National Green Tribunal
Amit Maru vs The Secretary Ministry Of Environment ... on 21 November, 2023
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[Through Physical Hearing (with Hybrid Option)]
APPEAL NO.71 OF 2016 (WZ)
Amit Maru,
22, Opp. Block No.4/5,
Bhanjibhai Rathod Marg,
Tulsiwadi, Tardeo,
Mumbai - 400 034 .... Appellant
Versus
1. The Secretary,
Ministry of Environment, Forest
and Climate Change,
Indira Paryavaran Bhavan,
Jorbagh Road,
New Delhi - 110 003
2. Principal Secretary,
Environment Department,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032
3. Member Secretary,
State Level Environment Impact Assessment Authority,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032
4. Member Secretary,
State Level Environment Appraisal Committee-II,
Government of Maharashtra,
Mantralaya, Mumbai - 400 032
5. The Executive Engineer,
Building Proposal Department (Western Suburbs),
Municipal Corporation of Greater Mumbai,
Sanskriti Bhawan, 90-feet Road,
Kandivili East, Mumbai - 400 054
6. M/s Lokhandwala Construction Industries P. Ltd.,
48, Indranarayan Road, Santacruz (West),
Mumbai - 400 054 ....Respondents
[NPJ] Page 1 of 54
APPEARANCE :
Appellant : Mr. Aditya Pratap, Advocate
Respondents : Mr. Raghvendra Kulkarni, Advocate holding for
Mr. Rahul Garg, Advocate for R-1
Mr. R.B. Mahabal, Advocate for R-2, R-3 & R-4
Mr. Sameer Khale, Advocate for R-5
Mr. Piyush Raheja, Advocate for R-6
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
================================================================
Reserved on : 27.09.2023
Pronounced on : 21.11.2023
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JUDGMENT
1. This appeal has been preferred challenging the order dated 19.09.2016 passed by respondent No.2 - Principal Secretary, Environment Department, Govt. of Maharashtra, whereby the proposed directions under Section 5 of the Environment (Protection) Act, 1986 read with EIA Notification dated 14.09.2006 have been withdrawn holding that the project in question does not require Environmental Clearance (EC) under the provisions of EIA Notification dated 07.07.2004 and that there was no case of violation under the Environment (Protection) Act as well as EIA Notification 2006 and directed to obtain EC from the Competent Authority for any new/further construction to be carried out at site in question.
2. The facts of this case, in brief, are that the appellant, who is resident of Andheri area of Mumbai and is close resident of the site where the construction project in question is located. The construction at Kandivali (East), Mumbai on about 200 acres of land is being done without Environmental Clearance (EC), which area is popularly known [NPJ] Page 2 of 54 as Lokhandwala Township in Kandivali (East), Mumbai. It is being constructed in a massive area of about 5 lakh sq.mtrs. on a layout which shares its boundary with the highly eco-sensitive Sanjay Gandhi National Park. A report of the Municipal Corporation of Greater Mumbai (MCGM) dated 07.04.2016 states that fresh FSI area sanctioned from the cut-off date of 07.07.2004 of the EIA Notification, 1994 upto 14.09.2006 came into force is 1.41 lakh sq.mtrs. Further it is mentioned that fresh FSI area sanctioned from the cut-off date 14.09.2006 i.e. after EIA Notification 2006 came into force is 1.49 lakh sq.mtrs. Therefore, total FSI area constructed after the cut-off dates without EC stands at 2.90 lakh sq.mtrs.
3. The report of the Architect of the Project Proponent dated 25.04.2016 (Annexure-A2) states that fresh Built-up Area (BUA) (i.e. FSI plus Non-FSI area) sanctioned from the cut-off date 07.07.2004 upto 14.09.2006 stands at 2.16 lakh sq.mtrs while the fresh BUA (i.e. FSI plus Non-FSI area) constructed from the cut-off date 14.09.2006 stands at 2.55 lakh sq.mtrs. Therefore, the total area shown in the Architect's report is 4.71 lakh sq.mtrs. Despite above, the Member Secretary of the SEIAA - respondent No.3 usurping the statutory authority of the 3- Member SEIAA and purportedly assuming powers under Section 5 of the Environment (Protection) Act, 1986 has given clean-chit to the Project Proponent by the impugned order dated 19.09.2016. This mammoth construction work is sandwiched between the extremely congested Western Express Highway and the Borivali National Park. Despite the fact that the provision of EC was introduced on 07.07.2004, the amendment to the then prevailing EIA Notification, 1994 (Annexure- A5) and despite the fact that EC was valid only for a period of 5/7 years, yet the construction has been going on unhindered without any EC at all. The project was revised several times. Fresh layout was [NPJ] Page 3 of 54 sanctioned, fresh FSI infused through transfer of development rights and fungible FSI and the character of the project undergoing a sea- change from time to time, no EC was taken. These changes are clearly apparent from the Google Earth Satellite photographs and other documents.
4. The appellant has mentioned that he looked for grant of EC on the website of MoEF - respondent No.1 and it appeared that the Project Proponent had taken some EC. Thereafter, the appellant made a representation dated 28.08.2014 (Annexure-A7) to SEIAA to take action considering the fact that EC ought to have expired after five years and there was no record to show that the extension was taken, but no action was taken by the SEIAA on the said complaint. The appellant got a reply from Building Proposal Department of MCGM - respondent No.5 on 17.11.2014 (Annexure-A8) stating that the MoEF had exempted the Project Proponent from EC because 75% work had been completed before 07.07.2004. It was this cut-off date when the stipulation for EC was introduced for the first time through an amendment carried out in EIA Notification 1994 (copy of amendment is annexed at Annexure-A5). Since the refusal to take action by the respondent No.5 was incorrect, the appellant had sent a letter dated 03.02.2015 (Annexure-A9) wherein detailed five grounds on which the Project Proponent had faltered and did construction without mandatory EC. In that representation, inter alia, it was stated that if the scope of the project got altered, then fresh EC was required and that the size of the project was got altered several times after cut-off date 07.07.2004. Based on this representation, the Environment Department of the State of Maharashtra referred the matter to MCGM - respondent No.5 and sought report on action taken. A copy of which is annexed at Annexure-A10. Respondent No.5 - MCGM decided to take action against the Project Proponent and vide its [NPJ] Page 4 of 54 letter dated 01.09.2015 instructed the Project Proponent to obtain EC, but the Project Proponent defied such instructions and started giving occupation to residents without EC. Hence, respondent No.5 issued a show-cause notice to the Project Proponent dated 20.10.2015 (Annexure-A11) as to why they remained defiant to the stipulation of taking EC.
5. The Project Proponent persisted in its defiance and continued to allot the flats without EC pursuant to which another notice dated 23.11.2015 (Annexure A-12) was issued by respondent No.5 to the Project Proponent. Thereafter, a prosecution case was prepared against the Project Proponent, a copy of which is annexed at Annexure-A13. By this notice, respondent No.5 - MCGM has proposed to initiate action in accordance with Section 353(A) of the MMC Act, 1888 against the developer.
6. In the meantime, the appellant came to know that the Project Proponent was seeking EC from the SEIAA and that the matter was pending appraisal before the State Level Expert Appraisal Committee (SEAC). Accordingly, the appellant put up a representation dated 08.08.2015 (Annexure-A14) to SEAC, wherein it was stated that till the time the true facts related to large construction, which took place during the period from 2004 to 2015 without EC duly verified which should be done from the Google Earth Satellite photographs and actual Municipal Corporation record, the decision may be kept in abeyance and no Terms of Reference (ToR) be approved and that once it is verified that the construction had taken place without EC, action be recommended under Section 5 of the Environment (Protection) Act, 1986 and that since the National Green Tribunal had quashed the Office Memorandum (OM) of the MoEF dated 12.12.2012 and OM dated [NPJ] Page 5 of 54 27.06.2013 and that since the Project Proponent had done large construction without EC, the proposals be rejected.
7. Based on the above complaint, when the matter had come up before SEAC, it was found that there was lot of substance in the complaint and accordingly, the matter was referred to Environment Department/SEIAA to take action under Section 5 of the Environment (Protection) Act. This decision was taken in 35th meeting of SEAC held on 11th to 13th August, 2015, wherein the following was held:
"Proposal was for ToR for proposed Lokhandwala Township. It was informed that project is for expansion due to available FSI from fungible component. It was also stated that MOEF vide letter dated 06/03/2006 and 18/04/2006 informed that project does not require EC under the provisions of 07/07/2004 Notification for the component which were started prior to this date. Committee also noted the complaint submitted in August 2015 by Mr. Amit Maru for alleging violation in the project by undertaking construction post 2006.
PP also submitted list of the buildings for which plinth was completed after 07/07/2004 but prior to 14/06/2006. PP stated that total plot area is 8,52,476.80 m2, net plot area in residential zone is 2,35,205.30 m2 & total construction area of the project is 2,62,050.66 m2.
After discussion, following points emerged:
1. It was decided that PP to submit details of the permissions obtained from time to time for various phases to ascertain alleged violation, to Environment Department.
2. Committee decided to refer the matter to Environment Department/SEIAA for alleged violation.
3. Hence, Environment Department/SEIAA, after due verification, may initiate credible action for alleged violation under Environment (Protection) Act, 1986. Further, the proposal will be appraised afresh after due examination and appropriate decision taken by the SEIAA/Environment Department on alleged violation."
8. Based on the above observations of SEAC, the Environment Department of the Govt. of Maharashtra swung into action. After [NPJ] Page 6 of 54 considering the various facts stated in the representation made by the appellant, the Municipal Corporation and the Environment Department of the Govt. of Maharashtra conducted detailed enquiry so that the quantum of area of construction done without EC could be specified. During the enquiry, the following documents were taken into consideration:
(A) Letter dated 21st March, 2016 of the Law Officer of the Environment Department of the Government of Maharashtra, seeking information about the construction done after the Environment Impact Assessment Notification of 1994 and Environment Impact Assessment Notification of 2006 came into force (Annexure-A16).
