National Green Tribunal
Hubtown Limited vs Ministry Of Environment Forest And ... on 24 October, 2024
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 327/2024
Hubtown Limited Applicant
Versus
Ministry of Environment Forest
and Climate Change & Ors. Respondent(s)
Date of hearing: 23.08.2024
Date of pronouncement and uploading: 24.10.2024
CORAM: HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Karan Bharioke, Mr. Parag Kabadi, Ms. Anshita Sethi & Ms. Himani
Yadav, Advocates.
Respondent: Ms. Praveena Gautam, Ms. Kanika Kalyan, Ms. Akanksha Tyagi & Mr. Pawan
Shukla, Advocates for R-1.
Mr. Mukesh Verma, Advocate for R-2 & 4.
ORDER
1. In this original application, the applicant has sought directions/clarifications that the respondents are bound by the order of the National Green Tribunal (NGT) dated 07.10.2012, passed in Appeal No. 13, 14, 19 and 20 of 2012 and they have no power to show the entire Subject Property artificially painted green in the Coastal Zone Management Plan (CZMP), 2019. The applicant has further sought a direction to the respondents to grant the application dated 02.03.2022 for approval of its Slum Scheme forwarded to the Maharashtra Coastal Zone Management Authority (MCZMA) by the Slum Rehabilitation Authority (SRA) by letter dated 20.04.2022.
2. The case of the applicant is that it is a developer of the property bearing CTS No. B-908 to B-910 and B-911 (pt.) situated at Bandra, Mount Mary Hills, Kadeshwari Mandir Marg, H/W ward, Mumbai-400050 (hereinafter referred to as "Subject Property"). The Development Control 1 Regulation (DCR 1967) and the Development Plan for Greater Mumbai (1967 DP) were published in 1967 in pursuance of the Maharashtra Regional Town Planning (MRTP) Act, 1966. Under 1967 DP, the Subject Property was reserved for the purpose of a Garden. According to the applicant, this reservation was never acted upon by the relevant authorities and the Subject Property was never used as a Garden but it was encroached by the slum dwellers.
3. The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 was enacted for the improvement and clearance of slum areas, ensuring redevelopment of the slum areas and protection of occupiers in the slum areas from eviction and distress warrants in the State of Maharashtra.
4. Further plea of the applicant is that since the Subject Property was encroached upon by the slum dwellers, therefore, in 1976 it was declared as a censused slum and the slum dwellers on the Subject Property had formed themselves into four slum societies, namely, (i) Bandra Jaffar Baba CHS Limited; (ii) Shiv Mandir CHS (proposed); (iii) Hill People CHS (proposed) and (iv) Durga Mata CHS (proposed) (hereinafter referred to as the "Slum Societies").
5. The Coastal Regulation Zone (CRZ) Notification, 1991 was published exercising powers under the Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1986, inter-alia, providing for measures to protect and conserve the coastline and marine ecosystem.
6. On 20.02.1991, the DCR 1967 and 1967 DP were replaced by the DCR 1991 and 1991 DP, wherein the Subject Property continued to be shown as Garden.
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7. The applicant was appointed by the Slum Societies as the developer of the Subject Property for implementing the Slum Scheme on the Subject Property. The applicant submitted a proposal on 15.10.1998 to the Slum Rehabilitation Authority (SRA) for the development of the Subject Property. The proposal of the applicant was accepted by the SRA which issued its Letter of Intent (LOI) dated 23.11.1998 providing for an area of 4110.58 sqm, i.e., 33% out of the Subject Property was to be surrendered towards a non-buildable reservation of Garden. The SRA also issued the intimation of approval dated 29.12.1998 for the construction of a building to rehabilitate the slum dwellers on the Subject Property. The revised LOI dated 29.12.1998 contained the same provision relating to surrendered of 4110.58 sqm towards the non-buildable reservation of Garden. This 4110.58 sqm kept aside in the Subject Property for Garden reservation was to be handed over to Brihanmumbai Municipal Corporation (BMP) free of cost and free of encumbrances on or before completion of the development of the Subject Property and the balance area was to be used by the applicant for construction of the building for rehabilitation of slum dwellers and also for the free sale component, as per the approved Slum Scheme.
8. Further case of the applicant is that SRA issued a revised LOI dated 30.11.2004 regarding the Subject Property, whereunder Floor Space Index (FSI) of 2.289 was granted but in-situ FSI was restricted to 1.25. Under this revised LOI also the condition relating to keeping aside 4110.58 sqm for Garden was kept intact.
