adarsh cooperative housing society:
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ADARSH COOPERATIVE HOUSING SOCIETY:
Dossier Containing Final Order and Other Relevant Documents
16th January 2011
• Annexures to Report
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To,
Mr. Bharat Bhushan
The Director,
Ministry of Environment & Forests
Paryavaran Bhavan,
CGO Complex, Lodhi Road,
New Delhi 110 003
Sir,
Ref: t
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Your show cause notice No.19-94/ 2010-IA-III dated 12ft November.2010
received by us on 15ft November,2AlA.
My response on behalf of ADARSH Co-operative Housing Limited dated
24ft November, 201,0.
My letter dated 29th November, 2010 requesting for inspection of letters/
Documents/meefings referred to in your show cause notice dated
12d'November, 201,0.
Letter bearing ref. No.19-94/2010-IA-III dated 29rt November,20L0
granting extension of time (received by me on 6ft December ,2010).My response dated 6ft December,2}lA interalia requesting for time, inspection
and seven days clear notice of any hearing.
cqP.,ffi)Z"M Vr'rrt a%,*tdh"r""n
1) I am concerned for my client, ADARSH Co-operative Housing Society Ltd., situate at CTS
No.652, Block-6, Colaba Division, Capt.Prakash Pathe Marg, Colaba, Mumbai 400 005.
2) My client has instructed me to forward its response/reply to your Show Cause Notice
bearing No. 19-94 /201A-IA-III dated 12u' November, 2010. The said response is enclosed
herewith in the form of detailed submissions.
3) I, on behalf of my client request you to consider the aforesaid submissions and not take
the action contemplated by your show cause notice dated 12ft November, 2010.
4) In the event of your not being satisfied with the submissions of my client, as earlier
intimated to you, my ciient desires to have a right of hearing before the Ministry of
Environment and Forests. {
5) Further to inform you that this reply will be filed in the Hon'ble Bombay High Court in
Writ Petition No. 2407 /2010 filed by my client, for Hon'ble Court's assistance.
Maneshinde
Advocate
Encl: As above
Thanking you,
ec""ffi 9. o/t"-*l;**
CC: MAHARASHTRA COASTAL ZONE MANAGEMENT AUTHORITY
(Through Member Secretary, (MCZMA)
New Administrative Building, 15th Floor,
Environment Department, Manfralaya,
Mumbai - 400032
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REPLY OF ApARSH CO-OPERATTVE HOUSTNG SOCTETY LTp. (ApARSH).
TO SHOW CAUSE NOTICE BEARING NO. 19-94I2010-IA-III DATED 12rH
NOVEMBER, 2010, FSUED BY THE GOVERNMENT OF INDIA. MINISTRY OF
ENVIRONMENT AND FORESTS.
ADARSH craves leave to respond to the Show Cause Notice dated L2th November,
20L0 bearing No. 19-94/2010-IA-III (hereinafter referred to as the "Show Cause
Notice" or "SCN" for short) as under:
At the outset ADARSH submits that, after receipt of the show cause notice,
ADRASH had sought inspection of the documents on 29ft November 2010. The said
letter has not been responded to nor any time has been fixed for inspection of the
documents. The preliminary reply as well as this reply is without prejudice to
ADARSH's submission that, failure to give inspection is contrary to the principles of
natural justice and vitiates the entire ""4;it.
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A) FACTS:
1. The Maharashtra Land Revenue Code 1966, particularly Section 40 read with
section 20 and 38 thereof empowers the State Government to dispose of grant
andf or lease any land or properfy belonging to the Government on such terms
and conditions as it deems fit. In exercise of the said power, the Government of
Maharashtra (hereinafter referred to as the GOM) framed a policy for such
disposalllease of land to a Cooperative Society, which is in force for last more
than 20 years. The said policy was modified on 9ft ]uly, 1999 and duly notified in
the name of the Governor of Maharashtra by the Revenue and Forests
Department, GOM. Annexed hereto and marked as Annexure-I is a copy of the
said policy as modified on 9ttt JuLy, 1999 by Government Resolution
No.LCSL095/Sr.No.37 /95/51., case No.37 /9551, dated 9ft July, 1999 (hereinafter
referred to as the 99 G.R.).
2. ADARSH which iE a "housing society" within the section oI 2(1,6) of the
Maharashtra Co-operative Societies Act, 1960 applied lastly by its application
dated 2'd June, 2000 to the GOM for allotment of land for the purpose of
construction of a residential building for the benefit of its members, being
eligible under the 99 G.R.
3. By Letter of Intent bearing No.LBR-25-2000/ case No.912/Gl dated 18ft January,
2003; GOM expressed its desire to allot the plot of land admeasuring3758.22 sq.
meters at Backbay Reclamatioru Block No.VI, Plot No.87 to ADARSH (ADARSH
land) for a consideration of Rs. 12 crores approximately. Annexed hereto and
marked as Annexure'Il is a copy of the said Letter of Intent.
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4.
5.
Gr)
The MOEF in exercise of its power purportedly conferred by clause (D) of sub-
rule 3 of rule 5 of the Environmental (Protection) Rules 1986 imposed
restrictions/prohibitions and has duly notified the same under section 3(1) an4
Section 3(Z) (v) of the Environmental Protection Act,1986. The MOEF has also
framed Coastal Area Classification and Development Regulations which form a
part of such Notification. Annexed hereto and marked as Annexure-Ill, IV and
V are the copies of notification dated L9ft February,1991,9ft ]uly, 199T and 22^a
April, 2003 issued by the Minisfry of Environment and Forests (MOEF),
(hereinafter referred to as the 199-1, nottfication, the1997 notification and the 2003
notification respectively).
The 1991 notification classifies activities capable of being carried out in the
Coastal Regulation Zone into two categories (1) Prohibited activities and (ii)
Permissible activities. A1l activities which are not expressly listed as prohibited
activities are to be taken as permissible activities within the meaning of the
notification. Construction of residential building irrespective of the FSI
consumed and the height thereof is a permissible activity within the meaning of
Clause 3 of the 1991 notification.
6. If construction of residential building were to be freated as an " actlity" for the
purPose of 1991notificatiory the construction of the building of ADARSH wouid
fall in para 3(2)(iv) which reads as under:-
"3. Regulation of Permissible Actioities:
All other actiuities except those prohibited in para lI aboae wilt be regulateil as
under;
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Q) The folloraing actiuities znill require enuironmental clearance from the
Ministry of Enaironment and Forests, Gaaernment of Inilia, namely:-
izt) 'all other activities utith inaestment exceeding Rs.S crores."
Thus as per the 1991 notification such activity would require environmental
clearance from the Ministry of Environment and Forests, Government of India.
7. By the 1997 notrtication, the MOEF modified/amended the L991 notification.
Paras 3(iv) of the 1997 notification reads as under:
3. All other actiuities except those prohibited in para II aboae utill be regulated
as under:-
@ The following actiuities rnill require environmental clearance from the
Ministry of Enaironment €t Forests, Government of lndia, namely:- __:,ia) "aII other activities with inaestment exceeding Rs.fiae crores except those
llactitsities which are to be regulated by the concerned authorities at State&lnion
{ __*tereitory leael in accordance with the proztisions of paragraph 6, sub paragraph
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Q) of Annucure I of the notification. *.':,"'n
8. Thus, the 1997 notification deviated fundamentally in respect of Environmental
Clearances for activities with investment exceeding Rs.5 crores. The 1997
notification provided for a clearance by the State Authorify (in the State) for
activities covered by paragraph 3(2) (iv) of the 1997 notification. Thus, assuming
that construction of residential building would be an "activity" within the
meaning of paragraph 3(2)(iv) of the 1991, and the 1997 Notification, the same
by virtue of 1997 notification would not require clearance from MOEF.
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9. The Ministry of Environment and Forests, (hereinafter referred to as MOEF)
approved with certain modification the Maharashtra State Coastal Zone
Management Plan (herein#ter referred to as the CZM) on 27f. September,1996.
Thereafter, it approved the revised CZM on 19ft January, 2000. As per this
approved plan the plot of ADARSH falls in the category II (CRZ-II). This is an
accepted and undisputed fact so far as the Planning Authorities and the
authorities under the Environment (Protection) Act 1986 are concerned.
B) TEGAL SUBMISSIONS ON ENVIRONMENTAL CLEARANCE:
The term activities appearing in paragraph 3(2)(iv) of the 1991 Notif icatron,IggT
Notification and the 2003 Notification will have to be read in the context of
Section 3 and 5 of Chapter II and Sections 7 to 'J-.4 of Chapter III and the
Environmental Protection Act and rules. The activities contemplated by the
1991 Notificatiory 1997 Notification and 2003 Notification are thus activities
relating to "industries" viz. manufacfuring activities which through its operation
and processes are likely to emit pollutants and which use hazardous substances.
Construction of a residential building can by no stretch of imagination be
equated with such industries and is therefore, outside the purview of the said
Notifications. The 1991 Notification,lggT Notification and the 2004 Notification
therefore do not apply to the construction of the Building of ADARSH. This
being so, ADARSH did not require permission or clearance of MOEF or any
other statutory authority in the first place.
10. In 1998, in exercise of powers conferred by sub-sections (1) and (3) of Section 3 of
the Environmental (Protection) Act 1986, the Central Government constituted the
Maharashtra Coastal Zone Management Authority (MCZMA ) by an order to
carry out the functions as more particularly set out in its order bearing
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No.SO1003(E) dated 26{'November, 1998. One of such functions being to enquire
into cases of alleged violation of the provisions of Environmental Protection Act
and the Rules made there under or under any other laws for the time being in
force which would be relatable to the objects of the Environmental Protection
Act and if found necessary in a specific case, to issue direction/s under section 5
of the Environmental Protection Act in so far as such directions were not
inconsistent with any direction issued in that specific case by National Coastal
Zone Management Authority (NCZMA) or by the Cenfral Government. The
said order was subsequently modified by another order dated 4th January,2002,
where (II), (IIa) was modified. The reievant portion of the order read as under:-
lL The Authority shall have the power to take the follozaing measures forprotecting and improoing the quality of the coastal enaironment and
preaenting, abating and controlling enoironmental pollution in the caastal
areas of the State of Maharashtra, namely;-
(ii) (a) Inquiry into cases of alleged ztiolations of the provisions of the saiil Act
or the rules made thereunder, or under anu other laut uthich is related to the
obiects of the saiil Act anil, if found necessary in a specific cnse, issuing
directions under section 6 of the saiil act, insofar as such directions are not
inconsistent with any direction issued in that specific case by the National
coastal zone Management Authority or by the central Goaernment.
Annexed hereto and marked as Annexure -VI and VII are the copies of the
orders dated 26ft November, 1998 and 4ft ]anuary,20A2 passed by the MOEF in
exercise of its power under section 3(3) of the Environmental Protection Act 1986.
The MCZMA by virtue of the said orders did not have any power to grant
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clearance (if required) under the 1991
notification.
notification or the 1997 notlfication or 2003.-*"rr
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L1. At the relevant point of time i.e. in 2000 when ADARSH made an application for
allotment of land to GOM, the procedure relating to clearance of activities for the
purpose of the Environmental Protection Act was governed by the 1gg7
notification. The said notification provided for a clearance by the State
Authorify. In any event MOEF in its SCN also admits that the powers to accord
clearance to activities involving investments of more than Rs.S crores were
delegated to the "State Authorities". The same is also admitted in the minutes of
the meeting of NCZMA and extract of which has been supplied along with show
cause notice as also the Press Note released by the MOEF on 28ft October, 2010.
Thus, clearance accorded by the Urban Department of GOM.vide its ietter dated
LSft Marcb 2003 and thereafter by the MMRDA whilst issuing conunencement
certificates from time to time and subsequent Occupation Certificate dated 1"6th
September 2010 cannot be faulted with especially on the ground that the
construction of the residential building of ADARSH did not have a clearance
under the Environmental Protection Act as contemplated by the 19gT
notification. At the relevant point of time i.e. on 15ft March 2003MCZMA merely
had a advisory / reconunendatory role. The stand of the MOEF, MCZMA and the
NCZMA that ADARSH ought to have obtained a clearance from MCZMA before
commencing construction is therefore, misplaced and bad in law. The contention
that the structures violate the provisions of Environmental Protection act and the
Coastai Zone Notifications is also therefore, misplaced. ADARSH had obtained
the necessary clearance from the State Government, U.D. department on 15tr
March, 2003. The said clearance satisfies the requirements of para 3(2)(iv) of the
1997 nottfication and therefore, no fault under the Environmental Protection Act.
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or the rules framed there under it or the orders passed thereunder can be found
visa a vis, the structure of ADARSH. It may be submitted that urban
development department GOM has issued many such CRZ clearances in
between 1997 to April2003 and the same are acted upon. The said in-formation is
available with the State Government of Maharashtra.
12. Without prejudice to the contention of ADARSH that clearance from MOEF
isfwas not required, it is submitted that in any event the "clearance"
contemplated by the 1991 Notification, the 1997 Notification and the 2003 dNotification does not in any manner suggest or mandate a clearance prior to $
#, ,,construction or occupation. The same is opposed to a "prior clearance" in the
case of Environment Impact Assessment as contemplated in the EIA Notification
dated 14m September 20A6.