(B) Letter dated 21st April, 2016, signed by Ms. Malini Shakar, then Additional Chief Secretary of Environment Department of the Government of Maharashtra. This letter conveyed the decision taken in the meeting of officers of the Municipal Corporation with the then Additional Chief Secretary, Environment, who was the predecessor of the Member- Secretary who issued the impugned order. (Annexure-A17). (C) Minutes of the meeting held by the Additional Chief Secretary of the Environment Department of the Government of Maharashtra, with the officers of the Municipal Corporation on 18th April, 2016. In this meeting, it was decided to seek a detailed Inspection Report on construction done without Environment Clearance. (Annexure-A18).
9. Suddenly, while these actions were going on, the Additional Chief Secretary of the Environment Department - respondent No.2 got transferred prematurely and in her place, the present incumbent joined and issued the impugned order. The new Member Secretary after assuming the charge of the Environment Department of the State of Maharashtra started the process of issuing directions under Section 5 of the Environment (Protection) Act, 1986, but shockingly while doing so, he simply ignored all the incriminating reports of the Municipal Corporation which have been cited above as Annexure-A16, Annexure- A17, Annexure-A18, Annexure-A1 and Annexure--A2. [NPJ] Page 7 of 54
10. The Member Secretary, instead of putting up the matter to the SEIAA, which is a 3-Member body, usurped the powers of the SEIAA and single handedly started proceedings and passed the impugned order. The grounds on which the impugned order has been assailed are mentioned in paragraphs 3.1 to 3.7 of the appeal memo, which are as follows:
(I) The EIA Notification, 1994 was amended on 07.07.2004, which brought into its scope such construction projects which inter alia had an investment of over Rs.50 crores. For this reason, the Project Proponent had approached the Competent Authority i.e. MoEF to grant EC. However, for the reasons best known to the Project Proponent, it was stated by him that the project was sanctioned in the year 1989 and that 75% of the work was completed, hence no EC was required. Based on this submission, the MoEF passed an order on 06.03.2006, stating therein "a scrutiny of the documents and layout plan indicates that more than 75% of the work has been completed prior to 07.07.2004.
Keeping this in view, the above stated project at CTS No.171/1A/70, 192, 195 at village Akruli does not require EC under the provisions of Notification dated 07.07.2004. However, if any change in the project development/scope of the project is envisaged, prior permission of the MoEF shall be obtained as per regulations."
After issuance of Notification dated 07.07.2004, the plans were changed several times. It is apparent from the following documents:
(A) Fresh layout was sanctioned by the Municipal Corporation on 26.07.2005, as per which several planning parameters were changed. A copy of the approval of fresh layout is annexed at Annexure-A23.
(B) Even the layout plan of 2005 underwent a further change, which is apparent from the following documents:
[NPJ] Page 8 of 54
(a) Reduced size cropped layout plan approved in the year 2005 (with supplied illustrations showing that the layout which is finally emerged was different);
(b) Final layout plan based on which the current buildings have been made (with supplied illustrations showing the changed layout) (Annexure-A25);
(c) Google Earth Satellite photograph dated 11th April, 2016 (with supplied illustrations) showing that the layout of the area is different than what was approved in the year 2005 (Annexure-A26) and (B) The letter of the Municipal Corporation dated 07.04.2016 (Annexure-A1) shows that fresh plans for various buildings were approved 22 times separately, after the cut-off date 07.07.2004.
This information that several changes were made several times was in possession of the Municipal Corporation and the same was submitted by the Corporation to the Environment Department of the Govt. of Maharashtra on 07.07.2016 because of which the Municipal Corporation stipulated that the Project Proponent should get a fresh EC before the buildings could be occupied. A copy of the letter of the Municipal Corporation to that effect dated 20.10.2016 (Annexure-A11) states that "in continuation to this above referred letter, this office staff has observed in routine site visit on 14.10.2015 that some of the flats of the building are occupied unauthorisedly." "As per the above letter, you (Project Proponent) were required to submit fresh EC from MoEF before parting with the possession of the flats to prospective buyers." The offence caused by the Project Proponent is punishable under the provisions of Section 353(1)(A) of the MMC Act, 1888 and under the provisions of the Environment (Protection) Act, 1986. That, you (Project Proponent) are instructed to submit explanation within 15 days from the date hereof for willful violation of above [NPJ] Page 9 of 54 provisions. Please note that in case the explanation is not received and/or the same is not satisfactory, next course of legal action shall be initiated against you as per the powers delegated.
Based on the above facts, it is mentioned by the appellant that the scope of the project and its size changed several times after 07.07.2004, which fact was suppressed by the Member Secretary when he issued the impugned order and gave a clean-chit to the Project Proponent. It is quite apparent that due to change in the scope of the project, the fresh EC was required.
(II) One of the reasons why the Member Secretary gave a clean-chit to the Project Proponent was that he accepted the statement of the Project Proponent that 75% of the work of the project had been completed by 07.07.2004. In fact, as per the report of the Municipal Corporation (Annexure-A1) time to time FSI sanctioned for the project was (i) before the cut-off date 07.07.2004 of 2.70 lakh sq.mtrs. and (ii) after the cut- off date was 2.90 lakh sq.mtrs. Thus, the total claim that 75% of the work had been completed on the cut-off date is untenable and contrary to the above facts.
The position which existed in the year 2004 can be seen from comparing the Google Earth Satellite photograph dated 24.11.2004 (Annexure-A27) with the one which was of 23.01.2015. The comparison of the two satellite photos would show that the massive buildings were made later on which was far more than the remaining 25%. This position has been explained and illustrated more particularly in the marking made in the Google Earth Satellite Photograph dated 23.01.2015 (Annexure-A28) where old and new buildings have been duly illustrated.
The Architect of the Project Proponent has himself admitted in his letter dated 25.04.2016 (Annexure-A2) that the built-up area of about 4.80 [NPJ] Page 10 of 54 lakh sq.mtrs has been constructed after the cut-off date. It is apparent that the Project Proponent made an incorrect submission which was duly accepted by the Member Secretary without any verification. (III) In the case in hand, the Project Proponent asserted itself that the project was approved in the year 1989 and till year 2004, there was no change in the magnitude of the project. It was based on such assertions that the MoEF vide its letter dated 06.03.2006, exempted the Project Proponent from environmental clearance stipulations. However, it is seen that there have been changes made in the town planning regulations i.e. the Development Control Regulations of Greater Mumbai, 1991 where the Floor Space Index (FSI) got enhanced from time to time through the mechanism of the Transfer of Development Rights. It is further seen that in the year 1980, Development Control Rules, 1967 were in force and under the said Rules, there was no concept of TDR. When the Development Control Regulations for Greater Mumbai, 1991 got introduced, the grant of TDR was conservative and that the FSI could be enhanced maximum by 0.8 This, however, was increased to 1 for the suburbs later. Again, in the Development Control Rules, 1967, the list of constructed areas in a building having free FSI was very less. This was liberalized with the coming into force of the development Control Regulations for Greater Mumbai, 1991. A list of areas free of FSI as available in Development Control Rules, 1967 is annexed as Annexure-A29 and a list of areas available free of FSI in Development Control Regulations for Greater Mumbai, 1991 is annexed as Annexure-A30. Thus, it is apparent that the area of the entire project got substantially enhanced vis-à-vis what was contemplated in the year 1989. For this reason, it had become an expansion project for which Environmental Clearance was required. But the Project Proponent did not take any prior EC. Further it is mentioned that the [NPJ] Page 11 of 54 letter of the Municipal Corporation (Annexure-A1) and the letter of the Architect of the Project Proponent (Annexure-A2) show that there were several approvals obtained after the cut-off date, hence, the same would come under the expansion of the project for which EC was required as per the provisions of EIA Notification, 2006.
Considering the above, it becomes desirable that the Project Proponent must abide by its own submissions made before the MoEF, stating that the scope of the project was that which was prevailing in the year 1989. For this reason, going by the principle of estoppel, the Project Proponent ought to owe up only that area and buildings which were approved under the 1989 layout. Thus, all the buildings and floors, which were approved in 1989 should be made subject to demolition. (IV) The incriminating evidences against the Project Proponent (Annexure-A11, Annexure-A12, Annexure-A16, Annexure-A17 and Annexure-A18) were all ignored by the Member Secretary, who joined in the place of earlier Member Secretary and passed the impugned order, which is required to be set aside.
(V) Since the Area Development Project is being constructed, which is of enormous size of 200 acres abutting Sanjay Gandhi National Park, which is a highly eco-sensitive area, the Project Proponent was required to have permission of the Standing Committee of the National Board for the Wildlife before starting the construction, but no such permission has been taken. Therefore, the Project Proponent is liable to pay heavy damages under the "Polluter Pays" principle.
(VI) By this ground, it is submitted that the extra construction done is beyond the plans approved in the year 1989 which ought to be removed. This ground appears to be repetition because we have already mentioned above that after the Project Proponent having declared that the project was approved in 1989 and that 75% of the construction was [NPJ] Page 12 of 54 over, based on which the MoEF exempted the Project Proponent from EC stipulations.
(VII) This ground appears to mean that the appellant wants an action to be taken against the Member Secretary who passed the impugned order for having suppressed the facts and not taking cognizance of all relevant information which was available.
11. This matter was first considered by us on 26.10.2016 when the directions were issued to issue notices to the respondents.
