JUDGMENT M.B. Shah, C.J.

1. The question involved in these two public interest petitions is whether the Municipal Corporation should be permitted to construct toilet block near "Gateway of India". Petitioners have prayed that the Municipal Corporation be prevented from constructing toilet block.

2. In our view, this not a fit case for interference under Article 226 of the Constitution of India when the Corporation is providing a facility which is a must for human beings at a place which is visited by thousands of persons every day. Facility of providing toilet block is also to prevent nuisance arising because of unauthorised use of the open space to answer natural calls by people visiting the area. Further, the resolution to construct toilet block was already passed on 5th August, 1991. No objection was taken at the relevant time. Subsequently, toilet block is constructed and thereafter the present petition is filed on 13th March, 1992.

3. Apart from this, on merits also, we do not think that any interference is called for by this Court.

4. The learned counsel for the petitioners submitted that -

(a) the construction of a toilet block is in violation of the Coastal Regulation Zone Notification dated 19th February, 1991 of the Central Government, which provides for the Coastal States and Union Territories to frame Coastal Zone Management and prohibits construction within particular limits as provided therein;

(b) it is in violation of Regulation 67 of the Development Control Rules, 1991; The area in and around the Gateway of India is clearly an area of outstanding natural beauty, a historical area and heritage precinct near the water front and the State of Maharashtra has recognised it as a heritage area and precinct ; and

(c) Municipal Corporation has mala fide decided to demolish the existing toilet block near Taj Mahal Hotel so as to favour the management of respondent No. 5 and to construct near Gateway of India. That the construction of toilet near Gateway of India by demolishing the existing toilet block near Taj Hotel is mala fide so as to favour the management of respondent No. 5.

5. As against this, the learned counsel for the respondents vehemently submitted as under :---

(a) that the allegation of mala fide is made only for the sake of challenging the scheme framed by the Corporation. It is pointed out that the existing toilet facility is in a shaded area which is misused by anti-social elements for anti-social activities including dealing in drugs. To meet with the contention that it is mala fide, it is submitted by the learned counsel for the respondents that in any case the respondent Nos. 1 and 5 have no objection for maintaining two toilets blocks, one across Taj Hotel and the other which is in dispute.

(b) That there is no question of application of CRZ-I to the present case as the area is not declared as ecologically sensitive historical heritage by the Central Government or State Government. With regard to the application of CRZ-II the learned counsel for the respondents pointed out that the construction is in accordance with CRZ-II as a toilet block is constructed on the existing road and not on the sea-ward side of the existing road.

(c) Construction of toilet blocks is not in violation of Heritage Regulations for Greater Bombay, 1995. It is in accordance with the Regulations and Regulation 67 specifically provides that development can be made with the prior written permission of the Municipal Commissioner.

6. At this stage we may state that major portion of the construction work of the toilet is over. However, the toilet block is not used because of interim order passed by this Court on 16th March, 1992. Interim relief is granted having regard to the provisions of Environment (Protection) Act, 1986 and the Notification issued therein.

Re : Contention of applicability of CRZ-I and/or CRZ-II

7. In the present case it has been pointed out by the learned Counsel for the respondents that the respondents have constructed the toilet block on the footpath i.e. on the existing road. It is, therefore, submitted that CRZ-II is not violated. It is also pointed out that there is no question of applicability of CRZ-I. For showing that the construction is made on the existing road, the respondents have produced various photographs before the Court, which establish that the construction is on the existing road or footpath.

