National Green Tribunal
Sandhya S. Kulkarni vs Arihant Realtors on 18 April, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 03 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Execution Application No. 07/2019(WZ)
IN
Appeal No. 77/2013
Sandhya Kulkarni & Ors. Applicant(s)
Versus
Arihant Realtors & Ors. Respondent(s)
Date of hearing: 18.04.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant: Mr. Aditya Pratap, Advocate for Applicant in E.A 07/2019 (WZ)
Respondent: Mr. Aniruddha Kulkarni, Advocate for SEIAA
Ms. Manasi Joshi, Advocate for R-8
Mr. Saurabh Kulkarni, Advocate for Arihant Realtors
ORDER
[ Introductory - order of the Tribunal dated 8.4.2015
1. This application seeks enforcement of order of this Tribunal dated 08.04.2015 directing the SEIAA, Maharashtra to reconsider to the extent of fixation of parking spaces, the greenbelt and the recreational ground and take other steps mentioned in the said order. The Tribunal also directed that the EC be "deemed inoperative" till reconsideration by the SEIAA.
2. The matter arose out of an appeal against grant of EC dated 20.02.2013 for construction of Residential-cum Commercial project under 1 Slum Rehabilitation Authority (SRA) scheme on plot CTS No. 4/6(pt), 4/7(pt), 7, 7/1 to 3, 9(p), 9/1 to 4, 10(pt) (CTS No. 4/7 (pt), situated at Mulund (W) Mumbai in favour of respondent No.1 (the PP), without provision for parking, green belt and recreational area which were alleged to be necessary components for environment.
3. On consideration, the Tribunal partly accepted the appeal and directed as follows:-
"We partly allow the Appeal and direct that:
(A) The EC proposed is remitted to SEIAA for reconsideration to the extent of fixation of parking spaces and the greenbelt as well as R.G. area. The impugned EC be remitted to SEIAA for reconsideration and till then it shall be deemed as inoperative. The Respondent No.1 shall not carry out any construction work for the period of three (3) months in respect of present buildings till the issue regarding above three (3) aspects, are decided by SEIAA, for the purpose of which the impugned EC is remitted to the Authority for reconsideration. The SEIAA shall distribute the parking slots as per NBC Norms first to the Appellant's HGCS and later on to Pandit HGCS, as per the availability of such parking spaces for allotment.
(B) SEIAA, also shall reconsider re-alignment of R.G. area and if any space is not available then one of the vacant flat from available accommodation from sale building, shall be converted to R.G. facilities, providing facilities providing facilities like Community Hall, Table Tennis, Library, Gym etc. which can be accommodated in the area available.
(C) SEIAA, shall not grant further permission (EC), to remaining part of construction until all the conditions are found to have been satisfactorily complied with by the Project Proponent. Unless such verification of the EC in question is done it shall remain in abeyance to the extent of remaining part of construction, excluding construction, which is already done. The SEIAA shall particularly ensure that proper STP facilities are made available to rehab buildings of the Appellants and that Nullah is cleared, as well as is covered with proper iron mesh to avoid dumping of MSW.
(D) In case of any occupant, who is eligible and entitled to have parking space for tenament, is ready and willing to surrender the same, he shall be paid proper compensation after due negotiations, but the same shall 2 not be unreasonable and shall be as per market price prevailing in the area.
(E) With above directions, the Appeal is accordingly disposed of. No costs."
Grievance in EA for non compliance of order of the Tribunal
4. Case set out in the EA is that in compliance of order of the Tribunal dated 08.04.2015, the matter was considered in the meeting of the SEIAA held on 6th & 9th November, 2015 but compliance of order of this Tribunal has not been ensured.
Order dated 10.4.2019 and stand of parties
5. Vide order dated 10.04.2019, the Tribunal required a joint Committee comprising the Maharashtra State Pollution Control Board (MSPCB) and Member Secretary, State Level Impact Assessment Authority to furnish a report about status of compliance.
Finding of joint Committee constituted by the Tribunal
6. In pursuance of above, the joint Committee undertook visit to the site on 22.07.2020 and has mentioned the compliance status as follows:-
" Sr. Particulars of points Status observed on Status observed on 22/07/2020 No. to be observed 18/07/2019 by joint by joint committee during visit.
committee during visit.
(A) Fixation of parking There is no parking space, 24 Car Parking spaces for spaces 24 parking spaces are greenbelt area fixed or even Rehab buildings are not fixed by SEIAA (minutes not earmarked by the PP. earmarked by the PP.
of 96th meeting held on 15t & 2nd March, 2016) and the PP has provided the same.
Re-alignment of R.G. area 3 (B) If any space is not Two types of R.G.s are Outdoor R. G. is 689.88 M2. Re- available then ensuring observed viz. Ground R.G.s alignment of R. G. area is not the provision of one of (402.06 M2) and Paved possible as a large chunk of R. R.G.s (287.82 M2) totaling G. area is narrow and the vacant flat from to 689.88 M2 However, available 132.18M2(Highlighted in inaccessible to the vehicles and accommodation from Yellow, Annexure 1) of R.G. inhabitable to the human sale building to be area on Ground is certainly activities. It is unhygienic on converted to R.G. a waste as it has turned account of chocked inspection facilities viz. Community into a dump yard and is chambers. There is no agreement also not accessible. It has Reached between the applicants Hall, Table Tennis play also observed there are area, Library, Gym etc. inspection chambers and and respondent 1 on the matter of The PP has committed to Manholes flooding with an indoor space in the sale building have provided R. G. untreated sewage in some in lieu of ineffective and less area to the extent of of these Ground R.G.s outdoor R. G. area. 695.75 M2 (MoM of 96th areas making them unfit and unhygienicfor any meeting of SEIAA held recreational activities.
on 1st & 2nd
March, 2016). "
(C) 1. Proper STP facilities to The PP has not provided The STP is observed at the rehab buildings STP and there are only allotted place. It is
2. Covering of Nalla with collection Chambers to underground and is not proper iron mesh collect untreated sewage. operational, due to non-
availability of domestic effluent They have not covered load as some buildings are Nalla with iron mesh and as vacant. Nalla is now covered by a result of which MSW is concrete planks and iron mesh. getting dumped in to adjoining Nullah.
(D) Compensation to the In the 96th meeting of It is now learnt that the eligible applicants in lieu SEIAA held on 1st and 2nd applicants do not want the of parking space. March, 2016(Annexure2) the compensation but the parking spaces only. Again there is no aforesaid committee has agreement reached between the already directed the PP to applicants and respondent 1on pay compensation in lieu of this matter. However, during the parking space to the the visit the builder has offered "Pandit (SRA) Co-operative applicants for a meeting. Housing Society". The said society in their General Body Meeting on 27/09/2015has resolved that the amount of Rs.
24,00,000 shall be paid to
the society by the developer
at the time of occupancy.
(Annexure 3)
Stand of PP
7. The Project Proponent (PP) has filed reply claiming compliance. It is submitted that the sewage has been connected to MCGM sewerage system.
There exists a Temple on DP Road, unless & until the said Temple is shifted, which is on the Approach Road, no Final Fire NOC can be granted to the Respondent No -1 & till it is granted, OC cannot be issued by the 4 Respondent No-6 which matter is pending consideration in the Bombay High Court. Relevant extracts from the reply are as follows:-
"6) The Respondent No.1 has already submitted pointwise compliance to the SEAC and SEIAA and therefore, the SEIAA has taken decision in its 96th meeting held on 1st and 2nd March, 2016 to accord the approval of the project for grant of EC.
