Partly allowed

Mr. Irba Mashnaji Konapure v. Union of India through Secretary Ministry of Environment Forest & Climate Change

NGT2 Sept 2026IA No. 16/2023 in Original Application No. 107/2022

Case brief

AI extract

What is this about?

The Tribunal dismissed an application alleging violation of environmental norms and an appeal seeking quashing of EC. It held that since construction (16,733 sq. mtrs.) was below the 20,000 sq. mtrs. threshold, prior EC was not mandatory, and consequent approved EC was not ex-post-facto.

What did the court decide?

Original Application dismissed; Appeal dismissed; Joint Committee report relied upon confirming no violation below 20,000 sq. mtrs. limit.

Mr. Irba Mashnaji Konapure vs Union of India through… — Environment and Pollution | NGT (2026)

¶1

BEFORE THE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH, PUNE

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THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)

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¶4

ORIGINAL APPLICATION NO.107 OF 2022 (WZ) I.A. NO.16 OF 2023 (WZ)

¶5

IN THE MATTER OF:

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1. MR. IRBA MASHNAJI KONAPURE

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R/o: Shop No.3, Crystal Tower Building, Near Old Petrol Pump, Geeta Nagar, Phase-2, Mira-Road East, Mira Bhayandar Road, Taluka & District: Thane- 401 101.

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2. MR. SAYYED MOHAMMED SABIR USMAN R/o: Flat No. 301, Building No.4, Man Opus, Nr. Nexus Showroom, In front of Amar Palace, Mira Road East, Taluka & District: Thane-401 101.

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…..Applicants

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Versus

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1. UNION OF INDIA

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Through Secretary-MoEF&CC Ministry of Environment, Forest & Climate Change Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi –110 001.

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2. THE PRINCIPAL SECRETARY,

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Ministry of Environment & Climate Change Government of Maharashtra, Room No.217, 2^nd Floor, Annex Building, Mantralaya, Mumbai-400 032.

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3. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY-MAHARASHTRA (SEIAA)

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Through Member Secretary Government of Maharashtra,

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15^th Floor, New Administrative Building, Mantralaya, Mumbai-400 032.

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4. MAHARASHTRA COASTAL ZONE MANAGEMENT AUTHORITY (MCZMA) Through Member Secretary Government of Maharashtra,

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15^th Floor, New Administrative Building, Mantralaya, Mumbai-400 032.

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 1 of 51

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5. MAHARASHTRA POLLUTION CONTROL BOARD

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Through Member Secretary, Kalptaru Point, 3^rd Floor, Near Sion Circle, Opp. Cine Planet Cinema, Sion (E), Mumbai-400 022.

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6. MAHARASHTRA POLLUTION CONTROL BOARD

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Through Regional Office, Plot No P-30, 5^th floor, Office Complex Building, Mulund Checknaka, Thane-400 604. Maharashtra

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7. URBAN DEVELOPMENTDEPARTMENT

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Through Principal Secretary, Government of Maharashtra, 4^th Floor, Annex Building, Mantralaya, Mumbai-400 032, Maharashtra.

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8. MIRA BHAYANDER MUNICIPAL CORPORATION

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Through Municipal Commissioner-MBMC Late Indira Gandhi Bhavan, 2^nd Floor, Chhatrapati Shivaji Maharaj Marg, Bhayandar (W), Mira Bhayandar, Thane- 401 101, Maharashtra

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9. MIRA BHAYANDER MUNICIPAL CORPORATION

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Through Assistant Director Town Planning-MBMC Swami Vivekanand Bhavan, 1^st Floor, Besides R. B. K. School, Kanakiya, Mira Road (E), Taluka: Mira Bhayandar, Thane-401 107, Maharashtra

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10. THE COLLECTOR OF THANE

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Collector Office, Court Naka, Thane (West), Maharashtra-400 601.

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11.

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M/s. EVERSMILE PROPERTIES PVT. LTD.

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75-old block factory, Sector-I, Shristi Housing Complex, Village: Penkarpada, Mira Road, District: Thane, Maharashtra 401 104.

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Project Site Address : Old Survey Nos. 233 (P), 235(P) & 256 (P), New Sr. Nos. 66 (P), 68 (P) & 69 (P), Sector-IIA, At Village: Penkarpada, District: Thane Maharashtra 401 104.

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Through its Directors:

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11A. Imtiaz Ismail Kanga,

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11B. Suresh Amritlal Gandhi,

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11C. Mofatraj Pukhraj Munot,

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11D. Shravan Kumar Bali

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.....Respondents

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 2 of 51

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WITH

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APPEAL NO.23 OF 2023 (WZ) I.A. NO.09 OF 2024 (WZ)

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IN THE MATTER OF:

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PROTECTION OF ENVIRONMENT AND PUBLIC SERVICE COMMITTEE

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Through its Vice-President Bhagwanbhai S/o Bhanabhai Solanki R/o. Flat No.102, E- Wing, Mount Kailsh Apartment, Belasis Road, Mumbai Central, Mumbai-400 008.

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…..Appellant

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Versus

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1. UNION OF INDIA

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Through Secretary-MoEFCC, Ministry of Environment, Forest & Climate Change, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi –110 001.

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2. THE PRINCIPAL SECRETARY Ministry of Environment & Climate Change Government of Maharashtra, Room No.217, 2^nd Floor, Annex Building, Mantralaya, Mumbai-400 032. 3. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY-MAHARASHTRA (SEIAA) Through Member Secretary Government of Maharashtra, 15^th Floor, New Administrative Building, Mantralaya, Mumbai-400 032. 4. MAHARASHTRA COASTAL ZONE MANAGEMENT AUTHORITY-MCZMA Through Member Secretary Government of Maharashtra, 15^th Floor, New Administrative Building, Mantralaya, Mumbai-400 032.

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5. MAHARASHTRA POLLUTION CONTROL BOARD Through Member Secretary, Kalptaru Point, 3^rd Floor, Near Sion Circle, Opp. Cine Planet Cinema, Sion (E), Mumbai-400 022.

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 3 of 51

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6. MAHARASHTRA POLLUTION CONTROL BOARD Through Regional Office, Plot No P-30, 5^th floor, Office Complex Building, Mulund Checknaka, Thane-400604, Maharashtra

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7. URBAN DEVELOPMENTDEPARTMENT Through Principal Secretary, Government of Maharashtra, 4^th Floor, Annex Building, Mantralaya, Mumbai-400 032, Maharashtra.

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8. MIRA BHAYANDER MUNICIPAL CORPORATION Through Municipal Commissioner-MBMC Late Indira Gandhi Bhavan, 2^nd Floor, Chhatrapati Shivaji Maharaj Marg, Bhayandar (W), Mira Bhayandar, Thane-401 101, Maharashtra

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9. MIRA BHAYANDER MUNICIPAL CORPORATION Through Assistant Director Town Planning-MBMC Swami Vivekanand Bhavan, 1^st Floor, Besides R. B. K. School, Kanakiya, Mira Road (E), Taluka: Mira Bhayandar, Thane-401107, Maharashtra

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10. THE COLLECTOR OF THANE Collector Office, Court Naka, Thane (West), Maharashtra-400 601.

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M/s. EVERSMILE PROPERTIES PVT. LTD.

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11. M/s. EVERSMILE PROPERTIES PVT. LTD. Registered Address: 75-old block factory, Sector-I, Shristi Housing Complex, Village: Penkarpada, Mira Road, District: Thane, Maharashtra 401 104. Project Site Address: Old Survey Nos. 233 (P), 235(P) & 256 (P), New Sr. Nos.66 (P), 68 (P) &69 (P), Sector-IIA, At Village: Penkarpada, District: Thane Maharashtra 401 104.

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Through its Directors:-

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11A. Imtiaz Ismail Kanga,

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11B. Suresh Amritlal Gandhi,

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11C. Mofatraj Pukhraj Munot, 11D. Shravan Kumar Bali

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.....Respondents

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Counsel for the Applicants/Appellant in O.A. No.107 of 2022 (WZ) & in Appeal 23/2023 (WZ) :

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Mr. Nitin Lonkar and

¶73

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 4 of 51

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Mr. Pradnya Bheke, Advocates

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Counsel for the Respondents in O.A. No.107 of 2022 (WZ):

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Mr. OM Shankar Shrivastav, Advocate for R-1/MoEF&CC Mr. Aniruddha Kulkarni, Advocate for R-2/Envt. Deptt, R-3/SEIAA-Maharashtra and R-4/MCZMA

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Mrs. Manasi Joshi and

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Ms. Pooja Natu, Advocate for R-5 & 6/MPCB Mr. N.R. Bubna, Advocate for R-8/MBMC Mr. T.N Subramanian, Senior Advocate along-with Mr. Saket Mone, Mr. Suneet Kr. Tyagi, Ms. Srushti Thorat and Mr. Aniket Deshmukh, Advocates i/b. M/s. Vidhi Partners, for R-11/PP

¶80

Counsel for the Respondents in Appeal No.23 of 2023 (WZ):

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Mr. Pushkal Mishra, Advocate for R-1/MoEF&CC

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Mr. Aniruddha S. Kulkarni, Advocate for R-2/Envt. Deptt.,

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R-3/SEIAA & R-4/MCZMA

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Mrs. Manasi Joshi and

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Ms. Pooja Natu, Advocate for R-5 & 6/MPCB

¶86

Mr. N.R. Bubna, Advocate for R-8/MBMC Mr. T.N Subramanian, Senior Advocate along-with Mr. Saket Mone, Mr. Suneet Kr. Tyagi, Ms. Srushti Thorat and Mr. Aniket Deshmukh, Advocates i/b. M/s. Vidhi Partners, for R-11/PP

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PRESENT:

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Hon’ble Mr. Justice Dinesh Kumar Singh (Judicial Member) Hon’ble Dr. Sujit Kumar Bajpayee (Expert Member)

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Reserved on : 13.08.2026 Pronounced on : 02.09.2026

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JUDGMENT

¶91

Since the issues of both these cases are similar, we are disposing of the same jointly.