8. It should be noted that to protect the ecological balance in the coastal areas the Central Government has issued Notification dated 19th February, 1991. The said Notification is issued in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986. Rule 5 provides for prohibition and restriction on the location of industries and the carrying of processes and operation in different areas. With regard to coastal zone, it has imposed various restrictions on setting up and expansion of industrial operations or processes etc., in the Regulation Zones. Clause 2 of the Notifications provides for 13 activities which are prohibited within the Coastal Regulation Zone. Clause 3 provides for regulation of permissible activities within the Coastal Regulation Zone. The 13 prohibited activities provided for in Clause 2 of the Notification, inter alia, are setting up of new industries and expansion of existing industries, manufacture of handling or storage or disposal of hazardous substances, setting up and expansion of fish processing units, including warehousing, setting up and expansion of units/mechanisms for disposal of waste and effluents, discharge of untreated wastes and effluents from industries, and such other activities mentioned therein. Even these prohibited activities provide for some exception and that would be clear from sub-clauses, (i), (iv) and (xii) of Clause 2 which are as under :---

(i) setting up of new industries and expansion of existing industries, except those directly related to water front or directly needing foreshore facilities;

(IV) setting up and expansion of units/mechanisms for disposal of waste and effluents, except facilities required for discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974; and except for storm water drains;

(xii) any construction activity between the Low Tide Line and High Tide Line except facilities for carrying treated effluents and waste water discharge into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification :"

Under sub-clause (i), exception is provided for setting up of new industries and expansion of existing industries which are directly related to water front or directly needing foreshore facilities. If such industries construct a toilet block of few square metres, it may not be hit by these prohibitions. Sub-clause (iv) of Clause 2 of the Notification specifically permits setting up and expansion of units/mechanisms for disposal of waste and effluents into water course. Similarly, sub-clause (xiv) permits providing facilities for carrying treated effluents and waste water discharges into the sea and such other purposes.

Considering the aforesaid object of prohibiting activities mentioned in the Notification, it would be difficult for us to hold that construction of a toilet block would in any way be affected by the said Notification. Therefore, construction of few square metres for providing a toilet block by the Municipal Corporation is not hit by the prohibition in Clause 2 of the said Notification.

This Notification provides for regulation of permissible activities within the coastal zone. Annexure I to the said Notification provides that for regulating development activities, the coastal stretches within 500 metres of the High Tide Line of the land ward side are classified into 4 categories, namely, CRZ-I, CRZ-II, CRZ-III and CRZ-IV.

9. CRZ-I, CRZ-II, CRZ-III and CRZ-IV read as follows :---

CRZ-I : (i) Areas are ecologically sensitive and important, such as national parks/marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historical heritage areas. areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warning by the Central Government or the concerned authorities at the State/Union Territory level from time to time.

(ii) Area between the Low Tide Line and the High Tide Line.

... ... ...

CRZ-II. The area that have already been developed upto or close to the shore-line. For this purpose, developed areas is referred to as that area within the municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities such as water supply and sewerage mains.

CRZ-III : Areas that are relatively undisturbed and those which do not belong to either Category I or II. These include coastal zones in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legally designated urban areas which are not substantially built up.

CRZ-IV : Coastal stretches in the Andaman & Nicobar, Lakshadweep and small islands except those designated as CRZ-I, CRZ-II or CRZ-III.

Category III (i.e. CRZ-III) specifically provides for areas that are relatively undisturbed and those which do not belong to either Category I or II. Similarly, CRZ-IV provides for the areas, namely, coastal stretches in the Andaman & Nicobar, Lakshadweep and small islands except those designated as CRZ-I, CRZ-II or CRZ-III. Necessarily it would mean that once an area is covered under CRZ-II, it would not be covered by CRZ-I.

10. So far as the question of applicability of CRZ-II, admittedly the area near Gateway of India is fully developed upto shore line. It is within the Municipal limits of Greater Mumbai. It is already completely built up and it has been provided with drainage and approach roads and other infrastructural facilities. Hence, the entire city of Mumbai would fall within the ambit of CRZ-II.

11. CRZ-II it provides that building shall not be permitted on the sea-ward line of the existing road or roads.

12. The relevant part of CRZ-II is as under :---

"CRZ-II:

(i) Building shall be permitted neither on the seaward side of the existing road (or road) proposed in the approved Coastal Zone Management Plan of the area) nor on seaward side of existing authorised structures buildings permitted on the landward side of the existing and proposed roads/existing authorised structures shall be subject to the existing local Town and Country Planning Regulations including the existing norms of FSI/FAR."

