National Green Tribunal
Shashikant Vitthal Kamble vs Ministry Of Environment And Forest And ... on 9 May, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 01/2022 (WZ)
IN THE MATTER OF :
1. Mr. Shashikant Vitthal Kamble
Age about :42 years
Residing at: Popular Colony Flat No. Ci/13.
Near Vithhal Nagar, Warje Malwadi, Warje,
Pune-411 058
Contact No. 9970619999
Email: [email protected]
.....Applicant
Versus
1. Ministry of Environment and Forest and Climate Change
(MoEF&CC), New Delhi.
Through its Secretary,
Having office at
Indira Paryavaran Bhavan, Jor Bagh Road,
New Delhi, 110003
Phone No. 011-24695409
Email: [email protected]
2. Central Ground Water Authority (CGWA), New Delhi
Through its Chairman,
Having office at:
'Central Ground Water Board' Bhujal Bhawan
NH-IV, Farodabad-121001.
Email Address: [email protected]
3. Central Pollution Control Board (CPCB), NEW Delhi
Through its Member Secretary,
Having office at:
Parvesh Bhawan, CBD-cum-Office Complex
East Arjun Nagar, Delhi-110032
Email Address: [email protected]
4. Environment Department, Maharashtra,
Through its Principal Secretary,
Having office at:
Room No. 229, Mantralaya, Mumbai 400032
Email address: [email protected]
5. State Environment Impact Assessment Authority (SEIAA),
Maharashtra
Through its Chairman,
Page 1 of 37
Having office at:
601, 6th Floor, NKM Internal House,
Behind LIC Yogkshema building,
177 Babubhai Chinoy, Marg,
Nariman Point, Mumbai-400020
Email Address: [email protected]
6. State Expert Appraisal Committee (SEAC) Maharashtra.
Through its Chairman,
Having office at:
15th floor, Environment Department,
Mantralaya, Mumbai-411032
Email address: [email protected]
7. State Ground Water Authority, Maharashtra,
Through its Chairman,
Having office at:
New Agriculture College Building, 1st Floor, Bhujal Bhavan, KB Joshi
Marg Near, Shivajinagar, Pune-411005
Email address :
8. Maharashtra Pollution Control Board,, (MPCB) Mumbai.
Through its Member Secretary,
Having office at:
Kalpataru Point, 3rd and 4th floor,
Road No.8, Sion Cir,
Opp. PVR Theater, Mumbai-400022.
Email address: [email protected]
9. Maharashtra Pollution Control Board, (MPCB) Pune,
Through its Regional Officer,
Having office at:
Jog Center, 3rd Floor, Mumbai Pune Road,
Wakedwadi, Pune- 411 003.
Email Address: [email protected]
10. District Environment Impact Assessment Authority,
Through the Collector, Pune as a Chairman,
Having office at:
New Collectorate office, Opposite Sasun Hospital,
Pune- 411001.
11. The Commissioner Land and Records, Pune.
Through its Commissioner and Director
Having office at:
2nd and 3rd Floor, New Administrative Building,
Opposite Council Hall, Agarkar Nagar,
Pune- 411001.
Email Address: dlrmah.mah
12. The Commissioner, Pune Municipal Corporation (PMC)
Through its Municipal Commissioner,
Having office at:
Main Building, Pune Municipal Corporation,
Congress House Road, Near Mangla Theater,
Shivaji Nagar, Pune- 4110005
Email Address: info@pune corporation.org
13. The City Engineer, Pune Municipal Corporation (PMC)
Having office at:
Main Building, Pune Municipal Corporation,
Page 2 of 37
Congress House Road, Near Mangla Theater,
Shivaji Nagar, Pune- 411005.
Email Address: [email protected].
14. The Building Inspector, Pune Municipal Corporation (PMC)
Having office at:
The Building Department, Main Building,
Pune Municipal Corporation,
Congress House Road, Near Mangla Theater,
Shivajinagar, Pune-411 005.
15. G. M. Kenjale Developers
Through its Project Proponent,
Mrs. Milind Kenjale
Having office address at:
22, Parvati Gaon, Pune- 4110009
Having site address at:
'EMIRUS' at Survey No. 107,
Village Baner, Pune- 411045.
Email Address: [email protected]
....Respondents
Counsel for Applicants :
Mr. Viraj U. Pawar, Advocate
Counsel for Respondent(s):
Mr. D. M. Gupte, Advocate for R-1/MoEF&CC
Mr. Aniruddha Kulkarni, Standing Advocate for R-3/CPCB, R-4/Envt. Deptt., R-
5/SEIAA & R-6/SEAC
Mr. Yashwant Dhanegave, Advocate for R-7/SGWA
Ms. Manasi Joshi, Advocate for R-8 & 9/MPCB
Mr. Rahul Garg, Advocate for R-12 to 14/PMC
Mr. Saurabh Kulkarni, Advocate for R-15/PP
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 26.04.2023
Pronounced on : 09.05.2023
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JUDGMENT
1. This Application has been filed under Section 14 and 15 of National Green Tribunal Act (for short 'NGT Act', 2010) with the prayers that Respondent No.15/ G. M. Kenjale Developers (PP) be directed to stop illegal construction being done in contravention to the Environment Clearance (EC) permission; direct demolition of the illegal construction; direct Page 3 of 37 restitution of environment and compensation should be levied from the Respondent No.15/PP for damaging environment.
2. The brief facts of this case as submitted by the Applicant, are as follows:
a) The Applicant claiming himself to be local resident of Pune has raised issue that Respondent No. 15/PP has constructed a Residential & Commercial Building by name 'EMIRUS' at Survey No. 107, Village Baner, Taluka- Haveli, Pune. The total construction made by the Project Proponent was beyond 20,000 sq.m but he has not made the construction in accordance with the terms and conditions of the Environmental Clearance (EC).
b) On 15.05.2017, the Respondent Nos.12 to 14/PMC, have issued the Completion Certificate to Project Proponent for Residential Building 'H'.
c) The Applicant claims to have collected information under Right to Information Act (RTI) based on which it is submitted that the Respondent No.15/PP was refused Consent to Operate. The Respondent No.15/PP had completed total construction of 41351.17 sq.m.
d) The Respondent No.8 & 9/MPCB had passed closure order dated 29.05.2020. Hence, the above prayers have been made.
3. This matter was first considered on 04.02.2022 by our predecessor Bench and a Joint Committee was constituted and simultaneously notices were directed to be issued to the Respondents, pursuant to which service affidavit has been filed, as per which, service on all the Respondents is sufficient. In compliance with above order, the Joint Committee submitted its Report, as follows:
"3.0 Observations and Findings This report is outcome containing factual and action taken report of the said joint committee based on the preliminary information received from the nodal agency, followed by site inspection, information given by PP & Page 4 of 37 Pune Municipal Corporation (PMC) through MPCB and subsequent discussions of the joint committee. The observations & findings of the joint committee are given as below.
3.1 Observations w.r.t Environmental Clearance Details of EC, sanctioned plans, plinth certificate, completion certificate and current status of the project as verified and submitted by PMC to MPCB is given at Table No. 1. Copy of the PMC letter vide dated 12/08/2022 is given at Annexure-2 for kind information.
Table-1: Details of EC, sanctioned plans, plinth certificate, completion certificate and current status of the project Sr. Particulars Plot Area Configuration Total Built-
No. (sq.m.) up area
1. Layout 20,500 A:P+7 Total FSI-
CC/0919/11/1545dtd. B: G+1 14,477.41
10.06.2011 C: G+1 sq.m Total Non
D:G+1 FSI-8,261.77
E:LG+G+5 sq.m. Parking
F:LG+G+5 area- 6,011.0
G: P1+P2+P3+P4+12 sq.m.
H: P1+P2+P3+P4 TBUA-
+7 28,750.18.
I: G+1 sq.m.
