Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4725 OF 2021
1 M/s. Sai Pushp Enterprises
A firm incorporated under the
Indian Partnership Act, 1932, having its office at Puraniks’ One
Kanchan Pushp, Kavesar, Ghodbunder Road, Thane.
2 Yogesh Govind Puranik, Director of Puranik Builders Ltd. one of the Partners of Petitioner
No.1 having his office at Puraniks’
One Kanchan Pushp, Kavesar, Ghodbunder Road, Thane.
….. Petitioners
Vs.
1 Thane Municipal Corporation
Having its address at New
Administrative Building, Mahapalika Bhavan, Almeda
Road, Chandan Wadi, Pachpakhadi, Thane West, Maharashtra – 400602
2 Municipal Commissioner, Thane Municipal Corporation
New Administrative Building, Basavraj G Patil 1/22
Mahapalika Bhavan, Almeda
Road, Chandan Wadi, Pachpakhadi, Thane West, Maharashtra – 400602
3 Principal Secretary
Urban Development Department, State of Maharashtra, Madam
Cama Road, Mumbai – 400032
4 Principal Secretary, Environment Department, State of
Maharashtra, New Administrative
Bhavan, 15th
Floor, Madam Cama
Road, Mantralaya, Mumbai – 400032
5 Principal Chief Conservator of
Forest and Director Sanjay Gandhi
National Park, Western Express
Highway, Borivali (East), Mumbai – 400066
6 National Board of Wildlife
CGO Complex, Paryavaran
Bhavan, Lodhi Road, Delhi-110003
7 Union of India, Through Ministry of Environment and Animal Welfare, Paryavaran
Basavraj G Patil 2/22
Bhavan, CGO Complex, Lodhi
Road, Delhi-110003
….. Respondents
Mr. Milind Sathe, Senior Advocate a/w. Vishal Kanade, Rajmani Varma and Girish Rao I/b. Navdeep Vora &
Associates for the Petitioners
Mr. Chirag Shah a/w. Raj Adhia and Kavita Dhanuka for
Respondent Nos.1 and 2 – Thane Municipal Corporation
Mr. P. P. Kakade, Government Pleader with Smt. M. P.
Thakur, AGP for Respondent Nos.3 to 5 - State
Mr. N. R. Bubna for Respondent No.7 – Union of India
None for Respondent No.6.
JUDGMENT
1 Rule. Rule is made returnable forthwith. By consent of the parties, taken up for final disposal.
2 The moot question involved in the Writ Petition is whether the Petitioner is required to deposit 2% of the project cost in terms of the Minutes of the Meeting dated 13th June 2018 of Standing Committee of National Board of Basavraj G Patil 3/22 Wildlife (for short “NBWL”) though the Petitioner’s property is not situated within the Eco Sensitive Zone (for short “ESZ”).
3 The Petitioner is a Developer and is developing a residential project over its property. The property of the Petitioner sought to be developed, is situated beyond 5 km from the Sanjay Gandhi National Park so also the Tungareshwar Wildlife Sanctuary. The Petitioner’s property, undisputedly, is not within the ESZ. The Petitioner has been issued with construction permissions on 30th April 2015, 10th May 2016, 17th March 2016, 19th May 2016 and 20th December 2018 by the Planning Authority viz. Thane Municipal Corporation, Thane.
4 On or about 13th June 2018, the IGF (WL) briefed the Standing Committee of NBWL on the proposal of the Petitioner and stated that the project is for the construction of residential and commercial complexes in the private land located at 5km from the boundary of the proposed ESZ of Tungareshwar Wildlife Sanctuary. The IGF (WL) further added that the State Chief Wildlife Warden has recommended the proposal with the following conditions: Basavraj G Patil 4/22 (1) The proponent shall comply the conditions laid by MoEF for environment clearance. (2) Natural growing trees existing on the project site Ward (Ficus bengalensis), Pimpal, Mango, Karanj and other fruit bearing trees shall be retained. (3) The project is recommended on the condition that excavated material at the time of construction will not be thrown in sea, bay of sea and natural drainage or creek. (4) As decided in the 8th meeting of State Board for Wildlife held on 20.02.2014 that the project proponent shall deposit an amount equivalent 2% of the total cost (i.e. Rs.200.0 crores) of the project. This condition may also be considered by the SBWL for this project. After discussions the Standing Committee decided to recommend the proposal along with the conditions and the wildlife mitigation measures stipulated by the State Chief Wildlife Warden as it is outside the proposed eco-sensitive zone. The annual compliance certificate on the stipulated conditions should be submitted by the User Agency to the State Chief Wildlife Warden.”
