National Green Tribunal
Sadanand Gangaram Kadam vs Ministry Of Environment Forest And ... on 6 February, 2025
Item No.1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)]
Appeal No.20/2025(WZ)
[Earlier Dy. No.270410500943/2024]
Sadanand Gangaram Kadam
.....Appellant
Versus
Ministry of Environment Forest and Climate Change & Ors.
....Respondents
Date of hearing: 06.02.2025
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Appellant : Mr. Saket Mone, Advocate along-with
Ms. Anchita Nair, Advocate
ORDER
1. This appeal has been filed with the prayers that the Impugned Show Cause Notice, which is annexed as Annexure- A at page nos.29 to 31 of the paper book, issued by respondent No.1- MoEF&CC to the appellant to show cause as to why all the constructions, located in Gat No.446, Murud, Tehsil Dapoli, District Ratnagiri, Maharashtra, be not ordered to be demolished and removal of road, which is a prohibited activity as per the extant CRZ regulations, be also not ordered; Impugned OM dated 31.01.2022, which is annexed as Annexure- B at page nos.53 to 55 of the paper book (during argument, learned counsel for the appellant has agreed that this is not an OM, it is only a letter, therefore, we will be treating this as a letter instead of OM), issued by respondent No.1- MoEF&CC directing therein to the appellant to remove the Page 1 of 13 unauthorized structure built at Survey No.446, Sea Shore of Murud, Tehsil Dapoli, District Ratnagiri, Maharashtra in its entirety and that the said area be restored to its original condition and further the appellant was also directed to ensure compliance to the applicable provisions of Construction and Demolition Waste Management Rules, 2016 while carrying out the demolition activity; and the Impugned Letter dated 22.08.2022, which is annexed as Annexure- C at page nos.56 to 58 of the paper book, issued by the Member Secretary, Maharashtra Coastal Zone Management Authority and the Member Secretary, Maharashtra Pollution Control Board, directing therein to realize the amount of environmental compensation to the tune of Rs.25,27,500/-, as calculated by the CPCB from the appellant, be ordered to be quashed and set aside.
2. The submission made by the appellant is that he had purchased the property in question from Mr. Anil Dattatray Parab vide Sale Deed dated 19th June, 2019, which was registered on 29th December, 2020. Subsequent to this purchase, on complaint made by one Dr. Kirit Somaiya, notice was issued by the Sub-Divisional Officer, Dapoli, alleging therein that the subject structure is illegal and has been constructed contrary to/ in violation of the extant laws and accordingly, the same was to be demolished. Upon receipt of the said notice, appellant filed Regular Civil Suit No.57 of 2021 before the Ld. Civil Judge Senior Division, Khed, District Ratnagiri, seeking a declaration that the Impugned Notice was illegal and void and a permanent injunction to get the respondent restrained from demolishing the construction carried out by the Appellant on the subject land, along-with the other consequential and ancillary reliefs.
3. It is further submitted in this appeal that in the above-mentioned Civil Suit, the Ld. Civil Judge Senior Division, Khed, District Ratnagiri, Page 2 of 13 vide order dated 19th July, 2021 directed to maintain Status Quo in respect of the subject land, against which one Dr. Kirit Somaiya filed Original Application No.58 of 2021 before this Tribunal under Section 18(1) read-with Sections 14 and 15 of the National Green Tribunal Act, 2010, seeking prayers that direction may be issued to the Respondent Authorities to seize and seal the property in question; demolition of the subject structure and restoration of the subject land to its original condition etc.
4. It is further submitted in this appeal that on 3rd December, 2021, under Section 51 of the MRTP Act, the District Collector, Ratnagiri passed an Order suo motu reviewing and revoking the said Permission/ Order dated 12.09.2017. It would be pertinent to mention here that the Sub- Divisional Officer, Dapoli passed an Order dated on 12.09.2017, granting permission in favour of one Mr. Vibhas Sathe (who was predecessor-in- title of the property in question) to construct a structure having Ground + 1 Floor under Section 18 of the Maharashtra Regional and Town Planning Act, 1966 and under Section 44 of the Maharashtra Land Revenue Code, 1966, and converted the use of the subject land from 'Agricultural' to 'Non-Agricultural'. An appeal against the said order dated 12.09.2017 was filed, which was dismissed vide Order dated 10th April, 2024 passed by the Additional Commissioner, Konkan Division, against which a revision is pending before the Revenue Minister.