However, it appears that on account of the matter is pending before this Hon'ble Tribunal to Show Cause as to why the Orders sought for in the Execution Application No.07/2019 (WZ) in the Original Appeal No.77/2013 (WZ) shall not be issued on 22-08-2019 and listing the matter on 22-10-2019, the Final Decision about grant of EC has not been taken.
The Respondent No.1 has received Prosecution Notice dated 23-07-2019 on the basis of the Joint Committee status report on the ground that the Respondent No.1 has given possession to the tenants without obtaining 'Consent to operate (C to 0) and thereby violating the 'Consent to Establish' conditions. It is also mentioned that no STP has been provided to Rehab. Building and thereby untreated sewage is stored in the inspection chambers and manholes found flooding in some of ground R.G. areas making them unfit and unhygienic for recreational activities, green belt area and not provided rain water harvesting system etc. A copy of the said Prosecution Notice is enclosed and marked as an Annexure- "VII."
7) The Respondent No. 1 has to submit that whatever permission has been granted to the Rehab. Tenants in the B, C and D Wings i.e. Temporary Transit Camp, have been completed prior to EIA Notification 2006, for which EC is not required and these Wings are reserved for PAPs, which will be handed over once the Rehabilitated Slum Dwellers shifted to Rehab. Components in A and E Wing, whenever it is completed and ready. Therefore, this particular portion did not require to obtain 'Consent to Operate' on account of its completion prior to EIA Notification, 2006.
The B, C and D wings sewage after pre-treatment has been connected to MCGM sewerage system and therefore, we are cleaning soak pit regularly. Solid waste is also handed over to the Solid Waste Management of MCGM. However, once the Combined STP for Rehab. Component and Temporary Transit Camp is completed, it will be connected to the STP, once it is completed in all respect and commissioned successfully.
8) With regard to the non-provision of STP to Rehab Buildings, it is submitted that those are not Rehab Buildings, but the Temporary Transit Camps, which are constructed prior to EIA Notifications, 2006, when the construction projects have been brought under the EIA Notification. At that time, the EC from 5 Competent- Authority and Consent from the MPCB were not required and therefore, STP was also not constructed to the said Temporary Transit Camps. The septic tanks followed by soak pits have been provided and regularly cleaned up by taking it to the MCGM sewerage system. During the period of visit, there was heavy rains and therefore, inspection chambers were overflowing. However, it is not correct to say that the manholes were found to be flooding in the R.G areas because it was nothing but overflowing of inspection chambers filed up with rain water and not manholes Infact, the R.G. area is under development and the said area is not handed over to the Society. Therefore, the above circumstances given Prosecution Notice is not correct and it is given on the basis of wrong assumptions.
9) In the meantime, the Regional Officer, MPCB, Mumbai has further issued Directions of Closure dated 08-08-2018 (19), which have been again issued on the ground that no STP has been provided to the Rehab. Component and untreated sewage stored in the inspection chambers, flooding of manholes etc. and non-provision of green belt and rain water harvesting. The Respondent No.1 has submitted Reply to the Directions of Closure on 15-10- 2019. Copies of the said directions and reply thereto are enclosed and marked as an Annexure-"VIII." and "IX" respectively. The Respondent No.1 on account of Suspension of Environment Clearance was not in a position to take steps to develop green belt and to provide rain water harvesting as per consent conditions. However, the planning in respect of providing of rain water harvesting arrangement and development of green belt is in progress.
10) The Respondent No.1 would like to submit one of the main hurdle in obtaining OC for the Rehab. Component first and then to the Sale Component i.e. shifting of one of the Shree Sai Baba Temple on the proposed D.P. Road, without which, the D.P, Road cannot be completed and handed over. This sanctioned D.P. Road is one of the pre- condition as far as fire N.O.C. is concerned, without which O.C. will not be granted. If O.C. is not granted to the Rehab. Component, the Respondent No.1 will not be in a position to shift the original slum dwellers residing in Temporary Transit Camp and therefore, the project will be unnecessarily delayed for no fault of the Respondent No.1.
11) It is, therefore, prayed that in the interest of handing over of possession of Rehab. Component to the slum dwellers shifted from Temporary Transit Camp to the Rehab. Component after grant of O.C., this Hon'ble Tribunal may direct the Society i.e. Respondent No.7 to shift or to cooperate the Respondent No.1 with the aid and assistance of S.R.A. Authority and Police at large to an alternative site about 30 feet from the existing location which is beyond the sanctioned D.P. road. A copy of the proposed Block Plan prepared for shifting of the Temple from the existing site to the proposed site is enclosed and 6 marked as an Annexure- "X". Few of the disgruntle elements from the society do not want to shift the said temple to the alternate location and deliberately insisting on shifting of the said temple to R.G. area for reasons best known to them, so that the O.C. cannot be obtained by the Respondent No.1 and there will be violation of R.G. area, for which again they may lodge complaint to the various Authorities. The Respondent No.1 tried its level best to bring on record this obstacles to the notice of S.R.A. and Collector by letter dated 04-03-2019, 2808-2019 respectively, which was specifically acknowledged by the S.R.A. by its letter dated 17-09-2019. Since these correspondence in in Marathi, the Respondent No.1 would like to submit English Translations thereof as and when necessary. This is one of the most difficult situation for the Respondent No.1 to shift the said temple and to obtain O.C.
12) Now, the Respondent No.1 has complied with the directions issued by the MPCB through its Regional Officer at Mumbai dated 08-08-2018/19 by Closure of the Unit and with disconnection of electricity and water supply of it. However, till date, the Respondent No.1 has not received a copy of the Joint Committee Inspection Report and therefore, unable to know exact suggestions made in the report. But on the basis of Prosecution Notice and Directions of Closure issued with Reference to Joint Committee Inspection Report, the steps are taken to comply with whatever points of non-compliances reported therein.
13) Therefore, it is prayed that the decision taken by SEIAA to accord the approval of the project for Grant and Validation of EC in its 96th meeting held on 1st and 2nd March, 2016 may kindly be allowed to be implemented and the present matter may kindly be disposed of with appropriate directions to all the parties. Since this is SRA Project to do proper Rehabilitation of the slum dwellers residing in the said area, for which after taking over the development of the SRA Scheme from earlier predecessors, the Respondent No.1 tried its level best to expediate the work of the redevelopment of SRA scheme from 2010 onwards. Unfortunately, on account of a number of disgruntled elements and a number of litigations before various Forums, the SRA scheme is spending for last 21 years from the issuance of the LOI, more particularly, which is the First One in the SRA Scheme of Mumbai. The slum dwellers, who really want to complete the project and to reside in the redevelopment scheme are unnecessarily being affected. Hon'ble Prime Minister and Hon'ble Chief Minister, Govt. of Maharashtra have already decided to complete 20 lakhs housing for the people who do not have their own shelter. Therefore, Hon'ble Tribunal is requested that the hurdles created by disgruntled elements in completion of this scheme may kindly be ordered to be removed."
