National Green Tribunal
Chetak Co-Operative Housing Society ... vs The Chief Secretary, State Of ... on 13 September, 2023
Item No.5 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
I.A. No.153/2023 (WZ)
In
Original Application No.31/2015(WZ)
Chetak Co-operative Housing Society Ltd.
.....Applicant
Versus
State of Maharashtra & Ors.
....Respondent(s)
Date of hearing: 13.09.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Shri J.P. Sen, Senior Advocate along-with
Mr. Jagdish Chavan, Advocate and Associates
Respondent(s) : Mr. Aniruddha S. Kulkarni, Advocate for R-4/Envt. Deptt. &
R-5/SEIAA
Ms. Manasi Joshi, Advocate along-with Ms. Pooja Natu,
Advocate forR-7/MPCB
Mr. Parikshit Desai, Advocate for R-8 to 11/PPs
Mr. Prakash Shejal, Advocate for R-12/BMC
ORDER
I.A. No.153/2023 (WZ)
1. Heard the arguments of learned Senior Counsel Shri J.P. Sen for applicant as well as learned Counsel Mr. Parikshit Desai for respondent Nos.8 to 11/Project Proponents on above-mentioned Interlocutory Application (IA). No other respondents have filed objection against this I.A.
2. From the side of respondent No.4/Environment Department and for respondent No.5/SEIAA, learned Counsel Mr. Aniruddha S. Kulkarni has appeared; from the side of respondent No.7/MPCB, learned Counsel Ms. Manasi Joshi has appeared; and from the side of respondent No.12/BMC, learned Counsel Mr. Prakash Shejal has appeared.
Page 1 of 103. This I.A. has been moved by the applicant seeking amendment in the Original Application No.31/2015(WZ) as per the proposals given in Exhibit- 'C', which are quoted herein below:-
".....
2 c (i)The Respondent Nos. 8 to 11, have fraudulently and in breach / violation of Development rules got approved the Development plans being Plans dated 9th October 2018 from the Mumbai Municipal Corporation (MCGM), for the construction of the property bearing all that piece and parcel of land hearing Plot hearing CTS No. C1629- A1/10 (part) admeasuring 4712 square yards equivalent to 3940 sq. ruts. Plot bearing CTS No. 1381 admeasuring 526.80 sq. mts. and CTS No. C 1382C, admeasuring 6032.70 sq. mtrs., CTS No. C 1381 and CTS C 1382C was increased by 429.30 sq. mtrs. after survey by Collector's office; therefore the total area of the said CTS No.C1381 and C 1382C is 6988.90 sq. mtrs, CTS No. C 1378Aadmeasuring 1775.10 sq. nits., all situate lying and being at Village Danda, Pali Hill Road, Bandra (West), Mumbai 400 050 respectively. (Hereinafter collectively referred to as the "said Property') and under the aforesaid plans and sanctions (Nasti) have illegally got approved the FSI for construction of an area adm. about 40,317.33 Sq. mtrs. However, on proposal submitted by Respondent No. 8 on 20th May, 2017, in the area statement of the said plan of 2018, the said Respondent is showing the land area as only 13,592.50 sq. mtrs and have actually constructed area admeasuring about 40,317.33 sq. liars, which is erroneously allowed to construct by granting the various concessions in FS! and constructing free of FSI. Accordingly the Respondent Nos. 8 to 11 has already constructed the area admeasuring about 40,317.33 Sq. mfrs. i.e. more than 20,000 sq. mtrs. and for that the mandatory prior NOC / EC from the concerned department of Environment is required to be obtained, which is admittedly not obtained by Respondent Nos. 8 to 11.
2 c(ii). The Applicant states that Respondent Nos. 8 to 11 have filed an Application on 20th May, 2017, before the concerned office of Environmental Clearance (For Violation) for Group Housing Project, State Environment, Impact Assessment Authority Maharashtra (hereinafter referred to as `said SEIA'), for seeking the Permission / NOC from department of Environment, whereby they have duly mentioned and admitted that they are constructing an area which is more than 20,000 Sq. Mfrs. which is in breach and violation of the Notification / Circular dated 14th September, 2006. The Applicant craves leave to refer to and rely upon the aforesaid Circular dated 14th September, 2006, if required and necessary. Original para 3 c. of the Application to be replaced with the following para as under: -
3 c (i). The Applicant state that Respondent Nos. 8 to 11 have illegally violated the various terms and conditions of the aforesaid Agreement and also by making false representations to various authorities have got Plans for construction of building approved on the part of said property admeasuring about 12,599 sq. mt. for construction area 14151.49 sq. nit. (Approximately). Therefore, after the Applicant came Page 2 of 10 to know and obtained certain documents under the Right to Information Act from the concerned department of Respondent No. 12 which clearly shows the serious violation of applicable rules, the Applicant initiated action for termination of the aforesaid Agreement and Power of Attorney, and informed the same to Respondent No. 12 with representation and request to immediately take necessary action and subsequently filed a Writ Petition being Writ Petition No. 1544 of 2012 in the Hon'ble High Court, Mumbai as Respondent No. 12 has failed and neglected to take any action on the various illegalities and violation of applicable rules by Respondent Nos. 8 to 11.
