National Green Tribunal
Mr. Sanjay Alias Bala Bhegade vs The State Of Maharashtra Through The ... on 1 August, 2023
Item No.7 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Original Application No. 33/2018(WZ)
I.A. No. 148/2022(WZ)
Sanjay Bhegade & Ors.
.....Applicant(s)
Versus
State of Maharashtra & Ors.
....Respondent(s)
Date of hearing: 01.08.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : None appeared.
Respondent(s) : Mr. Aniruddha Kulkarni, Advocate for R-1/Envt. Deptt.
Mr. Dattatray Devale, Advocate for R-2/PMRDA
Ms. Supriya Dangare, Advocate for R-3
Ms. Manasi Joshi, Advocate for MPCB
Mr. Ajay Gadegaonkar, Advocate for R-5
Mr. Mukesh Gupta, Advocate for R-6, 11, 27, 29, 33, 36, 40,
48, 57 & 66
Mr. Sachin S. Gore, Advocate for R-7, 42, 43, 44, 46 & 51
Ms. Anchita Nair, Advocate h/f Mr. Saket Mone, Advocate
for R-18 & 32
Mr. Subit Chakrabarti, Advocate for R-18 & 34
Mr. Yashraj Singh Deora, Advocate along-with Ms. Samridhi
Jain, Advocate for R-28, 60, 61 & 65
Mr. Sharang Chavan, Advocate along-with Mr. Rahul
Chitnis, Advocate for R-53 & 62
Mr. Saurabh Kulkarni, Advocate for R-58
ORDER
1. Applicants have already moved application for withdrawal, which is recorded in our earlier order dated 16.01.2023. However, none has appeared from their side.
2. From the side of respondent No.2/PMRDA, learned Counsel Mr. Dattatray Devale has appeared. In pursuance of our previous order, he Page 1 of 8 has filed reply affidavit dated 24.05.2023, where-in it is submitted that in respect of the queries made by this Tribunal whether the constructions in question, which are stated to be illegal, are lying in Eco-Sensitive Zone? If yes, under which provision the permission of construction has been granted; whether such unauthorized constructions need to be demolished. Regarding it, the answering respondent has taken up the matter in the newly constituted Committee of the Members comprising i) Ministry of Environment, Forest & Climate Change, Government of India;
ii) Principal Chief Conservator of Forest, Maharashtra State; and iii) District Magistrate, Pune. The said Committee noted that following uses are completely banned in the Eco-Sensitive Region:- a) Mining b) Thermal Power Plants c) Industries:- All new Red Category Industries specified by the CPCB or SPCB and d) Building Construction with built up area of 20,000 square meters & above and also townships and an area development project with an area of 50 ha. or above or with built up area of 150,000 square meters & above.
3. It is further submitted in this affidavit by the respondent No. 2/PMRDA that no construction, which has been granted permission, is falling within the banned uses. Out of the 64 constructions listed in the original application, total 27 permissions have been granted, 12 of which have been granted by the then District Collector under Section 18 of the Maharashtra Regional Town Planning (MRTP) Act, 1966, prior to the establishment of respondent No.2/PMRDA and thereafter, 15 permissions have been granted by respondent No.2/PMRDA under section 44 of the said Act and the remaining 37 constructions are unauthorized. The Metropolitan Commissioner had directed the Illegal Construction Department in PMRDA to issue notice under Section 53(1) of the said Act on the 37 unauthorized constructions. If the concerned person applies Page 2 of 8 under Section 44 of the said Act for regularization of the construction, the PMRDA, after due verification of all papers and provisions of law and regulations, shall take decision on merit under section 45 of the said Act. If the concerned owner does not apply under Section 44 in-spite of receipt of notice under Section 53(1) or if PMRDA refuses his application for regularization under Section 45, then further legal action as per law shall be taken against them by PMRDA, which may include demolition of construction.
