National Green Tribunal
Ajay Jayvantrao Bhosale vs Union Of India Through Secretary Moef & ... on 3 April, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Appeal No. 26/2020 (WZ)
IN THE MATTER OF :
1. Mr. Ajay Jayvantrao Bhosale
Age: Adult, Occupation: Self employed,
R/o-25B, Cycle Society, Nana Peth,
Near Y. M. C. Club, Pune-411011,
Mob. No. 9673902727
E-mail: [email protected]
.....Appellant
Versus
1. Union of India,
Through Secretary,
Ministry of Environment and Forest,
Paryavaran Bhawan, CGO complex,
Lodhi Road, New Delhi-110001
Email: [email protected]
2. Chief Secretary,
Government of Maharashtra,
Annex Building, Mantralaya, Mumbai 400032
E-mail: [email protected]
3. The Principle Secretary, Environment Department,
Government of Maharashtra,
Room No. 217, 2nd Floor, Annex Building
Mantralaya Mumbai-400032, Maharashtra
Email Address: psec. [email protected]
4. State Level Environment Impact Assessment Authority-
Maharashtra(SEIAA)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai-400032, Maharashtra
Email: [email protected]
5. State Expert Appraisal Committee (III)- Maharashtra (SEAC-III)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai-40032, Maharashtra
6. Mr. Anil U. Diggikar
Principle Secretary of DoE and Member Secretary- SEIAA,
Page 1 of 25
Government of Maharashtra,
Room No. 217, 2nd Floor, Annex building,
Madam Kama Road, Mantralaya,
Mumbai-400032, Maharashtra
Email: [email protected]
7. Maharashtra Pollution Control Board,
Through Member Secretary,
Kalptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion(E)
Mumbai-400022, Maharashtra
Email: [email protected]
8. Municipal Commissioner-PCMC
Pimpri-chinchwad Municipal Corporation,
PCMC Building, Old Mumbai- Pune Highway,
Pimpri, Pune-411018
Email: [email protected]
9. City Engineer- PCMC
Pimpri- Chinchwad Municipal Corporation,
PCMC Building, Old Mumbai- Pune Highway,
Pimpri, Pune-411018,
Email: [email protected]
10. Collector of Pune,
As Collector and President of District Environment,
Protection Committee-Pune,
Collector Office, Bund Garden,
Pune-411001
Email: [email protected]
11. M/s Bramha Leisures Private Limited,
A limited Company registered under Indian Company
Act-1952 with (CIN) U 55101PN2009PTC134096,
Having Registered Office At-"Bramha House", 250/251
M. G. Road, Camp Pune-411001.
Emal: [email protected]
Through its Directors
11A Surendrakumar Bramhadutta Agrawal
11B Vishal Srendrakumar Agrawal
....Respondent(s)
Counsel for Appellant(s):
Mr. Tanaji Gambhire, Advocate
Counsel for Respondent(s):
Ms. Manasi Joshi, Advocate for R-1 /MoEF&CC & R-7 MPCB
Mr. Aniruddha Kulkarni, Standing Advocate for R-4/SEIAA & R-5 /SEAC-III
Mr. S. Swaminathan, Advocate for R- 8 & 9/PCMC
Mr. Saket Mone along with Mr. Abhishek Salian, Advocate for R-11/PP
Page 2 of 25
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 23.03.2023
Pronounced on : 03.04.2023
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JUDGMENT
1. This Appeal has been preferred for quashing Environmental Clearance dated 18.02.2020 granted by the Respondent No.4 /SEIAA Maharashtra to Respondent No.11-M/s Bramha Lesure‟s Private Limited/ Project Proponent; also it is prayed that the direction be issued to Respondent No.2/ Chief Secretary Government of Maharashtra to take action against the Respondent No.6/Anil U. Diggikar, Principal Secretary and Member Secretary SEIAA for indulging into granting Environmental Clearance (EC) illegally.
