National Green Tribunal
Balvant Parchure vs Mauresh Ashok Amburle on 27 April, 2023
Item No. 10 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(WITH HYBRID OPTION)
Original Application No. 27/2022(WZ)
Balvant Muralidhar Parchure
.....Applicant
Versus
Mayuresh Ashok Amburle
....Respondent(s)
Date of hearing: 27.04.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Applicant in-person
Respondent(s) : Mr. Mayuresh A. Amburle, in-person for R-1
Ms. Madhura, Advocate for R-1 & 2/Pvt. Party
Mrs. S.B. Vaidya Pandit, Advocate for R-3 & 4
Ms. Manasi Joshi, Advocate for R-5/MCZMA
ORDER
1. This application has been filed with the prayer for direction to be issued to Respondent Nos. 1 & 2/Private Respondents to demolish illegal construction made, as the same is in violation of the provisions of the CRZ Notification, 2011.
2. In brief the fact of this case are that the Applicant is a resident of Ratnagiri District belonging to traditional community. The Village Harnai, falling in that District, falls in CRZ-III category, where-in the construction by traditional community is permissible only 500 mtrs. from the High Tide Line (HTL) to the maximum height of 9 mtrs. only from the ground floor. The Respondent Nos. 1 & 2 approached the Respondent No. 5/Maharashtra Coastal Zone Management Authority (MCZMA) with a proposal to construct commercial and residential building with ground floor +3 structures in the month of October, 2017 but they were granted Page 1 of 8 permission only to construct G+1 structure for residential and dwelling purposes. Despite that the Respondent Nos. 1 & 2 have constructed G+2 floor which is being used for commercial and residential purposes, in violation of the recommendation of the Maharashtra Coastal Zone Management Authority (MCZMA), which was completed in October, 2020. The Applicant had made a complaint to MCZMA in the year 2021 for demolition of the illegal structure but no action was initiated, hence the above prayers have been made.
3. This matter was first considered by our Predecessor Bench on 29.03.2022 and a Joint Committee was directed to be constituted and direction was also issued to send notices to the Respondents.
4. The Joint Committee has submitted its report, the relevant part of which is quoted here-in below:-
"2.1. OBSERVATIONS OF THE SITE INSPECTION:
1) The Joint Committee noted that the site in question is situated at Survey No. 215, Hissa No. 13/A, at village Harne, Tal:
Dapoli, District Ratnagiri having Latitude 17.81 40 247 and Longitude 73.095 1919. (Google location of the site is at Annexure II)
2) The site in question falls in Coastal Regulation Zone- III (CRZ III) and situated within 200 meter to 500 meter (i.e. beyond No Development Zone area) from the High Tide Line of the Arabian Sea at village Harne. The Joint Committee noted that at present, the Coastal Zone Management Plan (CZMP) of District Ratnagiri is approved under CRZ Notification, 2011 as per which, the site situated within 200 m to 500 m of the CRZ III area. (Extract of the approved CZMP, 2011 of the site is at Annexure II)
3) The Joint Committee observed that on the site, building comprising Ground + 2 floor is constructed on the site by the Respondents. As informed to Joint committee, construction on the site was started in year 2017 and completed in 2019.
During the visit, Dimension of the constructed building (Length, width and height) were measured with the help of Revenue officials. Length of the Building is around 22 meter and width is 12.80 meter. Height of the building is around 9.20 meter. The Joint Committee observed that commercial use such as a clinic, Medical shop and fish trading office are present in the Ground floor. Further, there is parking in the Ground floor. Page 2 of 8 Other 2 floors are observed residential. As per the discussion with Revenue officials and building plan shown by the Respondents during the visit, plot area is 1358 Sqm and built up area of the constructed building is around 598.78 Sqm. The Joint Committee further observed that adjacent to constructed building in the same plot, construction of plinth and certain pillars were observed. It was informed that the said construction was started recently around January, 2022 and presently, the construction is stopped on the site. (Site Photographs of the constructed building and construction of plinth & pillar beside the site is attached as Annexure III)
4) Discussion with Revenue officials and Respondents, the Joint Committee noted that the NA permission was obtained for the land in the year 24.10.2016. Further, the Revised NA was granted by the office of Collector, Ratnagiri in the year 17.3.2017 for residential and commercial construction and revised building plans were sanctioned. Subsequently, in the year 2017 the Respondents applied to MCZMA for grant of the CRZ recommendation from the MCZMA. The Joint Committee noted that the MCZMA in its 122nd meeting held on 30th October, 2017 deliberated the application. The MCZMA noted that the site falls in CRZ III and situated within 200 m to 500 m from the HTL of Arabain Sea. It was further noted that as per para 8.III. CRZ III of the CRZ Notification, 2011, construction of dwelling units comprising Ground + 1st floor with max height of 9 meter for local traditional communities' area allowed beyond 200 m from the HTL of the seafront in CRZ III area. Accordingly, as per deliberation, the MCZMA vide letter dated 7.12.2017 granted recommendation to the proposal from CRZ point of view to concern planning Authority subject to certain conditions:
1. Proposed project should be as per the provisions of CRZ Notification, 2011 ( amended from time to time)
2. Local body to ensure that the PP is local inhabitant
3. Local body to ensure that no construction is started on site before issuance of commencement certificate to the said project under consideration
4. Local body to ensure proposed construction is beyond 200 m from the HTL of the seafront
5. Local body to ensure that the proposed construction is Ground + 1st floor with max height 9 m for residential use only
6. All other requirement permissions from different statutory authorities should be obtained prior to commencement of construction
5) The Joint committee noted that as per MCZMA recommendation, the construction on the site should have been restricted to Ground + 1st floor for residential purpose only.
