NATIONAL GREEN TRIBUNAL€¦ · 1. Mr. SHAILESH NARVEKAR, Aged-33 years having address as Room No....

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NATIONAL GREEN TRIBUNAL

Principal Bench, New Delhi

Appeal No. 23/2011(T) Wednesday, 5th of December, 2012

Quorum:

1. Hon’ble Shri Justice V. R. Kingaonkar (Judicial Member) 2. Hon’ble Shri Dr. Devendra Kumar Agrawal (Expert Member)

BETWEEN:

1. Mr. SHAILESH NARVEKAR,

Aged-33 years having address as

Room No. 184-2/3, Nehru Nagar Rahivasi Sangh

Dr. Annie Besant Road, Prabhadevi, Mumbai 400 025

2. Mr. AVELIN PERNANDIS,

Aged 22 years, having address as

Room No. 209, Nehru Nagar Rahivasi Sangh


3. Mr. YOGESH BAIKER,

Aged- 33 years, having address as



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4. Mr. SANJAY WARANG,

Aged-35 years, having address as


Dr. Annie Besant Road, Prabhadevi,

Mumbai 400 025 …Appellants

A N D

1. State of Maharashtra

Through Secretary- Environment Department,

Room No. 217, 2nd Floor, Mantralaya Annexe,

Mumbai- 400 032.

2. The Chief Executive Officer(CEO),

Slum Rehabilitation Authority, Grihanirman Bhawan,

Bandra(East), Mumbai -51

3. Developer- M/s. Skylark Build &

M/s Vrinda Enterprises (Jointly)

54-B , 402, Sagaravenye, 5th Floor, Jn. of S.V. Road &

Lallubhai Park Road, Andheri (W), Mumbai- 400 058.

4. Maharashtra State Pollution Control Board,

Through the Member Secretary,

Kalpatru Point,

3rd and 4th Floor, Opp. Cine Planet, Sion Circle,

Mumbai- 400 022.

5. The State Environmental Impact Assessment Authority,

Room No. 217, 2nd floor, Mantralaya Annexe,

Mumbai- 400 032.

…….. Respondents

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(Advocates appeared: Mr. Ritwick Dutta and Mr. Rahul

Choudhary for Appellant and Mr. S.G. Surana for Respondent

No. 3 and Mr. Mukesh Verma, Advocate alongwith Mr.

Pravesh Thakur, Advocate for Respondent Nos. 1,4 & 5 and Mr.

Mike Prakash Desai alongwith Mr. Sanjay V. Kharde, Advocate

for Respondent No. 2).

JUDGEMENT

1. Challenge in this appeal is to grant of Environment Clearance

(for short, EC) dated 23rd March, 2009, by the Respondent No. 1 in file

no. MoEF-21/72/2008-I A III/TCI.

2. The appellants are Slum Dwellers of Nehru Nagar locality,

situated on Dr. Annnie Besant Road, Mumbai. They claim to be stake

holders in development of the plots of land bearing FP no. 1076 and

1078 of TPS- IV of Mahim Division and CS 286 (Pt), and village Lower

Parel Division, Worli.

3. Briefly stated, case of the appellants is that the Respondent

No.3 (M/s Skylark Builders) had applied for grant of sanction to Slum

Rehabilitation Authority, (for short, SRA) for permission to execute

Slum Redevelopment Project on above mentioned plots. The

Respondent No. 2 Slum Rehabilitation Authority (for short, SRA)

accorded the sanction. A Letter of Intent (for short, LOI) was issued to

Respondent No. 3 and Intimation of Approval (for short, IOA) was also

issued without obtaining “EC” from the Ministry of Environment and

Forests (for short, MoEF) which was necessary under the prevailing EIA

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Notification. Thus, without compliance of the statutory and

mandatory provisions of the Law and guidelines under the MoEF.

Notification dated 27th January, 1994 that was applicable for the SRD

project. Even so, the Respondent No. 3 i.e. Developers commenced

demolition of the slums and subsequently started construction of

buildings at the site. The appellants have come out with a case that

the grant of EC to the three (3) amalgamated projects started by the

Respondent No. 3 (project proponent) is illegal and liable to be

quashed.