2. The brief facts of this cases as submitted by the Appellant are as follows:
The Respondent No.11/Project Proponent has procured ex-post facto Environmental Clearance dated 18.02.2020 to regularize illegal commercial buildings project „Bramha Uzuri‟ situated at Survey No. 209/A/2 CTS No. 4702, at Pimpri Chowk Taluka- Haveli, District- Pune. The Appellant had earlier filed Original Application No. 63/2019 against the Project Proponent (PP) for not obtaining Environmental Clearance and for violation of terms and conditions of Consent to Establish dated 10.03.2015. This Tribunal had appointed Joint Committee of State Level Environment Impact Assessment Authority-Maharashtra (SEIAA) and Maharashtra Pollution Control Board (MPCB) vide order dated 22.10.2019 which submitted its report dated 07.01.2020 disclosing therein that the Project Proponent (PP) had carried out construction of 13806.52sq.m without obtaining prior EC, for which the National Green Page 3 of 25 Tribunal(NGT) issued show cause notice to Project Proponent for stoppage of further construction activity and also notices to all other Respondent vide order dated 05.02.2020. A notice was served upon all the Respondents on or before 17.02.2020, but in spite of service of notice and having advance knowledge of ongoing proceedings of Original Application No. 63/2019, Respondent No.4/ SEIAA, Maharashtra and Respondent No.6- Mr. Anil U. Diggikar in personal capacity granted EC on 18.02.2020. It is further submitted that the as per the EIA Notification 2006 dated 14.09.2006, it is mandatory on the part of the Project Proponent (PP) to obtain the prior Environmental Clearance (EC) from SEIAA and Consent to Establish from MPCB before commencement of any construction work, yet the Project Proponent (PP) has started and completed substantial part of the project, details of which are given below:
Description EC Permission Completed Total Proposal Construction as per Joint Committee Report prior to EC Built -Up Area 0 13806.52 54600 (M2)
13. Note on the initiated work (if Work initiated below 20000 sq. M. Applicable) Withdrawal of Violation Letter from Government of Maharashtra vide letter No. SEAC-2013/ CR-449 / TC-2DT. 10.03.2015 The concept of ex-post facto Environmental Clearance (EC) is not permissible under Environmental jurisprudence in our country. The EC Page 4 of 25 in question is ex-post facto. Respondent No.4/SEIAA had full knowledge of the fact that the construction of 13806.52 sq.m. against the total potential BUA of 54600M2 had already been carried out without Environmental Clearance (EC) and that matter was subjudice before this Tribunal, yet it proceeded to grant Environmental Clearance (EC) ex post facto. If the EC is allowed ex-post facto, any Project Proponent (PP) would complete its project by causing irreversible damages to the Environment and thereafter would seek Environment Clearance, ex-post facto, making the provisions of EIA Notification infructuous, which would defeat the very purpose of Environmental Protection Law. The SEIAA had failed to take any action against the Project Proponent for violation of EIA Notification 2006. SEIAA as well as Expert Committee- SEAC is equally liable for allowing the illegal structures of expansion and granting Environmental Clearance (EC) to the project in gross violation of EIA Notification, 2006. Reliance is placed on several judgments of Hon‟ble Apex Court such as Common Cause vs. Union of India (2017) 9 SCC 499 to 578, Civil Appeal No. 10854/2016. The Project Proponent (PP) has carried out construction of residential as well as commercial structures in industrial zone reserved in development plan and undertook excavation activity in 2012 and construction activity in December-2017. The Project Proponent (PP) has not preserved the top layer of the fertile soil nor did it conduct ground water test. Under ground water was used from bore well at project site without appropriate clearance. Hence, the above prayers have been made.
3. This matter was first considered on 13.07.2020 with Original Application No. 63/2019, Original Application No. 64/2019 and Original Application No. 65/2019 mentioning therein that all said Applications were connected matters arising out of the same cause of action and the next date was fixed to be 29.09.2020. On the next date Original Application No. 63/2019 along with the present Appeal were heard together and Page 5 of 25 direction was given for issuance of notices to the Respondents 1,3,4,5,7,8,9,10 and 11 as other respondents had already appeared. Thereafter, on the next date 10.12.2021, no material order was passed. On 10.12.2021, for the first time, this Bench had taken up this matter for consideration and recorded that the pleadings were not complete in this case and directed the Respondents to file reply affidavits and posted the matter for final hearing on 23.03.2023. This matter was finally heard on 23.03.2023.
4. The stand of Respondent No.11/Project Proponent (PP)is as follows:
Denying the allegation made by the Appellant, it is submitted that the Appellant has no locus standi being not an aggrieved party. Appellant resides about 10 Kilometres away from the location of the project, therefore he, in no way could be affected by the execution of the said project. For instant project, which has been classified as the category 8
(a) B(2) under EIA Notification 2006, as per said provision the same is exempted from scoping and public consultation. Environmental Clearance (EC) was required to be obtained from SEIAA. All the necessary steps were scrupulously followed by the Respondent No.3/SEIAA as well as other authorities after taking into consideration all relevant aspects concerning the environment and found this case to be a fit one to grant of Environmental Clearance (EC). The object of the EIA process is to ensure that all the environmental aspects were examined prior to granting EC and that environment as well as development concerns were appropriately balanced on the basis of accurate information and following a detailed and exhaustive procedure laid down for the purpose. When the experts apply their mind and follow the detailed procedure as mandated by law before granting Environmental Clearance (EC), the same would be treated to be valid unless there are allegations of procedural impropriety, non-application of mind or malafide. The Appellant should invoke its Appellate jurisdiction Page 6 of 25 under Section 16 (h), only in those cases where the Appellant proves or alleges that an Environment Clearance (EC) is granted arbitrarily, or capriciously or perversely or where the authority has ignored settled principles of law or procedure, but none of these grounds stands fulfilled here. This Tribunal ought not to rely on the material and information provided by the Appellant in order to reach different conclusion from the one reached by the Authority, when the Authority had considered them following due process. In view of the above, Appeal deserves to be dismissed at the very threshold.