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ORIGINAL APPLICATION NO.107 OF 2022 (WZ)

¶93

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 5 of 51

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The facts of this case are that the Respondent No.11- M/s Eversmile Properties Pvt. Ltd. has undertaken present illegal development of Residential & Commercial Building construction project in the name and style of “Srishti Namaah” situated at Sector-IIA, Old Survey Nos.233 (P), 235(P), 256 (P) and New Sr. Nos.66 (P), 68 (P), 69 (P) at Village: Penkarpada, District: Thane, on the total land area admeasuring of 37,880.43 M² within the limit and jurisdiction of Mira-Bhayandar Municipal Corporation- Respondent No.8 as local authority. The present Original Application is filed for the infringements of environmental norms by Respondent No.11-PP for carrying out his residential and commercial building construction project.

¶96

It is further submitted in the facts of this Original Application that Respondent No.11- PP procured the CRZ Clearance on 07.06.2019 from the MCZMA- Respondent No.4 under CRZ Notification, 2011 instead of CRZ Notification, 1991 to overcome the restrictions under CRZ Notification, 1991 and illegal cutting of mangroves etc. Respondent No.11PP applied to the MoEF&CC- Respondent No.1 for obtaining Terms of Reference (ToR) vide its application dated 30.09.2020 for the project having only proposal of 10 buildings’ construction. The Expert Appraisal Committee (EAC) of MoEF&CC appraised the proposal for grant of Terms of Reference (ToR) vide its 56^th meeting held on 21.10.2020 and after deliberation issued the project specific conditions to be included in the ToR letter in addition to the standard ToR for preparation of EIA. The MoEF&CC vide its letter dated 28.12.2020 granted the ToR to the project for the preparation of EIA Report.

¶97

It is further submitted in the facts of this Original Application that Respondent No.11- PP procured the Original Layout & Building sanction

¶98

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 6 of 51

¶100

form Mira-Bhayandar Municipal Corporation (MBMC)- Respondent No.8 vide dated 10.03.2021 for the Sector-IIA on the land admeasuring an area of 37,880.34 M² comprising Nine (9) number of residential buildings from “A to I”, Club House, MLCP (Parking Building) having total proposed BUA of 68216.90 M² . The PP vide communication dated 27.03.2021 submitted the Tree Plan for trees affecting proposed construction having total count of 197, out of which 167 were proposed to be cut and 30 number of trees to be transplanted. However, majority of the trees are in the marginal space and on boundary of the plot, and as the buildings are high-rise having marginal space of more than 12.5 Mtrs, then cutting of trees from marginal space, that is required as per DCR is totally illegal. There was no inevitable situation for cutting of trees or granting of permission by Tree Authority, but there is complete non-application of mind.

¶101

It is further submitted in the facts of this Original Application that the PP submitted the application for obtaining prior Environment Clearance having total proposed BUA 3,04,576.75 M² along-with EIA Report to the SEIAA vide communication dated 03.05.2021. The PP procured the revised layout & building sanction on 26.08.2021 from MBMC. The SEAC-II has considered the proposal of the PP for appraisal after submitting the EIA Report dated 03.05.2021 in its 154^th meeting held on 04.10.2021 and observed that the ToR dated 28.12.2020 was submitted for the 10 number of buildings. However, the PP has submitted the EIA Report dated 03.05.2021 for 12 number of buildings and there is change in the scope of the project. From the said discrepancy, PP was informed to obtain the amended ToR for revised building configuration, and also to submit the revised EIA Report. Therefore, SEAC-II decided to defer the proposal.

¶102

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 7 of 51

¶104

It is further submitted in the facts of this Original Application that as per the observations of SEAC-II in 154^th Meeting, the PP applied for the amendment in ToR vide application dated 14.11.2021. The SEAC-II appraised the proposal of PP for amendment in the previous ToR dated 28.12.2020 in its 160^th meeting held on 10.12.2021 and after deliberation, imposed specific conditions on the PP for preparation of revised EIA and decided to recommend the proposal to the SEIAA for grant of the amendment in the previous ToR issued earlier to the project. The Consent Appraisal Committee (CAC) of the Maharashtra Pollution Control Board (MPCB)- Respondent Nos.5 & 6 appraised the proposal of the PP for grant of the Consent to Establish (CTE) in its 08^th CAC meeting held on the 20.12.2021 and decided to grant CTE for the project on the total plot area 37,880.24 M² & total construction BUA 3,04,576.76 M² . The Tree Authority of MBMC granted permission on 06.01.2022 for felling of 167 trees and transplantation of 30 number of trees on the condition of compensatory plantation of 835 trees, which PP failed to comply. The CAC of MPCB granted the CTE to the project on 02.02.2022 on the Condition No.10 for obtaining prior Environment Clearance and only thereafter, construction will be started and PP will not take any effective step without prior EC.

¶105

It is further submitted in the facts of this Original Application that the SEIAA in its 238^th meeting held on 21.02.2021 assessed the project for the grant of ToR and decided to grant the amended ToR to the project and accordingly, SEIAA granted the amended ToR on 23.03.2022 based on the assessment carried out in its 238^th meeting. The PP procured the second revision in layout and building sanction for the Sector-IIA on 31.03.2022 and for substantial change in building configuration and increased

¶106

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶107

Page 8 of 51

¶108

number of buildings from 10 to 12 buildings with increase in BUA (FSI) to the tune of 193657.72 M² . The PP submitted the EIA Report to the SEIAA on 06.04.2022 with change in scope of the project incorporating the amended ToR dated 23.03.2022 with increase in the total proposed BUA of 323656.18 M² including (FSI Area: 1,85,303.99 M² , Non-FSI Area: 1,38,352.19 M² , Ground Coverage: 22,869.16 M² ) for 12 number of buildings comprising 2521 Number of flats & 21 Number of Shops, Total water requirement: 1705 KLD, Total Waste Water Generation: 1455 KLD, Total Solid Waste Generation: 5905 Kg/day, Connected load: 37788 kW, Maximum demand: 10674 kW, 3 Number of DG sets with 910 kVA, Four Wheeler: 2917 Nos., Two Wheelers: 3036 Nos., Total RG provided (10%): 3,788.04 M² . This EIA Report is also submitted along-with the application dated 06.04.2022 for the Environment Clearance with technical details.

¶109

It is further submitted in the facts of this Original Application that the SEAC-II considered the proposal of Project Proponent for technical appraisal in its 178^th meeting held on 30.06.2022 and sought additional data & also directed the PP to submit the revised CRZ NOC from the MCZMA as per the latest revised planning of the project as stipulated in condition no.2 of the minutes and recommended the proposal to the SEIAA for the grant of Environmental Clearance. Thereafter, on the above recommendation of the SEAC- II for grant of Environment Clearance, SEIAA considered the proposal for its assessment in its 247^th meeting held on 29.07.2022. But PP was absent and therefore, SEIAA after deliberation decided to defer the proposal. The PP submitted its letter on 03.08.2022 requesting therein to list their proposal in forthcoming meeting due to non-submission of compliance to the information sought in 178^th meeting of SEAC-II.

¶110

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 9 of 51

¶112

It is further submitted in the facts of this Original Application that the SEIAA again considered the proposal for impact assessment in its 249^th meeting held on 26.08.2022, but PP was not able to obtain the approved plans of the MBMC and again SEIAA decided to defer the proposal. The PP uploaded the MBMC sanction plan to the PARIVESH web portal vide letter dated 06.09.2022 and requested the SEIAA to list the proposal in forthcoming meeting of SEIAA for further consideration. The PP has updated the status of the construction on Maharashtra Real Estate Regulatory Authority on 19.10.2022 showing the substantial construction of the building A, B, C & H. It is further submitted that the SEIAA again considered the proposal for impact assessment in its 252^nd meeting held on 09.10.2022, but the PP was absent and, therefore, again SEIAA decided to defer the proposal. The site photographs captured by the Applicant No.1 on 21.11.2022 clearly show the full swing ongoing construction at the site.

¶113

It is further submitted in the facts of this Original Application that as per the EIA Notification, 2006 and the site photographs dated 21.11.2022, it is evident that the PP has carried out substantial construction without obtaining prior EC and committed the violation of EIA Notification, 2006 causing substantial irreparable damage to the Environment and ecology. The details of the same are given below:-

¶114

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

Page 10 of 51

”

“

It is further submitted in the facts of this Original Application that the PP has started the construction of the Buildings A, B, C & H in contravention of the CTE dated 02.02.2022 and that the same can be seen from the site photographs and construction status updated at the Maharashtra Real Estate Regulatory Authority web portal and this is an admitted case of violation. The details of the same are given below:-

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Sr.	Description	CTE 02.02.2022	Actual Construction at Site
1.	Total BUA	304576.76 M²	Substantial Construction of
			Building A, B, C & H
2.	Condition N construction	o. 10: PP shall no unless Environm	t take effective steps towards ent Clearance is obtained

¶120

In view of above, it is submitted that the CTE dated 02.02.2022 is the ex-post facto consent and therefore, it is null & void. The PP has violated the terms & conditions of the Consent to Establish dated 02.02.2022 and has carried out the construction in its blatant violation.

