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Judgment
The grievance expressed by the Applicant in this application is the alleged inaction on the part of the State Level Environment Impact Assessment Authority (SEIAA), Maharashtra to stop illegal construction by M/s. Kalpataru Properties Pvt. Ltd., the Respondent No. 6 without obtaining the Environmental Clearance (EC).
Briefly stated, the case of the Applicant is that there is a huge layout in Bandra East area of Mumbai, known as Gandhi Nagar Layout, which is a large colony of Maharashtra Housing and Area Development Authority (MHADA) that measures about 2.17 lakh square metres built in the sixties for Economically Weaker Sections (EWS), Lower Income Group (LIG) and Middle Income Group (MIG). Later, several statutory changes were brought to the Development Control Regulations (DCR) of Greater Mumbai, 1991 that gave rise to phenomenal appreciation of the prices of real estate. Thus, re-development of MHADA layouts became lucrative in as much as DCR 33 (5) gave 20% extra Floor Space Index (FSI) on certain MHADA lands. Developers acquired the right to transfer and sell FSI on receiving plots due to introduction of Transfer of Development Rights (TDR). Amendment brought out in the year 2007 to the DCR 33 (5) gave the benefit of increase of FSI in respect of MHADA land not having HIG buildings by 2.5 which, according to the Applicant, was a bonanza for the developers. FSI got enhanced by shifting common Recreation Ground from one plot to another, etc.
In such prevailing circumstances, the project proponent, Respondent No. 6, entered into a development agreement with MHADA in respect of MIG Group-II Cooperative Housing Society measuring 9,045 square metres for redevelopment. It is stated that this is a small area out of a larger layout plot of 2.17 lakh square metres. EC was obtained by the project proponent from the Ministry of Environment, Forests and Climate Change (MoEF&CC) on 06.11.2006 but subsequent thereto the project proponent was benefited by 20% extra of the normal FSI as the old Housing Society did not have any HIG component. Greater heights were also sanctioned to the project permitting it to be taken up to 76 metres. The layout of the project was revised in the year 2005 by which FSI was enhanced from 1.2 to 2.5 doubling the layout. A fresh layout proposal in terms of such revised provision submitted by the project proponent was approved by the Municipal Corporation on 25.05.2010 based on which the project proponent commenced with the construction work on the project in the year 2010-11. By such change in the plans, the scope of construction had got considerably enhanced for which no EC had been obtained.
It is alleged that the construction of the project was continued on the basis of the changed layout and, only after it had been substantially completed did the project proponent apply for EC almost giving rise to a fait accompli situation. The terms and conditions of the fresh layout proposal prescribed by the Municipal Corporation was accepted by the MHADA. It is contended that the change in the layout resulted in a radical change in the project potentials and under such backdrop the project proponent indulged in a series of amendments to the plans, enhancement of the scope of construction both with reference to the volume of construction, height and addition of extra basements near the coastal areas. Such enhancements in the project called for a fresh appraisal for EC but, the project proponent did not take any revised EC and went ahead with the construction. The construction of the project was taken up rapidly at the end of 2010 which was about one year before the earlier EC was to expire. Referring to the Google Earth Satellite photographs dated 10.02.2012 and comparing it with the one taken on 22.10.2013, the Applicant asserted that there were large number of constructions which, according to the Applicant, were raised without taking EC.
The proposal for an EC submitted by the project proponent before the SEIAA resulted in the case being referred to SEAC-II for re-appraisal in its 50th meeting held on 27th-28th August, 2012. However, when the proposal was taken up by the SEAC in its 13th meeting held on 22nd-24th May, 2013, the project proponent failed to appear and present its case, resulting in the project being deferred and delisted. According to the Applicant, the absence was deliberate with the intention to avoid the proceedings. It is contended that after having been delisted, the project proponent did not get the proposal rejuvenated and continued with the work with greater speed without obtaining EC. The Applicant further contends that despite such apparent violation, the SEIAA failed to exercise its powers to issue 'Stop Work' order. It is, therefore, asserted that as the entire construction had taken place without any EC, in the interest of environment, an order is called for directing the project proponent to withhold further construction at once.
Even the proceedings under the MoEF&CC Office Memorandums dated 12.12.2012 and 27.06.2013 dealing with violation of cases, were not instituted against the project proponent. This was all the more necessary as the FSI of the entire layout had more than doubled for which a revised EC ought to have been obtained before the work commenced. Condition 5 of the EC granted earlier was also violated according to which a fresh appraisal by the Ministry was necessary in case of any change in the scope of the project.