Further, it is mentioned that the Commencement Certificate (CC) was obtained on 28th March 2008, for a Total Built up Area (BUA) of 17595 sq. m (FSI 8535.48 + Non FSI 9059.56 sq.m), in furtherance of which excavation activity was commenced. As the total permissible built up area in the Commencement Certificate (CC) was below the threshold limit of 20000 sq. m., the Answering Respondent did not apply for grant of prior EC. Thereafter, on 9th April, 2013, Answering Respondent obtained a Commencement Certificate (CC) for construction of 21368.3 sq. m. (FSI 9285.51 sq. m + Non FSI 12082.77 sq. m).On 7th September, 2013, the Answering Respondent applied for EC in order to commence construction. On 24th March, 2014, the Hon‟ble Bombay High Court in Writ Petition No. (L) 655 of 2014, Glomore Construction and Ors. Vs. the Union of India & ors ruled that EC was not required to be obtained by the Project Proponent as long as the Project Proponent had not carried out construction beyond the threshold limit of 20,000 sq. m. On 4th July, 2014, the Answering Respondents had applied for Consent to Establish. In meetings held by the SEAC between 15th to 18th July 2014, the Answering Respondent‟s proposal was considered for grant of EC by the SEAC, wherein the proposal was declared as a violation case and show cause notice was issued to the Answering Respondent under Section 5 of the Environment Protection Act, 1986 (EP Act) read with EIA Notification Page 7 of 25 2006 mentioning therein that the Answering Respondent had violated the environmental mandate by commencing construction without prior EC. A detailed reply was submitted by the Answering Respondent on 28th September, 2014. Thereafter on 10th March, 2015, the Environment Department, Government of Maharashtra withdrew the show cause notice and declared that the Answering Respondent‟s proposal would not fall in violation category. Such conclusion was arrived at after carefully considering and verifying the reply. The basis for withdrawal of the said notice was that Answering Respondent had commenced excavation/ construction activity in furtherance of Commencement Certificate (CC), whereby permission was granted for construction upto 17595 sq. m., same being below 20,000 sq. m., which did not require prior EC to be obtained. On 10th March 2015, the MPCB granted Consent to Establish (CTE) for five (5) years or up to commissioning of the proposed hotel. On 21st April, 2015, a circular was issued by Environmental Department, Government of Maharashtra categorically observing that EC would not be required to carry out construction as long as the actual construction remained below threshold limit on 20,000 sq. m, which has not been challenged and is still subsisting. On 30th September, 2015, the answering Respondent had obtained another Commencement Certificate for carrying out construction upto 22010.3 sq. m. (FSI 9260.12 sq. m. + Non FSI 12750.16 sq. m). On 30th June, 2016, the Answering Respondent had applied for EC with respect to the said project because of proposed construction exceeding threshold limit of 20,000 sq. m. On 24th November, 2016, the answering Respondent had obtained commencement certificate for carrying out construction upto 21213.9 sq. m (FSI 8835.93 sq. m. + Non FSI 12377.95 sq. m. ). In or around the year 2016 to 2017, the answering Respondent carried out construction of the present project relying on the judgment of Hon‟ble Bombay High Court in Writ Petition No. (L) 655 of 2014, Glomore Construction and Page 8 of 25 Ors. Vs. the Union of India & ors and circular dated 21st April, 2015 and has not, till date exceeded the construction beyond the threshold limit of 20,000 sq. m. On 28th April, 2017, the answering Respondent had applied for Consent to Establish which was granted on 12th November, 2017 for a period of five years pursuant to which construction is being carried out upto 51358.46 sq. m. On 31st March, 2018, the answering Respondent had obtained commencement certificate for carrying out construction upto 19991.4 sq.m (FSI 6998.59 sq. m. + Non FSI 12992.76 sq. m.). On 4th October, 2018, a Layout Plan was sanctioned by PCMC/Respondent No.8-Municipal Commissioner and Respondent No.9-City Engineer. On 5th December, 2018, in it‟s 77th meeting, the SEAC considered the Answering Respondent‟s application for grant of EC which was deferred because of non-presence of Answering Respondent. In the meeting of SEAC dated 24th April, 2019, the proposal for EC was considered and SEAC appraised the proposal of the answering Respondent and certain queries were raised. On 19th May 2019, the Appellant made a complaint with various authorities including the MPCB raising identical issues which are sought to be raised in the present Appeal as well as were raised in Original Application No. 63 of 2019. On 22nd May, 2019, MPCB conducted site visit of the said project. Thereafter, on 10th June, 2019, another site visit was conducted by the MPCB. On 25th July, 2019, the Environment Department, Government of Maharashtra, issued a show cause notice to the answering Respondent and called upon to show why coercive action be not initiated against it in furtherance of the complaint of the Appellant. In the meeting of SEAC held on 26th July, 2019 Answering Respondent‟s proposal was considered and it was observed that the Environment Department, Government of Maharashtra had issued the answering Respondent a show cause notice. Therefore, SEAC postponed the hearing for 26th July, 2019 and kept the proposal of the answering Respondent in abeyance till Page 9 of 25 any decision was taken on the show cause notice. On 29th June, 2019, the MPCB issued a show cause notice to the answering respondent as to why legal action be not initiated under the Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention & Control of Pollution) Act, 1981 and Hazardous & Waste Rules, 2016, which was responded by the Answering Respondent on 29th June 2019, 16th July, 2019 and 20th August 2019. The Responses are contained in sub para a) to d) of paragraph 6.31 of the Affidavit of Answering Respondent/ Project Proponent, which are as follows:
a) "The Respondent No.11 has not violated any provisions of the Environment law.
