National Green Tribunal
Mr. Tanaji Balasaheb Gambhire vs The Principal Secretary Environment ... on 11 August, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Appeal No. 48/2019 (WZ)
IN THE MATTER OF :
MR. TANAJI BALASAHEB GAMBHIRE
Age: Adult, Occupation: Self- employed,
R/o- CTS-296, Shukrawar Peth,
Near Shivaji Maratha High School,
Laxmi Apartment, White House Lane,
Pune- 411002, E-mail : [email protected]
.....Appellant
Versus
1. The Principal Secretary, Environment Department,
Government of Maharashtra,
Room No. 217, 2nd Floor, Annex Building,
Mantralaya, Mumbai- 400 032, Maharashtra,
E-mail- [email protected]
2. State Level Environment Impact Assessment Authority-
Maharashtra(SEIAA)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai- 400 032, Maharashtra
3. State Expert Appraisal Committee- III Maharashtra (SEAC-III)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai-400 032, Maharashtra.
4. Maharashtra Pollution Control Board,
Through Member Secretary,
Kalptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion (E)
Mumbai-400 022, Maharashtra.
5. The Chief Engineer,
Khadakwasla Irrigation Division,
Irrigation Department ( Water Resource Department)
Govt. of Maharashtra, Sinchan Bhavan,
Barne Road, Maharashtra.
6. Pune Municipal Corporation
Through Municipal Commissioner,
Shivaji Nagar, Pune-411005, Maharashtra
Page 1 of 31
7. Mr. Prashant Madhukar Waghmare
As City Engineer and Head of Building Permission
Department- PMC
Pune Municipal Corporation,
Shivaji Nagar, Pune-411005, Maharashtra
8. Collector of Pune
As Collector and President of District Environment
Protection Committee- Pune, Collector Office, Bund
Garden, Pune-411001
9. M/s Raviraj Reality
Having Office at Office No.1 to 5, Second Floor,
Millennium Star, Next to Ruby Hall Clinic,
Dhole Patil Road, Pune- 411001, Maharashtra
Through Shri. Ravindra Naupatlal Sakla
....Respondents
Counsel for Applicants :
Appellant-in-person along with Mr. Vijay Mhaske, Advocate and Ms. Kajal Mandge,
Advocate
Counsel for Respondent(s):
Mr. Aniruddha S. Kulkarni, Advocate R-1/Envt. Dept., R-2/SEIAA & R-3/SEAC-III
Ms. Manasi Joshi, Advocate for R-4/MPCB
Ms. Supriya Dangare, Advocate for R-5/Irrigation Dept.
Mr. Rahul Garg, Advocate for R-6 & 7/PMC
Mr. Saurabh Kulkarni, Advocate for R-9/PP
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 28.07.2023
Pronounced on : 11.08.2023
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JUDGMENT
1. This Appeal has been filed with the prayers that the Environment Clearance granted to the Respondent No.9-PP/M/s Raviraj Reality for the project "Vitoria Lagoon" at Village- Bopodi, Tal- Haveli and District Pune be set aside; the Respondent No.6/PMC be directed to revoke all building sanctions / permissions granted to the project, which fall under Blue Flood Line of Mula River; the Respondent No.6/PMC be directed to take action against Respondent No.7/Mr. Prashant Waghmare,City Engineer for sanctioning the project and against Respondent No.7/ Prashant Waghmare.
Page 2 of 31
2. The brief facts of this case as submitted by the Applicant are that the Respondent No.2/SEIAA has granted EC dated 07.05.2019 to Respondent No.9/ M/s. Raviraj Reality-PP for Residential Building Construction Project by the name & style "Vitoria Lagoon" situated at Survey No. 2A/7A(CTS No.8)at Village- Bopodi, Taluka- Haveli, District Pune. The said project is proposed to be undertaken in prohibited zone of blue flood line of Mula River, for which EC has been obtained on the basis of false & misleading information given in Form-I & IA and it is ex-post facto EC, as substantial excavation was already carried out. The EC in question has been procured in collusion with Respondent Government Authorities & and the officers from PMC and this project would have serious adverse impact on the environment & ecology of Mulla river, if permitted. Hence, the above prayers have been made.
3. The Government Circular dated 21.9.1989 issued by the Irrigation Department, State of Maharashtra which is annexed at Page No. 64 to 66 of the paper book lays down prohibited zone. It is mentioned in the Circular that the main riverbed and the area on both banks required to carry the controlled discharge from dam and the flow from free catchment area below the dam should be called as "Prohibitive Zone". While identifying this zone, average flood discharge frequency once in 25 years or one and half times the discharge of the established riverbed carrying capacity, whichever is more shall be considered for marking blue flood line and the area within this line should be considered as Prohibited Zone. This zone should be left open and can be used for gardens, play grounds or light crops. Besides that, this circular defines Prohibited Flood Line (Blue Line): "The level of water on both banks of the river during such floods shall be considered as Prohibitive Flood Line of that particular town identifying the "Prohibitive Zone"" .
4. The EIA Notification, 2006 clearly laid down in Schedule 8(a) that any building and construction project exceeding 20,000 sq.m. would require prior EC to be obtained by the Project Proponent(PP) and in this case the Page 3 of 31 EC dated 07.05.2019 discloses the Built-up-Area (BUA) 40688.68 sq.m. which is annexed at Page No. 48 to 49 of the paper book, hence the prior EC was required in the present case. The Office Memorandum dated 19th August, 2010 issued by the MoEF&CC, which is annexed at Page No. 595 of the paper book, contains clarification to the effect that no activity relating to any project covered under this EIA Notification 2006 including civil construction, can be undertaken at site without obtaining prior environmental clearance except fencing of the site to protect it from getting encroached and construction of temporary shed(s) for the guard(s). The Project Proponent may also note that in case of any project where TORs have been prescribed for undertaking detailed EIA study and where construction activities relating to project have been initiated, the TORs so prescribed may be suspended/ withdrawn in addition to initiating penal action under the provisions of the EP Act, 1986. The Respondent No.5/ Water Resource Department / Irrigation Department had submitted their flood line marking plan to the Respondent No.6/ PMC on 02.06.2010 which is annexed at Page No. 488 to 489 of the paper book.