2. Plinth Check Certificate For building „A‟ as per Sanction Plan dated 10.06.2011.
dtd. 02.02.2013
3. Building permission 20,500 A:P+7 Total FSI-
CC/0919/11 dtd. B: G+1 14,477.41
10.06.2011 C: G+1 sq.m Total Non
D:G+1 FSI-8,261.77
E:LG+G+5 sq.m. Parking
F:LG+G+5 area- 6,011.0
G:P1+P2+P3+P4+12 sq.m.
H: P1+P2+P3+P4 TBUA-
+7 28,750.18.
I: G+1 sq.m.
4. Building permission 20,500 A: P+8 Total FSI-
CC/3038/12 dtd. B: G+1 14,440.85
02.01.2013 C: G+1 sq.m. Total
D: G+1 Non FSI-
E: LG+G+8 9,135.93 sq.m.
Page 5 of 37
F: LG+G+P+1 {arlomg area -
G:B+G+4 7,229.4 sq.m.
H: B+G+20
5. Plinth Check Certificate For Building „B‟, „C‟, „D‟ as per Sanction Plan dated
dtd. 08.07.2013 02.01.2013.
6. Plinth Check Certificate For Building „G‟ „H‟ as per Sanction Plan dated 02.01.2013
dated 24.09.2013
7. Plinth Check Certificate For Building „E‟, „F‟ as per sanction plan dated 02.01.2013
dated. 05.07.2014
8. Layout CC/0303/15 dated 20,500 A: P+8 Total FSI-
30.04.2015 B: G+1 21,846.87
D: G+1 sq.m.
E: LG+G+8 Total Non-FSI-
F: LG+G+P+8 0 sq.m.
G: B+G+20 Parking area-
H: B+G+20 0 sq.m.
TBUA-
21,846.87
sq.m.
9. Building permission 1,735.36 Club House: G+1 Total FSI-
CC/1506/15 dated 244.99 sq.m
14.08.20151 Total Non FSI-
36.52 sq.m
Parking area-0
sq.m.
TBUA- 281.51
sq.m
10. Building Permission 20,500 A: P+8 Total Non FSI-
CC/030/15 dated B: G+1 11,175.11
30.04.2015 C: G+1 sq.m.
D: G+1 Parking area-
E: LG+G+8 7,323.88 sq.m.
F:LF+G+2P TBUA-
G: B+G+15 37.030.60
H: B+G+20 sq.m.
11. Building Permission 20,500 A: P+8 Total FSI-
CC/2681/15 dated B: G+1 18,531.61
21.11.2015 C: G+1 sq.m.
(Revalidation) D: G+1 Total Non FSI-
E: LG+G+8 11,175.11
F: LG+G+2P sq.m.
G: B+G+15 Parking area-
H: B+G+20 7,323.88 sq.m.
TBUA-
37,030.60
sq.m.
12. Building Permission 20,500 A: P+8 Total FSI-
Page 6 of 37
CC/0188/17 dated B: G+1 18,561.79
26.04.2017 C: G+1 sq.m.
D: G+1 Total Non FSI-
E: LG+G+8 11.438
F: LG+G+2P Sq. M.
G: B+G+12 Parking area-
H: B+G+20 7,323 sq.m.
TBUA-
37,324.33
sq.m.
13. Building Permission 20,500 A: P+8 Total FSI-
CC/3716/18 dated B:G+1 22,026.01
27.02.2019 C: G+1 sq.m.
D: G+1 Total Non FSI-
E: LG+G+8 13,279.60
F: LG+G+2P sq.m.
G: B+G+20 Parking area-
H: B+G+20 7,323.88 sq.m.
TBUA-
42,629.49
sq.m.
14. Layout CC/0038/20 dated 20,500 A:P+8 Total FSI-
03.06.2020 B:G+1 23,825.01
C:G+1 sq.m.
D:G+1 Total Non FSI-
E: LG+G+P+10 24,500.12
G:B+G+20 sq.m.
H: B+G+20 TBUA-
48.325.13
sq.m.
15. Layout CC/ 4226/21 dated 20,500 A: P+8 Total FSI-
31.03.2022 B: G+1 26,639.81
C: G+1 sq.m.
D: G+1 Total Non FSI-
E: LG+G+8 13,703.51
F: LG+G+2P+14 Parking area-
G:B+G+20 9,450.72 sq.m.
H: B+G+20 TBUA-
49,794.04
sq.m.
16. Building Permission 20,500 A: P+B Total FSI-
CC/4226/21 dated B: G+1 25,561.32
31.03.2022 C: G+1 sq.m.
D: G+1 Total Non FSI-
E: LG+G+8 12,659.12
F: LG+G+2P+11 sq.m.
G: B+G+20 Parking area-
H: B+G+20 6,526.0 sq.m.
Page 7 of 37
TBUA-
44,746.44
sq.m.
i. PP has been granted Environmental Clearance (EC) by
SEIAA, Maharashtra vide letter No. SEAC-2013/CR- 287/TC-2, dated 03/12/2016 for construction of a residential & commercial project named "EMIRUS" for Total Built Up Area (TBA) of 47,459.02 sq.m (FSI:
21,846.87 sq.m & Non-FSI: 25,612.15 sq.m) based on layout sanctioned plan vide no. CC/303/15, dated 30/04/2015 for residential building no. A: P+8, B: G+1, C: G+1, D: G+1, G: B+G+20, H: B+G+20 and commercial building no. E: LG+G+8, F: LG+G+P+8 & club house respectively. Copy of EC dated 03/12/2016 is given at Annexure-3.
ii. Further, PP has been granted EC by SEIAA, Maharashtra vide letter no. SIA/MH/MIS/241332/2021, dated 31/03/2022 for TBA of 48,325.13 sq.m (FSI: 23,825.01 sq.m & Non-FSI: 24,500.12 sq.m) based on layout sanctioned plan approval vide no. CC/0038/20, dated 03/06/2020 for building A: P+8, B: G+1, C: G+1, D: G+1, E: LG+G+8, F: LG+G+P+10, G: B+G+P=19, H: B+G+P+19 and club house: G+1 respectively. Copy of EC dated 31/03/2022 is given at Annexure-4.
iii. PP has obtained first plinth check certificate vide dated 02/02/2013 for Building „A‟ which is as per layout sanctioned plan vide no. CC/0919/11/1545, dated 10/06/2011 with TBA of 28,750.18 sq.m (FSI: 14,477.41 sq.m & Non-FSI: 14,272. 77 sq.m) granted by PMC. Subsequent plinth check certificates were obtained by the PP vide even dated 08/07/2013 for building no. B, C, D; 24/09/2013 building no. G, H and 05/07/2014 for building no. E, F respectively which are as per layout sanctioned plan vide CC/3038/12, dated 02/01/2013 with TBA of 30,806.18 sq.m (FSI: 14,4440.85 sq.m & Non- FSI: 16,365.33 sq.m)granted by PMC. It is observed from the aforesaid plinth check certificates that the TBA of aforesaid two layout sanctioned plans vide dated 10/06/2011 and 02/01/2013 are more than the 20,000 sq.m. The aforesaid layout sanctioned plans attracts prior EC requirements as per the provisions of EIA Notification, 2006. PP has not obtained prior EC and has violated provisions of the EIA Notification 2006. Whereas, for the purpose of EC, the PP has submitted layout sanctioned plan vide no. CC/303/15, dated 30/04/2015 with TBA of 47,459.02 sq.m (FSI: 21,846.87 sq.m & Non- FSI: 25,612.15 sq.m).
iv. Further, PP obtained revised layout sanctioned vide no.