Annexed hereto and marked as Exhibit "BI" is a copy of the aforesaid RTI Application filed by the Applicant herein. The Applicant craves leave to, refer to and rely upon the papers and proceeding of the aforesaid Writ Petition No. 1544 of 2012 as and when produced.
After para 3 g. of the Application the following para to be added as under:-
3g(i) The Applicant states that under the aforesaid Right to Information Act, the application and the documents / approvals and plans including the Approved plan of May, 2011, have been received by the Applicant. This discloses that the Respondent No. 8 developer, has claimed and got approved excess FSI for the Construction of an area admeasuring 40,317.33 sq. mtrs. (approx.) under various approvals (Nasti) (2008 and 2010), by claiming the various concessions and have obtained approvals to construct a major portion of the area under free of FSI which was not shown in FSI calculation and constructed an area inure than 20,000 sq. mtrs. without any previous NOC/Approvals from the Environment Clearance Authorities. It is pertinent to note that in the FSI calculation mentioned and shown on the aforesaid approved plan, the permissible construction area is only shown as (12,599 please note this is area qf plots) and permissible area as per the approved plan is 14151.49 sq. mtrs. However, the Respondent No. 8 Developer has constructed area in excess of 20,000 sq. mtrs. by obtaining various concessions, approvals and permissions. Annexed hereto and marked as Exhibit "L" "M" and "N" are the copies of aforesaid sanction plans of May, 2011 (1/9, 4/9, 5/9, and 7/9), a copy of sanctioned Nastis (2008 and 2010) and a copy of the Area Calculation Sheet of Construction carried out by the Respondent no. 8 on the said Property.
3g(ii) The Applicant state that, in the meantime the above Application came upon for admission/hearing before this Hon'ble Tribunal on 177h April 2015 and by an Order dated 17713 April 2015, the Hon'ble Tribunal rejected/dismissed the above Application. The Applicant herein challenged the aforesaid Order dated 17th April 2015, by filling a Writ Petition bearing Writ Petition 5547 of 2016, before the Hon'ble High Court Bombay and the Division Bench of the Hon'ble High Court Bombay by an Order dated Is' July 2016, was pleased to set aside the aforesaid Order dated 17th April 2015, and direct this Hon'ble Tribunal to hear both the parties and decide the above Application on merits and in accordance with law. Annexed hereto and marked Exhibit "O" and "P" are the copies of the aforesaid Order dated 17" April 2015 passed by this Hon'ble Tribunal and Order dated F1 July 2016, passed hr the Hon'ble High Court of Bombay in Writ Petition No. 5547 of 2016. The Applicant craves leave Page 3 of 10 to refer to and rely upon the papers and proceedings of aforesaid Writ Petition, if required and necessary.
3g(iii) The Applicant states that the Applicant is seeking the liberty of this Hon'ble Tribunal to rely upon various important circulars / notifications issued under the Environment (Protect) Act and the Rules 1986 as well as the circulars / notifications issued by the Ministry of Environment and Forest i.e. the notification dated 14'h September 2006, notification dated 27th January, 1994 etc. which are relevant in the above application filed by the Applicant. Annexed hereto and marked as Exhibit "0" and "R" are copies of the notification dated 14 th September 2006 and the notification dated 27th January, 1994.
3g(iv) The Applicant states that subsequently the Appellants have from time to time applied under the Right to Information Act to the concerned department of Respondent No.12 for copies of relevant plans submitted by Respondent Nos. 8 to 11 and for further details. However, copies of the revised plan and / or any related document and/or the application submitted by Respondent Nos. 8 to 11 for occupation certificate has not been provided to the Appellants. Annexed hereto and marked as Exhibit "S" Collv are the copies of the various RTI applications made by the Applicant herein. The Applicant states that recently the Appellants have once again applied under the Right to Information Act, vide its Application dated 5th August, 2016 and sought inspection and particulars about the present status of the subject. Accordingly, the inspection of the file was given by the concerned department of Respondent No.12 on 9th August 2016 during which time the Appellants surprisingly came to know that Respondent Nos. 8 to 11 have already, by their Architect's letters dated 23rd March, 2016, applied for occupation certificate in respect of "A " Wing and no intimation was given to the Appellant in breach of the order dated 5th May, 2014 passed by the Hon'ble High Court Mumbai, The aforesaid application for occupation certificate submitted by Respondent Nos. 8 to 11 has rejected by the concerned office of Respondent No. 12 on account of non-compliance of various required and necessary conditions vide its letter dated 24th April, 2016. The Applicant craves leave to refer to and rely upon the copies of the RTI application dated 5th August, 2016, the Architect's letter dated 23rd March, 2016 and the rejection letter dated 18th April 2016 respectively as and when produced.