12. From the side of respondent Nos.2 to 4, affidavit-in-reply has been filed, wherein it is submitted that this appeal is not maintainable under Section 16 (g) of the National Green Tribunal Act, 2010 because the said Section does not provide for challenging any letter conveying a decision to drop the proposed directions under Section 5 of the Environment (Protection) Act. This appeal is also opposed on the ground of limitation because the appellant is indirectly seeking various issues relating to the year 2006, a decade ago. In order to bring the appeal within limitation, reference has been made to some recent letters to set up a cause of action, which is legally unacceptable. In the present case, no directions were issued under Section 5 of the Environment (Protection) Act. Even if the directions would have been issued, aggrieved party would have been the Project Proponent against whom it was to be issued. When the details as submitted by the Project Proponent were heard, it was found that there was no reason to issue directions. Accordingly, the impugned letter dated 19.09.2016 was sent conveying the decision of respondent No.2 that the proposed directions under Section 5 have been dropped. As such, there is no cause of action of appeal to anyone. No remedy lies before this Tribunal. There is no provision under Section 16(g) of the NGT Act to challenge a letter conveying the decision of not issuing the directions under Section 5. The Principal Secretary has very [NPJ] Page 13 of 54 much power to hear the matter on merit and there is no question of usurping any powers of the SEIAA Maharashtra vide Gazette dated 28.02.2014. Mere perusal of it would show that the powers of SEIAA are to the extent "....in case of violation of the conditions of the environment clearances issued by the said Authorities to projects....". However, in the present case, the Environmental Clearance was not granted and that the MoEF had categorically conveyed by that the project did not require EC under the provisions of Notification dated 07.07.2004. As such, SEIAA Maharashtra does not have jurisdiction on this project as no EC was required and there was no EC for this project. The Gazette did not say anything in such cases where no EC was required or applicable. The SEIAA has no delegated authority to deal with the matter.
13. It is further submitted by the answering respondents that when the complaint was received from the appellant, a proper enquiry was conducted in the matter by writing to various authorities concerned such as MCGM and MPCB from whom information was sought by the Principal Secretary, Environment Department, Govt. of Maharashtra. The show-cause notice (SCN) was issued to the Project Proponent by giving an opportunity of hearing on the principles of natural justice and the amendment dated 07.07.2004 to the EIA Notification, 1994 lays down that "New construction projects which were undertaken without obtaining the clearance......where work has not come upto the plinth level, shall require clearance." It makes clear that those projects which have come upto plinth level would not attract the provisions of amendment dated 07.07.2004 of EIA notification. The words used are "projects and work" and not "the plinth of a building". Therefore, the above expression would denote many plinths of various buildings, even if of the same project. The said amendment would make it clear that [NPJ] Page 14 of 54 new projects undertaken which have not come upto plinth level, only will need EC. The degree of project completion was not the criteria. The project that were having population above 1000, project cost above Rs.50 Crores and effluent above 50 sq.mtrs/day and if the work had not come upto the plinth level were requiring EC as per the EIA Notification amendment dated 07.07.2004. If the plinth level work had been completed, the non-applicability of the EIA Notification was clear, without any extra rider/s. It also does not say that if there are many buildings, then the plinths of all buildings are to be completed or a plinth work completed has to be certain percentage of the total project. The MoEF in its own wisdom a decade ago, has confirmed that the project work was completed upto 75% and hence, would not need EC as per Notification dated 07.07.2004. The non-applicability of EC requirement was blanket without any extra riders/conditions, if the work had come upto plinth level.
14. It is further submitted by the answering respondents that respondent No.2 had extended personal hearing to the Project Proponent on 26.08.2016, during which, the Project Proponent was directed to submit oral submissions in affidavit form alongwith the copy of the layout plan prepared by their Architect to be hatched in layout. According to it, the four buildings constructed on plot No. DH were included in plan submitted to the then EAC-MoEF for grant of EC under the provisions of the EIA Notification dated 07.07.2004 and the proof of adequate environmental mitigation measures taken in respect of these four buildings was also submitted. The Project Proponent had submitted the said information vide notarized affidavit dated 01.09.2016 alongwith copy of the layout plan by hatching the layout these four buildings are shown on the layout on plot No. DH, which were included in the plan submitted to the EAC for grant of EC under [NPJ] Page 15 of 54 the EIA Notification dated 07.07.2004. The layout plan was duly certified by Shri Umesh Vartak of the Project Proponent. The Project Proponent had also submitted proof of adequate environmental mitigation measures taken by them in respect of these four buildings on Plot No. DH bearing CTS No.171/1A/60 of village Akurli, Kandivali (East), wherein it is stated that at one of the point that the Project Proponent has made provision of 270 sq.mtrs/day sewage treatment plant and the treated water will be used for flushing and gardening. A copy of the affidavit is annexed at Annexure-A.
15. Further it is submitted that it was noted from the amendment that the projects were excluded from EC even if work had come upto plinth level, irrespective of percentage or degree of completion of the project/work. Based on the reports of the MCGM, MPCB and information submitted by the Project Proponent, a decision was taken by respondent No.2 that there was no reason for respondent No.2 to read additional conditions for exemption to this work ongoing from 2004 to make the EC applicable now in 2016. All the allegations which are leveled against respondent No.2 regarding propriety of respondent No.2 to deal with such cases of violation usurping the powers of SEIAA Maharashtra, interpretation done by respondent No.2 to drop the directions under Section 5 of the Environment (Protection) Act are categorically denied.
16. The stand taken by respondent No.6 - Project Proponent, vide their affidavit dated 12.12.2016, is that the appeal is not maintainable. The answering respondent is a private limited company carrying on business of construction and real estate development in the city of Mumbai, which has acquired rights, inter alia, in plot of land bearing CTS No.171/1A/1 to 171/1/1A/70,, 192 to 195, situated at village Akurli, Taluka Borivali, Kandivali (East), Mumbai, admeasuring about [NPJ] Page 16 of 54 200 acres. After having acquired the rights over it, the answering respondent commenced the procedure for development of a single layout/township on the said property. It submitted the requisite documents and building plans to the MCGM in the year 1980. The plan for the proposed development of a single layout/township involved inter alia the following development activities:
(a) Creation of infrastructure facilities such as water supply, sewer lines, storm water drains, D.P. Roads and street lights. The above infrastructure would expand over the entire plot of land including buildable and non-buildable reservations such as schools, playgrounds, recreation grounds, gardens, public housing, dispensaries etc., which are provided for in the said layout and not just the buildings to be constructed by the Respondent No.6.
(b) Construction of amenities as per Reservations provided for in the layout of the plot.
(c) Construction of buildings consisting of residential cum commercial tenements.
(d) Construction of 16 Building and 1262 LIG Cluster Houses (called "MHADA obligation building")."
17. According to the answering respondents, the most critical part of the layout of the project is creation of infrastructure facilities which require significant time, money and expenses from environmental perspective. Following works had been completed as per the dates mentioned in the table below:
Sr. Infrastructure Date of Date of
No. facility approval completion
1 Water mains 17.6.1991 22.5.1996
2 Drainage system 26.3.1990 13.1.1999
3 Storm water 5.3.1990 1991 to
drains 1995
4 D.P. Road Between 14.5.2004
30.10.199 (handed
3 to over to
9.5.1994 Respondent
No.5,
[NPJ] Page 17 of 54
except for a
small
portion
encroached
by slum)
18. The above infrastructural facilities were for entire layout, i.e. 79 buildings in the said layout/township, 16 buildings for Maharashtra Housing and Area Development Authority (MHADA) and 1262 LIG Cluster houses. Out of these, as on July, 2004, the answering respondent had completed 46 buildings and handed over possession thereof to various flat purchasers after obtaining Occupation Certificate from time to time and the plinths of four buildings were completed. In addition, 16 buildings and 1262 LIG Cluster houses of MHADA had been completed by July, 2004. Prior to the year 2004, building construction projects were not required to obtain EC under the EIA Notification dated 27.01.1994, which was amended subsequently by Notification dated 07.07.2004, wherein Schedule-I of the Notification was amended by insertion of a new item at Sr.No.31 under the heading `New Construction Project' which was defined to be a construction project catering to more than 1000 persons or discharging sewerage of 50,000 liters per day or an investment of Rs.50 crores or above. It was further mentioned that a new construction project which had been undertaken without clearance under the Notification, where the construction work had not come upto plinth level, would require clearance under the Notification w.e.f. 07.07.2004.
19. It is further submitted in the affidavit that due to the above Notification, there was a confusion in the MCGM as to whether the project of the answering respondent, which was a single layout/township project, being executed since 1989, would also require EC. Thus, when answering respondent, in the year 2005, approached the MCGM for obtaining further approvals, it was informed that the [NPJ] Page 18 of 54 project may fall within the purview of 2004 Notification and the MCGM insisted that answering respondent must obtain the clearance from the MoEF. The answering respondent to satisfy the condition of 2004 Notification, undertook steps for submitting a proposal for approval under the said Notification and for this purpose, the answering respondent engaged one Environment Consultant viz. M/s Gadark Lab Pvt. Ltd., who prepared an Environment Impact Assessment Report (EIA Report) in which the status of the project was detailed including completion of the infrastructure services and the progress in construction of buildings. In that report, it was elaborately disclosed that out of the total built up area of 6,68,426.03 sq.mtrs., an area of 2,73,243.48 sq.mtrs. had already been constructed leaving a balance area of 3,99,639.00 sq.mtrs. to be constructed. The report also disclosed that it had handed over an area of 96,690.50 sq.mtrs. to the MHADA as per the ULC conditions for the development of the said property.