1,3. Importantly, MCZMA instituted an enquiry in conformity with its functions
under para II(ii) (a) of the Order dated 26ft November, 1998 and issued direction
vide its letter dated 3'd November 2009 under section 5 of the Environmental
Protection Act. Copy of the said directions are enclosed herewith and marked as
Annexure-Vl[. The Society has given its detailed response with supporting
documents vide its letter dated L7*' December 2009 pursuant to the said
directions and the said enquiry is pending before the MCZMA for consideration.
MCZMA has not decided the issue for a period of more than one year. Annexed
hereto and marked Annexure-"1X" is a copy of the said reply given by
ADARSH.
'l'4.1t is submitted that the MOEF through MCZMA constituted pursuant to the
Powers vested in MOEF by section 5 sub section 3 of the Environmental
o
Protection Act has already initiated enquiry and has passed direction under
section 5 of the said Act. The said enquiry is deemed to be an enquiry conducted
by MOEF and separate proceeding directing by MOEF in respect of the same
violation alleged is not permissible in law and amounts to the same authority
deciding the issue in two different sets of proceeding simultaneously.
L5. Apart from the alleged violation of FSI, which is being separately dealt with in
these submissions the MOEF has not pointed out any violation by ADARSH
either of the 1991 Notification or the Environmental Protection Act or the rules
framed thereunder. In this view of the matter, the action
contemplated/proposed is not only harsh but is against the principle of fair play
and equity which is expected from MOEF which is"State" within the meaning of
Article 12 of the Constitution.
C) ALLEGED F.S.r VIOLATION:
16. ADARSH land falls in the category II, (CRZ ID as per the Coastal Area
Classification and Development Regulations for reasons as set out hereinabove.
17.It is submitted that as per the 1991 Notification and Section 3(1) and 3 (2)(v) of
the Environment Protection Act 1986 and Rule 5(3Xd) of the Environment
(Protection) Rules, the conslruction of building in CRZ II would be subject to the
existing local and town planning regulations. The word "existing" has been
interpreted by the Hon'ble Supreme Court in fsuresh Estate Priztate Limited I
Anr os. MCGM I Ors [QA0I74SCC439] holding that, existing local and town
pianning regulations on the dated of 199'1, Notification would be DCR 1967.
Hence, the buildings have to be constructed as per Development Control Rules
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1967 which are existing town planning regulations governin g and/ or regulating
the construction of the buildings in CRZ II area.
LS.Under the D.C.R.1967, ADARSH land falls within the FSI zone R-9 in theBackbay Reclamation scheme, Block VI. As per the said Development Control
Rules, FSI in Zone R-9 in the area falling in the Backbay Reclamation Scheme,
Block 4 is 3.5. Annexed hereto and marked as Annexure-,,X,, is a copy of the
relevant extract of the DCR 1967. The presumption of MCZMA (relating to F.S.I.
of 1'.33%\ which is evident from the decisions of MCZMA set out in paragraph 11
of the SCN are therefore un-founded and misplaced to say the least.
19. Even assuming that ADARSH is entitled to a FSI of 1.33 only it has consumed
FSI of 1.32, thte same is evident from the building plan approved on 4ft August,
2010 and 16m September, 2010. It is submitted that the Planning Authorify i.e.
MMRDA certification on the issue of consumption of FSI has to be treated as
final and neither the MOEF nor MCZMA nor NCZMA has expertise or the
power to decide the said issue.
20. It is pertinent to point out that the MCZMA, in its meeting held on 3d November
2010 seems confused over the appticability of D.C.R. On the one hand it
presumes the applicability of D.C.R of 1967 while on the other it seeks to refuse
3.5 F.S.I as per the said D.C.R. It is submitted that even if it were to be assumed
(without admitting) that ADARSH has consumed F.S.I of 1..77, the same being
less than the permitted 3.5, the violation can be challenged. On the other hand, ifit is to be assumed (without admitting) that F.S.I of L.33 was permissible then onewould have to presume applicability of D.C.& 1991 which exempts lift, lobbyand staircase areas from the purview of F.s.I carcuration.
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D) ALLEGED REOUIRMENT OF AMALGAMATION:
21.It may be mentioned here that the land which originally belonged to the GOM
was allotted to the Society. The remaining land admeasuring 2669.68 sq.mteres
on the same plot was also owned by the State Government. The State
Government allowed the FSI of the remaining vacant land, for a consideration
Rs. 6.L4 crores with a specific condition that the said remairi.g land will be
allowed to be used by BEST free of cost and the said land will be kept free from
any construction. As the of land belonged to the State Government a portion of
which was allotted to the Society, the question of "amalgamation" does not arise.
There is thus no "kansfer of FSI" as mentioned in the show cause notice. The
society has consumed "captive" FSI of the vacant portion of the larger piece of
the land under same ownership i.e of the GoM. The same was done by
constructing the building on one portion and keeping the other portion of the
land permanently open. Without prejudice to the above and without in any
manner admitting that the lands are on separate plots, it is submitted that, even
with demarcation ADARSH land is in any case contiguous to the land, from
which the FSI is utilized and both are admittedly owned by the GOM. In these
circumstances also there is no requirement for amalgamation.
E) ADARSH deals with the S.C.N parasraph wise as under:
22.with reference to paragraph Nos. 1 and 2, the same is matter of record.
23. With reference to paragraph Nos. 3 to 5, Notificationlggt was duly amended on
9ft July, 1997 vide an amendment S.O No.494(E) wherein it was mentioned that
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the activities regulated by concerned State/Union Territories under clause 6(2) ot
the Notification did not require NOC/clearance/permission from MOEF
(Government of India). Subsequently, the said notification was amended on 22.d
April, 2003 vide an amendment S.O.No.460 (E). It can be seen from the orders
which are annexed herein above constituting MCZMA & NCZMA that the said
authorities at no point of time had power to grant
NOCs/Clearances/permissions. Thus in view of clarifications and amendments
as mentioned hereinabove in various notifications and orders the powers of
granting NOCs/Clearances/permissions in CRZ area for
deveiopment/construction at the relevant time were with the State Authority
and the concerned State Authority has granted no objection for the construction
of ADARSH Building vide its letter dated L5ft March,200g.
24.With reference to paragraph No.6, MCZMA instituted an enquiry vide its letter
dated 3'd November, 2009, in conJormity with its functions under order dated
261e November, 1998 and also issued directions under section 5 of the
Environmental Protection Act. The society has given its detailed reply vide its
letter dated 176 December, 2009 along with the supporting documents to
substantiate its case and the said enquiry is pending before MCZMA for
consideration for a period of more than one year. It is submitted that the action
under section 5 is a draconian power given to the authorities under the
Environment Protection Act which is already been exercised by MCZMA which
is an arm of MOEF at the State level. It is further submitted that in light of the
action taken by MCZMA under Section 5 of the Environment Protection Act
which is pending consideratiory the show cause notice ought not to have been
issued by MOEF.
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25. With reference to paragraph No.7, ADARSH denies any violation of CRZ
notification as contemplated in the newspapers and news items and also in the
electronic media as the same is without any sustentative evidence and a legal
base and cannot be relied upon by an authority at the central level constituted
under the Environment Protection Act and expected to perform its functions
within the four corners of wall.
26. With reference to paragraph Nos.8 and 9, ADARSH is not aware of any request
made by MOEF vide its letter dated 26ft October,2010 addressed to Secretary
Environment, Government of Maharashtra and Chairperson, MCZMA for
examination of the facts of the ADARSH Project and the clearance obtained.
ADARSH is also not aware of any interim reply dated 27ft October,2010 issued
by Secretary, Environment, Government of Maharashtra, addressed to MOEF,
stating that prima facie no clearanceltas been granted under Coastal Regulation
Zone Notification by Department of Environment/MczMA to the ADARSH
Project. It is worthwhile to mention that ADARSH has requested an inspection
of letters dated 26ft October,2010 and276 October,2010 vide its letter dated 29m
November,2010 duly received and acknowledged by MOEF, however, the same
is not been replied nor any inspection as requested has been given to ADARSH.
27.With reference to paragraph Nos.10 to 13, it is submitted that 1991 Notification
classifies activities capable of being carried out in CRZ areas as (1) Prohibited
activities and (2) Permissible activities. The construction of residential building
falls under a permissible activity (assuming it is "activify" within the meaning of
the said notification) within the meaning of clause 3 of the 1991 Notification.
Under 1991 Notification such activity would require an environmental clearance
from MOEF (GOD. Thereafter, 199'1. Notification was subsequently amended in
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.{fr 13
1997 Notification thereby the clearances were to be given by the State Authorities
for the activities covered by paragraph 3(2)(iv) of the 1997 Notification. At the
relevant point of time i.e in the year 2000 when ADARSH made an application
for allotment of land, the power to grant clearances were with the State authority
and the same is being admitted by MOEF in its SCN datedl2th November,2010
and subsequently, in press note release by it on 28ft October, 2010. Thus,
clearances accorded by Urban Development Department vide its letter dated 15ft
Marctu 2003 to ADARSH and thereafter MMRDA (a Special Planning Authority
duly constituted under the provisions of Maharashtra Regional Town Planning
Act 1966) whilst issuing conunencement certificates from fime to time and
occupation certificate dated 16ft September, 2010 cannot be faulted on the
ground that ADARSH did not have clearance under the Environment Projection
Act as contemplated by 1997 Notification. It is further submitted that under
Development Control Rules 1967, ADARSH land falls within FSI zone R-9 in
Backbay Reclamation scheme, and as per the said DCR, FSI in zone R-9 is 3.5.
Therefore, there is no violation of the FSI norms as contemplated in the
Notifications issued under the Environment Protection Act. Further it is
submitted that the question of amalgamation of alleged BEST plot does not arise
for the reasons more particularly set out hereinabove. Hence, it can be
concluded that there is no violation of any Notification issued under the
Environment Protection Act, FSI norms mentioned therein and amalgamation of
the BEST land as alleged in the said SCN.
28. ADARSH Building has been constructed by complying with all the procedures,
formalities prescribed under the statutes which are applicable for a construction
of the residential building and the same has been granted occupation certificate
by MMRDA on 16ft September, 2010 which is ia a herculean task.
t
29. With reference to paragraph No.L4, the SCN dated 12ft November, 2010 is ipso
facto bad in law, without any jurisdiction and is issued without application of
mind. The action taken by MOEF is completely arbitrary and capricious and is
based upon certain wrong/incorrect information and also based upon
newspaper reports about alleged irregularities in the construction of the Society's
building.
30. With reference to paras (I) and (II) of the extracts of minutes of the meeting
annexed to SCN, ADARSH is not aware of the same.
31. With reference to paras (III) and (IV) of the extracts of minutes of the meeting
armexed to SCN, ADARSH denies the contents thereof in toto unless specifically
admitted herein. Further the allegations made therein is dealt in detail in
paragraphs hereinabove and to avoid repetition the same are not reproduced
here.
32. With reference to paras (V) to (VI) of the extracts of minutes of the meeting
annexed to SCN, ADARSH denies the contents thereof in toto unless specifically
admitted herein. It is submitted that, 1991 Notification was duly amended in the
year 1997, wherein the powers granting NOC/clearances/permissions was
delegated to the State Authority. Further its can be seen from the order passed by
MOEF constituting MCZMA and NCZMA, that the said authorities at no point
of time had power to grant NOCs/Clearances/permissions. Thus in view of
clarifications and amendments as mentioned hereinabove in various notifications
and orders the powers of granting NOCs/Clearances/permissions in CRZ area
for development/construction at the relevant time were with the State Authority
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and the concerned State Authority has granted no objection for the construction
of ADARSH Building vide its letter dated 15th March, 2003. Further, the
construction of the building is as per the existing town planning regulations i.e
DCR 1967 and there is no violation of FSI norms contemplated therein.
33. With reference to para (VII) of the extracts of minutes of the meeting annexed to
SCN, ADARSH denies the contents thereof in toto unless specifically admitted
herein. The construction of the ADARSH building is as per the town planning
regulations existing at the relevant point of time is in compliance with all the
procedures andf or formalities required for the consfruction of a building and the
allegation of violations of CRZ Notifications, FSI norms and so on and so forth
are without any legal substantive backing and are based on wrong/incorrect
information based upon conjectures and surmises about alleged irregularity in
the construction the ADARSH building. In view of whatever stated hereinabove
the conclusion drawn by the NCZMA are arbitrary and capricious and are net
based on certain wrong/ incorrect inJormation.
34. This reply is in addition to the interim reply given by ADARSH through its
lawyer, Mr. Satish Maneshinde on 24ft November, 2010. ADARSH also submits
that the submissions made herein are without prejudice to one another and are to
be treated in alternate to one another in case of conflict / cortradiction. ADARSH
further submits that this reply is without prejudice to its right to challenge the
jurisdiction of MOEF or MCZMA or NCZMA to issue andf ot to give any S.C.N
or to issue directions of the nature set out in the S.C.N and also the right to
challenge the authority to issue the Notifications under the Environment
Protection Act, 1986 making them applicable to the construction activiry.
ADARSH reserves its right to file additional documents and/or additional
ro'
o
submissions upon receipt of the copies of documents referred to in the S.C.N
andf or inspection thereof.
35. ADARSH once again renews its request for hearing in person and through its
authorized legal representative/counsel in the unlikely event of MOEF not
accepting the contention of ADARSH in these submissions.
Thanking you,
Yours faithfully,
For Adarsh C.o-Operative Housing Society Ltd.