78. The PP has also filed additional affidavit on 13.03.2020 that parking compensation is being accepted in lieu of parking area. Relevant extracts from the said reply is as follows:-
"5. The following actions are necessary to expedite the completion of the SRA-Project, which is one of the initial project & pending since 1998 i e for more than 20 years. Hence, it is high time that the Society of the Slum Dwellers may kindly be allowed to be shifted immediately to the Newly Constructed Rehab Component, which is ready for occupation as verified by the MCGM.
a) It is also necessary to allow shifting of the Temple in the area of the D.P, Road to an Alternative Site proposed by the Respondent No -1 under the supervision & protection of the MCGM & Police Department in a time-bound manner.
b) I further say & submit that the STP has been constructed & commissioned having capacity of 154 KLD, which is ready for operation. The Treated Water from the STP will be used for the gardening, sprinkler, flushing, washing vehicles etc. A copy of the Certificate dated 05.02 2020 issued by M/s Purwat is enclosed & marked as Annexure
-A-8. The recent sample taken by the Sub Regional Officer is so far appears to be conforming to the Environmental Standards. The Respondent No-1 would like to refer to & rely up on the said Analytical Report when produced.
c) The MPCB & MCGM should submit their Verification Report about the steps taken by the Respondent No -1 & allow the Respondent No-1 to proceed further to complete the project. The Respondent No-1 will abide by the lawful suggestions & recommendations given by them.
d) The E. C. may kindly be extended for the period for which the Respondent No 1 could not perform its work during the period of non-operation of it.
6. The Respondent No-1 has thus taken all reasonable steps to comply with the Statutory Conditions & also with the Environmental Norms. The Respondent No.1 therefore prays that the Slum Dwellers shifted to the PAP Premises may kindly be allowed to rehabilitate to their new constructed A & E wings from B & D wings. The Respondent No -1 has already completed the STP & trials are also taken by it. It is further prayed that the Respondent has identified alternate premises for shifting of the old temple, so that the necessary road can be available as per the Statutory Requirement for getting Completion Certificate. We therefore pray that necessary directions in this may kindly be issued to the concerned authorities in this behalf. The parking compensation is already being accepted to be received by the Society. A long period has 8 been over without any work or progress. It is in the interest of the Registered & Eligible Members of the Society, who should be shifted to the permanent newly constructed rehab component, for which the society with the majority of the members ready & filed its consent thereto. However, few members or illegitimate persons do not want us to proceed further with the work for the reason best known to them. The Respondent No -1 has already suffered heavy losses for not proceeding with the work & also not able to complete their sale component. Hence most earnestly request to revive its EC & to adjust period of stop work for completing remaining work."
Reply by the Applicants
9. The Applicants have opposed the above stand. They submit that the coercive measures be taken for not implementing order of this Tribunal.
Relevant extracts from the affidavit filed on 18.03.2020 are reproduced below:-
"2.10 Necessary Demolitions may be undertaken to achieve compliance with the Said Judgment:
A. The Applicants submit that necessary demolitions may be undertaken in order to achieve compliance with the Said Judgment. The extensive hard surfaces constructed by the Developer may be demolished in order to provide RG on mother earth. Necessary building demolitions may also be undertaken in order to provide requisite space for parking of vehicles. Further a fresh layout plan must also be prepared in order to provide RG and car parking spaces in accordance with DC 23 and DC 36 respectively of the DC Regulations 1991.
B. It is further submitted that the Said Judgment also mandated that if the Developer could not provide RG, then a flat from the sale component should be provided. Such sale flat must necessarily come from the commercial sale component of the building which is existing on the lower floors of the podium. Since the recreational flat would have to be accessible to all residents of the slum rehabilitation tenements, therefore a commercial shop constructed by the Developer on the ground floor of the Sale Building podium may be provided to that effect.
C. Further under the zoning regulations contained in DC Regulations 52 and 53, any tenement used for recreational purpose must be provided preferably on the ground floor. In such case, the ground floor shops constructed by the Developer in the sale building must be provided to the residents of the slum rehabilitation buildings so that it can be accessible to all of them. It is 9 a sacrosanct requirement of DC 23 that the recreational space is made accessible to all residents of the building.
D. Similarly, the Applicants further submit that even so far as providing parking spaces are concerned, if this Honourable Tribunal is of the opinion that demolition may not be efficacious, then it may direct that the same parking spaces may be allotted in the podium of the sale building, preferably on the ground floor or lower levels. Such parking spaces would be easily accessible to the residents of the slum rehabilitation tenements and also ensure minimal traffic congestion on the public road outside.
E. Thus implementation of the above-mentioned measures is sine qua non for ensuring effective compliance with the Said Judgment passed by the Honourable Tribunal. In addition to ensuring execution and compliance under Section 25, this Honourable Tribunal must also initiate contempt proceedings under Section 26 and punish the Developer, unscrupulous society members and complicit public officials who frustrated execution and implementation of the Said Judgment. The acts of subterfuge committed by them are grossly evil and merit urgent and stringent penal action by this Honourable Tribunal through contempt proceedings."
" Sr. Respondent No.l Applicants Reply to the No. submission relating to Respondent No.1 said the NGT Order dated 8th submission relating to the NGT Order dated April, 2015 8th April, 2015 1 Regarding Parking to be The Respondent No.1 has not given the provided as per NBC Norms complete and exact reference of the said for Rehab. Component as Impugned Judgement. The Applicants seek to directed by Hon'ble NGT, rely upon in verbatim extract of the said WZ Bench in its Order Impugned Judgement as under:
dated 0804-2015 that in case of any Occupant is (A) The EC proposed is remitted to SEIAA for eligible to have parking reconsideration to the extent of fixation of space for tenements, is parking spaces and the greenbelt as well as ready and willing to R.G. area. The impugned EC be remitted to surrender the same, he SEIAA for reconsideration and till then it shall shall be paid proper be deemed as inoperative. The Respondent compensation after No.1 shall not carry out any construction work negotiations as per market for the period of three (3) months in respect of price prevailing in the area. present buildings till the issue regarding above three (3) aspects, are decided by SEIAA, for the purpose of which the impugned EC is remitted to the Authority for reconsideration. The SEIAA shall distribute the parking slots as per NBC Norms first to the Appellant's HGCS and later on to Pandit HGCS, as per the availability of such parking spaces for allotment.
(D) In case of any occupant, who is eligible and entitled to have parking space for tenament, is 10 ready and willing to surrender the same, he shall be paid proper compensation after due negotiations, but the same shall not be unreasonable and shall be as per market price prevailing in the area..."
