National Green Tribunal
Satendra Pandey vs Ministry Of Environment Forest And ... on 5 December, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 06 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 569/2022
(Earlier Appeal No. 35/2022)
(I.A. No. 264/2022 to I.A. No. 266/2022
Satendra Pandey Applicant
Versus
Ministry of Environment, Forest
and Climate Change & Ors. Respondent(s)
Date of hearing: 05.12.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
ORDER
1. This appeal has been filed against Environmental Clearance (EC) dated 08.06.2022 issued by State Environment Impact Assessment Authority, Uttar Pradesh (hereinafter referred to as 'SEIAA, UP') granting EC for expansion of the project in question to the PP - Ecity Entertainment Pvt. Ltd., Fun Republic Mall, Near Eldeco Greens, Gomtinagar, Lucknow-226010.
2. Vide order dated 29.07.2022, the Tribunal considered the matter.
Since no infirmity was found in the EC but it was argued that CTE was granted illegally before EC, the appeal was directed to be converted to OA to consider validity of grant of CTE prior to EC. The Tribunal sought factual report from a joint Committee comprising Regional Officer, MoEF&CC; CPCB and District Magistrate, Lucknow. The Tribunal also 1 asked UPPCB and the PP to explain how CTE was issued before grant of EC.
3. Accordingly, the PP and State PCB have filed their replies and the joint Committee has given its report dated 29.09.2022.
4. The observations and conclusion in the report are as follows:-
"The observations/findings of the committee are as given under 4.1. For operational part of the commercial complex cum mall i.e., fun mall, having consents to operate (CTO) for exiting commercial complex (Mall) under Air & Water Acts, which are valid up to 31.12.2023 (Annexure-A3 & A4).
4.2. Proponent having two borewell and obtained ground water NOC from state ground water authority vide Certificate No:
N000110876 & N00044953, which is valid up to 19.06.2026 (Annexure-S).
4.3. Committee observed that no construction work is going on the proposed site (for which EC has been granted by SEIAA-UP on dated 08.06.2022) photograph taken during inspection has been attached. (Annexure-I).
4.4. Committee noticed that the retaining wall has been recently constructed all around the excavated area on the proposed site and iron bar is visible all along with the retaining wall. It was also noticed that STP, water tank and rain water harvesting pit were dismantled in past. Photograph taken during site inspection is attached (Annexure-T).
4.5. In the Google earth image dated 08.03.2020 and 13.04.2020 the construction (excavation work) has been visible at the proposed site. Which means the project proponent has started the work well before grant of the consent to establish (CTE) on 04.11.2020 (Image is attached as annexure-U).
4.6. The work order dated 21.10.2019 placed for completion of new STP (300 KLD) and work order dated 26.12.2019 for water tanks also supports the finding of mentioned Google Earth images.
4.7 Project proponent obtained letter of intent for excavation of earthen materials (1894 hectare and 7577.06 cubic meter) from District Magistrate Office (Mining Section), Lucknow on dated 18.05.2021, royalty of Rs 104185.0 was pay through chalan on dated 31.05 .2021. (Annexure-V).
4.8. However; considering the fact that the CTE was revoked on 09.07.2021, the claimed excavation activity was 2 carried out within a period of almost one month, which seems to be unrealistic.
4.9. Old & existing CTO shows that the wastewater generation from the exiting operational phase of the mall is 160 KLD.
However, project proponent after dismantling the STP of 160 KLD, constructed new STP of 300 KLD capacity (160 for existing and 140 for proposed) well before obtaining environmental clearance from SEIAA-UP on dated 08.06.2022. As well as they are having STP of 300 KLD against the consented wastewater generation of 160 KLD. The said STP of 300 KLD capacity is found operational on the day of visit (Annexure-A4).
4.10. The Demolition of old STP, water tank, rain water harvesting structure etc. was done without consideration of the provisions of the Construction & Waste Management Rule, 2016.
4.11. As per CTO, total 4 DG sets are installed for power backup. It has been informed that the waste lubricating oil, discarded batteries and e-waste generated are sold to local vendors. It is required to dispose of the above-mentioned waste as per the provisions of the prevailing rules.
4.12. As informed, proponent having tie-up with Lucknow Municipal Corporation for the disposal of the solid waste. Latest payment receipt for the month of August, 2022 is enclosed as (Annexure W).
