National Green Tribunal
Sushant Subhash More vs M/S Hotel Sahyadri Puspa Through Mr. ... on 4 December, 2023
Item No.6 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Original Application No.37/2023 (WZ)
Sushant Subhash More
.....Applicant
Versus
M/s Hotel Sayadri Puspa & Ors.
....Respondent(s)
Date of hearing: 04.12.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Asim Sarode, Advocate
Respondent(s) : Mr. Rahul Garg, Advocate for R-1, 16, 22, 23, 24, 25, 26,
27, 29, 30, 31, 32, 33, 34, 36, 38, 39, 46, 47, 48, 49, 50,
51, 52, 62, 65, 67, 69, 71, 72, 82, 86, 90, 92, 93 & 97
Mr. Shivshankar Swaminathan, Advocate for R-2
Ms. Kirti Bhoite, Advocate, representing Economic Laws
Practice, Advocates & Solicitors, for R-21
Mr. Nitin Deshpande, Advocate along-with
Mr. Sudhakar S. Bhosale, SDO, Satara for R-101
Ms. Manasi Joshi, Advocate for R-102
Mr. Aniruddha Kulkarni, Advocate for R-103
ORDER
1. In compliance with our previous order dated 04.09.2023, learned counsel Mr. Asim Sarode representing applicant has not filed any affidavit regarding the respondents, which are mentioned in para no.2 of our earlier order, to whom the notices were sent by registered post. Out of them, some have refused to receive notices and some notices have returned with an endorsement "refused" or whatever endorsements so that an appropriate order could be passed regarding them.
2. The learned counsel for applicant further submits that he has received several notices written with the endorsement that the Page 1 of 8 respondents are not residing at the given addresses as they have let out the said accommodation to the tenants. Therefore, he submits that if the notices are served on the tenants, the same should be treated to have been served upon the said respondents. We provide him last opportunity of two weeks within which he shall file an affidavit to the effect that service has been effected on all these respondents and whatever endorsements have been made on the envelope of notices, which have returned, should also be indicated so that an appropriate order may be passed in that regard, failing which we would have no option but to pass an adverse order against the applicant.
3. The learned counsel for applicant was also directed by the previous order in para no.10 to implead the Deputy Conservator of Forests, Satara as respondent No.104. But no such application has been moved impleading the same nor has he filed any amended memo of parties or has taken any steps for service to be effected upon such newly impleaded respondent. We provide him last opportunity of two weeks within which he shall complete these amendment process and effect service upon newly impleaded respondent No.104 and file an amended memo of parties. He is directed to serve a copy of the same upon all other parties.
4. We have noticed that there are large number of respondents in the present case. Some of them are being represented through their learned counsel, who submit before us that they have not received a copy of the Original Application and other relevant documents. Therefore, we direct the learned counsel for applicant to provide entire set of records of Original Application to all the respondents in the present matter, who have not been served, through e-mail positively.
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5. In compliance with our previous order, learned counsel Ms. Kirti Bhoite representing respondent No.21/Mr. Farukh Nariman Koopar submits that she has filed her Vakalatnama along-with reply affidavit, the same is taken on record. By that very order, we had also directed learned counsel Mr. Shivshankar Swaminathan representing respondent No.2- M/s Sai Shivar to file Vakalatnama and four weeks' time was also sought by the said learned counsel to file reply affidavit. But the same has not been filed and plea is taken that the copy of the Original Application has not been served upon him. We have already instructed above about this fact to the learned counsel for applicant. Further, we make it clear that if any of the respondents does not have the copy of Original Application, they may obtain a copy of the same directly from the learned counsel for applicant.
6. From the side of respondent Nos.1, 16, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 36, 38, 39, 46, 47, 48, 49, 50, 51, 52, 62, 65, 67, 69, 71, 72, 82, 86, 90, 92, 93 & 97 learned counsel Mr. Rahul Garg has appeared, who prays that two weeks' time may be allowed to file reply affidavit, the same is allowed.
7. From the side of respondent No.102/MPCB, learned counsel Ms. Manasi Joshi has appeared, who submits that this matter requires constitution of a Committee, in order to ascertain the illegal constructions, which need to be demolished in accordance with law and if such Committee is constituted, which submits its report, thereafter only it would be appropriate for her to file reply affidavit.
8. From the side of respondent No.103/State Environment Department, learned counsel Mr. Aniruddha Kulkarni has appeared, who submits that he does not want to file reply affidavit. Page 3 of 8
9. From the side of respondent No.101/District Collector, Satara, learned counsel Mr. Nitin Deshpande along-with Mr. Sudhakar S. Bhosale, SDO, Satara have appeared, who apprised us that reply affidavit has already been filed, where-in it is submitted that in exercise of powers under Section 15(1) of the Maharashtra Regional & Town Planning Act, 1966, the State Government has brought into effect the Regional Plan for Satara District, which is annexed as Annexure 'R-1'. He has also annexed Government Notification dated 08.01.2018, which is a regional plan for Satara District, in which Kaas Plateau is shown to fall in the Conservation Zone. But we do not find any such mention in the said Notification that Kaas Plateau falls in Conservation Zone. We direct the learned counsel for respondent No.101 to clarify in this regard.