CC/4226/21, dated 31/03/2022 for TBA of 49,794.04 (FSI: 26,639.81 sq.m & Non-FSI: 23,154.23 sq.m) for which amended EC yet to be obtained by the PP.
v. PP has obtained completion certificates as follows: for Page 8 of 37 building no. A, B, C, D, G on 03/06/2015 & for building no. A on 14/12/2015 based on layout sanctioned plan vide no. CC/0303/15, dated 30/04/2015 with TBA of 47,459.02 sq.m (FSI: 21,846.87 sq.m & Non-FSI: 25,612.15 sq.m). It is observed that PP obtained completion certificates for aforesaid buildings before obtaining prior EC from SEIAA, Maharashtra.
vi. It is observed that in section drawing (16/17) for building no. G & H approved by PMC vide no. CC/0303/15, dated 30/04/2015 (based on which EC dated 03/12/2016 has been granted) podium has been mentioned. However, in the EC granted to the PP vide dated 03/12/2016, podium in building no. G & H is inadvertently not mentioned. In view of the above, apparently there is no change in configuration of the building w.r.t. EC dated 03/12/2016, 31/03/2022 and present status of project as per PMC letter dated 12/08/2022.
vii. It is observed that most of the project is completed & handed over to individual flat owners. Also, as per the information provided by PMC vide dated 14/09/2022 (Copy of PMC letter dated 14/09/2022 is given at Annexure-5) that TBA of the completed project (except building no. F) is 44,214.58 sq.m (FSI: 21,744.97 sq.m & Non-FSI: 22,224.62 sq.m & club house: 244.99 sq.m), which is within the sanctioned TBA of 48,325.13 sq.m as per EC dated 31/03/2022.
Also, as per the architect‟s certificate vide dated 24/08/2022, the TBA of completed project/total completed construction is 42,904.18 sq.m. Further, based on the recent architect‟s certificate vide dated 14/09/2022, the TBA of completed project/total completed construction is 44,214.58 sq.m (FSI: 21,744.97 sq.m & Non-FSI: 22,224.62 sq.m & club house: 244.99 sq.m). Copy of the architect‟s certificate vide dated 24/08/2022 and 14/09/2022 is given at Annexure-6. viii. Details of work in progress and completion certificates obtained by the PP as perthe information provided by PMC vide dated 12/08/2022 is as follows:
Building Configuration Present status TBA, sq.m A P+8 Completion certificate 48325.13 sq.m (FSI: 25,825.01 obtained sq.m & Non-FSI: 24,500.12 B G+1 Completion certificate sq.m) obtained C G+1 Completion certificate obtained D G+1 Completion certificate obtained E LG + G + 8 Completion certificate obtained F LG + G + P + Work up to plinth level 10 completed G B + G + P + 19 Completed H B + G + P + 19 Completed Page 9 of 37 Club G+1 Completion certificate house yet to be obtained 3.2 Observations w.r.t. CTE and CTO i. PP has obtained Consent to Establish (CTE) from the MPCB on 31/01/2017 for total plot area- 20,500 sq.m and TBA - 47,459.02 sq.m (as per 1st EC dated 03/12/2016). Copy of CTE dated 31/01/2017 is given at Annexure-7 for kind reference. Wherein it is observed that without obtaining CTE, the PP has started construction activities; as it is evident from various plinth check certificates obtained by PP (please refer s. no. iii, as above).
ii. Meanwhile, MPCB has refused CTO on 03/08/2020 u/s 27 of the Water (Prevention and Control of Pollution) Act, 1974 and u/s 21 of the Air (Prevention and Control of Pollution) Act, 1981. Also, issued Closure Direction u/s 33A of the Water (Prevention and Control of Pollution) Act, 1974 and u/s 31A of the Air (Prevention and Control of Pollution) Act, 1981 on 25/09/2020 for violation of consent conditions viz. non-commissioning of STP for treatment of sewage and OWC for the treatment of biodegradable waste. Thereafter, conditional restart direction was issued on 29/04/2021. Copies of refusal of consent, closure direction and conditional restart directions are given at Annexure-8 for kind reference. iii. PP obtained part Consent to Operate (CTO) from the MPCB on 29/06/2021, valid up to 30/09/2022 for TPA - 20,500 sq.m & TBA - 41,351.17 sq.m out of 47,459.02 sq.m. Copy of CTO dated 29/06/2021 is given at Annexure-9 for kind reference.
iv. PP applied for CTE (expansion) as per revised EC dated 31/03/2022, which is pending at MPCB. MPCB has issued Show Cause Notice for refusal of revalidation of CTE (expansion) 25/07/2022 for the non-compliances like not obtaining revalidation of CTE after its expiry on 30/01/2022, Joint Vigilance Samples report dated 21/12/2020 observed that it is exceeding the prescribed standards for parameter BOD and COD and also for not submitting balance sheet for Capital Investment. Copies of show-cause notice dated 25/07/2022 is given at Annexure- 10 for kind reference.
3.3 Observations w.r.t. other environmental services i. PP has provided Sewage Treatment Plant (STP) based on MBBR technology of reported design capacity of 135 KLD. Various unit operations & processes of STP are Bar screen chamber → Oil & grease trap → Equalization tank →MBBR tank →Clarifier → Pressure sand filter →Activated carbon filter →Treated wastewater tank. As per CTO, treated Page 10 of 37 wastewater @ 60% shall be reused for flushing & ancillary activities and remaining shall be discharged to municipal sewerage system. During joint committee visit STP was found in operation. PP has provided separate plumbing arrangement for utilization of treated wastewater from STP for secondary activities viz. toilet flushing and gardening.
ii. PP is segregating biodegradable waste and non-
biodegradable waste at source Organic waste convertor (OWC) having reported capacity of 300 Kg/day is provided for processing of biodegradable waste, manure generated is being used as soil conditioner in gardening. Whereas, non-biodegradable waste (dry waste) is being sent to Swacha Pune Seva Sahakari Sanshta Ltd., an authorized agency ofPMC for further disposal. iii. During joint committee visit, no any bore well was observed on project site. The same was also vetted by CGWA, Pune based on the declaration submitted by the PP. Copy of email communication regarding declaration submitted and further vetting by CGWA, Pune is given at Annexure-11. As informed, PP has used tanker water supply during construction activities and also provided copies of water procurement challans during joint committee visit. Whereas, during operation phase, fresh water is being met through piped water supply connection provided by PMC for which the PP has obtained permission from PMC vide dated 09/11/2016, 04/06/2017 and 14/07/2017 for building no. A, B, C, D, E & Hrespectively.
iv. As per information submitted by PMC vide dated 12/08/2022 (Copy of PMC letter is given at Annexure-2) that PP has not obtained tree cutting NOC from PMC (as informed & reportedly there were no trees present during possession of the site at survey no. 107, Village Baner, Taluka-Haveli, Pune). It is observed that PP has made tree plantation of about 85 no. of trees against 230 no. (as per EC dated 03/12/2016), plantation of remaining 145 no. of trees are yet to carried-out by the PP.
v. PP has provided 04 no. of rainwater recharge pits for recharging of ground water. Some of the photographs taken during joint committee inspection is given at Annexure-12 for kind reference.
4.0 Approach for penalty and remedial measures for prior environmental clearance (EC) violation Hon'ble NGT in O.A No. 34/2020 WZ in the matter of Tanaji B. Gambhire vs. Chief Secretary, Government of Maharashtra and ors., vide order dated 24/05/2021 has directed that "...a proper SoP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SoP to all SEIAAs in the country".
