MCZMA mulls appealing against HC order on SRA projects

Mumbai: The Maharashtra Coastal Zone Management Authority (MCZMA) has decided to seek legal opinion from the advocate general of Maharashtra on how to interpret regulations, whether to grant 4.0 FSI for Slum Rehabilitation Authority (SRA) schemes in CRZ (Coastal Regulation Zone) areas. And if possible, appeal in the Supreme Court against the Bombay HC order allowing such schemes in the mentioned zones.

This despite Justice Gautam Patel of the Bombay High Court clearly stating in CRZ notification 2019 “that which is not specifically prohibited is permitted” and the slum rehabilitation projects could be included in CRZ II areas in October 2022 order.

The high court’s October 20, 2022 order had dealt with the question of whether the CRZ 2019 notification was “silent” on the inclusion of SRA schemes in CRZ II areas, and ruled that SRA projects have not been excluded from the notification and they are allowed.

The HC order was discussed in the 162nd meeting of MCZMA meeting held on December 7, 2022 and the minutes of the meeting were made public on Tuesday. The minutes show that the officials deliberated on how to interpret the clauses 5.2 and 10.3 in CRZ notification 2019.

After detailed discussion and deliberation, the MCZMA decided to send a proposal to amend clause 5.1 (iv) in CRZ notification 2019 to Ministry of Environment Forest and Climate Change (MOEFCC) with a request to permit SRA schemes in CRZ II areas. The clause will include the words “protected structures (for slum rehabilitation scheme only)” in the clause which permits reconstruction of authorised structures in CRZ II.

Similarly, the proposal will also recommend inclusion of “redevelopment of slum rehabilitation scheme in CRZ II areas” in clause 10.3 (iii). The 10.3 (i) stipulates that all open spaces, parks, gardens, playgrounds indicated in development plans within CRZ II areas will be deemed No Development Zones in order to protect and preserve the “green lung” of Mumbai.

While this may be in line with HC court which pertains to “landward” projects and will cover 90% of SRA schemes in CRZ II areas, the meeting deliberated on whether the clause 5.2 is applicable to “seaward” or sea-facing SRA projects.

Two expert members opined that a clarification was required from the Supreme Court on the legal interpretation of the high court order. A senior UD official suggested that legal opinion could be obtained from Maharashtra Advocate General before taking further action.

The Authority then decided to seek AG’s legal opinion on whether the authority can take decisions based on clauses 5.2 (i) and (ii) and neglect clauses 5.2 (iv) and 10.3. It will also seek his opinion if FSI 4.0 should be given for SRA projects in CRZ II areas, and whether the Authority should challenge the HC order in the Supreme Court.

The October High Court order, reported by HT on October 29, had said, “We fail to see how any of the respondents can ever contend that there is still a question of whether or not to include SRA projects in CRZ II areas. This was never in controversy. The only question was whether special conditions should apply to SRA projects in CRZ II areas. Those conditions have been removed. SRA projects have not been excluded from the CRZ Notification 2019.”

“What the government seems to now say is that the inclusion of SRA projects in CRZ II areas must be specifically done in the CRZ Notification 2019. In other words, as a matter of law, it submits that whatever is not specified is prohibited. To our mind, it is exactly the other way around -- that which is not specifically prohibited is permitted.

“It is impossible to expect that any statute will completely and accurately envision every possibility and will then make express provision for its inclusion. There is nothing in the CRZ notification 2019 either to suggest that SRA projects must be mentioned in the CRZ notification 2019 expressly or else they stand excluded,” the court had observed.

The order came on a petition filed by Ms Akshatsthapatya Pvt Ltd which had initiated a SRA scheme at Mariamma Nagar slum pocket behind Nehru Centre. The project, which has been pending for 20 years, is on an area of about 20,500 sq m with 1,500 slum tenements.

Speaking to HT, a senior developer from a developer association said, “The high court order has given the green signal for 90 per cent of the ‘landward’ SRA projects in CRZ II areas. The government officials seem to be unclear if the same regulations can apply to 10% ‘seaward’ SRA projects. Hence, they have sought the legal opinion.”