National Green Tribunal
Surendra Waman Dhavale vs The Secretary Ministry Of Environment ... on 7 March, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item No. 07
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Appeal No. 04/2015 (WZ)
(M.A. Nos. 110/2015 & 111/2015)
Surendra Waman Dhavale Appellant
Versus
MoEF & Ors. Respondent(s)
Reserved on : 25.02.2019
Uploaded on: 07.03.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Appellant : -
For Respondent(s) : Ms. Supriya Dangare, Advocate for MPCB.
Mr. Gupte D.M., Advocate for MCZMA,
SEIAA, Environment Department.
Mr. Shivshankar Swaminathan on behalf of
Saket Mone, Advocate for Respondent Nos.
12 & 13.
Ms. Dipti Rajendra Khule, Advocate
Ms. Ishita Jain, Advocate for Respondent
Nos. 14 & 15.
ORDER
Per Justice S.P. Wangdi, Judical Member
1. This Appeal is directed against the Environmental Clearance (EC) dated 11.12.2014 granted in favour of the Respondent No. 13, M/s. Orbit Shelter Pvt. Ltd., by the State Environment Impact Assessment Authority, Maharashtra, for construction of a multi-storied building for a housing complex on part of a land measuring 2.2 acres bearing CTS Nos. 5433C, 5432, 5408B, 5424, 5433B and 5434 in village KoleKalyan, Taluka, Andheri Mumbai. It is alleged that the building was constructed without obtaining EC required under the EIA Notification, 2006. This was against condition no. 19 of the Intimation of Disapproval (IOD) dated 16.11.2007 under Section 346 of the Mumbai Municipal Corporation Act, 1888 conveyed by the 1 Municipal Corporation of Greater Mumbai (MCGM) stipulating that before issuance of a commencement certificate, EC would be required to be taken from the Ministry of Environmental Forests and Climate Change (MoEF&CC). Despite non- compliance of this condition, commencement certificate was issued by the MCGM to the Respondent No. 13 on 29.03.2008. This according to the Appellant was as a result of collusion between the Respondent No. 13 and the MCGM. It is further contended that Respondent No. 13, M/s. Orbit Shelter Pvt. Ltd. got amalgamated with M/s. Orbit Corporation Ltd., Respondent No. 12, in the year 2009 under the provisions of Section 394 of the Companies Act, 1956. As a consequence of such amalgamation, the transferor company got dissolved and the entire business and undertakings along with its assets and liabilities would also stood transferred to and vested with the transferee company, i.e., M/s. Orbit Corporation Ltd. On and from the date of the transfer, i.e., 01.04.2008, M/s. Orbit Shelter Pvt. Ltd. ceased to exist. This, according to the Appellant, was followed by the sale of entire land with structures standing thereon to the Respondent No. 14, M/s. JSW Steel Ltd. and Respondent No. 13, M/s. JSW Energy Ltd., respectively vide a registered Deed of Sale dated 06.04.2011, where the said Respondents have established their corporate headquarters. An access road has also been permitted to be constructed by the Mumbai Metropolitan Region Development Authority (MMRDA) without a statutory development plan.
2. It is further contended that these incidents and activities had taken place without the requisite EC and other permits. Respondent No. 13, M/s. Orbit Shelter Pvt. Ltd., though had ceased to exist, applied for obtaining a post-facto EC to the 2 State Level Environmental Impact Assessment Authority (SEIAA) which was deliberated by the State Level Expert Appraisal Committee (SEAC-II in the present case) in its various meetings being the 15th meeting dated 18th-20th July, 2013, the 23rd meeting dated 13th-15th February, 2014, the 25th meeting dated 24th-26th March, 2014 and the 72nd meeting dated 21st- 22nd July, 2014. The SEAC, after noting that the construction having been undertaken before obtaining the EC was in violation of the EIA Notification, 2006 against which the Maharashtra Pollution Control Board (MPCB) was yet to file a case, held that action as per Office Memorandum dated 12.12.2012 as a violation case had not been completed and observed that the project proponent had to satisfy at least four requirements. Later in the 72nd meeting, the SEAC-II noted that even before the project proponent had submitted their explanation, substantial part of the building had already been constructed and portions of it occupied against occupation certificate issued in the year 2013 and further, that action for violation under the Environment (Protection) Act, 1986 had been completed with a case having been filed against the project proponent before the Judicial Magistrate, Bandra, by the MPCB on 05.03.2014.