However, construction on the site comprises of Ground + 2 floor with mix use of Residential and Commercial. The Joint Page 3 of 8 Committee observed that there is violation of the conditions of the recommendation letter dated 7.12.2017 granted by the MCZMA and construction on the site is not in conformity with the provisions of the CRZ Notification, 2011. During the discussion with the Revenue officials, it came to the notice of the Joint Committee that office of Ratnagiri Collector has revoked the NA permission of the year 2017 granted to the project and Building plans were also cancelled. The Joint committee noted that presently, there is no NA permission and approved building plans for the project on the site in question. The SDO office has issued a Notice under MRTP Act, 1966 for removal of illegal construction on the site, which has been challenged by the land owners in Sr. Division Civil Court (Case No. 13/2020) of Khed. It was further informed to Joint Committee that the status quo has been granted vide order dated 23.4.2021 by Sr. Division Civil Court, against which, the SDO office has filed an appeal (9787/2022) in the matter in the High Court of Bombay . The matter is sub-judiced. 3.0 Recommendation of the Joint Committee:
a) District Coastal Zone Monitoring Committee (DCZMC) constituted by the State Government vide GR dated 23.3.2011 under provisions of the CRZ Notification, 2011 is empowered to take action against the illegal construction in coastal areas.
The DCZMC shall initiate action against the illegal construction on the site in question following due process of law. The DCZMC shall ensure complete stoppage of construction activity adjacent to site in question.
b) Assessment of Monetary Value of the environmental damages caused due to violation of provisions of the CRZ Notification, 2011 at site in question by Respondents may be carried out by the competent authority or expert organization."
5. From the side of Respondent Nos. 1 & 2/Private Respondents, a reply affidavit dated 06.07.2022 has been filed, where-in it is submitted that Applicant- Mr. Balwant Parchure is not concerned with the property in question, as he resides in Mumbai. The Respondent No. 3/Sub- Divisional Officer & Respondent No. 4/Collector, Ratnagiri (Respondent No. 2 appears to have been wrongly mentioned) initiated action against disputed property and issued a notice for demolition of the construction under Maharashtra Land Revenue Code and Maharashtra Regional and Town Planning Act making there-in reference of CRZ Notification. The said notice was challenged before the Civil Judge, Senior Division, Khed by filing Civil Suit for declaration and injunction bearing Regular Civil Page 4 of 8 Suit No. 13/2020. The said matter is sub-judice before the Competent Court.
6. Further, it is mentioned in the said affidavit that the Respondent Nos. 1 & 2 had taken permission from the MCZMA on 30.10.2017, which is annexed at Exhibit-A at page no. 9 of the paper book and the construction was completed in October, 2020. However, the complaint made to the MCZMA has been lodged on 28.02.2022 in respect of the disputed structure. Therefore, it is clear that despite full knowledge about the completion of building, the Applicant remained silent from October 2020 till February 2022 and thereafter with ulterior motive has filed this application. The cause of action arose in October 2020. therefore, the present application is hit by limitation under Section 14 of the National Green Tribunal Act, 2010.
7. From the side of Respondent No. 5/Maharashtra Coastal Zone Management Authority (MCZMA), a reply affidavit dated 27.07.2022 has been filed, where-in it is submitted that the site in question falls in CRZ- III within 200 meter to 500 meter area (No Development Zone area) from the High Tide Line of the Arabian sea at Village Harne. The said location is within 200 m to 500 m as per the CZMP of District Ratnagiri, which is approved under the CRZ Notification, 2011. Rest of the facts, which have been mentioned in this affidavit, are the same, which have already been stated in the Joint Committee Report, hence they need not be reproduced again.