5. This Tribunal in Original Application No. 02/2013 in Sarang Yadwadkar Vs. The Commissioner, Pune Municipal Corporation, Shivajinagar, Pune and others in judgment delivered on 11th July, 2013 has held in Para 35, 36 and 39 as follows:
"35. The red line, as reflected in this Annexure is the highest flood level 1 in 25 years. Between the red and the blue lines, various structures belonging to different societies have been raised. Alignment of the high rise road apparently appears to be in violation of the circular and is an apparent infringement of environment and ecology. Construction of the high rise road without elevated pillars in the river bed is bound to cause drastic degradation of the environment as well as obstruct the natural flow of the river, particularly during monsoons. The alignment of the existing road has been shown in yellow colour which ends at Slab Drain on the one side and near the boundary wall at point 0+400. The high rise road from 0+400 point to 1+750 point is totally aligned in the river bed and much inside the blue line. Of course, the width of the road is 25 metres, as reflected in Annexure 2/1, filed by Respondent No.3. If the high rise road on the river bed is constructed Page 4 of 31 entirely or even on a major part thereof by concrete and not on elevated pillars, it is bound to result in serious environmental disadvantages like:
(a) Narrow river passage/flood plain which would obviously result in adversely affecting the civilisation during floods in the river.
(b) Obstruction in flow of storm water/ rainy water from drains/ nullahs and the flow shall enter the other side of the proposed elevated road, thereby cause flooding in the area.
(c) Insufficiency of cross drainage at appropriate locations.
(d) Dredging of even two km in the river will not protect floods and damage to the ecology as it would become a pool of water unless or until a proper gradient in downstream is provided."
"36. Besides this, it is very important to avoid environmental damage and in the interest of ecology, flood plains are maintained properly. As the flood plains provide important ecological services like ensuring flow in streams for most of the year through modulation of the river- discharge by conserving huge flow of water derived from peak flow and storm run off during the rainy season and releasing it gradually; recharge the ground water and improve its quality, besides flood plain produce resources like fodder, fuel and timber. Also these provide breeding and feeding ground for fish, reptiles, amphibians, birds and other living creatures in addition to improving water quality through retention and transformation of nutrients and other chemicals. These services or benefits would be adversely affected by any encroachment of the flood plains. In the present case, the total flood plain proposed to be encroached is 2.35km."
"39. The imposition of the above conditions is necessary in the interest of environment and ecology. It is better to take precautions at this stage, even at the cost of additional expenses rather than to face floods, disaster, loss of person and property and irreversible damages to ecology and environment. The precautionary principle, which is a part of the law of the land now and is a Constitutional mandate in terms of Articles 21, 48A and 51A(g) of the Constitution of India, that require the State to safeguard and protect the environment and wild life of the country. It is expected of Respondents No.1 and 3 to anticipate and then prevent the causes of environmental degradation. Furthermore, no public interest would suffer by imposition of the above conditions. If the conditions imposed under this order are found to be onerous by the State, particularly Respondent No.1, then they can even give up the project on river Mutha as an alternative road on the other side of the river has already been constructed to provide the connectivity. In the event the Department decides to give up the road project, it shall be Page 5 of 31 incumbent on it to remove all debris from within the blueline that has been used to create the high rise road segment. It is stated to be a 100 ft. Wide road on the left bank of the river Mutha giving connectivity with the same bypass. Thus, in the present case, Respondent No.1 has options and alternatives available to it while ensuring that both the public interest and the environment do not suffer."
6. The Respondent No.6/PMC granted revalidation building sanction vide order dated 23.11.2015 having total BUA of 20504.4 M2 at Page No. 567 of the paper book, which is more than 20,000 M2 mandating prior EC, which should have been taken, under EIA Notification 2006.
7. On 01.03.2017, Part Plinth Check Certificate for building "C" was issued.
8. On 09.10.2017, Government of Maharashtra released Final Development Plan for PMC old limit for period of 2007-2027.
9. On 17.02.2018, Government of Maharashtra approved excluded part of substantial modifications in the final development plan which is at Page No. 193 to 245 of the paper book.
10. On 03.05.2018, Water Resource Department / Irrigation Department State of Maharashtra issued a circular laying down the Blue flood line and Red flood line which is annexed at Page No. 250 to 258 of the paper book. It has also clarified the prohibited zone and the restricted zone in terms of Blue flood line and Red flood line.
11. On 11.05.2018, Government of Maharashtra issued Final Development Plan for the PMC old limit for excluded part for the period of 2007-2027, which is annexed at Page No. 259 to 261 of the paper book.
12. On 30.07.2018, Government of Maharashtra revised sanction plan, which is annexed at Page No. 263 of the paper book.
13. The Respondent No.9/ PP submitted FORM 1 for grant of EC, date of which is not mentioned, furnishing therein false information with respect to blue flood line, trees and building material which is annexed at Page No. 264 to 298 of the paper book.
14. SEAC-III convened its 80th meeting on 15.01.2019, Minutes of which are annexed at Page Nos. 362 to 374 of the paper book. Page 6 of 31
15. On 27.03.2019, Tree Authority issued NOC to PMC which is annexed at Page No. 379 of the paper book.
16. Minutes of the 165th meeting of SEIAA held on 24.04.2019 which is annexed at Page No. 380 to 392 of the paper book.
17. On 07.05.2019, impugned EC was granted by the SEIAA for the project falling under prohibited zone of blue flood line which is annexed at Page No. 48 to 61 of the paper book.
18. The present Appeal was filed on 06.06.2019. A complaint was made by the Appellant to SEIAAA and PS-DoE on 10.06.2019 which is annexed at Page No. 597 to 627 of the paper book. On the basis of said complaint the SEIAA had issued Show Cause Notice to Project Proponent(PP) on 15.06.2019 which is annexed at Page No. 628 to 630 of the paper book. Thereafter, the Appellant made a complaint to Maharashtra Pollution Control Board (MPCB) on 08.08.2019 which is annexed at Page No. 631 to 654 of the paper book.
19. In Original Application No. 41/2019(WZ), this Tribunal had passed order dated 30.01.2020 directing the PCMC to demolish the Sewage Treatment Plan (STP) in question because the same was found obstructing the natural flow of river during the rainy season and direction was issued to construct one at some other suitable site in accordance with law. Since, severe damage was caused to the environment and ecology of the area, direction was issued to the MPCB to assess the ecological damage on scientific basis and recover the same from the PCMC. The said order was upheld by the Hon'ble Supreme Court vide order dated 04.06.2020 passed in Civil Appeal No. 2083/2020 (Pimpri Chinchwad Municipal Corporation Vs. Federation of River Residency Co-operative Housing Society & Ors.) judgment of the Hon'ble Supreme Court, referred to above, has been annexed at Page No. 662 to 663 of the paper book.
20. Further, it is mentioned that on 27.07.2020, the Maharashtra Pollution Control Board (MPCB) rejected Consent to Establish (CTE) to the Page 7 of 31 Project Proponent which is annexed at Page No. 494 to 495 of the paper book.