9. The Slum Scheme of the applicant under the EIA Notification 2006 was given clearance by the MoEF&CC on 02.03.2007. Since, the applicant wanted to utilize 2.5 FSI in-situ against a sanction of 1.25 FSI, 3 it made an application dated 06.02.2007 to the MCZMA. The applicant's proposal was considered by the MCZMA on 14.05.2009.
10. In its 52nd meeting on 14.05.2009, the MCZMA took the view that as per the approved condition of CZMP of Maharashtra, residential use of open space is not a permissible activity and that the proposed Slum Scheme of the applicant was planned on the land reserved for Garden and as such not allowed. The MCZMA observed that the Subject Property reserved for the Garden was no longer open space as it was occupied by some dwellers prior to 19.02.1991. The MCZMA accordingly referred the matter to MoEF&CC for its decision.
11. The proposal of the applicant was rejected by the MoEF&CC on 10.08.2009 on the grounds that the Subject Property was on the seaward side of the existing road and that the Subject Property was reserved for Garden under the 1991 DP and CRZ Notification 1991, any existing open space situated in CRZ-II Zones was categorized into CRZ-III, therefore, as per CZMP of Maharashtra, construction could not be permitted.
12. Against the decision dated 10.08.2009, the applicant had preferred an Appeal before the National Coastal Zone Management Authority (NCZMA).
13. Vide letter dated 18th January 2010 the Applicant had submitted HTL/LTL demarcation done by NIO to MOEF which the MOEF forwarded to MCZMA for examination and further action vide letter dated 16th February 2010.
14. In the meanwhile, on 06.01.2011, the CRZ Notification 1991 was superseded by CRZ Notification 2011, wherein under clause 8(V) it was provided that in coastal areas falling under CRZ-II, Slum Schemes will be 4 permitted to be developed with the Floor Space Index in accordance with the Town & Country Planning Regulations prevailing as on date of which the project was granted approval by the Competent Authority, provided such redevelopment is undertaken directly or through a joint venture or public-private partnership or other similar models, ensuring that the stake of the State Government or it parastatal entities is not less than 51%.
15. The BMC had issued the letter dated 04.07.2011 clarifying that the Subject Property was on the landward side of an existing road. The MCZMA had issued a stop work notice dated 02.09.2011 to the applicant in respect of the Subject Property. The NCZMA on its 23rd meeting held on 04.01.2012 rejected the applicant's plea that the Subject Property should not be categorized as CRZ-III since no Garden or open space existed on the Subject Property for more than 35 years. The NCZMA held that the applicant's submission amounted to reclassification of CRZ areas from CRZ-III to CRZ-II.
16. The applicant had filed Appeal No. 14/2012 before the NGT aggrieved with the decision of the MoEF&CC dated 10.08.2009 and 16.02.2010 and NCZMA order dated 04.01.2012. Separate appeals were filed before the applicant in respect of different Slum Schemes.
17. The plea of the applicant is that the NGT by order dated 17.10.2012 had allowed the Appeals by reaching to the conclusion that the Subject Property could not be treated as a Garden and it was a slum. The NGT directed the MoEF&CC to restore the applicant's proposal and take a decision in the light of the observation made in the order of the NGT.
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18. Further plea of the applicant is that the MCZMA on 26.04.2013 in its 81st meeting based on the NGT's order decided to withdraw the stop work notice dated September 2011 and directed the SRA to ensure that the FSI of the Slum Scheme is in accordance with the DCR existing and in force on 19.02.1991.
19. The MCZMA issued letter dated 26.06.2013 to the applicant withdrawing the stop work notice in terms of the decision taken in the meeting dated 26.04.2013 and permitting the applicant to develop the Subject Property, as per the applicable DCR in force as on 19.02.1991, i.e., 1967 DCR.
20. Further case of the applicant is that between June 2013 and November 2016, the balance RCC work of the rehab building no. 2B as well as the finishing work of the said building was completed. The revised LOI dated 09.11.2016 was issued by SRA with respect to the Subject Property providing 4110.58 sqm area to be surrendered towards the unbuildable reservation of Garden.
21. The present grievance of the applicant started when the draft CZMP was published on 29.03.2017, wherein the entire Subject Property was shown to be reserved for Garden, whereas the issue was already settled by the NGT order. The applicant objected to it vide letter dated 24.04.2017.