)'\-b^.,a-nrig @ffit$mlCrta4nhe.)
. , Shalrmarll-reslclent
Encl: As above
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January 1Otl',2011To,
1. Dr. Nalini BhatAdvisor
2rtMr. Bharat Bhushan\v' Director (Scientific IA)
3. Dr. A. Senthil Vel (IA - III)4. Mr. E. Thirunavukkarasu, (IA_III)\
All having address at ,Ministry of Environment & ForestsParyavaran Bhavan.CGO Complex, Lodhi RoadNew Delhi - 110 003
Re: Hearing held on 4th JanuarV, 2011 inbearing No.19 / 94 / 2010_IA-III dated
Madam/Sirs,
This bear:s reference to the hearing granted to my clients in the matter. During the
course of the hearing my clients were requested to adciress their submissions only
on the two points contained in the Minutes of the Meeting of NCZMA held on Llth
November,20'J.0 viz.
(i) I^/hether permission of the Competent Authority under the Coastal Regulation
Zone Notification had been obtained and the proof of such permission
that the use of FSI was within the limits permitted by DCR 1,967.
respect of Show Cause Notice12t1' November,2010.
1)
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2) My clients were thereafter requested to give submissions in writing on the twoissues along with any additional documents that they may wish to submit. Apartfrom the same' after the hearing a questionnaire was handed over to my clientscontaining L3 questions dury signed by you the addressee No.l. subsequent
thereto' a corrununication was received by me on 4ft Januar y, 2[llrequesting for
submission of the following.
(i) A copy each of the handing over and taking over of both the plots,
(ii) The stage of consfruction in terms of number of floors, built up area, FSI
consumed etc. on the date the second plot was taken,
(iii) The chronology of events, specially pertaining to the permission obtained,
stagef s. of the construction etc.
3) On behalf of my clients I am forwarding herewith
i) The written submissions along with the necessary documents available with my
clients for the purpose of satisfying the two issues on which hearing was
limited on 4ft January,2011 (ANNEXURE _1)
eY"ntrZ.M
ii) The answers/expranation/response to the queries raised
questionnaire handed over to my clients on 4th January,20l-1"
and supporting documents ( ANNEXURE _2)
iii) The documents/information sought for in your letter dated 4ft Januar y, 201"1,.
(ANNEXURE _3)
4) Please note that, the documents already submitted to you alongwith my reply
dated 15ft December 20'10, the writ petition No. 2402 of 2010 and the compilation
of documents(212 pages) handed over during the hearing on 4ft January 201.1 are
not being re-submitted.
5) I hereby again place on record that no site inspection has been conducted_by_either
the MoEF or MCMZA or NCM zldA and we would welcome a site vigit so that
MOEF can take appropriate decision based on a physical verification of the site
also.
&a]**
by you in the
(copy enclosed)
faithfully,
ANNEXURE - 1.
WRITTEN SUBMISSION OF ADARSH:
1. The panel consisting of Dr. Nalini Bhat, Advisor, Mr. Bharat Bhushan ,
Director (scientific IA), Dr. A. Senthil Vel (IA - III), Mr. E. Thirunavukkarasu,
(IA-IID (hereinafter referred to as the Panelists), of the Ministry of
Environment and Forests (hereinafter referred to as MOEF), granted a
hearing to Adarsh Co-operative Housing Ltd., (hereinafter referred to as the
'Adarsh"), on 4th january, 2011,.
2. The Panelists called upon Adarsh to restrict its submissions only on two
issues namely;
(a) \Alhether permission of the Competent Authority as per the Coastal
Regulation Zone Notification had been obtained;
(b) \Alhether the use of FSI was within the limits permitted by DCR 1967.
3. The Panelists called upon Adarsh to submit proof/evidence in respect of the
two issues only. It was clarified by the Panelists that the show cause notice is
restricted to the issues in the minutes of the meeting of the NCZMA dated L1ft
November, 2010 and that no arguments pertaining to the other issues raised
bv MCZMA be advanced.
4. Adarsh therefore, craves leave to make submissions only on the above two
issues only in the form of these written submissions which are being filed
pursuant to the request made for the same by the panelists
I
Q ;
5. Lr these submissions:
t) Adarsh co-operative Housing society Limited is referred to as "Adarsh"
ii) The State of Maharashtra/Government of Maharashtra is referred to as
"GOM'
iii) The Ministry of Envirorunent and Forests is referred to as "MoEF".
iv) The Notification dated L9th February 1991 published in Part - II, section 3
sub-section (II) of the Gazette of Lrdia (Extraordinary) is referred to as
"199L Notification"
v) The Notification dated 9ft JuIy 1997 published in Part - If section 3 sub-
section (II) of the Gazette of hrdia (Extraordinary) is referred to as "1997
Amendment"
vi) The Urban Development Deparbnent of Government of Maharashtra is
referred to as "IJDD".
vii) The Maharashtra Coastal Zone Management Authority is referred to as
"MCZ}|,'A'.
viii)The National coastal Zone Management Authority is referred to as
"NCZMA".
ix) The Mumbai Metropolitan Region Development Authority is referred to
as "MMRDA".
x) The Municipal Corporation of Greater Mumbai is referred to as "MCGM".
INTRODUCTION OF ADARSH:
a) Adarsh is a Housing society within the meaning of section 2(16) of the
Maharashtra Co-operative Act, 1960. The land in question on which the
building of Adarsh is located, is a parcel of land in Block-6 of Backbay
Reclamation Area, Near Backbay Bus Depof Capt. Prakash pathe Matg,
Colaba, Mumbai 400 005. A-ward, admeasuring about 6428.s sq. meters
(hereinafter referred to as "the said Plot").
b) The said plot was allocated to Adarsh on occupancy basis in two stages as
set out below:
Adarsh was proposed in the year 1994 and object of the sociefy was
to secure housing for its members. Adarsh society vide its letter
dated 21ut September, 1999 addressed to the GOM sought an
allotment of 38-54 s1. meters out of Block VI, Backbay Reclamation
Scheme. The said proposal was thoroughly examined at the State
level as well as by the Collector and considering the representation
and correspondence exchanged between the society, the GOM and
the Collector, the GOM by a Letter of Intent dated 18ft january,
2003 and subsequent by a Government Resolution dated 9ft Iuly
2004 allotted 3758.82 sq. meters owned by it on occupancy basis to
Adarsh for construction of a residential building for its then
existing members and for members who would subsequently take
membership of Adarsh. The said land was gtven to the Society on
occupancy basis and on payment of sum of Rs.10,19,19,652/-
(Rupees Ten Crores Nineteen Lakhs Nineteen Thousand Six
Hundred & Fifty Two only) . A copy of the Letter of Intent dated
18ft January 2003 is arurexed as "Exhibit - D" to the Writ petition
No.2407 /2010 and a copy of the Government Resolution dated Sft
August 2005 is arrnexed as "Armexure - A-2" to the compilation of
documents submitted to MoEF at the time of hearing on 4ft ]anuary
2011 (hereinafter referred to as the Compilation).
similarly, on Sft August 2005 the GoM arlotted land admeasuring
aboat?669.68"sq. meters to Adarsh society on occupancy basis and
on payment of Rs. 6,14,02,640/ - (Rupees Six Crores Fourteen Lakhs
Two Thousand Six Hundred & Forty only). A copy of the said
Government Resolution dated 5m August 2005 is annexed. as
"Arnexure - A-3'to the Compilation.
The satellite images were taken by Adarsh through the help of site
www.earth.google.com showing with the precision the location of
Adarsh vis-d-vis the other structures in the Backbay Reclamation
with a telescopic resolution and with reference to sea. Copies of the
said Satellite images are Ernnexed at "Annexure - A-g,,to the
Compilation.
(q ISSUE NO.l
whether permission of the Competent Authoritv under the Coastal
Regulation Zone Notification had been obtained by Adarsh.
A)Applicability of the notification 4ated 19th February, 1991 published in
subsequent amendments thereto:
operation and therefore the Notification is not applicable.
The Notification dated 19ft February,199'1. is hereina-fter referred to as
the "1991Notification" ar'd the amendment of 1997, is referred to as
ii)
iii)
ii)
the "1997 Amendment". It is submitted that the 199i" notification and
the 1997 Amendment has been issued in exercise of the powers
conferred under section 3(1) and section 3(2)(v) of the Environ:nent
(Protection) Act,1,986 and Rule 5(3Xd) of the Environment (protection)
Rules, 1986 for the purpose of placing restrictions contained therein on
the "sefting up and expansion of industries. operations or processes,,
etc. in the Coastal Regulation Zone. The same is evident from the
caption of the L991 notification and the 1997 Amendment as well as the
purposes set out in paragraph 1 of the said notification.
A plain look at the 1991 notification reveals that the activities i.e.
industries, operations and processes are divided into "prohibited
activities" and "permissible activities". Prohibited activities are listed
in paragraph 2 of the said notification and regulation of the activities
which are not prohibited activities is provided in paragraph 3 thereof.
Paragraph (3) sub paragraph (L) provides as under:-
"Clearance shnllbe giaen for any activi$ zpithin the coastal Regulation zone
only if it requires watur front and foreshore facilities,"
Paragraph 3 sub paragraph (2) provides for clearance of the
permissible activities by the MOEF (1991 notification) and , GOM
(1997 Amendment).
v) Itis thus, evidentfromsubparagraphs (1) and (2) ofparagraph (3) that
clearance can be given only for an " activity" requiring water front and
foreshore facility. In other words for an activity which does not
iii)
iv)
vi)
require water front and foreshore faciJity no clearance can be given
under the 1991 Notification andf or the7991 Amendment.
sub paragraph (2) therefore only regulates and provides for clearance
of the activities for which clearance is capable of being given under
sub paragraph (1) of paragraph 3.
vii) Thus, if construction of a residential building by a cooperative society
were to be treated as an "activity" covered under any of the provisions
of sub paragraph (2) of para 3 (particularly sub paragraph 2(iv)) then
by implication it would lead to an absurd scenario and would. mean
that the construction of Residential Building not being an activity for
which water front and foreshore facilities are required can never be
granted CRZ clearance by either the MoEF or 6u:ry of its Arms or the
State Government.
viii) In other words if the 1991 notitication and the L99z amendment were
to be interpreted to cover "construction of residential buildings" then
no residential building project could ever get environmental clearance
in the Coastal Regulation Zone. The same is clearly contrary to the
interpretation adopted by the MoEF, its Arm/s and the GoM during
the period from 1991 till date which is evident from thousands of
residential building projects having been given such a clearance by the
MoEF, its Arm/s or the State Goverrurrent as the case may be.
By a judgment rendered by the Division Bench of the Hon'ble Bombay
High Courf reported in AIR 1992 Bombay 471, in the case of [Goa
Foundntion and Anr. vs Tfu Konkan Railzuay Corporation and ors.f, the
rx)
Hon'ble Bombay High court in paragraph g has clearly held that the
L991 notification is issued in exercise of the powers under section
3(2)(v)of the Environmental (protection ) Act, 19g6 and such powers
are exercisable only to cover industries, operations or processes.
lA/hilst so holding, it went on to observe that Railway lines to which
the notification was sought to be applied is not a "industry" within the
meaning of sections a(z)(v) of the 1991 notification and also held that,
such an interpretation would be fallacious. It further obsewed in the
said judgment that though "but:.dir:.g" which was otherwise prohibited
activity under the notification; it could not be treated as such for the
purpose of Railway l-ines, as it would have to be read in the context of
setting up industries or any operations or processes in respect of such
industries.
(Protection) Act, 1986 and the rules framed there under:
There is another reason why the 1991 notification and the 1997
amendment does not apply to construction of a residential building by
a Cooperative society or even otherwise to any construction actrvitv
for residential purpose.
ii) A plain look at rhe provisions of section 3(2)(v) under which the
Ministry has exercised its powers to issue such noti-fications reveals
that the same provides for "restriction of areas,, in which any
industries, operations or processes or class of industries, operations or
processes shall not be carried out or shall be carried out subiect to
iii)
iv)
certain safeguards". The said provisions thus, put a restriction as
envisaged therein on "areas". The said provisions when read with
Rule 5 sub rule (s) (a) (b) (.) and (d) makes it clear that the rules also
prescribe restriction in only "areas" .
Rule 2(aa) of the Environment Protection Rules 1986 reads as under
2(aa) "areas" means all areas where the hazardous substances are
handled.
Hazardoas substance in turn is defined in section 2(e) of the
Environment (Protection) Act, 1986 to mean, any substance or
preparation whiclu by reason of its chemical or physico-chemical
properties or handling, is liable to cause harm to human beings, other
living creafures, plants, micro-organism, property or the environment.
v) Thus, it is evident that the said notification/s would take into its ambit
industries, operations and processes which are being carried out in the
areas where hazardous substances are handled. The same therefore,
by no stretch of imagination could be applied to pure residential area
such as Block No.6, Backbay Reclamation, Capt. prakash pathe M*&
Colaba, Mumbai where no such induskies, operations, are being
carried out.
