National Green Tribunal
Dr Adinath Bhujaballi Kuchanur vs Ms Vardhaman Associates on 14 October, 2022
Item No.4 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO.31 OF 2022 (WZ)
Dr. Adinath B. Kachanur ....Applicant
Versus
Union of India and Ors. ....Respondent(s)
Date of hearing: 14.10.2022
CORAM : HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : --
Respondents : Mr. Rahul Garg, Advocate for R-2
Mr. Aniruddha Kulkarni, Advocate for R-3 and R-4
Ms. Manasi Joshi, Advocate for R-5
Mr. S.S. Swaminathan, Advocate for R-6
ORDER
1. This application has been moved under Sections 14 and 15 read with Section 18 and under Section 2(j) of the National Green Tribunal Act, 2010, statng that respondent No.1/Project Proponent has been constructing a project "Vardhaman Moonstone" at Survey No.99(P), opposite JSPM College at village Tathwade, Taluka Mulshi, District Pune, which falls under the "Screening Category 8(a)" with BUA more than 20,000 sq.mtrs. The Project Proponent is bound to mandatorily earmark the requisite funds towards Corporate Environment Responsibility (CER) in addition to the estimated cost of the impugned project in pursuance of the Office Memorandum (OM) No.22-65/2017-IA.III dated 01.05.2018.
Respondent No.7 - the Tahsildar, Paud (Mulshi) had granted Non-
Agriculture (N.A.) permission dated 17.11.2018 for development of area Page 1 of 17 11,976.81 sq.mtrs, out of which development of road area is 1272.07 sq.mtrs and development of residential area is 10704.74 sq.mtrs in the impugned project. Respondent No.2/MoEF & CC had issued O.M. No.22- 34/2018-IA-III dated 04.01.2019 with regard to compliances to be made by the Project Proponent with the following effect:-
"(i) Statutory compliance conditions;
(ii) Air quality monitoring and preservation conditions;
(iii) Water quality monitoring and preservation conditions;
(iv) Noise monitoring and preservation conditions;
(v) Energy conservation measures conditions;
(vi) Waste management conditions;
(vii) Green cover conditios;
(viii) Transport conditions;
(ix) Human health issues;
(x) Corporate Environment Responsibility."
2. The aforesaid environmental conditions are mandatorily applicable to the impugned project. Respondent No.4-SEIAA Maharashtra granted prior Environmental Clearance dated 16.10.2019 for residential-cum-
commercial project on total plot area of 11,976.81 sq.mtrs. and BUA of 40,871.87 sq.mtrs in respect of the impugned project. Respondent No.5- MPCB had granted Consent to Establish dated 04.03.2020 for residential-cum-commercial project on the same total plot mentioned above. Respondent No.8/Chairman, Maharashtra Real Estate Regulatory Authority (MAHARERA) updated the impugned project on its website showing total FSI area of 17,134.13 sq.mtrs. and the status of the work completed as on 01.11.2021 in respect of the impugned project, as 100% excavation and 100% X number of basement and plinth and work was completed by PP as on 01.11.2021. The applicant visited the site on Page 2 of 17 07.02.2022 and photographed the illegal construction activities being carried out by the Project Proponent by violating the Environmental Enactments, Standards, Norms, Terms and Conditions. Thereafter, respondent No.6 had sent a letter dated 08.02.2022 to the applicant's Advocate who had served notice to respondent Nos.1 to 8 on 11.02.2022, clarifying that total plot area was 11,976.81 sq.mtrs and building permission area of 29,134.21 sq.mtrs and MHADA area of 2546.68 sq.mtrs. The applicant had served notice to the respondents on 11.02.2022 regarding serious violation of the Environmentaal Enactments. Therefore, according to the applicant, following substantial questions of law arise in the present matter:-
"a. Whether PP has deliberately submitted the Respondent No: 4 and 5, the "false and frivolous information while obtaining the Prior Environmental Clearance dated 16-10-2019 and the Consent to Establish dated 04-03-2020 for the Impugned Project?
