Partly allowed

Vardhman Developers Limited v. Union of India and Ors.

Bombay HC24 Sept 2012WP/1916/2012

Case brief

AI extract

What is this about?

The High Court allowed partial construction of 11,000 sq.m for municipal school, staff quarters, and rehabilitation pending environmental clearance, directing the Authority to consider the project expeditiously upon an undertaking from the developer.

What did the court decide?

Allowance to construct 11,000 sq.m for municipal school, quarters, and rehabilitation; direction to Respondent No.4 to consider application expeditiously upon filing of an undertaking.

Vardhman Developers Limited Vs Union of India and… — Environment and Pollution | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1916 OF 2012

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Vardhman Developers Limited ...Petitioner

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v/s.

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Union of India & Ors. ...Respondents

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Mr.Milind Sathe, Senior Advocate with Mr.D.H.Mehta i/b Mr.Jitendra J. Shah for petitioner. Ms.Navina Kumai for respondent no.1. Mr.G.W.Mattos, AGP for State. Ms.Sharmila Modle for respondent No.4-(BMC). Mr.Parag Shah with Mr.Mahesh Shah for respondent No.5.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 24 September 2012.

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P.C.

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Rule. Respective counsel waive service of rule.

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In the facts and circumstances of the case, the matter is taken up for final hearing.

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The petitioner-company is a developer, which has acquired development rights from respondent No.5-Mazgaon Dholkawala Co.operative Housing Society (proposed) having premises on City Survey No.366(part) and City Survey No.1/367 of Mazgaon Division, `E' Ward in Mumbai. The land admeasures about 13,098.96 sq.meters.

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It is the petitioner's case that part of the above land is reserved for municipal primary school as per the Development Plan. However, some portion of the land was encroached upon by slum dwellers. The other land is occupied by 54 municipal tenants. In view of the above situation, the development agreement has been entered into between respondent No.5-society and the petitioner-developer, and the Municipal Corporation has also agreed to the arrangement under which-

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(i) the petitioner will construct municipal school on the land admeasuring 1045 sq.meters and hand over the same to the Municipal Corporation free of costs.

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(ii) the petitioner will also construct, free of costs, municipal employees quarters on the land of 1,952.84 sq.meters.

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(iii) the Municipal Corporation will also get Rs.51,33,11,059/- over and above the above constructed properties.

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(iv) all the municipal tenants/ and eligible slum dwellers will be rehabilitated and will be allotted permanent accommodation free of costs and they will also receive corpus fund each of the commercial occupants Rs.37,500 and each of the residential tenants/eligible slum dwellers Rs.18,750/-.

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According to the petitioner, the Municipal Corporation has already sanctioned the above proposal and the Municipal Corporation has also issued Intimation of Disapproval (IOD) under section 346 of the Mumbai Municipal Corporation Act on 25 April 2012. In accordance with the said redevelopment agreement, the petitioner has already demolished the existing structures on the land and is also paying compensation in lieu of transit accommodation to tenants and eligible slum dwellers, who are going to be allotted permanent accommodation free of costs.

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The grievance of the petitioner in this petition is that clause 29 of the IOD provides that the petitioner cannot obtain commencement certificate before obtaining NOC from the Ministry of Environment and Forest. It is submitted that such NOC from Ministry of Environment and Forest is required because the total built up area of the project submitted by the petitioner is 46,200 sq. meters and as per the notification dated 14 September 2006 issued by the Ministry of Environment and Forest, prior environmental clearance is required from the Ministry of Environment and Forest, where the built-up area exceeds 20,000 sq.meters. The State Environmental Impact Assessment Authority, which is appointed for considering such proposal for environmental clearance has a large number of pending applications. The petitioner's application for prior environmental clearance was submitted to the said authority on 15 June 2012. However, the application is still at serial No.296 of the list of applications, from which so far only first ten applications have been considered by respondent No.3-the State

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Environmental Impact Assessment Authority. It is, therefore, submitted that the petitioner does not expect its application to be considered for another 6 to 12 months, which would unnecessarily delay implementation of the project, which would include construction of a municipal school free of costs, and construction of municipal employees quarters, free of costs, to be provided by the petitioner to the Municipal Corporation, and also construction of rehabilitation buildings for 54 municipal tenants and 29 eligible slum dwellers, free of costs. It is submitted that the total built-up area of this part of the project will be hardly about 11,000 sq.meters, which is well below the stipulated limit of 20,000 sq.meters, beyond which the developer cannot construct without obtaining prior environmental clearance.