In *y event, on the plot on which the building of Adarsh stands or
around there is no such area which has been identified. Thus, the
limitation/restriction imposed by the 1991 notification and the 1997
and 2003 amendments could/cannot by any stretch of imagination be
applied to the building of Adarsh or to the area on which the building
stands. There is no indication or allegation in the show cause notice
which states that the area on which Adarsh stands or the Backbay
reclamatin would be "area" as defined under Rute 2(aa) of the
Environrnental Protection Rules.
vii) in view of the above, Adarsh was not required to take any clearance
under 1991 Notification or the 1997 ammendment for construction of
the building forming the subject matter of the show cause notice.
lnsistence upon such clearance would therefore be inappropriate and
would not be in conformity ".ith
the provisions of the Environment
Protection Act, 1986 and the 'l.gg1 Notification or the lgg7
ammendment.
obtained bv Adarsh
without prejudice to the submissions made above, Adarsh submits
that it was advised to seek cRZ clearance at the relevant time and
acting on the same, it had acquired clearance from the GoM which fI
was admittedly the Competent Authority at the relevant time. The i
same is evident from the following;
(a) On 5ft October, 2002, the Urban Development Departrnent, of the UDD
of GoM requested the MoEF for grant of Noc for development of the
plot allotted to Adarsh by the GOM. Irr the said letter, the UDD
. . ' /
pointed out that the Chief Promoter, Adarsh had by letter dated 3'd
August, 2002 applied for allocation of the Government land and that
pursuant thereto the GOM had modified the sanctioned Development
Plan of Backbay Reclamation Area reducing the width of PrakAsh
Pathe Marg, from 60 meters wide road to 18.40 meters road. It was
also pointed out that the land under reference is situated in the CRZ -
II category and is situated on the west side of Capt. Prakash Pathe
Marg, on which side development for residential and com:rrercial
activities was in existence. It was further pointed out in the said letter
that considering the aforesaid factors the GOM had decided to allot
the plot to Adarsh for residential development. A copy of the said
letter is annexed at Exhibit-H to the Writ Petition No.2407 at page 117.
A copy of the same is enclosed herewith for ready reference and
marked as Annexure-A.
(b)On receipt of the said letter from the GOM, the MoEF addressed a
cornmnnication datedj:d.Pec9grbe1, 2002 to the GOM calling upon it
to send the plot bogldary*ggpel imposed on the approved revised
Coastal Zone Management Flan of Greater Mumbai, indicating the
presence of authorized structure or road (existing prior to 19.2.91). . .__ . :1+- " - . - - - - * * * ; ; l ; *
abutting the proposed site on the Seaward side. The said letter as
issued by the then Joint Director, Sfui. A. Senthil Vel on behalf of
MoEF. Copy of the said letter is annexed as Exhibit-I to the petition at
page 119. A copy of the same is also annexed herewith for ready
reference and marked as Annexure-B.
kf " , '
10
€$o
(c) The GOM upon receipt of the said letter, by its letter dated 4ft January,
2003 forwarded the necessary information and documents pointing out
the structures which existed prior to L9ft February, 199'1", abutting the
proposed site on the seaward side. The said letter was personally
handed over to Mr. A. Senthil Vel, Joint Director. A copy of the said
letter is annexed as Exhibit-j to the Petition at page 120. A copy of the
same is also arurexed herewith for readv reference and marked as
Annexue-C.
(d) Upon receipt of such information and documents from the GOM, the
MoEF by its letter dated 11m Marclu 2003, informed the GOM that
MoEF had already delegated its powers to the GOM for undertaking
development in CRZ-II and accorded its nc objection for the proposed
construction to come up on the designated land as per 1991
Notification (as amended from time to time) and the approved revised
Coastal Zone Management Plan of Greater Mumbai. The relevant
extract of the said letter is reproduced hereunder.
"This Ministry hns already delegated the poruers to the concerned State
Goaernment for undertaking deoelopment in Coastal Regulation Zone-IL
Accordingly, the proposed construction may be taken up as per the Coastal
Regulation Zone notifcation 1991 (as amended from time to time) and the
approaed reaised Coastal Zone Management Plan of Greater Mumbai".
A copy of the said letter is annexed as Exhibit-K to the Writ Petition at
page 121. A copy of the same is also annexed herewith for ready
reference and marked as Annexure-D.
(e) If the communications beginning from 5ft October, 2002 exchanged
between the GOM and the MoEF iue seen in reference to each other
and in continuity, it is evident that on 1.1th March, 2003, the MoEF had
acknowledged the powers of the GOM to grant clearance .to the
project of Adarsh and had also accorded {1 rro_. gb-jection t9 the
proposed construction to be taken up as per the 1991 Notification (as
amended from time to time) and the approved and revised Coastal
Zone Management Plan of Greater Mumbai.
(f) Pursuant to the said letter dated L1th March, 2003,by which the MoEF
111 commtnfated its no objection as set out hereinlbove, the. UDD
of GOM which was the department designated by the GOM for :
granting clearance under the Envirorunental Protection Act accorded
it's clearance to the development to be carried out on the land allotted
to Adarsh and communicated the same to (1) The Chief Engineer
(Development Plan Brihanmumbai Corporation), (2) Chief Planner
(MMRDA) Mumbai, and (3) The Executive Engineer (Building
Proposal), Municipal Corporation of Greater Mumbai and the
Chairman, Adarsh Society. A copy of the said clearance is annexed as
Exhibit-L to the petition at page 122. A copy of the same is annexed
herewith for ready reference and marked as Annexure-E.
(g) Thus it is an undisputed position that the necessary clearance under
the 1991 Nofification (as amended) for the building constructed by
Adarsh was given by the State Government/GOM which was
undisputedly the competent authority to give such clearance by
virtue of 199'1. notification (as amended from time to time) and the
ffi
PlanrLing Authority, viz. MMRDA and all other authorities acted on
the said clearance grven by the GOM pursuant to the letter dated 11th
March 2003 issued bv the MoEF.
(h) It is submitted therefore, that the no objection grven by MoEF's letter
dated 11th March, 2003 to be read alongwith the copies of
communications which are enclosed as Annexure A to C taken
together along with clearance given by the GOM in exercise of its
powers delegated to it under the 1991 notification constitute a valid
clearance which is in strict conformity with the 1991 notification (as
amended from time to time). The allegations in the show cause notice
about the building of Adarsh having been constructed without prior
clearance under 199L Notification is therefore, misplaced and
incorrect.It is most respectfully submitted that Adarsh cannot be called
upon to justify the coorectress of the decision of the GOM to grant
clearance in this hearing.
(0 The MCZMA had raised a contention that the GOM could not have
issued such a clearance in view of MoEF being the appropriate
authority under the 1991 notification. It also questioned the
correcfrress of the MoEF decision communicated by its letter dated 11m
March, 2003. The contention of MCZMA was rejected and negated by
the NCZMA in its meeting dated lLtt November, 2002 which is evident
from the minutes of the meeting handed over to Adarsh during
inspection of the documents on 20th December 2010. A copy of the
minutes of NCZMA are annexed herewith for readv reference and
marked as Annexure-F.
13
(1)
0) It is also important to point out thaf MCZMA in exercise of its duty
had as far back as 3.d November 2009 addressed a couwrunication to
Adarsh seeking details and documents relating to clearance obtained
from statutory authorities. Adarsh had responded to the same by its
communication dated 17th December 2A09 and had furnished
necessary documents. The MCZMA being satisfied \Mith the
explanation furnished by Adarsh took no further steps in the matter.
(k) PRroR CTEARANCE
hr the year 2000 when ADARSH made an application for allobnent
of land to GOM, the procedure relating to clearance of activities for
the purpose of the Environmental Protection Act was governed by
the1997 notification. The said notification provided for a clearance
by the State Authority. L any event MoEF in its Show Cause
Notice also admits that the powers to accord clearance to activities
involving investments of more than Rs.5 crores were delegated to
*re "State Authorities". The same is also admitted in the minutes of
the meeting of NCZMA and extract of which has been supplied
along with show cause notice as also the Press Note released by the
MoEF on 28ft October. 2010.
Thus, clearance accorded by the UDD of GOM vide its letter dated
15ft March, 2003 and thereafter by the MMRDA whilst issuing
cornmencement certificates from time to time and subsequent
Occupation Certificate dated 16th September 2010 cannot be faulted
with especially on the ground that the construction of the
(ii)
{fry
residential building of ADARSH did not have a clearance under the
Environmental Protection Act as contemplated by the 1997
notification and the same is valid.
(iii) Without prejudice to above it is submitted that in ar,y event the
"clearance" contemplated by the 1991 Notjfication and the 1997
NotiJication does not in any marurer suggest or mandate a
clearance prior to construction or occupation. The same is opposed
to a "priot clearance" in the case of Environ-rnent Impact
Assessment as contemplated in the EIA Notification dated L4u'
September 2006. It is submitted that, the intention of the Legislature
in excluding the word "prior" before "clearance" makes it clear
that, the "prior clearance" is not required. The Supreme Court in its
one of the celebrated |udgmentof 'LIC vs. Escorts Lfd" reported in
(1986)1SCC264 held that,
"thnt the Parliament made distinction between permission simpliciter and
preoious permission and the same is clear from the use of the qualifuing ntord.
in some proaisions while its non-use in some other proaisions of the Act. The
signifcance of such use and non-use of the qualifying word should not be
disregarded. This shaurs that, the Parliament deliberately aaoidcd the
qualifying word "preaious" .
hn the present case the word "clearance", cannot be limited to
"prior" only but comprehends subsequent clearance also. The word
clearance rn199'1, Notification and1997 Notification is not qualitied
by the words "prior" or "previous" as opposed to the same is used
in EIA Notification 2006. Though the qualifying word may be
(iv)
l5-3
o
(")
implied if the contextual situation or the subject and the design of
the Legislation demands it, but here in the present case there is no
compelling circumstances justifying the reading any such
implication into. The Legislature has deliberately not used the
word "prio{' before "cleararace" fi 1,991, Nofification and 1997
Nbtification and the same cannot be ignored autd/or disregarded.
Adarsh has obtained the clearance from the UDD, GOM on 15ft
March 2003. Without prejudice to the same Adarsh submits that
the building of Adarsh is in compliance with the conditions of the
L991 Notification and the 1997 Notification and necessary clearance
for the same as may be thought necessary by the MoEF may be
granted today. Adarsh will render all co-operation for the same.
!,u ISSUE NO.2
The use of FSI was within the limits permitted bv DCR 1967:
1. It is submitted that the GOM which owned a huge plot of land in
Block No.6, Backbay Reclamation allocated initially 3758.82 sq. meters
of land to Adarsh on occupancy basis for a consideration of
Rs.10,19,19,652/-. (Rupees Ten crores Nineteen Lakhs Nineteen
Thousand six hundred fifty two only) The same was done in
accordance with the policy of the Government set out in the
Government order/GR dated 9ft July, 1999. A copy of which is
annexed as Annexure A-1 at page 1 to the Compilation. (Hereinafter
referred to as the compilation). Thereafter, at the behest of Adarsh
additional land admeasuring 2669.58 sq.meters was allocated to
L6
Adarsh on occupEmry basis under the said GR on 5th August, 2005. A
copy of which is annexed at Annexure-A-3 to the Compilation at page
6L. The relevant property card,/ s showing ownership of the GOM on
the said land are annexed at Annexure-A6,page 78 to the compilation.
2. As per DCR 1967, the FSI permissible on block No.6 in Backbay
Reclamation is 3.5. . Adarsh has not crossed the said limit of 3.5 in
consumption of FSI. Infact Adarsh has consumed an FSI of '1.32 for the
purpose of construction of its building. The same is evident from the
sanctioned plans of the MMRDA particularly the sanctioned plan
dated L6th September 2010, a copy of which is at page 156 to the
Compilation. Copy of DCR 1967 is annexed as Annexure-A-1"3 to the
Compilation (relevant page 173). It is submitted that the
sanction/approval for the plans are still valid, existing and inforce
and the validity of the same cannot be questioned by any authority
which is not entrusted with the task of a Planning Authority for the
City of Mumbai. The same would otfrerwise tantamount to an
authority sitting in appeal without the powers of a appellate authority.
3. Without prejudice to the above, it is submitted that the provisions of
the MRTP Act MMRDA Act, the Rules framed there under or the
Development Control Regulation applicable to the city of Mumbai do
not prevent/bar ut'tlization of FSI of a plot of land on any particular
area identified by the owner on the same land or allowed to be
identified by him on the said land. Further the provisions, of the
above acts/regulations also do not prohibit utilization of FSI of one
plot on the contiguous/adjacent plot by authorized occupants of the
two plots of land under the ownership of the same owner. Thus, even
if it were to be assumed that the plot allocated on Sft august 2005 is a
separate plot, the same_being contiguous to the land on which the
building of Adarsh stands and under common ownership, there is no
violation of law in utilizing the FSI of the same on the land on which
the building is situate. Thus the question of amalgamation of plots as
sought to be suggested does not arise. The decision of MoEF based
upon the recommendation of NCZMA in relation to violation of the
FSI norms is unsustainable and contrary to law.
GENERAL OBIECTION TO THE NCZMA RECOMMENDATION/
DECISION:
1) It is submitted that the show cause notice dated L2ft Novenrber, 20L0
issued by the MoEF is based soiely upon the conclusion and
recommendations of the NCZMA record in the minutes of the meeting
of the NCZMA held on 11th November,2010. The same was also
clarified by the Panelists in the hearing held on 4th fanuary, 2011. It is
submitted that from the record it is apparent that all arms of all
statutory authorities have acted in apparent and undue haste pursuant
to the media reports thereby converting the otherwise meritorious case
of Adarsh into a Trial bv Media.