5. It is further submitted in this appeal that whilst the above- mentioned Order of Status Quo dated 19th July, 2021 was in force and during pendency of aforesaid Original Application No.58 of 2021 before this Tribunal, Appellant was shocked and surprised for issuance of the Show Cause Notice dated 17th December, 2021 (impugned herein), which was surreptitiously pasted/ left on the wall of the subject property. Page 3 of 13 Further, the OM/letter dated 31st January, 2022 (impugned letter) issued by respondent No.1- MoEF&CC, which was also surreptitiously pasted/ left on the wall of the property in question, which was issued without affording an opportunity of hearing to the appellant. The said OM/letter was followed vide a letter dated 31st May, 2022 addressed by the MoEF&CC to the State of Maharashtra, Department of Environment and Climate Change and Respondent No.2-MCZMA, seeking an action report on the actions taken in pursuance of the Impugned OM/letter.
6. It is further submitted in this appeal that thereafter, in furtherance of the Impugned OM/letter, the MoEF&CC addressed a letter dated 22nd August, 2022 (Impugned Letter) to the MCZMA and respondent No.3- MPCB, stating therein that vide Order dated 30th June, 2022, the MoEF&CC had constituted a Joint Committee comprising representatives from the MPCB, the National Centre for Sustainable Coastal Management (NCSCM) Chennai, Integrated Regional Office (IRO) of the MoEF&CC at Nagpur and the MCZMA and was entrusted with the responsibility to assess the monetary value of the damage caused to the environment due to the violation of the 2011 CRZ Notification inter alia the subject Structure and to provide specific recommendations for mitigations of the damages caused. In response thereof, the MPCB duly submitted the said Committee's Report vide its Email dated 15th July, 2022, which is annexed at page nos.62 to 64 of the paper book. This report was considered by the MoEF&CC and thereafter, impugned order dated 22.08.2022 was passed, wherein it is recorded that a sum of Rs.25,27,500/- needs to be realized from the appellant by way of an amount of EDC. In that very letter, it is also recorded that the recommendation/ report of the Joint Committee was referred to the CPCB to provide comments on methodology adopted and calculations done. Page 4 of 13 Based on that, the CPCB had given its correct calculation of the EDC, which is annexed at page no.71 of the paper book, realizing an amount of Rs.2.5275 Crores to be levied from the appellant. At this stage, learned counsel for the appellant has stated that the said power does not vested with the MoEF&CC under Section 5 of the Environment (Protection) Act, 1986, imposing an amount of EDC and that too, without giving an opportunity of hearing to the appellant.
7. It is further submitted in this appeal that in view of the impugned letter, on 25th August, 2022, the MCZMA addressed a letter to the DCZMC, Ratnagiri chaired by the District Collector, Ratnagiri, stating therein that the DCZMC, Ratnagiri was empowered to take action against the subject structure and accordingly, requested them to submit its action report in that regard. Thereafter, on 25th August, 2022, the District Collector, Ratnagiri addressed a letter to the State of Maharashtra, Department of Environment and Climate Change, pointing out therein that in view of the Order of Status Quo dated 19th July, 2021 passed by the Ld. Civil Judge Senior Division, Khed, District Ratnagiri, and the pendency of the Original Application No.58 of 2021 before this Tribunal, actions taken against the subject structure may result in contempt. Accordingly, the State of Maharashtra, Department of Environment and Climate Change was requested to obtain detailed guidance in this regard.
8. It is further submitted in this appeal that being aggrieved by the impugned order, on 07th September, 2022, appellant filed Writ Petition No.11125 of 2022 before the Hon'ble Bombay High Court, challenging the Impugned OM and Impugned Letter. It is further submitted that after filing of the said Writ Petition and while the matter was sub judice, the Appellant received a letter dated 28th September, 2022 addressed by the Sub-Regional Officer of the Chiplun Office of the MPCB, erroneously Page 5 of 13 stating that by the Impugned letter, the MoEF&CC had calculated the environmental compensation to the tune of Rs.2,52,75,000/- (Rupees Crore Fifty Two Lakh and Seventy Five Thousand Only) and had directed the MPCB to realize/ recover the same from the appellant. The said letter dated 28th September, 2022 was also followed up by a Reminder Letter dated 30th November, 2022 addressed by the Regional Officer of the Kolhapur Office of the MPCB. In response thereto, on 02nd December, 2022, appellant addressed a detailed response to the aforesaid 2 letters, pointing out that the appellant had challenged the Impugned Letter in the said Writ Petition No.11125 of 2022, to which the MPCB was a party too, and that the Hon'ble Bombay High Court was seized of the matter and the issues in relation to the Impugned Letter were sub judice. It was further pointed out that the environmental compensation was only Rs.25,27,500/-(Rupees Twenty Five Lakhs Twenty Seven Thousand Five Hundred Only), however, the aforesaid Letters dated 28th September, 2022 and 30th November, 2022 inadvertently/ incorrectly has recorded that the amount recoverable as environmental compensation is Rs.2,52,75,000/- (Rupees Two Crores Fifty Two Lakhs Seventy Five Thousand Only). Accordingly, the Advocates for the Appellant requested the Regional Officer of the Kolhapur Office of the MPCB to refrain from taking any precipitative steps/ actions against the Appellant during the pendency of the said Writ Petition.