20. It is further submitted that the answering respondent participated in public hearings organized by the MPCB in Mumbai on 12.12.2005. Pursuant to the aforesaid procedure, the answering respondent sent a letter dated 28.12.2005 addressed to the Director of Environment Impact Assessment Division (IA) of the MoEF, thereby submitting the EIA Report and Minutes of the Meeting of public hearing together with application form and questionnaire with enclosures for scrutiny and grant of EC. The answering respondent thereafter made a presentation before the EAC of MoEF in its meeting held from 4th to 6th February, 2006 for grant of EC for the said entire layout. At the said meeting, after an assessment of the extent of development already completed in the said layout, it was advised by the said Committee that a clarification be submitted before it as regards the applicability of 2004 MoEF [NPJ] Page 19 of 54 Notification, as the project was at an advanced stage of completion. The Minutes of the said Meeting were not provided to the answering respondent. Therefore, it tried to obtain its copy under the Right to Information Act but were not made available till date. Thereafter, the answering respondent addressed a letter dated 18.02.2006 to the MCGM pointing out the aforesaid facts in respect of the development of the project as a single layout/township and requested the MCGM to issue a certificate to the answering respondent confirming that the construction in the said layout/township was a single construction project wherein various infrastructure facilities have been developed as per the norms of the MCGM after handing over various reservations such as gardens, BEST plot and DP Road and with further development of reservation plots which were in progress. In response to the said letter, the MCGM, vide letter dated 20.02.2006, confirmed the details as sought by the answering respondent in their aforesaid letter, including the fact that the project was being developed as a single township project and that it was an old project going on since 1989. The answering respondent thereafter addressed a letter dated 24.02.2006 to the Director (IA) for clarification of the applicability of 2004 MoEF Notification and also forwarded the letter dated 20.02.2006 issued by the MCGM as well as the details of approvals and sanctions given for the project from time to time and submitted before the Director - IA the EIA Report showing the constructed area and the balance area on which development is proposed. The Director (IA), vide letter dated 06.03.2006, informed the answering respondent that the matter had been examined by the MoEF and a communication was made to the answering respondent, stating as follows:
(a) Approvals and sanctions had been obtained by the State Government and local planning authorities and the project had been executed since the year 1989.
[NPJ] Page 20 of 54
(b) The project was in an advanced stage of completion as per the provisions of the D.C. Regulations in force.
(c) The documents and layout plan indicated that 75% of the work had been completed prior to 7.7.2004 Keeping this in view, the Director (IA) confirmed that the project in question does not require EC under the provisions of 2004 MoEF Notification. However, if any change in the project development/scope of the project is envisaged, prior permission of the MoEF shall be obtained as per the regulations.
21. Further it is mentioned that the figure of 75% completion was reckoned on account of the following factors:
i. Entire environmental infrastructure being laid by respondent No.6 in respect of the said layout as stated above.
ii. Out of 79 buildings as proposed, 50 buildings have been constructed and occupation certificate thereof issued by Municipal Corporation of Greater Mumbai (MCGM) consuming built up area of 2,70,182.20 sq.mtrs.
iii. The plinth of 6 buildings already completed. iv. The MHADA obligation buildings (16 buildings and 1262 LIG barracks) were already constructed.
The details of the said 75% completion of the project are given in tabular form and annexed as Exhibit-J (page 342 of the paper-book), which is reproduced hereinbelow:
Description Unit
a. Gross area of the holding Sqm 852477
b. No. of buildings completed prior to
7/7/2004
By Lokhandwala Construction 50
Industries Pvt.Ltd.
c. By MHADA in the land handed over to 15
Govt.
d. u/s 20 of ULC (C&R) Act 1262
(L.I.C.
structures)
[NPJ] Page 21 of 54
e. No. of buildings 29
proposed/sanction/u.c.
f. Built up area of the buildings
completed prior to 7/7/2004
g. By Lokhandwala Construction Sqm 273243
Industries Pvt.Ltd.
h. By MHADA in the land handed Sqm 131971
over to Govt.
u/s 20 of ULC (C&R) Act
i. Total built up area of the Sqm 387214
buildings completed prior to
7/7/2004
j. Built up area of buildings Sqm 399639
proposed/sanction/u.c.
k. Total built up area of Buildings in Sqm 786853
the project
l. % completion area basis (approx.) 50%
m. Total infrastructure completed in 24.86%
the project (cost converted into
area)
n. Total work completed on % of 74.86%
construction
22. The answering respondent in the meantime obtained Consent to Establish dated 28.12.2005 under the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Hazardous Waste (Management and Handling) Rules, which has been granted for the entire layout/township without restriction of any area of development and construction which is valid till the completion of construction (Exhibit-
M).
23. It is further submitted that the MoEF issued a circular dated 21.11.2006 stating therein that the project which did not require EC under Notification of 2004, now requires the same under 2006 Notification and that the projects for which NOCs had already been issued by the State Pollution Control Board would not require to take clearance under the 2006 MoEF Notification. Copy of the said circular is annexed as Exhibit-P. [NPJ] Page 22 of 54
24. Further it is mentioned that since the answering respondent's project was exempted from the purview of MoEF Notification, 2006, as the answering respondent had obtained the Consent to Establish on 28.12.2005 for the entire project.
25. It is further mentioned that by amendment in Development Control Regulations (DCRs) dated 06.01.2012, the concept of fungible compensatory FSI which could be availed after payment of premium to the MCGM, was introduced in the DCR, 1991 for the city of Mumbai. On introduction of fungible FSI, the overall FSI potential of the proposed development on the said layout increased by approximately 35% on the available FSI as per DCR, 1991. Since utilization of fungible FSI would have resulted in change of scope in the area represented by the answering respondent to the MoEF at the time of obtaining exemption from the MoEF vide its aforesaid letter dated 06.03.2006, the answering respondent filed an application with respondent No.3 - SEIAA dated 06.01.2014 for appraisal of the project for the limited purpose of utilization of fungible FSI on the proposed future development of the balance area in the said layout. Thereafter, the answering respondent, for the reasons stated in the letter dated 09.09.2015 (not annexed) withdrew the application dated 06.01.2014 for appraisal of the project.
26. Further it is stated that the answering respondent further continued the construction of the buildings which were already sanctioned and approved by the MCGM in accordance with the sanctioned plan, without utilizing any fungible FSI. One of these buildings was building no.2 (known as Octacrest) comprising of 8 wings (A to H) being constructed by the answering respondent on sub-plot E in the said layout/township. The plans of the said building were first approved on 27.04.2004, which were revised from time to time and [NPJ] Page 23 of 54 such last approval was dated 30.08.2011. The Commencement Certificate for the said buildings was issued by respondent No.5 on 23.07.2004 and extended from time to time as per the stage of construction, with such last extension being granted on 05.10.2011.
27. Further it is mentioned that apart from the aforesaid building No.2, in the meantime, the answering respondent also constructed four other buildings being building No.1 i.e. Vesta comprising of stilt + 7 upper stories, building Nos.3 and 4 i.e. Spring Grove UNO comprising of 9 wings with each wing having stilt + 7 upper stories and building No.2 i.e. Spring Grove Towers comprising of 4 towers with stilts, two podiums and 16 to 18 upper stories. All the above buildings have also been constructed by the answering respondent strictly in accordance with plans approved by respondent No.5. The plans in respect of building No.1 were approved on 27.10.2008 and the plans were revised and last such approval was granted on 21.03.2011. The plans for building nos.3 and 4 were approved on 14.05.2010. The Commencement Certificate thereof was granted on 18.08.2010 and the last such approval is dated 13.06.2011. The plans for building No.2 were approved on 14.05.2010 and the Commencement Certificate in respect thereof was granted on 18.08.2010. The last such approval was granted on 19.09.2013. The answering respondent completed construction in respect of building no.1 situated at plot-DH and the MCGM issued full Occupation Certificate in respect thereof on 05.01.2013. As per ULC order dated 04.08.2010, the answering respondent has handed over the possession of building No.1 to the MCGM which issued possession receipt on 28.08.2013 in respect thereof.
28. Further it is mentioned that on 28.08.2014, the appellant made a complaint about construction activity being carried out by the answering respondent on the said layout to SEIAA falsely alleging that [NPJ] Page 24 of 54 the EC had been granted on 19.05.2006, which was valid for the period of five years and expired on 18.05.2011. Therefore, he contended that no further construction could have been carried out without fresh clearance. The said complaint of the appellant was not bonafide, was rather part of extortion tactics adopted by him. The MCGM, vide letter dated 17.11.2014, responded to the complaint that under the letter dated 06.03.2006, the MoEF had clarified that no further clearance was required by the answering respondent under 2004 MoEF Notification.
29. Based on the complaint made by the appellant, vide letter dated 11.03.2015, the MCGM wrote to the answering respondent and sought response in respect of the complaint made by the appellant. The answering respondent's Architect, vide his letter dated 25.03.2015, dealt with the same, wherein it was made clear that the layout was approved in 1989, which was amended from time to time and last such approval being granted on 30.07.2005, but the boundaries of the land under the layout did not change. The answering respondent also pointed out that exemption was granted by the MoEF on 06.03.2006 after the final approval of the layout/township on 30.07.2005. The relocation of the reservations within the layout/township did not amount to change in the scope of the layout/township or increase in the aggregate permissible built up area in the layout/township. The exemption in the year 2006 was granted after verifying and confirming by the MoEF that the project was going on since 1989 and substantial work had been completed prior to the cut-off date. The consumption of balance permissible built up area within the layout did not amount to expansion of the project.. Same reply was also sent by the answering respondent's Architect to the MCGM as well. The answering respondent's Architect, vide letter dated 18.05.2015, addressed to the MCGM, forwarded a copy of the EIA report which had been submitted to [NPJ] Page 25 of 54 the MoEF and MPCB in the year 2005-06, which was accessible at the time of public hearing held by MPCB on 12.12.2005. The said EIA report considered the land development details of the entire project including the utilization of Transfer of Development Right (TDR). The letter issued by the Director, MoEF to the Project Proponent communicating that looking to the fact that the layout indicated that its 75% work had been completed prior to 07.07.2004 at village Akurli, it did not require EC under the provisions of Notification dated 07.07.2004. The letter dated 06.03.2006 was issued by the Impact Assessment Authority of MoEF and had considered this report while concluding that the major work of the project had been completed. By another letter dated 18.05.2015, a copy of the EIA report was also forwarded to MCGM. It is further submitted that the answering respondent had received a letter from MCGM - respondent No.5 referring the complaint of the appellant and seeking their response. The respondent No.5 sought copies of the permissions obtained by the answering respondent for carrying out the construction of the project. It is submitted that in the said letter of respondent No.5, an unjust attempt was made to link the existing construction of the answering respondent with its pending application for grant of EC for utilization of fungible FSI (this EC related to fungible FSI which the answering respondent had moved and does not relate to the present dispute).
