National Green Tribunal
Praveen Kakar vs Ministry Of Environment And Forest on 5 February, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 661/2018
(With report dated 27.01.2020)
Praveen Kakar & Ors. Applicant(s)
Verses
Ministry of Environment & Forests & Ors. Respondent(s)
Date of hearing: 05.02.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE MR. SIDDHANTA DAS, EXPERT MEMBER
For Respondent(s): Mr. Rimali Batra, Advocate for DHBVN
Mr. Yatish Kr. Goel, Advocate
Mr. Shlok Chandra, Advocate for CPCB
Mr. Mukesh Singh, Advocate for MoEF&CC
Mr. Rahul Khurana, Advocate for State of Haryana,
HSPCB, GMDA and MCG
ORDER
1. The present matter is for execution of order dated 08.01.2019 passed by this Tribunal holding that Ansal Properties and Infrastructure Ltd. committed violation of environmental norms in constructing a housing project without requisite consent to operate under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 and without requisite Environmental Clearance (EC). The project was violative of norms such as not providing rain water harvesting system, extracting ground water illegally, discharging sewage in storm 1 water drain and operating DG sets without any safeguards. Inspite of such illegality, the Town and Country Planning Department of Haryana issued a part completion certificate and the State PCB did not perform its duties under the provision of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. These findings were recorded in the light of report dated 16.11.2018 furnished by CPCB after site inspection in pursuance of order of this Tribunal.
2. For ready reference, the report of CPCB dated 16.11.2018 may be referred to:
"1. Encroachment like hutment for security/labors, DG sets, kitchen gardens were observed in earmarked green areas, green belt has not been development according to the norms and standards practices by project proponent natural shrubs have grown up as against turfing, plantations. However, the committee recommend that area under open or green area, road and community site need to be verified as per standards methods adopted by Town and Country Planning Department which will lead to conclusion whether 45% approved under open or green area road and community site is available or not.
2. Project proponent is required to obtain Environment clearance under provision of EIA notification dated 14.09.2006, as last two licenses were granted after 14.09.2006, cutoff date of requiring EC and total area crossed the threshold limit.
3. consent to establish and consent to operate have also not been obtained. It is violation of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 by project proponent.
4. Project proponent has applied for registration of 39 tube wells with Central Ground Water Authority but No Objection Certificate (NOC) from CGWA for extraction of ground water is not available. Flowmeters fixed with tube wells need to be rectified to get the quantity of extracted water.
5. Rain water harvesting system for houses is not provided and rain water harvesting structures for open spaces and common area are non-functional. The basic purpose of ground water recharge is not being achieved by these structures.
6. Sewage is meeting the storm water drain as it is not getting passed through sewerage system to HUDA STP. Project 2 Proponent, Haryana Shehri Vikas Pradhikaran (HSVP) (Former HUDA) and Gurugram Metropolitan Development Authority (GMDA) are require to resolve this issue jointly.
7. Maintenance of roads, footpath, parks is not up to the mark and system of collection of solid waste is not effective.
8. Construction and Demolition waste management rule, 2016 and its guidelines are not being followed in the colony.
9. DG sets are operating without adequate stack height.
10. Part completion certificate have been granted to project proponent by Town and Country Planning Department, Haryana."
3. Considering the above, this Tribunal vide order dated 08.01.2019, observed:
"4. The above factual conclusion shows violation of environmental norms by the respondent no. 11- Ansal Properties and Infrastructure Ltd. The project has been constructed without taking consent to operate under the Air (Prevention and Control of Pollution) Act and Water (Prevention and Control of Pollution) Act and without requisite Environmental Clearance. Rain water harvesting system has not been provided and ground water has been extracted without requisite NOC from CGWA. Sewage is meeting the storm water drain. Maintenance is not upto the mater, Construction and Demolition Waste Management Rules, 2016 have not complied with. DG sets are operating without stack height. Inspite of the above, part completion certificate have been granted by the Town and Country Planning Department, Haryana. It is also clear that despite serious violations, the Haryana State Pollution Control Board has failed to perform its duties in taking statutorily mandated coercive measures under Sections 31A Air Act and 33B of the Water Act or initiating prosecution. The CGWA, CPCB, State PCB have also failed to perform their duties. The Town and Country Planning Department appears to have colluded.
5. In view of above, we direct CPCB to exercise its statutory power to determine and recover the damages and issue appropriate further directions for closure of the project and initiating prosecution in accordance with the procedure prescribed under Air Act and Water Act.