8. From the side of Respondent No. 3/Sub-Divisional Officer & Respondent No. 4/Collector, Ratnagiri, a reply affidavit dated 24.08.2022 has been filed, where-in it is submitted that the Answering Respondent had issued N.A. permissions on 24.10.2016 on the application of Page 5 of 8 Respondent Nos. 1 & 2, which had been revised vide order dated 17.03.2017. One Mr. Husainmiya Tajuddin Jamandar through power of attorney executed by Akhter Husainmiya Jamadar, filed an appeal against both the N.A. orders before the Additional Collector, Ratnagiri, where-on the Additional Collector Ratnagiri cancelled both N.A. permissions, against which, the Respondent Nos. 1 & 2 preferred an appeal before Additional Commissioner, Kokan Division, which was rejected on 10.02.2020 and the order of Addl. Collector, Ratnagiri was confirmed. Thereafter, the Respondent Nos. 3 & 4 issued notice to the Respondent Nos. 1 & 2 to remove the illegal structures because N.A. order had been revoked. After that whatever has been stated in this affidavit, is absolutely vague but orally the learned Counsel for the Respondent Nos. 3 & 4 submits that against that notice, the Respondent Nos. 1 & 2 approached the Civil Judge, Senior Division, Khed challenging the said notice.
9. We have heard the arguments of Applicant in-person as well as learned Counsel for the other parties and perused the record.
10. From the Joint Committee, it is clear that the site in question is falling in CRZ-III and is situated within 200m to 500m from the HTL within No Development Zone, where permission was required to be obtained by the Respondent Nos. 1 & 2 from the Respondent No. 5/Maharashtra Coastal Zone Management Authority (MCZMA) before on- going any construction. The said permission was granted also but it was only for Ground +1 floor, which is annexed at page no. 9 of the Original Application and following conditions were also imposed there-in:-
" 1. Proposed project should be as per the provisions of CRZ Notification, 2011 (amended from time to time)
2. Local body to ensure that the PP is local inhabitant.Page 6 of 8
3. Local body to ensure that no construction is started on site before issuance of commencement certificate to the said project under consideration.
4. Local body to ensure proposed construction is beyond 200 m from the HTL of seafront.
5. Local body to ensure that the proposed construction is Ground + 1st floor with max height 9 m for residential use only.
6. All other required permissions from different statutory authorities should be obtained prior to commencement of work."
11. But the Joint Committee on their visit found that the construction in question comprised Ground +2 floor, which was got measured with the assistance of the Revenue officials, height of which was not to exceed 9 meters as per the permission and the same was found to be 9.20m. It has also been observed that the said property was being used for commercial use such as a clinic, Medical shop and fish trading office on the Ground floor. The other 2 floors were being used for residential purposes. Therefore, it has been recommended by the Committee that the DCZMA, which is empowered to take action against the illegal construction at the site in question, must also assess as to whether any environmental degradation happened on account of said construction? If yes, the same shall be quantified by them in accordance with law and would be realized from the Respondent Nos. 1 & 2.
12. From the side of Respondent Nos. 1 & 2, it has been vehemently argued that they had raised construction of G+2 floor, only after permission having been granted to them by the Sub-Divisional Officer, Dapoli on 17.03.2017, which has been completed on October 2020 and that subsequently, the said permission has been recalled adversely impacting the interest of the Respondent Nos. 1 & 2, which should not be allowed to happen. It is further argued by the learned Counsel for the Respondent Nos. 1 & 2 that the said order by which the permission has Page 7 of 8 been retracted, has already been challenged before the Revenue Authority.
13. We find recorded in the Joint Committee Report that when the N.A. permission was cancelled and notice was issued by the SDO Office under MRTP Act for removal of the illegal construction at the site, the same was challenged by the Respondent Nos. 1 & 2 before the Civil Court at Khed by filing Case No. 13/2020, where-in status quo order has been granted vide order dated 23.04.2021, against which SDO Office has filed an appeal bearing no. 9787/2022 before the Hon'ble High Court of Bombay and the matter is sub-judice.
14. We find that it is admittedly a case of violation on the part of the Respondent Nos. 1 & 2, as they have gone beyond the permission granted by the MCZMA to raise construction of Ground +2 floor, though they were granted permission to construct only G+1 floor and that too was granted only for residential purpose. Therefore, the 2nd floor, which has been made illegally, needs to be demolished in accordance with law, subject to the final decision to be delivered by the Hon'ble High Court of Bombay in case any matter is pending before it, related to the present construction in question.
15. With that direction, we dispose of this application.
16. All pending applications, if any, also stand disposed of.
17. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 27, 2023 Original Application No. 27/2022(WZ) P.Kr Page 8 of 8