Sr. Respondent Applicants Reply to the No. No.l submission relating Respondent No.1 said to submission relating to Present Status of Present Statusof Compliance:
Compliance:
1 In compliance of the SEAC A. The Applicants state that the observations the PP has Respondent No. l seeks to misguide This agreed to provide Parking to Hon'ble Tribunal. In the Minutes of the the Rehab. A and E Wing 96 meeting of the SEIAA held on 1st& 2nd submitted draft modified March, 2016, it was recorded that the plans of Rehab. Building PP's (i.e. Respondent No.1) submitted and accordingly, proposed that as per the directions of Hon'ble Car Portions by deleting Supreme Court, the parking spaces some of the flats to can't be sold to any person; hence the accommodate 24 number of question of the compensation after parking to the Rehab. negotiation to the eligible occupant does Component by submitting not arise. A Copy of relevant pages from proposed plan indicating the said meeting relating to above is the modifications in this hereto annexed and marked as behalf. However, as per EXHIBIT-"G".
specific resolution passed by the Society, it was held B. The Applicants further state that the that they were allotted 24 Respondent No.1 submission relating to parking for the members of providing of 24 parkings and the the Pandit CHS Ltd., as per calculation relating to the compensation the directions of SEAC-I1. for parking space as per market value, However, they have decided which has been considered amounting in their Annual General to Rupees 24 Lakhs is incorrect, Meeting held on 2709- 2015 baseless and without any merit and that the parking space is substance. The same has been Society's Property and not challenged in the present Execution individual member's Application.
property. Therefore, Society has unanimously decided C. The Applicants state after passing of the not to take parking space Impugned Judgment dated 08th April, and passed Resolution to 2015, the Applicants issued letter dated accept compensation 01st June, 2015 to the State instead of Parking Space in Environment Impact Assessment order to make provision for Authority, the State Environment the further maintenance Expert Appraisal Committee, the work of the slum dwellers. A Secretary, Environment Department, copy of said Resolution Mantralaya and other concerned alongwith an Affidavit of Authorities. By way of the said letter, it the then Office Bearers of was requested to the SEIAA that to the Society is enclosed and grants an opportunity of hearing to the marked as an Annexure- Applicants before any conclusion. But
111. Accordingly, the PP has however, the same was not granted to decided to calculate the the Applicants in any of the meetings. compensation for parking Hence, the SEIAA has wrongly space as per market value, considered the proposal of Respondent which has been amounting No.1 relating to the parking and to Rupees 24 Lakhs for the compensation, without giving any benefit of Society to be kept 11 in fixed deposit for the opportunity of hearing to the maintenance of their Applicants.
society. This fixed deposit will be made to the Society D. The Applicants state that false minutes at the time of possession of were prepared by the Pandit (SRA) Co- Rehab. Component to be operative Housing Society that the given to the Society. In 961h members agreed for Rs. 24,00,000/- meeting of SEIM, on (Rupees Twenty Four Lakh Only) as account of submission of total consideration in lieu of surrender affidavit with detailed of their parking. proposal in respect of parking, the SEIM decided E. The Applicants state that the to accord the approval of the Respondent No.1 has not provided the project. requisite number of parking spaces in accordance with DC Regulation 36 of the Development Control Regulations, 1991 (under which the project is being constructed).
F. As per the requirement of law, the parking requirement can be computed as under: Total number of 'Residential' Rehabilitation Tenements (Size 269 square feet each): 309 Total number of 'Commercial' Rehabilitation Tenements (Size 225 square feet each): 12 Combined Area of 12 Commercial Shops: 183 square meters; Total Office Space:
Total Tenements: 321; Parking Requirements as per DC Regulation 36:
321/8=40 (approx.) Visitor Parking: 25% of 40=10;
Parking for Shops:
183/40=5(approx. rounded off) Total parking spaces required: 40+10 (visitor)+5 = 55 car parking spaces;
G. The Applicants reply upon a report dated 21st April, 2014 submitted by their Architect Mr. Chandrashekhar, which recommends provision of 56 car parking spaces. A Copy of the said report is hereto annexed and marked as EXHIBIT-"H".
H. Further, as per Maharashtra Pollution Control Board report dated 19th July, 2019, it has been reported that there is no parking space fixed or even not earmarked by the Respondent No.1.The relevant extract from the said report is as under:
"...Status observed on 18/07/2019 by joint committee during visit.
There is no parking space, fixed or even not earmarked by the PP.12
I. A Copy of the said report dated 19th July, 2019 is hereto annexed and marked as EXHIBIT-"I".
J. The Applicants state that the despite the specific judgement for fixation of parking spaces, greenbelt area and R.G. area. The Respondent No.1 has not fixes the same i.e. parking spaces, green belt and R.G. area. The Respondent No.1 is silent regarding the compliance of said judgment pursuant to the fixation of Green Belt because they have not complied with the same. Further, it is pertinent to note the same cannot comply for the reason that there is no sufficient land available for the Development of Green Belt.
K. Thus, the reply of the Respondent No.1 relating to the compliance of the impugned judgment is false, baseless and without any merits. Hence, the same be rejected and set aside.
Sl. Respondent No. 1 submission Applicants Reply to the Respondent No. relating to the NGT Order dated No. 1 said 8th April, 2015 submission relating to the NGT Order dated 8th April, 2015
2. Realignment of R.G. area and in The Respondent No. 1 has not given the case if any space is not complete and exact reference of the available, then one of vacant flat said Impugned Judgement. The fromthe sale component to be Applicants seeks to rely upon in converted into R.G. verbatim extract of the said Impugned Facilities. Judgement as under:
"... (B) SEIAA, also shall reconsider re-
alignment of R.G. area and if any space is not available then one of the vacant flat from available accommodation from sale building, shall be converted to R.G. facilities, providing facilities like Community Hall, Table Tennis, Library, Gym etc. which can be accommodated in the area available.
....."
Sl. Respondent No. 1 submission Applicants Reply to the Respondent No. relating to present status of No. 1 said compliance: submission relating to present status of compliance:
132. SEAC-11 in its 37 th meeting A. The Applicants state that the said held on 2nd , 3r d and 4 th submission of the Respondent No.1 September, 2015 noted the is vehemently denied as wrong and Revised Layout showing detail incorrect. It is submitted that the R.G. and has specifically said layout plan which is annexed observed that from the and marked as Annexure- "IV" is not calculations, it is seen that the a sanction and approved plan from R.G. provided by the PP is concerned SRA Authority.
adequate in terms of concerned DCR applicable to SRA. B. It is further submitted that the actual physical site is completely PP has revised R.G. area in different from the said layout plan. compliance of Hon'ble NGT The difference between the said plan Directions and as per SEAC-II and actual physical site is as under:
recommendations. A copy of the said layout plan is i. In the said Respondent No.1's enclosed and marked as an plan (Annexure-IV), entry and exit Annexure- "IV" for Rehab-Wing-A is shown at 9.15 m. Wide D.P. Road, however on actual physical site, the entry for the said Wing-A is from another way. A Copy of the photo showing the entry and exit to said Wing -A is hereto annexed and marked as EXHIBIT-"J".
ii. Further, on the location of plan where the Respondent No.1 has shown entry exit for Rehab-Wing-A but however on actual site there are shops. A Copy of the photos showing shops is hereto annexed and marked as EXHIBIT-"K".
iii. In the said Respondent No.1 plan, entry and exit for Rehab-
Wing-B is not shown intentionally as on actual physical site the entry and exit of the said Wing-B is on RG area. A Copy of the photo showing the entry and exit of said Wing -B is hereto annexed and marked as EXHIBIT-"L".
iv. In the said Respondent No.1 plan, entry and exit for Rehab-
Wing-C is shown at 9.15 m. Wide D.P. Road, however on actual physical site, the entry for the said Wing-C is from another way.