22. The CRZ Notification 2019 was published on 18.01.2019. On 06.01.2020, the draft CZMP was published to give effect to CRZ Notification 2019, wherein the Subject Property was again shown as a Garden reserved for No Development Zone (NDZ). Applicant objected to it vide letter dated 05.02.2020.
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23. Further plea of the applicant is that on 29.09.2021, the CZMP for Mumbai was approved and became applicable, wherein despite NGT's order the entire Subject Property was erroneously shaded in green showing as reserved for Garden.
24. In the meanwhile, SRA had issued a revised LOI dated 06.11.2020 in respect of the Subject Property considering 49-51 per cent private and State partnership under CRZ Notification 2011, which was applicable when the applicant had submitted the proposal. Further, the plea of the applicant is that since the applicant had accommodated 13 to 15 slum dwellers who were on the adjacent road, the area thereof was included in the Subject Property and accordingly the area of the Subject Property increased. Therefore, the revised LOI provided for 4681.90 sqm area to be surrendered towards non-buildable reservation for Garden. The applicant had also taken the necessary steps to obtain the NOC but, in the meantime, the CZMP with reference to CRZ Notification 2019 was published. Hence, that matter could not be taken forward.
25. The applicant had submitted the revised application dated 02.03.2022 for approval of its Slum Scheme pursuance to Regulation 5.2(ii) and 5.2 (iii) of CRZ Notification, 2019. It was forwarded to MCZMA by SRA vide letter dated 20.04.2022.
26. The plea of the applicant is that the MCZMA had kept the applicant's application along with another Slum Scheme and that the MCZMA in its 166th meeting held on 12.04.2023 and 13.04.2023 recommended the proposal in respect of another Slum Scheme from CRZ point of view after noting that the proposed construction of building in CRZ-II is permissible under Regulation 5.2(ii) and 5.2 (iii) of CRZ Notification 2019.
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27. However, the applicant's proposal was considered by the MCZMA in the 167th meeting held on 18.05.2023, wherein MCZMA held that the applicant's Slum Scheme is situated in NDZ (CRZ III) of CRZ-II within Greater Mumbai by virtue of Garden reservation, as per approved CZMP 2019. The MCZMA, however, considering that the Slum Scheme was ongoing since 1998 referred the matter to MoEF&CC for guidance on the issue if the applicant's Slum Scheme could be allowed on land having Garden reservation. The applicant, thereafter sent communications dated 21.09.2023 to the Union of India and 17.10.2023 to MCZMA for rectification of the above error of wrongly treating the Slum Scheme of the applicant in NDZ by virtue of Garden reservation. Since no action was taken thereon, therefore, the present OA has been filed.
28. Affidavit on behalf of Respondents No. 2 and 4, the State of Maharashtra and MCZMA has been filed in this OA taking the stand that the project of SRA is situated in NDZ of CRZ-II within Greater Mumbai by virtue of Garden reservation as per approved CZMP 2019 and in this regard reliance on para 10.3 of CRZ Notification 2019 has been placed. A plea has been taken that land is reserved as a Garden in the development plan of Mumbai and as per para 10.3, CRZ Notification 2019 only civic amenities are allowed in the Garden reservation (NDZ) area. Further stand of respondents no. 2 and 4 is that considering the scheme to be ongoing scheme the matter has been referred by the MCZMA to MoEF&CC, Delhi for guidance on whether the subject ongoing SRA Scheme could be allowed on land having reservation of Garden and for taking necessary decision at NCZMA level.
29. Respondent no. 1, Union of India, MoEF&CC has filed the reply taking the stand that as per CRZ Notification 2011/2019, the State 8 Coastal Zone Management Authority (SCZMA) is primarily responsible for the enforcement and implementation of the provisions of CRZ Notification. Referring to the Notification dated 30.09.2022 empowering the SCZMA to take action under Sections 5, 10 and 19 of the Environment (Protection) Act, 1986 a stand has been taken by the MoEF&CC that CRZ Regulation are to be implemented and monitored (including violation thereof) by the concerned SCZMA in accordance with the approved CZMP of the respective States.