In compliance to the aforesaid directions of the Hon'ble NGT, a Page 11 of 37 Standard Operating Procedure (SoP) for dealing with violation cases were issued by the MoEF&CC vide Office Memorandum (OM) F. No. 22-21/2020-IA.III dated 07/07/2021 and 28/01/2022. As per the aforesaid SOP, it outlines the penalties including closure of operations that are operating without prior environment clearance including demolition of projects. It also outlines a procedure for the grant of environmental clearance to projects that have come up without obtaining prior environment clearance required under the Environmental Impact Assessment (EIA) Notification, 2006. As per the aforesaid SOP, the different approaches for dealing the violation cases are summarised as follows;
i. Closure or revision a. If the project proponent has not taken prior EC, then the action shall be initiatedto close the operation. b. If the project proponent has taken prior EC for existing/old unit, then order to revert the activity/production to permissible limits. c. If the project doesn‟t require EC for earlier production level but required at present, then restricting activity/production to extent to which prior EC was not required.
ii. Action under section 15 read with section 19 of the E (P) A, 1986 shall be initiated against the violators. iii. Appraisal under EIA Notification, 2006: The permissibility of the project shall be examined from the perspective of whether such activity/project was at all eligible for the grant of prior EC;
a. If not permissible: If a project is under prohibited area notified by Central/State Govt., then the such project shall be ordered for the demolition/closure after issuing show-cause notice and providing an opportunity ofhearing. b. If permissible, then such violation projects shall be issued with directions to complete the impact assessment studies and submit EIA report & EMP in a time bound manner. Also, such cases of violation shall be subject to appropriate: Damage Assessment, Remediation Plan and Community Augmentation Plan (to restore environmental damage caused including its social aspects). The competent authority shall issue directions u/s 5 of The Environment (Protection) Act, 1986 for mandating payment of such amount (based on polluter‟s pay principle), undertaking activities relating to aforesaid plans and its appraisal by the Central sectoral expert appraisal committee or the State/UT level expert appraisal committee, as the case may be. However, even though the project may be permissible but not environmentally sustainable in its present form/configuration/features then such projects shall be directed to be modified so that the project would be environmentally sustainable. Further, if the project is not considered appropriate to issue EC, such project shall be directed to be demolished/closed. The PP will be required to submit a bank guarantee equivalent to the amount of Remediation Plan and Natural and Community Resource Augmentation Plan with Page 12 of 37 Central/State Pollution Control Board (depending on whether the project under reference is appraised at MoEF&CC or by SEIAA) prior to the grant of EC. The quantification of such liability will be recommended by EAC and finalized by the Regulatory Authority and the bank guarantee will be released after successful implementation of the Remediation Plan & Natural and Community Resource Augmentation Plan.
iv. Penalty provisions for violation cases and applications a. For new projects;
Where operation has not commenced: 1% of the total project cost incurredup to date of filing of application along with EIA/EMP report.
When operations have commenced without EC: 1% of the total project cost incurred up to the date of filing application along with EIA/EMP report PLUS 0.25% of the total turnover during period of violation.
b. For expansion projects;
When operation/production with expanded capacity has not commenced: 1% of the project cost, attributable to the expansion, incurred up to date of filing application along with EIA/EMP report. When operation/production with expanded capacity have commenced: 1% of project cost (attributable to the expansion activity) incurred up to the date of filing application along with EIA/EMP report PLUS 0.25% of the total turnover (attributable to the expanded activity/capacity) involved during theperiod of violation.
5.0 Approach for damages (in addition to the environmental compensation as given at para 4.0) for contravening mandatory provisions of environmental laws MPCB has issued Circular vide letter no.
BO/MPCB/AS(T)/Circular/B- 220712FTS0047 dated 12/07/2022 to discourage the defaulting industries by adopting "Polluter Pays" principal by imposing appropriate cost of violation of provision of Environment enactments for violation as below: -
a) To take effective steps towards establishment of project/unit without obtaining Consent to Establish from the Board.
b) To take effective steps without revalidating Consent to Establishfrom the Board.
c) To start Commercial production / to hand over occupancy without obtaining Consent to Operate from the Board.
d) To carry out expansion activity and applying directly for Consent to Operate without obtaining Consent to Establish of the Board.
e) To operate the activity without valid consent to operate of the Board and applying after lapse of validity period.Page 13 of 37
Cost of Violation: -
Red Category- 5 times of one term consent fee X no. of years of violation* Orange Category- 3 times of one term consent fee X no. of years of violation* Green Category- 1 times of one term consent fee X no. of years ofviolation* * Calculations of number of years shall be calculated on the basis of number of days of non-compliance. Copy of the said circular is attached as Annexure- 13.
Considering the period when PP has started construction activities without obtaining CTE from MPCB i.e. as it is evident from the 1st plinth checking certificate was issued vide, dated 02/02/2013 by PMC as per the first Layout Sanctioned vide no. CC/0919/11, dated 10/06/2011 for TBA of 28,750.18 sq.m, which is beyond 20,000 sq.m till date of obtaining CTE from MPCB i.e. till 30/01/2017. Hence total no. of days of violation is worked- out to be 1,458 days. Besides considering the aforesaid period of violation for starting the construction activities without obtaining CTE from MPCB, the joint committee recommends considering the period of violation for not obtaining CTO and CTE i.e. when PP has not applied and obtained CTO and CTE in time from MPCB. Accordingly, the total period of violation is tabulated as below:
S. Period of violation No. of Remarks Capital Penal fees Penal fees no. days investme calculation of nt (CI) in violati Crore & on consent fees 1 02.02.2013 05.08.2016 (till 1279 Starting CI- 128.0 Red category 44,85,260.27 (date of 1st date of construction crore = 5 times of /-
plinth checking application for activities Consent one term certificate PCC CTE). Whereas without Fees- consent fee X obtained from CTE was obtaining 256000/- no. of years of PMC) granted on CTE from violation 30.01.2017. MPCB. =5 X256000 X1279/365 2 03.06.2015 22.08.2020 (till 1906 Operation of CI- 98.5 Red category 32,63,698.63 1st Completion date of the crore = 5 times of /-
Certificate application for residential consent one term
obtained from renewal of building Fees- consent fee X
PMC CTO). project 125000/- no. Of years of
Whereas
CTO was without CTO violation
granted on from MPCB. =5 X125000
29.06.2021 and X1906/365
Page 14 of 37
valid up to
30.09.2022
3 30.01.2022 02.03.2022 till 29 Not CI- 131.0 Red category 1,04,082.19/
CTE date of revalidate crore = 5 times -
validity, not CTE CTE in Fees of one term
revalidate application time, CTE - consent fee X
CTE in time . expired 262000 /-
on no. Of years
30.01.2022 of violation
=5
X262000
X29/365
Total no. of days of violation 3214 Total Penal 78,53,041.09
fees
Thus, the total Penal charges as above as per provisions of penal fees for occupiers violating consent regime prescribed under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 i.e. without obtaining CTE & CTO from MPCB works out to be Rs. 78,53,041.0/- (Rupees Seventy-Eight lakh- Fifty-Three Thousand Forty- One Only).
6. Conclusions i. PP has obtained first Plinth Check Certificate vide dated 02/02/2013 for Building no. A, which is as per the layout sanctioned plan vide no. CC/0919/11/1545, dated 10/06/2011 with TBA of 28,750.18 sq.m (FSI: 14,477.41 sq.m & Non-FSI: 14,272. 77 sq.m) granted by PMC. Subsequent plinth check certificates were obtained by the PP vide even dated 08/07/2013 for building no. B, C, D; 24/09/2013 building no. G, H and 05/07/2014 for building no. E, F respectively which are as per layout sanctioned plan vide CC/3038/12, dated 02/01/2013 with TBA of 30,806.18 sq.m (FSI: 14,4440.85 sq.m & Non- FSI: 16,365.33 sq.m)granted by PMC. It is observed from the aforesaid first plinth checking certificates that PP has started the construction of the project without obtaining prior EC which is required as per S. no. 2 of the Notification no S.O. 1533 (E) dated 14/9/2006 related to the requirements of prior environmental clearance notified under the Environment (Protection) Act, 1986. Also, PP has obtained completion certificates for aforesaid building no. A, B, C, D, G on 03/06/2015 & for building no. A on 14/12/2015 before obtaining prior EC from SEIAA, Maharashtra (Kindly refer s. no. iii & v of section 3.1 of report, as above).
ii. SEIAA, Maharashtra while granting an EC vide dated 03/12/2016 noted that the PP has initiated construction of 18,632.48 sq.m. The said construction was initiated without prior EC requirements as the first layout sanctioned plan dated 10/06/2011 is of TBA of 28,750.18 sq.m (FSI: 14,477.41 sq.m & Non-FSI: 14,272. 77 sq.m). Accordingly, SEIAA, Maharashtra vide letter no. SEAC- 2013/CR-287/TC-2, dated 29/11/2014 issued proposed directions u/s 5 of the Environment (Protection) Act, 1986 Page 15 of 37 to the PP for starting the construction activities without obtaining prior EC. Copy of letter dated 29/11/2014 is given at Annexure-14 for kind reference.