¶121

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 11 of 51

¶123

It is further submitted in the facts of this Original Application that the Report/Executive Summary of the Centre for Earth Science Studies, Thiruvananthapuram shows the preparation of CZMP of Mira Bhayandar Municipal Corporation on the basis of the survey carried out from MarchDecember, 2013 and submitted in March-2014 to the MBMC. The details of the same are given below:-

¶124

	CRZ-I B: Inter Tidal Zone
Survey No. 68	83.20 M2
	CRZ-II:
Survey No. 68:	12358.20 M2
Survey No. 69:	668.82 M2
CRZ-I: 50 M Mang	rove Buffer Zone
Survey No. 68	3557.20 M2

¶125

It is further submitted in the facts of this Original Application that “as per the EIA Notification-1991, CRZ Map prepared on mapping of November-2001, which is prepared under CRZ Notification-1991 and CRZ Clearance dated 07.06.2019 Special Condition No. I, this project is affected by eco-sensitive area for mangroves and CRZ Notification, 2011, is not applicable in present case”. Also, it is not the reconstruction project. However, MCZMA without applying its mind has issued Clearance and that the same was not placed in the public domain. Moreover, CRZ Clearance has become null & void as per the condition no.2 from 178^th minutes of the SEAC-II meeting dated 30.06.2022. Therefore, the construction of the building No.L is not feasible in the present scenario and it cannot be allowed to be constructed, as the land is affected by

¶126

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶127

Page 12 of 51

¶128

prohibited CRZ-I area. The calculation of amount of damage on account of illegal construction without prior EC is to the tune of Rs.110/- crores for causing grave hurt to the environment & ecology with formula of 10% of total project cost with additional penalty on account of not obtaining prior EC, that is to be imposed on PP is Rs.5 Crores as per the principles laid down in [(2018) 18 SCC 257] as per the Order of the Hon’ble Supreme Court.

¶129

It is further submitted in the facts of this Original Application that the PP has been extracting ground water from three bore-wells without obtaining prior permission form the CGWA and has caused substantial damage to the ground water table at the project site. The above defaults or acts are damaging the environment. The PP has not submitted revised CRZ NOC from the MCZMA as per the latest revised planning of the project and as per the condition no. 2 stipulated in 178^th meeting of the SEAC-II. The PP has carried out substantial excavation and there is no preservation of the top fertile soil. The concept of grant of ex-post facto EC is alien to the Environmental Jurisprudence developed in India. The PP has not preserved the top soil and as per his own EIA, top soil excavation quantity is 68,057 M² , apart from the excavation of minor mineral for footings. The PP has carried out illegal excavation for basements for footing etc. without obtaining prior EC, CTE, and permission for mining of minor minerals from the competent authority for such large excavation of 1,37,550 M³ . The PP has not obtained permission for such high rise building having building height more than 100 Mtrs. from the Airport Authority as well as Air Force-MoD and that the said project is within the range of Airport.

¶130

It is further submitted in the facts of this Original Application that the PP is liable for imposition of heavy, exemplary & deterrent environment

¶131

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶132

Page 13 of 51

¶133

compensation. The PP has caused substantial damage of more than Rs.350 Crores to the environment and ecology, which shall be recovered from the PP. Thus, it is mandatory to stop the project construction permanently till the compliance/rectification of the above illegal act and removal of the defects from the construction.

¶134

It is further submitted in the facts of this Original Application that the compensation on account of destruction of trees and non-plantation of compensatory trees is Rs.865 x 74200 x 30 = 1925490000/- (One Hundred Crores Ninety Two lakhs Fifty Four Lakhs Ninety Thousands Only) i.e. Rs. 193 Crores.

¶135

In view of above submissions, it is prayed by the applicants that a direction be issued to the Government Authorities to demolish the illegal structure at the site in question with restoration & restitution of the area to its original position; and direct the Respondent No. 11-PP to deposit a heavy amount of compensation in the environment relief fund for carrying out illegal construction without prior EC, CRZ Clearance & on the basis of ex-post facto CTE dated 02.02.2022.

¶136

This matter was first considered by this Tribunal on 29.11.2022 when the same was admitted and notices were issued to the Respondents. By the same order, Joint Committee was also constituted to submit a factual and action taken report with regard to the violation, if any.

¶137

In compliance with the above order, the Joint Committee has submitted its report on 23.01.2023, which is annexed from page nos.1594 to 1701 of the paper book, relevant part of which is quoted herein below:-

¶138

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶139

Page 14 of 51

¶140

“

¶141

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶142

Page 15 of 51

¶143

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ) Page 16 of 51

¶144

”

¶145

The above Joint Committee has concluded in its report that there was no environmental violation found on the part of the Respondent No.11-Project Proponent.

¶146

Respondent No.11- M/s Eversmile Properties Pvt. Ltd./Project Proponent has filed reply affidavit dated 21.01.2023, wherein it is submitted that the Answering Respondent decided to develop survey No.233 (new survey No.66) along-with the adjoining land i.e. old Survey No.235 (new survey No.68), and old survey No.256 (new survey No.69) as a Township Project admeasuring approximately 37,880.43 square meters. On the aforesaid subject property, the Respondent No. 11 has envisaged to develop a project named as "Srishti Namaah" in terms of the necessary permission(s). The Answering Respondent has earlier proposed to develop

¶147

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶148

Page 17 of 51

¶149

a portion of the old survey No.235 (new survey no.68) and old survey No.256 (new survey No.69) admeasuring 4,730.48 sq. mtrs. and accordingly submitted the building plans to the Planning Authority i.e., Mira Bhayander Municipal Corporation (MBMC) on 01.02.2018. Since the aforesaid two survey numbers were partially falling in CRZ- II, Respondent No.11 submitted the proposal to the Maharashtra Coastal Zone Management Authority (MCZMA), seeking NOC for development as per the CRZ Notification, 2011.

¶150

It is further mentioned in this reply affidavit by Respondent No.11PP that the said proposal was deliberated in 132^nd meeting of MCZMA on 24^th April, 2019, wherein the MCZMA duly granted NOC dated 07^th June, 2019 on the terms and conditions as mentioned therein. Thereafter, the Answering Respondent decided to develop survey No.233 (new survey No. 66) along-with the adjoining land i.e., old Survey No.235 (new survey No.68), and old survey No.256 (new survey No.69) as a Township Project on the land admeasuring approximately 37,880.43 square meters. Since the development of the subject property got expanded due to inclusion of portion of Survey No.233 (New Survey No.66), the Respondent No.11 submitted new proposal with fresh building plans to MBMC (as mentioned above).

¶151

It is further mentioned in this reply affidavit by Respondent No.11PP that as per the EIA Notification, 2006 since the proposed construction is expected to be more than 1,50,000 sq. mtrs. which is under B-1 category and at serial No.8(b) of the Schedule to EIA Notification, 2006, Respondent No.11 submitted an application dated 01.10.2020 to the Expert Appraisal Committee (EAC) for issuance of Terms of Reference (ToR)

¶152

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶153

Page 18 of 51

¶154

in accordance with the prevailing norms, the details of which are given as

¶155

below:-

¶156

“	”

¶157

Accordingly, the ToR Application was deliberated in the 56^th Minutes of EAC (Infra-2) Meeting held on 21^st - 23^rd October, 2020, wherein it was recommended that the ToR should be considered for preparation of EIA/ EMP report by Respondent No.11 in respect of the said project. Accordingly, MoEF&CC vide its letter dated 28^th December, 2020 granted ToR on such terms & conditions including submitting of EIA/ EMP report by Respondent No.11.

¶158

It is further mentioned in this reply affidavit by Respondent No.11PP that Respondent No.11 submitted amended layout and building plans for the said project, which was duly approved by MBMC, and that the Commencement Certificate dated 10^th March, 2021 was granted by MBMC. Further, it is mentioned that since the plans underwent further revision, the Respondent No.11 accordingly submitted revised plans, which were sanctioned by the MBMC and accordingly granted revised Commencement Certificate dated 26^th August, 2021. Upon a bare perusal of the Commencement Certificate, it is evident that the construction work was restricted to 4,602.41 sq. mts. (which is below 20,000 sq. mts.) of construction area as mentioned in the Commencement Certificate. The details of the same are reproduced herein below:-

¶159

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

Page 19 of 51

”

“

It is further mentioned in this reply affidavit by Respondent No.11PP that in the meanwhile, Respondent No.11 submitted a proposal before Maharashtra Pollution Control Board (MPCB) for the grant of Consent to Establish in respect of said project. The said proposal was considered by the Consent Appraisal Committee on 20.12.2021 and accordingly, MPCB granted Consent to Establish dated 02.02.2022, subject to the terms and conditions as mentioned therein.

¶164

It is further mentioned in this reply affidavit by Respondent No.11PP that the Additional Collector, Thane, in exercise of powers conferred under Rule 59 (1) of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 has duly permitted excavation of soil on Survey Nos.66, 68 and 69 vide Order dated 30.09.2021 and that the same has been timely extended by the Orders dated 24.04.2022 and 24.11.2022. It is further submitted that it is complete compliance of the terms & conditions mentioned in the said Orders and has undertaken excavations only to the extent of the area and details mentioned therein.