9. It is further submitted in this appeal that despite the representation, the appellant was served with a copy of a Demand Notice dated 24th February 2023 issued by the Tehsildar, Dhapoli under Rule 5 read-with Rule 17(2) of the Maharashtra Realisation of Land Revenue Rules, 1967 to deposit an amount of Rs.2,52,75,000/- (Rupees Two Crores Fifty Two Lakhs Seventy Five Thousand Only) within a period of Page 6 of 13 10 days, failing which, enforcement action would be initiated against them as per Section 174 of the MLRC.
10. It is further submitted in this appeal that the order dated 17th March, 2023 passed by the Ld. Civil Judge Senior Division, Khed, District Ratnagiri was challenged before the Ld. District Judge, Khed, District Ratnagiri in Miscellaneous Civil Appeal No.08 of 2023 and vide an Order dated 4th November 2023, the same was allowed and quashed and set aside the Injunction Order. Being aggrieved against the same, Appellant filed Writ Petition No.14850 of 2023 before the Hon'ble Bombay High Court challenging the said Order dated 04th November 2023, which is annexed at page nos.72 to 84 of the paper book, wherein following are recorded:-
"18. It is required to be noted that one of the main contention raised by Mr. Mone, learned Counsel for the Petitioner is that the entire action has been taken for a mala fide purpose due to political rivalries. It is his submission that there are several influential persons who have constructed various structures contrary to and in violation of the CRZ Notifications in the same vicinity. It is unfortunate that the State of Maharashtra has filed an additional Affidavit dated 5th February 2024 placing on record its actions taken with respect to such other structures. However, Mr. Mone, learned Counsel for the Petitioner is right in pointing out that the said additional Affidavit is completely silent regarding action taken against the illegal structures built by influential persons. He is also right in pointing out that the learned Trial Court granted interim protection till disposal of the Suit by the Order dated 17th March 2023 and the State of Maharashtra has challenged the said Order with great speed within a period of less than two weeks i.e. on 29 th March 2023. It is very well known that Appeals are generally filed by the State Government after a considerable delay. Thus, it is clear that the action taken by the State Government is malicious. However, as already noted herein above the entire structure is illegal, unauthorised, and in violation of the CRZ Notifications and the same cannot be protected by the Court only on the ground of mala fides. Mr. Mone, learned Counsel has not even argued that the structure of the resort in question does not violate the CRZ Notifications. It is expected that the State Page 7 of 13 Government will also take action against other illegal structures of influential persons in the vicinity.
19. The Petitioner has filed an Affidavit/Undertaking dated 10th May 2024 tendering an unconditional apology for violation of the undertaking given to this Court on 16th March 2024 and also Order dated 18th March 2024, and showing willingness to pay cost of Rs.1,00,000/- as he is in contempt of this Court, having violated the undertaking dated 16th March 2024 given to this Court. It is required to be noted that thereafter the Petitioner has completely demolished the said 2nd floor structure as noted in the earlier part of this Order.
20. Accordingly, an unconditional apology tendered by the Petitioner as set out in the Affidavit/Undertaking dated 10th May 2024 is accepted.
21. As far as the cost is concerned, it is indicated that the cost would be directed to be deposited in the account of all Taluka Bar Associations in Ratnagiri district as well as Ratnagiri District Bar Association in equal proportion for purchase of law books. Mr. Mone, learned Counsel for the Petitioner states that as said cost is to be paid to all Taluka Bar Associations of District-Ratnagiri as well as Ratnagiri District Bar Association, he has instructions that the Petitioner will provide one new computer along with one printer to each Taluka Bar Association [i.e. Taluka Bar Associations of Talukas Khed, Chiplun, Dapoli, Mandangad, Guhagar, Deorukh, Lanja, and Rajapur] as well as to the Ratnagiri District Bar Association. Accordingly, the said statement made by Mr. Mone, learned Counsel on behalf of the Petitioner is accepted. The Petitioner to comply with said statement on or before 31st July 2024.