It is stated that the layout of the Gandhi Nagar colony was initially based on the DCR of Greater Mumbai, 1991 approved on 15.03.2005. But this provision was amended in the year 2008 when the FSI was further increased which necessitated a change in the entire layout as planned earlier. The revised layout which was sanctioned was approved by the Municipal Corporation on 25.05.2010, was eventually accepted by the MHADA on 15.10.2010. However, the construction in question was being taken up only for about 9,973 square metres out of the Area Development Project (ADP) of 2.17 lakh square metres. This sub-plot was a part of the other sub-plots constituting the entire layout which are interdependent and no standalone appraisal of a sub-plot was permitted. This stand taken by the MHADA in their Office Note dated 21.08.2009 was not adhered to and permitted the project proponent to undertake construction without any EC at all. The project in question being essentially an expansion of an ADP having several sub-plots fell within B-1 category under EIA Notification, 2006 for which it was necessary to undergo the procedure of Scoping laid down under stage II of the EIA Notification, 2006. This mandatory procedure was not followed in the present case.
There are other grounds also set up in the application but, in our view, the ones alluded to above being the principal ones, it may not be necessary to delay ourselves further on those. Of course, it may be noted that there are allegations of illegal felling of trees also. The Applicant thus has inter alia prayed for demolition of the structures, institution of the proceedings under Office Memorandums dated 12.12.2012 and 27.06.2013, etc.
Before we proceed further with the responses filed on behalf of the Respondents, it is pertinent to note that during the course of the proceedings of this case, on 09.09.2014 when an interim relief was sought for by the Applicant, it was informed that the application of the project proponent for EC was under consideration of the SEIAA the proceedings of which had reached its final stage which led the Tribunal in passing the following order being passed on 09.09.2014:
"An interim relief is sought by the Applicant. At this juncture, since the Application of Project Proponent, is being considered by SEIAA, for grant of EC and is at the final stage, after recommendation of SEAC, for consideration of decision thereon, we direct that it shall be expeditiously decided, as far as within two (2) weeks and response of the Respondent Nos.1 to 3, shall be filed within three (3) weeks in the matter. This is necessary in order to know the stand of the Authorities in the context of following issues:
i) Whether there is necessity for seeking EC, in case of such a project where change is sought after initial period, even though life of EC was not specifically mentioned in the original EC?
ii) Whether project could be delisted only because Project Proponent was found absent, when the meeting was held on 23/24th May, 2013? If so, under which provisions it could be delisted?
iii) What is the provision regarding grant of EC for an additional/substantial change in the project while considering the appraisal thereof in the process of EC?
The reply affidavit of Respondent Nos. 1 to 3, should clearly indicate the above three (3) aspects, as well as the response to the complaints of the Applicants.
In the meanwhile, during period of three (3) weeks as mentioned above, the Project Proponent and any one claiming through him, shall not seek equity in respect of transfer/creation of third party."
When the matter stood thus, on 17.12.2014 the Learned Counsel for the project proponent placed on record communication dated 26.11.2014 by which the Additional Chief Secretary of the Environment Department, as the Member Secretary of SEIAA, had issued Show Cause Notice to the project proponent regarding proposed directions under Section 5 of the Environment (Protection) Act, 1986 read with EIA Notification, 2006 to be replied within 15 days. Accordingly, an order was passed which would have significant impact on the present proceedings. The relevant portion of the order is reproduced below:
"Mr.Subramaniam, learned Advocate has placed on record communication dated 26th November, 2014, which indicates that the Additional Chief Secretary of the Environment Department, who is the Member Secretary of (State Environment Impact Assessment Authority) SEIAA, has issued Show-cause Notice to the (Project Proponent) PP M/s Kalpataru Properties, Santacruz, Mumbai (E), regarding proposed direction under Section 5 of the Environment (Protection) Act, 1986, read with EIA Notification dated 14th September, 2006. It appears that fifteen (15) days' time was granted to the P.P to file reply. There is no dispute about the fact that the Show-cause Notice was served on the P.P.
The Authority may fix date for filing of reply after fifteen (15) days' time is over.
The Authority may thereafter hear the PP in person through any partner or legal representative thereof, or any authorized officer, as may be nominated by the partnership firm and may permit any document to be taken on record. The Authority shall also consider the representation submitted by Applicant - Anil Tharthare and may allow any document forwarded by him, in support of such representation of which copies may be forwarded to the P.P before sending same to the Authority. However, the Applicant will have no right of personal-hearing before the Authority.
The Authority shall take due decision after consideration of the documents on record and the proceedings before the end of first week of January, 2015 i.e. before 10th January, 2015, by passing a reasoned order, independently without being influenced by any kind of averments in the present Application, or any kind of allegations made by the parties and any kind of extraneous pressure and all the prayer Clauses will be kept open after final outcome of the proceedings are decided by the Authority, including Misc Application filed by the P.P."
The above was followed by order dated 02.02.2015 which records as follows:
"The complaint filed by the Applicant, is considered and decision is taken by the Authority regarding under Section 5 of the Environment (Protection) Act, 1986. The Authority finds that representation of the Applicant is untrue. Learned Counsel for the Applicant seeks time to file objections to the said decision, not to take any action as may be desired. We make it clear that the main Application as well as Misc Application will be heard together. So that there will be no piecemeal hearing."