30. Submission of the counsel for the applicant is that NGT by the earlier order has already concluded the issue that the Subject Property is not a Garden but is inhabited by the slum dwellers and by the subsequent decision MCZMA by withdrawing the stop work notice and permitting construction in terms of SRA scheme accepted the NGT order. He further submits that the slum dwellers had vacated the slum before 2011, the applicant is paying ₹90 lakhs as transit rent and the slum dwellers are also waiting for their houses and the issue is concluded by the earlier order of the NGT, therefore, the MCZMA is not justified in delaying the matter on the plea of seeking clarification from MoEF&CC and MCZMA. He further submits that there is no plea raised by the respondents about violation of 1991 regulation and the applicant is leaving the green area in excess and the Environment Clearance (EC) has already been granted, therefore, now the MCZMA should take a decision on the application of the applicant within a time bound period keeping in view the earlier order of the NGT. He further submitted that the project is socially important and that under the CRZ Notification 2019, action taken under CRZ Notification 2011 has been saved.
31. That apart, counsel for the applicant has relied upon the judgment of the Division Bench of the Bombay High Court in the matter of Sea 9 Green Co-Operative Housing Society Ltd. v. Union of India and Ors.; reported in (2015) 1 Mh.L.J., wherein the issue was exclusion of the staircase, lift and lift lobby from FSI calculation in reference to DCR 1967 or CRZ Notification dated 06.01.2011, the Division Bench held as under:-
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20. Learned counsel for MCZMA, however, submitted that in case of Suresh Estates Pvt. Ltd. and others vs. Municipal Corporation of Greater Mumbai and others, 2008(2) ALL MR 768, the Apex Court has held that existing Regulations on the date of coming into force of the CRZ Notification dated 19 February, 1991 were DC Regulations, 1967. Learned Counsel then submitted that under DC Regulations, 1967, the areas of staircase, lift and lift lobby were not required to be excluded from the calculations of FSI but only the room above the staircase and room above lift were excluded from FSI calculation. Strong reliance is placed on the observations made in the said decision to the effect that CRZ Notification dated 19 February, 1991 froze FSI as per DC Regulations of 1967.
21. In our view, it would have been necessary to consider the above submission in depth if the CRZ Notification of 6 January, 2011 had not came in the picture. Once CRZ Notification of 6 January, 2011 has come into force, it is not necessary to examine the above controversy. But in any view of the matter, having regard to the fact that State Government had always proceeded on the basis that DC Regulations of 1991 were applicable and not DC Regulations of 1967 (which contention the Apex Court did not accept in November, 2007), it cannot be held that the action of the Petitioner society in submitting the plans to Municipal Corporation and the action of Municipal Corporation in sanctioning those building plans wherein staircase, lift and lift lobby areas were excluded from FSI calculations, was mala fide."
32. Learned counsel for respondents no. 2 and 4 has submitted that the NGT in the earlier order had issued a limited direction and that the MCZMA has considered the issue in its meeting held on 18.05.2023 and has referred the matter to MoEF&CC for guidance and necessary decision at NCZMA level which is awaited.
33. Learned Counsel for Respondent no. 1, MoEF&CC has submitted that the respondent no. 4, MCZMA vide communication dated 10.08.2023 has only referred the matter to respondent no. 1 but has not made any recommendation, whereas in terms of clause 5.2(iii) of the CRZ 10 Notification 2019, the MCZMA was required to forward the proposal to the NCZMA with its views which has not been done. Further submission has been made that respondent no. 4 should take a decision within a time-bound period and if the proposal is not approved, respondent no. 4 should send it to respondent no. 1.
34. We have heard learned counsel for the parties and perused the records.
35. The subject matter of present controversy falls within the territorial jurisdiction of the NGT, Western Zone Bench (WZB) at Pune but this OA is being decided by the principal bench in view of the order of Hon'ble Supreme Court dated 17.05.2024 passed in IA No. 84014-84015/2024 in the pending Civil Appeal No. 7807/2022 in the matter of National Green Tribunal & Anr. v. Goa Foundation & Ors.