In view of Clause (i) of CRZ-II it is clear that building cannot be permitted on the seaward side of the existing road or proposed in the approved Coastal Zonal Management Plan. Considering the above, in our view, it cannot be said that the construction of toilet block on the existing road is in violation of CRZ-II. It is not beyond the road on the sea-ward side.

13. Further, CRZ-I specifically provides that it must be an area which is ecologically sensitive and important or an area of outstanding natural beauty/ historical heritage or an area rich in genetic diversity. CRZ-I is to be read along with CRZ-II and CRZ-III. CRZ-II specifically provides for an area that has already been developed upto or close to the shore line. It cannot be contended that the area in question is not fully developed; it is also close to the shore line and within the Municipal limits. In this Context if CRZ-I is read, it would mean that if the area is covered by CRZ-II, then there is no question of application of CRZ-I to the said area. CRZ-I would not be applicable to an area which has been fully developed and is close to the shore line.

Re : Violation of Regulation 67 :

14. The next question is with regard to violation of Regulation No. 67. For meeting this contention, affidavit in reply is filed by the Ward Officer on behalf of respondent No. 1 wherein it is submitted that the petition is filed with gross laches and delay as according to him on 5th September, 1991 a public notice was issued and put up on site on a wooden board affixed on a pillar fixed to the ground which was in bold red letters calling for objections from the public to be filed within one month and it was notified that if the objection was not filed within the said period, the same will not be entertained. According to him, as no complaint or objection was received by the Corporation within one month and even thereafter, the proposal was carried out. It is also contended by respondent No. 1 that the Municipal Commissioner's decision under his discretionary powers under section 64(iv) of Development Control Regulations for Greater Bombay, 1991 to permit construction of new Public Sanitary Convenience (hereinafter referred to as "PSC") block at Gateway of India and demolition of old existing PSC block was prepared and circulated by the Municipal Commissioner to the members of the Standing Committee and the members of the Standing Committee informally approved the said proposal in its meeting held on 5th August, 1991. It is , therefore, the contention of the respondents that the petitioners have suppressed the said fact from this Court and have approached this Court when the construction was in an advanced stage and almost nearing completion and as such no relief should be granted in the petition. It is the contention of respondent No. 1 that the Gateway of India being a historical monument is thronged by thousands of visitors daily and that in spite of existence of old PSC blocks, several complaints used to be received from the members of the public, verbally, in writing and also in the form of Press Notes that people were creating nuisance in and around Gateway of India by urinating, easing themselves, etc., and blaming the Municipal Corporation of inaction. It is further submitted that the reason for the people to create nuisance in and around Gateway of India was that the old existing PSC block is situated on the road which does not lead to Gateway of India monument directly and it is situated on the road which is scarcely used by the visitors for going to Gateway of India and is situated at a secluded place and, therefore, visitors hardly utilise the existing facility of old PSC block and instead create nuisance in and around the monument which was likely to affect the public health adversely. So the new PSC block was planned and is under construction by the side of the road which directly leads to Gateway of India monument and is, therefore, more convenient and will encourage the visitors to make use of the same and it is in public interest the said PSC block is being put up near the monument which is about 350 feet away. It is the contention of the respondents that under section 252 of the Bombay Municipal Corporation Act, the Commissioner is under an obligation to provide and maintain in proper and convenient situations and on sites vesting in the Corporation, water-closets, latrines, privies and urinals and other similar conveniences for public accommodation and further under section 61 of the B.M.C. Act, it is the duty of the Corporation to make adequate provisions by any amount or measures for various facilities mentioned therein and accordingly it is mandatory duty of the Corporation to provide adequate number of privies and urinals, etc., for public utility on sites vesting in the Corporation at convenient places.