4. This appeal was previously filed before the National

Environment Appellate Authority, New Delhi. It came to be transferred

to this Tribunal after coming into force of the National Green Tribunal

Act, 2010.

5. The appellants, named above, are inhabitants of rooms situated

in Nehru Nagar, Dr. Annie Besant Road, Prabhadevi, Mumbai. There is

no dispute about the fact that they are the hutment dwellers.

6. The appellants seek declaration that the rehabilitation project is

governed by EIA Notification dated 27th January, 1994, and as such

required procedure of Public Hearing (for short, PH) as well as proper

assessment of Environmental Impact was essential pre-condition

before approval of the project. They allege that the Respondent No. 3

suppressed materials facts and obtained the EC dated 23rd March,

2009, by misrepresentation, claiming it to be covered under EIA

Notification dated 14th September, 2006.

7. Slum Rehabilitation Scheme was postulated in Mahim Division

and Worli Division, Mumbai for rehabilitation of the slums. As per the

scheme, the slums were to be demolished and new buildings were to

be constructed at the place. The intention of the State Government

was to provide housing accommodation to the slum dwellers. The

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appellants were residing in rooms situated in slum of Nehru Nagar,

locality before 1st January, 1995. There is no dispute about the fact

that they were required to be allotted residential accommodation in

the constructed buildings as per the scheme.

8. The first SRD was sanctioned in favour of M/s Skylark Builders on 20th October, 1998. The first project was in respect of Shree Sai Sunder Nagar Co-operative Housing Society (CHS). The housing project was to be undertaken on CS No. 286 (Pt) of Lower Parel Division of FP No. 1078, TPS IV of Mahim Division, Prabhadevi, Mumbai. The area of the slum plot of the first project was 17274.22 sq. metres. The building was duly approved and IOA dated 20th October, 1998, was issued by the SRA. On the same day the commencement certificate was also issued by the SRA. The developer constructed first cluster of the buildings upto plinth level. On 15th February, 2001, the SRA further extended commencement certificate for construction upto 7th floor. Thus, the rehabilitation building No. 1 was constructed as per the sanctioned SRD Scheme.

9. The second construction project was joined with the earlier slum project on 18.10.2004. The SRD approved the said project. Accordingly, LOI was also issued. On 27.6.2006 the Respondent No. 3 further amalgamated the 3rd SRD project with the earlier two projects. By notification dated 14th September, 2006 the MoEF made it clear that EC is necessary for construction for an area of 20,000 sq. meters. The guidelines were thereafter issued by the MoEF on 13.9.2007. The Respondent No. 3 submitted application for grant of EC to the MoEF. The MoEF transferred the project to State Environmental Impact Assessment Authority (for short, SEIAA) for grant of EC on 15.6.2008. The State Level Appraisal Committee verified the particulars, took site inspection and decided in its 7th meeting to grant the EC. The SEIAA granted the EC dated 23.3.2009 which is under challenge in this appeal.

10. The locus standi of the appellants was subject matter of challenge in the proceedings before the National Environment

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Appellate Authority, New Delhi in the Appeal No. 24/2009. The Appellate Authority held that the appellants have no locus standi to prefer the appeal. That order of the Appellate Authority was challenged before the High Court of Delhi in W.P.(C) No.12535/2009. It appears that before the High Court Bench, during course of hearing of the said writ petition, two issues were raised by the appellants. First, whether they have locus standi to approach the authority. Secondly, whether it was necessary to grant PH to them. The Delhi High Court held that the appellants have locus standi to challenge the EC. So far as the question of PH is concerned, the Delhi High Court observed as follows;

“It was the contention of the Petitioners that on the commencement of the project, a Notification dated 27th January, 1994 read with the Notification dated 7th July, 2004 issued by the Ministry of Environment and Forests was in operation which postulated grant of public hearing before the environmental clearance. However, the environmental clearance was granted in terms of the notification issued by the Ministry of Environment and Forests on 14th September, 2006 which did not postulate a public hearing. According to the Petitioners, a public hearing should be granted to them since the 1994 and 2004 Notifications were applicable at the relevant time.”

