Synopsis This Article examines the recent decisions which have held that parts of Mumbai city are a bay. This has opened up parts of the city for development, since the Coastal Regulation Zone (CRZ) Rules are less stringent in bay areas.
Introduction
Quick Quiz – Does Bombay (apologies for using the old name) as BOMBAY rhyme with BAY .
Interestingly, while the name tends to suggest that ‘Bombay’ is a bay, it actually is an island. History has it that Bombay originally comprised of seven islands under the Portuguese Rule, which were given in dowry to an English prince on his marriage with a portuguese Princess. One of these 7 islands was Mahim island. Paradoxically, this very island has a central role to play in this discussion on a bay!
A spate of recent decisions of the Bombay High Court have held that parts of the island city are actually bays. While this distinction may seem semantic at first, it has a great repercussion for the city’s developer community. What it does is to open up a goldmine for developers, that too on the waterfront. The Coastal Regulation Zone or CRZ restriction in bays is substantially lower as compared to other places. Let us examine this decision and why environmentalists consider it to be a real bolt from the blue!
CRZ Notification
The Ministry of Environment and Forests has issued the Coastal Regulation Zone Notification to protect coastal lines and regulate activities in these areas. In a country like India, and more so in a city like Mumbai, which has a very long coastal line, regulations dealing with protection of this very valuable natural resource have an important role to play. The Ministry had originally notified the CRZ Guidelines in 1991 vide Notification No. S.O. 114 (E) dated 19th February 1991. These were amended and updated from time to time to arrive at the latest Coastal Regulation Notification 2011 issued on 6th January 2011.
Keeping in mind the special needs of Mumbai, several concessions have been provided to CRZ areas within Mumbai.
According to this Notification, the following areas are declared as CRZ:
(i) the land area from High Tide Line (HTL) to 500 mts on the landward side along the seafront. The term HTL means the line on the land up to which the highest water line reaches during the spring tide and so demarcated. HTL will be demarcated within one year from the date of issue of the 2011 notification.
(ii) the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies (i.e, bays, rivers, creeks, etc. that are connected to the sea and are influenced by tides).
The significance of declaring an area as CRZ is that the Notification imposes various restrictions on the setting up and expansion of industries, operations or processes, etc., in such areas. The Notification classifies various areas into CRZ-I, CRZ-II, CRZ-III, CRZ-IV, etc. The severity of the CRZ Regulations goes on decreasing as the classification increases.
Hence, maximum construction is not possible in CRZI while in CRZ-IV, those activities impugning on the sea and tidal influenced water bodies are regulated except for traditional fishing and related activities undertaken by local communities. CRZ-IV area is defined as the water area from the Low Tide Line to 12 nautical miles on the seaward side and the water area of the tidal influenced water body from the mouth of the water body at the sea up to the influence of the tide, which is measured as 5 parts per 1,000 during the driest season of the year.
A bay is defined in common parlance as “a body of water forming an indentation of the shoreline, larger than acove but smaller than a gulf”.
Mahim is a Bay
In the case of Hoary Realty Ltd vs. MCGM, WP No. 2383/2014 Order dated 7th October, 2014, the Bombay High Court faced a peculiar issue of, whether a certain plot of land in Mahim fell within the purview of the CRZ area? The issue was whether Mahim was a bay area?
The developer obtained a Certificate from an Institute of Remote Sensing at Chennai which certified that only 7% of the plot area fell within the CRZ IV area as a bay and the balance was not within the purview of CRZ. This Institute is one of the premier bodies in India in the areas of Remote Sensing, Geographical Information System and Large Scale Mapping. Thus, the Institute certified that Mahim was a bay and not a sea shore.
Hence, according to the developer, since only 7% fell within the 100 meters restriction for a bay, it could construct on the balance 93% of the plot which fell outside CRZ. It also obtained a certificate from the National Hydrographer Office which certified that Mahim is considered as a bay and is so depicted on the Official Navigational Chart of the National Hydrographer Office. Accordingly, the developer prayed for relief to carry on construction on the area not within the purview of CRZ.
The Bombay High Court upheld the classification contended by the developer and held that the area was in Mahim which was indeed a bay. Only 7% of the plot fell within the purview of CRZ IV and hence, for this portion, there was a restriction of 100 meters from the High Tide Line. Had it not been a bay, the restriction would have been 500 meters from the High Tide Line. The High Court also relied on the National Hydrographer’s Chart. The MCGM argued that the New Coastal Zone Management Plan was under preparation and hence, it was not possible to sanction the development. This argument was rejected by the High Court. Finally, the Court directed the Municipal Corporation to issue a clearance certificate based on the Certificate obtained by the developer as to how much was within CRZ.
The Maharashtra Coastal Zone Management Authority preferred a Special Leave Petition before the Supreme Court against this decision. However, the MCGM’s SLP was dismissed by the Supreme Court on 19th November, 2014. Thus, the High Court’s ruling is binding now on the Maharashtra Coastal Zone Management Authority as well as the Municipal Corporation of Greater Mumbai.
Bhuleshwar and Bandra join the Club
Buoyed by the decision of the above Bombay High Court and the rejection of the SLP, developers have started knocking the doors of the High Court for similar relief in other parts of the city. The Bombay High Court in the case of Marine Drive Hospitality & Realty P Ltd vs. MCZMA, WP No. 3127/2014 Order dated 17th December, 2014 and Om Metals Consortium vs. MCZMA, WP No. 3152/2014 Order dated 18th December, 2014 had an occasion to consider similar issues. The Court held in Orders similar to the one in Hoary, that Bhuleshwar as well as Bandra (West) were bays. It once again held that the water body at Mahim Bay (Bandra reclamation to Prabhadevi) / Back Bay (Governor House to Colaba) was a bay! Accordingly, it allowed construction on the area outside the 100 meters purview, which in the Bhuleshwar case was an area of about 1 lakh sq. feet while in the Bandra case it was a slum redevelopment project of around 6 lakh sq. ft.
Impact of the Rulings
Development within the bay area can be done with a higher FSI of 3 which was till now allowed only for hotels. Now with the Rulings opening up the area for other development also, developers can develop more lucrative residential complexes. Since these projects would be waterfront projects one can do the math and compute the benefits to the developers.
It
may be noted that the ratio of this decision could also be used in other
coastal parts of India, such as, Goa, Gujarat, Karnataka, etc. The Eastern Coast of India could be the biggest beneficiary
since it abuts the “Bay” of Bengal! In short, this decision could be a game
changer for the realty sector. Certain Press Reports indicate that the
Maharashtra Government is planning to request the Ministry of Environment and
Forests to suitably amend the CRZ Notification to deal with this new phenomenon
of construction in bays. Till such time as the Centre amends this
Notification, the High Court Rulings will prevail.
Conclusion
While the pros and cons of these decisions are
being hot-ly debated by developers and environmentalists only time would tell
what impact they have had on the development of Mumbai and other coastal areas.
However, they high-light one important learning ~ don’t judge a book by its
cover! Outward appearances are often deceiving ~ what appears to be a shore
could turn out to be a bay, keeping all environmentalists at bay (pun
intended)!