¶165

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 20 of 51

¶167

It is further mentioned in this reply affidavit by Respondent No.11PP that in compliance with the aforesaid issuance of ToR dated 28^th December, 2020, the Respondent No.11 submitted the EIA report on 03.05.2021 and accordingly made an application for the grant of Environmental Clearance before the SEIAA. The said EC application was taken up in 154^th Minutes of SEAC – II Meeting held on 4^th & 5^th October, 2021, wherein the Committee deliberated that the ToR issued by the MoEF was for 10 residential buildings and 2 Towers of Multi Level Car Parking, however, the Respondent No.11 has submitted the EIA report for 12 residential buildings for appraisal and that the same is not in terms of ToR and CC and thus directed the Respondent No.11 to obtain the amended ToR. Accordingly, the Respondent No. 11 made an application for amendment of the ToR before SEAC-II on 14.11.2021 with the details as mentioned herein below:-

¶168

“ 5. Nos. of Building - 12”

¶169

It is further mentioned in this reply affidavit by Respondent No.11PP that the said application for amended ToR was deliberated in 160^th Meeting of SEAC - II Meeting held on 09^th & 10^th December, 2021, wherein the proposal was recommended to the SEIAA for grant of amendment to the ToR dated 28.12.2020. Thereafter, the ToR proposal was listed before SEIAA in its 238^th Meeting held on 21.02.2022, wherein after deliberation SEIAA granted amendment to the ToR. The amended ToR was issued by SEIAA on 23.03.2022. Thereafter, Respondent No.11 submitted the revised plans to MBMC which were approved and sanctioned by MBMC and accordingly issued a revised Commencement Certificate dated 31^st March,

¶170

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 21 of 51

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2022, specifically mentioning therein that the construction of the proposed building shall be limited to the area as provided in the table in Commencement Certificate and that further construction permission would be granted with prior permission of the Corporation and after receiving NOC from the Environment Department. MBMC while granting the revised Commencement Certificate on 31^st March 2022 imposed a condition No.26, wherein Respondent No.11 was allowed to construct upto 20,000 sq. mtrs for four buildings i.e., Wing A, B, C and H and for further constructions above 20,000 sq. mtrs. i.e., remaining 8 buildings, Respondent No.11 was to obtain Environment Clearance and thereafter to seek further permissions from the Mira Bhayander Municipal Corporation (MBMC).

¶173

It is further mentioned in this reply affidavit by Respondent No.11PP that pursuant to the permissions granted by the MBMC, Respondent No.11 has carried out below constructions:-

¶174

“

¶175

”

¶176

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 22 of 51

¶178

In view of the aforesaid table, it is apparent that the Respondent No.11 has undertaken construction of 16,733 sq. mtrs. which is within the permissible scope of the aforesaid permissions. The same are also certified by the Project Architect vide certificate dated 20^th January, 2023.

¶179

It is further mentioned in this reply affidavit by Respondent No.11PP that as per law, the Respondent No.11 submitted an application for EC to the SEIAA on 06^th April, 2022 for total construction area of 3,23,656.18 sq. mtrs., which includes FSI area of 1,85,303.99 sq. mtrs. for 12 Residential Buildings with shops, which falls under 8 (b) B-1 category of the EIA Notification 2006. The proposal for consideration of the EC application was listed in the 178^th Meeting of SEAC -II on 30^th June, 2022 & 1^st July, 2022. In the said Meeting, after deliberation, SEAC-II recommended the proposal of Respondent No.11 to SEIAA for grant of EC with certain terms & conditions. It is pertinent to note at this juncture that the construction at the project site was being carried out by the Respondent No.11 as per the relevant revised Commencement Certificate which was below the threshold limit of below 20,000 sq. mtrs. Thereafter, the proposal of Respondent No.11 was listed before the SEIAA in its 249^th Meeting held on 26^th August, 2022, wherein the proposal was deliberated and during the meeting, direction was given to provide certain information/documents. Accordingly, the proposal was deferred. In compliance of the directions issued by the SEIAA, the Respondent No.11 uploaded the approved plans and accordingly vide letter dated 6^th September, 2022 requested SEIAA to list the project for appraisal in their forthcoming meeting.

¶180

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶181

Page 23 of 51

¶182

It is further mentioned in this reply affidavit by Respondent No.11PP that the proposal of Respondent No.11 was listed during the 252^nd & 253^rd meetings of SEIAA. However, the proposal could not be taken up/deliberated. Respondent No.11 states that the cost of construction for the said project as on 12^th January, 2023 is ₹57.54 crores and that till date, substantial third-party rights have been created in the said project.

¶183

It is further mentioned in this reply affidavit by Respondent No.11PP that the allegations made by the applicants are baseless. The Applicants have incorrectly and mischievously stated the status of actual work at site. Just to illustrate that the table 1 provided in para 7(a)(i) is based on totally incorrect figures as in Building- A, it is projected that the construction is done upto 2B + G + 2P + 9 floors, however, the actual construction at the site as on the date is 2B + G + 2P + 5 Floors. The figures mentioned in the table 1 are also false and incorrect. The Respondent No.11 has constructed as per the relevant revised CC dated 31^st March, 2022 issued by MBMC, which allows construction upto 20,000 sq. mtrs. by categorically directing that further construction permissions (beyond 20,000 sq. mtrs.) shall be granted only after submission of NOC from Environmental Department i.e. EC to MBMC. The actual work undertaken at the site is below 20,000 sq. mtrs. It is well settled position of law that construction upto 20,000 sq. mtrs. without EC is considered to be legally valid and permissible as held by the Hon'ble Bombay High Court in its Orders dated 24^th March, 2014 and 18^th December 2014 (passed in WP (L) No. 655/2014) specifically holding that EC for constructions less than 20,000 sq. mtrs. is not required. In fact, the Hon'ble Bombay High Court has passed several orders in other cases holding that EC for construction of less than 20,000 sq. mtrs. is not required. Accordingly, on

¶184

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶185

Page 24 of 51

¶186

the basis of aforesaid orders, the Environment Department of the State of Maharashtra issued a Circular dated 21^st April, 2015 inter alia holding that proposed construction below 20,000 sq. mtrs. may not be considered as violation of EIA Notification, 2006. Even SEIAA has considered the circular while deliberating the proposal submitted by another developer in its project and has accepted the Circular dated 21^st April, 2015 and observed that construction upto 20,000 sq. mtrs. cannot be considered as violation of EIA Notification, 2006 and accordingly granted EC. The relevant extract of the said 222^nd Minutes of the Meeting dated 14^th & 15^th June, 2021 are reproduced herein below:-

¶187

“ SEAC Deliberation-

¶188

PP submitted that the proposal was appraised in 133^rd SEAC-2 meeting wherein committee noticed that PP had already started construction activity on site and had already constructed around 17,000 plus Sq. Mtrs.; without obtaining prior EC though the potential construction of the project is more than 20,000 Sq. Mtrs.; thus there being prima facie violation of EIA notification. Therefore, then SEAC-2 committee had referred the proposal to SEIAA for further necessary action as it seems to be violation of notification. Thereafter, the proposal was considered - in 203rd SEIAA meeting wherein SEIAA observed that as per Government of Maharashtra circular dated 21.04.2015, the total constructed area is below 20,000 Sq. Mtrs.; this does not come under violation. Hence, SEIAA after deliberation decided to refer back the proposal to SEAC-2. Now, as per the directions received from SEIAA, Committee decided to appraise the proposal.”

¶189

It is further mentioned in this reply affidavit by Respondent No.11PP that SEIAA in its 222^nd Meeting has accordingly deliberated the aforesaid proposal and granted the Environmental Clearance. Therefore, it is an admitted position that the Applicants have wrongly portrayed that the Respondent No.11 has constructed the said project without prior EC or

¶190

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶191

Page 25 of 51

¶192

that the said construction is beyond 20,000 sq. mtrs. In fact, the Respondent No.11 has applied for EC to the SEIAA, duly considered by SEAC-II as per the law and recommended to the SEIAA for issuance of EC. Thus, the application of Respondent No.11 for EC is currently pending before the SEIAA for its deliberation and grant.

¶193

It is further mentioned in this reply affidavit by Respondent No.11PP that as per the procedure, CTE is obtained post grant of EC, however, in the present matter, the same is obtained well in advance. Thus, the grant of Consent to Establish (CTE) is not an ex-post-facto consent as alleged or portrayed by the Applicants. Hence, the allegations of Applicants are totally vague.

¶194

It is further mentioned in this reply affidavit by Respondent No.11PP that Respondent No.11 earlier proposed to develop a portion of the old survey No.235 (new survey no.68) and old survey No.256 (new survey No.69) admeasuring 4,730.48 sq. mtrs. and accordingly, submitted the building plans to the planning authority i.e. MBMC on 01.02.2018. Since the aforesaid two survey numbers were partially falling in CRZ- II, Respondent No.11 submitted the proposal to MCZMA, seeking a NOC for development as per the CRZ Notification 2011. The said proposal was deliberated in 132^nd meeting of MCZMA on 24^th April, 2019, wherein MCZMA duly granted NOC dated 07^th June, 2019 on the terms and conditions as mentioned therein. As regards Survey No. 233 (New Survey No. 66), the same neither falls in nor is impacted under CRZ-II and thus NOC of MCZMA is not required and the said fact is being apprised to SEIAA by Respondent No. 11. Despite the aforesaid NOC, as of now, no construction work is undertaken in CRZ - II area. The Applicants have incorrectly stated that the building L of the said project is affected by CRZ-

¶195

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶196

Page 26 of 51

¶197

I which is totally false and unsubstantiated. In fact, the entire subject property is not impacted by CRZ-I. The averment that construction is being carried out in violation of CRZ 1991, itself is misdirected and out of context. It is reiterated that the small portion of Survey No.68(pt.) and 69(pt.) is being impacted by CRZ-II as per CZMP (which is on the landward side of existing road) based on CRZ Notification 2011, for which appropriate approvals/NOC have been obtained.