21. Further, it is submitted that the Joint Committee was constituted by this Tribunal which has submitted its Report on 10.11.2021 which is annexed at Page No. 453 to 500 of the paper book. The relevant portion of the said report is quoted hereunder:
Sr. Points Examined by the Joint Remarks No. Committee A Application filed by PP for Environment As per the information Clearances under EIA Notification 2006 is given by the PMC vide not for prior EC as substantial excavation letter dated 08.11.2021, and part of building -C have carried out by Original layout was the Project Proponent. Sanctioned by PMC vide Commencement Certificate No. CC/DPO/11111/4/378, on 29.03.2007 for land area 17032.11 sq. m.
First Building Plan
was approved by PMC
as per CC number
CC/4775/2006 dated
30.03.2007, revised
Sanction CC/2355/11,
second revalidation was
taken on 23.11.2015
vide commencement
certificate No. 2693/15
and the area was less
than 20,000 sq. meter.
Hence EC was not
applicable as per EIA
Notification 2006.
Accordingly, Part Plinth
checking certificate was
issued vide reference No.
PCC/ 1168/16 for 31.75
Sq. Meter on 01.03.2017
by PMC.
Further layout was
again revised, and
commencement
certificate was issued
vide CC/1290/18, Dt.
30.07.2018 for F. S. I.
21,565.97 Sq. Meter. The
plan is force.
Accordingly, PP has
Page 8 of 31
applied for Environment
Clearance.
PMC‟s letter dated
08.11.2021 is attached
herewith and annexed
as Annexure-I
B Environment Clearance under challenge is As per PMC letter dated
not prior EC and it is nothing but ex-post 08.11.2021, vide point facto Environment Clearance. K- PMC informed that as C Concept of granting of ex-post Environment per second revalidation Clearance is not allowed in environmental was sanctioned by PMC jurisprudence in India. vide Commencement Certificate No. 2693/15 on 23.11.2015 in which area was less than 20,000 sq.m. Hence environmental Clearance is not applicable at this stage. Accordingly, part plinth checking Certificate was issued by PMC vide ref. No. PCC/1168/16 on 01.03.2017 for area 31.74 sq.m.
Vide Point No. M-PMC informed that PP has not carried out any construction action after issuance of part plinth checking certificate dated 01.03.2017.
Vide Point. T-PMCX
informed that, as per the
new TDR policy and new
PMC, DC Rules
published in January
2017, the entire proposal
and potential for FSI
area has been changed.
Layout was again
revised, the
Commencement
Certificate was issued
vide CC/1290/18 dated
30.07.2018 for FSI-
21565.97 Sq.m. on
condition to obtain
Environment Clearance.
Environment
Department, GoM
granted EC to project on
07.05.2019 as per IOD
NO. CC/1290/18 dated
30.07.2018. In granted
EC PP has informed
about initiated work as
Plinth Certificate
received on 01.03.2017.
Copy of Environment
Page 9 of 31
Clearance dated
07.05.2019 is attached
herewith and annexed
as Annexure-II.
PMC Plinth Certificate
dated 01.03.2017 is
attached herewith and
annexed as Annexure-III.
PMC Commencement
Certificate dated
30.07.2018 is attached
herewith and annexed
as Annexure-IV.
d Entire Project land is under Blue flood line As informed by Irrigation of Mula River and in fact within main Department, Pune vide riverine and therefore granting of EC is not letter dated 06.09.2021 mechanical exercise. informed that the site in question i.e. No. CTS-8, No. 2A/7A Bopodi comes under blue line in which construction activity is not permitted. Also informed that the Irrigation Department, Pune has already submitted Red and Blue line flood maps of Mula River from Wakad bridge to Mula- Mutha confluence to Pune Municipal Corporation on 05.01.2010.
Copy of the letter of
Irrigation Department
Pune dated 06.09.2021
is enclosed and annexed
herewith as an
Annexure- V
As per the information
given by the PMC vide
letter dated 08.11.2021,
the red and blue flood
lines have been marked
on the Development plan
of Pune only after year
2017. Original layout
was sanctioned by Pune
Municipal Corporation
vide commencement
certificate No.
CC/DPO/11111/4/378
on 29.03.2007, First
building permission plan
was approved by Pune
Municipal Corporation as
per commencement
certificate No.
CC/4775/2006 dated
30.03.2007 which was
many years before the
marking of these red and
Page 10 of 31
blue flood lines and the
plans are in force.
e PP has submitted false, baseless & The remarks are same misleading information to SEIAA while as mentioned in point obtaining Environment Clearance and numbers „b‟ and „c‟ therefore PP is guilty of "Suppressio Veri Suggestio Flasi"
f PP has submitted false, defective and misleading application for EC before SEIAA g Project is situated in Pollution prevention PMC vide letter dated area of Pune city and within boundaries of 08.11.2021 informed Eco-sensitive fields of Mula River. that the project area as per 1987 Development Plan was shown in Industrial Zone. Then after PMC has sanctioned the proposal of Conversion of Zone from Industrial to Residential Zone Vide Municipal Commissioner order dt. 28.03.2007.
There after as per
Excluded portion -174,
State Government has
ordered Municipal
Corporation vide letter
dated 30.03.2007 to
sanction building
permission. Accordingly,
revised permission has
granted by PMC on
23.11.2015.
In view of above
Industrial Zone shown
on land S. No. 2/A/7A,
Mauje Bopodi, Talukha
Haveli, Pune is deleted
and included in
Residential Zone.
As per sanctioned
development Plan i.e. D.
P. Of city of Pune 1987,
there is no mention of
Eco-sensitive Zone on
sanctioned development
plan.
h PP has not preserved the top layer of the PP has carried out fertile soil and carried out excavation prior hydrogeological and geo to EC physical study.
i PP has not done soil and ground water test. No report has been submitted. Copy of the report is attached herewith and annexed as Annexure VI j PP has using ground water from bore well During visit no any at project site without appropriate construction activity clearances. found in operation.
There are two borewells
exists on site
Page 11 of 31
However, during visit,
extraction of ground
water is not observed.
k PMC officers have neglected to perform As per the information their duties for protection of environment given by the PMC vide and acted against the law. letter dated 08.11.2021, original layout was Sanction by PMC vide Commencement Certificate No. CC/DPO/11111/4/378, dt. 29.03.2007 for land area 17032.11 sq.m.
First building plan was
approved by PMC as per
CC number
CC/4775/2006 dated
30.03.2007, revised
Sanction CC/1486 dated
18.08.2008, first
Revalidation was taken
on 07.10.2011 Vide
Commencement
certificate No.
CC/2355/11. Second
revalidation was taken
on 23.11.2015 vide
commencement
certificate No. 2693/15
and the area was less
than 20,000 sq. m.