3g(v) The Applicant states that Respondent Nos. 8 to 11 through their Architect / consultant letter dated 9th May, 2016 addressed to the concerned department of Respondent No. 12 herein claimed to have complied with the requirements mentioned therein and once again requested to issue an occupancy certificate to the subject building. However, the concerned office / department of Respondent No. 12 by their letter dated 9th August, 2016 has rejected the aforesaid request and application of Respondent Nos. 8 to 11 for occupation certificate and in the aforesaid letter it is specifically mentioned that Respondent Nos. 8 to 11 have not obtained the required NOC from MOEF i.e. the permission from Environment Impact Assessment Authority. Annexed hereto and marked as Exhibit "T" & "U" are the copies of the aforesaid letter dated 9th May, 2016 and 9th August, 2016. The Applicant states that in view of the aforesaid documents, it is clear that even as on date Respondent Nos. 8 to 11 do not have any required and Page 4 of 10 necessary permission from the MOEF and there is clear violation of applicable Environment rules/circulars issued under the Environment Act by the Developer i.e. Respondent Nos. 8 to 11.
3g(w) The Applicant states that subsequently pursuant to the aforesaid order dated 8" October 2014, passed by the Hon'ble Supreme Court of India, the aforesaid Appeal being Appeal No. 580 of 201.5, came up for .final hearing, before the Division Bench of the Hon'ble High Court of Bombay and by an Order and Judgment dated January, 2019, the Division Bench of the Hon'ble High Court of Bombay, have dismissed the aforesaid Appeal. Therefore, the Applicant herein have challenged the aforesaid Order dated le January 2019, by filling a Special Leave Petition No. 6332 of 2019, before the Hon'ble Supreme Court of India. The Hon'ble Supreme Court of India by an Order dated 16" April 2019 dismissed the aforesaid Special Leave Petition with a direction to the Hon'ble High Court of Bombay that the pending Suit, bearing Suit No. 109 of 2013 and the Writ Petition 155 of 2019, shall be decided on their own merits and the Applicant shall be at liberty to pursue the aforesaid Writ Petition No. 155 of 2019. Annexed hereto and marked as Exhibit "V" and "W" are copies of aforesaid Order dated 11th January 2019, passed in Appeal No. 580 of 2015 and the Order dated 16th April 2019 passed in SLP No. 6332 of 2019.
3g(vii) The Applicant states that, subsequently the aforesaid Writ Petition No. 155 of 2019 along with Notice of Motion No. 248 of 2019 came up for admission / hearing before the Division Bench of Hon 'bk High Court of Bombay and the Hon'ble High Court of Bombay, by an Order dated 5th July 2019, stayed further construction of the B' wing constructed on the said Property by Respondent Nos. 8 to 11. Annexed hereto and marked as Exhibit "X" is a copy of aforesaid Order dated 5th July 2019, passed by the Hon 'ble High Court of Bombay in Writ Petition 155 of 2019.
3g(viii) The Applicant state that, the Applicant have recently taken a search on the official website of the State Environment Impact Assessment Authority (SEIAA) and have found that the Respondent No. 8 herein by their letters / Application dated 20th May, 2017, submitted an online application for Environment Clearance (E. C.) for the project on the said Property and under the various Forms and details submitted to the State Environment, Impact Assessment Authority it is clearly mentioned and admitted that Respondent No. 8 is constructing a total area adm. 40,317.33 sq. mtrs.