¶198

It is further mentioned in this reply affidavit by Respondent No.11PP that the Additional Collector, Thane, in exercise of powers conferred under Rule 59 (1) of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 has duly permitted excavation of soil on Survey Nos.66, 68 and 69 vide Order dated 30.09.2021 and that the same has been timely extended by the Orders dated 24.04.2022 and 24.11.2022. It is complete compliance of the terms & conditions mentioned in the said Orders and has undertaken excavations only to the extent of the area and details mentioned therein. It is further submitted that Respondent No. 11's project is not falling within the alleged range of airport, hence no such permission is required from the Airport Authority.

¶199

Respondent Nos.5 & 6- MPCB has filed reply affidavit dated 13.03.2023, wherein it is submitted that the Answering Respondent has granted Consent to Establish to the Respondent No.11-Project Proponent vide letter dated 02.02.2022, for Residential & Commercial Building Construction Project at Old Survey Nos.233(part), 235(part) & 256(part), New Survey Nos.66(part), 68(part) and 69(part) at Village: Penkarpada, Mira Road (East), Dist: Thane, on total plot area 37,880.24 sq.mtrs. for total construction BUA 3,04,576.76 sq. mtrs., subject to the certain terms and conditions, wherein it was one of the condition No.10 that the Project

¶200

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶201

Page 27 of 51

¶202

Proponent shall not take effective steps towards construction unless Environment Clearance is obtained. The Respondent No.11- Project Proponent had/has intentions to construct built-up area upto 3,04,576.76 sq. mtrs. It is further submitted that for violation of consent condition No.10, the Answering Respondent has issued proposed directions vide letter dated 13.03.2023 to the Respondent No.11-Project Proponent.

¶203

Respondent No.11-Project Proponent has filed another affidavit dated 26.04.2023, wherein it is specifically submitted that the State Environment Impact Assessment Authority (SEIAA) in its 257^th meeting held on 10^th March, 2023, after deliberation, approved the grant of Environment Clearance with respect to the said project. Accordingly, on 12^th April, 2023, SEIAA issued the Environment Clearance (EC) to the Respondent No.11 with respect to the said project. The SEIAA while granting the EC has taken due cognizance of the fact that the construction upto 16,733 sq. mtrs. has been undertaken by Respondent No. 11 and did not find any violation in this regard.

¶204

Respondent No.4- MCZMA has filed reply affidavit dated 28.04.2023, wherein it is submitted that vide letter dated 07^th June, 2019, the Answering Respondent observed that construction of building is permissible in CRZ- II areas and on the landward side of the existing road or existing authorised structure, subject to DCR existing as on 19.02.1991, and in accordance with CRZ Notification, 2011, the Answering Respondent decided to recommend the proposal to the concerned planning authority from CRZ point of view under CRZ Notification, 2011.

¶205

It is further submitted in this affidavit by Respondent No.4- MCZMA that Respondent No.11-Project Proponent presented final CZMP under

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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CRZ Notification, 2011 of the Survey No.233(P), New Survey No.66(P) of Village Penkarpada, which does not fall under CRZ area. PP submitted CRZ Map in 1:4000 scale and report dated November 2017 prepared by Institute of Remote Sensing (IRS), Chennai, on which S. No.233 is superimposed. From the said map, it is clear that the said survey number does not fall in CRZ area.

¶209

Respondent No.3- SEIAA, Maharashtra has filed reply affidavit dated 02.05.2023, wherein it is submitted that the Answering Respondent observed from the Google satellite image that the construction was initiated by the Project Proponent on site. SEIAA asked clarification on the same. PP submitted that the construction work commenced upto 16,733 m² at site as per the Commencement Certificate by Mira Bhayander Municipal Corporation and as per Environment Department Circular dated 21.04.2015. SEIAA asked the Project Proponent to submit Joint Statement under the signature of PP's registered architect & environment consultant to that effect. Accordingly, PP submitted the same on 10.03.2023. It is further submitted that SEIAA observed that PP has obtained Chief Fire Officer’s NOC and submitted compliance of SEAC conditions dated 25.02.2023. SEIAA after deliberation decided to grant EC to the PP for FSI1,85,303.99 m² , Non-FSI - 1,38,352.19 m² and total BUA - 3,23,656.18 m² .

¶210

APPEAL NO.23 OF 2023 (WZ)

¶211

This appeal has been filed seeking quashing of the ex-post-facto Environmental Clearance (EC) dated 12.04.2023 granted by the Respondent No.3- SEIAA, Maharashtra to the Respondent No.11-PP -M/s. Eversmile Properties Private Limited for the project “Srishti Namaah” at

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 29 of 51

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Sector-IIA, Old Survey Nos. 233 (P), 235(P),256 (P) and New Sr. Nos. 66 (P), 68 (P), 69 (P) at Village: Penkarpada, District: Thane Maharashtra.

¶215

The grounds, which have been set up by the appellant to quash/set aside the EC dated 12.04.2023, are that the Project Proponent has accepted that it has undertaken construction to the extent of 16,733M² as per the Architect Certificate dated 20.01.2023 submitted by the PP to the Joint Committee appointed in Original Application No.107 of 2022 . The Project Proponent wrongly interpreted the Order dated 24.04.2014 passed by the Hon’ble High Court of Judicature at Bombay in W.P. No.655 of 2014; Glomore Construction & Ors Vs. Union of India & Ors. that construction under 20,000 M² is permitted without grant of EC. Based on the wrong interpretation, Government of Maharashtra issued Circular dated 21.04.2015, wrongly holding that proposed construction below 20,000 M² may not be considered violation of EIA Notification, 2006, which is not in accordance with the spirit of EIA Notification, 2006 itself.

¶216

The appellant has submitted following subsequent Judgements delivered by the Tribunal and the Hon’ble Supreme Court, where it has been repeatedly stated that the requirement of prior EC is mandatory if EIA Notification, 2006 is applicable. The NGT in the case of S.P. Muthuraman Vs. Union of India [(2015) SCC OnLine NGT 169] briefly explained the historical background and need of prior EC as follow:-

¶217

“56. Now, we may notice the historical background to the issuance of these impugned Office Memoranda. The Indian Parliament enacted the Act of 1986 to provide for the protection and improvement of the environment and for matters connected therewith. This law is enacted in furtherance to the decisions taken at the United Nations Conference on Human Environment held at Stockholm in June, 1972, to which India was a party. The

¶218

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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object of the Act was to protect and improve environment and for prevention of hazards to human beings, other living creatures, plants and property. The term 'environment in terms of Section 2(a) was defined to include water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, microorganism and property. In exercise of the powers conferred by Sections 6 and 25 of the Act of 1986, the Central Government made the Environment (Protection) Rules, 1986 (for short Rules of 1986). Further, in exercise of the powera vested in the Central Government under Sub Section 1 and Clause (v) of Sub-section (2) of Section 3 of the Act of 1986, read with clause (d) of sub-rule (3) of Rule 5 of the Rules of 1986, the Central Government issued the Environment Impact Assessment Notification dated 27 January, 1994. This Notification requires any person who desire to undertake any new projects in any part of India or the expansion or modernisation of any existing industry or project listed in Schedule 1 to make an application to the MoEF in the proforma specified in Schedule II of the said Notification, Schedule 1 provides the list of the projects that requires Environmental Clearance from the Central Government. Under entry 18, all tourism projects between 200 metres and 500 metres of High Water Line and at locations with an elevation of more than 1000 metres with Investment of more than Rs.5 crores required Environmental Clearance. Similarly, under entry No. 21, Highway Projects except projects relating to improvement work including widening and strengthening of roads with marginal land acquisition along the existing alignments, provided it does not pass through ecologically sensitive areas such as National Parks, Sanctuaries, Tiger Reserves, Reserve Forests also required Environmental Clearance. Except these two entries, the construction projects of any other nature were not included in any entry of this Schedule. The Notification of 1994 in contradistinction to the Notification of 2006 had not specifically used the word 'prior Environmental Clearance The Notification of 1994 was issued by the Ministry after inviting objection from the public within 60 days from the date of publication of the

¶221

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Notification. Taking notice of lacunas, shortfalls and other practical aspects and difficulties while keeping in mind the interest of environment, the MOEF again issued a draft Notification dated 15 September, 2005 inviting objection and suggestions from all the persons likely to be affected by this draft Notification within a period of 60 days. The significance of this Notification was that the Union Cabinet had approved the National Environmental Policy on 18 May, 2006 proposing restrictions and prohibitions to be imposed on new projects and activities and even on expansion or modernisation of existing projects or activities with reference to their potential environmental impacts which stated that the project and activity should not be undertaken unless prior Environmental Clearance has been granted in accordance with the objectives of the policy. After examining the objections and suggestions received, the Central Government on 14" September, 2006 issued a final Notification referred herein as the Notification of 2006 (supra). Clause 2 of this Notification required obtaining of prior Environmental Clearance from the concerned regulatory authority depending upon the nature of the project. Clause 2 of the said Notification reads as under:

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Requirements of prior Environmental Clearance (EC): - The

¶225

following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Mistry of Environment and Forests for matters falling under Category A in the chedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category 'B' in the said Schedule, before any construction work, or preparation of land by the project management except for securing the land, is started on the project or activity:

¶226

(i). All new projects or activities listed in the Schedule to this notification;

¶227

(ii). Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the

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Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization;

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(iii). Any change in product mix in an existing manufacturing unit included in Schedule beyond the specified range.