Hence EC was not
applicable as per EIA
Notification 2006.
Accordingly, Part Plinth
Checking certificate was
issued vide reference No.
PCC/1168/16 for 31.75
sq. m. on 01.03.2017.
Further layout was
again revised, and
commencement
certificate was issued
vide CC/1290/18, date
30.07.2018 for F. S. I.
21,565.97 sq. m. First
building permission plan
was approved by Pune
Municipal Corporation as
per commencement
certificate No.
CC/4775/2006 dated
30.03.2007 which was
many years before the
marking of Red and Blue
flood lines.
l PP has carried out substantial excavation PP has carried out in illegal manner causing damage to the construction work as per Ground Water level. sanction granted by PMC Page 12 of 31 m PMC, SEAC, SEIAA, DoE, MPCB and PMC has granted Irrigation Department (WRD() is failed to sanction to PP. stop illegal excavation at site deliberately. Accordingly, pp has n Substantial violations and illegal acts of carried out construction respondents are damaging the environment of building C and and given counter blast to the sustainable obtained Part Plinth development. Checking Certificate from PMC vide No. PCC/1168/16 on 01.03.2017 for area 31.75 sq.m. After that PP has not carried out any construction activity.
After that according to new TDR policy and new PMC DC Rule published in Jan. 2017 the entire proposal and potential of the project has been changed.
Accordingly, revised
layout sanctioned by
PMC vide No.
CC/1290/18 on
30.07.2018 for FSI
21565.97 sq. m. (not
mentioned non FSI area).
On the same basis, PP
has applied for
Environmental Clearance
and Environment
Department, Govt. of
Maharashtra, Mumbai
has granted EC to PP on
07.05.2019.
o No application for prior Consent to Respondent PP had
Establish from MPCB and construction is applied to MPCB for
initiated without Consent to Establish by obtaining Consent to
PP. Establish for proposed
total BUA 40688.68
sq.m. on 15.07.2019.
However, the MPCB vide
letter dated 27.07.2020
refused the consent for
non-submission of
required documents.
Refusal of Consent date
27.07.2020 is attached
an Annexed herewith as
an Annexure VII. After
part plinth certificate
obtained by PP from
PMC on 01.03.2017, PP
has not carried out any
further construction
activity. Hence not
reapplied for consent to
establish.
p PP has disclosed only 44 no. of existing While going through EC
trees at site and suppressed information of application it is observed
Page 13 of 31
the existing 297 trees. And while granting that the PP has
EC no existing is disclosed. submitted incorrect
information about
number of trees exist on
site. SEAC informed PP
to submit Garden NOC
along with other
necessary / related
documents. PMC
Garden Department vide
letter dated 27.03.2019
issued provisional
garden NOC and stated
number of existing trees
as 297 at site.
EC application page
number 387, decision of
SEAC page Number 391
and Garden NOC issued
by PMC are annexed
and attached herewith
as an Annexure- VIII.
q There is complete non-application of mind As per the information by the local authority while issuing given by the PMC vide building sanction. letter dated 08.11.2021, original layout was Sanction by PMC vide Commencement Certificate No. CC/DPO/11111/4/378, dt. 29.03.2007 for land area 17032.11 sq. m.
First Building Plan was
approved by PMC as per
CC number
CC/4775/2006 dated
30.03.2007, revised
Sanction CC/1486 dated
18.08.2008, first
Revalidation was taken
on 07.10.2011 vide
Commencement
Certificate No.
CC/2355/11. Second
revalidation was taken
on 23.11.2015 vide
Commencement
Certificate No. 2693/15
and the area was less
than 20,000 sq.m.
Hence EC was not
applicable as per EIA
Notification 2006.
Accordingly, Part Plinth
Checking Certificate was
issued vide reference No.
PCC/1168/16 for 31.75
sq. m. on 01.03.2017.
Page 14 of 31
Further layout was
again revised and
commencement
certificate was issued
vide CC/1290/18, dt.
30.07.2018 for FSI
21,565.97 sq.m. on the
condition to obtain
Environment Clearance
Certificate from EIA. The
plan is in force.
Remarks and conclusion of Committee:
1. As informed by Irrigation Department, Pune vide letter dated 06.09.2021 that the site in question i.e. No. CTS- 8, No. 2A/7A Bopodi comes under blue line wherein construction activity is not permitted. Also informed that the Irrigation Department Pune has already submitted Red and Blue line flood maps of Mula river from Wakad bridge to Mula-Mutha confluence to Pune Municipal Corporation on 05.01.2010.
2. As per PMC report, its observed that original layout and first building plan, sanctioned by PMC on 30.03.2007 which was many years before the marking of red and blue flood lines and plans were revised from time to time. And the revised plan vide CC No. CC/ 1290/18 dated 30.07.2018 is in force.
3. PP has obtained Environment Clearance from Environment Department, GOM, on 07.05.2019 as per IOD No. CC/1290/18 dated 30.07.2018 . In granted EC PP has informed about initiated work as Plinth Certificate received on 01.03.2017.
4. During visit of committee on 13.08.2021 no any construction activity found in operation. As per PMC report, no further work done by PP after issuance of Part Plinth Checking Certificate vide No. PCC/1168/16 dated 01.03.2017.
5. PP has applied for consent to establish to Maharashtra Pollution Control Board on 15.07.2019. However, the MPCB vide letter dated 27.07.2020 refused the consent for non-submission of required documents.
6. During visit, two bore wells were observed in premises. However, extraction of ground water not observed.
7. From the EC application, its observed that PP has submitted incorrect information about number of trees exist on site as 44. PMC Garden Department vide letter dated 27.03.2019 issued provisional garden NOC and stated number of existing trees as 297 at site."
22. Based on the above documents, it is submitted by the appellant that the Respondent No.5/Water Resource Department /Irrigation Page 15 of 31 Department submitted their flood line marking plan to the Respondent No.6/PMC vide letter dated 02.06.2010 which clearly shows that the project site is falling under prohibited blue flood line of Mula River and as per the Government of Maharashtra Notification dated 21.09.1989, no such construction is permissible in blue flood line and prior to that, the Respondent No.6/PMC issued direction to the Respondent No.9/PP vide letter dated 11.09.2007 to obtain the flood line marking on the project site. However, the Respondent No.9/PP did not obtain the flood line marking till date as Project Proponent (PP) is aware that the entire project is falling under prohibited zone of blue flood line. Judgement dated 11.07.2013 of this Tribunal in O. A. No. 02/2013 (PB) also clarified that no construction could be made in blue flood line area. Despite this knowledge, the Respondent No.6/PMC & Respondent No.7/Mr. Prashant Waghmare have issued revalidation & revised building & layout sanction vide order dated 23.11.2015(at 596 of the paper book) for total proposed BUA of more than 20504.4 M2 . But we do not find the area recorded specifically in the said lay out sanction. In it, we find total F. A. R. permissible recorded 11104.47 sq.m., but it appears that the appellant may have added therein the other non FSI area also, the details of which are not found by us given by either side nor given in the said map. The details of the said BUA 20504.4 M2 are given by the Appellant in rejoinder affidavit at Page No. 567 of the paper book in Para No. 4 (E) which are as follows:
" E) I stated that, the PMC granted revalidation building sanction vide dated 23.11.2015 having total BUA of 20504.4 M2 i.e. more than 20,000 M2 mandating prior EC under EIA Notification, 2006.