30. Further it is mentioned that the flat purchasers of building No.2 who were not being permitted by the answering respondent to occupy their respective flats though the same were fully ready, formed a Co- operative Society i.e. Octacrest Cooperative Housing Society Ltd., which took the matter in their own hand. Some of the said flat purchasers have despite objections from the answering respondent, attempted to start occupying their flats out of sheer frustration and desperation [NPJ] Page 26 of 54 because of MCGM's delay in issuance of Occupation Certificate for their building due to false and motivated complaints made by the appellant. Thereafter, the answering respondent received a letter dated 02.12.2015 from SEIAA, alleging that it was obligatory upon the answering respondent to obtain EC as per the EIA Notification, 2006 and issued a show-cause notice as to why action be not taken against the answering respondent. This show-cause notice was replied by the answering respondent by letter dated 11.12.2015 saying therein that EIA Notification, 2006 was not applicable in view of the clarification of MoEF itself. Pursuant to the said letter, a letter dated 08.01.2016 was issued by SEIAA fixing 15.01.2016 as hearing date in the matter. On the said date, the answering respondent submitted all the documents related to the total built up area of 50 buildings constructed prior to 04.03.2005 and the balance built up area of remaining 29 buildings. The answering respondent was also directed to clarify the work done in the project which showed that 75% of the project had been completed prior to 06.03.2006. Besides that, several clarifications were also sought from the answering respondent. The answering respondent also submitted an affidavit dated 22.03.2016 setting out the details related to the layout which had been developed by it from time to time and the balance development was to be carried out, a copy of which is annexed as Exhibit-NN.
31. Further it is mentioned that a meeting was held on 18.04.2016 between respondent No.3 - SEIAA and respondent No.5 - MCGM in which respondent No. 5 informed respondent No.3 that the layout of the project had not been changed after EIA Notification, 2006. Respondent No.5 was directed to submit information in respect of the buildings constructed by the answering respondent in the said project. Respondent No.5, in turn, sought information from the answering [NPJ] Page 27 of 54 respondent in respect of non-FSI area, which had been constructed on the layout after 2004 EIA Notification, which was provided through letter dated 25.04.2016. Thereafter, respondent No.3 - SEIAA had informed the answering respondent vide letter dated 23.05.2016 that it had allegedly not sought EC for four buildings constructed on plot No.DH within the said layout and hence, a show-cause notice was issued to the answering respondent as to why action be not taken against them. The said show-cause notice was replied vide letter dated 08.06.2016 stating therein that all the buildings, including the buildings for which development permissions were granted in 2008 and 2010, had been disclosed to MoEF prior to the clarification dated 06.03.2006 issued by the MoEF and as such even these buildings would be covered by the clarification dated 06.03.2006. Subsequently, on 26.08.2016, the answering respondent was summoned by respondent No.3 SEIAA for personal hearing wherein the officers of the MPCB and respondent No.5 - MCGM were also present. In that, the answering respondent presented all necessary information and documents sought by respondent No.3 - SEIAA and once again reiterated the contentions in respect of non-applicability of EIA Notification, 2006 and sought withdrawal of the proposed directions. Pursuant to the said meeting, the answering respondent addressed a letter dated 01.09.2016 to respondent No.2, enclosing its affidavit dated 01.09.2016 reiterating the answering respondent's submissions in respect of clarification dated 06.03.2006 being applicable to four buildings, which, as per respondent No.2, were not in violation of EIA Notification, 2006. Having regard to the clarification given by the answering respondent as well as clarification obtained by respondent No.2 from respondent No. 3 as well as MPCB, respondent No.2 issued a letter dated 19.09.2016 withdrawing the proposed directions. [NPJ] Page 28 of 54
32. According to the answering respondent, the appellant has tried to establish that there was change in the layout based on Google Earth Images. The correctness of the same has been denied by the answering respondent. It is also denied that the answering respondent's property shares a boundary with Borivali National Park. The answering respondent has also not used any fungible FSI in the layout till date and as and when the same would be proposed to be used, the answering respondent would take all steps in accordance with law for utilization of the same. According to the answering respondent, the EC, which has been relied upon by the appellant in paragraph 2.10 in favour of the answering respondent, is in respect of the project at Thane and not with respect to Kandivali project at all. The appellant has started making false complaints only in order to extort money.
33. It is further mentioned that the answering respondent had filed Writ Petition No.2861 of 2015 before the High Court of Bombay, challenging the condition imposed by respondent No.5 - MCGM, which is still pending. The answering respondent has not permitted any person to occupy the flats, rather a police complaint has been filed by him when forcible possession was taken by few flat purchasers. Copies of the police complaints are annexed as Exhibits "SS1 to SS2". The society of flat purchasers, who have taken forcible possession, has also addressed letters dated 20.11.2015 and 22.07.2016 to respondent No.5
- MCGM, pointing out that some of the members of the society had taken forcible possession despite resistance from the answering respondent. Copies of those letters are annexed as Exhibit-TT1 and TT2. The prosecution cases launched by the Corporation are being defended by the answering respondent, which are outside the purview of the Tribunal under Section 16 of the NGT Act.
[NPJ] Page 29 of 54
34. As regards the allegation of the appellant that respondent No.2 did not have the authority to issue the impugned letter, it is pertinently mentioned that in the minutes of respondent No.3 - SEIAA, which are relied upon by the appellant himself, it is shown that the matter had been referred by the SEAC to the Environment Department i.e. respondent No.2 to take action. Pursuant to the directions of the SEAC, even a show-cause notice was issued by respondent No.2 and not by SEIAA and all the correspondence and meetings were held by respondent No.2 and not by SEIAA. It is further submitted that if the contention of the appellant that respondent No.2 did not have authority to issue the impugned letter as the same was vested in SEIAA, is accepted, then the action initiated in the form of issuance of the impugned letter by respondent No.2 would be without jurisdiction, which may be treated to be nullity. Hence, the same would not be requiring any challenge to be made by the appellant.
35. Further it is clarified that respondent No.2 has initiated the entire proceeding in his capacity as Principal Secretary of the Environment Department and not in his capacity as the Member Secretary of the SEIAA. Mere fact that respondent No.2 holds this dual capacity does not mean that he would have to refer the matter to SEIAA when no consent was taken from SEIAA for issuing the proposed directions under Section 5. Therefore, the contention of the appellant is devoid of any merit.
36. Further it is mentioned that the reliance is being placed by the appellant on the letter dated 06.03.2006 of the MoEF to contend that if there was change in the scope of work, then approval had to be obtained by the answering respondent. In this regard, it is submitted that respondent No.5 - MCGM in its meeting dated 18.04.2016, confirmed to respondent No.2 that the answering respondent had [NPJ] Page 30 of 54 carried out construction as per layout sanctioned from time to time, the last being of 30.07.2005 i.e. prior to 06.03.2006, the date of letter of MoEF. In its representation to the MoEF in 2006, the answering respondent had disclosed the quantum of FSI and TDR which would be used for construction of the said plot and even today, the FSI and TDR used is below the figure represented to the MoEF in 2006. Therefore, there was no change in scope in the area of construction, which requires the answering respondent to obtain fresh permission in accordance with the letter dated 06.03.2006.
37. As regards the objection of the appellant to the 75% of the work being alleged to have not been completed prior to 07.07.2004, it is submitted that the appellant has restricted himself to the built-up area of the building in the project without considering the ancillary and supporting infrastructure works done in the project as well as the buildings and structures constructed on the land handed over to MHADA, which must be included within the scope of the project. Therefore, the reliance placed by the appellant on the DCR of 1967 is of no consequence. There was no requirement in 1989 to obtain the EC. What was considered was the position of the project in 2004 by which time the DCR of 1991 came into force.
38. According to the answering respondent, the contention of the appellant regarding applicability of the Circular dated 19.12.2012 is also erroneous because the said Circular is not applicable to the project of the answering respondent. Lastly, it is submitted that there is no substantive or procedural error or illegality in the impugned letter communicated by respondent No.2 and therefore, the appeal needs to be dismissed.
39. The appellant has filed rejoinder dated 22.12.2016 to the affidavit- in-reply filed by respondent No.6 - Project Proponent, in which the [NPJ] Page 31 of 54 history of the project, which has been given by the Project Proponent has been stated to be superfluous. Besides that, reiteration is done of its stand that the Project Proponent has effected major changes in the project from time to time, more specifically after the MoEF issued letter dated 06.03.2006, whereby it exempted the Project Proponent from EC on the belief that the profile of the project was the same as approved in the year 1989. The actual facts were different. The Project Proponent changed the project profile frequently. Therefore, it required fresh EC for the following reasons post 06.03.2006:
(a) For changing the profile of the old project of 1989 based on which the MoEF had granted exemption from Environment Clearance.
(b) For effecting a major increase in the construction area i.e. for expansion.
According to the appellant, if any construction, which took place after the happening of above two events, would have to be deemed as unauthorized and illegal construction because the developer changed the profile and expanded the construction area, it requires EC.