The Chart / table of the area statement mentioned in the aforesaid online Application, more particularly in Form IA is under:-
"....Table 1.2:
Area Statement No. Description Area (Sq. Mt.) 1 Total plot area 13,592.50 2 Deduction (Road set back) 725.65 3 Net plot area 12,866.85 4 Ground Coverage Area (11%) 1,377.22 5 RG Area 3,222.52 6 Proposed FS! Area 13,178.65 Page 5 of 10 7 Proposed Non FS1 Area 27,138.68 8 Total Construction area/Built up 40,317.33 area 3g(ix) Therefore it is crystal clear and an admitted fact that the Respondent No. 8 has constructed the area admeasuring about 40,317.33 sq. liars which is more than 20,000 sq. mtrs and in view of the aforesaid Notification dated 14th September 2006, the Respondent No. 8 was required to obtain prior NOC / Environmental Clearance for construction of the aforesaid area. However, it is an admitted fact and crystal clear from the record that Respondent No. 8 has not obtained prior NOC / Environmental Clearance for the subject project and have constructed the buildings which are clearly in breach and violation of the guidelines and Circulars issued by the Environment Authorities. Therefore, the entire construction carried out by Respondent No. 8 is illegal and unauthorized, having been carried out without any prior Environment Clearance, therefore the same is required to be removed and / or demolished under order/direction of this Hon'ble Tribunal. Annexed hereto and marked as Exhibit "Y" are copies of the first page of the official website of State Environment Impact Assessment Authority, and the entire application and Form 1, Form lA and other Annexed hereto, submitted by Respondent No.
8...."
After para 4(a) of the Application the following para to be added as under:-
(a) (i) 400 In the facts and circumstances, mentioned herein above it is crystal clear that Respondent No. 8 developer has got various approvals and sanction of plans for the construction of an area admeasuring about 40,317.33 sq. mtrs, the same is duly admitted and accepted by Respondent No. 8 in their aforesaid online application for NOC / Clearance submitted in the year 2017, and Respondent no. 8 have almost completed the major construction of subject building on the said Property,. It is pertinent to note that as per the clear mandatory requirement and provisions of the aforesaid Circular 14th September 2006, the previous NOC / Clearance from the State Environment, Impact Assessment Authority is required to be obtained prior to the commencement of construction, but they have started /carried out the construction without obtaining such prior NOC / Clearance from the State Environment, Impact Assessment Authority. The same is illegal and unauthorized. Therefore, the constructions made by Respondent No. 8 developer on the said Property is without any prior NOC / Clearance from the State Environment, Impact Assessment Authority, is illegal and unauthorized and the same is required to he removed and / or demolished under the orders and directions of this Hon'bk Tribunal.
After para 4 (e) of the Application the following para to he added as under:-
(e)(i) In the facts and circumstance mentioned herein above the Applicant submits that it is necessary in the interest of the justice that the Hon'ble Tribunal be pleased to pass necessary orders / Page 6 of 10 directions and declare that the constructions carried out by Respondent No. 8 on the said property is without obtaining prior NOC/ Clearance from State Environment, Impact Assessment Authority, is illegal and unauthorized and farther to issue necessary orders/ directions to demolish the same.
After para 6 (d) of the prayer the following prayer to be added as under:-
d(l). that this Hon'ble Tribunal be pleased to pass the necessary orders /directions to (i) declare that the constructions carried out by Respondent No. 8 on the said property is without obtaining the prior NOC / Clearance from the State Environment, Impact Assessment Authority and (ii) to demolish the same."
4. Against the said I.A., respondent Nos.8 to 11/Project Proponents have filed objection/reply affidavit dated 07.09.2023, where-in it is submitted that a Writ Petition No.155/2019 is pending before the Hon'ble High Court, in which following prayers have been made:-
" a) That this Hon'ble Court be pleased to issue a writ off mandamus under Article 226 of the Constitution of India and/or any other appropriate writ/orders under any other article of the Constitution of India, call the records and proceedings of the impugned occupation certificate dated 9th October 2018 and revise approved plans dated 9th October 2018, sanctioned and issued by Respondent No. 1 to 4 herein and after going through the validity and legality of the same, be pleased to pass the necessary orders/direction for revocation/cancellation of the impugned OC and plans,
b) That this Hon'ble Court be pleased to issue a writ off mandamus under Article 226 of the Constitution of India and direct the Respondent No. 1 to 4 herein to forthwith revoke/cancel the impugned OC plans,
c) That the pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to pass the necessary orders/directions and stay the implication and effect to the impugned OC and plan,
d) That pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to pass the necessary order/direction and restrain Respondent No. 1 to 4 herein from creating any third party right/interest and/or parting with possession of any unit/apartment or any premises in the building known as "Sandhu Palace" situated on the property bearing CTS 1381 and CTS 1382C, situate lying and being at village Danda, Palli Hill Road, Bandra (West), Mumbai 400 050;
e) That the pending the hearing and final disposal of the present petition, this Hon'ble Court be pleased to pass the necessary order/direction and direct Respondent No. 1 to 4 herein to maintain status quo in respect of the subject building i.e. "Sandhu Palace"
situated property bearing CTS 1381 and CTS 1382C, situate lying and being at village Danda, Palli Hill Road, Bandra (West), Mumbai Page 7 of 10 400 050 and restrain them from carrying out any further construction activities on the said property bearing CTS 1381 and CTS 1382C, situate lying and being at village Danda, Palli Hill Road, Bandra (West), Mumbai 400 050.
f) Ad-interim/interim reliefs in terms of prayer clause (a) to (e) above.
g) For the cost of the Petition.
h) For such further and other relief as the nature and circumstances of the case may require."