Relevant extract of the aforesaid SEIAA, Maharashtra letter vide dated 29/11/2014is reproduced as below:
"AND WHEREAS, you have applied for Environmental Clearance for proposed project "Emirus" at Village Baner Tal. Haveli, Distt. Pune. During the 20th meeting of the State Level Expert Appraisal Committee held on 4th to 7th November, 2014, it was observed that you have started the construction activity without obtaining prior Environment Clearance from the Government of Maharashtra. This amounts to violation of the EIA Notification 2006"
Thereafter, SEIAA, Maharashtra vide letter no. SEAC- 2013/CR-287/TC-2, dated 26/05/2015 withdrawn the aforesaid directions issued to the PP u/s 5 of the Environment (Protection) Act, 1986. Copy of directions withdrawal letter of SEIAA, Maharashtra dated 26/05/2015 is given at Annexure-15 for kind reference. Relevant extract of the aforesaid SEIAA, Maharashtra letter vide dated 26/05/2015is reproduced as below:
"We also refer to the recent Circular dtd.
21/04/2015 issued by the Environment Department, G.o.M by taking cognizance of the Orders dtd. 24.3.2014 & 18.12.2014 passed by Hon‟ble High Court in the matter of Glomore Construction and others V/s Union of India stating "Proposed construction projects wherein project proponent has undertaken total construction below 2000 m2 may not be considered as a violation of EIA Notification of 2006 (amended time to time) and read with OA of M.o.E.F dtd. 12.12.2012 & 27.6.2013.
In view of the documents submitted by your representative vide letter dtd. 22.12.2014, additional information submitted during the course of personal hearing and your Architect‟s certificate followed by a Circular dtd. 21.4.2015 issued by the Environment Department G.o.M and detailed scrutiny thereof, it has been observed that you have carried out the construction of total BUA admeasuring 12600.94 m2, which is less than 20000 m2. Therefore, it is hereby concluded that there is no case of violation as prescribed in the EIA Notification, 2006 and accordingly the Proposed Directions issued vide above ref. (1) is hereby withdrawn."
iii. In view of the observations made by the joint committee w.r.t. s. no. iii & v of section 3.1 of this report, as above that the start of construction by the PP as per layout sanctioned plan vide no. CC/0919/11/1545, dated Page 16 of 37 10/06/2011 with TBA of 28,750.18 sq.m (FSI: 14,477.41 sq.m & Non-FSI: 14,272. 77 sq.m) and layout sanctioned plan vide CC/3038/12, dated 02/01/2013 with TBA of 30,806.18 sq.m (FSI: 14,4440.85 sq.m & Non-FSI:
16,365.33 sq.m), which are more than 20,000 sq.m. The aforesaid layout sanctioned plans attracts prior EC requirements as per the provisions of EIA Notification, 2006. PP has not obtained prior EC and has violated provisions of the EIA Notification 2006. Hence, the joint committee opined that such cases may be dealt as per the SOP for identification and handling of violation cases under the EIA Notification, 2006 issued by MoEF&CC‟s OMs dated 07/07/2021 and 28/01/2022. Accordingly, the approach methodology for such cases which started construction without taking prior EC from SEIAA, Maharashtra and CTE from MPCB are outlined in the above paragraphs 4.0 & 5.0 of this report.
iv. As per PMC vide letter dated 14/09/2022 and architect‟s certificate vide dated 14/09/2022, total completed construction area (except building no. F) as on 14/09/2022 is 44,214.58 sq.m (FSI: 21,744.97 sq.m & Non-FSI: 22,224.62 sq.m & club house: 244.99 sq.m), which is within the sanctioned TBA of 48,325.13 sq.m as per EC dated 31/03/2022 (Kindly refer s. no. vii of section 3.1 of report, as above).
v. PP has obtained Consent to Establish (CTE) from the MPCB on 31/01/2017 for total plot area- 20,500 sq.m and TBA - 47,459.02 sq.m (as per 1st EC dated 03/12/2016). Wherein it is observed that without obtaining CTE, the PP has started construction activities. Further, PP applied for CTE (expansion) as per revised EC dated 31/03/2022, which is pending at MPCB. MPCB has issued Show Cause Notice for refusal of revalidation of CTE (expansion) 25/07/2022 for various non- compliances (Kindly refer s. no. iv of section 3.2 of report, as above).
7.0 Recommendations
(a) For violation of EIA Notification dated 14.09.2006 In view of the aforesaid violations of i. Starting construction of the residential & commercial project on 02/02/2013 named "EMIRUS" by M/s G. M. Kenjale Developers at survey no. 107, Village Baner, Taluka-Haveli, Pune as per the Layout Sanctioned no. CC/0919/11/1545, dated 10/06/2011 for TBA of 28,750.18 sq.m, for building no. A without obtaining prior EC from SEIAA, Maharashtra.
ii. Action may be taken against M/s G. M. Kenjale Developers, Pune by the respective State or State Pollution Control Board under the provisions of section 19 of the Environment (Protection) Act, 1986;
iii. Appraisal of the project under EIA Notification, 2006 as Page 17 of 37 outlined under s. no. iii (as above, given at paragraph 4.0) ALONG WITH penalty for new project (when operations have commenced without EC) i.e. 1% of the total project cost incurred up to the date of filing application along with EIA/EMP report PLUS 0.25% of the total turnover during period of violation, involved during the period of violation may be levied by SEIAA, Maharashtra and be deposited by the PP with the respectiveState Pollution Control Board.
(a) For contravening provisions under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 In view of the aforesaid violations of:
i. Starting construction of the residential & commercial project named "EMIRUS" for the total built up area for more than 20,000 sq-m., as at (a) above, and obtaining completion certificate from PMC vide dated 03/06/2015 & 14/12/2015 for buildings A, B, C, D & G before obtaining CTE & CTO from MPCB as required under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention andControl of Pollution) Act, 1981; Rs. 78,53,041.0/- (Rupees Seventy-Eight lakh- Fifty-Three Thousand Forty One Only), as derived under para 5.0 of this report, as deemed fit by the Hon'ble NGT, may also be added in addition to the penalty to be derived by SEIAA, Maharashtra as per s. no. iii of (a), as above & outlined under para 4.0 of this report as approach for penalty and remedial measures for prior EC requirement notified under the Environment (Protection)Act, 1986.
(b) PP may be directed by PMC for development of green belt as per the conditionsstipulated in the EC dated 03/12/2016 and 31/03/2022. Upon verification of compliance w.r.t. condition of green belt development i.e. plantation of remaining no. of trees, PMC shall give final occupancy certificate to the PP."