22. Accordingly, the Writ Petition is disposed of in above terms."
11. Thereafter, Hon'ble Bombay High Court passed order dated 24.10.2024 in the above-mentioned Writ Petition, to the following effect:-
"
1. Although this Writ Petition is disposed of, the protection granted for some time has been extended from time to time for the purpose of listing the Writ Petition No.11125 of 2022 before the Division Bench. As the Division Bench earlier could not take up the matter, the Division Bench has granted liberty to the Petitioner to seek extension of protection and accordingly, extension granted by order dated 31st July 2024 continued from time to time.
2. Mr. Saket Mone along with Mr. Devansh Shah, learned Counsel appearing for the Petitioner state that today the matter was placed before the Division Bench comprising of Page 8 of 13 Hon'ble Shri Justice A. S. Chandurkar and Hon'ble Shri Justice Rajesh S. Patil, however, Hon'ble Shri Justice Rajesh S. Patil has recused himself from this case. They state that now the matter will be placed before the appropriate Bench after reopening.
3. Accordingly, the protection granted by the order dated 31st July 2024 is finally extended till 30th November 2024.
4. It is clarified that no further extension will be granted."
12. In compliance to the above-mentioned orders of Hon'ble High Court, Appellant duly demolished the excess portion (i.e. the 2nd floor) of the subject structure, which was made in violation of the said Permission/ Order dated 12th September 2017 passed by the Sub- Divisional Officer, Dapoli. Thereafter, the said Writ Petition No.14850 of 2023 was disposed off vide Order dated 14th June 2024. While disposing off the said Writ Petition, the Hon'ble Court, after noting that the issues qua violations of the 2011 CRZ Notification were pending in the said Writ Petition No.11125 of 2022, granted limited protection to the Appellant by directing that the entirety of the subject structure to be demolished in the event the Appellant fails to obtain any protective/ stay/ interim order(s) in the said Writ Petition on or before 31st July 2024, in terms of the undertakings filed by the Appellant. This period was subsequently extended upto 30th November 2024 vide an Order dated 24th October 2024.
13. Thereafter, the appellant approached the Hon'ble High Bombay Court in Writ Petition No.11125 of 2022, wherein following order dated 21st November, 2024 was passed:-
1. Heard learned counsel for the parties.
2. The Petitioner challenges directions under Section 5 of the Environment (Protection) Act, 1986, issued by the Ministry of Environment, Forest and Climate Change on 31 January 2022. The Petitioner also challenges communication dated 22 August 2022, by which the Petitioner is directed to pay Page 9 of 13 environmental compensation of Rs.25,27,500/-. This is in pursuance of the directions dated 31 January 2022. The Petitioner has also challenged the letter dated 25 August 2022 to execute the directions dated 31 January 2022.
Thus, the main challenge in this Petition is to the directions dated 31 January 2022 issued by the Ministry under Section 5 of the Environment (Protection) Act, 1986.
3. Section 5A of the Environment (Protection) Act, 1986 provides that any person aggrieved by directions issued under Section 5 on or after the commencement of the National Green Tribunal Act, 2010 may file an appeal to the National Green Tribunal established under Section 3 of the National Green Tribunal Act, 2010 in accordance with the provisions of that Act.
4. Section 16 of the National Green Tribunal Act, 2010 also provides that any person aggrieved by any direction issued on or after the commencement of the National Green Tribunal Act, 2010 under Section 5 of the Environment (Protection) Act, 1986 shall be appealable to the National Green Tribunal ("NGT").
5. Considering the above provisions, we see no reason to entertain this Petition. The Petitioner has alternate and efficacious remedies available under the Environment (Protection) Act, 1986, read with National Green Tribunal Act, 2010. No reasons exist to bypass these alternate and efficacious remedies. The letters and communications which the Petitioner has challenged, along with the impugned directions are mostly consequential to the directions issued by the Ministry under Section 5 of the Environment (Protection) Act, 1986. Accordingly, we decline to entertain this Petition but relegate the Petitioner to avail of the alternate remedy before the NGT.
6. In this case, we note that this Petition was filed after the limitation period for challenging the same before the NGT had expired. The argument about this being a composite Petition is most misconceived. By simply challenging some consequential letters, this cannot be styled as a composite Petition to avoid the rule of exhaustion of alternate remedies.