b. Whether PP owns Total Plot Area: 10,704.74 m2 instead of False Total Plot Area: 11,976.81 m2 for which PP has deceitfully obtained the Prior Environmental Clearance dated 16-10-2019 and the Consent to Establish dated 04-03-2020?
c. Whether PP has obtained permission from the Respondent No: 6, for the Building. Permission Area: 29,134.23 m2 and MHADA Area:
2,546.68 m2?
d. Whether PP can utilize Total FS1 Area: 17.1 34.13 m2 instead of False Total FSI Are: 19,132.39 m2 for which PP has deceitfully obtained the Prior Environmental Clearance dated 16-10-2019?
e. Whether PP has obtained from the Respondent No: 7, the Non-Agriculture (N. A) Order No: Land/SR/Sanad/136/2018 dated 17-11- 2018 for the Construction of Residential Project Page 3 of 17 instead of the Residential cum Commercial Project u/s 42A (1) of the Maharashtra Revenue Act, 1966?
f. Whether PP has completed as on 01-11-2021 the construction work of 100% Excavation and 100% X number of Basement(s) and Plinth by deceitfully obtaining the Environmental Clearance dated 16-10- 2019 and the Consent to Establish dated 04-03-2020 for constructing Residential cum Commercial Project?
g. Whether PP has not deliberately complied with the environmental standards, norms, terms and conditions from time to time?
h. Whether the Respondents No: 2 to 8 have solemnly admitted that PP has seriously violated Environmental Enactments, Standards, Norms, Terms and Conditions by not replying to the Notice dated 11-02222?
i. Whether Mr. Ganesh M. Misal-the Advocate for PP has threatened and forced the Applicant through a letter dated 24-02-2022 to withdraw the Notice dated 11-02-2022 and to tender apology to PP?
j. Whether PP has not deliberately calculated the Project Cost of Rs 101 Crore on the basis of the schedule of rates approved by Public Works Department (PD) of State of Maharashtra and the Cost of Land?
k. Whether PP has seriously violated the ETA Notification, 2006, the Environment Act, 1986 & other Environmental Enactments?
l. Whether PP has seriously violated the Water (P and CP) Act, 1974, the Air (P and CP) Act, 1981 & Solid Wastes Rules, 2016?
m. Whether PP has not deliberately complied with the Construction and Demolition Waste Management Rules, 2016?
Page 4 of 17n. Whether PP has seriously violated the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975?
o. Whether PP has not deliberately complied with Office Memorandum (OM) No: F. No: 22-65/2017-IA.III dt 01-05-2018, OM No: F. No: 22-34/2018-IA.III dt 04-01-2019, OM No: F. No:
22-21/2020-1A.111 dt 07-07-2021 and OM No: F. No: 4/1/2021- IA.III [E-148683] dt 07- 09-2021?
p. Whether PP has violated all the terms and conditions stipulated in the Non-Agriculture Order?
q. Whether PP has not deliberately published at least in. two local newspapers widely circulated in the region around the project regarding the prior environmental clearance and terms and conditions thereunder?
r. Whether PP has not deliberately preserved the Top soil which amounts to the serious violation of CC Conditions and thereby also soil pollution was gravel.), committed?"
3. Hence, it is prayed as follows :-
A. This Hon''ble Tribunal be pleased to kindly pass an "ORDER" awarding the following reliefs towards the rampant environmental pollution, damage and degradation caused and restoration and restitution of the environment so damaged & degraded-u/s 15 of the National Green Tribunal Act, 2010.
"1. This Hon'ble Tribunal be pleased to kindly "quash" all the following permissions, sanctions and approvals accorded to the impugned project.
a. Prior Environmental Clearance dated 16-10-2019, b.Consent to Establish dated 04-03-2020, c. Plan Approval No: BP/E1 /Tathwade102/20 I 9 dt 22-02-2019, Page 5 of 17 d. Building Permission granted for Total Plot Area: 11,976.81 m 2 and Building Permission Area: 29,134.23 m 2 and MI-IADA Area: 2.546.68 m2.
