrome which supports our above conclusion that construction of a helipad in the present case is a part of an operational construction as contemplated by CRZ Notification. Section 5 of the said Act empowers the Central Government to make Rules not only for possession use and operation of the aircraft but also for securing safety of aircraft operations. Section 5(2)(b) deals with power of the Central Government to frame Rules in the matter of licensing inspection and regulation of aerodromes. It also empowers the Central Government to frame Rules and Regulations from time to time regarding use of unlicensed aerodromes. The Central Government has framed the Air Craft Rules 1937. Rule 3(2) defines aerodrome as stated above. Similarly Rule 3(4) defines aerodyne to mean an aircraft whose support in flight is derived dynamically from the reaction on the surfaces in motion relative to the air and includes aeroplanes helicopters gyroplanes gliders and kites. Rule 3(7) defines aircraft to mean any machine which derives support in the atmosphere from reactions of the air other than reactions of the air against the earths surface. Rule 3(9) defines air transport service to mean a service for the transport by air of persons for any kind of remuneration whatsoever whether such service consists of a single flight or a series of flights. On the other hand Rule 3(49) deals with Scheduled air transport service to mean air transport service undertaken between two or more places and operated according to a published time table or with flights so regular or frequent that they constitute a recognizably systematic series and each flight is open to use by members of the public. These two definitions of air transport service on the one hand and scheduled air transport service on the other are very vital for deciding this matter. Rule 3(25) deals with flying machines. It is defined to mean a mechanically driven aerodyne including helicopters. Rule 3(27) deals with Government Aerodromes. It is defined to mean as aerodrome which is maintained by the Government and includes an airport which is under the governance of International Airport Authority Act 1971. It is interesting to note that the word aerodrome is not the same under the Act as an airport. Rule 3(28) defines helicopters to mean heavier-than-air aircraft supported in flight by the reactions of the air and driven on one or more power-driven rotors or substantially vertical axis. Rule 4 forms part of Part II which deals with general conditions of flying. It lays down that no person shall use or operate an aircraft save in accordance with the Rules. Rule 11 which also falls in Part II deals with aerodromes and it states that no pilot carrying passengers for hire or reward shall use any place for a series of landing and departures and no pilot employed on a scheduled air transport service shall use any place as a regular place of landing or departure other than an aerodrome licenced in accordance with Part XI of the Rules. Rule 11(2) lays down that no person being the proprietor of an aerodrome shall permit the aerodome to be used in contravention of Rule 11. Rule 86 of the Rules provides inter alia that an aerodrome is required to be licenced for all types of aircrafts or for certain specific type of aircrafts and licence is required to be obtained accordingly in the manner prescribed by the Rules. Rule 134 deals with Air Transport Services. It lays down that no person shall operate any scheduled air transport service except with the permission of the Central Government. Rule 134(3) further lays down that no air transport service other than a scheduled air transport service shall be operated except with the permission of the Central Government.17. On reading of the above Air Craft Act and the Rules it is therefore clear that respondent No. 7 was required to obtain permission of the Central Government under the Act before undertaking air transport service. In this connection Rule 11 clearly lays down that no pilot carrying passengers for hire or reward shall use any place for a series of landings and departures without permission/approval in accordance with the provisions of the Air Craft Rules. A distinction is sought to be drawn between airport service and a scheduled airport service. Here also it may be mentioned that Rule 11 clearly lays down that every pilot employed on a scheduled air transport service cannot use any place as a regular place of landing without prior approval under Part XI of the Rules. In this matter it is not in dispute that part of Plot 148 is used on regular basis twice a week for landing and departure purposes by helicopters owned by respondent No. 7. The pilots are engaged by Tatas. The Officers are carried from Juhu Airport to the site in question and in the circumstances Rule 11 is applicable. The plot is used for a series of landings and departures. This is not a case where the helicopter is required to land on emergency basis as in case of war. This is clearly a case where the helicopter land on regular basis. Further the definition of scheduled air transport service under Rule 