7. Mr Mone however, submitted that this Petition was pending in this Court since August 2022. He pointed out that based on the pendency of this Petition, learned Single Judge has disposed of Writ Petition No.14850 of 2023 by granting the Petitioner some limited protection. In these circumstances, he submitted that the Petitioner may be protected in so far as limitation issues are concerned. On instructions, he offered to deposit the amount of Rs.25,27,500/- before the NGT at the filing stage of the appeal before the NGT. He prayed for Page 10 of 13 leave to withdraw this Petition with liberty to file an appeal before the NGT within four weeks from today.
8. In the peculiar circumstances explained by Mr Mone, we grant leave with liberty as prayed for. Suppose the appeal is indeed instituted within four weeks from today accompanied by a deposit of Rs.25,27,500/-. In that case, the NGT should entertain such an appeal on its merits and dispose of it as expeditiously as possible.
9. We also direct that the impugned directions may not be executed for four weeks from today. However, we clarify that this is only an ad-interim arrangement, and the Petitioner will make a case for interim relief before the NGT. The NGT should decide the application for interim relief entirely uninfluenced by this interim arrangement, which we have now ordered.
10. Suppose no appeal, accompanied by the deposit of Rs.25,27,500/-, is filed within four weeks from today. In that case, this interim arrangement will not operate, and the concerned authorities will implement the directions dated 31 January 2022.
11. Besides, Mr Mone states that the resort is not operational, and the interim relief is prayed for because otherwise, the authorities may demolish the resort. This statement about the Petitioner not operating the resort is accepted.
12. This Petition is allowed to be withdrawn and disposed of with the above liberties and directions. All contentions of all parties are left open.
13. By the Interim Application No.18398 of 2023, the State had requested that the preliminary issue about the exhaustion of alternate remedies be decided. Considering the above order, the reliefs in this Interim Application worked out. The Interim Application No.18398 of 2023 is also disposed of.
14. All pending Interim Applications, if any, are disposed of."
14. Based on the liberty granted by the Hon'ble High Court as cited above, appellant has approached this Tribunal and has filed the present appeal, which is yet to be decided including the issue of limitation.
15. In pursuance of the above-mentioned order of Hon'ble High Court, appellant has also deposited an amount of Rs.25,27,500/-(Rupees Twenty Five Lakh Twenty Seven Thousand and Five Hundred Only) on Page 11 of 13 20.12.2024, as per the report of the Registry of this Tribunal dated 24.01.2025.
16. In view of above observations, we deem it appropriate to admit this appeal and accordingly admit the same.
17. Registry is directed to issue Notice to the respondents, returnable within 04(four) weeks.
18. Appellant is directed to take necessary steps for service to the respondents by both ways (Dasti as well as by Registered Post) and also on available e-mail/WhatsApp and submit service affidavit within one week.
19. Appellant is also directed to supply copy of the application/appeal and relevant documents to the respondents within a week.
20. Respondents are directed to submit their reply affidavits within four weeks through e-filing portal of NGT and also circulate the same to the appellant as also other respondents by available e-mail.
21. Rejoinder, if any, is directed to be submitted within one week thereafter.
22. Later on, learned counsel Mr. Omkar Wangikar has appeared before us to represent Dr. Kirit Somaiya and has submitted that he has not been impleaded in the present appeal despite he being a necessary party, because on his instance, earlier Original Application No.58/2021(WZ) was filed for demolition of the property in question. Therefore, he should be heard in this appeal. We direct him that if he wants to be added in the present appeal then he may move an application for their impleadment, against which objections would be invited from the side of appellant and thereafter only, the same would be considered. Page 12 of 13
23. It is urged by the learned counsel for the appellant that Hon'ble High Court, vide order dated 21.11.2024, in Writ Petition No.11125 of 2022, 4 weeks' time was granted to approach the Tribunal and hence the present appeal was filed on 18.12.2024 and the amount of EDC, which was calculated, has already been deposited on 20.12.2024. Hence, it is prayed that the relief, which was granted to the appellant earlier by the Hon'ble High Court, may be extended, otherwise this appeal would become infructuous. In view of this, we allow his prayer and extend the said order of interim stay till the next date of hearing.
24. Put up this matter for further consideration on 04.04.2025.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 06, 2025 Appeal No.20/2025(WZ) [Earlier Dy. No.270410500943/2024] P.Kr Page 13 of 13