2. The Respondents may kindly be directed to "immediately demolish"
the Impugned Project under the serious violations and thereby causing the grave and irreparable damage and degradation to environment and ecology_
3. This Hon'ble Tribunal may kindly consider the "True Total Plot Area 10,704.74 in 2 " as mentioned in the Non-Agriculture Order No: Land/SR/Sanad/136/2018 dt 17-11-2018 granted to the Impugned Project.
4. This Hon'ble Tribunal may kindly consider the "True FSI Area:
17,134.13 m2 as mentioned in MAHARERA Registration Certificate No:P52 00023184 to the Impugned Project.
5. The "Exemplary Environmental Compensation Cost" be imposed on PP for seriously violating the environmental enactments, standards, terms and conditions while illegally constructing the Impugned Project and thereby causing the grave and irreparable damage and degradation to environment and ecology by releasing the hazardous pollutants.
6. A "Huge Penalty" be imposed on the Respondent No: 2 to 8 for their gross negligence of the Directive Principles of State under Article 48A and the Fundamental Duty 51A (g) of the Indian Constitution and for their utter failure to monitor and check the "Illegal construction of the Project.
7. PP may kindly be restrained from "creating the third-party charge/rights by selling the flats/apartrnents/shops/malls in the Impugned Project"
8. The Respondents No: 6 may kindly be directed to forfeit all the benefits arising from present project site including FSI and TDR with the permanent prohibition on the Impugned Project.
9. The Respondents No: 2 to 8 may kindly be directed to immediately initiate the legal action of prosecution against PP who seriously violated the environmental enactments, standards, norms, terms and conditions while constructing the Impugned Project.
Page 6 of 1710. The appropriate legal action may be initiated against the erring Respondents No: 2 to 8 for their gross negligence of the Directive Principle of State under the Article 48A and the Fundamental Duty under Article 51A (g) of the Indian Constitution.
11. This Hon'ble Tribunal be pleased to kindly "restrain" the Respondent No:5 from granting the "Consent to Operate" the Impugned Project.
12. This Hon'ble Tribunal be pleased to kindly "restrain" the Respondent No:6 from granting the "Completion and Occupancy Certificates" to the said Project u/s 263 (1) of Maharashtra Municipal Corporation Act, 2012.
13. This Hon'ble Tribunal be pleased to kindly "restrain" the Respondent No:7 from granting the post-facto "Non-Agriculture Order" to the "Residential cum Commercial Project".
B. This Hon'ble Tribunal may require the Respondents u/s 19 of the NGT Act, 2010 to produce the following documentary evidences which can prove that PP has seriously violated the Environmental Enactments, Standards, Norms, Terms and Conditions.
i. Environmental Clearance, Consent to Establish, Building Layout Plan, Non-Agriculture Order granted for Total Plot Area: 11,976.81 m2 and Building Permission Area: 29,134.23 m2 and MHADA Area: 2,546.68 m2.
ii. Prior Environmental Clearance granted by the Respondent No: 4 for the following ones.