2) The sequence of events relevant from the MoEF PERSPECTIVE are
given hereunder:
{.mo
Date Sequence of Events
Period from 1sthMarch,2003 to 30mOctober,2010
Necessary sanctions were obtained by Adarsh from
various authorities under the Environment
Protection Act, BMC Act, MMRDA Act, etc. and the
building of Adarsh was constructed over a period of
excess of. 5/7 years. Occupation certificate was
issued by MMRDA on 16ft September, 20L0.
28th October,20L02010
Press note issued by the MoEF purporting to clarify
that the letter dated 11th March, 2003 was not
clearance under the CRZ notification 1991 nor no
objection certificate.
30m October.2010 The GOM, acting on the representation of MoEF
without application of mind issued directions to
MMRDA under Section 154 of the MRTP Act
directing MMRDA to revoke occupation certificate.
30ft October.2010(Saturday)
31"1October 2010(Sunday) BEST issued notice threatening
eiectricity supply within 24 hrs.
In the prompt compliance MMRDA revoked
occupation cerfificate without application of mind
and giving any hearing to Adarsh on the pretext of it
being bound under orders passed by the GOM
under S. 154 of the MRTP Act.
disconnect
2nd November 201.0 BEST disconnected the Electricity suppiy to the
building of Adarsh.
f lr# l
3.d November 2010 MCGM disconnects the water supply to the building
of Adarsh without grving the later an opportunity of
being heard.
3'd November 2010 MCZMA held a meeting inter alia to consider
purported violation of CRZ notification by Adarsh
and decided to refer the case on CRZ violation to
MoEF for further action.
9th November,2010
MCZMA referred the matter of alleged CRZ
violation to the MoEF by its letter of 9m November,
2010.
11th November,2070
NZCMA takes up the issue of violation of CRZ
notification by Adarsh out of turn and on the same
day recommends demolition of the building of
Adarsh
12th November,2010
Show cause notice issued by MoEF calling upon
Adarsh to furnish its reply within 15 days of the
receipt of notie.
24|fi November,2010
Since the show cause notice was received by Adarsh
orrly on 15ft December 2010, Adarsh sought time of
four weeks to grve comprehensive reply.
29'*. November,2010
MoEF granted only 7 days time to file reply.
6e December,1010 Adarsh renewed its request for inspection of
documents made on 29th November, 2010 and also
for hearing along with enclosures.
i . " - ' i t ' ' " * " ' i
iltr;'f l J
t",' , : l ' '
\,, d, r ' i .
, . , , ; '
15th December20't0
Adarsh filed its comprehensive reply to the show
cause notice without prejudice to its right to file
additional reply pursuant to inspection of
documents
28th December,2010
Hearing fixed by the MoEF. By letter dated L8th
December 2010 Adarsh requested for time for
hearing as counsels in Delhi were not available due
to High Court Supreme Court vacation. Upon such
requesf MoEF deferred the hearing by one day and
kept on 29ft December,2010.
27th. December,2010
Due to heavy fog situation in Delhi and delay in
flight etc. it was reported in all the newspaper,
Adarsh sought time for hearing in the L't week of
January,2011,
28tL December201.0
Hearing was {ixed on 4ft January,2011
The above sequence would clearly reveal the urgency with which the
MoEF and all other authorities have acted in the case of Adarsh pursuant
to media reports. It is of coulmon knowledge and understanding that
such stern measures infringmg fundamental rights of the members of
Adarsh were neither emergent nor not required.
3) A bare perusal of the minutes of meeting of the NCZMA would reveal that
the issue of violation of CRZ was not an agenda for its meeting to be held on
11ft November,2010, yet the Secretary Urban Development Departunen! the
2 t
Secretary Revenue Departnent Secretary MMRDA and Secretary BMC, from
the State were present at the said meeting. From the said minutes it is evident
that NCZMA rejected the contention of MCZMA that lltt MarclU 2003 letter
was incorrectly issued by the MoEF and had confirmed the validity and
correctness of the same.
4) It is further evident that NCZMA to come to the conclusion that there has
been a violation of CRZ notiFication relying solely on statements made by the
Secretary UDD and the Secretary Revenue Departnent without any
supporting documents or evidence. It is further evident that the statements
of the Secretary, UDD are contrary to record of the MMRDA and is also
factually incorrect vis a vis the utilization of FSI and ownership of the plot of
land allocated to Adarsh. The Secretary, UDD's, statement that'1..77 FSI has
fsgn ut'lizgd is contrary to the approved plans. It is nobody's case that the
actual utilization of FSI is in excess of the approved plals. Adarsh welcomes
a site inspection for the purpose of ascertaining the same. Similarly, the
statement relating to the land belonging to the BEST is totally contrary to the
record vu. and most iresponsible to say the least. The property card and the
allocation letter dated 5tt' Augusf 2005 by the Government of Maharashtra
clearly show the land belonging to GOM and was allotted/granted on
occupancy basis to Adarsh agairut payment of an amount of Rs. Rs.
6,'1,4,02,640/ - (Rupees Six Crores Fourteen Lakhs Two Thousand Six Hundred
& Forty only). Thus, Adarsh has paid an amount of Rs.16,33,22,292/-
(Rupees Sixteen Crores Thfuty Three Lakhs Twenty Two Thousand Two
Hundred & Ninety Two only) for the allocation of the total land admeasuring
. 6428.5 sq,,meters. It is also evident that the secretary, Revenue Department
who is not the Competent Authority to corrunent on either the environmental
5)
violafion or violation of FSI norrns has made statement in respect of said
issues which are acceptgd and acted upon by the NCZMA without seeking
any proof of the same.
It is further important to note that Competent Planning Authorities viz. the
MMRDA and MCGM were not called upon to give any clarification or say in
the matter though they were adequately represented in the meeting. It is
submitted that, the MMRDA had conducted a physical verification of the
construction before the issuance of Occupation Certificate dated 16ft
September 2010 and had penalized Adarsh to the tune of Rs.39,74, ?35/-
(Rupees thkt Nine Lakhs Seventy Four Thousand Two Hundred & Thirty
Five) for some minor variations. Adarsh has duly paid the said amount
thereby regularizing the variation and it was only pursuant such payment the
Occupation Certificate dated 16e September 2010 was granted by MMRDA.
The show cause notice which is based solely on the allegations and
recommendation of NCZMA arrived at because of the statements made by
the Secretary UDD, GOM and the Secretary Revenue Departmen! GOM is
therefore, misplaced.
7) Adequate cause has been shown by Adarsh to the said show cause notice. It
is therefore, submitted that the same be withdrawn with immediate effect.
6)
23
GoVERNMENT oF rvrArrrusrnrtra-- ff m *' tll / t f .ffif ' &f l \ , , " : , tn , l
Pi,, (p<od pos1 No.'l 'PB 2oeel10e5/ot{ ts4leel
- v U D - 1 2rt_- urbnn Development DepartmentMilnhalnva,Mruubqi.40O O32'Darc:,fl.?C)ctober, 2oo2'
' l 'o
'l'hc Sccretary,M inistrY ol' l lrtvirur t lt tt: tt l. &, lio tr:$ts,Paryavaran Bltavart, CGO courplcx,Intltri Road, Neu/ Dcllri 110OO1'
Ref:- Chlef promoter, Aderch CHB letter dated gla|2oo2
(coPY eneloredl
Sir,
The chief Pnrmoter, Adarsh CI-IS vide its lctter cited above, have
rcquested Govt. of Maharashtra to grant Govt, land for construction of
welfare and housing facility to serving and cx-sewicemen of Defence
sewices. Considerine th. oqoest o['ilrJsociety an<i gxistigg situaticn in
the srrrrounding area, the State Govt' had m{ifigd the sanctioned
Development Plan of Backbay Reclrunation area reducing the,wi{t! $Pqmt. wide rrad. to 18.40 mt. road and, proposes to allot. some land deleted
ft";;;-i" et-;i;.'b;i;ry subjr:ct-to MoEF, cRZ notilication dated
Lel2 l lee l .
T h e p l o t u n d e r r e G r e n c e i t r s i t u a t e d ' f u I . 4 ' w a l d o f M r r n i c i p a lcorporation of Gr. Mumbai and on the wcst side captain Pralrash Pethe
Marg.
AspertheCZMPfierRri l rarrMumbaiMunicipalCorporat ionareas a n c t i o n e d b y M O E F v i d e l e t t e r < l a t e d . 1 9 / 1 / 2 o o o , t h e l a n d r r n d e rrefcrence is situatccl i' QI3?-ll. catcgory and is iituatetl betwcen existing
Backbay Rcclasrati.n BES'il Bus'Dtpot anrd of existing ryad.- lfherlevelopment is permissible as pcr ilevelopme*t Control Regulation
prevailing as "o
1gl2l l9?1, 'l'Le infrastructure f,acilities such as
electricity, water supply, clrainage etc' are also is in existence'ltle land is
situatecl on tlre wesi siae or thi capt. prakash pethc Marg on wtich is
developm.c't for resitlential .r*,1 c.imrncrcial proposes is in existence'
Sub:tr Dggelopqent penmtsslon pn lsnd deleted 6Q'9Omt'
\le-1&14-.ln!-.-r.ge{f-o-.r--rppl{spJlC-PgrPp!e{:-PsB\ [ 6ellUl.te JL .A:{ersbse: oE ncg-& slelv'
t
25
. , ] ' i
t" tII
I
. - \ \ -
cons irlerins thel* fac f s t" :jl',: .::l.lr'iT,$:ii::t J :'s$ lI: "l l'o*'
;i;;;d the Adarsna Flousuts
'rlre rnocl ilication t" llf '':i:":l;"i'Jru1"'H' # ; * Y }qf #?:
ffi "t;ll"}iitaitl"'ln*iti:i"-.*t}"-i*iil'-#J;.'l:"':.$'ffi [
iTri"""'A trrat N QC- ftrr rlcvckrpt
of D.P'be issued'
Arl clocunrents such *'Tfif xllx' $eii:ilb1ff'l"fi;;r''*ashowing plot under refcretrce' n I r' '.]^*
i
Lr"witfr' '
Yours faithfullY'
tA ,olc-, 9dJ9
1n.v :-f.:: []Sl" r n e nr.
Dy. Secrctary toDncL Asabove'
Bunde
E**4,'$nm.ktF.No.J. tr AL J l 46t2002_tA tII
GOVERNMENT OF INDIAISTRY oF ENVIR.INMSNT rNn nonrsr.(IA_III Division) .,
-?tt%iHi:tLoclhi Roadq, wvtv€tvlm+j
#*/*_New p:rhi - ilo;o;
/ Dated 2nd Decemb er.2002.Sh ri P.\/-Deshm.ut<Jr,Dy. Seeretary,Govt.of Maharashtra,
Y:b* Deve I opment Departmcnr.vrantralaya, Mumbai 400032.
l !
' 'r'{ 'Subr Developriront Permission ou land cleleted.-60.g6 rnt.'To 1g,40 nrt. Roecid{ U L fJJ:::ilHLsf:$*dffi'llll'lu to vr, turarsh fo-originarr f l , r . . [
- Y5'r 'vq ' r -^)B' o i ' [ iE-J '
t-I*,"o<il| 'd^' This has' reference to youl letrer No. TpB 200gi10g5/cR l5{/gg ,laied 5not:tnher' ?002 regarding the-ibor'. ;i"a r"i:..i rr thc abovc lcrr"r i[ is i'rliuatcd' thar HrL and cRZ .uri,*oriruti"; ;ffi;.';ir., b.un ."i;;;.
. However, tlesame is not received by us' runnerlol-;..;+.*ed to send,the ptot uounaarysttpnr impnsed on the approrroa rtvioed c"t oiion lv{anagcruc't pja' uf GrpatvrMnmbai indicating the'p'ra'':nce.of authori"J ,t
""toe orload ( ,*irt"a prior.to19.2,9r) abutting t\e pioposed site o' the searvard side.
To.
fW ='\hr -l-\ ,1 fl
hr. F "q\ t' i- !-r --r
, ̂ ^ /.,19. ,trot'
--'----:-l q c r l
r l j i ta
- J Cotnn De)\z/cn /K(
. . _ L' ) ) t lc r5
Vgrils faitl-1ully,i ' i lN , . . J
Ca,k"tfrfr, --Jrrint Director
:-'FF& t v n l
l " r l t L
r l, \ \ !\.- \' !' t
?rtzo4t'/t 7 7I
tt'ntt qrd qz
itttt----€.t \
^ \l \ _
$tR.nln 4 ̂
I t* rr ciral
\lo at<{b c}q t ro\ a it|"f .4/Creriv 1t'.n ry-t' *t a, I' t^j 1),,f.--)nr(,n nn a'
#
o
To
trl
Encl: As above.
e-gm6;' u \s"u rtsnJm*
2#GOVERNME}TT OT IfiAIIARASHTRA
il:t"1l"?tlo p me n t D e p artm e n tMumbai 4OO 032.Date: {.. January, 2OO3.
The.Joint Director,tvrrnrstry of Envirr(IA-llI di"i"t"i"onment
& Forests
Paryavaran Bhavan, CGO Complex.Lodhi Road, New Dolhi rld6oi1.'^,
Sub:_ 3".":af:.-lt n"r*i*on andlaud detetet 6o.e6;Ti:iil1i-]rl-1 13"l t"".irTiltiar purpos e s.society.
t Vr' Adarsh co-op. HJ*rlg--"'
Ref:_ your letter No. F.No.J_11911 /46/2OO2_IA_[Idated 2"d December, 2002. -, ' -1 a!