4. The stand of Respondent No. 15/G. M. Kenjale Developers (PP) is as follows:
a) The Application is time barred because it should have been filed within a period of five years from the date on which the cause of action for such dispute 'first arose' as per provision under Section 15 of the NGT Act.
b) The cause of action in the present case should be reckoned from the date of first commencement certificate i.e. from 10th June, 2011, when the answering Respondent sought building permission while the present Application is filed on 30th December, 2021.
c) The present application is filed after almost 10 years after Page 18 of 37 the commencement of the project. The answering Respondent had been granted EC on 3rd December, 2016, which has not been challenged, as the same could have been challenged by filling an appeal under Section 16 of the NGT Act, 2010 within a period of 30 days from the date of grant of EC. The Applicant under the garb of Original Application is actually challenging the EC.
d) The answering Respondent has constructed, in all, 7 buildings (including Residential and Commercial) and one Club House and has created third party rights by selling flats to the intended purchasers by executing agreements and construction of the last commercial building i.e. Building 'F' is in progress. It has handed over the possession to respective owners of Co- operative Housing Society and new flat and shop purchasers but the applicant has not impleaded the society as party respondent.
e) The answering Respondent had been granted EC for total BUA of 47459.02 sq.m. vide EC dated 3rd December, 2016 and was also granted Consent to Establish on 30th January, 2017. The answering Respondent had applied for Consent to Operate on 29th November, 2019, but show cause notice was issued by the Respondent No.9/MPCB on 20th July 2020, pointing out certain irregularities about STP, OWC installation which was replied by them on 28th September, 2020 saying there-in that they had commissioned STP which was fully functional and had also provided OWC with Biogas digester and composting facility for treatment of bio degradable waste.
f) Without considering the said compliances, the Respondent No.9/MPCB, vide its order dated 3rd August 2020, refused to grant Consent to Operate and passed a closure direction on Page 19 of 37 25th September, 2020. After receiving the said closure order, the answering Respondent made representation pointing out the compliances and requested for restart of the operations, whereupon the Respondent No.9/MPCB issued a conditional restart order on 29th April 2021 and further granted the Consent to Operate on 29th June 2021 which was valid till 30th September, 2022.
g) The answering Respondent in the meantime submitted an application for grant of environmental clearance for expansion in the existing project for a total BUA of 48,325.13 sq.m. which was granted on 30th March 2022. Thereafter, the answering Respondent applied for renewal (expansion) of Consent to Establish before Respondent No.9 on 17th February, 2022 which is under process.
h) The answering Respondent has received the last part completion certificate on 31st December, 2021 from Respondent No.14/PMC. The answering Respondent has also denied allegation made by the Applicant by referring to the steps taken by it in Para 32 sub clause 'a. to f'.
5. The stand of Respondent No. 3 /CPCB is as follows:
We find that the answering Respondent has given only legal position and nothing else of substance.
6. The stand of Respondent No. 7/State Ground Water Authority, Maharashtra is as follow:
All the grounds set up in Original Application are irrelevant and do not survive against the answering Respondent.
7. The stand of Respondent No. 2/ Central Ground Water Authority (CGWA) is as follows :
From this affidavit, we do not find that there was any drawal of water from any bore-well etc. by the Project Proponent. Only this much has been stated in the affidavit that the Project Proponent has not Page 20 of 37 obtained any certificate / permission for drawal of water.
8. The stand of Respondent No. 8 & 9/ MPCB is as follows :
a) The Respondent No.15/PP has obtained Environment Clearance from SEIAA on 3.12.2016 for Total BUA - 47,459.02 sq.m. The answering Respondent granted Consent to Establish on 30.01.2017 for establishing the Residential and Commercial project in question for five years and Consent to Operate granted on 29.06.2021 for total BUA 47,459.02 sq. m., which was valid upto 30.09.2022. The reliance is placed by the Answering Respondent on the Joint Committee Report.
9. The rejoinder affidavit has been filed by the Respondent No. 15/PP dated on 21.11.2022 where-in main objection is against the Joint Committee report. We also find that other contents in this affidavit are the same which have been raised by him in his argument before us on-26th April, 2023 which are as follows:
"2. Heard the argument of learned counsel for the Respondent No.15/PP- Mr. Saurabh Kulkarni, who has mainly argued that there is no violation made at his end in raising the construction related to the present project because he was granted EC on 03.12.2016 and prior to that the area which had been constructed by him, was below 20,000 sq. mtrs. being total built up area 18,632.48 sq. mtrs., therefore, reliance is placed on the case law laid down in Glomore Constructions & Ors. Vs. Union of India & Ors. (Writ Petition No. 655 of 2014), in which he was not required to obtain EC but as soon as the total built up area of 20,000 sq.mtrs. was likely to exceed, he went for obtaining prior EC, which was allowed and whatever construction has been raised by him, is in the subsequent period. As regards permission for construction of total built up area of 47,459.02 sq. mtrs., he has constructed only total built up area of 42,904.18 sq.mtrs. till 10.08.2022.
3. The learned counsel for the Respondent No.15 has further argued that the Joint Committee Report has wrongly assessed penalty in respect of Consent to Establish, which is at Page No. 268 of the paper book because according to him, the OM dated 05.02.2020 says that "All the projects requiring Environmental Clearance may be exempted from obtaining the Consent to Establish (CTE). Such projects may be directly granted consent to operate subject to EC Page 21 of 37 and installation of pollution control devices" and he further submits that to his knowledge, this OM is still in force, which is not rebutted by any of the learned counsel for the Respondents. In this regard, we expect Respondent No.1/MoEF&CC to throw some light, who is being represented by the learned counsel Mr. D. M. Gupte, who says that this OM dated 05.02.2020 is still in force, therefore, the violation shown of 1279 days in respect of Consent to Establish should be discarded.
4. Next the learned counsel for the Respondent No.15 has argued that the Consent to Establish is shown to have been granted on 30.01.2017, while the calculation of violation with respect to Consent to Operate has been taken from 03.06.2015 and the question arises, as to how was it possible that the violation is said to be there when CTE was granted on 30.01.2017 and also he had not exceeded the total construction of 20,000 sq. mtrs., therefore, this calculation is also wrongly done.
5. Further, the learned counsel for the Respondent No.15 has argued that the delay in submission of application for CTE, penalty has been imposed of Rs. 1,04,082.19/- which has been paid by him under protest because even that has been levied wrongly, as the activity of the Project Proponent falls under Orange Category, as per the Consent to Establish granted by the MPCB on 30.01.2017, which is annexed at Page Nos. 315 to 320 of the paper book. It is also asserted by him that the same cannot be applicable retrospectively."
10. The stand of Respondent No. 12, 13 & 14/PMC as per affidavit dated 21.02.2023 is as follows :
1. The various permissions which have been granted by the Answering Respondent to the Project Proponent concerning this project have been given in Tabular Form are as follows:
ANNEXURE-1 Sanctioned Plan Details for Baner Sr. No. 107 Sr. Layout/ Gro Dedu Net Nam No. of Height FSI Total Park Total Total Rema No Building ss ction Plot e of floors of (Sq. FSI(S ing Non- Build rks permissi Plat of Area Buil Buildin M) q.m.) (sq. FSI ing on Area FSI(s (sq. ding g Mtrs. m.) (sq.M Area Sanctio (sq. q.m.) m.) .) (sq. ned m.) m.) dated 1 Layout 20,5 Open 1343 A P+7 23.35 329 1447 601 8261 2875 124 CC/091 00 space 2.47 0.79 7.41 1.00 .77 0.18 Tene Page 22 of 37 9/11/1 1935. ments 545 71 dated Amen 10.06.2 ity 021 Spac e 2903.84
18.0 mtr.