40. In paragraph No.8 of the rejoinder, it is mentioned that shockingly except the EC of the year 2016, which has been impugned herein, not a single EC was taken after the scope of the project was changed and the construction area substantially enhanced vis-à-vis the approval of 1989 (this contention appears to be not based on facts in our estimation because there is no EC impugned in the present appeal, rather letter/communication dated 19.09.2016 has been assailed whereby directions given under Section 5 of the Environment (Protection) Act have been withdrawn).
41. In order to establish that there is change in the profile of the project, the appellant has quoted some examples of the case in hand in [NPJ] Page 32 of 54 order to show therein that these plans were revised from time to time and last approval was granted on 30.08.2011, as follows:
"39. Apart from the aforesaid building No.2, in the meantime, respondent No.6 also constructed four other buildings being building No.1 i.e. Vesta comprising of stilt + 7 upper stories, building Nos.3 and 4 i.e. Spring Grove UNO comprising of 9 wings with each wing having stilt + 7 upper stories and building No.2 i.e. Spring Grove Towers comprising of four towers with stilts, HVO podiums and 16 to 18 upper stories.
40. All the said buildings have also been constructed by respondent No.6 strictly in accordance with plans approved by respondent No.5 (Paras 39 and 40).
42. The plans for building Nos.3 and 4 were approved on 14.05.2010. The Commencement Certificate thereof was granted on 18/8/2010 and the last such approval is dated 13.6.2011. (para 42 of the Affidavit-in-reply)".
42. It would be naïve to believe that the public servants would permit recurrent illegalities to happen without extraneous consideration. Further it is mentioned that despite the Stop Work Order, the Project Proponent got the building unauthorisedly occupied without Occupation Certificate and for that he has taken a pretext that he stood helpless in resisting the buyers of the flats to take forcible possession of the flats and the Project Proponent has not evicted the buyers by initiating action under Section 145 of the Code of Criminal Procedure and get such flat occupiers evicted by instituting the suits.
43. It is further mentioned in the rejoinder that the Google Earth Satellite photographs have to be recognized as tenable in any administrative proceedings and the principle of preponderance of probabilities should be followed in civil matters unlike the proof beyond reasonable doubt as is mandated in criminal matters to be followed. Further it is stated that it is the total construction area which got increased from time to time by sanction of fresh plans. The MoEF has [NPJ] Page 33 of 54 granted exemption in the year 2006 based on the layout of 1989 and not of the year 2005. Therefore, the Project Proponent is putting up pretext and is simply evading the core issue. The plea taken by respondent No.6 - Project Proponent about 75% work having been completed would have been tenable only if the Project Proponent would have adhered to the 1989 profile but what has been actually built was one which was vastly enhanced in the built-up area. No ex post facto regularization of the construction is permissible under EIA Notification, 2006 and therefore, like in the case of Adarsh CHS, in this case, demolition should be ordered.
44. The stand taken by respondent No.5 - MCGM, vide their affidavit dated 19.01.2017 is that the layout of the project was presented in 1989 i.e. on 23.10.1989, which was amended on 13.06.1996, accounting for relocation of reservations in the layout. This layout was amended on 30.07.2005 for the following reasons:
(a) Release of FSI on account of ULC NOC, allowing TDR on the reservations in the layout. The set of NOCs offered by Competent Authority under Urban Ceiling Act 1976 is submitted herewith & marked as "Annexure-5B".
(b) Distribution of FSI of D.P. roads in the layout.
(c) Distribution of reservation TDR generated within the same layout.
(d) Utilization of slum TDR."
45. It is further submitted that in the meantime, the MoEF Notification dated 07.07.2004 came into force to be made applicable for construction of new plinth area. Therefore, respondent No.6 approached the MoEF for obtaining requisite EC. In this process, he obtained Consent to Establish from MPCB on 28.12.2005 wherein STP to handle waste water not exceeding 3461 Cu.mtr was permitted. By letter dated 06.03.2006 of the Director (IA) of MoEF, exemption/clearance was granted to the integrated development in the [NPJ] Page 34 of 54 layout under reference from seeking EC, in which it was mentioned that 75% work had been completed prior to 07.07.2004 as per the layout approved in 1989 and the other documents submitted, the case under reference did not require EC under MoEF Notification dated 07.07.2004. However, it was specifically mentioned therein that if any change in the project development/scope of the project is envisaged, prior permission of the MoEF shall be obtained as per the regulations. The said clearance was issued as per the provisions of MMC Act, 1888, MR&TP Act, 1966 and DRC,1991. The answering respondent had been granted development permissions from time to time as per the requisitions received from the Project Proponent as follows:
(a) IOD : Intimation of Disapproval under Section 346 of MMC Act 1888 for 72 building proposals over a period from 20.02.1989 to 14.05.2010.
(b) C.C. : Commencement Certificate under Section 45 of MR&TP Act 1966, to 72 buildings (Out of which C.C. granted to four buildings is already lapsed since the said buildings are not constructed) in the period from 04.05.1989 to 18.08.2010.
(c) O.C.C. : Occupation Certificate under Section 353.A of MMC Act 1888 to 64 buildings in the period from 04.12.1991 to 05.01.2013 The details of the building permissions discharged in the layout are as below:
(a) Occupation permissions issued to the buildings prior to EIA Notification 1994 amended on 07.07.2004 with FSI area of each building is as under:-
[NPJ] Page 35 of 54 [NPJ] Page 36 of 54
(b) Occupation permissions issued to the buildings after EIA Notification 1994 amended on 07.07.2004 till EIA Notification 2006 dated 14.09.2006 with FSI area of each building is as under:[NPJ] Page 37 of 54
(c) Building permissions issued to the buildings after EIA Notification 1994 amended on 14.09.2006 with FSI area of each building is as under:[NPJ] Page 38 of 54
O.C.C. to the remaining four buildings are not granted for want of compliance from PP. The details of the dates of the Building Completion Certificates along with the area of four buildings are mentioned in tabular form as follows:
s. Description Built-Up Area in Date of
N. Sqmt. Submission of
BCC by LS of PP. ·
1 Building No.2 on Plot 'DH' Dhobhi 31,055.41 20.03.2015
Housing.
2 Building No.3 on Plot 'DH' Dhobhi 3,735.69 2 L04.2014
Housing.
,.,
.) Building No.4 on Plot 'DH' Dhobhi 2,972.27 21.04.2014
Housing.
4 Building No.2 on Plot 'E'. 53,580.12 14.08.2014
Total Built-up Area in Sqmt. 91,343.49
46. Post submission of Building Completion Certificates for three buildings, the appellant submitted a complaint to the answering respondent initially on 30.08.2014 and subsequently to the Environment Department from time to time, which were referred by the answering respondent to the Environment Department of the Government of Maharashtra as well as Project Proponent for reply and for giving factual information. A report was submitted on 31.08.2015 to the Environment Department after approval from the Municipal Commissioner in context of the complaint of the appellant and respondent No.6 was directed to submit fresh clearance from the Environment Department through their letter dated 01.09.2015. On 28.03.2016, the answering respondent received a letter from the Law Officer of the Environment Department, requesting details of construction carried out by the Project Proponent -
respondent No.6, which were supplied by letter dated 07.04.2016. The hearing was held by the Principal Secretary, Environment Department on [NPJ] Page 39 of 54 26.08.2016 which was attended by the representative of respondent No.6 and the answering respondent and a letter of withdrawal of intended action under Section 5 of the Act was issued by the then Principal Secretary, Environment Department on 19.09.2016 (impugned letter).
47. Rest of the contents of the affidavit-in-reply of respondent No.5 appear to be nothing but repetition of those contents which we have taken into consideration while dealing with the affidavit of respondent No.6 - Project Proponent and other respondents.
48. Respondent No.6 - Project Proponent has submitted affidavit-in- rejoinder dated 11.02.2017 to the affidavit-in-reply of respondent No.5. By filing this rejoinder, it is submitted that respondent No.5 has misinterpreted the contents of the letter dated 19.09.2016 (impugned letter) and for the reasons best known to them, called upon the answering respondent to obtain Consent to Operate. In fact, the answering respondent, vide their applications dated 16.10.2014 and 15.04.2015, had submitted before the MPCB to grant part Consent to Operate for project Octacrest and Spring Grove but despite substantial period having elapsed, the MPCB did not grant the same although the same ought to have been granted within four months from the date of application as per the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Therefore, it should be treated to have been deemed granted. As per the letter dated 19.09.2016 addressed to the Municipal Commissioner by the Principal Secretary, Environment Department, no reference is made in the said letter of plot E,, building No.2 i.e. project Octacrest, inspite of which respondent No.5 has not processed the OCC for the said project. Respondent No.5 is colluding with the appellant in order to harass the respondent No.6.
[NPJ] Page 40 of 54
49. In reply dated 20.03.2017 by respondent No.1, Rule position has been submitted. Hence, the same does not require to be repeated here. Counter affidavit dated 19.07.2023 has also been filed by respondent No.1, which too contains Rule position and nothing else and hence, the same need not be reproduced.
50. We have heard the learned counsel for the parties and perused the record in order to decide this appeal. Following issues have been framed to be determined by us in this appeal:
ISSUES :
(i) Whether the communication dated 19.09.2016 made by respondent No.2 - the Principal Secretary, Environment Department, Govt. of Maharashtra to respondent No.6 - Project Proponent regarding withdrawal of the proposed directions under Section 5 of the Environment (Protection) Act, 1986 read with EIA Notification dated 14.09.2006 would be covered under Section 16 of the National Green Tribunal Act, 2010 against which an appeal may lie?
(ii) Whether the project in question, layout of which was approved for the first time as far back as 1989 by respondent No.5 - MCGM and change in layout thereafter at different dates, would amount in change in the scope of the project in question, which would necessitate the Project Proponent to seek prior Environmental Clearance ?