5 The Petitioner, upon carrying out the development activity, applied for issuance of Plinth Certificate for the work completed by it as per the Application dated 28th May 2021 and issue of Occupation Certificate as per its Application dated 12th July 2021. The Application of the Petitioner for issuance of Plinth Certificate is not processed on the ground that the guidelines are not received from the State Government and after the guidelines are received from the State Government, fresh proposal be filed. The Petitioner, in the instant Writ Petition, seeks directions against Respondent No.1 to issue Plinth Certificate to the Basavraj G Patil 5/22 Petitioner for the work completed by it as per Application dated 28th May 2021 and also process the Application dated 12th July 2021 for issuance of Occupation Certificate without considering the communication from Respondent Nos.[4] and
5. The Respondent Nos.[4] and 5 communicated to Respondent No.1 for compliance of conditions by the Petitioner as per the Standing Committee’s decision. The Standing Committee of NBWL accorded its approval for the construction activity of the Petitioner subject to their decision in the meeting held from time to time. The conditions laid down in the Wildlife Clearance primarily include deposit of 2% of the project cost along with the Wildlife mitigation measures stipulated by the State Chief Wildlife Warden and conservation activities.
6 Mr. Sathey, the learned Senior Advocate strenuously contends that the property of the Petitioner on which the development activity is carried out, is not situated within the ESZ. Admittedly, the property of the Petitioner is situated at 5 km from the Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary. As the property of the Petitioner is not situated within the limits of ESZ, the Petitioner is not required to pay 2% of the project cost, as Basavraj G Patil 6/22 deposit. The Respondents do not have statutory authority to demand the same. It is only if the property of the Petitioner is situated within the ESZ, then the Respondents may seek the said amount from the Petitioner. The ESZ is upto the distance of 4 km from Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary. The Respondents will be entitled to demand 2% of the project cost only if the property is situated within the periphery of 4 km of ESZ. As the development activity over the property of the Petitioner is situated beyond the said limit, the Respondents do not have any authority under law to demand the said amount. The said demand, being dehors the statutory power, is illegal. The Municipal Corporation cannot withhold the Completion Certificate on the ground that 2% of the project cost is not deposited with Respondent Nos.[5] and/or 6. The learned Senior Advocate for the Petitioner submits that the collection of amount of deposit would be in the nature of fee and/or tax that cannot be levied without authority of law. To substantiate his contention, the learned Senior Advocate relies upon the judgment of the Apex Ciourt in the case of Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla & Ors.[1] and
Basavraj G Patil 7/22 submits that in fiscal matters, the power of imposition of tax and/or fee must be very specific and there is no scope of implied authority for imposition of such tax or fee.
7 The learned Senior Advocate further relies upon the judgment of the Apex Court in the matter of Tata Iron and Steel Co. Ltd. & Anr. Vs. State of Bihar & Ors.[2] and submits that the expression “Fee” is also comprehended in the expression “Tax” for the purpose of Article 265 and even for the collection of a fee, authority of law (i.e. legislative support) is mandatorily required under the Constitution. It is contended that there is no statutory authority for Respondent Nos.[5] and 6 to collect 2% fees/deposit from the Petitioner.
8 Reliance is also placed on the judgment of the Apex Court in the case of District Magistrate, Haridwar and Anr. Vs. Harish Malhotra[3] to contend that in absence of statutory sanction for imposition of tax the liability of paying a fee cannot be imposed even on the basis of consent of a party.