6. The CPCB will be at liberty to coordinate with the concerned Authorities including the CGWA and the State PCB. Action may include recovery of damages for loss to environment, closure of the project as well as prosecution under the relevant statutory provisions."
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4. The matter was considered further on 21.05.2019 and since the steps taken were not adequate, the Tribunal sought further action taken report. Again, on 13.09.2019, it was found that the remedial steps taken were not adequate and a further action taken report was called for with regard to following:
"3. Accordingly, further action taken report has been filed on 21.06.2019 to the effect that CPCB initiated action as follows:-
"1. In exercise of the powers vested under Section 5 of the Environment (Protection) Act, 1986 to the Chairman, CPCB, following directions have been issued on 21.06.2019 to the Project Proponent and concerned Authorities to ensure compliance of Environmental Regulations and Orders issued by Hon'ble NGT.
1. The Chairman, - a. To stop all the Ansal Properties & construction/expansion activities in Infrastructure Shushant Lok, Phase-I, Gurugram with immediate effect.
b. To pay Environment Compensation of Rs. 14.6962 Crore (Rs. Fourteen Crone, Sixty Nine Lacs, Sixty, two Thousand only )only to CPCB on account of discharge of untreated sewage for 281 days (till 17.06.2019) to CPCB's Union bank of India A/c no. 532702010009078, IFSC code U13IN0553271,Branch-IP Extension, Delhi as per Environmental Compensation Policy framed in compliance of Hon'ble NGT order dated 31.08.2018 in OA no. 593/2017 within 7 days from the receipt of these directions. In case of delay in deposition of Environment Compensation, penal interest shall be charged as per rules.
c. To pay another Environmental Compensation determined by Central Ground Water Authority on account of extraction of ground water without permission and 4 defunct rain water harvesting system in Shushant Lok, Phase-1, Gurugram.
d. To submit action plan to CPCB regarding rectification of the shortcomings as highlighted above in the concluding remarks of report within 7 days from the receipt of these directions and to rectify all the shortcomings as highlighted in the concluding remarks of report within 30 days from the receipt of these directions. Action taken report be submitted along with necessary documentary evidences immediately after completion of action taken.
2. The Chairman - a. NOCs, Consents and Haryana State Authorization granted to M/s Ansal Pollution Control Properties & Infrastructure Ltd. Board Gurugram be revoked immediately and shall not be considered in future also till compliance of these directions are made.
b. Discharge of untreated sewage from the premises of the company into storm water drain be stopped.
3. The Member - Environmental Compensation on Secretary account of extraction of ground water through 39 nos. of tube-wells Central Ground without permission and defunct Water Authority rain water harvesting system in Shushant Lok, Phase-1, Gurugram, be determined and levied immediately.
4. The Chairman - Environmental Clearance(s) granted to the Company, if any, be State Environment revoked immediately. No expansion Impact case in future related to this site be Assessment considered till compliance of these Authority, directions are made.
Haryana
5. The City - a. Compliance of these directions Magistrate, issued to the Company and other State Government departments be 5 CTM Gurugram ensured.
b. Collection of Environmental Compensation imposed by CPCB be ensured.
6. The Director - a. No further expansion of the project be considered.
Town and Country Planning b. No completion certificate be Department, granted to the Company and any Haryana such certificate already granted be revoked immediately.
7. The Chairman cum - No electricity supply be provided for Managing Director, any further expansion of the project Dakshin Haryana by the company in Sushant Lok-1, Bijli, Vitran Nigam Gurugram.
8. The Chief - No water supply to the company be Administrator, sanctioned for any further Haryana Shahari expansion of the project in Sushant Vikas Pradhikaran Lok-1, Gurugram.
2. Copies of CPCB Directions are sent to following Ministries and organizations also for information and appropriate action at their level:
i. The Secretary, Ministry of Env., Forestsand Climate Change, New Delhi.
ii. The Secretary, Ministry of Housing and Urban Affairs, New Delhi.
iii. The Director, Delhi School of Planning and Architecture, New Delhi."
5. We have considered the action taken report filed by CPCB dated 14.10.2019 to the effect that a meeting was held on 13.09.2019 with the concerned authorities to review the progress in compliance of the order of this Tribunal and following recommendation were made:
"(i) M/s Ansal Properties & Infrastructure be asked to provide revised ATR and to deposit the environmental compensation of Rs. 16.729 Crore (Rupees sixteen Crore, Seventy Two 6 Lakhs Ninety Thousand) only (till 13.09.2019) and to deposit the compensation assessed by the Central Ground Water Authority for failure to recharge the ground water in terms of the conditions for ground water extraction at Rs.