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Mr.Sathe, learned Senior Counsel for the petitioner relies upon the order dated 29 March 2012 passed by this Court in Writ Petition No.504 of 2012 and submits that in the said case this Court had permitted the concerned developer to take up construction of area up to 18,031.78 sq.meters, for which the concerned developer had obtained approval from the Municipal Corporation and had observed that having regard to the fact that a large number of environmental clearance applications are pending with the Government and that environmental clearance is required only when the built up area exceeds 20,000 sq.meters and an undertaking being given by the developer not to exceed construction of more than 20,000 sq.meters before getting environmental clearance, can be acted upon so that project for rehabilitation of slum dwellers is not delayed.

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The writ petition is opposed by Mr.Mattos, learned AGP appearing for respondent No.2-State of Maharashtra and respondent No.3-State Environmental Impact Assessment Authority. The learned counsel for Municipal Corporation, Gr.Mumbai also submits that since clause 29 of the IOD requires the petitioner to obtain NOC from the State Environment Impact Assessment Authority before applying for commencement certificate, prayer made by the petitioner may not be granted. Mr.Mattos further states the petitioner's grievance about delay in disposal of applications for environmental clearance is not justified, because it was on account of pendency of a large number of applications that the State Government has appointed another committee to expedite consideration of applications for environmental clearance for projects in Mumbai Metropolitan Region. The learned counsel for the Union of India states that she has no instructions in the matter.

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Before proceeding further, we note that while issuing notice on this petition on 11 September 2012, we had indicated the petitioner's grievance and suggestion that prima facie no prejudice will be caused to any party if the petitioner is permitted to put up construction not exceeding 20,000 sq.meters, because environmental clearance is required only if the project involves construction of built up area exceeding 20,000 sq.meters.

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The learned counsel for the respondents have not addressed us on this particular issue of prejudice. As already indicated above, out of 46,200 sq.meters of built-up area for which the petitioner has been granted IOD by the Municipal Corporation about 11,000 sq.meters of the construction is going to be for the benefit of the municipal tenants, eligible slum dwellers and also the Municipal Corporation itself, because the petitioner is required to construct municipal staff quarters as well as municipal school, all free of costs. The learned counsel for the petitioner further states that since these buildings for the municipal school, municipal staff quarters and rehabilitation buildings for 84 families are going to have a separate foundation from the foundation for the free sale component buildings, the foundation for buildings with built up area of 11,000 sq.meters will not have the same impact which will be caused by laying foundation for construction of free sale component buildings for more than 30,000 sq.meters. The learned counsel further states that the petitioner undertakes not to construct built-up area in excess of the built-up area for municipal school, municipal staff quarters and the rehabilitation buildings for 84 families or any further construction on the basis of free FSI available to the developer on account of development of above buildings.

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The learned counsel further states that the Director of the petitioner-company with an authority of the resolution of the Board of Directors will file an undertaking on the above lines within two weeks from today.

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Having heard the learned counsel for parties, we are of the view that since what the petitioner proposes to construct in the first phase is only about 11,000 sq.meters of built-up area and that too only construction of a municipal school buildings, to be provided free of costs to the Municipal Corporation, construction of municipal staff quarters, to be provided free of costs to the Municipal Corporation and rehabilitation building for municipal tenants and eligible slum dwellers, all aggregating to about 84, free of costs, and also payment of pro-rata amount to the Municipal Corporation out of Rs.51.33 crores, no prejudice will be caused to any of the respondent-authorities or to any public interest if the petitioner is permitted to put up above construction of about 11,000 sq.meters in the first phase, before the petitioner's application for prior environmental clearance is considered by respondent No.3-authority. As already indicated above, prior environmental clearance is required only where the proposed construction exceeds 20,000 sq.meters.

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For the reasons aforesaid, the petition is partly allowed. Respondent No.4 is directed to consider the petitioner's application for grant of commencement certificate only for the construction of municipal school, municipal staff quarters and rehabilitation building for 84 families of municipal tenants/eligible slum dwellers, after the petitioner files an undertaking in terms of the contents of para 10 hereinabove.

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It is clarified that this order shall not create any equity in favour of the petitioner when its application for environmental clearance is considered by respondent No.3Authority. It is also clarified that respondent No.3-Authority shall consider such proposal for environmental clearance on its own merits without being influenced by this order, but as expeditiously as possible.

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Rule is made absolute to the above extent only.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Vardhman Developers Limited v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Vardhman Developers Limited v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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