Basavraj G Patil 8/22 9 Mr. Bubna, the learned Advocate for Respondent No.7 submits that the guidelines for declaration of ESZ around the protected areas are as per the Government Gazette dated 11th September 2019 and 9th February 2011. Those guidelines are fully implemented by all concerned including Respondent No.5. Though various States and Union Territories were required to submit proposals for declaration of ESZ for their respective protected areas specific to their location, until mid July 2013, proposals for only 450 such protected areas were received. Hence, the Government of India, Ministry of Environment and Forests (Wildlife Division) stipulated notified default area of 10 km from the boundary of each protected area till the proposals were received, processed and finalized. The issue was referred to a Special Committee of NBWL for making recommendations on Impact Mitigation and Wildlife Conservation Plan. The recommendations of this Committee were accepted by the Standing Committee of the NBWL. Inter alia, it accepted the recommendation that in case of new projects proposal, 2% of the cost of project would be payable by the user agency / project proponent to the concerned protected area. This is embodied in letter Basavraj G Patil 9/22 dated 28th October 2015, issued by the Ministry of Environment and Forests and Climate Change. Said 2% levy was intended to be applied for all-around conservation measures of the concerned protected area. It is the duty of the NBWL to function in order to achieve the objects of Wildlife (Protection) Act 1972 as amended in 2003. The learned Advocate submits that the concept of deemed ESZ was pronounced by the Supreme Court in the case of Goa Foundation Case (Writ Petition No.460 of 2004). The learned counsel submits that the Petitioner had submitted the development proposal for the property in question for environmental clearance. The same was referred to the State Board of Wildlife (SBWL) as it was within 10 km deemed ESZ. The SBWL recommended that the clearance be granted to the Petitioner’s proposal on paying 2% of the cost of the project. The proposal was referred to NBWL. The NBWL, on 13th June 2018 granted the clearance upon the conditions including levy of 2% of the project cost, proposed by the SBWL. Based upon the said clearance, the Petitioner had their development proposal processed by the Planning Authority.
10 On 22nd January 2015, the Petitioner addressed a Basavraj G Patil 10/22 letter to the then chief Conservator of Forest of Sanjay Gandhi National Park expressing willingness to comply with the general requirements of the State Environment Impact Assessment Committee, Ministry of Environment and Forests. The Petitioner informed the Sanjay Gandhi National Park about the project cost. The Petitioner has not challenged the decision of the NBWL to levy 2% of the project cost, as a condition for Wildlife Clearance. The recovery of 2% levy is by way of policy decision taken by NBWL and these Respondents are bound to recover the same. The Petitioner even had requested the NBWL to reduce the levy from 2%. The Petitioner obtained various permissions from the Town Planning Authority especially in December 2018 based on the clearance granted by NBWL on 13th June 2018. The NBWL’s clearance was conditional upon paying 2% of the cost as stipulated. The permission for clearance was granted on 13th June 2018 and since the said property was within the radius of 10km from the boundary, the condition as to payment of 2% of total project cost was a must. On the basis of the said conditional clearance, the Petitioner developed the project and obtained commercial advantage. Final ESZ Notification of Tungareshwar Wildlife Basavraj G Patil 11/22 Sanctuary was issued on 11th September 2019. Once the Petitioner had accepted the condition of paying 2% of the project cost, the Petitioner cannot now turn around and contend otherwise. The Petitioner is bound by his commitment. The condition of payment of 2% of by the Petitioner is acted upon. Upon the said condition, the Petitioner obtained clearance from the Planning Authority. The learned Counsel relies upon the judgment of the Apex Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and Ors.[4]
12 The substratum of the matter is, authority of the Respondents to recover 2% of the project cost. Levy of 2% of the project cost was made payable by the user agency / project proponent for the development activity undertaken / to be undertaken within the protected area (ESZ).
13 The Apex Court in the case of Goa Foundation Vs. Union of India[5] observed thus and issued following
Basavraj G Patil 12/22 directions: “3 The order earlier passed on 30.01.2006 (Goa Foundation V. Union of India, (2011) 15 SCC 793 refers to the decision which was taken on 21.01.2002 to notify the area within 10 km of the boundaries of national parks and sanctuaries as eco-sensitive areas. The Letter dated 27.05.2005 is a departure from the decision of 21.01.2002. For the present, in this case, we are not considering the correctness of this departure. That is being examined in another case separately. Be that as it may, it is evident that the States/ Union Territories have not given the importance that is required to be given to most of the laws to protect environment made after Rio Declaration, 1992.
4 The Ministry is directed to give a final opportunity to all States/Union Territories to respond to its Letter dated 27.05.2005. The State of Goa also is permitted to give appropriate proposal in addition to what is said to have already been sent to the Central Government. The communication sent to the States / Union Territories shall make it clear that if the proposals are not sent even now within a period of four weeks of receipt of the communication from the Ministry, this Court may have to consider passing orders for implementation of the decision that was taken on 21.01.2002, namely, notification of the areas within 10 km of the boundaries of the sanctuaries and national parks as eco-sensitive areas with a view to conserve the forest, wildlife and environment, and having regard to the precautionary principles. If the States/ Union Territories now fail to respond, they would do so at their own risk and peril. 5 the MoEF would also refer to the Standing Committee of the National Board for Wildlife, under Sections 5-B and 5-C(2) of the Wildlife (Protection) Act, the cases where environment clearance has already been granted where activities are within 10 km zone.”