Sir,
i"f"'-:;i:;r?:rat: requested to above cited subject. As desired follorving
i:1#i;il#;*ffi TlT,ff *TT:",:'ffi'n".,"JlTt!:'Tn j[:f
yours faithfulty, _..
/ tMrr ya6"flfi1nt.
Dy. Secretary to Government.
!c-
Vz rrtt - ty
(""*-U,^h,v\AI sl\J t^l' {-+tl^i ',"tq?- E_,rL; ^_-.1 l;?.
. mwE F
{*'{-Tr1M.
Effi FrTu'!- LJF.No.J. t7 aW 4 6 t2002_rA III
*,*,f il.#ff;*:*fro*,.gA-m Division)
paryavaran Bhavan,C.G.O. Complex, Lodhi Roaj
New Delhi _ I l0 003
oatea f ls
March,2003
€'}
T*26
t:tf"--
To,Shri p.V.Deshmuldh,Dy. Secretary,Govt.of Maharashtra,Urban Development Department,ivrantralaya, Mumbai 400032-
sub: Dcvelopment permission on rand.dercted 60.g6 mt. To 1g.40 mt .Road forrcsidantial purposcs' BBR Btocrr ii i to vI, Adarsh co-op.r"tire Housiug society.
sir,
'( * t( *
This has reference to your letter No. TpB 200g/10g5/cR-t54/ggruD 12, dared 4thJanuary' 2003 regarding tle.ut3..t *."ii*.0 "uou.. ar'pr.iiJi"r"*oion provided in theabove letter and the revised coastal z";;'il;;.gement plan of Greater Mumbai, it is noted thatthe proposed residential comptex i;[;t,iiilrrJc"*ii n *,";,;;""e-II area. rni. vrini.t,yhas .already delegated_ the'powers ;";il; concemed Siate Government for undertakingoevelopment in coastar Regulation zon"-Il.fcordingry,-rr,, pr-o"fred construction mav be.lH:ffi .*:ii:,i,:T3:*:fgl"""m*#f;";;:{{lS*dJ.ffiTt1rrom,ime,e,-ime)
Yours fai
(A. Senlhit Vct)Joint Director
'ffi* Flno *"ffi. r
Governnrent oI Maharashtra
ToThe Chief Engineer(Development plan).Brihanmumbai Municipal Corporarion,Fort, Mumbai.
^
Sir,
21o F{')
.t
' I
: l
I , i '
1fr.
No. TPB 2099 I rcgS / CR_ts4/99/UD_ 12Urban bevelopment Departmen II{antrathya, Mumbai_400 032.Dared : 15th March, 2003.
bSubject : Development permission on iand deleted60,96 mti. road for residentiaip"rp"rr, ngnHrock rrr to vr, Ad.;J;;;;; #J";"* society.
Reference, t) ro"flr.: |1l.i * TpB zoeeA 0esicR_154/e s ND _rzdated 10rh April, 2002.
2) yOlF letter No. FF No. J_7701t/46/2002 /1A IIIdated l1th March. 2003.
b
The Goverprnent in Urb"an De'elopment Department viae Notincadon No.TPB z'eetr'ss1cR_1s4let iAJ;;"_r;,l";,e.d
.10th April, 2002 sanctioned themodificarion to the Deve-rop-.oi pi; ;;M;.bai Backbay-n".ri"rio" area undersection 31 (z) ot'nr yyrt:1o" n-g,"""i* r1"" ti""ir"g er, ,nuu ,, regardschange in the width of rhe prakal p";; M"i{. ny ,rirtu, oitr,i modification, thewidrh of prakasrrpethrMarg was ,o"dtil';rs aa' ;;.- fd;;7 mhs. and inthe area so dereied. u, showo ." trr.- r"""mpanied plan of the Notification wasincluded partty in residential ,";: ;;;.;;lrouoo, Helipad and BEST Depot. Thematter was refe*ed to the.Ministry;ft;;;ent, Governm"n, oiirraiu as regardsmodification since it fats in qRzil ;;;:'il;., specifica'y noted in the Nodficationthat the developmenr of rand *i,ni"'i*.oi
^ry;:u..u ini-ii-ril* o" subject tothe conditions mentionedio cou.-tril"olorrooi., Ministry of.Environment andForests Norification No. so 114 cgi ;*ilgrh Februdry, 199i as modified from dmeto time' Accordingly, the refere#e ,;;;. ro the Government of India M.EFseekmg permission for.tlre^A;far.rr" cr*plii"using.society -.'"* *"* to have abuilding on the rand which falrs il ;##"I'zon. uid" cou.ro*roi rerrer rrated 4thJanuarv' 2003' The rrai"rrrv- oi E;;il;:l; and Foresrs have communicated rheirg-oujr"-[e to urro* it" i;ra *.ii.",iri'oru.ropo*ent since it fars within theuoasrar Reguration Zone Ii .*u *ti"r-l"irrl* ,rr. oor*, oiNoiiii"",ion dated 19rhFebruary' 1991 and any-.1{q19nts *;d. "ir."r"rn
made upto 21st Marthere appears therefor6l ng objectio-n Jg--eu;.the resiienii;i a;, #li' ,Iiil;Adarsha Co-op. Housing s;a#o" fi*;AIn.,uosa in r"r-i.i^Jn,tiin" as per the
t '3O
O, i
notificatibns sanctioned by the Government.^ The c.py of the letter dated M.EFdated 11tti March, 2003 is;r;i;r.J jHffi for reacry refercnce.
Yo)>*'l;"''''
frvlvryo1rffi"*l
Deputy Secretary to GovernmentCopy to :1) chicf pranner, Mumbai Metroporitan Region Dcveloprnent Authority, Mumbai2) The Executive Engineer c nrof. fifi"r";) , Municipar coqpbrarion of Gr.
. Mumbai, Byculla.
- 3) The Chairman, Adarsh!Co-op. Housing Society, Mumbai.
12-Mar-03
offir*b P 'r
The 2oth Meeting of the Nationai coastal zone ManagemcntAuthority (NCZMA) was held on 11th November,2olo in the Ministry ofEnvironment and Forests. The meeting was chaired by Shri vijai sharla,Chairpcrson, NCZMA and Secretary, MoEF.
The chairman welcomed the Members of the NCZMA to thc thirdmccting after its reconstitution. He stressed. that as decided in theprcvlous mcctings, a-rea wise reclassification proposals should bcconsidcrcd instead of individual separate proposalslor individual plots.
Aeenda rtem No. 1: confirmation of the minutes of the previousmeeting held on 2Z.OL.2OLO.
l'he minutes of the 19th meeting of NCZMa2010 wcre confirmed.
Aeenda rtem No. 2: Action Taken on the minutes of the previousmeeting.
- Dircctor (BB) informed that during the 19rh mecting of NCZMA, thcpcrf'rmanccs of thrce scZMAs ner-mely Rndhra pradesh, Maharashtra and'l'amil Nadu werc reviewed. perfo.*.rr". of the remaining scZMAs wouldbc rcvicwcd in the next meetings of NCZMA. He {urther informcd that allthc rcclassification prclposals were referred back to thc conccrncdscZMAs Lo submit the area wise proposars, instcad of individualproposais for individual plots. The proposals should also includc thcground truthing report/sitc verification, justification for reclassificaLion,dctails of violations, court cases, if any, and conformity with othcr rurcsand regulations along with recommcndations of scZMA, etc.
'l 'hc suggcstions given by the members in the rasl meeting regardingrcclassilication proposals, monitoring of the coastal areas with respcct tothe implcmentation of cRZ Notification 1991 and the directions issucd. bythc Ministry from time to time shourd arso be looked into, while revicwingthc functioning of the scZMAs and reclassification proposals.
Aeenda item No. 3. Issues/reclassiJication proposals received fromSCZMA's.
held on 22"c lJanuarv.
It was inlormed that thcre are about 9 recrassification proposalsrcccivcd through MCZMA from Maharashtra and most of thcm arc.individual proposals, except the reclassification and revision pr'posal ofPanvcl arca. The Authority decidcd to take up only the rccrassificalio.
3tu
anq _r9:Lsion proposar of panver area. The other proposals were dcferrcdand MCZMA was advised to re-examine the remarnini proposals on ,,arca,,
basis and re-submit them after ground truthing/verification andjustification etc.
3'1 Reclassification of c".z areas in panvel, Navi Mumbai,Maharashtra
Member secretar5r, MczMA made a presentation and informed thatthe CZMP of Maharasrrtra was approved by MoEF in 1996 emd as pcr itscondition, czMP of Navi Mumbai was sent to MoEF for approval in r99u.However it was not approved. The czMp has now been prepared. on thcscale of r: 4000 through the Institute of Remote Sensing (IRS), Annauniversity, one of the authorized agencies. As per the map, trre cRZ I(i)area has been increased from 46g.-59 ha to osz.zz ha (10. 15,,/ol, cRZ Irarca has been increased from 105.04 ha to 13g.3s t". Jr.sz%) and cRZ _III has been reduced from 12.22 ha to 9.g2 ha. (o.zzi. *re total area isincreased from 161s ha to 1169.21 ha. This is due to increase in thc arcaof mangroves, water body. rhe earlier czMp was on the scate of 1: 25,ooowhere as the presentplan is on the scale of 1;4o00.
It was suggested that HTL at a particurar point has not bccnconnected in the map zrnd so the cRZ bound"ry *rroi.,rJ be drawn by arcmethod instead of drawing parallel line to HTL.
\fter d'eriberations, the Authoritg noted, th",t because ofre'fi'nernent in the sccrle and. ground. tnttiing, th.ere-utur arwags be apossibilitg of increase/deciease in tne 6nz anee"s, hence theAuthoritg recorrrmertd.ed. the a.pproaar of the revised. czWp of panuerarea' with the condition nit necessary corrections sho., beineorporated white transferring the HTL onlietd..
Agenda ltem No'4: Any other item with the permission of theChairman
4.1 Adarsh Cooperative Housing Society, Mumbai
I' Permission was sought from t,'e chairman to table the mattcrrelating to erection of a structu.",ly.AdarJ cooperative Housingsociety, colaba, Mumbai matter which is a serious vioration o[ thccRZ Notification, 1991. The chairman elicited trrc opinion of all thcMembers and thereafter permitted the takinj "p "r,r-r"
mattcr.
II' The Authority was informed regarding the issues relating to thcabove violation. The chairperson, Maharashtra coastal Z'nc ,Management Authority (MczMA) who is J";- Lhe secrcLary, f,,Environment Department, the principal -S-."r",r.U,
Urban .n\ |Development Department, the principal s.".l,ls,'' -JJ:: -h
{
a33
Dcpartmcnt as arso secrctaries from MMRDA and BMC wereavailable to assist tJ.e Authority. -
Thc chairman requested chairperson, MC,MA to bricf thcAuthority regarding the matter "rrd
th" action taken so far. Thechairpcrson, MCZMA informed that the said structure (building) ofM/.s Adarsh cooperative Housing society had been constructed inviolation of cRZ Notification, r95r-, since no permission had beenobtained under the cRZ Notification 1991 irom the competcntAuthority nor did MSCZMA ever consid.er this project. Further, thesaid structure had viorated cRZ norms by utilizing highcr Floorspace Indcx (FSI) than- that stipurated in the ciz notiricarion,199 1' shc also informed that based on a complaint rcceived fromthe Nationar A'iance. of people's Movement a direction undcrSection 5 has been issued on 3,d November, 2009. Laslly, thcchairperson, MCZMA explained that the concrusion of the DeputySecretar5r, Urban ?::"J:t*"nt Deparlment, to the effect that theMopF lctter of 111312003 amount"o to . "No objection certificate,,to the project, was clearly wrong.
The position with regard to the amendment to the cRZ Notification,1991 dated 21"r May, 2002, because of which MSCZMA thoughtthat thc powers for clearance of housing project werc vcstcd inYIoEF during March 2003, was discussed. rt was clarifi"J trr"t as onI I th March, 2oo3 the amendment of MoEF dated g,i,-Jury, 1997 wasin voguc, which dclegated the power to the state Government andAuthorirics for according clearances to *; t;i;,=-i,rrl", rhe cRZNotification. Hcnce the Ministry's retter of 11.03.2003 is in ordcr.
I I I
IV .
