National Green Tribunal
Kaushalya Sharma vs Mathura Vrindavan Development ... on 9 September, 2024
Item No. 03 Court No.2
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 698/2023
Kaushalya Sharma Applicant
Versus
Mathura Vrindavan Development Authority & Anr. Respondents
Date of hearing: 09.09.2024
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Shailendra Bhardwaj, Advocate (through VC)
Respondent: Mr. Rachit Mittal, Mr. Parish Mishra, Mr. Adarsh
Srivastava and Ms. Kriti Jain, Advocates for respondent
no. 1 (through VC)
Mr. Rahul Khurana and Mr. Hasil Jain, Advocates for
respondent no. 2
Mr. Mukesh Kumar and Mr. Ashish Singh Advocates for
respondent no. 3
ORDER
1. Smt. Kaushalya Sharma, W/o Dr. Pawan Sharma, R/o 793, Sector- 43, Chandigarh has invoked jurisdiction of this Tribunal under Sections 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') by means of the present Original Application (hereinafter referred to as 'OA') alleging that she is a buyer of a flat from M/s. Paras Realtech Limited, D-152, Surajmal Vihar, Main Road, Delhi (hereinafter referred to as 'Developer/Project Proponent').
2. Developer launched a project named as "Paras Pride Vrindavan", a Group Housing Scheme in 2011 at Chhati Kara Road, Rukmani Vihar, 1 Vrindavan, District-Mathura, State of Uttar Pradesh. Copy of the Brochure issued by Developer has been placed on record as annexure P-1 which shows that the scheme comprised of 1 BR, 2 BR-1 BHK and 2 BHK Apartments with super area 425 square feet, 500 square feet, 850 square feet and 1080 square feet. The sanctioned plan proposed to construct 06 number of units with 08 towers. Each tower comprised of ground floor + 04 floor and total area was 6972.92 m2, out of which, covered area for ground floor was 2806.48 m2 with and parking and road. Sanctioned plan provided for leaving 2095.926 m2 land open green belt.
3. Housing and Urban Planning Department, State Government of U.P. had issued a Government Order dated 05.08.2010 (hereinafter referred to as 'GO dated 05.08.2010') to ensure effective implementation of the policies relating to land water conservation, rain water harvesting system for recharging and plantation for environmental reforms. Mathura Vrindavan Development Authority (hereinafter referred to as 'MVDN') while granting approval to the construction plan of Developer under Section 15 of Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as 'UPUPD Act, 1973') required the Developer to comply with terms and conditions of approval including provisions for "Rain Water Harvesting" and "plantation" of trees of Kadamb and Ashok etc. on the site as per standard.
4. Applicant had purchased two flats bearing ST-08/003 and ST- 08/004 and sale deeds have been executed in her favour. However, Developer has failed to plant trees and create green belt as per landscaping plan and has also not obtained Occupancy Certificate.
5. Applicant's husband Dr. Pawan Sharma made complaint, whereupon a Junior Engineer submitted Report but the Developer did not 2 bother to restore green space as per Sanctioned Building Plan. The photographs have been appended to the application showing that there is no green space in the Housing Complex. Further, Developer has given wrong information in the Brochure with regard to distance from Shri Banke Bihari Temple, Municipal Water connection and also for parking space etc.
6. Applicant has prayed that direction be issued to create green belt in the Housing Complex in compliance with GO dated 05.08.2010, issued by Housing and Urban Planning Department of State of UP with regard to Rain Water Harvesting system and plantation of trees for improvement of environment and also to impose penalty/cost upon the Developer for contravention of Sanctioned Building Plan by not creating green space and violating GO dated 05.08.2010.
7. Tribunal took cognizance of the matter on 10.11.2023 and issued notices to the respondents, requiring to file their replies. Further, to obtain a factual position Report, Tribunal constituted a Joint Committee comprising Central Pollution Control Board (hereinafter referred to as 'CPCB'), UP Pollution Control Board (hereinafter referred to as 'UPPCB') and District Magistrate, Mathura.