Sr. Revalidation Sanction No. dated Total BUA (M2 ) No. 23.11.2015 Particulars
1. FSI Area 11100.80
2. Balcony 1622.62
3. Staircase 411.64
4. Passage 746.76
5. Lift & L. M. Room 57.80
6. Terrace 2790.28 7 Parking 3654.50 Page 16 of 31 8 U.G. Water Tank, T1 (6x5x2) 60.00
9. O. H. Water Tank, T2 (6x5x2) 60.00 10 O. H. Tank 11 MSEB
12. Total BUA 20504.4
23. The Project Proponent has carried the substantial excavation in the year 2016-17 and also obtained the part plinth check certificate from PMC, which is at Page No. 190 of the paper book, for an area 31.75 M2 . The project in question has resulted in substantial irreparable damage to the river, which is environmentally & ecologically sensitive area. The PMC released the Development Plans with flood line marking, vide communication dated 09.10.2017 which is at Page No. 191 to 192 of the book. Irrigation Department Government of Maharashtra issued Notification dated 03.05.2018 on flood line marking & imposing prohibition on activity within blue flood line which is annexed at Page No.250 to 258 of the paper book. Despite this knowledge, the Respondent No.6/PMC and Respondent No.7/Mr. Prashant Waghmare have issued revalidation & revised building & layout sanction vide dated 30.07.2018 which is annexed at Page No. 263 of the paper book, for project falling into prohibited blue flood line.
24. Further, it is mentioned that the Project Proponent applied for the Environment Clearance (date not mentioned) in order to procure ex-post facto EC, which is annexed at Page No. 264 to 298 of the paper book (FORM 1 and FORM-1 A relating to the said EC which are annexed at Page No. 264 to 298 of the paper book), which was considered by SEAC-III for appraisal in its 80th meeting held on 25.04.2019 which is annexed at Page No. 362 to 374 of the paper book by recommending it to the SEIAA and SEIAA assessed the proposal in its 165th meeting held on 25.04.2019, minutes of which are annexed at Page No. 380 to 392 of the paper book and decided to grant the EC. The impugned EC was granted on 07.05.2019 for the building project falling under prohibited zone of blue flood line. Therefore, this impugned EC is required to be quashed and set aside with Page 17 of 31 exemplary damages for illegal excavation and heavy cost for illegal practices adopted by Project Proponent (PP).
25. Further, it is mentioned by the Appellant that the information furnished by the Project Proponent (PP) in FORM-1 and FORM-1A is defective & amounts to suppressing the information, resulting into wrong appraisal & assessment. For this, he has culled out following details in Tabular form in FORM 1 and FORM1A.
22 Whether there is any government order/ policy relevant / No. relating to the site ?
1.21 Impoundment, damming, NO. Not applicable.
culvering, realignment or other changes to the hydrology of watercourses or aquifers ?
(SEIAA Additional Affidavit
21.04.2023)
1.24 Changes in water bodes or the No. No change in the
land surface affecting water bodies or the
drainage or run-off ? land use surface
affecting natural
drainage ways.
1.4 Pre-construction investigation Yes Soil testing will be
e.g. bore houses, soil testing ? carried out.
2.1 Land especially undeveloped Yes Proposed site does not
or agricultural land (ha) fall under Agriculture or
Non-Development Zone
2.4 Construction material stone, Yes Construction materials
aggregates, sand/ soil such as cement, steel,
(expected source-MT) metal sand and bricks
will be procured from
authorized dealers.
8.3 Could the project be affected No The project area falls
by natural disasters causing under zone III as per
environmental damage (e.g. Map showing Seismic
floods, earthequakes, Zones of India. Zone III
landslides, cloudburst etc) ? is of moderate Seismic
Intensity. The building
design has been
planned accordingly.
(III) Environmental Sensitivity
2 Areas which are important or Yes Mula River: 0.06 km
sensitive for ecological
reasons - wetlands,
watercourses or other water
bodies, coastal zone,
biospheres mountains, forests
12 Areas susceptible to natural No Earthquake zone III.
hazard which could cause the Therefore, all relevant
project to present design parameters as
environmental problems per zone have been
(earthquakes, subsidence, considered for RCC
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landslides, erosion, flooding or design of the buildings.
extreme or adverse climatic
conditions)
From the above table, we find in column No.2, information which was required to be furnished is mentioned and the same is given in column No. 3 which is being stated by the appellant to be wrong for the reasons which has been given column No. 4 against each information, which was required to be submitted.
26. Further, it is mentioned that the Project Proponent (PP) has disclosed only 44 no. of existing trees at site and suppressed information of the existing 297 trees. He did not disclose correct information regarding the existing trees at the time of grant of EC. Minutes of the meeting of SEAC-III are annexed at Page No. 369 of the paper book. We have also gone through the said minutes and find that the Project Proponent (PP) has indicated information against the information sought regarding number of trees to be cut / NA, which, in our estimation, amounts to saying that for the construction of the project in question, there was no requirement of cutting of any tree, which certainly would amount to furnishing wrong information on the part of the Project Proponent before SEAC-III.
27. Further, it is mentioned by the Appellant that the Joint Committee has filed its Report which is annexed at Page No. 453 to 500 of the paper book and has supported the contention of the Appellant by saying that the project in question is falling in prohibited zone of blue flood line of Mula River and also, PP has submitted incorrect information of existing 44 trees, when actually there were 297 trees at site as per NOC of PMC. In the case in hand, CTE was rejected by MPCB and two bore wells were found there. The Joint Committee has admitted that there is plinth check & excavation at site.
28. Further, it is mentioned by the Appellant that the Respondent No.4/MPCB vide its affidavit dated 16th March 2022, at Page No. 501 to 503 of the paper book has admitted that the MPCB has rejected the Consent to Page 19 of 31 Establish to the project on account of non- submission of the certificate of Executive Engineer from Irrigation Department on 27.07.2020, which is annexed at Page No. 504 to 505 of the paper book.