A Copy of the photo showing the entry and exit to said Wing -C is hereto annexed and marked as EXHIBIT-"M".
v. In the said Respondent No.1 plan, entry and exit for Rehab-
Wing-D is not shown intentionally as on actual physical site, the entry and exit of the said Wing is on RG area. A Copy of the photo showing the entry and exit of said 14 Wing -D is hereto annexed and marked as EXHIBIT-"N".
vi. In the said Respondent No.1 plan, entry and exit for Rehab-Wing-
E is shown at 9.15 m. Wide D.P. Road, however on actual approved plan there is the Police Station. A Copy of the sanctioned amended plan dated 24th July, 2012, showing the Police Station at the place of entry and exit in the said Respondent No.1 Plan's is hereto annexed and marked as EXHIBIT-
"0".
vii. At the backside corner of the A and B Wing, in the Respondent No.1 Plan, it is show as RG area, however, on actual physical site, there is electricity sub-station. A Copy of the said photo showing electricity sub-station is hereto annexed and marked as EXHIBIT- P If.
viii. The Respondent No.1 has falsely shown in their Plan (i.e. Annexure-IV) that RG areas are provided and justified that he had complied with the RG area regulations. But, however, the fact of the matter is that the RG area is still covered up by construction of UG Water Tanks, STP, Electric Sub-
Station, Fire Fighting Tank, Drainage Chambers etc. A Copy of photos relating to the same is hereto annexed and marked as EXHIBIT-
Q. Further, it submitted that the said Annexure-IV plan is not an approved plan. Thus, to misguide the Hon'ble Tribunal he has submitted fictitious plan.
C. Further,as per Maharashtra Pollution Control Board report dated 19th July, 2019, it has been reported that R.G. area on Ground is waste as it has turned into a dump yard and is also not accessible. The relevant extract from the said report is as under:
"...Two types of R.G.s are observed viz. Ground R.G.s (402.06 M2) and Paved R.G.s (287.82 M2) totalling to 689.88 M2. However, 132.18 M2 (Highlighted in Yellow, Annexure 1) of R.G. area on 15 Ground is certainly a waste as it has turned into a dump yard and is also not accessible. It has also observed there are inspection chambers and manholes flooding with untreated sewage in some of these Ground R.G.s areas making them unfit and unhygienic for any recreational activities"
D. A Copy of the relevant page from the said report dated 19thJuly, 2019 is already hereto annexed and marked as EXHIBIT-"I".
E. Thus, the reply of the Respondent No.1 relating to the compliance of the impugned judgment is false, baseless and without any merits.
Hence, the same be rejected and set aside.
Sl. Respondent No. 1 submission Applicants Reply to the Respondent No. relating to the NGT Order dated No. 1 said 8 April, 2015:
th submission relating to the NGT Order dated 8th April, 2015:
3. SEIAA had been directed by The Respondent No.1 has not given Hon'ble NGT not to grant further the complete and exact reference of EC to remaining part of the said Impugned Judgement. The construction until all the Applicants seeks to rely upon in conditions are found to have verbatim extract of the said been complied satisfactorily Impugned Judgement as under:
and verification is done by it, more particularly provision of "(C) SEIAA, shall not grant proper STP to Rehab. further permission (EC), to Component and clearance of Remaining part of nalla and then covered with construction until all the proper iron mesh to avoid conditions are found to have dumping of MSW. been satisfactorily complied with by the Project Proponent.
Unless such verification of the EC in question is done it shall remain in abeyance to the extent of remaining part of construction, excluding construction, which is already done. The SEIAA shall particularly ensure that proper STP facilities are made available to rehab buildings of the Appellants and that Nullah is cleared, as well as is covered with proper iron mesh to avoid dumping of MSW.
...."16
Sl. Respondent No. 1 submission Applicants Reply to the No. relating to present status of Respondent No. 1 said compliance: submission relating to present status of compliance:
3. PP has made provisions for the A. The Applicants state that the said location of STP of the capacity submission of the Respondent No.1 of 160 KLD for Rehab. is vehemently denied as wrong and Component and 86 incorrect. It is submitted that as per KLD for sale component. PP has Maharashtra PollutionControl Board already constructed STP tank of report dated 19th July, 2019, it has the required capacity and been reportedthat the PP has not placed Order passed for provided STP. The relevant extract equipments to M/s Water from the said report is as under:
Enviro Engineers, Vide letter dated 30-12-2014. The layout "...The PP has not provided STP of the said STP and there are only collection alongwith the photographs of chambers to collect untreated the constructed tank and the sewage. They have not covered Order placed for equipments Nullah with iron mesh and as a are enclosed and marked as an result of which MSW isgetting Annexure. However, on account dumped in to adjoining of specific Order passed by Nullah..."
Hon'ble Tribunal, the PP could not proceed with B. A Copy of the relevant page from the further construction work the said report dated19th July, and presently the construction 2019 is already hereto annexed and has been stopped. marked as EXHIBIT-"I".
C. Thus, it is clear from the said report that there is no STP. The Respondent No. 1 has falsely claimed before this Hon'ble Tribunal that he has provided the STP.
D. Further, as per the Maharashtra Pollution Control Board letter dated 08th August, 2018 (signed dated 08th August, 2019) issued to the Respondent No.1 is has been stated that he has not provided STP and not complied with the other relevant conditions as well. The relevant extract of the said letter dated 08th August, 2019 is as under:
"AND WHEREAS, in compliance of Hon'ble NGT Order dtd.
10.04.2019, a joint committee visited to the aforesaid site on 18/07/2019, and observed following non-compliances;
1. You haves not provided STP to rehab building and found untreated sewage stored in inspection chambers and Manholes with untreated sewage flooding in some of 17 Ground R.G.s areas making them unfit and unhygienic for any recreational activities.
2. You have not provided greenbelt area and rainwater harvesting system as per consent conditions.
E. A Copy of the said letter of the Maharashtra Pollution Control Board letter dated 08th August, 2018 (signed dated 08th August, 2019) is hereto annexed and marked as EXHIBIT-"R". Thus, it is clear that the Respondent No.1 has not complied with the STP and other conditions as ordered by this Hon'ble Tribunal.
F. The Applicants state that there is likelihood that the domestic affluent is still directly discharged in to MCGM sewerline. Already, there are earlier Maharashtra Pollution Control Board report signed dated 18th March, 2013 relating to the Respondent No.1 discharging the domestic affluent directly in to MCGM Sewerline. A Copy of the said report dated 18th March, 2013 is hereto annexed and marked as EXHIBIT-"S".
G. Thus, the reply of the Respondent No.1 relating to the compliance of the impugned judgment is false, baseless and without any merits. Hence, the same be rejected and set aside.
Sr. Respondent No.l Applicants Reply to the
No. submission relating to the Respondent No.l said submission
NGT Order dated 8th April, relating to the NGT Order dated 8th
2015 April, 2015
4 Hon'ble Tribunal directed to The Respondent No.1 has not given the
Delete Nalla Portion from R.G. complete and exact reference of the said Area and after cleaning it to Impugned Judgement. The Applicants cover up it with mesh seek to rely upon in verbatim extract of the said Impugned Judgement as under:
,,...
(C) SEIAA, shall not grant further permission (EC), to remaining part of construction until all the conditions are found to have been satisfactorily complied with by the Project Proponent.18
Unless such Verification of the EC in Question is done it shall remain in abeyance to the extent of remaining part of construction, excluding construction, which is Already done. The SEIAA shall particularly ensure that proper STP facilities are made available to rehab buildings of the Appellants and that Nullah is cleared, as well as is covered with proper iron mesh to avoid dumping of MSW...."