b) The Respondent No.11 commenced construction/ excavation in pursuance of the commencement certificate issued in the year 2008. Wherein the permissible built up area was 17595 sq. m. which is much below the threshold limit, therefore, the Respondent No.11 was not required to obtain EC prior to commencing construction.
c) The Respondent No.11 subsequently changed the plans with regards the said property and obtained various commencement certificate. As the construction exceeded the threshold limit to 20,000 m. after amendment in the construction plan, the Respondent No.11 made an application for grant of EC in the year 2013. However, such EC was not granted.
d) The Respondent No.11 relying on the circular issued by the Environment Department, State of Maharashtra on 21st April 2015 commenced construction. It is worth mentioning at this Juncture that till date the Respondent No.11 has not exceeds the threshold limit of 20,000 sq. m"
The main thrust in the response has been laid on the fact that the Project Proponent did not exceed construction beyond 20,000 sq. m., hence did not require prior EC. on 16th November, 2019, the Environment Department withdrew the proposed directions dated 15th June, 2019, issued under Section 5 of the Environment Protection Act, 1986 (EP Act) read with the EIA Notification 2006 after due consideration and verification of the submission of the Project Proponent. The reasons Page 10 of 25 why the notice was withdrawn have been recorded in sub para a) to d) of Paragraph 6.33 of the Affidavit of Answering Respondent/ Project Proponent, which are as follows:
a) The Respondent No.11 commenced construction as per commencement certificate issued in the year 2008.
b) As the plans were revised and the total built up area exceeds 20,000 sq. m, the Respondent No.11 applied for grant of EC on 7th September, 2013 and 30 June, 2016.
c) Relying on the circular issued by Environment Department, Government of Maharashtra dated 21st April, 2015, the Respondent No.11 has carried out construction upto 8467.69 sq. m.
d) It is clear that construction is below 20,000 sq. Mtrs, and thus, is excluded from getting environment clearance as per provision of the EIA notification. Further, if the Respondent No.11 exceeds construction over 20,000 sq. m, it is required to obtain an EC.
The main thrust in withdrawing the notice was on the fact that the threshold level of 20,000 sq.m was to exceed pursuant to the revised plan/commencement certificate dated 9th April, 2013, therefore, the answering Respondent had applied for EC on 7th September, 2013 and 30th June, 2016 but till then, construction was below 20,000 sq. m. The SEIAA in its meeting held on 10th December, 2019 again considered the proposal of answering Respondent and took notice of the fact that the notice issued to the Answering Respondent under Section 5 of the Environment Protection Act, 1986 (EP Act) had been withdrawn on 16th November, 2019 and that SEAC also observed that the answering Respondent had complied with all the points raised in 91st meeting, therefore, it recommended the grant of EC to the answering Respondent. After 6th February 2020, SEIAA granted EC to the answering respondent subject to complying with certain conditions, pursuant to the same on 18th February, 2020, the final grant of EC was made in favour of the answering Respondent which has been impugned herein. Having cited the above course of proceedings, it is mentioned that the entire Page 11 of 25 procedure has been followed in accordance with law. Therefore, the appeal deserves to be rejected.
5. The stand of Respondent No.4/SEIAA is as follows:
Through it‟s affidavit dated 21.02.2023 at page No. 1053 to 1059 of the paper book, the facts narrated by it are almost identical to the facts which have already been mentioned by us above in the affidavit of the Project Proponent. We find it to have been said by the SEIAA that in its 99th Meeting held on 10.12.2019, it was noted that the earlier issued show cause notice under Section 5 of the Environment (Protection) Act, 1986 had been withdrawn by the Environment Department vide letter dated 16.11.2019 and that all issues relating to the Environment including air, water, land, soil, ecology, biodiversity and social aspects were examined and after being satisfied in regard to the fact that the Project Proponent had satisfactorily complied all the points raised in the 91stMeeting of the SEAC-III, recommendation was made to it by SEAC for grant of EC. The said recommendation was considered by the SEIAA in its 186th meeting dated 06.02.2020 which included conditions that the Project Proponent would ensure that the CER (Corporate Environmental Responsibility) plan is got approved from Municipal Commissioner/ District Collector and Standard EC conditions would be complied with by the Project Proponent as mentioned in Office Memorandum issued by the MOEF&CC dated 04.01.2019, and accordingly it granted EC in its meeting held on 06.02.2019.
6. The stand of Respondent No.7/MPCB is as follows:
The Project Proponent had obtained first consent to Establish on 10.03.2015 for TPA-9337.66 sq. m. & BUA 36611.49 sq. m subject to certain terms and conditions stipulated therein, where-in Bank Guarantees of Rs. 10 lakh & Rs. 5.0 lakh & Rs. 2.0 Lakh were to be furnished but the Bank guarantee demanded had not been submitted.