29. Further, it is submitted by the Appellant that the Respondent No.2/SEIAA, vide its reply affidavit dated 25.01.2023 has initially misled this Tribunal by stating that the grant of EC dated 07.05.2019 is subject to the General Condition No. V and after that as per the NGT order dated 27.01.2023, the Respondent No.2/SEIAA filed another affidavit dated 21.04.2023 and changed that stand, Project Proponent has misled on account of withholding vital information in respect of the recent government policy which ought to have been disclosed in item No.22 of Form- 1, Item No. 1.21, 1.24, Environmental item # 12 etc. Therefore, it is prayed that as per the final stand of the Respondent No.2/SEIAA in their affidavit dated 21.04.2023, the impugned EC required to be quashed.
30. Further, it is mentioned by the Appellant that the Respondent No. 5/Irrigation Department had submitted the flood line marking maps to the Respondent No.6/PMC vide letter dated 02.06.2010 and confirmed that the project in question was affected by the blue flood line and construction is not permissible on project land. But even then the PMC through its officers Mr. Prashant Waghmare had revised and revalidated the plan vide sanction dated 23.11.2015 (annexed at Page No. 596 of the paper book), and vide order dated 30.07.2018 (annexed at Page No. 263 of the paper book) and facilitated the Respondent No.9/PP in procuring the impugned EC dated 07.05.2019 in illegal manner.
31. Further, it is mentioned that the Project Proponent has carried out the excavation in the year 2016-2017 after obtaining sanction dated 23.11.2015 having total BUA of 20504.40 M2 requiring prior EC under EIA Notification, 2006. For this reason, impugned EC dated 07.05.2019 should be treated to be ex-post facto and not prior EC.
32. Further, it is mentioned by the Appellant that the Respondent No.9/PP is trying to wriggle out the blatant illegality of procuring of EC Page 20 of 31 dated 07.05.2019 for residential building construction project falling under prohibited zone of blue flood line of Mula River. The Project Proponent has filed an additional affidavit vide dated 28.04.2023, saying that it had filed application dated 18.04.2023 before SEIAA on 25.04.2023 for conditional withdrawal of impugned EC dated 07.05.2023, subject to reserving right to construct in future. This stand of Project Proponent is totally illegal & mischievous and as he is trying to wriggle out of the crime committed with help of his deep unholy nexus with corrupt Government Officials. Therefore, such affidavit and applications for withdrawal of EC should not be given any consideration. On the contrary, such attempt should be saddled with imposition of heavy costs. The said step taken by the Project Proponent would not render the present appeal infructuous because the same has been taken by the Project Proponent in order to cover up his wrong. Such step, which is a crime adopted by the Project Proponent, would defeat the purpose of the EIA Notification 2006 and would also be an acute serious threat to the local people living in the vicinity of the project site.
33. The Project Proponent has resorted to above step with an ulterior motive, who is habitual offender. The Project Proponent of the present Appeal and the Respondent No.9/PP and the Respondent No.16/PP of O.A. No. 28/2019 (WZ) belong to the same business group, which have been imposed Environmental Compensation of Rs. 5.90 Crores in O.A. No. 28/2019 and also, this Tribunal has directed PMC Commissioner to take action against the PMC erring officers for helping PP vide its order dated 22.02.2022.
34. During argument, the learned counsel for the appellant vehemently stated that he has challenged the impugned EC on the ground of its being granted in blue flood line of Mula river which could not have been issued in view of specific provision for the same which has been stated above and yet the same has been issued by the SEIAA knowingly. Therefore, even if the withdrawal is prayed by the appellant before SEIAA and the same is Page 21 of 31 allowed, it would not render the present Appeal infructuous. The appellant has assailed the EC because of its being illegal and is not concerned with withdrawal of the said EC. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Union of India & others Vs. Narendra Singh (2005) 6 SCC 106. The relevant portion has been quoted hereinunder:
"5. The High Court‟s order is clearly indefensible. A writ petition questioning the Tribunal‟s order on merits does not become infructuous by giving effect to the Tribunal‟s order. Merely because the order of reinstatement had been implemented by the appellant, that did not render the writ petition infructuous as has been observed by the High Court. This position was clearly stated in Union of India Vs. G. R. Prabhavalkar. In Para 23 of the decision it was observed as follows:
"23. Mr. Singhvi, learned counsel, then referred us to the fact that after the judgment of the High Court the State Government has passed an order on 19.03.1971, the effect of which is to equate of Sales Tax Officers of the erstwhile Madhya Pradesh State with the Sales Tax Officers, Grade III, of Bombay. This order, in our opinion, has been passed by the State Government only to comply with the directions given by the High Court. It was made a during period when the appeal against the judgment was pending in this court. The fact that the State Government took steps to comply with the directions of the High Court cannot lead to the inference that the appeal by the Union of India has become infructuous."
6. The expression infructuous means ineffective, unproductive and unfruitful. It is derived from the Latin Word "fructus" (fruit). By implementing an order, the challenge to the validity of the order is nit wiped out and is not rendered redundant.
7. The inevitable result is that the appeal deserves to be allowed which we direct. The order of the High Court is set aside and the matter is remitted to it for fresh disposal on merits. We make it clear that we have not expressed any opinion on the merits of the case.
8. The appeal is allowed with no order as to costs."
35. The stand of Respondent No.4/MPCB is as follows:
The Respondent No.9/PP had made an Application for grant of Consent to Establish to the Maharashtra Pollution Control Board on Page 22 of 31 15.07.2019 for proposed total BUA of 40,688.68 sq. mtr. The answering Respondent has rejected the Application for grant of Consent to Establish to the Project Proponent on 27.07.2020 for non-submission of required documents. A copy of the refusal of consent application is annexed as Annexure-I. Further, it is mentioned that the Respondent No.9/PP has not applied for grant of Consent to Establish along with requisite documents to the answering Respondent till date. Besides that, the reliance has been placed by the answering Respondent upon the Joint Committee Report which we have already reproduced above.
