National Green Tribunal
Santosh Daundkar vs The Secretary Ministry Of Environment ... on 27 July, 2023
Item No.2 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)]
APPEAL NO.21 OF 2023 (WZ)
Santosh Daundkar .... Appellant
Versus
The Secretary, MoEF&CC & Ors. .... Respondents
Date of Hearing : 27.07.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Mr. Aditya Pratap and Ms. Abha Singh,
Advocates
Respondents : Mr. Subramanian, Sr. Advocate for R-9
Mr. Saket Mone, Advocate representing Vidhi
Partners, for R-10
ORDER
1. This appeal has been filed challenging the Environmental Clearance (EC) dated 11.04.2023, which is annexed at page 64 of the paper-book, on the ground that the EC has been granted in favour of respondent No.9 for raising construction of super luxury private towers in the name of proposed Redevelopment of Municipal Property known as Barracks No.T/57, T/58,T/59 on plot bearing No.C.S.No.6 (Pt) of F/North Ward, Sion Division, situated at Vishramwadi, Bhaudaji Road, Sion, Mumbai under D.C. Regulation 33 (7) despite the fact that the said parcel of land is reserved for Recreation Ground (RG)/garden. It is also alleged in paragraph No.2.1 (10) of the appeal memo that though respondent No.9 has been granted EC much before, respondent No.10 M/s [NPJ] Page 1 of 6 Macrotech Developers Ltd is executing the project and ten flats have been sold by this group, which is Lodha Group Company.
2. Our attention is drawn by the learned counsel for the appellant to pages 149 to 152 of the paper-book, which is internal note written by Dy. Chief Engineer (P.P.P.P.) of respondent No.5 - MCGM, on a proposal for redevelopment of the Municipal property submitted by the Architect M/s Mhatre & Associates on the plot in question. In paragraph No.2 of this note, it is recorded as follows :
"As per the D.P. remarks at page C/273 to C/275, the land bearing C.S. No.6 (pt.) of Sion Division is partly reserved for the public purpose of extension to LTMG Hospital and partly reserved for the public purpose of recreation ground (RG) (part of larger reservation) as shown distinctly on the accompanying plan and for the widening, if any, of the existing roads and their junctions. The above land is situated in a Residential Zone."
3. Further our attention is drawn to the following paragraph of the said internal note :
"The Developers M/s. Safal Developers Pvt. Ltd. have submitted proposal under DCR 33(7) on the plot reserved for R.G. adm. 26565.71 sq.mts. Out of this total area, there exists 5 chawls containing 149 Staff Quarters on the plot admeasuring 16606.4 sq.mts. (This portion of the plot will hereafter will be referred as plot under staff quarters) On the remaining plot of R.G. reservation i.e. 9959 2 sq.mts., there exists 73 slums, 12 commercial, 102 Municipal tenants, 2 godowns, 2 chowkies (This portion of the plot will hereafter will be referred as plot under tenanted structures).
Since the plot under reference is reserved for the Recreation ground and hence, in the case of Vishrernwadi, which is also reserved for RG, the Dy. Law Officer's remarks were requested by Dy.Ch.E.(D.P.)-I. The Dy.law Officer vide hie remarks have enclosed the copy of the opinion of the Advocate General Shri Ravi Kadam, the same is at page C/309 to C/315. As per the said opinion para highlighted portion at page C/315 the orders passed in writ petition No. 1152 of 2002 do not apply to a sc.! erne under DCR 33(7) & 33(9)."
"A meeting was held in the chamber of A.M.C. (E.S.) on 9.12.2011. The then A.M.C. (E.S.) vide endorsement on the minutes of the meeting, stated that "the area being appended to encumbered plot is having RG. On this reservation only staff quarters exist. MCGM can develop RG reservation by itself. On this plot, there is no [NPJ] Page 2 of 6 encumbrance whatsoever and MCGM only has to relocate its own staff quarter which can be easily done on portion of land reserved under extension to Hospital wherein with Govt of Maharashtra permission, up to 5.32 FSI (1.33 x 4) can be availed. Thus MCGM must develop this reservation itself and this development is easily permissible, with zero encumbrances and only staff quarter. It will be improper for MCGM not to develop reservation which it already has put and to allow use of this land for 33(7) or 33(9) which is diluting reservation without any rational need. Also attaching this plot to scheme leads to selling of the area FSI to developer at RR rate which is uncalled for and lead to undue advantage especially at the cost of RG."
The salient features of the scheme considering the redevelopment in both the cases is enclosed at page C/323 & C/353 respectively. As may please be seen that the proposal under DCR 33(7) works out to be more beneficial as per prevailing policy. However, the same will be re examined after finalization of Annexure 11 by the Estate deptt.
The Architect has submitted vide letter dated 1.11.2013 along with the tentative plans for proposed redevelopment scheme on the plot which is reserved for RG. (pg. C/445 & C/447). As per the proposal the Developer has mainly proposed:
Separate staff quarters bldgs. For staff existing on RG reservation plot.