3. It is thus alleged that the EC granted in favour of Respondent No. 13, which had ceased to exist on the said date when the EC was granted, cannot be sustained. It is contended that the EC could not have been granted in favour of a delinquent facing prosecution. The impugned EC was bad as it contained several conditions which were pre-construction phase conditions that could not have been complied with after the construction had been completed. The MoEF&CC OM dated 12.12.2012 dealing 3 with violation case, had been flouted. Information relating to the EC had not been put up on the website of the project proponent as required under the rules. Permission for extraction of ground water for making double basement was not obtained from the statutory authorities. Requisite permission of the Tree Officer had not been obtained. Besides these, there are allegations of other violations with which we are not concerned.
4. Based on the above, the Appellant has sought for a declaration that the impugned EC was invalid in addition to several other reliefs including imposition of heavy costs by invoking the "Polluter Pays" principle.
5. In its affidavit, the Respondent No. 1, MoEF&CC after setting out the procedure for obtaining EC under the EIA Notification, 2006 in respect of building/construction projects/ area development projects and townships as contained under item 8
(a) and (b) of the Schedule to the Notification, has stated that the project in question was a category 'B' project which was appraised by the SEAC, Maharashtra, and approved by the SEIAA, Maharashtra. Nothing further has been stated with regard to the various allegations contained in the original application.
6. The reply filed on behalf of Respondent No. 6, MCGM, contains denials on all factual allegations asserting that the officers of the MCGM have not violated any of the provisions of the statutes and building regulations in granting the permission to the project. It is further stated that at the time of entertaining the proposal for granting and/or rejecting building permission, the EIA Notification, 2006 was in force. As per the provisions 4 under Entry 8 (a) of the Notification, it was provided that if the proposed built-up area, covered by the construction and activity area in case of facilities open to sky, exceeded 20,000 Sqm, then obtaining prior EC was mandatory before issuance of commencement certificate. In the present case, the built up area of the covered construction together with activity area of the project did not exceed 20,000 Sqm. Thus the issuance of the commencement certificate dated 29.03.2008 did not violate the provisions of EIA Notification, 2006. The respondent further contends that vide Notification dated 04.04.2011, the definition of built up area was amended in the EIA Notification, 2006 and if this was to be applied consideration, the built up area of the project would exceed 20,000 Sqm. However, the Notification dated 04.04.2011 did not have retrospective operation and, therefore, the commencement certificate granted to the project proponent could not be held to be invalid having been issued prior to that date.
7. The Respondent No. 11, Superintendent of Gardens & Tree Officer, while adopting the affidavit filed on behalf of the Respondent No. 6, Municipal Corporation of Greater Mumbai, has stated that there was no infraction committed by the project proponent. As per his inspection, 134 new trees had been planted which was more than 120 trees that was required and, therefore, plantation certificate as required under the statutory provisions had been issued.
