Suresh Banjan vs State of Maharashtra & Ors

The Order Dated 14th October, 2011, passed by State Environmental Impact Assessment Authority (Respondent No. 2) granting Environmental clearance, to the project of slum rehabilitation of Indira Nagar Hutment Dwellers CHS Ltd. at C.S.No. 11(pt) of Sion Koliwada Division , Jai Shanker Yagnik Marg, F/N ward, Mumbai, in favour of M/s. Harekrishna Builders(Respondent No. 4 ) is assailed in this Appeal mainly on the following grounds:

(a) That the State Environmental Impact Assessment Authority (SEIAA) granted the Environmental clearance on the basis of faulty, forged and incorrect representation of facts, without conducting any enquiry.

(b) M/s Harekrishna Builder (Respondent No.4) had time and again altered the number of stories in the proposed structure, thus there is variation in approved plan.

(c) The Builder had misrepresented and misleaded, regarding the status of the construction.

(d) No prior information was intimated to members of the Society about the change in plan.

(e) That no Public Hearing was conducted before granting EC.

(f) The Builder, violated the terms of reference enshrined in Environmental clearance (EC), and the EC had been granted without verification.

After receiving notice Respondent No. 4 as well as other Respondents entered appearance. Respondent No. 3 & 4 filed detailed replies repudiating the allegations made in different paragraphs of the Memorandum of Appeal.

In course of hearing, Learned Counsel for both the sides forcefully put forth their submissions in support of their respective stands taken in their pleadings.

It appears that a Memorandum of understanding was entered, interse between Indira Nagar Hutment Dwellers Co-operative Housing Society Ltd. and M/s. Harekrishna Builders (Respondent No. 4) in July, 1994, for construction of flats to rehabilitate eligible members of the Society. The said Memorandum of Understanding was followed by a development agreement dated 1st July, 1996 between Indira Nagar Hutment Co-operative Society and Respondent No.4. The terms of the said agreeme nt reveal that in consonance with the Slum Rehabilitation scheme, sponsored by the Govt. of Maharashtra and the Development control Regulation, 1991, the society intended to entrust the work of redevelopment of the land and construction of buildings for providing accommodation to slum dwellers, to Respondent No. 4 in consonance with the Regulations and Schemes framed by Govt. of Maharashtra time and again. The agreement further stipulated that 620 (Approx.) eligible members of the society as per the comprehensive list would be entitled for allotment of residential tenement.

The main grievance of the appellant, as it appears from the contentions raised is that Respondent No. 4, without adhering to the terms of the agreement, vis-a-vis Memorandum of Understanding, is deliberately delaying the entire scheme and also trying to make alterations and unauthorized construction so as to serve his own purpose, consequently, the members of the society are subjected to unsurmountable hardship.

That after hearing Learned Counsel for the parties and perusing the documents annexed, we find that the Housing project, which is a composite one having a cluster of Houses, got approval from the Competent Authority way back in 1996. M/s Harekrishna Builders (Respondent No. 4) after obtaining clearance from Maharashtra Pollution Control Board or other authorities commenced the development work and, completed construction of three out of six buildings. In consonance with the EIA Notification, 1994, no EC was required to be granted in favour of Building projects. It is pertinent to mention here that under EIA Notification, 2006 obtaining prior Environmental clearance for building project became a necessity. In view of the aforesaid provision, Maharashtra Pollution Control Board, called upon the Builder (Respondent No. 4) to obtain Environmental Clearance failing which he was told that the permission granted in its favour would stand recalled. In spite of the resistance of Respondent No.4, the permission was suspended, b y the Maharashtra Pollution Control Board only on the ground that no EC was granted to the project.

The plea of Respondent No.4 that no Environmental clearance would be necessary for the project, as the same is covered under EIA Notification, 1994, ha ving not been accepted by Maharashtra Pollution Control Board, Respondent No. 4 applied for Environmental clearance in prescribed form. In the application it was clearly mentioned that the project had commenced its work since 1996 and 3 buildings out of 6 have already been completed, and that the work in other buildings was in full swing.

The State Level Expert Appraisal Committee after considering viability of the project and on being satisfied that there is no predicament, granted Environmental clearance. According to provisions, in respect of a Housing project, no public consultation is necessary, and as such no irregularity was committed by the Expert Appraisal Committee.