¶232

58. It also inter alia requires the information with regard to permanent or temporary change in the land use, land cover or topography, including increase in intensity of land use, preconstruction investigations like bore house, soil testing. Underground works, including mining or tunnelling, reclamation works, impoundment, daming, culvating, realignment and other changes to the hydrology of the watercourses or the aquifers, loss of native species or genetic diversity, details of vulnerable groups of people which could be affected by the Project, municipal details of municipal waste, sewage sludge, densely populated or build up areas, environmental sensitivity, formation with regard to a risk of accidents during construction or operation of the projects which could affect human health and risk of contamination of land and water from releases of pollutants into ground water or coastal areas are also required to be furnished. The Notification of 2006 further spells out how the Screening, Scoping, Public Consultation and Appraisal are to be carried out by the authorities concerned. Further, the Terms of Reference (for short ToR) that are to be prepared on the basis of the information furnished in Form 1 and 1-A would become the very basis for consideration of the project of the Project Proponent. The Notification of 2006 states that ToR are to be conveyed to the Project Proponent by the Expert Appraisal Committee or the SEAC as the case may be, upon which an EIA report is to be submitted after holding public consultation. The nominated agency has to submit its report to the regulatory authority stating whether owing to the focal situation and dealing with the objections raised, in its opinion, the project should be recommended for Environmental Clearance or not. The agency has to further appraise whether the project site is proper or not. This entire process is required to be completed prior to grant of

¶233

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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¶235

Environmental Clearance. Para B of the Notification of 2006 deals with the grant dr rejection of prior Environmental Clearance. Authorities are required to deal with the applications for grant of prior Environmental Clearance expeditiously and in any case within the time stipulated under the sub-clauses of Para 8. In terms of Para (iii), if the decision of the regulatory authority is not communicated to the Applicant within the period specified in subclauses (1) or (ii) of Para B, the Applicant may proceed as if the Environment Clearance sought for has been granted or denied by the regulatory authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee, as the case may be. Therefore, the Project Proponent under the Notification of 2006 can commence its construction or activity only after the grant of Notification of 2006 can commence its construction or activity only after the grant of Environmental Clearance. This Clearance is to be for a specific period, e. the validity period. The projects are supposed to be monitored by the authorities oven post Environmental Clearance. This is the scheme and requirements of the Notification of 2006 that superseded the Notification of 1994.”

¶236

Further, the principle of requirement of prior EC is reiterated by NGT in the case of Forward Foundation Vs. State of Karnataka; [(12015) SCC OnLine NGT 5] as follow:-

¶237

“72. In light of the above scope of the project and records before the Tribunal and the defaults on the part of the Project Proponents, the cumulative adverse effects of the activities undertaken by the respondents before us can be summed up as under:

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1) The construction of both the projects had started prior to the grant to Environmental Clearance.

¶239

2) The EIA Notification of 2006 requires that without grant of Environmental Clearance, no project can commence its activity. This restriction applies not only to operationalization of the project but even for the purposes of establishment.”

¶240

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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Page 34 of 51

¶242

The said stand of Hon’ble NGT is affirmed by the Hon’ble Supreme Court in the case of Mantri Techzone Private Limited Vs. Forward Foundation ; [(2019) 18 SCC 494]

¶243

Further, in the Judgement dated 03.09.2015 passed in Appeal No.66 of 2014; Sunil Kumar Chugh & Anr. Vs. Secretary, DoE, GoM & Ors. , the NGT, Principal Bench New Delhi, after taking the note of Glomore Construction’s Judgement, observed following:-

¶244

“22. Several judgments of the Hon’ble High Court of Judicature at Bombay namely, copy of order dated 29-03-2012 in Naresh janardhan Mali vs. The State of Maharashtra and Ors., Copy of order dated 24-09-2012 in Vardhaman Developers ltd. vs. Union of India, Copy of order dated 16-01-2013 in Nahur Vivekanand CHS vs. union of India, copy order dated 06-03- 2013 in Saumiya BuildconPvt. Ltd. Vs. Union of India, copy of order dated 09-052013 in Tridhatu Ventures LLP Vs. State of Maharashtra, copy of order dated 21-06-2013 in Vision Developers v. Union of India, Copy of order dated 18-12-2013 in Vardhaman Developers Ltd. Vs. Union of India, copy of order dated 24-03-2014 in Glomore Construction Vs. Union of India were cited to buttress the claim that the construction without prior Environment Clearance was legally permissible. In answer, Learned Counsel appearing on behalf of the appellants submitted that these judgments cannot be regarded as a law declared and will not be binding upon this Tribunal, more particularly so because the Hon’ble High Court gave permission to construct up to 20,000 sq. meters without Environment Clearance only on a case to case basis and did not expound law with reference to EIA Notification, 2006. It is true that the said Judgments cannot be regarded as a law declared and binding all courts within the territory of India as is the law declared by the Supreme Court under Article 141 of the Constitution. However, if the expounding of the law has been made by the Hon’ble High Court, such exposition of law will certainly have persuasive effect on us. On perusal of these judgments one finds merit in the submission made by the appellants that the Hon’ble High Court dealt with the exigencies

¶245

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

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¶247

of the fact situation on case to case basis and granted permissions to construct up to 20,000 sq. meters without Environmental Clearance. Nowhere we find that the Hon’ble High Court considered the scope and scheme of the EIA notification, 2006 and expounded the law concerning need to have prior EC for the construction as specified in Entry 8(a) of EC Regulation, 2006. Significantly, in Vardhman Developers case the Hon’ble High Court directed the petitioners not to claim any equity on the basis of the order made and further clarified that no equity shall be created in favour of the petitioner when its application for Environment Clearance is considered by the authority and the authority was to consider such proposals for Environment Clearance on its merits without being influenced by the order. The judgments, therefore, need not persuade us to hold that the respondent no. 5 is without any blame of violating EIA notification, 2006 by undertaking construction and continuing with it before the Environmental Clearance was granted.”

¶248

Further, the NGT in the case of Anil Tharthare Vs. Secretary, Environment Department, Government of Maharashtra & Ors . [2019

¶249

SCC OnLine NGT 876] observed the need of prior EC as follow:-

¶250

“26. Natural resources have got to be tapped for the purposes of social development but one cannot forget at the same time that tapping of resources have to be done with realistic approach to capacity of a city or area so that environment may not be affected in any serious way. It has always to be remembered that both the air and water as resource are not without limitation.

¶251

27. It is pointed out that 16 additional flats which have being constructed by way of expansion have been sold at the cost of Rs. 6 crores per flat.

¶252

28. As regards the question whether EIA is mandatorily required, it may be noted that EIA has been recognised as the most valuable, interdisciplinary and objective decision-making tool with respect to alternate routes for development, process

¶253

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶254

Page 36 of 51

¶255

technologies and project sites. It is considered an ideal anticipatory mechanism allowing measures that ensure environmental compatibility in our quest for socioeconomic development. In fact, the whole concept is based on jurisprudential principle of ‘Sustainable Development’ and ‘Precautionary Principle’ though statutory basis has been provided to the same for effective enforcement.”

¶256

The said judgment is affirmed by the Hon’ble Apex Court in the Case of Keystone Realtors Pvt Ltd. Vs. Anil Tharthare & Ors. (2020) 2 SCC 66.

¶257

Further, in the recent Judgement of Alembic Pharmaceuticals

¶258

Limited Vs. Rohit Prajapati & Ors . [(2020) 17 SCC 157], the Hon’ble Apex Court reiterated the necessity of prior EC as follows:-

¶259

“the concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27-1-1994. It is detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment.

¶260

An EC can be issued only after various stages of the decisionmaking process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decisionmaking calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities

¶261

f. without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view

¶262

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶263

Page 37 of 51

¶264

of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.

¶265

Goa Foundation (1) v. Union of India. (2005) 11 SCC 559, referred to

¶266

22.2. Disagreeing with the submission, the Court held: (Common Cause case, SCC p. 553, para 125)

¶267

“125. We are not in agreement with the learned counsel for the mining leaseholders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long-term impact. EIA 1994 is therefore very clear that if expansion or modernisation of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M.C. Mehta10 even for the renewal of a mining lease where there is no expansion or modernisation of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant."

¶268

(emphasis supplied)

¶269

23. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA Notification dated 27-1-1994. It is, as the judgment in Common Cause' holds, detrimental to the environment and could lead to irreparable degradation.”

¶270

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶271

Page 38 of 51

¶272

Further, this Tribunal in the order dated 30.01.2023 passed in Original Application No.35 of 2022 observed as follow:-

¶273

“We find that the position of law to a large extend is clear which is also admitted to Respondent No.7/ Project Proponent who acknowledges that after coming into force of amendment dated 7th July, 2004 in EIA regime, the building construction activity would require prior Environmental Clearance to be obtained from competent authority before making any construction. Although any construction made prior to that date was exempted from obtaining any Environmental Clearance. But even with respect to the amendment dated 7th July, 2004, it was the position that if the construction work had not come upto the plinth level it would require prior Environmental Clearance. In case the construction had exceeded the plinth level, it would not require prior environmental Clearance. Thereafter, the EIA Notification 2006 came into force which placed amended conditions that all the construction activity involving more than 20000sq.metrs. BUA in total would require prior Environmental Clearance to be obtained from Competent Authority.”