(iii) Whether 75% of the total project had been completed prior to the cut-off date 07.07.2004 when the said Notification dated 07.07.2004 came into force bringing amendment to EIA Notification, 1994 to the effect that where construction work has [NPJ] Page 41 of 54 not come upto the plinth level, such new construction shall require Environmental Clearance under this Notification w.e.f. 07.07.2004, meaning thereby that if the construction has crossed the plinth level, such project/property would not be requiring the Environmental Clearance ?
(iv) Whether the claim of respondent No.6 - Project Proponent, which has been vindicated by respondent No.2 - Principal Secretary, Environment Department that the entire project which has been completed so far did not require any Environmental Clearance because of there being no change in the scope of the project, is found to be proved on the basis of evidence which has been laid from the side of the parties ?
(v) Whether the examples given by the appellant in his rejoinder dated 24.05.2017, giving details of building plan and approvals given from time to time in the original layout which was approved in the year 1989, would be treated to be the change in the scope of the project and hence, a prior Environmental Clearance would be required, as alleged by the appellants?
(vi) What relief the appellants are entitled to ?
51. Before we render our findings on the above issues, it would be appropriate for us to summarize the facts of this case in brief. It appears from the record which we have cited above that in the year 1989, the layout for the project by name Lokhandwala Township was got approved by respondent No.6 - Project Proponent from respondent No.5 - MCGM, which comprises of 79 buildings spread over an area of 85 Hectares and it also included other infrastructural facilities such as road, 7 primary schools, 4 secondary schools, 9 play grounds, 8 gardens, 2 retail [NPJ] Page 42 of 54 markets, etc. Out of the above number of buildings, only 50 buildings were built and Occupancy Certificates (OCs) regarding them were granted to the Project Proponent upto 07.07.2004 and till this stage, the appellant had no objection. In the year 2005, the Project Proponent approached respondent No.5 - MCGM for Occupancy Certificates of some of the completed buildings and for Commencement Certificates (CCs) for the remaining buildings and at this stage, respondent No.5 - MCGM directed the Project Proponent to seek clarification from respondent No.1
- MoEF as to whether EC was required for the project in question or not and also whether the EIA Notification dated 07.07.2004 was applicable in the case in hand. Pursuant to this direction by the MCGM, the Project Proponent sought clarification on 24.02.2006 from MoEF - respondent No.1 (which letter is annexed at page 147 of the paper-book). The said query was responded by respondent No.1 - MoEF through their letter dated 06.03.2006, which is annexed at page 61 of the paper-book, saying therein that the layout plan indicated that more than 75% work had been completed prior to 07.07.2004, therefore it did not require EC, but in case of any change in the development of the project, prior permission will have to be obtained from respondent No.1 as per Regulation. This reply from the side of respondent No.1 is being found not in accordance with the law by the appellant because there was no basis for arriving at a conclusion that 75% work had been completed prior to 07.07.2004. Before the cut-off date i.e. 07.07.2004, 2.70 lakh sq.mtrs construction has been done and after that, 2.90 lakhs sq.mtrs had been constructed. Therefore, it is urged that the above construction of 2.70 lakhs sq.mtrs prior to 07.07.2004 is apparently not 75% of the total project work and this figure appears to have been taken by the appellant from the reply given by respondent No.5 - MCGM with which Annexure-A1 is annexed mentioning therein in tabular form the area of construction of the project [NPJ] Page 43 of 54 prior to the said cut-off date and post cut-off date (annexed at pages 145 to 147). We are not inclined to accept the view of the learned counsel for the appellant in this regard because the appellant seems to have taken into account only the total constructed area of the buildings but has avoided to include therein the construction of infrastructural facilities. In our estimation, 75% total work of the project would be taken to have been completed after taking into consideration the residential buildings along with the other infrastructural support, regarding which we have already mentioned above. In this regard, the respondent No.6 - Project Proponent has provided details at page 342 of the paper-book, which show the gross area of the project is shown to be 852477 sq.mtrs., out of which total completed construction is shown as 50%, details of which are also mentioned therein along-with area of the total infrastructure completed in the project is recorded as 24.86% and when this 50% and 24.86% are added, the figure of the work to have been completed comes to 74.86% and if it is rounded of, it would stand at 75%. This table has not been rebutted from the side of the appellant in any manner so the figures given therein are taken by us to be correct. Based on this, if the decision taken by the MoEF with respect to 75% of the project work having been completed as a result of which the EIA Notification dated 07.07.2004 is not found to be applicable in the present case, seems to be a correct decision.
Findings :
Issue No. (i)
52. As per this issue, we have to decide as to whether the communication dated 19.09.2016 made by respondent No.2 - the Principal Secretary, Environment Department, Govt. of Maharashtra to respondent No.6 - Project Proponent regarding withdrawal of the proposed directions under Section 5 of the Environment (Protection) Act, [NPJ] Page 44 of 54 1986 read with EIA Notification dated 14.09.2006 would be covered under Section 16 of the National Green Tribunal Act, 2010 against which an appeal may lie?
53. The Environment Department - respondent No.2 has submitted in its affidavit that the present appeal, which is purported to be filed under Section 16(g) of the National Green Tribunal Act, 2010, is not maintainable because by it, the letter conveying a decision to drop the proposed directions under Section 5 of the Environment (Protection) Act has been challenged, which will not be covered under "direction" defined under Section 5 of the Environment (Protection) Act. Section 5 of the Environment (Protection) Act, 1986 reads as follows:
"5. Power to give directions. - Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply wit such directions.
Explanation. - For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct -
(a) The closure, prohibition or regulation of any industry, operation or process; or
(b) Stoppage or regulation of the supply of electricity or water or any other service."
54. In the case in hand, we find that the direction under Section 5 of the Environment (Protection) Act was issued on 23.05.2016 by the Principal Secretary, Environment Department, State of Maharashtra to the Project Proponent stating therein that the permission for their project was granted by MCGM in the year 1989 (03.10.1989) and amendment in the layout was introduced on 13.06.1996, 14.08.2002 and 30.07.2005, respectively. Since these permissions were granted prior to publication [NPJ] Page 45 of 54 of EIA Notification dated 14.09.2006, no action is required to be taken against the construction carried out at site with respect to the permissions obtained prior to EIA Notification dated 14.09.2006. After perusal of the record, it is revealed that the Project Proponent had carried out the construction of building Nos.1 to 4 on plot DH by obtaining IODs and C.Cs from MCGM in the year 2008 and 2010 and the said structures are on the plot distinct from the construction permissions/approvals granted by the MCGM in the year 1989 and subsequently amended in the year 1996, 2002 and 2005, respectively. It is further mentioned in this direction that the Project Proponent appears to have not sought EC for the said four buildings. It is stated in the said notice that, therefore, prima facie, the Project Proponent has violated the provisions of EIA Notification dated 14.09.2006 and therefore, the Project Proponent shall show cause why the building construction activity be not stopped forthwith and legal action be not taken against him. This notice is annexed at pages 634 and 635 of the paper-book.
55. The aforesaid notice was responded by respondent No.6 - Project Proponent, vide letter dated 08.06.2016 wherein it is mentioned by him that on the layout of the project, in all 79 buildings have been proposed and developable built-up area in respect thereof was envisaged at 668426.03 sq.mtrs. In December, 2005, based on the Notification dated 07.07.2004, an application for obtaining EC for the entire layout was made before the appropriate Authority seeking EC for the said layout. In compliance of the requirement of Clause I, Explanation (iii) of the Notification dated 07.07.2004, the application for EC was filed for the entire balance permissible development in the aforesaid layout. As a matter of procedure for seeking EC, Environment Impact Assessment (EIA) Report was prepared by their Consultant M/s Gadark Lab Pvt. Ltd. wherein it was stated that the Project Proponent is developing the [NPJ] Page 46 of 54 aforesaid layout since 1989 and had envisaged 79 buildings on the said layout. In the statement D of the said report, the position as on 07.07.2004 was completed as well as proposed buildings on the said layout has been presented. In the said statement D, Dhobi Housing (DH) plot has been included wherein buildings consisting of 773 tenements are proposed. The said plot DH, which bears CTS No.171/1A/60 of village Akurli, forms part and parcel of the aforesaid layout. Though it was true that the buildings of the plot DH were not shown in the amended layout dated 30.07.2005, which had been approved by the MCGM. They would like to draw attention to the fact that the buildings proposed on plot DH, being part of the aforesaid layout, were already forming part and parcel of the proposal which was submitted by the Project Proponent to the appropriate Authority of the Environment Department for seeking EC in the year 2005 in compliance with the requirements of Clause I, Explanation (iii) of the Notification dated 07.07.2004.
56. It is further stated in the said letter that the Project Proponent has already apprised the appropriate Authority of Environment Department regarding the proposed development envisaged on the said layout which inter alia included the buildings on Plot DH as well, so that the appropriate Authority could consider the impact of the tenement density not only of the completed building as on 07.07.2004 but also of the buildings which were proposed to be built in future by the Project Proponent on the said layout which inter alia included the buildings on plot DH. It was only after considering the representation of the Project Proponent i.e.
(a) all environmental infrastructure work on the said layout being completed and handed over to the MCGM.