8. In an elaborate reply filed on behalf of the Respondent No. 12, M/s. Orbit Corporation Ltd., apart from raising the preliminary objections on the ground of want of locus standi of the Appellant, it has been averred that there was no infraction committed by them at all having regard to the requirements of 5 law at the material time. Without going into the irrelevant details, it has been averred that the land in question bearing CTS Nos. 5433C, 5432, 5408B, 5424, 5433B and 5434 in village KoleKalyan, Taluka, Andheri Mumbai was purchased from M/s. Ambuja Cements Limited by the Respondent No. 13. In the course of certain litigation the details of which we may not deal with, M/s. Orbit Shelters Pvt. Ltd., Respondent No. 13 amalgamated with Respondent No. 12, M/s. Orbit Corporation Ltd. as a consequence of which the entire business of the Respondent No. 13 was transferred and vested upon M/s. Orbit Corporation Ltd. and, therefore, reference to M/s. Orbit Shelter Pvt. Ltd. shall mean and include the Respondent No. 12 and/or Respondent No. 13 as the case may be. This culminated in a Conveyance dated 19.05.2010 executed between Ambuja Cements Limited as vendor and the Respondent No. 12 as the purchaser in respect of the property and, therefore, the Respondent No. 12 is the owner of the entire property bearing CTS Nos. 5433C, 5432, 5408B, 5424, 5433B and 5434 in village KoleKalyan, Taluka, Andheri Mumbai admeasuring 8763.70 Sqm together with messauges, buildings and structures standing thereon.
9. In the meantime, earlier, the Respondent No. 13 by application dated 28.05.2007, had requested the MCGM for construction of commercial/office complex on the said property and for approval of the plans. Intimation of Disapproval (IOD) under Section 346 of the Mumbai Municipal Corporation Act was issued on 16.11.2007 by the MCGM in favour of the Respondent No. 13 for the proposed construction with approval along with the plans. Against the application dated 28.05.2007 submitted by the Respondent No. 13, commencement certificate 6 was issued on 29.03.2008 by the MCGM for construction of work up to the top of the basement as per the approved plan which was thereafter renewed/re-endorsed from time to time, last of which was on 28.03.2011. Preceding this on 30.12.2008, further commencement certificate was sought for by the Respondent No. 13 based on an amended plan approved on 24.12.2008. On 01.11.2010, the Respondent No. 12 applied to the MCGM for issue a further commencement certificate up to top of 8th floor on the amended plan approved on 30.10.2010. Thus on 28.03.2011, commencement certificate was issued up to 9th floor (part). The built up area of the proposed construction by the Respondent No. 12 in the final approved plan and the commencement certificate extended on 11.08.2010, was below the threshold limit of 20,000 Sqm as prescribed by the EIA Notification, 2006. On 23.04.2013, the MCGM issued part occupation certificate for the development work comprising of two level basements for parking + stilt + 1st to 3rd upper floors with the condition that the IOD shall be complied with before full occupation certificate for the built building.
10. On 03.06.2013 the Respondent No. 12, without prejudice to its rights and contentions, applied for EC under EIA Notification, 2006 to the Member Secretary, SEAC-II for the office complex on the said property. The application had been filed consequent to the amendment to EIA Notification, 2006 vide Notification dated 04.04.2011 resulting in the built up area of the Respondent No. 12 exceeding the threshold limit of 20,000 Sqm. Form 1 and 1A was also submitted with the Environment Department for the purpose. It is stated that the Notification dated 04.04.2011 cannot apply retrospectively to the plans 7 already sanctioned by the Corporation and would apply prospectively.
11. The submission of the application for EC was followed by various meetings been held by the SEAC-II in respect of which we have already adumbrated while dealing with the pleadings contained in the Appeal. This included the issuance of show cause notice to the Respondent No. 12 for the alleged violation while constructing the property in question. We, therefore, need not delay ourselves on those facts for the sake of brevity. However, the case of Respondent No. 12 is that as per the Schedule to the EIA Notification, 2006 as it stood originally, EC was required only where the built up area exceeded 20,000 Sqm and, as the area of the project in question was only 8763.70 Sqm, application for EC was not filed and the work on the building had already been taken up based on the plan approved on 28.12.2008 and commencement certificate dated 28.03.2011 for construction up to 9th floor (part). Vide Government Notification dated 04.04.2011 that was published in the Government of India Gazette dated 06.04.2011, amendment was brought about against item 8 (a) to the Schedule by substituting the entry in column (5) thereof as "built up area for covered area construction; in the case of facilities open to the sky, it will be the activity area". Simply put it meant that built up are on each of the floors put together including basement(s) and other service areas proposed in the building/construction projects. The Respondents state that if this provision was to apply, then the project in question would require prior EC. According to the Respondent No. 12 under the EIA Notification as it stood then, prior EC was not necessary in consideration of which the building plans had 8 been approved by the planning authority and the construction commenced with. Therefore, the project cannot be stated to have been taken up in violation of the EIA Notification, 2006. It is urged that the amended provisions of the EIA Notification brought about by Notification dated 04.04.2011 would apply prospectively.