5. Conclusion 5.1. The project proponent has carried out construction activity (soil excavation and dismantling of underground STP and water tank for domestic use) for expansion project without obtaining prior approval of EC from SEIAA-UP. The mentioned evidence indicates that the said activities has been performed even prior to obtaining the CTE.
5.2. The affidavit submitted by the proponent to SEAC on 30.07.2021 about no construction activity carried out by them is erroneous.
5.3. Member Secretary SEIAA-UP vide letter no. 1077 /Parya.
/6414/2021 dated 15.03.2022 constituted committee comprising of Representative of UPPCB nominated by MS, UPPCB; Representative of District Administration nominated by DM, Lucknow; representative of SEAC-2 nominated by Chairman SEAC-2 to submit factual report to Director, Environment Directorate-Uttar Pradesh, Lucknow. However, while going through the committee report, it has been observed that the representative of SEAC-2 was found missing and the officer (Shri Jahiruddin, Superintending Engineer) from Lucknow Developmental Authority (LDA), Lucknow took part as a member in place of SEAC-2 member. These changes have been reflected in the minutes of the meeting of SEIAA.
35.4 As per Ministry Office Memorandum (0.M.) dated 07.07.2021 (Annexure-X), 5.4.1. Define in point no. 9 that it is matter of violation as "Violation" means cases where projects have either started the construction work or installation or excavation, whichever is earlier, on site or have expanded the production capacity and / or project area beyond the limit specified in the Environmental Clearance (Prior-EC) without obtaining Prior-EC or change of scope without prior approval from the Ministry."
5.4.2 And SOP is mentioned in point No 11 for dealing with the violation cases.
5.4.2.1.1 Damage Assessment 5.4.2.1.2 Remedial Plan and 5.4.2.1.3 Community Augmentation Plan by the Central level Sectoral Expert Appraisal Committees or State/ Union Territory Level Expert Appraisal Committees, as the case may be.
5.4.2.2 The Competent Authority shall issue directions to
the project proponent, under section
S of the Environment (Protection) Act, 1986 on case-to-case basis mandating payment of such amount (as may be determined based on Polluters Pay principle) and undertaking activities relating to Remedial Plan and Community Augmentation Plan (to restore environmental damage caused including its social aspects).
5.4.2.3 Penalty provisions for Violation cases and applications are also mentioned at Point 12. In case of expansion projects, where operation/ production with expanded capacity has not commenced: 1% of the project cost, attributable to the expansion, incurred up to the date of filing of application along with EIA /EMP report."
5. The stand of the State PCB is that no CTO has been granted. CTE could be granted before commencing the project but the same was also cancelled due to violations. The stand of the PP is that unit in question was established in 2006 after taking consent to establish dated 22.03.2006 which was valid upto 31.12.2023. EC was not sought but has since been granted. Expansion is only to the extent of 7.6% of the total area which does not involve any additional construction but only relocation of the water tanks and STPs. In view of Electro Steels Limited 4 v. UOI & Ors., 2021 SCC Online SC 1247 and Pahwa Plastics Pvt. Ltd.
and Anr. v. Dastak NGO & Ors., 2022 SCC Online SC 362, even ex-post facto EC could be granted in certain circumstances as per applicable SOP of the MoEF&CC dated 07.01.2022. The PP will follow all legal requirements. There are no violations of norms.
6. We have heard learned counsel for the parties. Issue raised in order dated 29.7.2022 was with regard to CTO before EC by the PCB. Stand of PCB is that no CTO has been granted till date. Only CTE was granted which has been revoked. Thus, no violation is shown except that the PP went ahead of the project without prior EC but EC has been granted ex post facto subject to terms.
7. In view of the above, we do not find any ground to pass any further order in the matter. except that the PP may not proceed with the project without requisite CTE/CTO and without compliance of EC conditions.
Learned counsel for the PP fairly stated that PP will comply with all legal requirements. The matter now be dealt with by the statutory regulators, in accordance with law.
The application is disposed of. ` All IAs also stand disposed of.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM Prof. A. Senthil Vel, EM Dr. Afroz Ahamd, EM December 05, 2022 O.A. No. 569/2022 (Earlier Appeal No. 35/2022) A 5