The chairman invited Shri T. c. Benjamin, principar sccrctary,Urban Dcveropment Departmcnt to brief irrc aulirority. shri3:.:r"1T:":11:f:l
rh3Lr the, land area for edarsh coopcrativeFlousing society (thc Society) in BBR Block, *;.u "#:.::11;;375|.82mts2 was fenced
"..rd'*a* in ohwsical nncir- i^- ^r {. tr_^ r^_,.r
\ / . e\ r .u4r 'LD- was rencect and r i l , Ias in physiCal
!ritl_tary 4utlotron of the-rr"a-mmffi bi;"ii";;,i,'".T'iJi9iJ.,;"ilL""rJti."T,,"#ff;
l:T:j j:::",:i:1,"1?"1:,,"" ̂ !n latf .r"rr"",y,- zoij^,n" RcvcnueDepartment issued a. Letter of Intenl in which one of .n"':;il;;::imposed was to obtain the requisite clearance of MoEF. However, itis clear from records that thii clearance has not been obtained bythe society from MoEF or from the MGZMA. rnitially in 2000 thchousing project was meant for nineteen civilia' ,rr"*d".* and thirtyonc Defence members- In 2004 it was increased to seventy oncmcmbers and in 2005 addrtional twenty nine were added thcrcbylinally the membership became one hundred two members. Thebuilding has been provided electricity, watcr artcr--occupationccrtificate issued by MMRDA. shri Benjamin clarified Lhat thcproposal by UD Departmentin 2oo2/2o0c sent to trr" lvtirri"try wasfor the change of land use a'd ,io propo"al pbrtaining to thc
sq
ho-using project of thc society was ever scnt to MoEF. r{c alsoinformed that for reckoning FSI, the said plot of the socicryincluded a revenue plot and lt"o a'ptohad been in".."*.a by adding ",' ffirlff.t;tlon today the FSI utilized was 1.27
"g.irr"fTh#-nii.as, whicrris another violation of the coastar Regulation Zone Notification,1991, which cannot be rectified.
V I . The chairman requested shri Kunte, principal secretary, RevcnucJDcvelopment Department, Government of Maharashtra';;iln;trstate his views- shri Kunte also clarified that thc f..*t*,""''ii tchange of land use. was sought by the UD Department vidc theirlctter dated lodr April, 2oo:2. Hl **a l]rat there was a crcarmisintcrpretation of the response given by MoEF datcd rlrh March,2oo3 by the Deputy secretary, iJ.ban Development DcpartmcnLsrnce- this response clearry stated that the proposed construclionmay be taken up as per the Coastal Regulaiion Zonc Notiiication,1991, which meant that the propo"J could be placca bclorcMCZMA which at that point of tirn.^r,"a all the powcrs to sanclionthe.constructions projects in the Coastal Regulation Zonc.l-lc saidthat when the Society approached
!h" planning Authority
lB^Y9iyMRDA) for permission for the buildings i,-, toot, 2oor and2008 this aspect of getting the cRZ .t""r"t.Jfrom MCZMA/MoF)Irwas overlookcd- He concluded that building oi sociel had thcfollowing serious lacunae:-
(r) Permission jf tlg competent Authority undcr trrc coastarRegulation Zonc Notifi."iion had not Ueen tat .n.
(ii) The FSI alrowed for the building exceeded the prescribcd FSIlor development in the CRZ.
vll ' After the above submissions* made by chairperson, MCZMA,Secretar5r, Urban Development Departmrrrt r,'a Se,t."t"ry, Revenuc,Government of Mahar""ir.tr", the Authority deribcrated on thc casc.It was noted that this is a case of clear viotauon ni,rr" E(p) Act andthe cRZ regurations thereunder by the society on two counts,namely, by not obtaining prior permission ,r'.ra.. the coasta-rRegulation Zone- Notificatio*n,- 1991 from th. ;o;;;rned Authoritiesand r,.e use of higher FSr (1-27 against itii; in vicw of _rhcadditionat F qfqr"l,ylt!_glgrn@*i@_giq?!" rhcase involved violatron ol Lhe normsof Defence and security, service
3I:u, p.op.i"iy, providing Lru<:information of various factuar data incruding income etc., and whircthcre may be some dispute about original o-wnership/p.sscssion ofthc plot, the NCZMA was conccrned only with thc compliancc undcrthc E(P) Act and cRZ Notification thereunder, which is iLs basi<:
amandatc. Accordingly, there was no option other than to ,"*,ili::i:'j:ll:^i1,1y,.1.:zed 3jrugtures constructed in viotation of
gsthe coastal Reguration zone No.fri."tiotr, r.991 und.er ,h"'f,iilr:i";i.I the E(P) Act. It was arso observed that keeping this case in mindthe state coastal Zone-Management Authority needed to be moreproactive and vigilant ab.out C-RZ implementat-ion
"rral.rrr.rrce theinter-Departmental coordination with utmost transparency to avoidsuch incidents in furure.
The Nationo.r coq.star zone Management Authoritg fert that thisr,q's q' bratant' ccse o.f uioration of cRZ Notificitron, L997 .,nd.recomnrefrded that the unauthorized, stntcture ii-i^or"d, fram cRZ,i;T;:r"rels und.er .the
prouision o.f E;;;;;;"t-'lerotectionJ Act,
The Authoritg also directed, thottManagement Authorities should beneed. to be more proaetiue in futureAreas and guid.ed bg the Miiistryregard..
4.2 Other Items:
Dr M. Baba suggested that t,.e.implication of the word ..Authority,,in thc cRZ existing Notification could te made cleare. in view of thcvericty of stakeholde_rs and hence, this aspect may L" i"t"r, carc in thepnrposcd cRZ Notiflcation, 2010. prof. Ramactr"anaran said that thcsuggcstions o[ thc NczMA Members on thc draft cRZ , 2070 courd betakcn into account
!y the Nlinistry. chairmar, ,.qr"*i"d ail thc mcmbcrs:lr: N9ZMA to give their specific suggestio.r" ,.itt'egaro ro thc draltCRZ Noti{ication 2010 at the earliest.
The meeting ended with a vote of thanks to the Cnair.af
411
o.ll Stgl;e / Uf Coastcl Zonesuitablg requested ahout theto guard the fragite Cocestql
about action desired. in this
Lt_s1_St pe{tqrpanlg_
1- Shri Vijai Sharma, SecretarSr,Ministry of Environment and Forests.Govt. of India, New Delhi.
Prof. S. Ramachandran,Former Vice Cherncellor, Universiw ofChcpauk, Chcnnai - 600 OOS.
Dr. M. Baba,Centre for Earth Science Studies.Akkulam, Thiruvananthapuram_6S SOS t
Dr. A. Chabuey, Scientist,National Institute of Oceerrography,Goa.
Tmt B. Meena Kumari,Dcputy Director General(Fisheries),Ministry of Agriculture,New Delhi.
Dr. R.P. MathurRegional Dircctor,Central Ground Water Board.Ncw Dclhi.
36
20tb MEETING OF THE
MoEF Officials:
Shri J.M. Mausker,Addl. Sccretary,Ministry of Environment and Forests_Govt- o[ India, New Delhi.
Dr. Nalini Bhat,Adviser,Ministry of Environment and ForestsGovt. of India, New Delhi.
Shri Bharat Bhushan.Director ,
2 .
. f .
4 .
q
6 .
9 .
1 0 .
1 l
Chairman
- McmberMadras,
Anggxulg:I
Membcr !
Mcmber
Rcprcscntativc
Reprcse nLativr:
o" a@- w t
Y/ 3z1 2 .
13 .
'I \
r6 .
Ministry of Environment and Forests,Govt. of India, New Delhi.
Dr. A Senthil Vel,Additional Director,Ministry of Environment and Forests,Govt. of India, New Delhi.
Shri E. Thirunavukkarasu, Dy. Director,Ministry of Environment and. Forests,Govt. of India, New Delhi.
1 4 .
Special Invitees:
t 7 .
Mr. T.C Benjamin, principal Secretarv.Urban Development Department,Govt. of Maharashtra
Mr. Sitaraman Kunte,Principal Secretary,Revenue Department,Govt. of Maharashtra.
Smt. Valsa Nair,Secretary, Environment Department,Govt. of Maharashtra andChairman, MCZMA.
Dr. B.N. Pat i l ,Member Secretary, MCZMA,(]ovt. of Maharashtra.
e&
Anocpoqs*'* &*
RESPONSE TO OUESTIONNAIRE 1 TO 13 AS HANDED OVER DURING
HEARING ON 4TH TANUARY 2011-
L. Clearance under CRZ notification 1..99L?
Ans: At the outset Adarsh submits that the 1991 Notification is not applicable to
Adarsh society as it is not within the meaning of industries, operations or
processes. However without prejudice to the above legal submission, assuming the
1991 Notification (as amended from time to time) is applicable to Adarsh then in
that case a letter issued by the Urban Development Departrnent (UDD),
Government of Maharashtra on 15e March 2003 read along with the series of
preceding communications exchanged between the UDD and MoEF is a CRZ
clearance given to Adarsh as contemplated under 1991 Notification. The same has
been explained in detail in the written submissions.
Recommendations of MCZMA as per viii of the constitution of MCZMA?
During the period L997 to 2003, the PP should have obtained clearance from
State Authorify after being recommended by MCZMA.( as per viii of the
constitution of MCZMA, all proposals in CRZ shall be examined and
recommended to the Central Government or the agencies who have
entrusted to clear such projects under CRZ notification, 1991)
2.
3.
sq
Ans. In 1998, in exercise of powers conferred by sub-sections (1) and (3) of
Section 3 of the Environment (Protection) Act 1986, the Central Government
constituted the Maharashtra Coastal Zone Management Authority (MCZMA ) by
an order to carry out the functions as more particularly set out in its order bearing
No.SO1003(E) dated 26h November,1998. One of such functions being to enquire
into cases of alleged violation of the provisions of Environment Protection Act and
the Rules made there under or under any other laws for the time being in force
which would be relatable to the objects of the Environmental Protection Act and if
found necessary in a specific case, to issue direction/s under section 5 of the
Environmental Protection Act in so far as such directions were not inconsistent
with any direction issued in that specific case by National Coastal Zone
Management Authority (NCZMA) or by the Central Government. The said order
was subsequently modified by another order dated 4ft January, 2002, where (II),
(IIa) was modified.,".| "
At the relevant point of time i.e. in 2000 when ADARSH made an application for
allobnent of land to GOM, the procedure relating to clearance of activities for the
purpose of the Environmental Protection Act was governed by the 'l,9g7
notification. The said notification provided for a clearance by the State Authority.
In any event MOEF in its SCN also admits that the powers to accord clearance to
activities involving investrnents of more than Rs.5 crores were delegated to the
"state Authorities". The same is also admitted in the minutes of the meeting of
ffin
NCZMA and extract of which has been supplied along with show cause notice as
also the Press Note released by the MOEF on 28tr October, 20L0. Thus, clearance
accorded by the Urban Departrnent of GOM vide its letter dated 15e March, 2003
and thereafter by the MMRDA whilst issuing cofiunencement certificates from
time to time and subsequent Occupation Certificate dated 16d" September 2010
cannot be faulted with especiaily on the ground that the construction of the
residential building of Adarsh did not have a clearance under the Environment
Protection Act as contemplated by the 1997 notthcation. It was a routine practice
that such CRZ clearances were granted at State UDD levef without referring to
MCZMA, in between 1997 to 2003. Such practice may be confirmed from the State
Government and also from the Minutes of MCZMA meeting in between 1997 to
2003.
Adarsh is not in a position to comment upon the process and the procedure
followed by the State Government before granting the clearance under the 1991
Notification. Adarsh is therefore not in a position to respond to the question
relating to the }dCZ}l4.Z recommendation.Adarsh has had no occasion to examine
the basis and parameters considered by the UDD for the purposes of granting
clearance.
4. Date of commencement of construction work?
Ans. As per the records available the fust Commencement Certiticate was granted
by MMRDA on 6ft September 2005 and the work commenced on the same dav and
. r i l
':ril
o
the work commenced immediately thereafter. A copy of the Commencement
Certificate dated 6ft September 2005 alongwith with the approved plans is
annexed to the Compilation at Annexwe " A-12" at relevant page 138. The other
Commencement Certificates as well as the approval plans are a part of the
Compilation tendered on 4tr January 2011.
5. Cleaiance under EIA-2006? Construction above 20000 sq ft requires EC under
EIA-2006?
Ans. There appears to be typographical error in the Question. The threshold limit
prescribed in the schedule under EIA- 2006 for Environmental Clearance is 20000
sq. mtrs and not 20000 sq ft.
As per the approved plans and site conditions, and as per the detailed calculations,
it is ensured that the total built area is less than 20000 sq mtrs and hence do not
attract provisions of EIA Notification-2006. A copy of the approved plans is
annexed to the compilation submitted at the time of hearing on 4ft January 2011.
6, Clearances obtained from State Government departments including approval
of high rise committee?
Ans. High rise Comrnittee headed by the Ex-Chief Justice of Madras High Cour!
was constituted in 2004 (i.e. much after 19/2/1991). F{ence, as per the stand taken
by MoEF, the proposals do not attract High rise committee approval. However,
without prejudice to the above submission clearance was given by the High Rise
Committee on 1st September 2007 and the same is confirmed by MCGM on 20ft
October 2009. However furtler details of which will be available with the Planning
Authority i.e MMRDA.
7. Details of FSI permissible as per DCR 1967?
Ans. FSI permissible as per DCR1967 is 3.5. The copy of the DCR1967 is annexed
to the compilation at Annexure " A-13" at page 158.
8. FSI calculations as per DCR 7967?
Ans. FSI calculations are given in the approved plans of MMRDA armexed in the
compilation submitted at the time of hearing on 4ft January 2011. Remarks about
the same may be obtained from the planning authority i.e MMRDA. In case the
Ministry desires any further documents in this regard the Society is ready and
willing to co-operate for the salne.