Sr. Respondent No.l Applicants Reply the Respondent No No. submission relating to .l said submission relating to Present Status of Present Status of Compliance:
Compliance:
4 The PP has already cleared A. The Applicants state that the the nalla and also covered said submission of the Respondent with proper iron mesh to avoid No.1 is vehemently denied as wrong dumping of solid wastes as and incorrect. It is submitted that still per Directions given by the MSW is being dumped in the Nullah. Hon'ble Tribunal. Thereafter, And the same is not regularly cleared MCGM has constructed RCC by the Respondent No.1. slab on the said nalla. The photograph showing the B. Thus, the reply of the present status of nalla with Respondent No.1 relating to the RCC construction is enclosed compliance of the impugned judgment and marked as an Annexure is false, baseless and without any "VI." merits. Hence, the same be rejected and set aside.
"
"3.13.1 The Respondent No.1 is not getting OC because of the following reasons as under:
A. Municipal taxes are pending. Municipal taxes outstanding till the month of March, 2019 is Rs. 1,90,44,003/- (Rupees One Crore Ninety Lakhs Forty Four Thousand and Three only). A Copy of MCGM statement showing said outstanding Municipal taxes amount of Respondent No.1 is hereto annexed and marked as EXHIBIT-"X".The said outstanding amount must have increased till today's date.
B. Rents not paid to the tenants for last 3 to 4 years.
Because of non payment of rent to the tenants, the SRA has issued a stop work notice dated 29th January, 2019 to the Sale Buildings. A copy of a stop work notice dated 29th January, 2019 to the Sale Buildings is hereto annexed and marked as EXHIBIT-"Y".
C. In the Rehab Premises Compound wall is not constructed.
D. On approved plan, it is showed police station is situated on site but in actual location there is no police station situated instead there is an entrance for the residences 19 of Wing-E. In place of town duty office, the Respondent No.1 has constructed metre cabin. The SRA issued notice to the Respondent No.1 that to file say relating to non- construction of police station and town duty office as per approved plan. But till date, the Respondent No.1 has not filed any explanation/reply to the same. A Copy of said SRA letter dated 26thFebruary, 2020 is hereto annexed and marked as EXHIBIT-"Z".
E. LOI conditions are not yet fulfilled.
F. CFO NOC not obtained
G. Civil Aviation NOC not obtained
H. Tree authority NOC not obtained
I. Superintendent of Garden (SG) Remarks
J. Insecticide charged from Pest Control Office (PCO)
K. NOC for availability of Water Supply not obtained
L. Remarks for underlying Water Ducts, Water Main/Aqua
Duct/ Sewage Line etc.
M. ULC NOC not obtained
N. No Debris Management and no Vermiculture
O. The Respondent No.1 has not done the registration and
paid stamp duty with respect to Rehab Buildings. P. Rehab tenant Personal name Electricity metre is also not yet developed by the Respondent No.1.
3.13.3 Thus, the Respondent No.1 without complying with any of the above conditions for receiving the OC making false and baseless excuse that because of non-shifting of Shree Sai Baba Temple, he is not receiving OC. 3.13.4 The Applicants state that Maharashtra Pollution Control Board vide Notice dated 08th August, 2019 has stopped the Respondent No.1 construction activities. A relevant extract of the said Notice is as under:
"......
NOW THEREFORE, in exercise of the powers conferred upon me by the Board under 33(A) of the Water (Prevention & Control of Pollution) Act, 1974 & section 31(A) of Air (Prevention & Control of Pollution) Act, 1981, I, Regional Officer, Mumbai hereby direct you to stop your activities forthwith.
3.13.5 A Copy of the said Notice dated 08th August, 2019is hereto annexed and marked as EXHIBIT-"AA". It is pertinent to note that because of the Respondent No.1 knowingly and willingly non-compliance of the impugned Hon'ble NGT Judgement dated 10th April, 2019. Further, he has also violated the several provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981. Hence, the said authority has stopped their work.
3.13.6 The Applicants state that not just the Maharashtra Pollution Control board has taken the action against the Respondent No.1, but also the Slum Rehabilitation Authority has also issued stop work notice dated 29th January, 2019 to the Sale Buildings. A said Notice was issued against the Respondent No.1 because of the non payment of rent for the last 3 to 4 years to the Tenants. Till date, the stop work notice is enforceable. A copy of a said stop work notice dated 29th January, 2019 to the 20 Sale Buildings is already hereto annexed and marked as EXHIBIT-"Y".
3.13.7 Thus, the Respondent No.1 has falsely stated before this Hon'ble Tribunal that there is unnecessary delay for no fault of the Respondent No.1. From the perusal of the above mentioned facts, it is clear that because of the violation of laws and breach of various compliances by the Respondent No.1, there has been delay in the completion of said project. For which, the Respondent No.1 is wholly and solely responsible.
3.13.8 Thus, the reply of the Respondent No.1 is false, baseless and without any merits. Hence, the same be rejected and set aside.
3.14 With reference to Para No. 11 of the Affidavit of Respondent No.1, the contents of the same are vehemently denied as wrong and incorrect. The Applicants state that on 14th March, 2019, the Executive Engineer-III, SRA has conducted meeting with the Respondent No.1, Pandit SRA CHSL and the Applicants to discussed to regarding issue of said Shree Sai Baba Temple. In the said meeting, the Respondent No.1 shown the new place on the map where Shree Sai Baba Temple will be situated. Then, the Applicants herein requested the Respondent No.1 to get it approved on plan, to which he accepted the same. Further, it is was decided that the location of said temple will be prepared on plan and then get it approved by the Authorities. And then after completion of construction of temple, the Statue (Shree Sai Baba Murti) will be shifted to new temple as per Hindu rites and rituals.
3.14.1 Pursuant to above, on 9th May, 2019, Slum Rehabilitation Authority issued letter dated 9th May, 2019 requesting the Respondent No.1 to submit the final plan.
3.14.2 The relevant extract of the said letter dated9th May, 2019 is as under:
"...Kindly submit the final plan and your decision regarding the same within 7 days to this office..."
3.14.3 A Copy of the said SRA letter dated9th May, 2019alongwith English translation is hereto annexed and marked as EXHIBIT-
"BB".
3.14.4 Till date, the Respondent No.1 has neither submitted any reply nor approved plan regarding shifting of the said Shree Sai Baba Temple. The Respondent No.1 is making false submission and misguiding the Hon'ble Tribunal that the few of the disgruntle elements from the society do not want to shift temple to the alternate location and insisting on shifting of the said temple to R.G. area.
3.14.5 Further, the Respondent No.1 wants to shift temple with the help of Police and SRA, but when does the Applicants herein have objected/created hindrance to the shifting of the said temple. It clearly shows that the Respondent No.1 has out of 21 his own imagination submitted all the false submissions and tried to malign the image of the Applicants hereinbefore this Hon'ble Tribunal. It is pertinent to note that first the Respondent No.1 has given false explanation that O.C. is not received because of the non-shifting of the said temple and then in the next para he is putting blame on members for not receiving the O.C. 3.14.6 Further, the Respondent No.1 has made a false submission that he has not received a copy of the Joint Committee Inspection Report. But, however, the fact is that the Applicants has service him the said joint committee report vide letter which was received on dated 16th September, 2019. A Copy of the service of joint committee report is hereto annexed and marked as EXHIBIT-"BB-1".Thus, the reply of the Respondent No.1 is false, baseless and without any merits. Hence, the same be rejected and set aside.