36. The undisputed fact is that though under DCR 1961 and 1967 DP the Subject Property was reserved for the purpose of Garden but it was declared as a censused slum in 1976 owing to the encroachment by slum dwellers. It is also undisputed that the slum dwellers had formed themselves into four slum societies, namely, (i) Bandra Jaffar Baba CHS Limited; (ii) Shiv Mandir CHS (proposed); (iii) Hill People CHS (proposed) and (iv) Durga Mata CHS (proposed). It is also not disputed that the Subject Property is situated on the landward side of the road. It has also not been disputed that earlier the MCZMA in its 52nd meeting held on 14.05.2009 had referred the matter to the MoEF&CC for its decision by observing that use of open space was not permissible activity and that the proposed Slum Scheme of the applicant was planned on land reserved for Garden and as such not allowed by the MoEF&CC. The MoEF&CC on 10.08.2009 had rejected the proposal. The applicant had 11 filed an appeal against this order before the NCZMA which was rejected on 04.01.2012, therefore, the applicant had filed appeal no. 14/2012 against the order of MoEF&CC dated 10.08.2009 and 16.02.2010 and NCZMA order dated 04.01.2012. The NGT by order dated 17.10.2012 had allowed the appeal by recording the findings in favour of the applicant and on that basis, the MCZMA on 26.04.2013 had taken a decision in favour of the applicant and stop work notice was withdrawn but in the CRZ Notification 2019 and the CZMP for Maharashtra prepared on that basis the Subject Property is again shown as green as Garden, The CRZ Notifications have been issued under Section 3(i) and 3(ii)(v) of the Environment (Protection) Act, 1986 and rule 5(3)(d) of the Environment (Protection) Rules, 1986 declaring coastal stretches as CRZ and regulating the activities in the CRZ.
37. Under the CRZ Notification 1991 for regulating development activities the coastal stretches of the land-ward side were classified into four categories, namely, CRZ-I, II, III and IV and the norms were prescribed for regulation of activities in these zones.
38. The CRZ-I include the areas which were ecologically sensitive and important and the area between Low Tide Line (LTL) and the High Tide Line (HTL). The CRZ-II includes the areas which were already developed upto or close to the shore line. The CRZ-III covered the areas relatively undisturbed and those which do not belong to category I or II. CRZ-IV covered coastal stretches in Andaman & Nicobar and Lakshadweep as per CRZ 1991.
39. The record reflects that in the CZMP of Maharashtra approved by the MoEF&CC, it is provided that parks, playgrounds, regional parks, general green zones and other non-buildable area which are in the 12 category CRZ-II will be treated as CRZ-III. Thus, by fiction, non-buildable areas such as parks, playgrounds, general areas etc. as mentioned in CZMP were shifted from CRZ-II to CRZ-III. Therefore, at the earlier stage, the MoEF&CC had not approved the proposal in view of the CRZ Notification 1991 on the ground that these subject plots were reserved for Garden and reclassified from category II to category III. The decisions of the MoEF&CC dated 10.08.2009 and 16.02.2010 and NCZMA dated 04.01.2012 in this regard became subject matter of challenge in the Appeals No. 13, 14, 19 and 20 of 2012 before the NGT, PB. While deciding these appeals the NGT had considered the issue if the Subject Property could be treated to as reserved for Garden when it was encroached upon and inhabited by the slum dwellers. The NGT on examination of this issue while allowing the above appeals by order dated 17.10.2012 recorded as under:-
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2. Appellant No. 1 M/s Hubtown Ltd. was previously styled as "Akruti City Ltd." The Appellant No. 1 is developer and deals in construction activities. The Appellant No. 1, admittedly, undertook construction of buildings for Maya Nagar Cooperative Housing Society Ltd. and Durgamata Cooperative Housing Society Ltd. There is no dispute about the fact that both the housing societies are formed by slum dwellers. The rehabilitation project of slum dwellers was to be implemented by the Housing Societies formed by the slum dwellers. There is no dispute about the fact that one of such project is contemplated to be executed on a plot at Worli (Survey No. 32 Pt) and 38(Pt) admeasuring 5665 sq.meters and another at Bandra (CTS No. B-908, B-909, B-910 & B-911 (part) admeasuring 15,295 sq.mtrs. There is no dispute about the fact that certain slum dwellers having their hutments on the subject plots were censused in/or about 1976. The State Government issued photo passes to them. It appears that the plots in question were already occupied by the slum dwellers prior to 19.2.1991.