36. From the side of Respondent No.9/PP, reply affidavit dated 28.03.2022 has been filed, where-in it is submitted that the answering Respondent decided to construct the project in question "Vitoria Lagoon"
on the land bearing CTS No.8, 2A/7A, Bopodi Pune. The answering Respondent after preparing necessary documentation applied to the Respondent No.6/PMC for sanction of the project which was sanctioned vide Commencement Certificate dated 29th March 2007. The building plan was approved vide order dated 30th March, 2007. Since at the time of sanction, the area to be constructed was well below the threshold limit of 20000 sq.mtr., it did not require EC. The answering Respondent decided to seek further revision of the lay out as future FSI component was taken into consideration, the same was accorded vide Commencement Certificate dated 30th July, 2018. In view of the revision of the layout of the property of the answering respondent, the Respondent No.6/PMC directed the answering Respondent to obtain the Environmental Clearance. The answering Respondent had provided all relevant information at the time of applying for the Environmental Clearance Certificate and EC was granted on 07th May 2019. The answering Respondent has not commenced any construction at site and that only excavation work was carried out, for which the permission was granted by the Respondent No.6/PMC. The said fact has also been confirmed by the Joint Committee report dated 8th Page 23 of 31 November, 2021. The answering Respondent has not commenced any construction activity at the site. There is no question of causing any damage to environment and ecology. The land was already reserved for industrial activity in the year 1987, as shown in the development plan dated 05.01.1987. The said reservation was never challenged by the appellant at any point of time, therefore, the same cannot be entertained at this stage because it also does not fall within Schedule I of the NGT Act, 2010.
Further, it is mentioned that at the time of the sanctioning of the layout of the project of the answering Respondent, the demarcation of red line and blue line was not done on the development plan and the said demarcation came only in the year 2017. It is a trite law, which has also been confirmed by the Hon'ble Supreme Court in Civil Appeal No. 595/2021 Sai Baba Sales Pvt. Ltd. Vs. Union of India, decided on November 26, 2021, that a developer is not required to run around for various permissions if there has been any change in the legal position. Therefore, at the time of sanctioning of the layout, there was no demarcation of the red line and the blue line, and the demarcation which has taken place in 2017, cannot be made applicable to the project in question retrospectively.
Further, it is mentioned that the answering Respondent provided relevant information on FORM- I and I-A to the SEIAA for grant of EC, which was well examined by SEIAA. There was no question of the answering Respondent of suppressing any facts from the Authorities. The answering Respondent has not constructed any structure on the land in question and that whatever excavation work has been done, was permitted by the Respondent No.6/PMC. It appears that if the Appellant was so concerned with the destruction of the environment, he could have taken objection in the year 2017. Therefore, it is clear that he has chosen to bring this appeal only with view to harass the answering Respondent. The Appellant has not challenged any of the sanctions given by the Respondent No.6/PMC and the EC has been granted based on those sanctions.Page 24 of 31
Therefore, at this belated stage, appellant cannot be allowed to bring this appeal. Hence, it is prayed that the Appeal should be dismissed with costs.
37. The Stand of Respondent No.2/SEIAA is as follows:
The answering has granted the EC on the information furnished in FORM I & IA and other documents submitted by the Respondent No.9/PP subject to certain conditions which are mentioned in Para-5 (V) as follows:
"V. The height, Construction built up area of proposed construction shall be in accordance with the existing FSI/FAR norms of the urban local body & it should ensure the same along with survey number before approving layout plan & before according commencement certificate to proposed work. Plan approving authority should also ensure the zoning permissibility for the proposed project as per the approved development plan of the area."
38. The Stand of Respondent No.9/Project Proponent is as follows:
From the side of Respondent No.9/PP, additional affidavit dated 28.04.2023 has been filed, where-in it is submitted that the answering Respondent has sought permission to withdraw the Environmental Clearance dated 7th May, 2019 and has also vide the said application informed the Respondent No.2/SEIAA, that the provision and procedure to surrender the Environmental Clearance as per the OM was not yet available on PARIVESH portal, hence the application in hard copy was being submitted to the Respondent No.2/SEIAA. The answering Respondent also sought the withdrawal of the EC by reserving the rights to construct in future after obtaining necessary permissions in accordance with law.
39. From the side of Respondent No.2/SEIAA, additional affidavit dated 30.04.2023 has been filed, where-in it is submitted that the answering Respondent granted EC based on the information provided by the Respondent No.9/PP in their application for obtaining EC in the FORM I and IA. Following points are relevant pertaining to the issue as to whether the project is affected by the Blue Flood Line of the River Mula- Page 25 of 31
a. In item No.22, Whether there is any government order/policy relevant/ relating to the site ? PP has mentioned NO in the details column. Whereas, PP should have mentioned the details of Irrigation Department Circular dated 02.09.1998, 21.09.1989 and 09.05.2018, which they haven‟t.
b. Further, In Actvity Column1. Construction, operation or decommissioning of the Project involving actions, which will cause physical changes in the locality (topography, land use, changes in water bodies, etc.), serial No. 1.21 Impoundment, damming, culverting, realignment or other changes to the hydrology of watercourses or aquifers?. PP has answered Not Applicable, Whereas PP ought to have mentioned the details of Mula River. c. Further in serial No. 1.24 Changes in water bodies or the land surface affecting drainage or run off? PP has answered, No change in the water bodes or the land use surface affecting natural drainage ways, whereas PP ought to have answered the possibility of their activity affecting Mula River.
d. Further in Form I, (III) Environmental Sensitivity, Serial No. 12, Areas susceptible to natural hazard which could cause the project to present environmental problems earthquakes, subsidence, landslides, erosion, flooding or extreme or adverse climatic conditions. PP has mentioned about earth Quake Zone III. In addition to that, PP ought to have mentioned about possibility of risks due to flooding of river Mula, which they haven‟t. Thereafter, it is submitted that the above non disclosures/ suppression of vital information regarding the project being affected due to Blue Flood Line of River Mula, it can be concluded that PP has misled SEIAA while obtaining the impugned EC.
40. From the side of Respondent No.2/SEIAA, another additional affidavit dated 27.07.2023 has been filed, where-in it is submitted that the Appeal is filed seeking cancellation of the environment clearance dated 07.05.2019 granted by the answering Respondent to the Respondent No.9/PP. The Project Proponent has submitted a physical application dated 18.04.2023 before the answering Respondent for conditional surrender of the impugned EC, reserving the right to develop the property in future, in accordance with law. There is provision made in OM issued by MoEF&CC dated 29th March, 2022, laying down the procedure to be followed by the Project Proponent while surrendering the EC. It is further mentioned that Page 26 of 31 this Tribunal on 01.05.2023 after considering the said withdrawal application by Project Proponent had passed the following order-
"....6. In the meantime, we direct the Respondent No.2/SEIAA to appraise the application, which is pending before it for consideration regarding surrendering of the EC and submit its reply, as to whether they have considered it, what is the status thereof and whether in view of the decision of the said application, this appeal should be treated as infructuous or not ?"