a. In the name and style of Mr. "Vardhaman Moonstone"- a Firm u/s 2 (j) of the NGT Act, 2010 b. Domestic Water Consumption (CMD) = 260, c. The Effluent Charecterestics for the following standards prescribed by MPC Board or EP Act, 1986, 1 pH Between 5.5-9.0 2 Total Suspended Solids Not more 20 mg/1 3 BOD 3 Days 27 Degree C Not more 10 mg/1 than 4 Chemical Oxygen Not more 50 mg/I than 5 NH4 N Not more 5 mg/1 Demand (COD) than 6 N-total Not more 10 mg/I than 7 Fecal Coliform M PN/100 Less than 100.0 than MI Page 7 of 17 d. The following energy generators, i. DG Sets: 125 KVA = Stack No: 2 and Height in Mtrs 2.24 m, ii. DG Sets: 40 KVA = Stack No: 2 and Height in Mtrs 1.26m iii. DG Sets:100 KVA = Stack No: 2 and Height in Mtrs 2.0 m iii. The Consent to Establish granted by the Respondent No: 5 for the following ones, a. In the name of Mr. Prakash Chhajed- an Individual u/s 2 (j) of the NGT Act, 2010, b. Domestic Water (CMD) = 153.21 /Day, c. STP Technology= MMBR, d. Transformers = 02 Nos x 630 KVA e. The following energy generators, i. DO Sets: 125 KVA = Stack No: 1 and Height in Mtrs 5.5 m, ii. DG Sets: 40 KVA = Stack No: 1 and Height in Mtrs 4.0 m, iii. DG Sets:100 KVA = Stack No: 1 and Height in Mtrs 5.0 m, f. Waste Generation = 25 Kg/Day, g. STP Sludge = 34.20 Kg/Day, h. E-Waste = 2151 Kg/Year, iv. Non-Agriculture (N. A) Order granted by the Respondent No: 7 for the construction of "Residential cam Commercial Project" at S. No: 99(P), Village: Tathwade, Taluk: Mulshi, District: Pune-411033, v. Permission obtained for "Total FSI Area: 1 7,134.13 m 2 " for the construction of Buildings "A" "B" "C" One Commercial Building and One MHADA Building in the Project to which the Respondent No: 8 has granted MAHARERA Registration No: P52100023184_ Page 8 of 17 vi. Plan Approval No: BP/ENV/Tathwade/02/2019 dated 22-02-2019 granted for "FSI: 19132.39 m2, Non FSI: 21739.48 m2 and 1311.4:
40871.87 in2" as mentioned in the E C dated 16-10-2019.
vii. BP/Tathawade/84/2021 dated 12 -10-2021, viii. BP/Tathawadel02/2020 dated 02. -01-2020, ix. BP/Tathawade/54/2018 dated 31-10-2018, x. NOC No: 3/Kavi1841/2018 dated 16-05-2018 received from Pimpri Chinchwad Municipal Corporation Rahatni, xi. NOC No: DKsheiSthaa/Kavi/246/2019 dated 10-04-2019 received from Pimpri Chinchwad Municipal Corporation Rahatni.
xii. The details of TDR and BUA proposed with MHADA, xiii. Rules framed by the Government of Maharashtra for Consumed FSI without MHADA and for Consumed FSI with MHADA, xiv. The details of calculation of permissible tenements and Area available for tenements as per D. C. Rule 250/ per hector, xv. The Impugned Project Cost of Rs 101 Crone calculated on the basis of the schedule of rates approved by the Public Works Department (PWD) of the State of Maharashtra and the Cost of Land.
xvi. The Compliances to the conditions stipulated by SEA C and SEIAA.
xvii. The compliances made by PP with (1) Office Memorandum (OM) No: F. No: 22-65/2017-IA.111 dt 01-05-2018. (ii) OM F. No: 22-34/2018-1A.111 dt 04-01-2019, (iii) OM No: F. No: 22-21/2020-IA.III dt 07-07-2021 and OM No: F. No: 4/1/2021-1A.111 [E-148683] dt 07-09-2021_ xviii. The compliances to the Environmental Norms, Terms and Conditions as per the Environment (Protection) Act, 1986, EIA Notification, 2006 and Other Environment Enactments as well.
xix. The compliances to the Terms and Conditions under Water (P & CP) Act, 1974, Forest (Conservation) Act, 1980, Air (P & CP) Act, 1981, the Hazardous & Other Waste (M & TM) Rules, 2016, Page 9 of 17 xx. The compliances under the Maharashtra (Urban Area) Protection and Preservation of Trees Act, 1975.
xxi. The Advertisement published at least in two newspapers including one in vernacular language about the details of the prior environmental clearance granted for the Impugned Project,
4. After receipt of the Original Application, we constituted a Joint Committee with a direction to submit a factual and action taken report within four weeks, Maharashtra Pollution Control Board (MPCB) being the nodal agency and also directed issuing the notice to all the respondents.