Pertinently M.A. No. 105/2014 (WZ) had been preferred by the Respondent No. 6, the project proponent, whereby the maintainability of the OA on the ground of limitation, locus standi and jurisdiction had been raised which were being taken up as preliminary issues along with some other cases of similar nature. By order dated 08.07.2015 the preliminary objection was rejected. This order was assailed before the Bombay High Court in several Writ Petitions that resulted in the said order being set aside and remanded to the Tribunal. We may refer to the Tribunal order dated 31.08.2016, relevant portion of which reads as follows:-
"This case and same of other cases on the Bench of this Tribunal were taken up for consideration regarding maintainability. By order dated 8 th April, 2015, this Tribunal held that the Application was within time and was maintainable. Similar orders were passed in other cases which were perhaps heard together but in this case preliminary issue was raised questioning maintainability of the Application on the ground of limitation and locus. This Tribunal by its order dated 8.7.2015, held that the Application is within time calculating it from the 27.5.2014. The said order was assailed before the Hon'ble High Court in Writ action.
It is brought to our notice that some other cases in which similar issues had arisen were also heard by this Tribunal and similar order has been passed, holding that Applications were within period of limitation and thus maintainable.
For clarity and convenience of all concerned, we have directed the Registry to post cases before the Bench together and accordingly they are listed today. We have following cases listed.
Application No.61/2016(WZ) M.A.No.24/2015 Cavelossim Villagers Vs Village Panchayat of Cavelessim
Application No.13/2014(WZ) Amit Maru Vs MoEF & Ors.
Application No.101/2014 (WZ) (MA.No.168/2014) Vinod Mohanlal Jain & Anr Vs M/s Nish Developers Pvt. Ltd.
Application No.64/2014 (MA No.105/2014) Anil Tharthare Vs The Secretary, Env. Deptt. Govt. of Maharashtra & Ors.
On 29th July, 2016 in Application No.101/2014, learned Counsel of the Applicant had brought it to our notice that the Hon'ble High Court had clubbed all the Writ Petitions filed questioning orders passed by this Tribunal in a batch and heard. By common Judgment dated 9th June, 2016, the Hon'ble High Court has disposed of batch of Writ Petitions, which includes Writ Petition No. 6754 of 2015 and set aside the order passed by this Tribunal dated 8th April, 2015, remanding cases back to this Tribunal."
It would appear from the above that a common order had been passed by the Bombay High Court remanding the cases back to the Tribunal for deciding the preliminary issues and to lay down the concept of 'aggrieved person', etc. and also as to whether the Tribunal could entertain an application which was in the nature of PIL. Accordingly, the present application was also listed for hearing along with others. However, on 13.01.2017 it was informed that the Hon'ble Supreme Court had stayed the order of the Bombay High Court in one of the cases which ultimately led to the case being heard.
Reverting back to the present proceedings, in compliance of the order dated 09.09.2014 (supra), the Respondent Nos. 1, 2 and 3, namely, Secretary, Environment Department, Government of Maharashtra, the Member Secretary, SEIAA, Maharashtra and the Member Secretary, SEAC-II, respectively, filed a joint reply whereby each of the queries made in the aforesaid order had been dealt with which is reproduced below for convenience:-
"Query (i) Whether there is necessity for seeking EC, in case of such a project where change is sought after initial period, even though life of EC was not specifically mentioned in the Original EC?
That the process for first EC dated 06.11.2006 in the present case had completed as per EC Notification 27.01.1994 as amended on 07.07.2004. Entire formalities were completed in conformity of this notification including Public Hearing. However, final EC was issued on 06.11.2006 by the Ministry of Environment and Forests, (MoEF) New Delhi i.e. when EC Notification of 14.09.2006 was already issued.
EC dated 06.11.2006 had condition no. 5 that "in case of any change/s in the scope of the project, the project would require fresh appraisal by this Ministry".
As per the EIA Notification 2006, and Gazettes published subsequently forming SEIAA & SEAC Maharashtra, powers are now delegated to SEIAA-Maharashtra to decide such cases including that of expansion, amendment etc.
EC issued by MoEF in the instant case also had condition no. 9 that "These stipulations would be enforced among others under the provisions of EIA Notification, 2006.
There was no provision for validity of EC issued under EIA Notification of 1994 for construction projects, amended from time to time. However, validity period of EC to be accorded to various projects has been incorporated at para no. 9 in EIA Notification of 2006.
Respondent No. 6 being aware of above provisions of EIA Notification of 2006 had approached to SEIAA vide letter dated 09th April 2012 with request for modification/ amendment of EC letter issued by MoEF ealier. SEIAA has considered the request and clarified in the minutes of 50th Meeting held on 27th, 28th July, 2012 as to whey fresh appraisal is necessary in the instant matter and project proponent was informed to obtain amendment in the EC for proposed change in the project profile as per EC issued by MOEF and as per EC condition no. 5 stipulated in the said EC project needs fresh appraisal in case of change in the project profile. Matter was therefore referred to SEAC for appraisal for the proposed changes in the project profile.