40,44,000.00/- per annum.
(ii) As per submission of DTCP representative, two licenses were issued after notification of EIA notifications, 2006 (after 14.09.2006) which led to expansion of the project and thus the project and thus the project need Environmental Clearance from SEIAA- Haryana and CTE & CTO from HSPCB.
(iii) It was informed by DTCP that some colonies built by M/s Ansal Properties & infrastructure, at Sushant Lok-1, Gurugram has been transferred to MCG vide latter dated 12.02.2019, while the matter is still subjudice. Also license for expansion of the project has been granted by DTCP, although the project did not have necessary EC. DTCP may provide an explanation as to how the property has transferred to MCG when the matter is subjudice and also how completion certificate has been granted.
(iv) In view of above, DTCP is directed not to grant license for expansion /completion certificate to any other project within its jurisdiction if any court mater is pending against the project/ EC is not granted to the project.
(v) Similarly, explanation be called from HSPCB as to how Consents/ authorization have been issued to the project when it has not been granted EC and be further directed not to grant any Consent/Authorization to projects which did not have EC.
(vi) In view of above discussion, all the members agreed that the Municipal Corporation Gurugram (MCG) may be directed further to examine the matter and to take necessary action at their level also.
(vii) It is decided that all the Agencies will send their action taken report to CPCB in compliance of CPCB's directions dated 18.06.2019 at the earliest so that CPCB may file Report before Hon'ble NGT."
6. The Central Ground Water Authority (CGWA) has filed a copy of letter dated 27.12.2019 addressed to the Deputy Commissioner, Gurgaon to take coercive measures. The report of the State 7 Pollution Control Board (SPCB) filed on 08.01.2020 inter-alia is as follows:
"The questioned matter is regarding Sushant Lok, Phase - I which is a residential township spread over 604.194 acres in Sector -27, 28, 43, 52 of Gurugram developed by the Company on various (112 Nos.) licenses (Annexure-3) (including license No. 151 of 2004 dated 02.12.2004 -- IVY Group Housing Complex -- 5.88 Acres) issued to the Company by Town and Country Planning Dept., Haryana from 1985 to 2011 under Section 3 of the Haryana Development & Regulations of Urban areas Act, 1975 and Rules framed there under. As per revised approved layout plan dated 24.12.2010 of Sushant Lok -- I, total licensed area is 604.194 acres, out of which 18.357 Acres is earmarked for Group Housing. The remaining licensed area i.e. 585.797 acres is under net planned area. Area under plots & under commercial is 295.098 acres & 21.704 acres respectively making total saleable area 316.802 (295.098+21.704) which is 54.08% of net planned area.
The Company had applied for Environmental Clearance to the MoEF&CC on 30.03.2006 for the project IVY Group Housing Complex (License No. 151 of 2004 dated 02.12.2014 Total Plot area 23823.94 Sqm (5.88 Acres) and total Built up are 41433.94 Sqm) as the project was covered under EIA notification 1994 amended on 07.07.2004. The Company had applied No Objection Certificate (NOC) vide their letter dated 19.01.2006 & 17.07.2006 in connection with the requirement of environmental clearance from MoEF&CC, New Delhi and had deposited public hearing fee to the Board for which public hearing was conducted by the Board on 08.03.2006 which was pre-requisite for deciding environmental clearance by MoEF&CC, New Delhi. The minutes of meeting of public hearing dated 08.03.2006 was sent to the Secretary, Ministry of Environment, Forests & Climate Change, Government of India, New Delhi for deciding environmental clearance of the said project. Board had granted NOC vide No. HSPCB/2006/TAC-A/997 dated 07.08.2006 (Anneuxre-4) from pollution angle in connection with the requirement of Environmental Clearance from MoEF&CC and NOC to establish will become operational once the environmental clearance is granted by MoEF&CC under intimation to the Secretary, Ministry of Environment, Forests & Climate Change, Government of India, New Delhi. The NOC was issued is wholly and solely for the purpose of meeting the requirement of Govt. of India and this NOC does not entitle the right to establish or right to operate 8 the unit. A complaint under section 15 of the Environment Protection Act was filed against the Company for the Group Housing Residential Complex (IVY), Sushant Lok, Gurugram (License No. 151 of 2004) for starting construction activity without obtaining prior mandatory environmental clearance as per notification dated 27.01.1994/07.07.2004/14.09.2006 in Special Environment Court vide complaint No. 48/08 (Annexure-5). The Hon'ble Court has convicted the Company for the said offence and disposed off through Mega Lok Adalat the case on 20.12.2008 by imposing fine of Rs. 1000/- and compensation of Rs. 1.00 lac for the said offence considering plea bargaining application moved u/s 265-B Cr. PC. The representative of the Company has made a statement before the Hon'ble Court on 20.12.2008 that the Company have obtained environmental clearance but Company have never obtained environment clearance for this project till date. The order of the Special Environment Court in this regard is enclosed as Annexure -6.