The answering Respondent granted revised Consent to Establish to Page 12 of 25 Project Proponent on 12.10.2017 for Total Built up Area (BUA) 51358.46 sq. m. including utilities and services as per Commencement Certificate issued by Local Bodies. It is further submitted that the Project Proponent submitted Bank Guarantee of Rs. 10 Lakh as per Consent Condition. The said Bank Guarantee is valid up to 11.10.2022. The answering Respondent has granted amendment in Consent to Establish for construction of Commercial development Project on 13.11.2020 which is valid up to 31.10.2022, which is granted for Total Built up Area 5466789 sq.m. as per the Environmental Clearance dated 18.02.2020.
7. We have heard the learned counsel for the parties and perused the record.
8. From the side of the Appellant following arguments have been made. There is no provision for ex-post facto EC in EIA Notification 2006, therefore, the Environmental Clearance (EC) in question deserves to be set aside. Thereafter, the appellant drew our attention to Page No. 934 of the paper book which gives chronology in respect of the Environmental Clearance (EC), Consent to Establish and Consent to Operate. Thereafter, he drew our attention to Page No. 949 of the paper book which shows that initially commencement certificate was issued to the Project Proponent on 28.03.2008 for the Total Built up Area (BUA) 17995.00 sq. m. for which no Environmental Clearance (EC) was required. On 09.04.2013, the Project Proponent enhanced the Total Built up Area to 21368.30sq.m.,thereafter, the Project Proponent had applied for Environmental Clearance (EC) on 09.05.2013 because the Total Built up Area (BUA) of construction exceeded threshold limit of 20,000 sq. m. Subsequent Commencement Certificates dated 30.09.2015, 24.11.2016, 31.03.2018, 04.10.2018, 16.05.2019 and 08.01.2020 have been shown to have been granted for different Total Built up Areas (BUA) with the conditions imposed while granting these commencement certificate, that EC would be obtained prior to initiating Page 13 of 25 the construction beyond the 20,000 sq. m. Attention is also drawn by the learned counsel for the Appellant to Page No. 950 of the paper book which contains Maharashtra Pollution Control Board‟s (MPCB) consents and conditions for obtaining Environmental Clearance, where-in it is recorded that Consent to Establish granted on 10.03.2015 for Total Built up Area (BUA) 36611.49 sq. m., stipulates consent condition No.12 mandating obtaining prior Environmental Clearance. Similarly, Consent to Establish granted on 12.10.2017 for Total Built up Area 51358.46 sq. m. stipulates condition No.12 related to the same that is the Project Proponent would obtain prior Environmental Clearance (EC). The main thrust of the Appellant‟s argument appeared to be that when the Project Proponent had in mind the larger construction to be made i.e. beyond the 20,000 sq. m., in that condition he was required to obtain prior Environmental Clearance even if construction had not exceeded 20,000 sq. m. In view of this it was emphasized by him that the impugned EC which has been granted, should be treated to have been granted ex-post facto. There is no provision for ex post facto Environmental Clearance, therefore the construction made by the Project proponent prior to obtaining EC needs to be treated to have been made in violation and for that Environmental Compensation should be assessed / levied from it.
9. On the other hand, from the side of the Respondent No.11/ Project Proponent mainly it has been hammered that the judgment of Hon‟ble Bombay High Court in Writ Petition No. (L) 655 of 2014, Glomore Construction and Ors. Vs. the Union of India & ors. says that there was no requirement for prior Environmental Clearance (EC) to be obtained for the present project as long as the Project Proponent did not exceed actual construction beyond 20,000 sq. m. and he has also placed reliance on judgment of Hon‟ble Bombay High court in Writ Petition Lodging No. 470 of 2013, M/s Saumya Buildcon Pvt. Ltd. Vs. Union of India &Ors. delivered on 6th March, 2013, where-in emphasis has been Page 14 of 25 laid on Para- 17 which is quoted herein-below for the sake of convenience :
"17. We do, however, find some substance in the last submission made by the learned counsel for the petitioner that even if the petitioner is required to obtain CRZ clearance from MCZMA again on the basis that the built up area of the project will exceed 20,000 sq. m., the petitioner is entitled to get the same reliefs which this court has been granting in case of many other parties where similar prayer was made. In Writ Petition No. 1916 of 2012 (Vardhman Developers Limited Vs. Union of India &Ors.) and Writ Petition No. 2809 of 2012 (Nahur Vivekanad Co-operative Housing Society Ltd. &Anr. Vs. Union of India &Ors.). We have rejected a similar contention urged on behalf of the respondent authorities that when the project proponent cannot undertake construction project for more than 20,000 sq. m of built up area without obtaining prior environmental clearance, the project proponent cannot be allowed to commence the construction within the limits of 20,000 sq. m of built up area without obtaining prior environmental clearance. This court has held that when clearance are required only for projects with built up area exceeding 20,000 sq. meters, redevelopment projects for residential buildings should not be unnecessarily delayed even to the extent of construction upto 20,000 sq. meters when the developer is ready to give undertaking not to exceed the construction beyond 20,000 sq. meters without first obtaining environmental clearance. This court has noted that the Authorities take considerable time for taking a decision on the application for environmental clearance or for CRZ clearance. In the meantime the redevelopment projects are being delayed. This court has granting relief in such cases on the basis that even if ultimately the authorities were to reject the applications for clearance, there will be no illegality in so far as the developer has made construction upto 20,000 sq. meters."