5. Based on above, it is vehemently argued by the learned Counsel for respondent Nos.8 to 11 that in the said Writ Petition, the applicant has assailed Occupation Certificate dated 09.10.2018 and Revised Approval Plan dated 09.10.2018, sanctioned by the respondent Nos.1 to 4, before Hon'ble High Court. But we do not have a copy of the said Writ Petition before us, therefore, who were these authorities, is not clear. It is further prayed before the Hon'ble High Court that direction be issued for revocation/cancellation of the impugned OC and Plans.
6. In the present application, the learned Counsel for respondent Nos.8 to 11 has argued that because of the said Writ Petition being pending before the Hon'ble High Court, the present amendments need to be rejected along-with the Original Application because it is settled law that when the High Court is seized of a matter with regard to the same cause of action, then in the case of conflicting orders passed by the NGT and the High Court, it is the order passed by the Constitutional Court, which would prevail over the orders passed by the Tribunals.
7. By the proposed amendment, we find the main averment, which is prayed to be incorporated in the present Original Application, relates to the fact that the Project Proponents/answering respondent nos.8 to 11 have raised construction in question above 40,317.33 sq. mtrs. without any prior EC.
8. Our attention is also drawn by the learned Counsel for applicant to an application moved by the respondent Nos.8 to 11 for grant of ex-post-
Page 8 of 10facto EC, which is annexed at page nos.743 to 823 of the paper book, where-in the total BUA is recorded as 40,317.33 sq. mtrs. constructed at CTS Nos.1381, 1382/C, 1378/A & 1629A/1-10, Village: Bandra 'C', Tehsil: Bandra (West), District: Mumbai Suburban, Maharashtra by the name Group Housing Project "Sandhu Palace" which has been developed by the respondent Nos.8 to 11.
9. When we made a query from the learned Counsel for respondent Nos.8 to 11, as to what was the outcome of the application of ex-post-
facto EC under violation window moved on 20.05.2017, which is annexed at page no.737 of the paper book? In this regard, the said learned Counsel has drawn our attention to the letter of MoEF&CC dated 06.10.2017, which is annexed at page no.948 of the paper book, where-in it is mentioned that "the Ministry in pursuance of Notification dated 09.12.2016 has issued an order on 07.07.2017 that no separate environmental clearance is required for building and construction projects upto 1,50,000 sq. mtrs. BUA in respect of Municipal Corporations......" Hence it is submitted by the learned Counsel for respondent Nos.8 to 11 that there was no necessity for them to obtain the prior EC.
10. This line of defense, which has been set up by the respondent Nos.8 to 11, whether the same is tenable is a matter to be decided by us on merits after hearing both the sides as well as after taking into consideration the view taken by the SEIAA, Maharashtra.
11. As regards the same matter being pending before the Hon'ble High Court, we are of the view that in the present matter, by virtue of the present amendment, demolition prayer is being sought on account of the construction having been made without prior EC, therefore, we do not find that the issue, which has been raised before the Hon'ble High Court, is identical to the issue being raised before us.
Page 9 of 1012. Therefore, we are of the view that at this stage, this amendment application needs to be allowed and accordingly is allowed with the direction that said amendment shall be incorporated in the Original Application within a period of one week and an amended copy of the complete Original Application shall be placed on record and thereafter, within one week, a copy of the same shall be served upon all other parties.
13. Respondents shall submit their reply affidavits against the amended Original Application, if so required, within a period of three weeks after the receipt of amended Original Application.
14. So far argument raised by the respondent Nos.8 to 11 that the amendment is time barred as for a long time, the applicants did not move any application seeking amendment in the present Original Application, this issue also needs to be determined on merits by us after hearing all the parties.
I.A. No.153/2023(WZ) stands disposed of accordingly.
15. Registry is directed to put up main matter along-with pending application, if any, for further consideration on 23.01.2024 Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM September 13, 2023 I.A. No.153/2023 (WZ) In Original Application No.31/2015(WZ) P.Kr Page 10 of 10