12. Respondent Nos. 14 and 15 claims that they had established their corporate headquarters in the property in question after having purchased the premises as bonafide purchasers for value from the Respondent No. 12. Reiterating the stand of the Respondent No. 12, it has been stated that the premises were constructed in due compliance of the extant law and after all requisite approvals were in place.
13. We have heard the Learned Counsel for the parties, considered the facts and circumstances set out in the various pleadings, carefully examined the documents filed in support of those and, we find that the Appeal is misconceived.
14. The foundation of the allegations against the Respondent Nos.
12 and 13 is that they had undertaken construction of the building project without obtaining EC and the EC that was granted amounted to retrospective clearance which is not permissible under the law as the EIA Notification clearly and unambiguously stipulates requirement of 'prior EC'.
15. The facts and circumstances reveal that the Respondent Nos.
12 and 13 had obtained necessary approvals from the concerned authorities including the MCGM. Commencement certificate had been obtained up to the top of 9th Floor (part) on 28.03.2011. During that time EIA Notification 2006 was applicable as it stood then. Entry 8 (a) of the Schedule to the 9 said Notification prescribed necessity for obtaining EC only in cases where the built up area in case of construction and, activity area in case of facilities open to sky, exceeded 20,000 Sqm. This provision was amended vide Notification dated 04.04.2011 published in the Government of India Gazette dated 06.04.2011. For better understanding we may reproduce below the relevant portion of the amendment:
"(iii) against item 8(a) In column (5) for the entry, the following entry shall be substituted namely:
"The built up area for the purpose of this Notification is defined as "the built up or covered area on all the floors put together including basement(s) and other service areas, which are proposed in the building/construction projects". "
16. It is eminently clear from the above that definition of "built up area" has since been altered to mean areas on all floors including basement(s) and other service areas in contrast to its earlier meaning which only included the first plinth area of a building.
17. It appears that the Respondent No. 12 even then had applied for grant of EC before the SEAC-II vide application dated 06.03.2013. The application was thereafter subjected to scrutiny by the SEAC-II and SEIAA in the course of which show cause notice had also been issued considering the construction as falling within mischief of the violation Notification dated 12.12.2012. Based on the explanation submitted by the project proponent to the Chairman/SEIAA setting out the facts and circumstances already alluded to earlier, and also that the project had been certified as LEED Platinum Grade by IGBC, the SEIAA in its 76th meeting held on 19th-21st November, 2014 decided to grant EC finding that there was minimum pollution potential and the building had been green rated and duly appraised by the SEAC. Accordingly on 11.12.2014, EC was 10 granted to the Respondent No. 12 for the project prescribing several conditions.
18. Considering the aforesaid facts and circumstances, we do not find any infirmity in the Respondent Nos. 12 and 13 having commenced with the construction without obtaining EC on 28.03.2011 as it was not necessary for them to do so under the extant rules. All other requirements and/or conditions had been satisfied and approvals obtained before such commencement. The grant of EC on 11.12.2014 though did not satisfy the necessity of 'prior EC', ensures compliance of several conditions in the interest of environmental protection, in addition to the detailed conditions contained in the IOD issued on 16.11.2007.
19. So far as the other issues pertaining to the nature of transfer of the property, the disputes in respect thereof, etc., are concerned, we are not inclined to enter into those as being alien to the questions pertaining to environment with which the Tribunal is not concerned.
20. For the aforesaid reasons, we do not find any merit in the Appeal.
21. In the result, the Appeal is dismissed with no order as to costs.
Adarsh Kumar Goel, CP S.P. Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM March 07, 2019 Appeal No. 04/2015 (WZ) AVT 11