8. Joint Committee's Report dated 30.01.2024: Pursuant to order dated 10.11.2023, Joint Committee submitted Report vide e-mail dated 30.01.2024 stating that "Paras Pride" is situated at Plot No. GH-06, Rukmani Vihar Avasiya Yojna, Vrindavan, District- Mathura; total area of housing colony is 6997.90 m2 and built up area is 13593.04 m2; Developer has not developed any specific site for solid waste collection though representative of Developer informed that Nagar Nigam daily collect solid waste from inside bins of project area for disposal at designated site of 3 Nagar Nigam; Developer/Project proponent has not obtained No Objection Certificate (hereinafter referred to as 'NOC') from UPPCB and also no Occupancy Certificate has been obtained from MVDA; 02 Rain Water Harvesting systems are installed in the premises but the same were found clogged and contaminated during inspection; untreated sewage was being discharged in MVDA sewerage network; Developer installed 02 borewells inside the premises for meeting water supply but no permission from Central Ground Water Authority (hereinafter referred to as 'CGWA') was obtained; exhaust/stack height of diesel generator set is not as per norms; no proper green belt area of 4191.852 m2 mentioned in the plan has been developed; and only 02 plants were found inside the project area.
9. Joint Committee made recommendations advising Developer to obtain "Occupancy Certificate" from MVDA, "NOC" from UPPCB, and "permission" from CGWA for extraction of ground water and to correct the stack height before using diesel generating set. It also recommended that Rain Water Harvesting system be cleaned and made operational and green belt and parking be provided as per the approved Plan. Observations and recommendations made by Joint Committee are as under:
"3.0 Observations and Findings On the basis of site inspection and information submitted by applicant and project proponent during inspection, observations and findings of Joint committee are as follows:
1. M/s Paras Realtech Ltd. (Paras Pride) is situated at Plot No.-GH-
06, Rukmani Vihar Avasiya Yojna, Vrindavan, Tehsil & District- Mathura. The Geo-Coordinates of the M/s Paras Realtech Ltd. (Paras Pride) in Plot No.-GH-06, Rukmani Vihar Avasiya Yojna, Vrindavan, Tehsil & District-Mathura are Latitude-27.565736 & Longitude-77.660250.
2. As per the map provided by project proponent, the total area of the housing colony is 6997.90 Sqm. and built-up area is 13593.04 Sqm. (Block No.-1 to 8 (Block 1-1814.546 Sqm, 4 Block 2-1420.486 Sqm, Block 3-1211.236 Sqm, Block 4- 2044.191 Sqm, Block 5-2048.216, Block 6-1511.991, Block 7- 1814.546, Block 8-1696.640, Shopping-31.195 Sqm). The said colony Constructed G+4 th floor. The approved map from concern authority is Annexure-1.
3. Builder has not developed any specific site for solid waste collection however, representative informed that Nagar Nigam daily collected solid waste from inside bins of project area for disposal at designated site of Nagar Nigam.
4. Project Proponent has not obtained NOC from U.P. Pollution Control Board.
5. Project proponent has not obtained occupancy certificate from Mathura Vrindavan Development Authority.
6. Two nos. of Rain Water Harvesting are installed in premises but are found clogged and contaminated during inspection.
7. Project proponent is discharging untreated sewage into MVDA sewerage network.
8. Project Proponent has installed two nos. Bore wells inside premised for meeting water supply requirement but have not obtained permission from CGWA/CGWB.
9. The Exhaust/Stack height of DG set installed in premises is not as per norms.
10. Builder has not developed proper green belt area of 4191.852 sq m mentioned in plan. Only Two plants found inside project area.
11. Regional Office, U.P. Pollution Control Board, Mathura vide letter no.-1456/O-109/2024 Dated-10.01.2024 has sought information from project proponent but project proponent has not provided detailed information about project. Copy of letter is annexed at Annexure-2.
12. Regional Office, U.P. Pollution Control Board, Mathura vide letter no-1459/O-109/2024 Dated-11.01.2024 (Annexure-3) and reminder letter no.-1490/O-109/2024 dated-24.01.2024 has sought information /clarification from Vice Chancellor Mathura Vrindavan Development Authority, Mathura M/s Paras Realtech Ltd. (Paras Pride Project) located in Rukmini Vihar, Vrindavan, Mathura. Reply/Information is still awaited from Mathura Vrindavan Development Authority Annexure-4. 5
xxx................................xxx.......................................xxx 4.0 Recommendations
1. Project proponent to obtain Occupancy certificate from MVDA and NOC from UPPCB respectively.
2. Project proponent to obtain permission from CGWA/CGWB for withdrawal of ground water from Bore wells installed inside premises.
3. Project proponent to operate DG set only after ensuring appropriate stack height.
4. Project proponent to ensure that RWH is cleaned and RWHs are made operational as per norms and only rain water is discharged into RWH pits.