11. The main issue, therefore, that boils down is about applicability

of the Notification pertaining to requirement of the PH. The question

to be addressed is, therefore, which of the Notification will be

applicable out of the three notifications referred to hereinabove.

12. The Learned Counsel for the appellants would submit that for

the first project there was necessity to seek EC which contemplated PH.

He argued that without any opportunity to the appellants, to

participate in the consultation process, the project could not be cleared

only because that was amalgamated with the other two projects. The

Learned Counsel for the appellants further argued that under the

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Environmental Impact Assessment Notification dated 27th January,

1994, issued by the MoEF the project was covered by Interim No. 31 of

Schedule –I and therefore when the project was not completed prior to

7th July, 2004, the PH was necessary. The Learned Counsel would submit

that though the Maharashtra State Pollution Control Board (for short,

MPCB) decided to initiate proper action against the Respondent No. 3

and issued stop work order on account of violation of Section 15 of the

Environment Protection Act, 1986, yet subsequently the EC was granted

by the SEIAA. It is argued that, therefore, the grant of EC dated

23rdMarch, 2009, by the SEIAA is illegal. It is argued that the EC was

granted by giving go-by to the violation of the conditions by the

Respondent No. 3, Even though the Respondent No. 3 had already

commenced the construction project without Environment Impact

Assessment. In any case, the action taken by the MPCB could not be

overlooked by the SEIAA when the EC was granted. It is argued that

then Member Secretary of the MPCB (Shri Sanjay Khandare) committed

serious lapses. The Learned Counsel argued that it was imperative for

Shri Sanjay Khandare, the then Member Secretary of MPCB, to point

out the fact that stop work order was contemplated against the

Respondent No.3, in pursuance of the notices dated 20.12.2008 and

11.2.2009. His suppression of such fact during course of the meeting of

SEIAA held on 18th March, 2009 is inexplicable. The Learned Counsel

submits that the EC was granted in hush-hush manner. Consequently, it

is argued, the EC is liable to be quashed.

13. Per contra, Learned Counsel for the Respondent No. 3 argued

that PH was needed only to the extent of “new projects” by virtue of

the Notification dated 7th July, 2004. He argued that the construction

project had already commenced and the work was done up to plinth

level, in so far as the first project is concerned, as on the date of such

Notification i.e. dated 7thJuly, 2004. He argued, therefore, that the first

project could not be considered as “new project” for the purpose of

applicability of the Notification dated 7th July, 2004. He contended that

the three projects were amalgamated together for the sake of

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convenience though the first project was, actually, on-going project. He

argued that in view of the subsequent Notification dated 14th

September, 2006, there was no requirement of PH for the

implementation of the first project, under which the appellants are

covered. His further argument is that the appellants cannot challenge

legality of the EC without showing what could be their objections in the

context of the environmental issues. He argued that the appeal is filed

only with ulterior motive to stall the project and gain some easy money.

Hence he sought dismissal of the appeal.

14. The Learned Counsel appearing for the Respondent Nos. 1,2,6 &

7 supported the action taken by the Respondent No. 7(SEIAA). He

submitted that affidavit filed by Shri Sanjay Khandare, then Member

Secretary of the MPCB, gives sufficient explanation about his non-

disclosure of the action taken by the MPCB against the Respondent No.

3. He pointed out that Shri Sanjay Khandare was only invitee to the

meeting of the SEIAA that was held that 18th March, 2009. According to

the Learned Counsel, Shri Sanjay Khandare was not a party to the

decision and as such cannot be blamed for the grant of EC dated 23rd

March, 2009 by the SEIAA (Respondent No. 7).