3.15 With reference to Para No. 12 of the Affidavit of Respondent No.1, the contents of the same are vehemently denied as wrong and incorrect. The Applicants state that it is clear from the records and the facts stated above, that the Respondent No.1 has not taken any steps to comply with points reported in the Joint Committee Inspection Report. Thus, the reply of the Respondent No.1 is false, baseless and without any merits. Hence, the same be rejected and set aside.
3.16 With reference to Para No. 13 of the Affidavit of Respondent No.1, the contents of the same are vehemently denied as wrong and incorrect. The Applicants state that in Minutes of the 96th meeting of the SEIAA held on1st and 2nd March, 2016,the SEIAA decided to accord the approval of the project. Thereafter, the Respondent No.1 re-started his construction work. A Copy of the said Minutes of the 96th meeting of the SEIAA held on1st and 2nd March, 2016 is already hereto annexed and marked as EXHIBIT-"D". It is pertinent to note that the present Execution Application was filed after the period of three years from the date of said meetings. Further, on 215t June, 2016, the Executive Engineer, SRA has noted relating to C.0 as under:
"This C. C is further extended upto the full height of rehab wing- 'A' "
3.16.1 A Copy of the said noting dated on 21st June, 2016 is hereto annexed and marked as EXHIBIT-
3.16.2 The Site Supervisor of the Respondent No.1 has issued Work Completion Certificate dated 16th July, 2016 to the Executive Engineer, T Ward SRA. A Copy of said Work Completion Certificate is hereto annexed and marked as EXHIBIT-"F". Thus, it proves that the construction work of the Respondent No.1 was going on. 3.16.3 With reference to the submission that the Respondent No.1 tried its level best to expedite the work of the redevelopment of SRA Scheme, the Applicants state that the Hon'ble Tribunal has passed Judgement dated 8th April, 2015 22 for compliance against the Respondent No.1. The relevant extract of the said judgement is as under:
(A) We partly allow the Appeal and direct that: (A) The EC proposed is remitted to SEIAA for reconsideration to the extent of fixation of parking spaces and the greenbelt as well as R.G. area. The impugned EC be remitted to SEIAA for reconsideration and till then it shall be deemed as inoperative. The Respondent No.1 shall not carry out any construction work for the period of three (3) months in respect of present buildings till the issue regarding above three (3) aspects, are decided by SEIAA, for the purpose of which the impugned EC is remitted to the Authority for reconsideration. The SEIAA shall distribute the parking slots as per NBC Norms first to the Appellant's HGCS and later on to Pandit HGCS, as per the availability of such parking spaces for allotment.
(B) SEIAA, also shall reconsider re-alignment of R.G. area and if any space is not available then one of the vacant flat from available accommodation from sale building, shall be converted to R.G. facilities, providing facilities like Community Hall, Table Tennis, Library, Gym etc. which can be accommodated in the area available.
(C) SEIAA, shall not grant further permission (EC), to remaining part of construction until all the conditions.
....."
3.16.4 If the Respondent No.1 would have been concerned to complete the project expediously then he would have compiledwith the said Impugned Judgement dated 8th April, 2015 in its letter and spirit. After passing of more than 3 years, the Respondent No.lstill failed to complied with the said Judgement, so, the Applicants filed the present Execution Application. In the present Application, the Hon'ble Tribunal has passed order dated 10th April, 2019 directing the joint committee may ascertain the facts and furnish a report relating to the status of compliance of the said Impugned Judgement. The relevant extract of the said order dated 10th April, 2019 is as under:
"........
To consider the matter further, we are of the opinion that status of compliance be ascertained from a joint Committee comprising the Maharashtra State Pollution Control Board (MSPCB) and Member Secretary, State Level Impact Assessment Authority. The joint Committee may ascertain the facts and furnish a report within two months ...."
3.16.5 A Copy of said Order dated 10th April, 2019 is hereto annexed and marked as EXHIBIT-"CC".
3.16.7 Pursuant to the said Order dated 10th April, 2019, the Joint Committee filed report dated 19th July, 2019 stating non-
23compliance of the Impugned Judgement dated 8th April, 2015. A Copy of the said report dated 19th July, 2019is already on record of this Hon'ble Tribunal and also already hereto annexed and marked as EXHIBIT-"I".
3.16.6 Thus, from the facts stated above, the Respondent No.1 is only to blame for the delay in the work of the redevelopment of SRA scheme.
3.16.7 Further, because of several incriminating activities and non-
compliance of directions by the Developer, the project is being delayed. Following are some of the incriminating activities which amounted to delay in the project:
i. Municipal taxes are pending. Municipal taxes outstanding till the month of March, 2019 is Rs. 1,90,44,003/-(Rupees One Crore Ninety Lakhs Forty Four Thousand and Three only). A Copy of MCGM statement showing outstanding of Respondent No.1 is already hereto annexed and marked as EXHIBIT-"X".
ii. Rents not paid to the tenants for last 3 to 4 years.
Because of non payment of rent to the tenants, the SRA has issued a stop work notice dated 29th January, 2019 to the Sale Buildings. A copy of a stop work notice dated 29th January, 2019 to the Sale Buildings is already hereto annexed and marked as EXHIBIT-"Y".Despite, there have been stop work notice, the Respondent No.1 was still continuing with the construction of the project. Then, the SRA issued notice dated 7th January, 2020 to the Mulund Police Station that if the work is continued then to take an appropriate action against the Respondent No.1. A Copy of the said SRA Notice dated 7th January, 2020to the Mulund Police Station is hereto annexed and marked as EXHIBIT-"DD". Thus, the Respondent No.1 is not only violating the Hon'ble Tribunal orders but also the said Authorities directions iii. Even though the occupancy certificate is not issued for Rehab A and E Wing, the Respondent No.1 allowed the tenements and the outsider to reside in the said Wings. Pursuant to the same, the Slum Rehabilitation Authorities has issued letter dated 28th February 2020 to the Registrar, Cooperative Housing, SRA stating to take action against the Respondent No. 1 under MRTP Act. A Copy of the said letter dated 28th February 2020 alongwith English Translation is hereto annexed and marked as EXHIBIT-"EE". In respect to above subject, already one letter dated 07th March, 2019 was issued by SRA, Executive Engineer to the Respondent No.1, Architect and Society stating (from English translation) as under:
...We have received the above subject letter issued by Dy. Chief Fire Brigade Officer (Zone-6) Mumbai Fire Brigade Office and they have instructed to initiate proceedings on the building which is occupied without obtaining Final Occupancy Certificate.24
It is found that public is staying in Shree Pandit CHS in the Rehabilitation Scheme Building without obtaining Final Occupancy Certificate. Said fact is very serious and in future if any incident happened then you will be held fully responsible for the same...
...proper proceedings will be initiated against you as per SRA rules. Kindly take note of it......"