3. On 19.2.1991 a Notification was issued by the Ministry of Environment & Forests (MoEF). Under the said notification, classification was made in respect of Coastal Area for the purpose of Development Regulations. By the said classification, Category-II CRZ (III) was declared to consist of the area which had already been developed up to limit of the 13 shore land. The expression "developed area" was purported to mean the area within the Municipal Limits or in other designated urban area which was already substantially build up and which had been provided with drainage and project roads and other infrastructural facilities, such as water supply and Sewerage. Category-III (CRZ-III) was declared to consist of the areas within the Municipal Limits or other designated area, which were not substantially build up, and had been neglected. The development or construction activities in such areas was regulated by virtue of the said notification. On 27.9.1996 Coastal Zone Management Plan (CZMP) for the State of Maharashtra was approved by the MoEF as per the general conditions. In the order of approval, it has been mentioned that the Parks, Playgrounds, Regional Parks, General Green zones and other non-buildable areas, which are in the category "CRZ-II", shall be treated as "CRZ-III." Thus, by fiction the non-
buildable areas as well as the parks ground general areas etc. were shifted from Category-II (CRZ-II) areas to category-III (CRZ-III) areas.
4. Slum Rehabilitation Authority ("SRA") issued Letter Of Intent (LOI) to the appellants for grant of approval to the proposed redevelopment of the subject plots. The slum dwellers were permitted to be rehabilitated in the new buildings proposed to be constructed on the plots in question. On 4.1.2002, Maharashtra Coastal Zone Management (MCZMA) was requested to grant clearance for construction of the buildings over the subject plots for the rehabilitation of slum dwellers. Slum Development Rehabilitation Authority (SRA) issued amended Letter Of Intent (LOI) on 30th October, 2004. It appears that the appellants submitted an application to the MoEF for grant of clearance to their projects under the Environment Impact Assessment Notification. The appellant submitted proposals to MCZMA for no objection certificate. The MCZMA recommend for approval to proposals of the appellants on 14.5.2009. The MCZMA forwarded the recommendations to the Director, Coastal Zone Regulation, MoEF along with the proposals submitted by the appellants. The MoEF did not give approval to the proposals in view of the CRZ Notification of 1991, on the ground that these subject plots were reserved for "Garden" and therefore reclassification of the plots from Category-II (CRZ-II) to Category CRZ -III could not be approved. The appellants preferred an appeal to NCZMA (National Coastal Zone Management Authority). The appeals were not decided by the NCZMA and therefore the appellants filed two writ petitions in the High Court of Bombay, bearing Writ Petition No. 930 of 2011 and Writ Petition No. 931 of 2011. The High Court of Bombay disposed of both the Writ Petitions on 17.8.2011, directing the NCZMA to decide representation of the appellants though the appeals were not maintainable under the law. The appellants were granted leave to make supplementary representations and additional submissions before the NCZMA. They accordingly filed fresh representations to the NCZMA. The NCZMA eventually declined to accord permission for both the projects. The said orders of the NCZMA are subject matter of challenge in Appeal No. 13/2012 and Appeal No. 14 14/2012 which were taken in its 23rd meeting of 04.01.2012 on the above subject, which was Item No. 4 on agenda of the meeting of the NCZMA.
5. The NCZMA held that although the subject plots were being used by the slum dwellers even prior to 1976, due to reservation of the plots as per the development plan under CRZ Notification, 1991, because those plots were reserved for "Garden" and therefore the request of the appellants for reclassification of CRZ areas from CRZ-III to CRZ-II cannot be considered Still, however, the NCZMA observed that since scheme is for slum improvement, the MCZMA to consider such issues in the CZMP to be prepared under CRZ Notification, 2011 to protect the socially important project.
In other words, the NCZMA asked the MCZMA to place the proposals in the subsequent plan of CZMP as would be required under the CRZ Notification of 2011. It clearly appears that the NCZMA came to the conclusion that it was necessary to prevent the hurdles for such "socially important projects".
6. Feeling aggrieved by the decision taken by the NCZMA in its 23rd meeting of 04.01.2012 declining to approve the projects as stated above, the two (2) appeals (Appeal No. 13/2012 and 14/2012) have been preferred by the appellants.
The other two appeals (Appeal No. 19/2012 and Appeal No. 20/2012) are between the same parties and the issues involved are also the similar. In those two appeals the appellants have challenged letters dated 31.8.2009 and dated 16.2.2010 issued by the MoEF whereby the projects were not approved. The MoEF asked the NCZMA to refrain itself from making references of such cases which were not in accordance with CRZ Notification, 1991."
40. The above facts recorded in the order of the NGT in the earlier round of litigation have not been disputed by counsel for the parties in the present OA.