10. The relevant portion of the judgment of Hon‟ble Bombay High Court in Writ Petition No. (L) 655 of 2014, Glomore Construction and Page 15 of 25 Ors. Vs. the Union of India &ors., delivered on 24th March, 2014 is as follows:
"2. The grievance of the Petitioners is that though the Petitioners propose to construct the buildings, which are less than 20000 sq. m. and though this court, in number of cases, has held that for construction of buildings, which are below 20000 sq. m., environmental clearance is not required, even then, Respondents State have issued a stop work notice, directing the Petitioners to stop the construction work of the building which are in project and are admittedly below 20000 sq. m. It is submitted that the petitioners have given an undertaking that they shall not carry out construction work of the buildings beyond 20000 sq. m. It is submitted that in view of this, the impugned notice which has been issued by the Respondent No.3 may be stayed."
"3. This court in several petitioners, has already held that Environmental Clearance for the purpose of construction of building below 20000 sq. m. is not required and the said orders have not been challenged by the Government of Apex Court. A Notification, accordingly, has been issued by the State government recently, taking into consideration, the law laid down by this court. In spite of that, the impugned notice has been issued by Respondent No.2 Prima facie, therefore, case is made out for grant of ad-interim relief."
Based on the above, learned counsel vehemently argued that it is absolutely clear that the above judgment of the Hon‟ble Bombay High Court, which has jurisdiction over this Tribunal, have to be respected and based on that position of law only, the judgment in the present case should be delivered.
Page 16 of 25
11. From the side of the Applicant, in rebuttal, the reliance is placed on the judgment passed by this Tribunal in Appeal No. 66 of 2014, Sunil Kumar Chugh & Anr. Vs. Secretary, Environment Department Government of Maharashtra 5 others, delivered on 3rd September, 2015, wherein reliance has been placed on Para 22, which is quoted herein-below for the sake of convenience:
"22. Several judgments of the Hon'ble High Court of Judicature at Bombay namely, copy of order dated 29.03.2012 in Naresh Janardhan Mali Vs. The State of Maharashtra and Ors., copy of order dated 24.09.2012 in Vardhaman Developers ltd. Vs. Union of India, copy order dated 16.01.2013 in Nahur Vivekanad CHS Vs. Union of India, Copy order dated 06.03.2013 in Saumiya Buildcon Pvt. Ltd. Vs. Union of India, Copy of order dated 09.05.2013 in Tridhatu Ventures LLP Vs. State of Maharashtra, copy of order dated 21.06.2013 in vision Developers Vs. Union of India, Copy of order dated 18.12.2013 in vardhaman Developers Ltd. Vs. Union of India, copy of order dated 24.03.2014 in Glomore Construction Vs. Union of India were cited to buttress the claim that the construction without prior Environment Clearance was legally permissible. In answer, Learned Counsel appearing on behalf of the appellants submitted that these judgments cannot be regarded as a law declared and will not be binding upon this Tribunal, more particularly so because the Hon'ble High Court gave permission to construct up to 20,000 sq. meters without Environment Clearance only on a case to case basis and did not expound law with reference to EIA Notification, 2006. It is true that the said judgments cannot be regarded as a law declared and binding all courts within the territory of India as is the law declared by the Supreme Court under Article 141 of the Constitution. However, if the expounding of the law has been made by the Hon'ble High Court, such exposition of law will certainly have persuasive effect on us. On perusal of these judgments one finds merit in the submission made by the appellants that the Hon'ble High Court dealt with the exigencies of the fact situation on case to case basis and granted permissions to Page 17 of 25 construct up to 20,000 sq. meters without Environmental Clearance. Nowhere we find that the Hon;ble High Court considered the scope and scheme of the EIA Notification, 2006 and expounded the law concerning need to have prior EC for the construction as specified in Entry 8 (a) of EC Regulation, 2006. Significantly, in Vardhaman Developers case the Hon'ble High Court, directed the petitioners not to claim any equity on the basis of the order made and further clarified that no equity shall be created in favour of the petitioner when its application for Environment Clearance is considered by the Authority and the authority was to consider such proposals for Environment Clearance on its merits without being influenced by the order. The judgments, therefore, need not persuade us to hold that the Respondent No.5 is without any blame of violating EIA Notification, 2006 by undertaking construction and continuing with it before the Environmental Clearance was granted."
12. Having relied upon the above judgment the learned counsel for the appellant has distinguished the facts of Glomore Construction and Ors. Vs. the Union of India &ors, from the facts of the case in hand and pointed out that the view taken by the Hon‟ble Bombay High Court in that case would have only persuasive effect on the Tribunal and that the Tribunal found that nowhere the Hon‟ble High Court considered the scope and scheme of EIA Notification 2006 concerning the need to have prior EC for construction as specified in Entry 8 (a) of EC Regulation 2006, therefore, this Tribunal should rely on the law laid down by the Tribunal in above judgment, where-in it is said in Para 3 that the EIA Notification 2006 dated 14th September, 2006 requires prior EC for building and construction projects having Built up Area of more than 20,000 sq. m., which is issued by MoEF&CC, Government of India in exercising of powers under Section 3 of the EP Act and rules framed there-under. Further, in para 4, it is recorded that according to the appellant, in the said case, Slum Rehabilitation Authority had recorded Page 18 of 25 in clear terms that proposed Built Up Area of the project exceeded 20,000 sq.m. and, thus required EC from MoEF&CC, Government of India and same will be insisted upon before approval of further EC/ Commencement Certificate to first Rehabilitation building. Notwithstanding the fact that Notification of 2006 clearly stated that no construction of any nature shall commence without obtaining prior EC, yet the construction of the project had started in full swing and the authorities including the Environment Department, Government of Maharashtra, failed to take any effective action against the construction despite various complaints made by the Appellant.