A Copy of the said letter dated 07th March, 2019 issued by SRA, Executive Engineer to the Respondent No.1, Architect and Society is hereto annexed and marked as EXHIBIT-"FF".
iv. On 04th January, 2019, the Assistant Engineer, T Ward, Slum Rehabilitation Authority issued letter dated 04thJanuary, 2019 to the Respondent No.1, M/s Arihant Realtors and Architect Ketan S. Musale stating that the Municipal Corporation has informed that due to nonpayment of pending water bills they had disconnected the water supply. The relevant extract of the said letter from the English translation is as under:
"Due to non-payment of pending water bill the concerned Municipal Corporation has instructed to disconnect the water connection of rehabilitation buildings and close the water supply. Hence kindly initiate proper proceedings for payment of pending bill amount and kindly inform the same to this Office.
3.16.8 A Copy of the said letter dated 04thJanuary, 2019 alongwith English translation is hereto annexed and marked as EXHIBIT-
"GG"..
3.16.9 On 13th January, 2020, the Applicants issued letter dated 13thJanuary, 2020 to the Assistant Engineer, MCGM Hydraulic Engineer Department request to reconnect the supply of water. A copy of the said letter is hereto annexed and marked as EXHIBIT-"HH". Despite the issuance of the said letter to the Respondent No. 2 requesting the restoration of the connection of the water supply, he failed to do so, hence the Writ Petition was filed seeking necessary directions from the Hon'ble Bombay High Court in the interest of the Justice. The Hon'ble Bombay High Court has passed an Order dated 20th January, 2020 stating that Respondent No.1 to remain present before the Hon'ble Court, failing which the Court will pass order to ensure the presence of the Respondent No.1 in the Court including issuance of arrest warrant. The relevant extract of the same:
".......
The Developer / Respondent No.6 is directed to remain present before this Court on 22nd January, 2020 at 3.00 p.m. failing which this Court shall pass necessary orders to ensure the presence of the Developer/Respondent No.6 in the Court including issuance of arrest warrant against its partners ........"25
3.16.10 A Copy of said Order dated 20th January, 2020 is hereto annexed and marked as EXHIBIT-"II".
3.16.11 The said Writ Petition has been disposed by an Order dated 22nd January, 2020, whereby the Hon'ble Bombay High Court observed that the Respondent No.1, admittedly, failed to pay the water charges to the Corporation in respect of the water supplied to transit camps occupied by 128 tenants/eligible Slum Dwellers. Further, the Hon'ble Court observed that the conduct of the Respondent No.l who has deprived the eligible Slum Dwellers of the basic amenity of water supply is absolutely unfair and inhuman and strongly deprecated. The relevant extract of the said Order dated 22nd January, 2020 is as under:
".......
The Developer, admittedly, failed to pay the water charges to the Corporation in respect of the water supplied to transit camps occupied by 128 tenants/eligible Slum Dwellers. In view thereof, the slum dwellers have been deprived of water supply...
The conduct of the Developer / Respondent No.6 who has deprived the eligible Slum Dwellers of the basic amenity of water supply, since 23rd December, 2019, is absolutely unfair and inhuman and strongly deprecated. The Developer/Respondent No.6 undertakes to pay the differential amount to the Mumbai Municipal Corporation, in cash, by 12:00 noon on 23rd January, 2020.
4. As far as the other grievance of the Petitioners are concerned, they are granted liberty to take out appropriate proceedings, including fling of Writ Petition seeking appropriate reliefs.
3.16.12 A Copy of said Order dated 22nd January, 2020 is hereto annexed and marked as EXHIBIT-"B".
3.16.13 The Applicant states that the Respondent No.1 intention behind the non-payment of the water bill was that the tenants in temporary transit camp shall to shift to the Rehab building due to no water supply. Because of mischief of the Respondent No.1 relating to the nonpayment of said water bill, children, senior citizen, woman and man got harassed and suffered for one month. Their life became miserable and survival with no water has caused tremendous heath issues, mental and physical suffering. A Copy of photos relating to the same is hereto annexed and marked as EXHIBIT-"KK".
3.16.14. The Respondent No.1 sold commercial sale building premises and gained money out of it despite there was not even the part OC/OC. A Copy of the RTI reply dated 24th February, 2020 relating to the same is hereto annexed and marked as EXHIBIT-"LL". A Copy of the photos relating to the operation of the said shops is hereto annexed and marked as EXHIBIT-
"MM". Thus, there is a clear cut violation of the SRA law because he has sold and rented some of the commercial shops in sale without the OC. In said illegal commercial premises there is a Bharat Cooperative Bank, medical store, D-mart, Adhaar foods, 26 hardware store and many more. A Copy of photos of shops is already hereto annexed and marked as EXHIBIT-"MM".
3.16.15 Further, it is pertinent to note that there is no water tank for A-Wing.In future, when the tenement will shift to the said Wing, then there will be a serious water issue. A Copy of the photos showing there is no water tank for Wing -A is hereto annexed and marked as EXHIBIT-"NN".
3.16.16. Further, the Applicants state that they are submitting layout plan dated 11hMarch, 2014. A Copy of the said layout plan dated 11th March, 2014 is hereto annexed and marked as EXHIBIT-"O0".
3.16.17 In view of the above facts, it is clear that from the date of Respondent No.1 appointment in the year 2009, the Respondent No.1 is continuously committing violation of laws. Despite, the several orders and directions passed by this Hon'ble Tribunal and the concerned authorities; the Respondent No.1 is not willing to comply with the same and abide by the rule of the law. Thus, there must be serious action taken against the Respondent No.1."
10. We have heard learned counsel for the parties and perused the records.
Consideration of the rival versions and directions
11. From the above, it is seen that in pursuance of order of the Tribunal dated 8.4.2015, SEIAA has still not taken any decision. Thus, the status of EC remains that of "deemed inoperative". The PP stands restrained from carrying out any further work till the issue is decided by SEIAA in terms of order of this Tribunal. If the PP has done any work in the project after order of this Tribunal, the same is illegal. The joint Committee constituted by this Tribunal, the MPCB as well as the appellants have pointed out continuing non compliance.
12. Only submission made on behalf of the PP is that issue of removing temple in the complex is pending consideration before the Bombay High Court in W.P (L) No. 15892 of 2021, Latika M Salekar & Ors v. State of Maharashtra & Ors. In the said matter, order dated 21.12.2021 has been passed on the subject of temple. The order of the High Court has not in 27 any manner interfered with the order of this Tribunal nor permitted the PP to proceed without valid EC.
13. Thus, the stand of the PP that it has complied with the order of this Tribunal cannot be accepted. The EC granted by SEIAA was declared to be deemed inoperative. It is clear that neither parking space nor recreational space has been provided nor sewage is being scientifically treated. It is clear that direction for compensation to a person surrendering his right of parking does not dispense with the need for providing parking.
14. The State PCB and SEIAA, as statutory regulators, may take measures in terms of assessment and recovery of compensation for past violations, using coercive powers such as attaching the property and black-listing the PP. With regard to prayer for prosecution under Section 26 of the NGT Act, remedy has to be taken under Section 30 of the NGT Act, before the jurisdictional Magistrate.
The Execution Application is disposed of.
A copy of this order be forwarded to the SEIAA Maharashtra and the Maharashtra State PCB for compliance by e-mail.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM 28 Dr. Vijay Kulkarni, EM April 18, 2022 Execution Application No. 07/2019(WZ) IN Appeal No. 77/2013 AB 29