10. Further, it is mentioned in this reply affidavit by the respondent No.101 that the Urban Development Department of the State Government has sanctioned Regulations for Conservation Zone vide Notification dated 23.12.2021, which covers the Conservation Zone in Satara Region and defines Core Zone of Conservation Zone and Buffer Zone of Conservation Zone. Kaas Plateau is covered by these Regulations. The said regulation is annexed as Annexure R-3 at page no.809 of the paper book, where-in we find that Kas Pathar has been referred to have been identified and proposed to be conserved and protected as Conservation Zone. Further, it is mentioned that none of the alleged illegal structures belonging to the respondent Nos.1 to 100, fall in Core Zone of the Conservation Zone. We enquired from the learned counsel for respondent No.101 as to what does core zone mean, he submits that the same would mean the Kas Pathar. But we direct him to file an affidavit in this regard that it is nothing but Kas Pathar.
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11. Further, it is mentioned in this affidavit by the respondent No.101 that the table portion of Kaas Plateau constitutes a Core Zone. The area consisting mainly of the slopes around Core Zone having ecological importance due to its waters and more specifically shown in Green colour on the Plan appended to the Notification as Appendix-M constitutes the Buffer Zone. We find from record that the said Appendix- M has not been annexed, where-in, in green colour, it is stated to have been shown that the slops around the Core Zone is of ecological importance. Therefore, we direct him to file an affidavit in this regard before the next date positively.
12. We have gone through the remaining part of the affidavit of respondent No.101, in which we failed to understand as to why this kind of affidavit has been submitted by the learned counsel for respondent No.101 as nothing could be explained by him as to how these pleadings would help us in resolving the dispute in question.
13. In para no.11 of the affidavit of respondent No.101, it is submitted that the structures, which are prayed to be demolished, fall in 11 villages, out of which for 9 villages the Planning Authority is the District Collector and for the remaining two villages i.e. Atali and Parambewadi, the Planning Authority is MSRDC (Maharashtra State Road Development Corporation Limited) and therefore, the Planning Authority i.e. MSRDC needs to be impleaded as one of the respondents in the present case.
14. In view of above, we direct the learned counsel for applicant to implead the MSRDC (Maharashtra State Road Development Corporation Limited) as respondent No.105 in the present case forthwith and file amended memo of parties.
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15. It is also made clear in this affidavit by the respondent No.101 that for the villages, for which the Collector, Satara, is the Planning Authority and he had issued notices under Section 45 of the Maharashtra Land Revenue Code (MLRC), 1966 in the year 2013 to 2021 for unauthorized use of land and under Section 52 & 53 of the MRTP Act, and fine has been imposed. But when we enquired from the learned counsel for respondent No.101 as to whether after imposition of fine, the matter is over and illegality has been regularized, it is stated by the said learned counsel that the regularization applications are also moved, which are under consideration. But these facts have not been brought on record by the said learned counsel.
16. We also made a query from the learned counsel for respondent No.101 as to whether notices sent to the persons, list of which (99 persons) are annexed at page nos.871 to 872 of the paper book, are the same respondents before us, he submits that he cannot clarify in this regard. He has to verify about it. We failed to understand as to why these facts have not been verified and yet the affidavit has been filed before us by the learned counsel for respondent No.101. We deprecate this practice and expect that only relevant facts need to be mentioned by them in future in their affidavit which would assist us in resolving the dispute in the present matter.
17. It appears from the prayer, which has been made by the applicant that he seeks demolition of the constructions raised by the private respondents on Kaas Plateau, which is said to be Reserved Forest and Eco-sensitive area where no such construction could be permitted.
18. Since the private respondents are large in number and each and every case would be difficult to scrutinize, therefore, we deem it Page 6 of 8 appropriate to constitute a Committee to go into the details of the violations made at their end and submit their recommendations before us as to whether the said constructions deserve to be demolished and/or environmental damage compensation needs to be imposed, comprising one Member each from:-
(i) The District Collector, Satara;
(ii) The Maharashtra State Pollution Control Board (MSPCB);
(iii) The Environment & Climate Change Department, State of Maharashtra;
(iv) The Dy. Conservator of Forest, Satara; and
(v) The Maharashtra State Road Development Corporation
Limited (MSRDC).
19. The District Collector, Satara shall be the nodal agency for coordination and logistic support.
20. The Committee is directed to visit the site and submit a factual and action taken report as to whether there is a violation of EIA Notification, 2006; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; Maharashtra Regional & Town Planning Act, 1966; and Forest Conservation Act, within a period of two months of uploading this order.
21. The report in the matter be submitted through e-filing by using portal of NGT in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
22. Applicant is directed to supply the required documents and copy of the application to the Members of the Committee within three days from today.
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23. Registry is directed to communicate a copy of this order to the above-mentioned Committee forthwith for compliance.
Put up this matter for further consideration on 05.03.2024
24. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM December 04, 2023 Original Application No.37/2023 (WZ) P.Kr Page 8 of 8