13. In para - 43 of the said judgment, it is recorded that the Project Proponent violated the EC Regulations, 2006 by undertaking construction before the EC was granted and thereby denied the realistic environmental safeguard to be in place. Further, it is mentioned in that paragraph, this begs a pertinent question as to whether EC in question needs to be set aside and the construction which includes rehabilitation component/ building comprising of 263 flats, 61 shops, 4 tenements of welfare centre, 4 tenements of Balwadi, Society office and Municipal Office, should be exposed to its logical consequence. In the opinion of the Tribunal it was held that when there is some space left for providing certain safeguards and seek compensation for the violation of EC regulations, it would be rather harsh to set aside the EC and instead the Project Proponent needs to be saddled with appropriate measure of compensation and directed to make certain amendments in the construction of sale component building, the construction of which has been stopped vide order dated 30th April, 2014 to maintain status quo so as to provide adequate parking spaces as required, to avoid spilling over of the vehicles on the public streets and cause congestion of traffic leading to adverse impact on the environment.
Page 19 of 25
14. Having cited this judgment learned counsel for the appellant urged that in this judgment the Tribunal had considered the judgment delivered by the Hon‟ble Bombay High Court in Writ Petition No. (L) 655 of 2014, Glomore Construction and Ors. Vs. the Union of India & ors., which has been cited above and yet the opinion expressed in it was that if the Total Built up Area (BUA) exceeded 20,000 sq. m. it would require prior EC and that the view taken by the Hon‟ble Bombay High Court that if the construction was not exceeding 20,000 sq. m., the same would not be treated to be violation even if the prior EC was not obtained, as the same would be required only when the construction exceeded 20,000 sq. m., the said view was discarded by the Tribunal distinguishing the facts of the said two cases.
15. On the other hand, from the side of the learned counsel for the Project Proponent it has been vehemently argued that the opinion given by the Tribunal that the judgment of Hon‟ble Bombay High Court would have only persuasive effect on it and that nowhere the Hon‟ble Bombay High Court considered the scope and scheme of EIA Notification 2006 and expounded the law concerning need to have EC for construction as specified in Entry 8 (a) of EC Regulation 2006, is wrong appreciation of the judgment by the Tribunal and insisted that the view of Hon‟ble Bombay High Court should be adhered to.
16. On the basis of the respective arguments of the parties concerned, we find that following questions need to be answered by us in this case I) Whether it would be treated to be violation on the part of the Project Proponent not to obtain prior EC, though the project which it had undertaken to build up, was ultimately going to exceed 20,000 sq. m. Area, even if actual construction remained below 20,000 sq.m., in the light of the judgments of Hon‟ble Bombay High Court delivered in M/s Saumya Buildcon Pvt. Ltd.
Page 20 of 25 Vs. Union of India and Glomore Construction and Ors. Vs. the Union of India &ors.?
II) Whether the act of the Project Proponent, in not obtaining prior Environmental Clearance, despite the fact that it had in mind to construct the Project beyond the 20,000 sq. m. and had obtained commencement certificates also, though construction remained below 20,000 sq.m., would be treated to be a violation on its part, in view of the position of law laid down by this Tribunal in Sunil Kumar Chugh & Anr.
Vs. Secretary, Environment Department Government of Maharashtra 5 others?
III) Whether, if Tribunal comes to the conclusion that the Project Proponent has committed violation in not obtaining prior EC and proceeded with the construction, the EC would be required to be set aside ? if yes, its consequence.?
IV) What relief appellant is entitled to granted ?
