Bombay High Court
Velsons Developers Thr. Parnter ... vs Vasai Virar City Municipal Corporation ... on 21 March, 2023
Author: R.N. Laddha
Bench: G. S. Kulkarni, R.N. Laddha
1. WP2825_2022.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2825 OF 2022
Velsons Developers, through Partner Jitendra ... Petitioners
Patel & Ors.
Versus
Vasai Virar City Municipal Corporation, through ...Respondents
Commissioner & Ors.
Ms. Sneha Prabhu and Ms. Kinnari Mehta i/b. SSP Legal & Co. for the
petitioners.
Ms. Swati Sagvekar for respondent no. 1.
Ms. M.P. Thakur, AGP for the State/respondent nos. 2 and 3.
Mr. Parag Vyas a/w. Mr. Pranav Thackur for respondent no. 4 (UOI).
Mr. S.B. Shetye for respondent no. 6/MPCB.
_______________________
CORAM: G. S. KULKARNI
& R.N. LADDHA, JJ.
DATED: 21 March, 2023
_______________________
P.C.
1. We have heard Ms. Prabhu, learned counsel for the petitioners, Ms. Sagvekar, learned counsel for respondent no. 1/Municipal Corporation, Mr. Vyas, learned counsel for respondent no. 4-UOI and Mr. Shetye, learned counsel for respondent no. 6/Maharashtra Pollution Control Board for sometime.
2. The grievance of the petitioners is in regard to non-issuance of a Occupancy Certificate in respect of buildings which are completed almost more than 2 years back. The Occupancy Certificate has been withheld by the Municipal Corporation and in our prima facie opinion, it appears to be on totally untenable ground that environment clearance has not been obtained. It Page 1 of 4 21 March, 2023 ::: Uploaded on - 23/03/2023 ::: Downloaded on - 24/03/2023 08:15:06 :::
1. WP2825_2022.DOC appears to be quite clear from the record that environment clearance necessary for commencement of the project was in fact obtained by the petitioner and accordingly construction was undertaken. Today, the project stands fully completed and an occupancy certificate is awaited. Also from time to time, the Maharashtra Pollution Control Board had also issued to the petitioners "consent to operate".
3. We have examined the environment clearance, which was granted by the Competent Authority dated 17 July, 2010. It clearly appears to us that consent to operate as issued by the Maharashtra Pollution Control Board was granted to the petitioners from time to time including a renewal consent to operate, on the basis of which the petitioners have undertaken the construction and have completed the construction.
4. We have also gone through the relevant conditions and more particularly, condition nos. (ii), (xxiv) and (xxv) (Page nos. 44 and 45) of the Environment Clearance, which are also referred in the reply affidavit filed by the Maharashtra Pollution Control Board. There also appears to be compliance of such conditions of the Environment Clearance, which is not disputed by the Maharashtra Pollution Control Board as seen from its affdavit. The conditions read thus:
"(ii) "Consent for Establishment" shalll be obtained from Maharashtra Pollution Control Board under Air and Water Act and a copy shall be submitted to the Environment department before start of any construction work at the site.Page 2 of 4
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1. WP2825_2022.DOC (xxiv) Project proponent shall ensure completion of STP, MSW disposal facility prior to occupation of the buildings and should obtain completion certificate for these systems/aspects from MPCB. (xxv) Local body should ensure that no occupation certification is issued prior to operation of STP/MSW site etc. eith due permission of MPCB."
5. In this view of the matter, we are quite astonished with the contents of the impugned order dated 3 August, 2022 in refusing to the petitioners the occupancy certificate. It clearly appears to us that the ground of rejection of the occupancy certificate is not the requirement of the Municipal Corporation but the requirement of Maharashtra Pollution Control Board as categorically referred in the impugned order, when in fact on 16 May, 2019 as also subsequently on 15 November, 2022 respectively, consent to operate as also the grant of renewal of consent to operate was granted by the Maharashtra Pollution Control Board in favour of the petitioners.
6. Considering that there is a renewal of consent to operate dated 15 November, 2022 as also there being a compliance of the requirements under the environment clearance, learned counsel for the Municipal Corproation on instructions states that the Designated officer shall reconsider the position. To enable the learned counsel for respondent no.1-Municipal Corporation to take instructions and make a statement before the Court, we adjourn the proceedings.
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1. WP2825_2022.DOC
7. We clarify that in the event, the Designated Officer of the Municipal Corporation and more particularly, the officer who has filed affidavit on behalf of the municipal corporation is unable to take appropriate decision, there would be no alternative but to hear the parties and pass appropriate orders.
8. Stand over to 24 March, 2023 to be listed on the Supplementary Board.
(R.N. LADDHA, J.) (G. S. KULKARNI, J.) Page 4 of 4 21 March, 2023 ::: Uploaded on - 23/03/2023 ::: Downloaded on - 24/03/2023 08:15:06 :::