15. As stated earlier, the main issue is: “Which of the three

Notifications referred to above will be applicable to the first project and

whether that project could be treated separately from the amalgamated

SRD projects?” This question will have to be considered in view of

composite impact of the said three Notifications. For, the EC in question

was ultimately granted on 23rd March, 2009. The prior two projects and

the 3rd SRD project were consolidated together at the time of issuance of

the EC dated 23rd March, 2009.

16. Considering the fact that no EC was accorded prior to 23rd March,

2009 for either of the project, though the Respondent No. 3 applied for

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such EC on different dates, it goes without saying that the juxtaposition

of such requirement of PH as on 23rd March, 2009 will have to be

examined. Perusal of the three relevant Notifications go to show that

for the first time the condition of PH was incorporated in the

notifications dated 7th July, 2004. The first project of SRD was started

by the Respondent No. 3 without obtaining the EC. Therefore, it is

difficult to say that the same was not a new construction project. The

explanation given in the Notification dated 7th July, 2004, below

paragraph 3(I) (ii) (h) reads as follows;

“Explanation.-

(i) New Construction projects which were undertaken without obtaining the clearance required under this notification, and where construction work has not come up to the plinth level, shall require clearance under this notification with effect from the 7th day of July, 2004.”

17. Though the work of construction was started by the Respondent

No. 3 in respect of the first SRD project yet there was no EC obtained

for such work. The second Notification of 2004, will cover any new

construction project which had been undertaken without EC. The words

“under this Notification” i.e. the Notification dated 7th July, 2004 are

important. It does not cover the SRD project illegally started earlier. In

other words, the illegality committed by the Respondent No. 3 was not

washed away due to the explanation (i) (ii) (h) mentioned above. The

consolidated project does not come under Regulation twelve (12) of the

Notification dated 14th September, 2006 because the earlier

construction was done without EC and consent from the MPCB.

18. What appears from the record is that the Respondent No. 3

amalgamated all the three projects in order to overcome the technical

difficulty of the necessary compliance required to be made as per the

Notification dated 7th July, 2004. The Respondent No. 3 submitted

afresh project for grant of the EC after the 3rdNotification dated 14th

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September, 2006. The Notification dated 14th September, 2006, of

course, required grant of EC to any construction project of 20000 sq.

meters area as shown in interim No. 8(a) of Schedule-I appended

thereto. The amalgamated project was therefore required to be

cleared by the MoEF being in the Category A. It appears that

subsequently the MoEF circular dated 13th October, 2007 was issued.

Thereunder, new guidelines were issued for EIA Appraisal. The

relevant guideline No. 2.2.2 shown under the said circular reads as

follows:

“Activity requires EIA Appraisal/Clearance by the SIEAA/SEAC as per Schedule of EIA2006, but SEIAA/SEAC has not yet been notified: The EIA Appraisal applications will be processed/evaluated by MoEF as per the procedure above, till such time as the concerned SEIAA/SEAC is notified. Upon such notification, the papers will be promptly transferred to the SEIAA for further consideration as above.”

19. On careful consideration of the documents on the record, it is

explicit that the MoEF returned the proposal to the SEIAA after

constitution of the latter authority as per the Notification. The fall out

of such subsequent development was that the SEIAA was required to

assess the EIA and take independent decision. In other words, the

requirement of PH could be done away with by the SEIAA. The SEIAA

called upon the Respondent No. 3 to furnish certain documents and

information. The Respondent No. 3 complied with such direction. The

three amalgamated projects were approved by the SDA. The SEIAA

considered the amalgamated project in its 7th meeting held on 18th

March, 2009. The SEIAA thereafter granted the EC dated 23rd March,

2009. It appears that the minutes of the said meeting were drawn on

the same day i.e. 18th March, 2009. It further appears that Shri Sanjay

Khandare, then Member Secretary of the MPCB was present in that

meeting as an invitee. Not only that but previously the project was

considered in meeting dated 23rd November, 2008. It was decided in

the meeting dated 23rd November, 2008, by the SEIAA that the three

amalgamated projects could by treated in Category B-2 and the project

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proponent was requested to give additional information as shown

against item at Serial No. 12 of the Minutes. The Respondent No. 3

gave needed information to the SEIAA.