17. FINDINGS:
Findings on question No.1 & 2 :
In respect of question No.1 and 2, we have gone through the judgment of Hon‟ble Bombay High Court in M/s Saumya Buildcon Pvt. Ltd. Vs. Union of India case which in para-17 clearly says that if the Project Proponent does not exceed 20,000 sq. m. construction for residential buildings, without obtaining Environmental Clearance the same would not be treated to be violation of EIA Notification 2006, but as soon as it exceeds the said threshold level, it would require prior EC. This very position of law is reiterated by the Hon‟ble Bombay High Court in the Glomore Construction and Ors. Vs. the Union of India &ors. Page 21 of 25 which is evident from the paragraph cited above. Against this judgment, there is a judgment of this Tribunal, in Sunil Kumar Chugh & Anr. Vs. Secretary, Environment Department Government of Maharashtra 5 others case, which says that whether construction exceed 20,000 sq. m. or not, if the project is likely to exceed 20,000 sq. m. for which approval has been taken, prior EC must be obtained by the Project Proponent before starting any construction. In our view, EIA Notification 2006 is silent on this point as to whether before initiating any construction of building project, the prior EC would be required or not, if construction exceeds 20,000 sq. m. at any future point of time but this grey area appears to have been covered by the above judgments cited by us. Since the Hon‟ble Bombay High Court is the jurisdictional High Court under whose jurisdiction this Tribunal is functioning, the view taken by the Hon‟ble Bombay High Court would have to be followed by us, though in our view the provision laid down in EIA Notification 2006 appears to be that if large building construction project is to be undertaken by any builder /Project Proponent who aims to certainly exceed 20,000 sq. m. of Total Built up Area, it should obtain prior EC in the interest of protection of environment because at the initial stage it would be feasible to put in place all such systems which would be conducive to protecting environment after thorough prior study. If at subsequent stage after crossing the Built up Area of 20,000 sq. m., further permission is granted to expand a project, that would certainly harm the environment. But because of the above view taken by the Hon‟ble Bombay High Court, we are going by the same. In the present case, first Commencement Certificate was taken in the year 2008 for the BUA 17995.00 sq. m. which was below 20,000 sq. m. Threshold limit and hence Page 22 of 25 prior EC was not required to be obtained before starting construction. The Project Proponent in this case has been granted commencement certificate on 09.04.2013 for Total Built up Area 21368.30 sq. m., exceeding 20,000 threshold limit. Therefore, it required prior EC to be obtained. On 07.09.2013, application for EC was moved before the SEIAA Maharashtra for which a long process started for considering the same which is apparent from the pleadings above and ultimately the impugned EC was granted on 18.02.2020. Prior to grant of impugned EC, the Project Proponent never exceeded the construction beyond the 20,000 sq. m. as stated by it in para 6.18 of their affidavit at Page No.261 of the paper book. Therefore, it is apparent that prior to applying for the prior EC and same having been granted, the Project Proponent did not exceed threshold limit of 20,000 sq. m and whatever construction below that was done by it would not be treated to be violation in terms of the judgments of the Hon‟ble Bombay High Court cited above. Because of this reason, we also come to the conclusion that impugned EC would also not be treated to be ex- post facto. Therefore, question Nos.1 and 2 stand answered in favour of the Project Proponent against the appellant. Finding on question No.3.
In respect of question No.3, we are of the opinion that since the answers to the question No.1 and 2 have gone in favour of the Project Proponent and against the appellant, this question would require to be answered to the effect that no violation is committed by the Project Proponent in proceeding with construction. It is decided accordingly.
Finding on question No.4 In respect of question No.4 as regards relief to the appellant we are of the view that the relief for quashing impugned EC does not Page 23 of 25 deserve to be allowed. We may also note that the Project Proponent has already given all the details of the measures taken/ to be taken by it for the entire project regarding water, energy, management of waste, rain water harvesting, storm water management etc. We have also noted that as per page No. 1082 of the paper book, Project Proponent is going to incur the 1.99 cr. which is 1.5% of Capital cost of project towards the CER and EC specifically mandates to him to get that CER (Corporate Environmental Responsibility) approved from Municipal Commissioner / District Collector.
18. We have also noted that as per EC letter at page Nos. 32 to 42, PP has proposed comprehensive plan for treatment and recycle/ reuse of sewage, rain water harvesting, storm water management, organic Waste Composting, energy conservation including solar water heating, and tree plantation. Estimated project cost is Rs. 132.68 cr. Whereas capital cost of environmental management plan (EMP) is Rs. 2.68 cr and annual O &M provision is Rs. 58.27 lakh. EMP seems to be planned for both already constructed as well as proposed construction. Hence, apprehension that PP has tried to save on expenditure for protection of environment stands dispelled.
19. At this stage we are seriously concerned about practice of granting Commencement Certificate for BUA beyond 20,000 sq. m. by the Municipal Authorities without ensuring availability of environmental clearance when BUA is more than 20,000 sq. m. In OA 13-2021 SEIAA Maharashtra had submitted affidavit dated 15.07.2022 stating that-
"VI. In order to reiterate primary responsibility of Local Planning Authority Urban Local Bodies Circular instructions are being issued by Department of Environmental and Climate Change government of Maharashtra.
a) State of Commencement Certificate- At the time of granting Commencement Certificate to construction projects where EIA Notification, 2006 is applicable, the authority concerned, should verify whether prior Environmental Clearance has been granted. Page 24 of 25
If authority comes across any violation, Commencement Certificate should not be given unless the project has received valid prior EC bearing EC identification Number. (ECs given after 20.10.2021 bear EC Identification Number) and the same to be brought to the notice of Regional Officer Maharashtra Pollution Control Board, who should initiate action in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986 and also inform EC Co-ordination Cell/ SEIAA/"
It seems that Government of Maharashtra has conveniently forgotten the said Affidavit. We direct Chief Secretary Maharashtra to personally ensure that necessary directions are issued within one month of this order.
20. Appeal is accordingly dismissed.
Dinesh Kumar Singh, JM Dr.Vijay Kulkarni, EM April 3, 2023.
Appeal No. 26/2020(WZ) Sachin J.
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