Query (ii) Whether project could be delisted only because Project Proponent was found absent, when the meeting was held on 23/24th May, 2013? If so, under which provisions it would be delisted?
That SEAC was constituted by the MoEF by issuance of formal Gazette Notification under Environment (Protection) Act, 1986. SEAC works under mandate given by MoEF and provisions of notification of 14.09.2006 or any amendments to it and directions of MoEF from time to time. It is settled position of law that Gazette notification is subordinate legislature as per the powers vested with the appropriate authority. Office Memorandum/Circulars are administrative orders that cannot or reduce the ambit of the law, rules or gazette notifications; but are procedural guidelines. As and by way of decorum and procedural discipline, SEAC implements the formal notifications and orders issued by the MoEF, as long as they are in force and unless they are withdrawn or stayed by appropriate court of law. As such when the project proponent did not appear for SEAC-II 13th meeting on 23/24th May, 2013, the project was deferred and delisted in accordance with Office Memorandum dated 30.10.2012.
Query (iii) What is the provision regarding grant of EC for an additional/substantial change in the project while considering the appraisal thereof in the process of EC?
As per Notification of 04.04.2011, EC is required for:
Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior Environmental Clearance from the concerned regulatory authority.
i. All new projects or activities listed in the Schedule to this notification;
ii. Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;
iii. Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range.
The project with substantial change will be treated under Point no. 2 (ii) and (iii) of Notification 2006, as there is change and increase in some parameters of EC granted. This provision would be applicable for such cases and also in the present case. It was processed in accordance with the provisions of prevailing EIA Notification."
With reference to the order dated 17.12.2014 where directions had been issued upon the Authority to also consider the representation submitted by the Applicant, the SEIAA, Maharashtra, besides dealing with the matter relating to filing of show cause by the project proponent, informed on 02.02.2015 as already noted above, that the complaint filed by the Applicant had been considered and a decision taken under Section 5 of the Environment (Protection) Act, 1986 holding that the representation of the Applicant was untrue. This has been substantiated also by the Respondent Nos. 1, 2 and 3 in their reply, where it has been stated as follows:-
"11. As regarding the response to complaints of the applicants, SEAC-II in its 26th meeting held on 28th, 29th & 30th April 2014 discussed the issues raised in the complaints received. Extracts of the Minutes of SEAC-II are reproduced as follows:
"Committee noted the complaint of Reshma Narvekar dated 11/03/2014 and reply of PP to the complaint dated 31/03/2014. PP also submitted undertaking that there is no deviation in the building plans as approved in earlier EC vide letter dated 29/04/2014. Further, Committee also noted complaint of Anil Tharthare from BANDRA (E) dated 29/04/2014 regarding alleged construction undertaken without EC. PP also stated that total plot area is 9,973.19m2 and total construction area is 68,978.66 m2. Ground coverage of the project is 6,857.66 m2. Committee noted that RG is 2,292.98 m2."
Considering all issues related to environment, including air, water, land, soil, ecology and biodiversity and social aspects, SEAC-II decided that Local body to examine the complaints received and verify the allegations made before issuing commencement certificate for the proposed amendment and violations/deviations if any should be communicated to Environment Department prior to the issuance of the commencement certificate. The project was recommended to SEIAA for EC to the proposed changes subject to certain conditions stipulated in the minutes."
It has further been stated that the EC was appraised by the SEAC based on an undertaking of the project proponent dated 20.09.2014 that the projects had not crossed the permissible parameters of the EC dated 06.11.2006. Further, report of Municipal Commissioner of Greater Mumbai and the project proponent had also been sought for in respect of the complaint lodged by the Applicant and as per the response of the Commissioner, the allegations of the Applicant did not bear substance. It is then stated that the entire matter was considered by the SEIAA in its 72nd meeting held on 21st and 22nd July, 2014 but was deferred on the request of the project proponent to grant more time to submit available documents. That the documents which were ultimately submitted would be considered by the SEIAA in its forthcoming meeting in October, 2014. We may note that the affidavit of the Respondent Nos. 1, 2 and 3 was filed on 30.09.2014.
As regards the Show Cause Notice issued to the project proponent by the SEIAA vide letter dated 27.01.2015, it was conveyed by the Member Secretary of the Authority that, after considering the reply submitted by the project proponent and after hearing their representations personally twice, and also after consideration of the representations submitted by the Applicant, no case of violation of the EIA Notification, 2006 was made out and, therefore, the proposed directions under Section 5 of Environment (Protection) Act, 1986 read with EIA Notification, 2006 stood withdrawn.
Dealing briefly deal with the response filed on behalf of Respondent No. 6, the project proponent, we find that all material allegations have been categorically denied contending that the MHADA had developed several layouts in Mumbai which were already developed with multiple facilities and allotted to various societies/persons. The present project relates to one such plot allotted to the respondent society. The development carried out by the Respondent No. 6 is not a layout development as alleged but is, in fact, a redevelopment of the Respondent No. 7 Society pursuant to a development agreement and is thus, restricted to the land to which the Respondent No. 7 is entitled being an area admeasuring about 9,973.19 square metres. The Respondent No. 6 had gained the right to develop the property in question pursuant to such development agreement and was entitled to the same through Respondent No. 7.