¶274

Further, it is submitted that the Project Proponent has not obtained CRZ NOC despite the fact that the project land is partly falling under CRZ area. The alleged CRZ NOC dated 07.06.2019 is merely recommendations in nature wherein no area of CRZ, type of CRZ, applicable FSI, restriction on construction, and terms & conditions to be followed, are mentioned. The said recommendation letter repeated the information provided by the PP and no separate evaluation is done by the MCZMA. Further, the SEAC has imposed following conditions:

¶275

“a. That the SEIAA has considered the proposal in its 257th meeting held on 10.03.2023 and imposed following conditions:

¶276

1. This EC is restricted to for heigh up to 107.25 for Building Wing-A to B, for height up to 101.35 m for Wing-E to H & for

¶277

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶278

Page 39 of 51

¶279

height up to 107.25 m for Wing- L, SEIAA decided to restrict building height as per CFO NOC.

¶280

2. PP to keep open space unpaved so as to ensure permeability of water. However, whenever paying is deemed necessary, PP to provide grass pavers of suitable types & strength to increase the water permeable area as well as to allow effective fire tender movement.

¶281

3. PP to achieve at least 5% of total energy requirement from solar/other renewable sources.

¶282

4. PP shall comply with Standard EC conditions mentioned in the Office Memorandum issued by MoEF&CC vide F. No. 2234/2018-IA. dt. 04.01.2019.

¶283

5. SEIAA after deliberation decided to grant EC for ESI area 1,85,303.99 m2, Non FSI are – 1,38,252.19 m2 and total BUA3,23,656.18 m2. (Plan approval No. MBMC/TP/46/2021-22, dated 31.03.2022 (Restricted as per appraisal)

¶284

b. PP did not submit details of energy calculation with terrace floor plan in accordance with shadow analysis.

¶285

c. PP did not ensure energy savings from renewable sources shall be minimum 5% & overall energy saving of the project is minimum 20%.

¶286

d. PP did not make arrangements to reduce discharge of treated water up to 35%

¶287

e. PP did not submitted undertaking from concerned authority/agency/third party regarding use of excess treated water.

¶288

f. PP did not undertake compensatory plantation on the ground.

¶289

g. PP did not provide adequate mechanical ventilation in the STP2.

¶290

h. PP did not undertake the plantation all along the project boundary to mitigate noise and air pollution due to vehicular movements on roads.”

¶291

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶292

Page 40 of 51

¶293

The rest of the facts, which have been set up in the grounds of this appeal, need not be taken into consideration by us because we do not find them of any significance.

¶294

Respondent Nos.5 & 6- MPCB has filed reply affidavit dated 19.01.2024, wherein it is submitted that the issues involved in Original Application No.107 of 2022 (WZ) and the present appeal are overlapping in nature, as the same stand on the same project. Hence, it is prayed that the present appeal may be tagged with the said Original Application. Rest of the facts of this affidavit have already been taken into consideration above while dealing with Original Application No.107 of 2022 (WZ).

¶295

Respondent No.11-Project Proponent has filed reply affidavit dated 23.10.2024, wherein it is specifically submitted that the Hon'ble Bombay High Court in the judgment dated 06^th March, 2013 in Writ Petition (O.S.) (L) No.470 of 2013 (M/s. Saumya Buildcon Pvt. Ltd. Vs Union of India & ors.) had examined whether EC is required to be obtained prior to the completion of construction activity up to 20,000 sq. mtrs. The Hon’ble Bombay High Court, after considering all relevant aspects, categorically held that no EC is required as long as the construction is below the threshold limit of 20,000 sq. mtrs. as per the EIA Notification. Relevant portion of the judgment is produced herein below for sake of ready reference:

¶296

“17. We do, however, find some substance in the last submission made by the learned counsel for the petitioner that even if the petitioner is required to obtain CRZ clearance from MCZMA again on the basis that the built up area of the project will exceed 20,000 sq. meters, the petitioner is entitled to get the same reliefs which this Court has been granting in case of many other parties where similar prayer was made. In Writ Petition No.1916 of 2012

¶297

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶298

Page 41 of 51

¶299

(Vardhman Developers Limited vs. Union of India & Ors.) and Writ Petition No.2809 of 2012 (Nahur Vi-vekanand Cooperative Housing Society Ltd. & Anr. vs. Union of India & Ors). We have rejected a similar contention urged on behalf of the respondent authorities that when the project proponent cannot undertake construction project for more than 20,000 sq. meters of built-up area without obtaining prior environmental clearance, the project proponent cannot be allowed to commence the construction within the limits of 20,000 sq. meters, without obtaining prior environmental clearance. This Court has held that when clearances are required only for projects with built up area exceeding 20,000 sq. meters, redevelopment projects for residential buildings should not be unnecessarily delayed even to the extent of construction upto 20,000 sq. meters when the developer is ready to give undertaking not to exceed the construction beyond 20,000 sq. meters without first obtaining environmental clearance. This Court has noted that the Authorities take considerable time for taking a decision on the application for environmental clearance or for CRZ clearance. In the meantime, the redevelopment projects are being delayed. This Couri has been granting relief in such cases on the basis that even if ultimately the authorities were to reject the applications for clearance, there will be no illegality in so far as the developer has made construction upto 20,000 sq. meters.”

¶300

Further, it is mentioned in this affidavit by Respondent No.11- PP that on 24^th March, 2014, the Hon'ble Bombay High Court in W.P. (L) No.655 of 2013 , relying on the above case, reiterated that no EC is required for residential or commercial project where construction is below 20,000 sq. mtrs. Accordingly, in pursuance of the orders of the Hon'ble Bombay High Court, the Principal Secretary, Environment Department has issued a Circular dated 21^st April 2015, inter alia holding that the proposed construction below 20,000 sq. mtrs. may not be considered as violation of EIA Notification, 2006.

¶301

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶302

Page 42 of 51

¶303

Further, it is mentioned in this affidavit by Respondent No.11- PP that the Hon'ble Bombay High Court in Criminal Writ Petition No.3607 of 2018 (M/s. Sancheti Properties and Ors. Vs. Maharashtra Pollution Control Board & Anr.) has held that if the construction is below 20,000 sq. meters, such clearance is not required and it cannot be said that there is breach of law or rules under the Environment (Protection) Act, 1986. The Hon'ble Bombay High Court has taken a similar approach in Criminal Application No.732 of 2016 (M/s. Suncity Corporation & Anr. Vs Maharashtra Pollution Control Board & Anr.) and Criminal Application No.229 of 2018 (M/s. PS Developers & Ors. Vs. Maharashtra Pollution Control Board & Anr.) .

¶304

Further, it is mentioned in this affidavit by Respondent No.11- PP that the Answering Respondent submitted an application for EC to the SEIAA on 06^th April, 2022 for total construction area of 3,23,656.18 sq. mtrs which includes FSI area of 1,85,303.99 sq. mtrs. for 12 Residential Buildings with shops, which falls under 8 (b) B-1 category of the EIA Notification, 2006. The construction at the project site was being carried out by the Respondent No.11 as per the relevant revised Commencement Certificate which was below the threshold limit of 20,000 sq. mtrs. The proposal for consideration of the EC application was listed in the 178^th Meeting of SEAC -II on 30^th June, 2022 & 01^st July, 2022. In the said Meeting, after deliberation, SEAC-II recommended the proposal of Respondent No.11 to SEIAA for the grant of EC with certain terms & conditions. Thereafter, the proposal of Respondent No.11 was listed before SEIAA in its 249^th Meeting held on 26^th August, 2022, wherein the proposal was deliberated and during the meeting, direction was given to produce the approved plans as sanctioned by MBMC and accordingly, the

¶305

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶306

Page 43 of 51

¶307

proposal was deferred. In compliance with the directions issued by SEIAA, the Answering Respondent uploaded the approved plans and accordingly vide letter dated 6^th September, 2022 requested the SEIAA to list the project for appraisal in their forthcoming meeting. Hence, the proposal of the Answering Respondent was listed during the 252^nd & 253^rd meetings of SEIAA. However, the proposal could not be taken up/deliberated.

¶308

Further, it is mentioned in this affidavit by Respondent No.11- PP that the State Environment Impact Assessment Authority (SEIAA) in its 257^th meeting held on 10^th March, 2023, after deliberation, was pleased to approve the grant of Environment Clearance with respect to the said project. Accordingly, on 12^th April, 2023, SEIAA issued the Environment Clearance (EC) to the Respondent No.11 with respect to the said project. The SEIAA while granting the EC has taken due cognizance of the fact that only construction up to 16,733 sq. mtrs has been undertaken by Respondent No.11 and did not find any violation in this regard. We have already taken into consideration these facts above while dealing with the facts of Original Application No.107 of 2022 (WZ), therefore, the same need not be repeated again.

¶309

In the above affidavit, the Respondent No.11- Project Proponent has specifically denied that it obtained an “ex-post-facto Environmental Clearance” in respect of the project, as alleged by the Appellant. The Appellant has presented a case, replete with bald allegations, surmises and conjectures and has failed to make out a cogent and compelling case for grant of reliefs by this Tribunal. Therefore, the answering Respondent prays that the Appeal may be dismissed with the imposition of costs.