3(49) is distinct from air transport service under Rule 3(9). Air transport service is defined to mean a service for the transport of persons by air for any kind of remuneration whatsoever whether such service consists of a single flight or a series of flights. Rule 134(3) clearly lays down that no air transport service (other than scheduled air transport service) shall be operated except with the special permission of the Central Government and subject to such terms and conditions as the Central Government deems fit to impose in each case. This is in contradiction to Rule 134(1) which lays down that no person shall operate scheduled air transport service except with the prior permission of the Central Government. Rule 134 therefore deals with scheduled air transport service as well as air transport service other than scheduled air transport service. Our interpretation is further fortified by Circular issued by the Director General of Civil Aviation on 11th September 1992. Rule 79 of the Air Craft Rules 1937 states that any place in India other than Government Aerodromes shall not be used as a regular place for landing and departure by a scheduled air transport service or any other aircraft carrying passengers for hire or reward unless the place has been licensed. It further lays down that the Government has decided that all aerodromes including those belonging to International Airport Authority of India and the State shall be licensed by the Director General of Civil Aviation. The said guidelines indicate that it is applicable not only to scheduled air transport service but also to any other aircraft carrying passengers for hire or reward. This guideline was required to be issued because the Air Craft Rules provided for unlicensed aerodromes and Government of India realizing that a place used as an unlicensed aerodrome on regular basis would be hazardous issued and above guideline. Taking into account the facts of the present case and particularly in view of the fact that the landing site is being used on regular basis twice in a week we are of the view that respondent No. 7 is required to obtain the requisite licence from the competent authority under the Air Craft Rules before making use of the above Plot 148 as a helipad.(c) Whether change of user from garden/playground to Government Housing/residence on Plot Nos. 146 and 147 is in contravention of the CRZ Notification 1991.?FACTS :18-19. CRZ Notification came into force with effect from 19th February 1991. On 26th May 1983 respondent No. 9 = Municipal Corporation prepared the Revised Draft Development Plan for A Ward in which Plots 146 and 147 are located. In the said Plan the above two plots along with Plot 148 came to be reserved for a garden. On June 15 1983 respondent No. 3 appointed a Special Planning Authority with regard to Block-III and Block-IV on Backbay Reclamation area under Section 40 of the Maharashtra Regional Town Planning Act [hereinafter referred to for the sake of brevity as MRTP Act]. The third respondent i.e. Special Planning Authority thereafter prepared a Draft Development Plan for the said area in which Plots 146 and 147 were again shown as garden. In the said Plan Plot 150-A was earmarked for Bulk Receiving Station but as stated hereinabove the said land was required to be reclaimed as it was falling in the sea and in the circumstances Plot 148 which was earlier reserved for garden came to be reserved for Bulk Receiving Station. However according to the petitioners the said Draft Development Plan was once again modified by the Corporation. The petitioners have further stated that they do not know when the Corporation have prepared the modified Draft Development Plan but in the modified Draft Development Plan Plots 146 and 147 are now earmarked for residential/Government housing instead of garden to which the petitioners are objecting. In reply a short affidavit has been filed by the Special Planning Authority in which it has been stated that the Draft Development Plan for Blocks-III to VI came to be submitted to the State Government for approval on 8th October 1991. Under the said Draft Development Plan submitted on 8th October 1991 plots 146 and 147 are now shown for Government Housing. Similarly in the said Affidavit filed by the Special Planning Authority it is further clarified that there is no proposal received for permission to develop the said plots 146 and 147. However the petitioners point out that some construction activity has been going on the above two plots which has constrained them to file the present writ petition.Findings :20. At the outset it may be mentioned that as far as plots 146 and 147 of Backbay Reclamation are concerned the said plots are abutting the sea on two sides viz. on the Southern side and the Western side. The adjoining plots 143 144 and 145 are actually unreclaimed till date. Plot 144 is in fact reserved for boat parking plots 146 and 147 were shown as garden on the Development Plan when the CRZ Notification came into force on 19th February 1991. A part of plot 147 is subsequently earmarked for road. This is under the