15. Further, it is the case of respondent No. 1 that there is an arrangement between the Corporation and the Taj Group of Hotels for beautification of the area around the said monument and some of the amenities are to be provided under the arrangement by the Taj Group of Hotels and the remaining are to be carried out by the Corporation. The Corporation is to look after the dome of the monument on the side land as well as to keep them in proper condition. It is further submitted that there is no question of environment being affected in any manner whatsoever as contended by the petitioners and that it is not possible to construct underground PSC block connecting the same to the existing sewer line because of the shallow depth of about 6 ft. of head manhole. It is also pointed out that there is going to be no discharge into sea of the affluents from the said toilet block and there is no question of environment being affected in any manner whatsoever as claimed by the petitioners. It is contended that by providing this facility the place will remain clean and without any bad smell and environment will be improved by the commissioning of new PSC block and the discharge would be in sewer line underground. It is abundantly made clear in this affidavit that the toilet block is at the distance of 350 ft. from the Gateway of India and the decision was taken to provide such toilet block for maintaining cleanliness in the said area.

16. On behalf of respondent No. 5-Indian Hotel Company Limited, it has been pointed out that the statue of Shivaji Maharaj was installed on 26th January, 1961 and the area near the said statue was declared as a Garden. Hence, the portion of the land on which the existing toilet is constructed was cut-off from the Garden area and it has now become an Island with Adam street running to its North. The toilet which was meant for the convenience of the people visiting the Gateway of India and the Garden is virtually inaccessible and cannot even be seen and apart from that it contributes to traffic congestion since various taxi drivers park their taxis nearby. It is submitted that shifting of the toilet is eminently in the public interest from every point of view such as convenience, accessibility, avoiding traffic congestion and uplifting and beautification of the entire area and since in place of the existing toilet, it is proposed to have a fountain which will generally enhance the landscape and mood of the area. It is the further case of respondent No. 5 that the Public Utility Service being constructed by them apart from being a modern convenience, conveniently located, is in a style which is architecturally harmonious with that of the Gateway of India and that the said public utility service will serve the needs of the citizens of Bombay and tourists who visit this area in large numbers and furthermore it will provide better hygiene and cleanliness in the area and ensure minimum misuse by antisocial elements.

17. Further affidavit in reply is filed by the Joint Municipal Commissioner justifying the location of the location and construction of PSC block and it is submitted that the petitions may be dismissed.

18. By Resolution dated 21st April, 1995 the Government of Maharashtra has under the Maharashtra Regional and Town Planning Act, 1966 framed Development Control Regulation No. 67 and has fixed the date as 2nd June, 1995, to be the date on which the said Regulations shall come into force. It also sanctions the list of buildings and precincts of historical, aesthetical, architectural and cultural value as per schedule annexed thereto. Entry No. 211 deals with the Gateway of India. The said entry No. 211 is as follows :---

Name of monuments, bldgs., precincts etc.

(a) All buildings on P.J. Ramchandani road facing the sea &

(b) Vilar Ville Location :

(P.J.) Ramchandani Marg Ownership Private Usage Residential and Hotels Residential Special Features Colonial style/scale to be maintained. Important link for group value of the period of three-stories villas at Apollo Bunder seafront, High-celinged balcony-is elegant proportioned.

Date :

1920's/30's 1920 Classification B(per), I(sec) J.F.

B(des), G(grp), B(per), J.F.

B(des), I(sec), G(grp) State of Preservation Good Grade :

III

(c) Taj Mahal Hotel (Old wing) Location :

(P.J.) Ramchandani Marg Ownership : Public Ltd. Co.

Usage : Hotel Special features Indo-saracenic in gery stone/staircase with wrought iron railings/stained glass dome.

Date :

Classification :

A(are), B(des), D(bio) E.F., B(per), I(sec), J.C(sec.), J.

State of preservation Good Grade :

IIA

(d) Gateway of India Location :

(P.J.) Ramchandani Marg.

Ownership :

B.M.C.