D. P. Road 1146.
35
B G+1 6.80 450. 23 C G+1 6.80 558. 05 D G+1 6.80 497. 09 E LG+G+5 22.00 949. 80 F LG+G+5 22.0 949. 80 G P1+P2+P 48.90 466 3+P4+12 7.95 H P1+P2+P 33.90 258 3+P4+7 8.95 R G+1 8.85 210. 00 2. Building 20,5 Open 1343 A P+7 23.35 329 1447 601 8261 2875 124 Permissi 00 Spac 2.47 0.79 7.41 1.00 .77 0.18 tenem on e ents CC/091 1935. 9/11 71 dated Amen 10.06.2 ity 011 Spac e 2903. 84 18.0 mtr. D. P. Road Page 23 of 37 1146. 35 B G+1 6.80 450. 23 C G+1 6.80 558. 05 D G+1 6.80 497. 09 E LG+G+5 22.00 949. 80 F LG+G+5 22.001 126 264.55 4.55 G P1+P2+P 48.90 466 3+P4+12 7.95 H P1+P2+P 33.90 258 3+P4+7 8.95 I G+1 8.85 210. 00 3. Building 205 Open 1343 A P+7 23.35 329 1444 722 9135 3080 119 Permissi 00 Spac 2.47 0.79 0.85 9.4 .93 6.18 Tene on e ments CC/303 1935. 8/12 71 dated Amen 2.1.201 ity 3 Spac e 2903. 84 18.0 mtr. D. P. Road 1146. 35 B G+1 7.00 569. 61 C G+1 7.00 601. 80 D G+1 7.00 569. 61 E LG+G+8 35.75 946. 98 F LG+G+P+ 10.55 238. 1 26 Page 24 of 37 G B+G+4 18.70 123 8.72 H B+G+20 69.90 633 1.95 4. Layout 20,5 Open 1349 A P+8 25.95 394 2184 0 0.00 2184 165 CC/030 00 Spac 7.61 3.92 6.87 6.87 Tene 3/15 e ments dated 1935. 30.4.20 36 15 Amen ity Spac e 2903. 05 18.0 mtr. D.P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 946. 98 F LG+G+P+ 35.90 167 8 9.90 G B+G+20 69.90 698 4.08 H B+G+20 69.90 641 5.75 5. Building 173 1735 Club G+1 6.55 244. 244.9 0 36.5 281. Club Permissi 5.36 .36 Hou 99 9 2 51 Hous on se CC/150 6/15 dated 14.08.2 015 6 Building 20,5 Open 1349 A P+8 25.95 394 1853 732 1117 3703 151 Permissi 00 Spac 7.61 3.92 1.61 3.88 5.11 0.60 Tene Page 25 of 37 on e ments CC/030 1935. 3/15 36 dated Amen 30.4.20 ity 15 Spac e 2903. 05 18.0 mtr. D.P. Road 1146. 35 7. Building 20,5 Open 1349 A P+8 25.95 394 1853 732 1117 3703 151 permissi 00 Spac 7.61 3.92 1.61 3.88 5.11 0.60 Tene on e ments CC/268 1935. 1/15 36 dated Amen 21.11.2 ity 015 Spac e 2903. 05 18.0 mtr. D.P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+2P 12.45 281. 04 G B+G+15 54.00 506 9.37 H B+G+20 69.90 641 Page 26 of 37 9.44 8. Building 20,5 Open 1349 A P+8 25.95 394 1856 732 1143 3732 147 permissi 00 Spac 7.61 3.92 1.79 3.88 8.66 4.33 Tene on e ments CC/018 1935. 8/17 36 dated Amen 26.04.2 ity 017 Spac e 2903. 05 18.0 mtr. D. P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+2P 12.45 281. 04 G B+G+12 44.30 469 2.21 H B+G+20 69.90 682 6.78 9. Building 205 Open 1349 A P+8 25.95 394 Permissi 00 Spac 7.61 3.92 on e CC/371 1935. 6/18 36 dated Amen 27.2.20 ity 19 Spac e 2903. 05 18.0 Mtr. Page 27 of 37 D. P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+2P 12.45 281. 04 G B+G+20 69.90 815 6.43 H B+G+20 69.90 682 6.78 10 Layout 205 Open 1349 A P+8 25.95 394 2382 0 2450 4832 171 CC/003 00 Spac 7.61 3.92 5.01 0.12 5.13 Tene 8/20 e ments dated 1935. 03.06.2 36 020 Amen ity Spac e 2903. 05 18.0 mtr. D. P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+P+ 35.90 208 10 0.04 Page 28 of 37 G B+G+20 69.90 815 6.43 H B+G+20 69.90 682 6.78 11 Layout 205 Open 1349 A P+8 25.95 394 2663 945 1370 4979 171 CC/422 00 Spac 7.61 3.92 9.81 0.72 3.51 4.04 Tene 6/21 e ments dated 1935. 31.03.2 36 022 (E. Amen C. ity purpose Spac ) e 2903. 05 18.0 mtr. D. P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+2P 50.55 489 +14 4.84 G B+G+20 69.90 682 6.78 H B+G+20 69.90 682 6.78 12. Building 205 Open 1349 A P+8 25.95 394 2556 652 1265 4474 171 Permissi 00 Spac 7.61 3.92 1.32 6.00 9.12 6.44 Tene on e ments CC/422 1935. 6/21 36 dated Amen 31.03.2 ity 022 Spac e 2903. Page 29 of 37 05 18.0 mtr. D. P. Road 1146. 35 B G+1 7.00 615. 92 C G+1 7.00 644. 40 D G+1 7.00 615. 92 E LG+G+8 35.90 941. 60 F LG+G+2P 42.15 381 +11 6.35 G B+G+20 69.90 815 6.43 H B+G+20 69.90 682 6.78
2. Further, it is mentioned that the Occupancy Certificate was granted by the Answering Respondent on 03.06.2015 & 14.12.2015 and that too for the total Built Up Area of less than 20,000 sq. m. It is only after the EC was granted to the project that further Occupancy Certificates were issued by the Answering Respondent to the Project Proponent.
3. The answering Respondent has given the same details with respect to grant of EC in para 8 & 9 of this affidavit which we have already dealt with while considering the affidavits of other parties. Therefore, they need not be repeated. Lastly it is submitted that they have granted permission as per the provisions of MRTP Act and DC Rules. We find that answering Respondent has not stated about any specific violation to have been done on the part of the Project Proponent. Page 30 of 37
11. We have heard the argument of learned counsel for the parties except that of the Applicant for the reasons, we have already disclosed in our order dated 26th April 2023 and also perused the record.
12. On the basis of above pleadings, we have to see as to whether the Respondent No.15/Project Proponent has made any violation of the terms and conditions stipulated in Environment Clearance dated 03.12.2016 and whether as a result of non-compliance of those terms and conditions, the demolition of the construction made by the Project Proponent is required to be ordered.
13. In this regard, we find that Architect Certificate is annexed at Page No. 314 of the paper book wherein following facts have been mentioned in the Tabular Form which are relevant in the present matter. Sr. Date Layout/Plinth Particulars FSI Non-FSI Total Work No. Sanction Sanction completed
1. 10.06.11 CC/0919/11/1545 1st Sanction 14477.41 8261.77 22739.18 Not initiated
2. 02.01.13 CC/3038/12 2nd Sanction 14440.85 9135.93 23576.78 Not initiated
3. 02.02.13 Building A Part-I Plinth Under Const.
4. 08.07.13 Building B,C &D Part-II Plinth Under Const.
5. 24.09.13 Building G & H Part III- Plinth Under Const.
6. 05.07.14 Building E & F Full Plinth EC apply 18632.48 18632.48
7. 30.04.15 CC/0303/15 EC-IOD 21846.87 25612.15 47459.02
8. 30.04.15 CC/0303/15 3rd revised 18531.61 11905.57 30437.18 Work Stop Sanctioned 9 03.06.15 OCC/0263/15 Part Work stop Completion for Building A Part, B,C,D & Shops of G building 10 21.11.15 CC/2681/15 4th Revised 18531.61 11905.57 30437.18 Work stop Sanctioned Page 31 of 37 11 03.12.16 SEAC-2013/CR- EC Granted 21846.87 25612.15 47459.02 287/TC2 11 27.03.17 OCC/0188/17 Part Work Completion for Completed Building E 12 26.04.17 CC/0188/17 Building 18561.79 11438.66 30000.45 Sanctioned Sanctioned G Building 12 floor 13 29.04.17 OCC/0220/17 OCC/0220/17 Part of Work Completion completed for H Building
14. 15.05.17 CC/0476 Part Work Completion for Completed H Building
15. 27.02.19 CC/3716/18 Building 22026.01 13279.6 35305.61 Under Sanctioned Const.