9. Details of plot area, construction area, FSI as per the approval and acfual?
Ans. Plot area is given in approved plans as well as in Property Cards. FSI is also
reflected in approved plans. Total constructed Erea can be computed from
approved plans. All these documents are annexed to the compilation submitted at
the time of hearing.
o
10. Defence Clearance if any with respect to security angle?
Ans. As per the Works of Defence Act, 1903 whenever it appears to the Central
Government that it is necessary to impose restriction upon the use and enjoyment
of land in the vicinity of any work of Defence or of any site intended to be used or
required for any such work, in order that such land may be kept free from
buildings and other destruction, a declaration shall be made by Secretary of such
Government and published in the official gazette under "works of Defence Ac!
1903' . No such act has been done in this case.
Further, there are colonies of residential units occupied by thousands of civilians
known as Ganesh Murti Nagar and Geeta Nagar, which are adjacent to the
Defence boundary, further the buildings Oyster and Dolphin are also located in
the Defence area and just next to the Adarsh society, there is a colony of more than
10000 inhabitants which appears to have been censused. There are places of
worship within the Defence area, which are regr:larly visited by civilians.
Without prejudice to above the aspect of Security and issues related thereto may
not be considered by the MOEF to decide the issue of the 2 alleged violations
under the Environment Protection Act as they are being separately agitated in the
writ petition filed by Adarsh and are not germane to the show cause notice. The
GOM has also never raised the issue of security threat till date.
o
11. Permission from MMRDA for the building exceeding FSI of 1.33 as per the
Notification of BMRA act,1974, dated 10ft june, L977,extend,ed on Str October
1989 which has validify upto 10th October, L9917
Ans. As per the approved plans FSI consumed is only 1.32. As per the above
referred notifica€on, MMRDA can allow FSI exceeding1,.33, upto cap of 3.5 which
is permissible as per DCRs of 1967. Thus the upper limit of FSI is not altered, but
only prior permission from MMRDA is envisaged. Hence even if it is assumed that
FSI exceeds 1.33, due to adopting different methodology of computation of FSI, the
28 storied building as constructed on site is approved by MMRDA. Hence the FSI
as Per any methodology of computations of the constructed building is as per
DCRs of 1967, r:ntil it is within limit of 3.5, as the condition of approval from
MMRDA is satisfied.
12. Details of local rules applicable with their compliances?
Ans. The local rules applicable to Adarsh society are as follows:-
a) The MMRDA Act,1974 and the rules made thereunder
b) The Development Control Regulation for Greater Mumbai, L991
c) The Development Control Regulation for Greater Mumbai, 1962
d) The Mumbai Municipal Corporation Act, 1888 and rules, bye-laws
made thereunder.
e) The Maharashtra Regional and Town Planning Act,1966.
o
0 The Maharashtra Land Revenue Code, 1960 and the rules made
thereunder.
It is further submitted that, the Adarsh society has complied with all the local
rules and regulation and accordingly the Planning Authority i.e MMRDA was
pleased to grant Occupation Certificate dated 1619 September 2010, which itself
is an herculean task.
13. Are there any conditions stipulated wrt environmental protection in any
clearance /permission?
Ans. All the clearances/permissions are submitted with the Ministry, and on a
careful perusal of the same, none of the permissions/clearances granted to Adarsh
society contemplate arrd/ or prescribe arLy conditions with respect to
environmental protection.
Adarsh society has submitted all the permissions/clearances/documents requested
by the Ministry from time to time and is also ready and willing to co-operate with the
Ministry in case Ministry desires any further information/documenb/permissions for
the purposes of deciding the Show Cause Notice or even otherwise.
o-Ministry of Environment and Forests.Govt. of India, New Delhi.
Dr. A Senthil Vel.Additional Director,Ministry of Environment and Forests.Govt. of India, New Delhi.
Shri E. Thirunavukkarasu, Dy. Director,Ministry of Environment and Forests.Govt. of India, New Delhi.
3T1 n
'I 2
t 4 .
1 5 .
l o .
T 7 ,
Special Invitees:
Mr. T.C Benjamin, Principal Secretary,Urban Development Department,Govt. of Maharashtra
Mr. Sitaraman Kunte,Principal Secretary,Revenue Department,Govt. of Maharashtra.
Smt. Valsa Nair,Secretary, Environment Department,(lovt. of Maharashtra andChairman, MCZMA.
Dr. B.N. Patil,Member Secretar5r, MCZMA,Govt. of Maharashtra.
Anowqy% * **
RESPONSE TO OUESTIONNAIRE 1 TO 13 AS HANDED OVER DURING
HEARTNG ON 4TH IANUARY 201-1.
1. Clearance under CRZ notification L99L?
Ans: At the outset Adarsh submits that, the 1991 Notification is not applicable to
Adarsh society as it is not within the meaning of industries, operations or
processes. Flowever without prejudice to the above legal submission, assuming the
1991 Notification (as amended from time to time) is applicable to Adarsh then in
that case a letter issued by the Urban Development Department (UDD),
Government of Maharashtra on l"5e March 2003 read along with the series of
preceding communications exchanged between the UDD and MoEF is a CRZ
clearance given to Adarsh as contemplated r:nder 1991 Notification. The same has
been explained in detail in the written submissions.
Recommendations of MCZMA as per viii of the constitution of MCZMA?
During the period L997 to 2003, the PP should have obtained clearance from
State Authority after being recommended by MCZMA.( as per viii of the
constitution of MCZMA, all proposals in CRZ shall be examined and
recommended to the Central Government or the agencies who have
entrusted to clear such proiects under CRZ notification, L991)
2.
3.
Ans. In 1998, in exercise of powers conferred by sub-sections (1) and (3) of
Section 3 of the Environment (Protection) Act 1985, the Central Government
constituted the Maharashtra Coastal Zone Management Authority (MCZMA ) by
an order to carry out the functions as more particularly set out in its order bearing
No.SO1003(E) dated 26e November,1998. One of such functions being to enquire
into cases of alleged violation of the provisions of Environment Protection Act and
the Rules made there under or under any other laws for the time being in force
which would be relatable to the objects of the Environmental Protection Act and if
found necessary in a specific case, to issue direction/s under section 5 of the
Environmental Protection Act in so far as such directions were not inconsistent
with any direction issued in that specific case by National Coastal Zone
Management Authority (NCZMA) or by the Central Government. The said order
was subsequently modified by another order dated 4*'Januarp 2002, where (II),
(IIa) was modified.i
" 4'"i:
'r" '
'
.,, ,,
At the relevant point of time i.e. in 2000 when ADARSH made an application for
allotrnent of land to GOM, the procedure relating to clearance of activities for the
purpose of the Environmental Protection Act was governed by the 1997
notification. The said notification provided for a clearance by the State Authority.
In any event MOEF in its SCN also admits that the powers to accord clearance to
activities involving investrnents of more than Rs.5 crores were delegated to the
"State Authorities". The same is also admitted in the minutes of the meeting of
NCZMA and extact of which has been supplied along with show cause notice as
also the Press Note released by the MOEF on 28th October, 2010. Thus, clearance
accorded by the Urban Departrnent of GOM vide its letter dated 15tr March, 2003
and thereafter by the MMRDA whilst issuing commencement certificates from
time to time and subsequent Occupation Certificate dated 16th September 2010
cannot be faulted with especially on the ground that the construction of the
residential building of Adarsh did not have a clearance under the Environment
Protection Act as contemplated by the 1997 notification. It was a routine practice
that such CRZ clearances were granted at State UDD level, without referring to
MCZMA, in between 1997 to 2003. Such practice may be confumed from the State
Government and also from the Minutes of MCZMA meeting in between 1997 to
2003.
Adarsh is not in a position to comment upon the process and the procedure
followed by the State Government before granting the clearance under the 1991
Notification. Adarsh is therefore not in a position to respond to the question
relating to the MCZMZ recommendation.Adarsh has had no occasion to examine
the basis and parameters considered by the UDD for the purposes of granting
clearance.
4. Date of commencement of construction work?
Ans. As per the records available the first Commencement Certificate was granted
by MMRDA on 6ft September 2005 and the work commenced on the same dav and
&.a
{q
'r {l
the work commenced immediately thereafter. A copy of the Commencement
Certificate dated 6ft September 2005 alongwith with approved plans is
annexed to the Compilation at Annexute " A-12" at relevant page 138. The other
Commencement Certificates as well as the approval plans are a part of the
Compilation tendered on 4tr January 2011.
5. Clearance under EIA-2005? Construction above 20000 sq ft requires EC under
EIA-2006?
Ans. There appears to be typographicai error in the Question. The threshold limit
prescribed in the schedule under EIA- 2006 for Environmental Clearance is 20000
sq. mtrs and not 20000 sq ft.
As per the approved plans and site conditions, and as per the detailed calculations,
it is ensured that the total built area is less than 20000 sq mtrs and hence do not
attract provisions of EIA Notification-2006. A copy of the approved plans is
annexed to the compilation submitted at the time of hearing on 4ff Jmruary 2011,.
6. Clearances obtained from State Government departments including approval
of high rise committee?
Ans. High rise Com:rrittee headed by the Ex-Chief Justice of Madras High Court,
was constituted in 2004 (i.e. much after 19/211991). Hence, as per the stand taken
by MoEF, the proposals do not attract High rise committee approval. However,
of
the
(s:u^' t"{4e
without prejudice to the above submission clearance was given by the High Rise
Committee on 1't September 2A07 and the same is confirmed by MCGM on 20ft
October 2009. However further details of which will be available with the Plarrning
Authority i.e MMRDA.
7. Details of FSI permissible as per DCR 1967?
Ans. FSI permissible as per DCR 1957 is 3.5. The copy of the DCR1967 is annexed
to the compilation at Arurexure " A-13" at page L68.
8. FSI calculations as per DCR 1967?
Ans. FSI calculations are given in the approved plans of MMRDA annexed in the
compilation submitted at the time of hearing on 4ft ]anuary 2011. Remarks about
the same may be obtained from the planning authority i.e MMRDA. In case the
Ministry desires any further documents in this regard the Society is ready and
willing to co-operate for the s€une.
9. Details of plot area, construction area, FSI as per the approval and actual?
Ans. Plot area is given in approved plans as well as in Property Cards. FSI is also
reflected in approved plans. Total constructed area can be computed from
approved plans. All these documents are annexed to the compilation submitted at
the time of hearing.
10. Defence Clearance if any with respect to security angle?
Ans. As per the Works of Defence Act, 1903 whenever it appears to the Central
Government that it is necessary to impose restriction upon the use and enjoyment
of land in the vicinity of any work of Defence or of any site intended to be used or
required for any such work, in order that such land may be kept free from
buildings and other destructiorL a declaration shall be made by Secretary of such
Government and published in the official gazette under "Works of Defence Act,
1903' . No such act has been done in this case.
Further, there are colonies of residential units occupied by thousands of civilians
known as Ganesh Murti Nagar and Geeta Nagar, which are adjacent to the
Defence boundary, further the buildings Oyster and Dolphin are also located in
the Defence area and just next to the Adarsh society, there is a colony of more than
10000 inhabitants which appears to have been censused. There are places of
worship within the Defence area, which are regularly visited by civilians.
Without prejudice to above the aspect of Security and issues related thereto may
not be considered by the MOEF to decide the issue of the 2 alleged violations
under the Environment Protection Act as they are being separately agitated in the
writ petition filed by Adarsh and are not germane to the show cause notice. The
GOM has also never raised the issue of security threat till date.
1L. Permission from MMRDA for the building exceeding FSI of l-.33 as per the
Notification of BMRA act,1974, dated 10th ]une, L977,extended on Str October
1989 which has validify upto 10ttt October, L99L?
Ans. As per the approved plans FSI consumed is only 1.32. As per the above
referred notification, MMRDA can allow FSI exceedingL.33, upto cap of 3.5 which
is permissible as per DCRs of 1967. Thus the upper limit of FSI is not altered, but
only prior permission from MMRDA is envisaged. Hence even if it is assumed that
FSI exceeds 1..33, due to adopting different methodology of computation of FSI, the
28 storied building as constructed on site is approved by MMRDA. Hence the FSI
as per any methodology of computations of the constructed building is as per
DCRs of 1967, until it is within limit of 3.5, as the condition of approval from
MMRDA is satisfied.
12. Details of local rules applicable with their compliances?
Ans. The local rules applicable to Adarsh society are as follows:-
a) The MMRDA Act,1974 and the rules made thereunder
b) The Development Control Regulation for Greater Mumbai, L99L
c) The Development Control Regulation for Greater Mumbai,1967
d) The Mumbai Municipal Corporation Act, 1888 and rules, bye-laws
made thereunder.
e) The Maharashtra Regional and Town Planning Act,1966.
0 The Maharashtra Land Revenue Code, 1"960 and the rules made
thereunder.
It is further submitted that, the Adarsh society has complied with all the local
rules and regulation and accordingly the Planning Authority i.e MMRDA was
pleased to grant Occupation Certificate dated 1619 September 2010, which itself
is an herculean task.
l-3. Are there any conditions stipulated wrt environmental protection in any
clearance /permission?
Ans. A11 the clearances/permissions are submitted with the Ministry, and on a
careful perusal of the same, none of the permissions/clearances granted to Adarsh
society contemplate and/or prescribe any conditions with respect to
environmental protection.
Adarsh society has submitted all the permissions/clearances/documents requested
by the Ministry from time to time and is also ready and willing to co-operate with the
Ministry in case Ministry desires any further information/documenb/permissions for
the purposes of deciding the Show Cause Notice or even otherwise.
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