modified Draft Development Plan. Similarly the Special Planning Authority has pointed out that plot 146 and plot 147 (part) which is already reclaimed is now earmarked for Government Housing/Residence. Plots 143 to 145 remain un-reclaimed till date. At the same time the Special Planning Authority has further stated in their Affidavit that no proposal has been received from the Government with regard to Government Housing. Looking to the location of plots 146 and 147 it is clear that it not only abuts the sea but it is touching the High Tide Line on two sides. The two plots are on the seaward side of the main road i.e. General Jagannath Bhosale Marg. It is within 500 meters of the High Tide Line. there is no authorised construction/structure from which an imaginary line could be drawn as contemplated by the clarification issued by MOEF on 8th September 1998 reproduced hereinabove. As stated hereinabove in the original Draft Development Plan the two plots are reserved for garden. In fact plots 146 and 147 is covered even by sea on the Northern portion of plot 147. Taking into account the fact that a proposed road is contemplated on a portion of the plot 147 and taking into account the fact that the above plots were reserved for garden on the day when CRZ Notification came into force in 1991 we are of the view that the two plots shall continue to remain as being earmarked for garden and that no steps will be taken to use the land for Government Housing/residence without prior permission/approval of CZMA. This view is supported on two counts. Firstly that the two plots are abutting the sea on the Southern side as well on the Western side. There is no authorised structure in the vicinity. The plots are squarely hit by the provisions of the CRZ Notification. The plots were earmarked for garden in 1991. The Special Planning Authority has suggested a modified Draft Plan and they have proposed to earmark the two plots for residential/Government Housing but there is nothing to indicate that CZMA has approved the change after 19th February 1991 when the CRZ notification came into force. In the circumstances we direct that the two plots will continue to remain earmarked as garden till change to residence/Government Housing is approved by Maharashtra Coastal Zone Management Authority. In fact the Ministry of Environment and Forests is required to issue appropriate guideline for cases like plot Nos. 146 147 which has sea frontage on three sides. In the present matter the sea frontage is on the Southern and Northern sides as well as the Western side as also between plot Nos. 146 and 148. In the circumstances we are of the view that without permission from Maharashtra Coastal Zone Management Authority it would not be permissible to change the earmarking of the two plots from garden to residence/Government Housing. This view is required to be taken in the present case particularly in view of the fact that with the growing population there is also need for reserving certain areas as gardens and parks. This interpretation would also meet the criteria laid down in the judgment of the Supreme Court in the case of Indian Council for Enviro-Legal Action v. Union of India (supra) viz. that the CRZ Notification should be so interpreted as to make development go hand in hand with considerations concerning preservation of environment and ecology.Conclusion :21. We answer the above points for determination as follows : * (a) Whether construction of a Bulk Receiving Station on Plot No. 148 by Tata Electric Company (Respondent No. 7) contravenes CRZ Notification 1991.?(a) In the negative.It is hereby declared that construction of Bulk Receiving Station by Tata Electric Company on part of plot 148 Backbay Reclamation Scheme does not contravene the provisions of CRZ Notification dated 19th February 1991. To this extent the writ petition fails.(b) Whether construction of a helipad by Respondent No. 7 on Plot No. 148 contravenes provisions of the said Notification of 1991 as also provisions of the Air Craft Act 1934 read with the rules framed thereunder.?(b) In the affirmative.However it needs to be clarified that this Order will not prevent respondent No. 7 from obtaining requisite permission to construct the helipad after obtaining permission from MOEF and Maharashtra Coastal Zone Management Authority and after obtaining requisite permission licence/approval from the competent authority under the provisions of the Air Craft Act 1934 read with the Rules framed thereunder.(c) Whether change of user from garden/playground to Government Housing/residence on Plot Nos. 146 and 147 is in contravention of the CRZ Notification 1991.?(c) In the affirmative.However it needs to be clarified that special Planning Authority/Government would be entitled to bring about the change in the user from garden to residence/Government Housing if so approved by the Maharashtra Coastal Zone Management Authority. Till such approval is obtained the said two plots 146 and 147 shall continue to be earmarked as garden.Subject to above writ petition is disposed of. No order as to costs.Order accordingly.