Developed RG reservation admeasuring 10400 sq.mtrs which is 40% of the total area of RG.
Capitalized value amounting to Rs.326 crores which is as per SDRR of 2013.
It is to state that :
1. At present, the entire plot of RG reservation is encumbered with chawls containing Staff quarters, Slums, Commercial, Municipal tenants, godowns, chowkies etc and hence the said plot is not being used for its intended purpose i.e. for RG. The staff quarter on RG is encumbrance until they are shifted somewhere else as they cannot be accommodated on this plot because of RG reservation.
2. The plot reserved for extension to Hospital can be developed by MCGM with its full potential of 5.32 FSI without the need to accommodate the staff quarters existing on the RG plot.
3. The M.C.G.M. will get developed R.G. to the extent 40% (10400 sq.mtrs) of total R.G. reservation which is a substantial area considering the fully encumbered RG at present.
4. The capitalized value generated in the scheme can be utilized by MCGM for the development of the plot reserved for the extension to the hospital.[NPJ] Page 3 of 6
The proposal submitted by the Developer needs consideration on following points :
A. Whether to allow the redevelopment on the entire R.G. plot admeasuring 26565.11 sq.mtrs under DCR 33(7), which comprises of plot under Staff Quarters (adm 16606.4 sq.m) and the plot under tenanted structures (adm 9959.2 sq.m.) OR only the plot under tenanted structures (adm 9959.20 sq.m.). B. As per the administrative guidelines for implementation of redevelopment scheme under DCR 33 (7) approved by State Govt. under TPB 4394/2535/CR 427/UD-1 dtd. 14 th November, 1994, all Municipal tenants residing in a bldg. constructed by MCGM, other than Staff Quarters can be taken up for redevelopment. However, it is to state that in past redevelopment proposals have been processed on the plots containing tenants as well as staff quarters.
C. Since the staff quarters are of the Health Deptt i.e. user is the Health Deptt, Concurrence of Health Deptt will have to be taken for Redevelopment of the said plot. Also to check if they require quarters or not.
D. The D.P. Deptt has proposed new regulations under DCR 33(26) for Re development of staff quarters, which is yet to be sanctioned by Improvement Committee/Corporation and State Govt."
4. On the basis of above document, it is argued that part of this land is reserved for Recreation Ground and therefore, in view of the judgment of the Hon'ble Apex Court in the case of Lal Bahadur Vs. State of Uttar Pradesh and others; (2018)15 SCC 407, no construction can be made on the land reserved for Recreation Ground. Relevant part of the said judgment is quoted hereinbelow:
"Law is well settled in this regard. In Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54, this Court had considered the question whether area reserved for a public park can be converted for other purposes. The State Government by the subsequent order had allotted the area reserved for public parks to a Medical Trust, for the purposes of constructing a hospital. This Court has laid down the importance of open spaces and public parks in the said case and held that said spaces are a "gift from people to themselves". It observed that:[NPJ] Page 4 of 6
"23. The scheme is meant for the reasonable accomplishment of the statutory object which is to promote the orderly development of the City of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from the ill-effects of urbanisation. It is meant for the development of the city in a way that maximum space is provided for the benefit of the public at large for recreation, enjoyment, „ventilation‟ and fresh air. This is clear from the Act itself as it originally stood. The amendments inserting Sections 16(1)(d), 38A and other provisions are clarificatory of this object. The very purpose of the BDA, as a statutory authority, is to promote the healthy growth and development of the City of Bangalore and the area adjacent thereto. The legislative intent has always been the promotion and enhancement of the quality of life by the preservation of the character and desirable aesthetic features of the city. The subsequent amendments are not a deviation from or alteration of the original legislative intent, but only an elucidation or affirmation of the same.
5. At the admission stage, learned Senior Counsel Mr. Subramanian has appeared for respondent No.9 - M/s Safal Developers Pvt. Ltd. and learned counsel Mr. Saket Mone has appeared for respondent No.10 - M/s Macrotech Developers Ltd. and they have opposed admission of the appeal mainly on the ground that the construction permission has been granted under D.C. Regulation 33(7), which has not been challenged by the appellant, nor this Tribunal has jurisdiction to decide the validity of this D.C.R., the same being a delegated legislation.
6. The learned counsel for respondent Nos.9 and 10 have admitted that part of the land in question was reserved for Recreation Ground, but it is encumbered with so many constructions and the permission has been rightly granted under D.C.R 30(7).
7. Since it is admitted by the learned counsel for respondent Nos.9 and 10 that the part of the land in question was reserved for Recreation Ground, we admit this appeal and direct respondent Nos.9 and 10 to file fullfledged reply-affidavit within four weeks. The Registry is directed to issue notice to respondent Nos.1 to 8, returnable within four weeks. [NPJ] Page 5 of 6
8. Put up this matter for next consideration on 29.09.2023.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM July 27, 2023 APPEAL NO.21 OF 2023 (WZ) npj [NPJ] Page 6 of 6