20. In our opinion, when the work of assessment of the SRD project

was transferred to the SEIAA and the same was evaluated as Category

B-2 project, there was no necessity to conduct PH. That apart, the

appellants have not demonstrated through the appeal memo as to

what kind of objections could have been raised by them in such process

of PH. Unless it is shown that they have been seriously prejudiced and

there legal right is adversely affected, mere technical ground of the

absence of PH will be of no much avail to them. There was no legal

requirement of PH as on the date of assessment of the amalgamated

project when the SEIAA arrived at the decision to grant the EC in its 7th

meeting held on 18th March, 2009. The legal position where the

Respondent No. 3 stood as on 18th March, 2009, and on 23rd March,

2009, is more relevant for the purpose. In our opinion, there was no

legal impediment when the EC was granted to the Respondent No. 3

without conducting the PH as on 18th March, 2009. The impugned EC

cannot be, therefore, quashed and set aside due to absence of PH. In

our opinion, the Notification dated 14th September, 2006, and circular

dated 23rd October, 2007 issued by the MoEF would be applicable to

the amalgamated project. It cannot be said that the Respondent No. 3

committed any illegality by joining the three projects. The appeal is

therefore destitute of merits.

21. All said and done, we are of the opinion that when the MPCB

decided to take action against the Respondent No. 3 for alleged

violation of conditions in accordance that the EIA Notification dated

27.1.1994, the said action should not have been aborted only because

subsequently the EC was granted by the SEIAA. It appears that the

MPCB issued show cause notice dated 11.2.2009 to the Respondent No.

3. The Respondent No.3 admitted in clear terms that the construction

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was started without the grant of EC. The explanation given by the

Respondent No. 3 is thus:

“In view of the above, it is prayed that rehab work for

the slum dwellers which was commenced without

environmental clearance was unintentional and

inadvertent and was then in the interest of getting

better accommodation to the poor slum dwellers as

early as possible, the act may kindly be condoned.”

22. The MPCB issued the stop work order dated 30th March, 2009.

The stop work order bears signature of Shri Sanjay Khandare, then

Member Secretary of MPCB. It is an admitted fact that Shri Sanjay

Khandare attended the meeting of the SEIAA for grant of EC. It was his

duty to point out the fact that show cause notices had been issued on

11.2.2009, and dated 29.1.2009. He was well aware that show cause

notice dated 20th September, 2008 was also issued and the Respondent

No. 3 had given reply dated 5.1.2009 and 1.2.2009 as mentioned in the

stop work communication dated 30th March, 2009. The stop work

order dated 30th March ,2009 shows that Shri Sanjay Khandare heard

the matter on 16th March, 2009. It is mentioned in the said

communication that during course of the hearing representative of the

Respondent No. 3 informed that the Respondent No.3 had applied for

EC which was under process. It also appears from the communication

dated 30.3.2009 issued by Shri Sanjay Khandare that the Respondent

No. 3 admitted, during course of the hearing on 16.3.2009, that the

construction activity was being carried out without obtaining the EC

from the SEAC and consent from the MPCB. Notwithstanding such

personal knowledge, Shri Sanjay Khandare did not raise any issue in

discussion/deliberations of the committee of the SEIAA. In fact, it was

necessary to take suitable action again the Respondent No. 3 for the

construction work which, admittedly, was done without grant of the EC

by the Competent Authority. The explanation given by Shri Sanjay

Khandare in his affidavit, to the effect that he was merely an invitee in

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the said meeting and therefore he had not raised the issue appears to

be lame and unacceptable He has stated:

“I say and submit that, in the meantime, I had been invited to attend the meeting of State Level Environment Impact Assessment Authority (SEIAA) at Mantralaya, Mumbai-32 as a Special Invitee. I had attended that the said meeting on 18/3/2009. I say and a submit that in the said meeting the matter was discussed regarding grant of an Environment Clearance to the project of the Respondent No. 3. However, most of times, the Environment Clearance/s are being issued in due course and the copies of such Environment Clearance/s, unless submitted by the project proponent to the Respondent No. 5, the Respondent No. 5 does not come to know about its grant/refusal by the SEIAA. In this case also, I was not knowing whether really Environment Clearance order was issued at the time of issuance of stop work notice dated 30/3/2009. Further the stop work notice was issued on the ground of not only non- obtaining Environment Clearance but also non-obtaining Consent to Establish and carrying out construction activity without Environment Clearance and Consent of Establish unauthorisedly.Thereafter the project proponent (Respondent No. 3) vide letter dtd. 23/3/2009 had submitted a copy of the Environment Clearance dated 23/3/2009, which was received by the Respondent –Board on 31/3/2009 after the issuance of stop work notice dated 30/3/2009. A copy of the said letter is enclosed herewith and marked as an Annexure-‘C’.”

I further say and submit that mere discussion and oral consideration in the meeting of SEIAA held on 18/3/2009 may not mean that Environment Clearance is being granted to the Respondent No. 3. During the meeting, I being only the Special Invitee Member. In some of the cases, there is considerable delay in between decision to grant Environment Clearance and actual grant of Environmental Clearance. In the present case Environmental Clearance was received to the Respondent Board on 31/3/2009 after issuance of stop work notice dated 30/3/2009.

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I say and submit that grant of Consent to Establish and grant of an Environment Clearance are separate legal requirements, any project proponent has to fulfill as per the Circular issued by the Ministry of Environment and Forest, IA Division, Government of India by F.No. J-11013/41/2006-IA-II(I), dated 21/11/2006. A copy of the said circular is enclosed herewith and marked as an Annexure-‘D’. In the instant case, since the Respondent No. 3 had started construction without obtaining an Environment Clearance and without consent to Establish, after extending an opportunity of hearing to both the complainant (present appellant) and the project proponent (Respondent No. 3) , the decision was taken that in view of the violations made by the project proponent, the directions of closure should be issued to the project proponent on the basis of personal hearing extended on 16/3/2009.”

23. We have given anxious consideration to the above explanation of

Shri Sanjay Khandare. Still, however, it is difficult to appreciate his

silence in the meeting dated 18.3.2009 held by the SEIAA. He may be

the special invitee but there was no legal embargo on him to keep

silence. He was not a mute spectator. He failed in his duty to point out

that show cause notices were already issued by his office to the

Respondent No. 3 and that the lapses were admitted by the

Respondent No. 3. The conduct of Shri Sanjay Khandare is rather

unbecoming of a responsible public officer. We deem it proper,

therefore, to request the Chief Secretary, Maharashtra State

Government, to take suitable action against Shri Sanjay Khandare for

such kind of conduct and intentional suppression of the material facts.

We also deem it proper to direct the MPCB and SEIAA to take proper

penal action against the Respondent No. 3 for commencement of the

construction work without obtaining the prior EC.

24. In the result, the appeal is dismissed with no order as to costs.

The Chief Secretary Maharashtra State Government shall take action

against Shri Sanjay Khandare as mentioned in the paragraph (23) of this

judgment. The SEIAA and MPCB shall take suitable penal action against

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the Respondent No. 3 for the lapses, including the commencement of

the work without the EC and prior consent of the MPCB, within period

of four(4) months after receipt of the copy of the judgment. Copy of the

judgment shall be forwarded to the Chief Secretary of the State of

Maharashtra, and the Secretary (Environment Department),

Maharashtra Mantralaya, Mumbai-400032 and the Member Secretary

of MPCB by registered post (AD) immediately. The copies may be sent

by the office under intimation to this Bench and compliance made by

the concerned authorities shall be called and placed before this Bench

after four (4) months.

(Dr. Devendra Kumar Agrawal) (Justice V.R. KIngaonkar) Expert Member Judicial Member

NATIONAL GREEN TRIBUNAL€¦ · 1. Mr. SHAILESH NARVEKAR, Aged-33 years having address as Room No....

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