It is further submitted that the project in question falls under the B-2 category under the EIA Notification, 2006 read with item 8(a) of the Schedule thereto. Therefore, under clauses 2 and 7, the project is exempted from the requirement of scoping and Terms of Reference. The requirements and stages under Clauses 2 and 7 have been adhered to by the concerned statutory authority whilst granting EC to the said project. Such ECs have not been challenged at all within the statutory prescribed time limit and thus have attainted finality.
It is further contended as follows:-
a) The Respondent No. 6 applied for EC for re-development of the Respondent No. 6 society on 11.10.2005 under the EIA Notification, 1994.
b) Public hearing was conducted as per the EIA Notification on 30.11.2005.
c) Consent to Establish was granted to the project by Maharashtra Pollution Control Board on 04.01.2006.
d) EC was granted by MoEF&CC on 06.11.2006 which was published by the Respondent No. 6 in local newspapers as required under the conditions of the EC.
e) The aforesaid facts were within the knowledge of the Applicant and thus the application was barred by limitation. The work of the project began in September, 2010 as per the permissions granted by the Planning Authority from time to time.
f) On 09.04.2012, there being a slight change in the scope of the project that resulted in reduction of any environmental impact, the Respondent No. 6 applied for modified EC in compliance of the terms and conditions of the EC and as required under the EIA Notification, 2006.
During the course of hearing, the Respondent No. 6 placed before us order dated 27.01.2015 issued by the Member Secretary, SEIAA in compliance of the Tribunal's order dated 17.12.2014, whereby the Authority had been directed to consider the representations submitted by the Applicant, Mr. Anil Tharthare. The veracity of this has not been questioned by any of the parties. The document being of some relevance is reproduced below for convenience :-
"GOVERNMENT OF MAHARASHTRA
Tel. No.: 2279 3132 No. SEAC-2014/CR-24/TC-I
Fax No.: 2281 3947 Environment Department
217, Annex Building, Mantralaya Madam Cama Road, Mumbai - 400 032
Date: 27/01/2015
By Speed Post/ RPAD / Hand Delivery
To,
M/s. Kalpataru Enterprises,
92, Kalpataru Synergy, Opp. Ground Hyati,
Santacruz - (E ), Mumbai - 400 055.
Sub.:- Withdrawal of Proposed Directions issued u/s 5 of the Environment (P) Act, 1986 r.w. EIA Notification dtd. 14.9.2006.
Ref.:- 1) Proposed Directions u/s 5 of the Environment (P) Act, 1986, r.w. EIA Notification dtd. 14.9.2006 dtd. 26.11.2014.
2) Your reply dtd. 11.12.2014.
3) Interim Order passed by the Hon'ble National Green Tribunal, Western Zone, Pune Bench dtd. 17.12.2014.
3) Personal hearing extended to you on 31.12.2014 & 15.1.2015.
We refer to the Proposed Directions issued u/s 5 of the Environment (P) Act, 1986 r.w. EIA Notification 2006 to you by the then Addl. Chief Secretary, Environment Department on 26.11.2014 followed by your reply dtd. 11.12.2014. We also refer to an opportunity of personal hearing given by the then Addl. Chief Secretary, Environment Dept. on 31.12.2014 followed by another personal hearing extended to you before the Principal Secretary, Environment Dept. on 15.1.2015, in compliance of the Interim Order Passed by the Hon'ble National Green Tribunal, Western Zone, Pune Bench dtd. 17.12.2014.
During the course of personal hearing extended on 15.1.2015 the replies filed by you dtd. 11.12.2014 & 15.1.2015 as well as two representations filed by Shri. Anil Tharthare dtd. 24.9.2014 & 9.12.2014 were taken on record and scrutinized. Accordingly it is hereby concluded that there is no case of violation as prescribed in the EIA Notification, 2006 and hence the Proposed Directions issued vide above ref.(1) is hereby withdrawn.
In case, any discrepancies are observed in these documents, necessary action will be initiated against you under the provisions of Environment (Protection) Act, 1986 read with EIA Notification dtd. 14.09.2006, which please be noted.