Heard Learned Counsel for parties diligently, perused the documents filed before us. There is no dispute with regard to the fact that, all the slum dwellers residi ng at Jaishanker Yagnik Marg had constituted a co-operative society in the name and style of Indira Nagar Hutment Dwellers Co-operative Society. The said society decided to develop the slum in consonance with the projects introduced by the Govt. of Maharashtra as well as Rules, Notifications & Circulars issued with regard to slum rehabilitation. The Society also entered into an agreement with M/s Harekrishna Builders (Respondent No. 4) and as per the terms of the said agreement, Respondent No. 4 had to construct Six building as per the cluster Housing scheme. The building plan along with other infrastructure facilities like Roads, amenities etc. were duly approved by the Slum Rehabilitation Authority as well as Municipal Corporation of Greater Mumbai under the Mahahrashtra Regional & Town Planning Act and the Maharashtra Pollution Control Board. The certificate to commence the work was issued in 1996 and it appears, that M/s Harekrishna Builder (Respondent No. 4) commenced the work as per the approval/sanction orders issued by the Local Authorities.

The mother of the Appellant Smt. Kalyani Kupa Banjan is a slum dweller and was also a member of the Society. In consonance with the agreement she is entitled to one of the flats. In fact, she has been allotted a flat but as the construction work is still not over, she is provided a transit accommodation. The appellant is residing with his mother who is dependent upon him. He has filed his appeal mainly being aggrieved by the fact that Respondent No. 4 is adopting dilly dally tactics in completing the project, consequently, the appellant and his mother along with the other members of the society are subjected to unsurmountable hardship. Further grievance of the appellant is that Respondent No.4 without allotting the flats to eligible member of the society is alienating the same to outsiders.

It is further alleged that the Builder (Respondent No.4) is deviating from the original plan to suit his purpose and thereby causing inconvenience and harassment to the members of the society.

It is clear from the narrations made above that the project in question commenced way back in Year 1996, at the relevant time EIA Notification, 1994 was in vogue. Under the said Notification there was no necessity to obtain EC. The entire project being a composite Housing project consisting of cluster of Houses, the Maharashtra Pollution Control Board as well as Municipal Authorities rightly sanctioned the plan and permitted Respondent No. 4 to go ahead with the project. However, in the Year 2010, the permission was recalled by the Maharashtra Pollution Control Board only on the ground that no EC was obtained by Respondent No.4. Strictly speaking, insisting for a EC to a project which commenced in1996 was not justified. Be that as it may, in the meanwhile EC has been granted by the competent authorities. Thus the infirmity, if any, has been mitigated.

So far as other allegations advanced by the appellant, like deviation from the original plan, non completion of the project for about 7 years, alienating the flats to persons who are not the member of the Society, are questions which are beyond the jurisdiction of this Tribunal.

We are conscious that Under Article 21 of the Constitution, a Person is entitled to live with dignity and comfort. Mere animal existence is not the mandate of the Constitution. The right to shelter is accepted as a part of right to life. The problem of slum dwellers, as has been observed by the Supreme Court, is a "human problem". Food, clothing and shelter are traditionally accepted as basic needs and should be guaranteed in any civilized society. In "Universal Declaration of Human Rights, 1948", housing has been specifically recognized as one of the rights relating to living. In the case in hand, the slum dwellers have been evicted from the Slum's which they were occupying since long. They were allotted transit accommodations where sanitary facilities and other amenities, to meet day-to-day existence, were lacking. That apart, continuance of a Housing project for more than 7 years, affects the environment. The pollution level in the locality, both air and water would be in deplorable state. Due to the construction work, noise and dust emanating in the area would pose a threat to health, apart from causing annoyance and inconvenience. Considering all these aspects, we suggested the Parties to put forward a workable solution to end the litigation. After elaborate submissions and counter submissions, the parties agreed to dispose of the case with following directions:-

(i) M/s Harekrishna Builders (Respondent No. 4) shall adhere to, the sanctioned plan and shall not deviate.

(ii ) Respondent No. 4 shall take immediate steps to complete the entire construction, as per the plan and Environmental Clearance within a period of three & half years from today.

(iii) The project being a time bound one, any delay caused should be seriously viewed and the authorities, like Maharashtra Pollution Control Board and Town Planning Authorities to initiate appropriate action in accordance with law, if the project is not completed within Three & half Years from today as undertaken by Respondent No. 4.

(iv) Respondent No. 4 shall provide all amenities as per the approved plan and agreement entered interse between the Society & the Builder.

(v) Respondent No. 4 shall further ensure that till all the members who have been found eligible for allotment of flats and staying in transit accommodations are provided with flats, it shall not sell any flat to outsiders.

(vi) To facilitate expeditious completion of the work, Shri Suresh Banjan, the appellant shall vacate the slum which he is occupying within a period of One Month, failing which necessary steps shall be taken to demolish the same.

Learned Counsel for Respondent No. 4 and also the said Respondent who is present in the Court, in person fairly agreed to adhere to the time schedule and also gave consent to comply with the terms and conditions embodied in the preceding Paragraphs, and complete the project within Three & half Years.

In the aforesaid scenario, we dispose of this appeal by the consent of Parties in the terms and conditions set forth in Paragraph 12 above. Parties to bear their own costs.