In view of above stated facts & incompliance of CPCB directions 18.06.2019, NGT order dated 08.01.2019, 13.09.2019 and CPCB letter dated 03.10.2019 and report of constituted committed 16.11.2018 & 05.04.2019, it is submitted that:-
1. NOC, Consent to Operate under Water (Prevention & Control of Pollution) Act, 1974 & Air (Prevention & Control of Pollution) Act, 1981 & Authorization under Hazardous & Other Waste Management Rules, 2016 granted to M/s IVY Group Housing Complex, Sushant Lok-I, Gurugram [One of the project -- (5.88 Acres area bearing license No. 151 of 2004 dated 02.12.2004) of the whole project under question - 604.19 acres] has been revoked by HSPCB vide No HSPCB/2019/798 dated 19.11.2019. (Annexure-7).
2. DG sets which were operating without adequate stack height have been sealed by the Board, copy of closure order and compliance of closure order is enclosed as (Annexure -8 & 9)
3. Sanction for prosecution against M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan, 16 K.G. Marg, New Delhi -- 110001 and it's responsible persons has been accorded by the Chairman, HSPCB, Panchkula under Water (Prevention & Control of Pollution) Act, 1974 & Air (Prevention & Control of Pollution) Act, 1981 vide Endst. No. HSPCB/Consent/2019/618 dated 15.10.2019 (Annexure-10) and the prosecution case will be filed in due course of time before Special Environment Court, Faridabad.9
4. Gurugram Metropolitan Development Authority (GMDA), Gurugram vide letter No. File No. 225025/01/2019/Infra-
11/2006 dated 15.10.2019 (Annexure-11) has intimated that they have stopped untreated sewage flowing from the premises of the company and other areas in Storm Water Drain (SWD) and connection under question has been disconnected and now, there is no sewage flowing on said location and the same has already verified by the concerned field officer of HSPCB & GMDA at site on 19.10.2019 (Annexure -12)."
7. In view of above, reports of the CPCB and the SPCB, it is patent that the project has been built up illegally without any EC and without any consent under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. It is a matter of great surprise how the Town and Country Planning Department, Haryana granted license or a part completion certificate, ignoring serious violations.
8. In view of the above serious violation of law, including non-
payment of assessed compensation of Rs. 16.729 crore (as per report of CPCB quoted above) for discharge of untreated sewage water, apart from compensation for illegal extraction of ground water required to be paid at the rate of Rs. 40,44,000.00 per annum (as per report of CPCB quoted above), we require the Chief Secretary, Haryana to suggest the mechanism for enforcement of Rule of Law and also to prevent such illegalities in the State. The Chief Secretary may explore action against the collusion by the concerned officers of the State PCB, the Town and Country Planning Department or other State authorities for their failures mentioned above including the officers who agreed for insignificant compensation of one lac by way of plea bargaining in spite of 10 conviction for serious offence. In this regard, action of black listing, attaching available assets of the defaulting builder may also be considered, apart from other coercive measures. Such a report be furnished by e-mail at [email protected] within one month.
9. It will be open to the State of Haryana to bring to the notice of any Authority where proceedings involving the said party may be pending the above defaults. The Chief Secretary may also explore whether the matter needs to be entrusted to CBI.
10. That apart, considering the seriousness of the breach of the environmental laws by the project proponent where even EC has not been obtained for such a mega project, the MoEF&CC besides taking action as provided in statute may also consider working out a mechanism for mitigation measures to offset the damages already caused to the environment and for taking precautionary measures for anticipated future damages.
11. A copy of the order be sent to the Chief Secretary, Haryana and the Secretary, MoEF&CC by e-mail.
List again on 17.04.2020.
Adarsh Kumar Goel, CP S.P Wangdi, JM Dr. Nagin Nanda, EM Siddhanta Das, EM February 05, 2020 Original Application No. 661/2018 11 AK 12