41. In the earlier round of litigation after considering the material, the NGT in the order dated 17.10.2012 had reached to the following conclusions:-
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13. Perusal of the impugned orders show that proposals of the projects were rejected only on a ground that site in question was shown as Garden in the development plan 15 and was governed by CRZ Notification, 1991. It appears that the MoEF declined to consider the proposals on the ground that it would mean to allow reclassification of the subject plots from CRZ Category III to CRZ Category II. It is stated in the impugned orders that the remarks of the Urban Development Department, Government of Maharashtra indicated that the parks and play grounds and other non- buildable areas falling within CRZ-II Category have been categorised as CRZ-III. That appears to be main reason assigned by the MoEF in the impugned decisions.
14. A close scrutiny of the record shows that there was no existence of Garden or park on the subject plots since much prior to 1991. It is an admitted fact that the area is covered by hutments. It is a fact that a large group of hutment dwellers falls under the census carried out by the Government agency in or about 1976. In other words, the subject plots were treated as Gardens/parks only because of the Coastal Regulations Zone Notification, 1991.
15. The question that needs to be addressed is whether the plots already covered by the slums could be treated as reserved Gardens/parks. Such a reservation is assumed by giving "deeming effect" on account of issuance of the CRZ Notification, 1991. Needless to say, what did not exist, in reality, is assumed to be in existence by virtue of the CRZ Notification, 1991 with retrospective effect. In our opinion, legal fiction may give deeming effect to the proposition or thing which does not exist as on the date of regulation or Law. However, no deeming effect can be given to assume non existence of thing to be an existing thing with retrospective effect. Such an interpretation may create analomous position. For example, where a building is constructed and stands and the same was constructed by obtaining necessary permission as per the Law, which was inforce at the time of such construction, by subsequent executive Instructions or Regulations, the existence of such a building cannot be made to "disappear" by legal fiction. We mean to say that subsequent executive Instructions or Regulations cannot be interpreted so as to make the same unworkable and impracticable. There is no magic wand under the CRZ Notification, 1991 to make disappear such slums which already existed since long before issuance of the CRZ Notification, 1991.
16. This takes us to subsequent Notification dated 3.6.1992 issued by the Urban Development Department, State of Maharashtra, under Section 31(1) of the MRTP Act, the said Notification recognised the fact that the slums were in existence in the areas which were not designated as residential areas. This subsequent notification of the Urban Development Department dated 3.6.1992 appears to have been ignored by the NCZMA. The NCZMA did not consider whether both the subject plots are fully seaward or partly seaward or totally landward. In case, a part of the proposed 16 project falls within no-go zone, then the same has to be identified and segregated for the purpose of consideration. In our opinion, the NCZMA (MoEF) appears to have given no much tangible reasons in support of the impugned decisions. The communications served by the MoEF which are challenged in the present appeals are therefore passed by rendering non- speaking orders. Thus, both the impugned decisions are contrary to the principles of natural justice. It is well -settled that non-speaking order is one of the category which violates the principles of natural justice.
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18. Considering the legal, and factual position, we are of the opinion that the NCZMA and MoEF ought to have properly exercised the discretion by harmonious interpretation of CRZ Notification, 1991 and subsequent Notification, 1992 as well as the purpose of classification under the CRZ Notification, 1991. In view of the discussion made above, we are of the opinion that the impugned decisions are required to be interfered with.
19. For the reasons discussed herein above, we partly allow both the appeals (Appeal Nos. 13 and 14 of 2012) and direct the MoEF to restore the earlier representation of the appellants and to take a fresh decision in the light of observations made above. It is made clear that we have not given any finding on merits of the matter and it will be within discretion of the competent authority to take any decision which will be backed by reasons."
42. Thus, in the above order the NGT had in substance found that by deeming fiction respondent could not bring into presence the Garden when, in fact, there were hutments on the Subject Property and it was being developed by the applicants since 1976. Meaning thereby the Tribunal held that since the slums already existed on the Subject Property, therefore, by the CRZ Notification 1991 the slums could not be wiped off and the existence of the Garden could not be shown there. The above order of the NGT has not been challenged and it has not been reversed, modified or set aside by any higher forum or court and has attained finality.
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43. The above order of the NGT was duly accepted and acted upon and the MCZMA in its 81st meeting held on 26.04.2023 had considered the case of the applicant and decided that: -
"1. Stop work Notice issued to the SRA scheme dated Sept, 2011 by the MCZMA to be withdrawn.