(Ajoy Mehta)
Principal Secretary,
Environment Department and
Member Secretary, SEIAA
GOVERNMENT OF MAHARASHTRA
Tel. No.: 2279 3132 No. SEAC-2014/CR-24/TC-I
Fax No.: 2281 3947 Environment Department
217, Annex Building, Mantralaya
Madam Cama Road, Mumbai - 400 032
Date: 27/01/2015
Reasoned Order passed by the Principal Secretary, Environment Department, Mantralaya & Member Secretary, SEIAA on 15.1.2015 at 2.30 p.m. pursuant to the directives of the Hon'ble National Green Tribunal, Western Zone, Bench Pune dtd. 17.12.2014 in M.A. No. 105/2014 (WZ) Kalpataru Properties-R.6 In Application No. 64/2014 (WZ) filed by Anil Tharthare Vs. The Secretary Environment Department Govt. of Maharashtra & Ors:
The then Addl. Chief Secretary, Environment Department, had given an opportunity of personal hearing to M/s Kalpataru Enterprises (i.e. PP) on 31.12.2014 in compliance of the Interim Order passed by the Hon'ble National Green Tribunal, Western Zone, Bench Pune dtd. 17.12.2014 in M.A. No. 105/2014 (WZ) Kalpataru Properties- R.6 In Application No. 64/2014 (WZ) filed by Anil Tharthare Vs. The
Secretary Environment Department Govt. of Maharashtra & Ors. During the course of personal hearing the PP had requested for time as the complainant has raised new points. Accordingly, the then Addl. Chief Secretary, Environment Department & Member Secretary, SEIAA had granted the time and next hearing kept on 15.1.2015 as per request of the PP. In view of 1 this the matter has gone beyond the date stipulated by the Hon'ble National Green Tribunal in the Interim Order dtd. 17.12.2014 and it is humbly requested that the same be condoned.
In order to comply with the directives of the Hon'ble National Green Tribunal, (WZ) dtd. 17.12.2014, the Original representation dtd. 9.12.2014 were taken into consideration during the course of another personal hearing extended to the PP on 15.1.2015. The representatives of the PP were allowed to present their case. Mr. Parag Munot, Managing Director, Mr. Rajan Athalye, Sr. Vice President, Mr. Atul Gulati, Chief Architect of M/s. Kalpataru Enterprises were present.
The averments made by Shri. Anil Tharthare, Applicant in his representation dtd. 24.9.2014 & 9.12.2014 were taken into consideration one by one and examined against various papers made available by the PP, which are as follows:-
I
Representation of Shri Anil Tharthare dtd. 24.9.2014
Para
Contents
Decision/Submission
5
Kalpataru
group
is
a
That
the
cases
registered
(5.1)
known offender
in
the
against
M/s
Kalpataru
realm of Criminal Law.
Enterprises
(i.e.
the
PP),
which
have
been
mentioned
by
Shri.
Anil
Tharthare,
in
his
representation are beyond
the perview of the present
Authority and do not relate
to the matter on hand
6
6.1 to 6.4
That
Shri. Anil
Tharthare
has
raised
certain
issues
which he has taken in
detail in para 7 of his
representation.
7
Violation
of
Law
(Charges)
7.1
Environment Clearance
It
is admitted
that
the
of 2006 was for a
Environment
Clearance
different layout
having
granted by the Ministry of
larger open spaces and
Environment
&
Forest,
what was built was a
G.o.I. (i.e. M.o.E.F.,
G.o.I.)
different
layout
with
dtd.
6.11.2006
for
total
lesser open spaces.
BUA
of
28980.67
m2 to
construct 1 Tower with 4
'wings of 15 floors each.
Thereafter
the
PP
has
sanctioned
the
plan
from
the
MCGM
on
15.2.2008
for total BUA of 17517.99
m2 to construct 1 Tower
with 4 wings of which 3
wings were of 9 floors and
4th wing of 12 floors with
one
basement. This
was
an
intermediate
approval
in
consonance
with
the
sanctioned
Environment
Clearance.
The
PP
has
amended
the
plan
from
time to time and now
proposed
to
amend
the
Environment Clearance for
total
BUA
of
25482.767
m2 as per the last revised
plan
dtd.
3.5.2014
to
construct 1 Tower with 3
wings of 18 floors each.
This is verified by the
Architect of the PP based
on the MCGM
approved
layouts. Copy of the E.C.
dtd. 6.11.2006 and Copies
of
Layouts
passed
by
MCGM
dtd. 15.2.2008
&
3.5.2014
are
enclosed
herewith at Annexure I, II
& III respectively.
The open spaces for the
amended
layout
with
3
wings
are
more
than
earlier layout of 4 wings.
This is confirmed by the
computation
of
open
spaces
as
submitted
by
the
Architect,
which
is
enclosed
herewith
at
Annexure - IV.
7.2
Environment Clearance
The
M.o.E.F.,
G.o.I.
has
of 2006 expired on 5th
granted
Environment
November,
2011, yet
Clearance
to
the
PP
on
the
Municipal Officers
6.11.2006
under
EIA
permitted
construction
Notification 2006 based on
to
go
without
the
basis
of
EIA
Environment Clearance.
Notification 1994, in which
there
was
no
validity
period. The validity period
for EC has came into
existence
in
the
EIA
Notification
2006.
However,
the
validity
period
has
been
clarified
by the M.o.E.F., G.o.I. vide
Notification
dtd.
21.8.2013.
The
PP
has
given notice for start of
work
to
the
Executive
Engineer,
Building
Proposals
(W.S.),
Bandra
on 14.9.2010, which was
acknowledged
by
the
MCGM
on
29.9.2010.