Usage :

Historical landmark Special features :

Indo-Islamic in yellow stone Date :

1914-22 Classification A(are) A(his), C(seh), D(bio), B(uu), I(sec), J.

State of Preservation :

Good Grade :

I

(e) Evelyn House Location :

Hentry Road Ramchandani Marg Junction Ownership Bombay Port Trust Usage : Residential Special features :

Wooden structure on seafront which comprises of an important visual unit along with the Taj Mahal Hotel Date :

Nil Classification :

B(per), F.J., I(sec), B(des), G(grp).

State of Preservation : Good Grade : III. "

19. As against this, it is submitted on behalf of the petitioners that the Corporation is bound to consider Regulation 67 and the Development Control Regulations, 1991. It has been pointed out that Regulation No. 67 provides preservation of listed buildings, areas, artifacts, structures and precincts of historical, aesthetical, architectural and cultural value of Final Sanction. For this purpose reliance is placed on Regulation 67, Clause 2. Relevant portion of Clause 2 of the said Regulation 67 reads as under :---

"2. Restriction on Development/Redevelopment/Repairs etc.-

(i) No development or redevelopment or engineering operation or additions, alterations, repairs, renovation including the painting of buildings, replacement of special features or demolition of the whole or any part thereof or plastering of said listed/heritage buildings or listed/Heritage precincts shall be allowed except with the prior permission of the Commissioner. The Commissioner shall act on the advice of/in consultation with the Heritage Conservation Committee to be appointed by Government (hereinafter called "the said Heritage Conservation Committee")."

From a plain reading of the said clause, it is apparent that the development or redevelopment of heritage building or heritage precincts shall not be allowed except with the prior written permission of the Commissioner. The Commissioner is required to act on the advice of/in consultation with the Heritage Conservation Committee to be appointed by the Government. In the present case the Municipal Commissioner has already taken decision to construct the toilet block in 1991 and construction is duly completed prior to the coming into force of these Regulations. In this view of the matter, it would be difficult to say that the development or construction of toilet block by the Municipal Corporation is in violation of Regulation 67 of the Heritage Regulations for Greater Bombay, 1995.

20. In this view of the matter, it cannot be said that there is any violation of Regulation No. 67.

Re : Alleged Mala fides;

21. Lastly it is vehemently contended that the respondent Corporation is shifting the toilet block only at the instance of respondent No. 5 and to beautify the area opposite to the Taj Hotel owned by respondent No. 5. As against this, it has been contended that the allegation is baseless. That the toilet block in shaded area, it is misused by anti-social elements, tourists at large are not utilising the said block, but some persons are creating nuisance in the vicinity of Gateway of India. To avoid such situation the decision to remove the existing toilet block by constructing another toilet block was taken. It is further submitted that the respondent No. 1-Corporation or respondent No. 5 has no objection even if the existing toilet block is properly maintained.

22. Considering the aforesaid submissions in our view there is no substance in the contention of the petitioners that the decision to construct a new toilet block was taken only to oblige the respondent No. 5. The respondent No. 5 has undertaken to beautify the area by sharing the costs with the Corporation. It is also pointed out that this type of scheme is followed by the Corporation with regard to other places in Greater Bombay. Considering the aforesaid submissions, in our view, there is no substance in the contention that the decision to shift the existing toilet block was taken with any mala fide intention. In any case at the time of hearing of the matter it is agreed by the Municipal Corporation that the existing toilet block would be maintained properly along with newly constructed toilet block. The learned counsel for the respondent No. 5 has no objection if the existing toilet block is maintained properly.

23. In view of the aforesaid discussion, in our view, there is no substance in these petitions. Both the petitions stand dismissed. Rule discharged with no order as to costs. Interim relief stands vacated.

24. The learned counsel appearing on behalf of the petitioners submits that the interim order granted by this Court be continued for a period of 8 weeks. In our view, even though there is no substance in these matters, the interim relief to continue for a period of 4 weeks from today.