2. The Slum Rehabilitation Authority (concern planning authority) approved the said SR scheme under CRZ Notification, 1991 prior to 4.1.2002. The SRA should ensure that the FSI of the said scheme is in accordance with the DCR existing and inforce as on 19.2.1991 i.e. DCR 1967."
44. Thus, the MCZMA in the above meeting had accepted the order of the NGT dated 17.10.2012 and finally concluded that SRA was approved by the competent authority after considering the provisions of CRZ notification 2019, the scheme was situated on the landward side of the existing road, the site fell under CRZ II area, Condition No. xvi) of the MoEF letter No. J-17011/8/95-1A-111 dated 27.9.1996 was not applicable in the instance case, there was no existence of Garden or parks on the subject plots since much prior to 1991 and there was existence of slum on site and that there was no violation in the case.
45. The MCZMA subsequently had sent the communication dated 26.06.2023 to the applicant withdrawing the stop work notice dated September, 2011. Thus, undisputedly the judgment of the Tribunal dated 07.10.2012 passed in Appeals No. 13, 14, 19 and 20 of 2012 was acted upon and the controversy was set at rest.
46. The stand of the applicant that after the order of the NGT dated 17.10.2012 and decision of the MCZMA dated 26.04.2023 much work has been accomplished under the Slum Scheme, has not been controverted by the respondents. The MCZMA in its meeting held on 18.05.2023 noted that the work of one building stood completed and the 18 occupation certificate was received. It has also been pointed out that further work in four other buildings is at an advanced stage and that the slum dwellers have vacated the subject land in 2011 and the applicant is paying transit rent of ₹90 lakhs and the slum dwellers are waiting for their houses. In such circumstances, the respondents were not expected to drag the matter raising the same issue again and again.
47. The respondents are also prevented from changing their stand in respect of the issue settled under the CRZ Notification 1991, in view of the saving clause contained in the CRZ Notification 2019.
48. Despite the fact that the land under consideration cannot be treated to be Garden due to slum inhabitation being concluded by the order of the NGT dated 17.10.2012 in Appeal No. 14/2012 and also the decision of the MCZMA dated 26.04.2023, in the subsequent draft CZMP published on 29.03.2017 and 06.01.2020 and the CZMP approved on 29.09.2021, the entire subject property was erroneously shown as reserved for Garden. The respondents are not justified in showing the Subject Property as Green in the CZMP ignoring the earlier order of the NGT and the decision taken by the MCZMA in its 81st meeting held on 26.04.2023. The proposal forwarded by the SRA to MCZMA on 20.04.2022 in respect of revised LOI in terms of clause 5.2 of CZMP 2019 was required to be considered by the MCZMA, keeping in view the above finally concluded position but the MCZMA instead of taking any decision on the proposal has merely referred the matter to MoEF&CC, New Delhi for guidance in its 167th meeting held on 18.05.2023. The MoEF&CC has rightly taken the stand in this OA that in terms of the CRZ Notification 2011/2019, the SCZMA is primarily responsible for enforcement and implementation of provisions of CRZ Notification. Hence, the decision is required to be taken by the MCZMA. Learned counsel for MoEF&CC 19 during the course of the arguments had stated that the observations made in the order of the NGT dated 17.10.2012 in Appeal No. 14/2012 are correct and as per the MCZMA classification of the subject land dated 26.04.2013 which is based on CRZ Notification1991. The subsequent CRZ Notification 2011/2019 will have no bearing on the classification agreed upon by the MCZMA under CRZ Notification 1991. The MCZMA cannot repeatedly raise the same issue which is already concluded. The proposal of the applicant needs consideration under clause 5.2 (i), (ii) and
(iii) of the CRZ Notification 2019.
49. When the issue was decided between the same parties in respect of the same property qua the same Slum Scheme by the NGT on 17.10.2012 which has attained finality, ignoring the said order of the Tribunal, a contrary stand cannot be taken by the respondents.
50. Hence, the OA is disposed of directing the respondent no. 4, MCZMA to take steps on the proposal of the applicant within two months in accordance with the order of the Tribunal dated 17.10.2012 passed in Appeal No. 14/2012 and the observations made above and ignoring the contrary reflection about the Subject Property in CZMP 2019.
Prakash Shrivastava, CP Dr. A. Senthil Vel, EM October 24, 2024 OA 327/2024 avt 20