(b) 50 buildings which were completed prior to 7/7/2004 and [NPJ] Page 47 of 54
(c) also the 29 buildings proposed by the Project Proponent on the said layout inter alia including the buildings on plot DH. the Environment Assessment Committee (EAC), in its meeting held on 4th to 6th February, 2006, considered the aforesaid layout as one single layout being developed since 1989 and being in advance stage of development referred the matter to MoEF for seeking clarification regarding applicability of aspects of Environment Clearance. The MoEF i.e. Director IA, after considering the previously completed buildings and the proposed balance development on the said layout, vide its letter dated 06.03.2006, granted exemption to the said layout from seeking Environment Clearance. It is also clarified that the exemption order granted by Director IA, MoEF, vide letter dated 06.03.2006, was not only for the buildings which were completed during the year 1989 to 2005 but also for future buildings, proposed on the said layout, which were on various stages of construction and/or proposal as the case may be i.e. inter alia including the buildings situated on plot DH. It shows that plot DH is not a distinct plot as stated in the show-cause notice. It is also clarified in this reply that the layout is to be considered within the purview and perspective of Notification dated 07.07.2004 wherein the criteria for getting environment clearance was broadly emphasized on the following i.e. discharge of sewerage of 50,000 ltrs per day or investment of Rs.50 crores as the case may be and not on number of buildings and its area as appears to have been considered whilst drawing the proposed direction. Therefore, the Project Proponent was neither going for new project nor for expansion of the present project.
57. It is also stated in this reply that circular dated 21.11.2006 with reference to the NOC from State Pollution Control Board i.e. Consent to Establish is as under:
[NPJ] Page 48 of 54
"Such projects for which NOCs issued before 14/9/2006 will not be required to take environment clearance under EIA Notification, 2006."
58. It is further clarified in this reply that the NOC i.e. the Consent to Establish for the entire aforesaid layout was issued by the MPCB vide their letter dated 20.12.2005. Hence, based on the circular dated 21.11.2006, there was no question of the Project Proponent approaching the Environment Department for seeking fresh clarification vis-à-vis notification dated 14.09.2006. Further it is mentioned that in the case in hand, EC being exempted by MoEF, vide letter dated 06.03.2006 and the changes being within the previously granted overall limits, in the present case the overall limit being the balance built up area to be constructed being 399639 sq.mtrs., the same cannot be termed as changes as stated in the proposed direction. Therefore, it is absolutely clear that the scope is not increased from the overall limit. Hence, there is no question of violation. Moreover 650 families have put in their hard earned money to purchase the flats in the buildings housed on plot DH, who are waiting occupation. Therefore, in these circumstances, it was argued that the proposed direction be withdrawn.
59. It appears from record that after submission of aforesaid reply from the side of the Project Proponent, respondent No.2 had extended personal hearing on 26.08.2016, which date is mentioned in the impugned order dated 19.09.2016 and MOEF conclusion was concurred that since 75% work had been completed prior to 07.07.2004, the project does not require the environmental clearance under the Notification dated 07.07.2004 and that there was no violation of Environment (Protection) Act, 1986 and EIA Notification dated 14.09.2006 and accordingly, the directions issued under Section 5 of the Environment (Protection) Act read with EIA Notification dated 14.09.2006 were [NPJ] Page 49 of 54 withdrawn with further direction that the Project Proponent shall obtain environmental clearance from the competent Authority if any new/further construction would be carried out at the site.
60. From the above reply submitted from the side of the Project Proponent, we are fully convinced that he has given reply to each and every averment and these replies appear to be sufficient to convince us that there was no environmental clearance required in the present project in the light of the provisions of Notification dated 07.07.2004.
61. We find that the above order clearly appears to have been passed which would fall in the category of "direction" and would be challengeable under Section 16(g) of the National Green Tribunal Act, 2010 and we hold that the present appeal is maintainable. We decide issue No.(i) accordingly.
Issue Nos. (ii), (iii), (iv), (v) and (vi) :
62. As per this issue (Issue No.ii), we have to decide as to whether the project in question, layout of which was approved for the first time as far as back 1989 by respondent No.5 - MCGM and change in layout thereafter at different dates, would amount in change in the scope of the project in question, which would necessitate the Project Proponent to seek prior Environmental Clearance.
63. At this stage, it would also be appropriate for us to deal with the applicability of the Notification dated 07.07.2004, which provides as follows:
"in paragraph 3-
(i) in item (a), liar the letters, word and figures "Nos.3,18 and 20", the letters, word and figures "Nos.3,18,20,31 and 32" shall be substituted;
(ii) after sub-para (f), the following shall be inserted, namely:-
"(g) any construction project falling under entry 31 of Schedule-I including new townships, industrial [NPJ] Page 50 of 54 townships, settlement colonies, commercial complexes, hotel complexes, hospitals and office complexes for 1,000 (one thousand) persons or below or discharging sewage of 50,000 (fifty thousand) litres per day or below or with an investment of Rs.50,00,00,000/- (Rupees filly crores) or below.
(h) any industrial estate falling under entry 32 of Schedule-
I including industrial estates accommodating industrial units in an area of 50 hectares or below but excluding the industrial estates irrespective of area if their pollution potential is high.
Explanation -
(i) New construction projects which were undertaken without obtaining the clearance required under this notification, and where construction work has not come up to the plinth level, shall require clearance under this notification with effect from the 7th day of July 2004.
(ii) In the case of new Industrial Estates which were undertaken without obtaining the clearance required under this notification and where the construction work has not commenced or the expenditure does not exceed 25% of the total sanctioned cost, shall require clearance under this notification with effect from the 7th day of July, 2004.
(iii) Any project proponent intending to implement the proposed project under sub-paras (g) and (h) in a phased manner or in modules, shall be required to submit the details of the entire project covering all phases or modules for appraisal under this notification."
64. The Project Proponent, in its affidavit dated 01.09.2016 at page 141 of the paper-book, has clarified that out of total 79 buildings, which were to be built, 50 buildings had already been completed before 07.07.2004 and also plinth of 6 buildings had been completed. Therefore, the project was exempted from EC requirement as per Notification dated 07.07.2004. These 6 buildings, which had been completed upto plinth level, would also be treated as part of entire project, therefore, 79 buildings would not require prior EC. We do not [NPJ] Page 51 of 54 find any reason to differ from this view taken by the MoEF as well as the Project Proponent because nothing contrary to the same is shown by the appellant. In view of above analysis, we come to the conclusion that issue No.(ii) is decided to the effect that the project in question would not be requiring prior EC.
65. As per issue nos. (iii), (iv), (v) and (vi), we have to decide as to :
(iii) Whether 75% of the total project had been completed prior to the cut-off date 07.07.2004 when the said Notification dated 07.07.2004 came into force bringing amendment to EIA Notification, 1994 to the effect that where construction work has not come upto the plinth level, such new construction shall require Environmental Clearance under this Notification w.e.f. 07.07.2004, meaning thereby that if the construction has crossed the plinth level, such project/property would not be requiring the Environmental Clearance ?
(iv) Whether the claim of respondent No.6 - Project Proponent, which has been vindicated by respondent No.2 - Principal Secretary, Environment Department that the entire project which has been completed so far, did not require any Environmental Clearance because of there being no change in the scope of the project, is found to be proved on the basis of evidence which has been laid from the side of the parties ?
(v) Whether the examples given by the appellant in his rejoinder dated 24.05.2017, giving details of building plan and approvals given from time to time in the original layout which was approved in the year 1989, would be treated to be the change in the scope of the project and hence, a prior Environmental Clearance would be required, as alleged by the appellants?
[NPJ] Page 52 of 54
(vi) What relief the appellants are entitled to ?
66. In this regard, the main argument of the learned counsel for the appellant is that in the appellant's rejoinder dated 22.12.2016, in paragraph No.9, it is stated that there were changes in the layout of the project, which establish that there were repeated changes in the profile which required fresh environmental clearance each time the profile was changed, in view of the provisions laid down in EIA Notification because the letter of respondent No.1 - MoEF dated 06.03.2006 itself incorporates that if there is any change in the project development/scope of the project, fresh environmental clearance would be required to be obtained. Apart from this, clause (7) (ii) of EIA Notification 2006 provides for prior environmental clearance (EC) for expansion or modernization or change of product mix in existing projects. Therefore, in the case in hand, we have to see whether the Project Proponent would have required to go for fresh environmental clearance because of change in profile as is being alleged by the appellant and the said change in profile should be treated to be change of the product mix or change in scope of the project. We do not find any word "profile" to have been mentioned in EIA Notification 2006, nor in the letter of MoEF dated 06.03.2006 for coming to the conclusion as to whether any change in scope of the present project, has been there, which would require fresh environmental clearance to be obtained by the Project Proponent, for what was earlier project approved building-wise and what was the construction made pursuant to the change in the said plan of the building, is not made clear. In this regard, we may state here that under EIA Notification 2004, for the first time, the criteria which has been laid down for obtaining environmental clearance for the buildings/projects was that "any construction project falling under entry 31 of Schedule-I, including new townships, industrial townships, settlement colonies, commercial complexes, hotel complexes, [NPJ] Page 53 of 54 hospitals and office complexes for 1,000 (one thousand) persons or below or discharging sewage of 50,000 (fifty thousand) litres per day or below or with an investment of Rs.50,00,00,000 (Rupees fifty crores) or below", will not require environmental clearance, but if these limits are crossed, the environmental clearance would be required. Therefore, there was no built up area concept prevailing in the year 2004 i.e. when the impugned letter was issued by the Ministry, which has been impugned herein.
67. It is also apparent from the perusal of record that in the total layout which was initially sanctioned, there is no change made therein till passing of the impugned order. Therefore, to say that fresh environmental clearance would be required because of the change in the scope of the project does not appear to be tenable to us. We also do not find the plan of the buildings, which were to be constructed and were approved earlier, were amended by subsequent approvals given for further construction or modernization, on the basis of which we could assess the change in the scope of the project.
68. Therefore, the aforesaid issue Nos. (iii), (iv), (v) and (vi) are decided against the appellant and in favour of respondent No.6 - Project Proponent.
69. In view of above findings on the issues, we are of the view that the appeal deserves to be dismissed and is accordingly dismissed.
70. In view of dismissal of Appeal, pending Interlocutory Application, if any also stands disposed of.
71. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 21, 2023 APPEAL NO.71/2016(WZ) npj [NPJ] Page 54 of 54