IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL … · Sub:- Construction of Chhatrapati Shivaji...

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


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


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)


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


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: -

[email protected]

No/CSMMP/PB-3/722 Date: 24/09/2018


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.


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


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.


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


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.


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.: -


(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.


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


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


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


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


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.


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,


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


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


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


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


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


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.


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


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


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


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,


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,-


(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: —


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),


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


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


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)


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



satisfied that the project will not involve rehabilitation


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


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.


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


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


“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.


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


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


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.


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



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.


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.


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”.


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.


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.


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.


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.


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.


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.


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.


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.


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.






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


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


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


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


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


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


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


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:


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


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


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.


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 ____)..


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 ____).


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


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 ____).


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


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:


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


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


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 ____).


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)


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:


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


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



____). 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


38.A copy of the body of the contract dated 28.06.2018 between

the Respondent PWD and Larsen and Toubro, without its


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


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


____).

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


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


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


(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



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 ____).


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


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


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


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


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.


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


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


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.


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


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


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?


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


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


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


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.”


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


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


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


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?


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


embarkation points at Mumbai to the memorial site has been


____). 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


____). 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.


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


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



____). 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


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


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.


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


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


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.


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


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


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


92.True Copy of the letter dated 23.07.2015 are annexed hereto and


93.True Copy of the letter dated 10.10.2018 are annexed hereto and


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:


“(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


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


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


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


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


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


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


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


____). 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.


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



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


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:


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.


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.


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-


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.”


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


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.”


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


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


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


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,


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.


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


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.


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


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.


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;


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;


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


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.




IA No. of 2019

IN



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


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


Filed On: .11.2019


IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL … · Sub:- Construction of Chhatrapati Shivaji...

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