4. From the side of respondent Nos.28, 60, 61 & 65, learned Counsel Mr. Yashraj Singh Deora has appeared, who has drawn our attention to page no.1104 of the paper book, which is a direction dated 13.11.2013 issued by the MoEF&CC under Section 5 of the Environment (Protection) Act, 1986, where-in it is recorded that the Western Ghat is an important geological landform on the fringe of the west coast of India. The Ministry of Environment and Forests (MoEF) had constituted a High Level Working Group (HLWG) under the Chairmanship of Dr. K. Kasturirangan, Member (Science), Planning Commission vide office order dated 17.8.2012 to study the preservation of the ecology, environmental integrity and holistic development of the Western Ghats in view of their rich and unique biodiversity. HLWG submitted its report to the MoEF on 15.04.2023 and the same was put in public domain by hosting on the website of the Ministry and also disseminated to all stakeholders including the six State Governments of Western Ghat region for their feedback and comments. The Ministry had accepted the HLWG report "in principle". A list of State- wise, District-wise and Taluka-wise Villages in ESA were identified by the HLWG, which is annexed as Annexure- A at page nos.1107 to 1112 of the paper book (only related to the State of Maharashtra). Page 3 of 8
5. In the above-mentioned Notification, it is further recorded therein that the following category of new and/or expansion projects/activities shall be prohibited in ESA from the date of issuance of these directions, except those cases, which have been received by EACs/MoEF or SEACs/SEIAAs before the date of putting HLWG report on the website of Ministry i.e. on 17.4.2013 and which were pending with EACs/MoEF or SEACs/SEIAAs. Such projects will be dealt under the guidelines and rules applicable at the time of application before the respective EACs/MoEF or SEACs/SEIAAs. Apart from such cases, no pending case or any fresh case shall be considered by the EACs/MoEF or SEACs/SEIAAs from the date of issue of these directions:-
" a) Mining, quarrying and sand mining
b) Thermal Power Plants
c) Building and construction projects of 20,000 sq.m. area and above
d) Township and area development projects with an area of 50 ha and above and /or with built up area of 1,50,000 sq.m. and above
e) Red category of industries"
6. Thereafter, the learned Counsel for respondent Nos.28, 60, 61 & 65 has drawn our attention to page no.3779 of the paper book, which is a draft Notification dated 06.07.2022 issued by the MoEF&CC, where-in, in para no.3 Sub-Clause (d), following is mentioned:-
"(d) Building, construction, township and area development projects.-
All new and expansion projects of building and construction with built up area of 20,000 square meter sand above and all new and expansion townships and area development projects with an area of 50 hectares and above or with built up area of 1,50,000 square meters and above shall be prohibited and there shall be no restriction on repair or extension or renovation of existing residential houses in the Eco-sensitive Area as per prevailing laws and regulations. Note: (1) All existing health care establishments can continue in Eco- Sensitive Area and proposed Primary Health Centres established as per laws and regulations. 2 No restriction in change in ownership of property.
Page 4 of 8 (2) The following categories of projects and activities shall be regulated as given below:-
(a) Hydropower projects- New Hydropower projects shall be allowed as per the Environment Impact Assessment notification, published vide number S.O. 1533 (E), dated the 14th September, 2006, subject to the following conditions, namely:-
(i) uninterrupted ecology flow of at least thirty percent of the rivers flow in lean season, till comprehensive study establishes individual baselines for each project;
(ii) a cumulative study which assesses the impact of each project on the flow pattern of the rivers and forest and biodiversity loss;
(iii) the minimum distance between one project and the other is maintained at three kilometer and not more than fifty percent of the river basin is affected at any time,
(b) The "Orange/White" category of Industries as specified by the Central Pollution Control Board or State Pollution Control Board shall be allowed with strict compliance of environmental regulations but all efforts shall be made to promote industries with low environmental impacts.
(c) In the case of activities that are covered in the schedule to the Environment Impact Assessment notification number S.O. 1533 (E), dated le September, 2006, published by the erstwhile Ministry of Environment and Forests and are falling in the Eco-sensitive Area, except the projects and activities which are specifically prohibited under sub-para (1) shall be scrutinized and assessed for cumulative impacts and development needs before considering for prior environmental clearance by the Ministry under the provisions of the said notification.
(d) In particular and without prejudice to the provisions of the relevant Acts, in cases of diversion of forest land for non-forestry purposes in the Eco-sensitive Area, all information of the project, from application stage to approval shall be placed in the public domain on the website of the Ministry of Environment, Forest and Climate Change and of the Forest Department of the respective States.
(e) The requirements of prior informed consent under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) shall be complied with and the consent of Gram Sabha for undertaking projects and activities shall be mandatory."