Further, it is mentioned that on 21.07.2023, the Project Proponent submitted a letter to SEIAA along with documents in support of their application dated 18.04.2023 for withdrawal of the impugned EC, as mandated by the MoEF&CC's OM dated 29th March, 20222. Thereafter, withdrawal application was considered in the Minutes of the meeting of SEIAA held on 24th July, 2023. Thereafter, Project Proponent was directed to submit certain documents. Those were submitted by the Project Proponent. Further, it is mentioned that the Project Proponent has not obtained consent from MPCB. Satellite image of the project site would show that the Project Proponent has not initiated any construction activity on the site in question. Accordingly SEIAA opined that, as Project Proponent has not initiated construction activity as per EC dated 07th May, 2019, request by Project Proponent regarding surrender of Environment Clearance dated 07th May, 2019 was accepted.
41. From the side of Respondent No.6/PMC and Respondent No.7/Mr. Prashant Waghmare, another additional affidavit dated 29.07.2023 has been filed, where-in earlier stand has been reiterated and in addition to that it is submitted that the Unified Development Control and Promotion Regulations, 2020 for the Maharashtra State, Rule 3.1.3 provides that redevelopment of the existing authorized properties, within riverbank and blue flood line, may be permitted at a plinth height of 0.45 m. above red flood line level. The answering Respondent considered this case as a case of committed development and therefore revision to the sanctioned plan of 2007 was granted.
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42. We have heard the learned counsel for the parties and perused the record.
43. It is apparent from the facts mentioned above that the Respondent No.2/SEIAA has granted impugned EC dated 07.05.2019 in favour of Respondent No. 9/PP based on the information furnished by the Respondent No.9/PP on Form-I & IA. The said EC has been assailed by the learned counsel for the Appellant on various grounds mentioned above. We have framed the following issues for being decided by us in this Appeal.
I. Whether any concealment has been made by the Respondent No.9/PP in furnishing information to the Respondent No.2/SEIAA at the time of seeking grant of EC to it ? II. Whether the application for withdrawal of the EC would result in rendering the present Appeal infructuous ? III. What relief ?
Findings :
44. As to Issue No. I As per this issue, we have to decide as to whether any concealment has been made by the Respondent No.9/PP in furnishing information to the Respondent No.2/SEIAA at the time of seeking grant of EC to it ?. In this regard, we may refer to the affidavit of Respondent No.2/SEIAA cited above, it is very clearly admitted by it that the information furnished by the Respondent No.9/PP was erroneous on several grounds and this opinion has also been fortified by the Joint Committee as well which has been cited by us above. We can very well conclude that the relevant information was not furnished by the Respondent No.9/PP to the SEIAA. At this very stage we would like to record our displeasure with the SEIAA as when the SEIAA was supposed to make appraisal of the project on the basis of information furnished by the Project Proponent, how it escaped their notice that wrong misleading information has been furnished or some information has been suppressed by the Project Proponent, as is being said by SEIAA at belated stage.
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We have scrutinized the lay out submitted by the Project Proponent to Respondent No.6/PMC on 30.07.2018 which is annexed at Page No. 263 of the paper book where-in there is no blue flood line drawn even though the blue flood line was marked on the development plan lay out in the year 2017 which is mentioned in the affidavit dated 29.07.2023 of the PMC in the Para-5. We note that the distance of the proposed building line from the edge of the river seems to be about 21 m to 32 m away. If marking of the blue flood line on the layout was insisted / asked for by the Respondent No.6/PMC, it would have been easier for us to arrive on a conclusive opinion on our own as to whether any construction is approved within blue flood line. This issue is decided accordingly.
45. As to Issue No. II As per this issue, we have to decide as to whether the application for withdrawal of the EC would result in rendering the present Appeal to be infructuous. In this regard, we are in agreement with the argument made by learned counsel for the Appellant as he has relied upon the judgment of Hon'ble Supreme Court in Union of India & others Vs. Narender Singh (Supra). In the present case, the appellant has challenged the impugned EC on the ground that the same has been taken ex-post facto, for which there was no provision under EIA Notification 2006, and further he has also assailed the same on the ground that the Project Proponent has concealed various relevant information in Form I & IA which was filled up by it at the time of seeking the EC. Regarding the argument that since the construction was already made partly, the EC should be treated to be ex- post facto EC, we are not convinced by this submission because only part construction (31.75 sq.m) was done and plinth certificate was obtained by the Project Proponent on 01.03.2017, which could be taken to have been done for some temporary structure looking to it's size. We find that the lay out which was sanctioned by Respondent No.6/PMC shows that BUA 20504.40 M2 which is much larger area than the work carried out. The Respondent No.2/SEIAA has also admitted in reply, that as per Google Page 29 of 31 Map it was found that no construction was made by the Project Proponent on the site in question till they allowed surrendering EC. The Joint Committee Report also says that after issuance of Part Plinth Checking Certificate dated 01.03.2017, no construction activity was found, which in effect, would mean that the Committee did not find any significant construction to have been done before the EC. The Joint Committee has also found Part Plinth Checking Certificate to have been issued for 31.75 M2 on 01.03.2017 by PMC while the impugned EC was issued on 07.05.2019. Hence in our estimation, the EC in question should not be treated to be ex-post facto. However, we have to decide the issue whether impugned EC has been wrongly granted in view of the law relied upon by the Appellant, we are of the opinion that the withdrawal / surrendering of EC by Respondent No.9/PP before SEIAA would not render the present Appeal infructuous as EC was granted without adequate appraisal which should lead to its cancellation. We decide this issue accordingly.
46. Now, we have to consider whether the EC which has been allowed by the SEIAA to be surrendered subject to condition that at future point of time, the Project Proponent may be permitted to raise construction after seeking fresh permissions, needs to be quashed as prayed by the appellant ?. We are of the view that one of the grounds for quashing of the EC, set up by the appellant, is concealment made on the part of the Project Proponent for furnishing relevant information which has been admitted by the Respondent No.2/SEIAA. It is very well laid down in the EIA Notification 2006 in clause 8 (vi) that if at any point of time the information furnished by the Project Proponent is found to be false or misleading the EC would be liable to be cancelled. We are of the view that on this single count of furnishing wrong information before the SEIAA, it is enough ground for quashing the EC, irrespective of the fact whether it has been allowed to be surrendered. We are not in agreement with the arguments made by all the Respondents' counsel that it would be futile to quash the EC as surrender of the same amounts to the fact that no Page 30 of 31 construction would be done in pursuance of that by the Project Proponent. We firmly believe that environmental regulations must be respected and complied both in letter and spirit. Developers and also regulatory authorities are equally responsible for ensuring sustainable development. Intentional oversight in submission of data for obtaining EC and causal appraisal needs to be condemned. Rejection/ quashing of EC is the minimal action expected from NGT. Hence, it would be appropriate for us to quash the EC and accordingly we quash it.
47. Appeal is allowed. The Environmental Clearance (EC) dated 07.05.2019 stands quashed.
48. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM August 11, 2023.
Appeal No. 48/2019Sachin J.
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