5. In pursuance of the above order, the Joint Committee has submitted its report and its observations, findings and conclusions therein are are quoted hereinbeolow :-
"3.0 Observations and findings This report is outcome containing factual and action taken report of the said joint committee based on the preliminary information received from the nodal agency, followed by site inspection, information given by PP & Pimpri Chinchwad Municipal Corporation (PCMC) through MPCB and subsequent discussions of the joint committee. The observations and findings of the joint committee are given as below :
i. PP has been granted Environmental Clearance (EC) by SEIAA vide letter dated 16/10/2019 for FSI: 19,132.39 m2, Non-FSI: 21,739.48 m2 and Total BUA: 40,871.87 m2 based on the Plan Approval no- BP/ENV/Tathwade/02/2019, dated 22/02/2019 (Copy of EC dated 16/10/2019 is given at Annexure-II). Further, PP has been granted amended EC by SEIAA vide letter no. SIA/MH/MIS/200020/2021, dated 03/09/2021 for FSI: 28,303.49 m2, Non-FSI: 34,809.81 m2 and Total BUA: 63,113.30 m2 for buildings Wing-A [2B (half) + 2P + 13 floors], Wing-B & C (B+GP+13 floors), MHADA: [2B (half) + 2P + 13 floors], commercial: 2B+G+9 floors and club house: G+1 based on the IOD sanction vide BP/Environment/Tathawade/07/2021 on 18/06/2021 for Page 10 of 17 construction area of 63,113.30 m2 for full potential proposed by the project proponent. (Copy of EC dated 03/09/2021 is given at Annexure- III).
ii. PP has obtained first building commencement certificate vide dated 31/10/2018. However, it is observed from the plinth completion certificate issued by the architect vide dated 10/06/2021, the PP has not carried-out any construction activities based on the aforesaid commencement certificate dated 31/10/2018.
iii. Further, PP has obtained first plinth completion certificate vide dated 10/06/2021 for building no. B & C based on the revised building commencement certificate No. BP/TATHAWADE/02/2020, dated 02/01/2020. Subsequently, PP has obtained second plinth completion certificate vide dated 04/06/2022 for building no. A & MHADA building based on the revised building commencement certificate BP/TATHAWADE/84/2021, dated 12/10/2021. Copy of communication made to the Executive Engineer, PCMC regarding verification of plinth completion certificate is given at Annexure-IV. Based on the aforesaid plinth completion certificates vide dated 10/06/2021 and 04/06/2022, it is observed that the PP has started construction activities after obtaining EC vide dated 16/10/2019 and consent to establish vide dated 04/03/2020.
iv. As per the Architect‟s Certificate dated, 23/08/2022, work has been commenced on the site in April, 2020. The Plinth check certificate is issued by PCMC for building-B & C on 10/06/2021 and building-A and MHADA building on 04/06/2022. As per the Architect Certificate dated 23/08/2022, the total construction carried out on site is of BUA- 31,348.63 m2. for five buildings (A, B, C, MHADA & Commercial). Copy of Architect‟s Certificate dated, 23/08/2022 is given at Annexure-V. v. Consent to Establish (CTE) is granted on 04/03/2020 for total plot area (TPA) of 11,976.81 m2 & BUA of 40,871.87 m2 (Copy of CTE is given at Annexure-VI). As per the inspection carried-out by MPCB for verification of application for CTE during their visit on 22/10/2019, an open plot without construction activities at the aforesaid project site was reported.
Page 11 of 17vi. During joint committee visit on 05/07/2022 construction activity was in progress. Construction of Building A- BP+PP+3rd floor (RCC), Building B & C -BP+PP+13 floor & MHADA Building- BP+PP+2nd floor (RCC), Commercial lower basement & half upper basement (RCC) was completed. It was also observed that excavated material (top soil) was stored at project site. Reportedly, the same shall be used for landscape development.
vii. As per information provided by PCMC, TPA of the project site is 12,000 m2 (as per 7/12 extract) and as per demarcation TPA of the project site is 11,976.81 m2 and total area demarcated for road widening is 1,272 m2 (12 m wide DP road). Hence, the net plot area of the project site is 10,704.74 m2. Also, total entitlement as per UDCPR/Sanctioned FSI as of date is 19,132.39 m2, Non FSI Area is 21,739.48 m2 and Total area is 40, 871.87 m2.