Acknowledgement Copy of
the
said
notice
dtd.
14.9.2010
is
attached
herewith at Annexure V.
The PP has commenced the
construction
work
on
14.9.2010, this is within 5
years as stipulated in the
Notification
dtd
14.9.2006
followed
by
Clarification
issued
by
the
M.o.E.F.,
G.o.I. vide Notification dtd.
21.8.2013.
Copy
of
the
said
Notification
dtd.
21.8.2013
is
enclosed
herewith at Annexure VI.
Therefore, this charge does
not stand.
7.3
Even
though
it
has
Yes it is a fact that no stop
come to notice of the
work has been issued by
SEIAA
that
work
from
any
Authority.
The
6th November, 2011 till
representations/
September,
2014
has
complaints made by Shri.
been going
on
without
Anil Tharthare were taken
EC, yet no "Stop Work
into
consideration by
the
Order"
was
issued
SEAC/SEIAA
in
their
neither by the Municipal
meetings,
but
no
Corporation ,nor by the
reasonable
case
was
SEIAA.
made out for issuance of
stop work therefore no stop
work order was issued to
the PP.
7.4
The
Builder/Project
It appears
from
the
first
Proponent constructed 3
sanctioned
plan
dtd.
underground
15.2.2008
that
one
basements
by
doing
basement
has
been
large mining
activity of
approved
in
the
Original
minor
minerals
- No
E.C.
dtd.
6.11.2006
basement construction
granted
by
the
M.o.E.F.,
was permitted in ' the
G.o.I.. The MCGM has also
E.C.
given
plinth
C.C.
on
1.10.2008.
Copy
of
the
plinth C.C. dtd. 1.10.2008
was submitted by the PP
during
the
course
of
personal hearing, which is
enclosed at Annexure VII.
Therefore
there
is
no
reason to believe that no
basement
construction
was permitted in the E.C.
The
PP
has
constructed
two
basements
as
per
plans
sanctioned
by
MCGM on 1.11.2010. The
Applicant
has
not
produced any evidence to
show that the PP has done
large
mining
activity
of
minor
minerals
therefore
this charge is not tenable.
7.5
Accused Officers of the
Before issuance of OA the
Building
Proposal
VA was not the criteria,
Department
have
but
the
criteria
for
suppressed the fact that
requirement
of
the
E.C.
huge
BUA
was
was
"any
construction
generated by the Non-
project falling under entry
FSI component such as
31 of Schedule - I
basement, large podium
including
new
townships,
etc
industrial
townships,'
settlement
colonies,
commercial
complexes,
hotel
complexes,
hospitals
and
office
complexes
for
above
1,000
persons
or
discharging
sewage
of
above
50,000
litres
per
day or with an investment
above Rs. 50,00,00,000/-"
as per the EIA Notification
dtd.27.1.1994
as
amended on 7.7.2004.
Previously
there
was
a
practice
of
mentioning
figure of FSI as a total BUA
area
in
the
Environment
Clearances
issued
by
the
M.o.E.F., G.o.I.
The
previous
E.C. issued
by the M.o.E.F., G.o.I. dtd.
6.11.2006 to the PP on the
basis
of
the
EIA
Notification
1994,
where
the BUA was not the
criteria.
The
total
BUA
mentioned
in the EC granted by the
M.o.E.F.,
G.o.I.
dtd.
6.11.2006, was 28980.67
m2 whereas the total BUA
of the last revised plan
sanctioned
by
the
MCGM
on 3.5.2014 is 25482.767
m2, which is less than the
total
BUA
permissible
in
the E.C.
Therefore this charge does
not stand.
7.6
The
plot
of
the
project
The PP has stated that he
proponent is
just one
can seek E.C. and building
plot
of
an
integrated
permissions and can ,built
larger
layout
which
only. the portion of the plot
exceeds the threshold of
available
with
him.
The
1.50
lakh
square
plot
which
the
Project
meters - The proposal
Proponent
is
currently
has
been
illegally
developing is a part of the
treated as less stringent
larger MHADA
layout.
8 (a) whereas it ought to
MHADA being the owner of
haye
been
in
more
the larger layout executed
stringent 8 (b).
a lease
agreement
in
favour of the Society in
respect of the plot which
the
PP
is
currently
developing. The E.C. has
been obtained by the PP
for the plot which is being
developed.
Therefore this charge does
not stand.
7.7
In view of the ruling of
In exercise of the powers
the
National
Green
conferred by Sub-Section
Tribunal
Act,
2010 in
(3) of section 3 of the
the case of an IAS
Environment (P) Act, 1986
officer cannot heard the
and in pursuance of the
SEAC and SEIAA, hence
notification of the Govt. of
the
appraisals
get
India in the M.o.E.F. No.
vitiated.
S.O.
1533 dtd. 14.9.2006
the
Central
Government
has constituted the SEIAA
vide
Notification No.
S.O.
3273 (E) dtd. 28.10.2013.