14 Subsequently, in the case of Goa Foundation Vs. Union of India & Ors.6, the Apex Court issued directions that MOEF will issue Notification of ESZ around the National
Basavraj G Patil 13/22 Park and Wildlife Sanctuaries of Goa after following the procedure discussed in the judgment within six months.
15 The Apex Court, under its order dated 11th December 2018 in T.N. Godavarman Thirumulpad Vs. Union of India & Ors.[7] observed as under: “The proposals for declaring areas around these National Parks and Wildlife Sanctuaries as Eco Sensitive Zone have been received from State Governments / UT Administrations for 641 National Parks and Wildlife Sanctuaries. No proposals have been received in respect of 21 National Parks and Wildlife Sanctuaries. The proposals have been accepted and Notification has been issued in respect of 289 National Parks and Wildlife Sanctuaries as on 26.11.2018 and draft Notification has been prepared in respect of 206 National Parks and Wildlife Sanctuaries. The declaration with regard to Eco Sensitive Zone is under process with the Ministry of Environment, Forests and Climate Change (MoEF) as well as with the State Government in respect of 146 National Parks and Wildlife Sanctuaries. We expect the Ministry of Environment, Forests and Climate Change to actively puruse the preparation of the draft Notification and to issue a final Notification at the earliest.”
16 The Apex Court further observed and directed that “under the circumstances, we direct that an area of 10 Kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF. The declaration be made by the MoEF at the earliest.”
Basavraj G Patil 14/22 Sanctuaries of which the proposals were not yet received, the Apex Court directed that an area of 10 kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF. The Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary are not amongst those 21 National Parks and Wildlife Sanctuaries for which the proposals were not received. The Notification fixing the extent and boundaries of ESZ in respect of Sanjay Gandhi National Park is issued on 5th December 2016.
21 National Parks and Wildlife Sanctuaries for which the proposals for declaring areas around those 21 National Parks and Wildlife Sanctuaries as ESZ were not received. Notification of ESZ for Turngareshwar Wildlife Sanctuary was issued on 11th September 2019 and for which draft Notification inviting objections was published on 24th December 2018 and the proposal for declaring the ESZ was forwarded much earlier i.e. prior to the order of the Apex Court in T.N.Godavarman Thirumulpad (supra) dated 11th December 2018 wherein ESZ was declared upto distance of Basavraj G Patil 15/22 4 km from the boundary of Tungareshwear Wildlife Sanctuary. The Petitioner’s property is situated at the distance of 5 km, as such, beyond ESZ. The Petitioner’s property is not situated within the ESZ. The question would be if the property of the Petitioner is not within the ESZ, whether Respondent Nos.[5] and 6 are empowered to demand 2% of the deposit from the Petitioner. Under Notification dated 5th December, 2016, the ESZ is fixed to the extent of 4 km from the boundary of Sanjay Gandhi National Park and under Notification dated 11th September 2019, the ESZ is fixed to the extent of 4 km around the boundary of Tungareshwar Wildlife Sanctuary. There was no order or proposal to declare an area of 10 km around the Sanjay Gandhi National Park or Tungareshwar Wildlife Sanctuary as ESZ. The Apex Court under order dated 11th December 2018 declared an area of 10 km as ESZ around 21 National Parks and Wildlife Sanctuaries. The Tungareshwar Wildlife Sanctuary and Sanjay Gandhi National Park were not in the list of said 21 National Parks and the wildlife sanctuaries referred to in the order of the Apex Court.