¶310

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶311

Page 44 of 51

¶312

Respondent No.1- MoEF&CC has filed reply affidavit dated 27.02.2025, wherein we find that the said affidavit does not contain any relevant facts for disposal of this case. The same appears to contain only rule position.

¶313

Respondent No.9- Mira Bhayander Municipal Corporation has filed reply affidavit dated 12.03.2025, wherein following are submitted in para nos.5 & 6, which are found to be relevant:-

¶314

“5. I say that, subsequently Revised Building Permission was granted for a built-up area of 184,832.99 Sq.Mtrs which includes (Gross Built-Up Area of 309,457.29 Sq.Mtrs) vide letter bearing Sr. No. MNP/NR/ 1561/2023-24 dated 14/08/2023, for building types A,B,C,D,E,F,G,H,J,K,L and Club House, within the limits specified in Letter bearing Sr. No. MNP/NR/436/2023-24 dated 10/5/2023. As per the sanctioned Coastal Zone Management Plan 2011, Land bearing S. No. 68(235) and 69(256) is affected by CRZ-II but as per the Costal Regulation Zone Map and Report (As per Approved CRZ — 2019 Notification) prepared by Institute of Remote Sensing Anna University Chennai, the said land is not affected by CRZ-II. Considering the same thereafter, revised building permission vide Letter No. MBMC/RB/ 2024/APL/00014 dated 19/7/2024 was granted for building types A,B,C,D,E,F,G,H,J,K,L and the clubhouse within a limit of 184,909.64 Sq.Mtrs (Gross Built-Up area of 308,402.40 Sq.Mtrs) As per the letter submitted by licensed Engineer, M/s. Tejas Consultant vide letter no. E-43 18417 on 21st Feb, 2025 , status of the construction of the proposed buildings in building permission vide letter bearing Sr. No. MNP/NR/ 1561/2023-24 dated 14/08/2023 and building permission vide Letter No. MBMC/RB/2024/APL/ 00014 dated 19/7/2024 is as follows:

¶315

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶316

Page 45 of 51

¶317

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ) Page 46 of 51

¶318

6. I say that, hence development permission granted by Respondent No.8 Corporation is within permissible FSI limits prescribed by UDCPR so also circular dated 21/4/2015 issued by Government of Maharashtra. I say that officers of Respondent No. 8 have acted strictly in accordance with law. I say that Respondent No. 8 will take further steps as per directions issued by this Hon'ble Tribunal.”

¶319

64. Respondent No.3- State Level Environmental Impact Assessment

¶320

Authority (SEIAA) has filed reply affidavit dated 26.08.2025, wherein we find that the said affidavit contains the same facts, which we have already taken into consideration above, while dealing with the facts of Original Application No.107 of 2022 (WZ), therefore, the same need not be reproduced here. It is apparent that the SEIAA has already granted Environmental Clearance after proper consideration and that no violation is found by them to have been committed on the part of the Project Proponent.

¶321

FINDINGS IN ORIGINAL APPLICATION NO.107 OF 2022 (WZ)

¶322

After having heard the arguments of learned counsel for the parties and perused the entire record in depth, we are of the view that the main issue, which is being pressed by the learned counsel for the applicants, in the present Original Application is that there is violation committed by Respondent No.11-Project Proponent, as it has made construction of the project in question without prior EC. According to him, project of the Project Proponent is larger than 20,000 sq. mtrs., therefore, right from the beginning, it required to obtain prior EC, irrespective of the fact whether threshold limit of 20,000 sq. mtrs. of the total BUA of the construction exceeds or not. It is his argument that it is settled position of law that once the project exceeds the total BUA of 20,000 sq. mtrs., the Project

¶323

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶324

Page 47 of 51

¶325

Proponent needs to have prior EC before commencing the construction activity, although the said averment of the learned counsel for the applicants is being vehemently opposed by the learned counsel appearing for Respondent No.11-Project Proponent, by saying that the position of law is that prior EC would be required to be obtained only if the threshold limit of 20,000 sq. mtrs. of the construction of the project exceeds. But in the case in hand, Respondent No.11 has constructed the project in question only to the extent of 16,733 sq. mtrs. prior to obtaining EC. Therefore, whatever construction is intended to be done or is being done by Respondent No.11, is being done only after having obtained the EC. Therefore, there is no violation committed on its part. Even the Joint Committee in its Report has substantiated the claim of the Project Proponent that they have not violated any environmental laws.

¶326

We are in agreement with the above view expressed by the learned counsel for Respondent No.11-Project Proponent and found that Respondent No.11 has not exceeded the construction beyond 20,000 sq. mtrs. total BUA prior to the grant of EC. We are also in agreement with the submission made by learned counsel for Respondent No.11 that the Hon’ble High Court in its orders dated 24^th March, 2014 and 18^th December, 2014 [passed in WP (L) No. 655/2014] has specifically held that the EC for construction of less than 20,000 sq. mtrs. is not required. In fact, the Hon'ble Bombay High Court has passed several orders in other cases holding that EC for construction of less than 20,000 sq. mtrs. is not required.

¶327

Reliance is also placed by the learned counsel for Respondent No.11Project Proponent on the order dated 24.03.2014 passed by the Hon’ble High Court of Bombay in Writ Petition (L) No.655 of 2014 (Glomore

¶328

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶329

Page 48 of 51

¶330

Construction & Ors. vs. The Union of India & Ors.) , wherein following

¶331

is held:-

¶332

“ 1. Heard the learned counsel appearing on behalf of the Petitioners. None appears on behalf of the Respondents, though they were served. Two affidavit of services are taken on record.

¶333

2. The grievance of the Petitioners is that though the Petitioners propose to construct the buildings, which are less than 20000 sq. mtrs. and though this Court, in number of cases, has held that for construction of buildings, which are below 20000 sq. mtrs., environmental clearance is not required, even then, Respondents State have issued a stop work notice, directing the Petitioners to stop the construction work of the buildings which are in project and are admittedly below 20000 sq. mtrs. It is submitted that the Petitioners have given an undertaking that they shall not carry out construction work of the buildings beyond 20000 sq.mtrs. It is submitted that in view of this, the impugned notice which has been issued by Respondent No.3 may be stayed.

¶334

3. This Court in several petitions, has already held that environmental clearance for the purpose of construction of buildings below 20000 sq. mtrs. is not required and the said orders have not been challenged by the Government in the Apex Court. A Notification, accordingly, has been issued by the State Government recently, taking into consideration, the law laid down by this Court. In spite of that, the impugned notice has been issued by Respondent No. 2. Prima facie, therefore, case is made out for grant of ad-interim relief.

¶335

4. Ad-interim relief is granted in terms of prayer clauses (j) and (k). Undertaking given by the Petitioners in Ground (M) is accepted. The Petitioners, however, shall file a further undertaking that they shall not carry out any construction beyond 20000 sq.mtrs., within one week. It is clarified that the Petitioners may be permitted to carry out construction of the free sell component of the buildings in the said project.

¶336

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶337

Page 49 of 51

¶338

5. Issue notice to Respondent Nos.1 to 7, returnable on 28.4.2014. Humdust permitted.”

¶339

It is apparent from the above Judgment/Order that the Hon’ble High Court has clearly laid down law that below 20,000 sq. mtrs. of the total BUA, there is no requirement of taking prior Environmental Clearance. In the case in hand, we find that the Project Proponent has not exceeded 20,000 sq. mtrs. threshold limit before obtaining the Environmental Clearance, which subsequently was granted by the SEIAA, which is evident from their reply.

¶340

In view of above, we do not find violation to have been committed by the Respondent No.11-Project Proponent and hence, there is no question of any amount of EDC to be levied from it. Accordingly, we dispose of Original Application No.107 of 2022 (WZ).

¶341

FINDINGS IN APPEAL NO.23 OF 2023 (WZ)

¶342

The allegation made by learned counsel for appellant is to the effect that the Environmental Clearance granted to the Project Proponent was expost-facto , because the construction, which has been done by the Project Proponent, exceeds 20,000 sq. mtrs. total BUA prior to grant of Environmental Clearance. But it is not found to be substantiated. So, whatever construction is intended to be done or is going to be done, is going to be done only after procuring the Environmental Clearance, which has already been obtained by Respondent No.11-Project Proponent now.

¶343

In view of above observations, we do not find any force in the argument made by learned counsel for the appellant that the Environmental Clearance is ex-post-facto , hence the same is upheld and accordingly we dismiss this appeal having no force.

¶344

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶345

Page 50 of 51

¶346

Pending I.A.s also stand disposed of.

¶347

There shall be no order as to costs.

¶348

Justice Dinesh Kumar Singh, JM

¶349

Dr. Sujit Kumar Bajpayee, EM

¶350

September 02, 2026 ORIGINAL APPLICATION NO.107 OF 2022 (WZ) I.A. NO.16 OF 2023 (WZ) along-with APPEAL NO.23 OF 2023 (WZ) I.A. NO.09 OF 2024 (WZ) P.Kr.

¶351

Original Application No.107 of 2022 (WZ) & Appeal No.23 of 2023 (WZ)

¶352

Page 51 of 51

Mr. Irba Mashnaji Konapure v. Union of India through Secretary Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

Mr. Irba Mashnaji Konapure v. Union of India through Secretary Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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