7. Based on this, it is argued by the learned Counsel that the housing projects, which are not covered under the above category i.e. built up area more than 20,000 sq. mtrs., would not be covered in the prohibited category. Therefore, the constructions in question, which are alleged to have been constructed and questioned in the present original application, Page 5 of 8 fall in the permissible category, which would be governed by the local laws.
8. From the side of respondent No.1/Environment Department, learned Counsel Mr. Aniruddha Kulkarni has appeared, who apprised us that he does not want to file reply affidavit.
9. The learned Counsel for respondent No.2/PMRDA has filed reply affidavit dated 24.05.2023, where-in the details of the areas of construction made by all the respondents have been given individually, which are less than 20,000 sq. mtrs.
10. From the side of respondent Nos.6, 11, 27, 29, 33, 36, 40, 48, 57 & 66, learned Counsel Mr. Mukesh Gupta has appeared, who apprised us that he has filed reply affidavits on behalf of respondent Nos.6, 11, 29, 48, 57 and 66 and for rest of the respondents, contentions are also the same i.e. construction in question is below 20,000 sq. mtrs.
11. From the side of respondent No.7/Vijay Punjabi, for respondent No.42/Shekhar Dadarkar, for respondent No.43/N.L. Narula, for respondent No.44/M.S. Gilotra, for respondent No.46/Samir Sariya and for respondent No.51/Chandrakant Sajjanlal Choksi, learned Counsel Mr. Sachin S. Gore has appeared, who has filed reply affidavit, in which he too has stated that the constructions, which have been constructed by these respondents, are of less than 20,000 sq. mtrs. and have taken permission from all the concerned Departments. He also stated that the respondent No.42 has used his plot for agricultural purposes.
12. From the side of respondent No.18/D.B. Mowdawala and for respondent No.34/J. Rajanikant Shroff, learned Counsel Mr. Subit Chakrabarti has appeared, who apprised us that their constructions are Page 6 of 8 also less than 20,000 sq. mtrs. and moreover, he has also obtained permission from the Forest Department.
13. From the side of respondent No.28/Deepak M. Mehta, for respondent No.60/Lashit Lallubhai Sanghavi, for respondent No.61/ Mehernosh Daruwalla and for respondent No.65/Khurshid Daruwala, learned Counsel Mr. Yashraj Singh Deora has appeared, who has filed reply affidavits in which he submits that the constructions, which are constructed by these respondents, are less than 20,000 sq. mtrs.
14. From the side of respondent No.53/Sandhya Chanda Mohan Wadkar and for respondent No.62/Samir Shah, learned Counsel Mr. Sharang Chavan has appeared, who apprised us that he has filed reply affidavit, where-in he submits that the constructions, which the respondents have raised, are less than an area of 20,000 sq. mtrs. and moreover, he has also obtained permission from the Forest Department.
15. From the side of respondent No.58/Rahulbhai Dholkiya, learned Counsel Mr. Saurabh Kulkarni has appeared, who also apprised us that his construction is less than an area of 20,000 sq. mtrs. and moreover, he has moved an application for regularization of the construction before PMRDA, which is pending consideration.
16. Since the respondent No.2/PMRDA has clearly stated in their affidavit that notices have been issued under Section 53 Sub-Clause (1) of the MRTP Act 1966 to 37 unauthorized constructions and that the same is under consideration and they will proceed against them in accordance with law.
17. We find after having heard the arguments of learned Counsel for the respondent No.2/PMRDA as well as the other respondents, who have Page 7 of 8 appeared today, that the legal position is that if any construction is there in ESA (Economic Sensitive Area), which is more than 20,000 sq. mtrs., then only the question of EC would arise and not below that and in the case in hand, the constructions, which are said to have been constructed by the Private Respondents, are much below that and the same would be governed by the local laws. Under the said laws, notices have already been issued by the respondent No.2/PMRDA to individual owners and that the process is going on.
18. We do not find any substance in the present application, therefore, the same needs to be disposed of and is accordingly disposed of.
19. All pending applications, if any, also stand disposed of.
20. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM August 01, 2023 Original Application No. 33/2018(WZ) I.A. No. 148/2022(WZ) P.Kr Page 8 of 8