Sanction G
building
19 floor
16 03.06.20 CC/0038/20 EC-IOD/EC 23825.01 24500.12 48325.13 EC granted
granted on
31.03.22
adm
48325.13
sq.m.
17 31.12.21 OCC/0953/21 Part Work
Completion for Completed.
G Bldg.
18. 10.08.22 As per EC Total 20434.57 22469.61 42904.18
Completed
const.
14. We have find that Annexure No.6 to the rejoinder affidavit dated 21.11.2022 of the Respondent No.15/PP is Minutes of the 47th meeting of the SEAC-III held on 23rd to 27th May 2016, wherein at Item No.9 in the Column pertaining to note on the initiated work, information is given, against that the area 18632.48 M2 indicates that when the application Page 32 of 37 for grant of EC was moved by the Respondent No.15/PP (the Respondent No.15/PP point out that this application was moved by it on 02.04.2013), the total construction under the project had already been completed upto 18632.48 M2 , which makes it clear that it did not exceed 20,000 sq.m. and above by then, which would have necessitated the Project Proponent to obtain EC from the SEIAA.
15. This fact get corroborated from the information mentioned at page No. 314 of the paper book quoted above wherein at Serial No.6 till date 05.07.2014 the total area, which was constructed, was 18632.48 sq.m. and thereafter, work was stopped which is also clear from this document itself at page No. 314 of the paper book.
16. We find that there is substance in the argument of the Respondent No.15/PP that in view of the law laid down by the Hon'ble Bombay High Court in case Glomore Constructions & ors. Vs. Union of India & Ors. (Writ Petition No. 665 of 2014) there was no necessity for the Project Proponent to seek Environmental Clearance because till that period it had not exceeded construction of 20,000 sq.m. and above.
17. It is also argued by the Respondent No.15/PP that after this they intended to raise further construction exceeding the limits of 20,000 sq.m. because of which they applied for grant of prior EC and the same has been allowed on 3rd December, 2016 for construction of total BUA 47459.02 sq.m. Whatever construction has been done by the Project proponent after grant of this EC cannot be treated to suffer from any infirmity because the same was done after the valid EC.
18. We also find that at page No. 314 of the paper book, till date 10.08.2022 the construction did not exceed sanctioned BUA 47459.02 sq.m. as it was only 42904.18 sq.m.
19. Therefore, we do not agree with the Joint Committee Report proposing therein recommendations for imposing environmental compensation to be calculated for violation of EIA Notification 2006 as per the SOP of 07.07.2021.
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20. Now, we would like to take into consideration as to whether the calculation made for imposing penalty, by the Maharashtra Pollution Control Board, upon the Respondent No.15/PP, which is mentioned at page No. 268 of the paper book, which is part of the joint committee report, is to be approved or not.
21. The Joint Committee has proposed penalty of Rs. 44,85,260.27/- for violation for a period of 1279 days for not obtaining Consent to Establish which has been calculated from 02.02.2013 i.e. date of first plinth checking certificate being obtained from the Pune Municipal Corporation till 05.08.2016 (till date of application for CTE).
22. It is argued by the learned counsel for the Respondent No.15/PP that as per the Office Memorandum dated 15th February, 2020 annexed at page No. 581 of the paper book, all the projects which required EC were granted exemption from obtaining the Consent to Establish and were supposed to seek only Consent to Operate directly which O.M. is stated to be valid as on date as is stated by Mr. D. M. Gupte, learned counsel for the MoEF&CC.
23. We are not in agreement with the argument of learned counsel for the Respondent No.15/PP in this regard because, Office Memorandum is dated 5th February, 2020, while the project was started way back in 2013, therefore this Office Memorandum cannot be applied retrospectively in the present case.
24. Moreover, we also find that in para-4 of this Office Memorandum, even if it is treated to be applicable, it is recorded that after detailed deliberations, the mechanism of one step process of CTE and EC has been decided, which is given thereafter. It shows that if this Office Memorandum is to be made applicable, steps for CTE as well as EC were required to be taken simultaneously, which has not been done in the present case.
25. Therefore, as regards the penalty of Rs. 44,85,260.27/- regarding violation of Consent to Establish, there appears to be no infirmity in the Page 34 of 37 Joint Committee report except that we have to ascertain as to whether the calculation should be done at the rate which is prescribed for Red category or Orange category.
26. In this regard, the Joint Committee has gone on to calculate the said amount on the basis of treating the project to fall under Red Category. We find that there is a letter dated 7th March 2016 issued by the Member Secretary of the Central Pollution Control Board to all the State Pollution Control Board/Pollution Control Committees regarding modified directions under Section 18(1) (b) of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 on 07.03.2016, regarding 'Harmonization of classification of industrial sectors under Red/ Orange/Green/White categories'. This letter prescribes at Table G-3 pertaining to Final List of Orange Category of Industrial Sectors at Serial No.21 that building and construction project having more 20,000 sq.m. built up area, would be falling in Orange category in pre-construction stage as it is mainly air polluting due to generation of dust emissions. After construction, it is mainly water polluting. If the discharge is more than 100 KLD, it will be having the normalized score of 75 and be categorized as Red.
27. In the case in hand, Consent to Operate was granted on 30.01.2017. Thereafter, only constructed portion would be treated to be causing pollution related to water as prior to that, it would only be causing air pollution. Therefore, this activity should be treated to be in Orange Category till 30.01.2017, according to these Central Pollution Control Board guidelines and thereafter in Red category.
28. Therefore, we are of the view that the present project be categorized in Orange Category till 30.01.2017 and accordingly we direct the Maharashtra Pollution Control Board to recalculate the amount of penalty and levy the same.
29. As regards the levying of penalty of Rs.32,63,698/- for violation of Consent to Operate, we do not find any valid objection as the same has Page 35 of 37 been found to be for 906 days treating the category of the project as Red category which is appropriate in terms of the letter of Central Pollution Control Board dated 7th March, 2016.
30. In view of above analysis made by us, we dispose of this Application with the direction to the Maharashtra Pollution Control Board (MPCB) that it shall treat the project in question till the grant of Consent to Establish in Orange Category as per the CPCB guidelines and recalculate the penalty accordingly. This exercise shall be completed within one month and whatever amount is arrived at by them towards penalty, the same shall be deposited by the Project proponent within next 15 days with the MPCB.
31. Further, we direct the Project Proponent to deposit the amount with respect to violation of Consent to Operate to the tune of Rs. 32,63,698/- within one month from today with the Maharashtra Pollution Control Board.
32. Further, we direct Maharashtra State Pollution Control Board to make calculation of Environmental Damage Compensation as per the methodology / guidelines laid down by the Central Pollution Control Board (CPCB) pursuant to the Judgment delivered in the case of Paryavaran Surkasha, regarding the consent violations, which have been found to be there concerning Consent to Operate and Consent to Establish after giving opportunity of hearing to Respondent No.15/ PP which shall be completed within a period of one month. The amount so arrived at would be deposited by the Project Proponent within next one month with Maharashtra Pollution Control Board.
33. Whatever amount is being levied by way of penalty/ Environment Damage Compensation shall be used for improvement of the Environment in the concerned project affected area within six months. Report of utilization shall be posted on MPCB website under section Environment Damage Compensation utilization. Page 36 of 37
34. With the above directions, we dispose of this Original Application, Pending I.A. if any stands disposed off.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 09, 2023.
Original Application No. 1/2022(WZ) Sachin J.
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