To assist the SEIAA in
consultation with the State
Government
of
Maharashtra
constitutes
SEACs.
II Representation of Shri Anil Tharthare dtd. 9.12.2014 Para Decision/Submission 2 & 3 With reference to para 2 & 3 of the representation it is submitted that the Hon'ble National Green Tribunal, Western Zone, Bench at Pune has passed an Interim Order dtd. 17.12.2014 wherein it is stated that "the Applicant will have no right of personal hearing before the Authority", inspite of that all points of the complaints of Shri. Anil Tharthare were examined minutely against all documents issued by the Public Statutory Body.
4With reference to para 4 of the representation it is stated that the structure is well within the sanctions granted by the MCGM and as confirmed by the MCGM vide their report dtd.4.7.2014, which was filed before this Hon'ble Tribunal earlier.
5With reference to para 5 of the representation it is stated that the complainant has cited certain Court Orders of Hon'ble High Court at Orissa and Hon'ble High Court at Mumbai from which it appears that the same are not relevant to the case in hand.
After perusal of both representations dtd. 24.9.2014 & 9.12.2014 in detailed as well as submissions made by the PP along with relevant documents, Environmental Laws, Rules made there under and various Office Memorandums issued by the M.o.E.F., G.o.I., it seems that the project is well within the E.C. dtd. 6.11.2006 granted by the M.o.E.F., G.o.I.. After submission of Architect's application dtd. 12.8.2011 regarding completion of work upto stilt slab, the MCGM has endorsed the CC to carry out the construction work beyond stilt on 30.9.2011, which is enclosed at Annexure-VIII.
Decision:-
In view of above facts of the case, it is felt that there is no substance in the representations made by Shri. Anil Tharthare and hence same should not be considered. The Proposed Directions issued u/s 5 of the Environment (P) Act, 1986 to be withdrawn. This order together with relevant documents may be placed before the SEIAA for consideration. The reasoned order as above be placed for the consideration of Hon'ble National Green Tribunal, Western Zone, Pune Bench.
(Ajoy Mehta)
Principal Secretary,
Environment Department and
Member Secretary, SEIAA"
Upon hearing the Learned Counsel for the parties, the pleading, the documents and the records available, we find that the contentions raised by the Applicant do not appear to have any merit for the following reasons:-
i. The present application was filed on 27.05.2014 and, on 09.09.2014, the Tribunal issued directions referred to earlier upon the SEIAA with regard to the application of the Respondent No. 6 for grant of EC. This, as already noted, was responded to by Respondent Nos. 1, 2 and 3 stating that the project had been recommended for grant of EC.
ii. The Show Cause Notice issued by the Respondent No. 1 under Section 5 of the Environment (Protection) Act, 1986 read with EIA Notification was considered along with the representations submitted by the Applicant to the SEIAA resulting in the Show Cause Notice being withdrawn and the objection taken by the Applicant being rejected as adumbrated earlier.
iii. The modified EC as sought for by the Respondent No. 6 was granted on 8.4.2015. Part Occupation Certificate was granted by the Municipal Corporation on 10.06.2015 followed by a full Occupation Certificate for the complete work on 25.01.2015.
iv. It is eminently clear that the project in question is not related to the entire development area proposed by MHADA but only a part of it which measures about 9,973.19 square metres. EC for this project had already been obtained on 06.11.2006. This was admittedly not challenged. It is an admitted position that during the execution of the project which commenced from September, 2010 certain changes were required to be made to the project resulting in reduction in the FSI. This happened in the year 2012 that led the project proponent to apply for modification of the EC as required under Clause 5, Part B of the General Conditions of the EC dated 06.11.2006.
v. Without going further into the other incidents which are immaterial, it will suffice to note that modified EC was granted by the SEIAA on 08.04.2015 during the pendency of the case. This was brought to the notice of all the concerned including the Applicant. Yet it was not assailed.
vi. We may take note of the fact that certain queries had been made by the Tribunal vide order dated 09.09.2014 which, as already noted, had been dealt with in seriatim in the affidavit filed by the SEIAA and SEAC. More importantly order dated 17.1.2014 dealt with the Show Cause Notice issued by the SEIAA which was directed to be considered with along with the representations submitted by the Applicant. It is relevant to note that in those representations the Applicant had raised the very same questions as in the present application and, as alluded to earlier, each of the allegations have been found by the authority to be in unsubstantiated.
vii. We may further note that after the EC was granted on 08.04.2016, the project has since been completed and full Occupation Certificate issued in favour of the Respondent No. 6.
Considering the facts and circumstances set out above and the fact that none of the ECs had been assailed, it is too late in the day for the Applicant to raise all these questions. Furthermore, the objections raised in this case had also been decided by the SEIAA and rejected by a reasoned order conveyed vide letter dated 27.01.2015. For this reason alone, the further proceedings in the present application, in our considered opinion, would be rendered redundant and the questions raised therein merely academic.
In the result, this original application stands dismissed.
No order as to cost.