viii. PP has obtained non-agricultural order vide no:
Land/SR/Sanad/136/2018 dated 17/11/2018 from the Tahasildar, Mulshi, Pune for the construction of building project. Copy of non- agriculture order dated 17/11/2018 is given at Annexure-VII.
ix. PP has obtained garden NOC from the competent authority i.e. PCMC vide no. 3/KV/841/2018, dated 16/05/2018. Wherein, it is mentioned that the PP should carry-out plantation of 121 no. of trees before completion of project and also to obtain final NOC. Copy of garden NOC dated 16/05/2018 is given at Annexure-VIII.
x. PP has published copy of EC in two local newspapers on 04/05/2022 and copy of relevant extract of public notice from the newspapers vide dated 04/05/2022 is given at Annexure-IX. However, as per EC condition no. XLIX, of EC dated 16/10/2019 and condition no. XI, of EC dated 03/09/2021, the project management shall advertise at least in two local newspapers widely circulated in the region around the project, one of which shall be in the Marathi language of the local concerned within seven days of issue of this letter, informing that the project has been accorded environmental clearance and copies of clearance letter are available with the Maharashtra Pollution Control Page 12 of 17 Board and may also be seen at Website at http://ec.maharashtra.gov.in and http://parivesh.nic.in.
4.0 Conclusions i. PP has obtained first plinth completion certificate vide dated 10/06/2021 for building no. B & C based on the revised building commencement certificate No.BP/TATHAWADE/02/2020, dated 02/01/2020. Subsequently, PP has obtained second plinth completion certificate vide dated 04/06/2022 for building no. A & MHADA building based on the revised building commencement certificate BP/TATHAWADE/84/2021, DATED 12/10/2021. In view of the above, it is observed that the PP has started construction activities after obtaining the prior EC from SEIAA, Maharashtra vide dated 16/10/2019 and CTE from MPCB vide dated 04/03/2020 respectively. Construction of residential and commercial project is under progress and as on 23/08/2022 the total construction carried out on site 31,348.63 m2 which is within the BUA of 63,113.30 m2 as per amended EC dated 03/09/2021.
ii. PCMC may examine the architect certificate vide dated 23/08/2022 including verification of current constructed total built up area (as on 23/08/2022) and deviation/changes, if any; as per the latest Layout Sanction (s) granted by PCMC and communicate the reported deviation/changes if any, to SEIAA, Maharashtra. Accordingly, SEIAA, Maharashtra may take necessary action for as per the SOP for identification and handling of violation cases under the EIA Notification, 2006 issued by MoEF&CC's Oms dated 07/07/2021 and 28/012022."
6. From amongst the respondents, pursuant to service of notice, reply-affidavits have been submitted from the side of respondent Nos.3, 4, 5 and 6.
7. The reply-affidavit of respondent No.3 is only formal one.
8. From the side of respondent No.4 - SEIAA Maharashtra, their stand is as follows :-
Page 13 of 17"4. SEIAA by following the due process as per EIA Notification, 2006 and the Oms and Notifications issued by MoEF&CC from time to time, has granted Environment Clearance dated October 16, 2019 for proposed BUA of FSI area (sq.m.) 19132.39 m2, Non FSI area (sq.m.) : 21739.48 m2. Total BUA area (sq.m.) : 4087.87. Copy of Environment Clearance dated October 16, 2019 is marked and annexed as Annexure 1.
5. The PP has submitted Corporate Environment Responsibility (CER) plan with SEIAA in support of their application for EC. Copy of CER dated 16.01.2019 is marked and annexed as Annexure 2.
6. Subsequently the PP made an application for amendment in their Environment Clearance. Amendment was sought due to vertical expansion of increasing 1 floor in each wing A,B,C and MHADA and increasing 5 floors in commercial wing.
7. SEIAA by following the due process as per EIA Notification, 2006 and the OMs and Notifications issued by MoEF&CC from time to time, has granted Environment Clearance dated 3rd September 2021 for proposed BUA of FSI area (sq.m.) : 28303.49 m2, Non FSI area (sq.m.) : 34809.81 m2, Total BUA area (sq.m.) : 63113.30 m2. Copy of amended Environment Clearance dated 3rd September, 2021 is marked and annexed as Annexure 3."