19 It is not disputed that the project of the Petitioner is beyond the ESZ of Tungareshwar Wildlife Sanctuary and Basavraj G Patil 16/22 Sanjay Gandhi National Park. The Notifications prescribing ESZ are issued to conserve and protect the area, the extent of boundaries specified in the said Notification around Sanjay Gandhi National Park and Tungareshwar Wildlife Sanctuary from ecological and environmental point of view and to prohibit industries or class of industries and their operations and processes in the said ESZ. The zonal plan is also required to be prepared for the purpose of ESZ. The said Notification deals with powers of the Monitoring Committee and other Authorities over the activities within the ESZ and not beyond it. The Respondent Nos.[5] and 6 may not be in a position to exercise their authority beyond the ESZ as per the Notifications. When the activity of the Petitioner is beyond the ESZ then in that case, they would not have any authority to demand the deposit of the amount. For demanding the amount, the powers referable to Statute, Regulations and Rules should exist and/or the executive instructions to that effect. In the present case, we do not find any authority with the Respondents to demand 2% deposit of the project cost either under the Statute or the Executive Instructions on the development activity beyond the ESZ. The said demand would be without authority of law Basavraj G Patil 17/22 and arbitrary. The Apex Court in the case of Tata Iron & Steel Co. (Supra) has observed as under: “21. A nine-Judge Constitution Bench of this Court in Jindal Stainless Ltd. Vs. State of Haryana (2017) 12 SCC 1, quoted the abovementioned statement of law with approval. Therefore, it is now well settled that the expression “fee” is also comprehended in the expression “tax” for the purpose of Article 265 and even for the collection of a “fee”, authority of law (i.e. legislative support) is mandatorily required under the Constitution.” The purpose of levying 2% of the project cost as deposit is to apply the said amount for all round conservation measures of the concerned protected area. This would include measure for Wildlife protection including captive breeding and re-wilding programs, prevention and mitigation of man-animal conflict, Wildlife habitat conservation and improvement, anti poaching measures, intervening in man-animal conflict, preventing and fighting forest fires, establishing and maintaining water wholes for the use of wild animals during the hot and dry summer months and so on. The object of having ESZ around a protected area (viz. Sanctuary or National Park) is to minimize the effect of various anthropogenic activities that directly or indirectly could have immediate or long term adverse effect on the ecology and biodiversity of a protected area. Basavraj G Patil 18/22 20 Mr. Bubna, learned Counsel for the Respondents submits that the Petitioners have taken benefit of the Noobjection given by the Respondents. The Petitioners were directed to deposit 2% of the amount and pursuant thereto No-objection was given. The Petitioners having taken the benefit of it and entered into a commercial activity for profit, now cannot turn around and contend that they are not liable to pay 2% of the project cost as deposit. For that purpose, he has relied on the judgment of this Court in the case of Maharashtra Chamber of Housing Industry & Ors. Vs. State of Maharashtra & Ors.[8] with approval of the judgment of this Court in the case of Mira Bhayander Developers and Welfare Association Vs. Dy. Collector and Competent Authority, Thane Urban Agglomeration in Writ Petition No.5745 of 2009 dated 27th August 2009, wherein it was held that if the benefit of the scheme has been taken then the said person cannot wriggle out of his obligation. It does not befit the Petitioners who have taken advantage of the scheme to contend that their obligations do not survive. 8 2014(6) Bom.C.R. 247 Basavraj G Patil 19/22 21 The minutes of meeting pursuant to which 2% amount of the project cost is demanded is dated 20th February 2018, whereas, the Petitioners are in receipt of construction permission in the year 2015, May 2016, March 2016, May 2016 and December 2018.
22 The Apex Court, in the case of District Magistrate, Haridwar (supra), has observed and held that “as long as there is no statutory sanction for imposition of a tax, no liability of paying a fee can be imposed relying on the alleged consent or acquiescence to the same imposition in part”.
23 In the present case, the issue is about the authority of the Respondents to direct payment of 2% of the project cost as conservation fees. The Respondents are not in a position to point out any provision of law authorizing the Respondents to levy conservation fee in the shape of a deposit. For levying fee, the authority under the statute should exist. In absence of any statutory authority, the Respondents may not have the authority and/or right to demand a particular amount as conservation fee. No such provision has been referred to before us to even remotely suggest that the Respondents have authority under the Basavraj G Patil 20/22 Statute, Rules or the Regulations to claim the deposit from the Petitioners for its development activities beyond the ESZ. If the Petitioners engage in any activity thereby jeopardizing the Wildlife conservation and forest, the Respondents have every right to take action against the Petitioners. However, demanding 2% of project cost as conservation fee would be acting beyond the authority. In absence of source of power to demand deposit, the action of the Respondents in demanding the said fee, cannot be sustained.
24 In the light of the above, Respondent Nos.[1] and 2 may process the Application of the Petitioners for issuance of the Plinth Certificate and/or Occupation Certificate and the planning permissions, on its own merits, however, without insisting for the deposit of 2% as project cost, as is directed by Respondent No.5. It is clarified that the Petitioners would certainly be bound to adhere to all other compliances that would be required in maintenance and conservation of the Wildlife and the forest, failure thereof, the Respondents can take appropriate action against the Petitioners. Basavraj G Patil 21/22 25 With the aforesaid observations and directions, the Writ Petition is disposed of. (VINAY JOSHI,J) (S.V. GANGAPURWALA,J) Basavraj G Patil 22/22