JUDGMENT

1. This appeal has been preferred challenging the order dated 19.09.2016 passed by respondent No.2 – Principal Secretary, Environment Department, Govt. of Maharashtra, whereby the proposed directions under Section 5 of the Environment (Protection) Act, 1986 read with EIA Notification dated 14.09.2006 have been withdrawn holding that the project in question does not require Environmental Clearance (EC) under the provisions of EIA Notification dated 07.07.2004 and that there was no case of violation under the Environment (Protection) Act as well as EIA Notification 2006 and directed to obtain EC from the Competent Authority for any new/further construction to be carried out at site in question.

2. The facts of this case, in brief, are that the appellant, who is resident of Andheri area of Mumbai and is close resident of the site where the construction project in question is located. The construction at Kandivali (East), Mumbai on about 200 acres of land is being done without Environmental Clearance (EC), which area is popularly known as Lokhandwala Township in Kandivali (East), Mumbai. It is being constructed in a massive area of about 5 lakh sq.mtrs. on a layout which shares its boundary with the highly eco-sensitive Sanjay Gandhi National Park. A report of the Municipal Corporation of Greater Mumbai (MCGM) dated 07.04.2016 states that fresh FSI area sanctioned from the cut-off date of 07.07.2004 of the EIA Notification, 1994 upto 14.09.2006 came into force is 1.41 lakh sq.mtrs. Further it is mentioned that fresh FSI area sanctioned from the cut-off date 14.09.2006 i.e. after EIA Notification 2006 came into force is 1.49 lakh sq.mtrs. Therefore, total FSI area constructed after the cut-off dates without EC stands at 2.90 lakh sq.mtrs.

3. The report of the Architect of the Project Proponent dated 25.04.2016 (Annexure-A2) states that fresh Built-up Area (BUA) (i.e. FSI plus Non-FSI area) sanctioned from the cut-off date 07.07.2004 upto 14.09.2006 stands at 2.16 lakh sq.mtrs while the fresh BUA (i.e. FSI plus Non-FSI area) constructed from the cut-off date 14.09.2006 stands at 2.55 lakh sq.mtrs. Therefore, the total area shown in the Architect’s report is 4.71 lakh sq.mtrs. Despite above, the Member Secretary of the SEIAA – respondent No.3 usurping the statutory authority of the 3- Member SEIAA and purportedly assuming powers under Section 5 of the Environment (Protection) Act, 1986 has given clean-chit to the Project Proponent by the impugned order dated 19.09.2016. This mammoth construction work is sandwiched between the extremely congested Western Express Highway and the Borivali National Park. Despite the fact that the provision of EC was introduced on 07.07.2004, the amendment to the then prevailing EIA Notification, 1994 (Annexure- A5) and despite the fact that EC was valid only for a period of 5/7 years, yet the construction has been going on unhindered without any EC at all. The project was revised several times. Fresh layout was sanctioned, fresh FSI infused through transfer of development rights and fungible FSI and the character of the project undergoing a sea- change from time to time, no EC was taken. These changes are clearly apparent from the Google Earth Satellite photographs and other documents.

4. The appellant has mentioned that he looked for grant of EC on the website of MoEF – respondent No.1 and it appeared that the Project Proponent had taken some EC. Thereafter, the appellant made a representation dated 28.08.2014 (Annexure-A7) to SEIAA to take action considering the fact that EC ought to have expired after five years and there was no record to show that the extension was taken, but no action was taken by the SEIAA on the said complaint. The appellant got a reply from Building Proposal Department of MCGM – respondent No.5 on 17.11.2014 (Annexure-A8) stating that the MoEF had exempted the Project Proponent from EC because 75% work had been completed before 07.07.2004. It was this cut-off date when the s