9. The stand of respondent No.5 is as follows :-
"3. I say and submit that respondent Board has granted Consent to Establish to Respondent Project Proponent i.e. M/s Vardhaman Associates on 4/3/2020 for Total Pot Area - 11976.81 sq.m.mtr. and total Built Up Area - 40,871.87 sq.mtrs for the aforesaid project, which was valid upto commissioning of the project or 5 years, whichever is earlier.Page 14 of 17
A copy of the Consent to Establish dated 4/3/2020 is attached and annexed herewith as an Annexure - III.
The respondent-Board has further granted Consent to Establish for Expansion in the residential construction project of the aforesaid project on 31/7/2022 for total Plot Area of 11976.81 sq.mtrs for proposed total construction BUA of 63113.30 sq.mtrs as per specific condition of EC granted on 03/09/2021. A copy of the Consent to Establish for expansion dated 31/07/2022 is attached and annexed herewith as an Anneure - IV.
5. I say and submit that as per Architect Certificate dated 10/10/2022 submitted by Respondent Project Proponent i.e. M/s Vardhaman Associates to the Respondent-Board, the Respondent Project Proponent has carried out total BUA of 32560.63 sq.mtr. A copy of an Architect Certificate dated 10/10/2022 is attached and annexed herewith as an Annexure-V. "
10. The respondent No.6-PCMC, in its reply-affidavit, has taken stand as follows :-
"2. The contents of paragraph 1 wherein the Original Applicant claims to be a law abiding citizen is false, in as much as the applicant has been accused of commutting various offences under Sections 384 and 385 of the Indian Penal Code for the offence of extortion and is presently lodged in Yerawada jail at Pune. A copy of the FIR dated 27.05.2022 is hereto annexed and marked as Annexure R6-1.
5. Contents of paragraph 19 are denied and that the applicant has attempted to confuse issues in the said paragraph, the correct position is being clarified by the answering respondent hereunder. It is false to say that the Project Proponent has submitted false and frivolous information. The Project Proponent has obtained Building permission for 36,051.22 sq.meters and MHADA area of 2357.17 sq.meters as per the latest sanctioned plan bearing Page 15 of 17 Sanctioned Number BP/Tathawade/64/2022 dated 18.08.2022. The maximum permissible FSI area which comes to a total of 63,113.30 sq.meters (as per the latest EC 03.09.2021) obtained by the PP and the actual built up area is 38,408.39 sq.meters (including MHADA as on date), thus merely because the Project Proponent is not utilizing the maximum FSI, does not amount to any misrepresentation or violation. A copy of the latest sanctioned plan bearing Sanctioned Number BP/Tathawade/64/2022 dated 18.08.2022 is annexed hereto as Annexure R6-2."
11. We have heard the arguments of the learned counsel for the parties present today and could not hear the applicant because he is not present and as per the averments made in the reply-affidavit of respondent No.6-PCMC, the applicant is presently in prison on account of his having been accused of offence punishable under Sections 384 and 385 of the IPC i.e. extortion. None has appeared on behalf of respondent No.1-Project Proponent. Hence, we are proceeding ex parte against it.
12. From the affidavits which have been filed from the side of the statutory authorities, stated above, as well as as per joint committee report, the Project Proponent is not shown to have committed any violation of the norms and is said to have valid Environmental Clearance as well as Consent to Establish and it is also gathered from the reply of respondent No.5 that as per the Consent to Establish, initially it was granted for Built Up Area (BUA) of 40,871.87 sq.mtrs and later on, it was given for expansion of BUA to the tune of 63,113.30 sq.mtrs and till date, the construction carried out by the Project Proponent is 32,560.63 sq.mtrs., which clearly shows that the permission is granted for larger construction compared to the construction carried out by the Project Proponent till date.
Page 16 of 1713. We do not find any substance in the Original Application and accordingly, the application deserves to be dismissed and is dismissed.
No cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM October 14, 2022 Original Application No.31 of 2022 npj Page 17 of 17