5. Project proponent to ensure Green Belt and parking norms as per approved plan of MVDA.
6. MVDA to provide status and ensure compliance of Green Belt and Parking norms as per approved plan of MVDA."
Developer's Reply dated 09.01.2024:
10. Developer i.e., respondent 2 submitted reply/response vide e-mail dated 09.01.2024 stating that it has provided adequate plantation to maintain green cover and constructed Rain Water Harvesting structure also. However, maintenance of entire Housing Complex is in the hands of "Resident Welfare Association" (hereinafter referred to as 'RWA') since January 2019 and they are maintaining the same. It is further said that applicant got sale deeds in respect of the flats purchased in 2014 and Developer has transferred all rights and liabilities of maintenance of Housing Complex to RWA in January 2019, hence, prima-facie, application is barred by limitation of six months provided in sub-section 3 of Section 14 of NGT Act, 2010.
6
11. It is further said that Developer launched the scheme in 2011 which comprised of 08 towers with ground floor + 4 floor each and a sanctioned plan for 06 units per tower. The total area as per approved map was 6972.92 m2. The provision for parking and road was implemented in accordance with sanctioned plan. The sale deed and possession letter was executed in favour of applicant and her daughter Jyoti Sharma on 29.08.2014. Applicant installed a gate in the corridor of ground floor creating obstruction to the access of other flat owners/occupiers who made various complaints on 19.08.2017. Developer was asked to remove the gate and this annoyed the applicant. Thereafter, he started making false allegations and complaints against the Developer. On 10.01.2019, the entire maintenance work was handed over to "Paras Rukmani Vihar Resident Welfare Association" i.e., RWA. Copy of handing over letter dated 10.01.2019 is annexure R/4 (page 81 to the paper book).
12. After handing over RWA, Developer has no concern with the project in question.
13. The issue of encroachment due to illegal installation of door in the corridor continued in as much MVDA issued a letter on 31.03.2022 directing Pawan Sharma, husband of applicant, to remove door from the corridor else the same shall be demolished under the provisions of UPUPD Act, 1973. Applicant filed Original Suit no. 202/2018 in the Court of Civil Judge, Senior Division, Mathura for not giving effect to MVDA's letter dated 31.03.2022 impleading Developer as defendant 1 in the said Suit.
14. The Developer took care of plantation as well Rain Water Harvesting system at the time of execution of the scheme, constructed a park with swings for children and benches for elderly people. In any case, application 7 is barred by limitation provided in sub-section 3 of Section 14 of NGT Act, 2010.
Reply of MVDA dated 01.02.2024:
15. MVDA (respondent 1) has also filed its reply dated 01.02.2024, stating that it sent a letter dated 17.01.2024 to Developer enquiring about the complaint made by applicant. Pursuant thereto, reply was submitted by Developer vide letter dated 20.01.2024 stating that it has developed Housing Society as per the approved plan and created green belt also around the Group Housing Society. However, due to dampness/termite problem, on the request of the residents, open area was paved. Further, as per the building standards, trees were also planted along with swings which are still installed and Rain Water Harvesting system is also functioning. MVDA, thereafter, deputed one Junior Engineer to find out the factual position who has submitted its Report dated 25.01.2024 which reads as under:
"ए- अभिलेखीय आख्या-
1- रूकमणी बिहार स्थित ग्रुप हाउबसिंग बिस्डिं ग से सम्बस्ित अबिलेख का अवलोकन बकया तो पाया बक मैससस पारस रीयलटे क बलबमटे ड द्वारा मानबित्र सिं ० 162/वी-10-11 को बिनािं क 26-11-2010 में स्वीकृत कराया गया है । इस स्वीकृत मानबित्र पर 08 शते अिंबकत हैं तिा स्वीकृत मानबित्र पर 05 शते अिंबकत हैं । इस प्रकार इस ग्रुप हाउबसिंग बिस्डिं ग का बवबिवत् नक्शा स्वीकृत है । मानभित्र का स्वीकृभि पत्र एवं स्वीकृि मानभित्र की छायाप्रभि संलग्न है।
2- उपरोक्त ग्रुप हाउबसिंग बिस्डिं ग के सम्बि में यािी श्रीमती कौशल्या शमास द्वारा प्रस्तुत कोई बशकायत मिुरावृन्दावन बवकास प्राबिकरण में प्रस्तुत होकर अवर अबियन्ता - के सिंज्ञान में नहीिं आयी। याबिका के अनुसार एक बशकायत वर्स 2017 में डॉ० पवन शमास द्वारा की गयी िी बिसका बनराकरण तत्समय ही कर बिया गया।
3- उपरोक्त अबिलेखीय सा्ष्य के अनुसार प्रश्नगि कॉलौनी का भनमााण वर्ा 2010 की स्वीकृभि के अनुसार सन 2015 िक हुआ है ।
बी- स्थलीय आख्या -
1- माननीय एन०िी०टी० के आिे शानुपालन में रूकमणी बिहार स्थित िूखण्ड सिं ख्या िीएि 06 पर मौिूि ग्रुप हाउबसिंग पारस प्राइड का थिलीय बनरीक्षण बकया गया तो पाया 8 बक स्थल पर-8 आवासीय ब्लॉक भनभमाि हैं प्रत्येक ब्लॉक के िार ं साइड में 01 मीटर िौडाई में स्थान मौजूद है ज पक्का है ।
2- उक्त 01 मीटर की िौडाई के थिान को पक्का होने के सम्बि में ग्रुप हाउबसिंग बिस्डिं ग के बनवाबसयोिं से हररत पट्टा के सम्बि में िानकारी की गयी तो पता िला बक इस बिस्डिं ग के बनवाबसयोिं द्वारा एक सबमबत सिंिाबलत की हुई है बिसका नाम "पारस प्राइड रूकमणी भबहार रे जीडे न्टस् वै लफेयर एस भसएशन" िताया।
3- उपर क्त एस भसएशन /सभमभि के पदाभिकाररय ं से वािाा करने पर जानकारी में आया भक भवकासकिाा द्वारा आवासीय ब्लॉक ं के िार िरफ हररि पभिका का भनमााण भकया गया था परन्तु इस हररि पभिका से िवन ं में सीलन आ रही थी भजससे िवन ं क क्षभि पहुंि रही थी अिः भवकासकिाा से अनुर ि करिे हुये बंद कराया गया अब िवन स्वाभमय ं क क ई परे शानी नही ं है। बवकासकतास द्वारा सोसायटी के िाहर हररत पबट्टका में पयास प्त सिं ख्या में पेड िी रोबपत बकये गये हैं । बिससे सोसायटी के सिी बनवासी पूणस रुप से सन्तुष्ट हैं और कोई परे शानी नहीिं है । सोसायटी में रे न वाटर हावेस्टिं ग बसटम व पाबकिंग की व्यवथिा पूणस रुप से उपलब्ध है तिा वहााँ का सारा साबलड वेट सोसायटी के िाहर नगर बनगम द्वारा बनस्ताररत बकया िाता है । बवकासकतास द्वारा प्रबतवर्स 20-25 पेड लगाये िाते हैं । सबमबत द्वारा अपने किनोिं के समिसन में प्राबिकरण को सम्बोबित पत्र िी प्राप्त कराया। सभमभि के पत्र भदनांक 24-1-2024 की छायाप्रभि संलग्न है।
4- कम्पनी/बवकासकतास से सम्पकस बकया िाने पर उनके द्वारा िी इस हररत पबट्टका को सीलन के कारण ग्रुप हाउबसिंग सोसायटी बनवाबसयोिं के अनुरोि पर पक्का कराये िाने के तथ्य को सही िताया। पे ड ं के सम्बन्ध में भनरीक्षण भकया गया ि इस ग्रुप हाउभसंग स सायटी की बाउन्ड्रीवाल के सहारे सहारे अनेक पेड मौजूद पाये गये हैं इनकी संख्या 50 से अभिक है।
5- बनरीक्षण में इस ग्रुप हाउबसिं ग सोसायटी के अन्तगसत रै न वाटर हावेस्टं ग भसटम सुिारु रुप से संिाभलि ह ना पाया गया।
6- शासनािे श बिनािं क 5-8-2010 के प्रस्तर 3.2 (ख( )IV) में प्राविान है बक-समूह आवासीय योिना में प्रबत हे क्टेयर 50 पेड लगाये िाये िवन मानबित्र के साि लैन्ड स्कैबपिंग प्लान का अनुमोिन अबनवायस होगा। प्रश्नगत कॉलौनी का क्षेत्रफल 6997.9 वगसमीटर है अिास त 7000 वगसमीटर याबन 0.70000 हे क्टेयर है इस प्रकार मानक ं के अनुसार पेड ं की संख्या 35 ह िी है , जबभक स्थल पर 50 से अभिक पेड भवद्यमान हैं। लेभकन स्थल पर स्वीकृि मानभित्र ग्रीनरी दभशाि स्थान पर ग्रीन बैल्ट भवकभसि नही ं है, इस स्थान पर पक्की फल ररं ग मौजूद पाई गई है। इस प्रकार बककासकतास कम्पनी द्वारा स्वीकृत मानबित्र में वबणसत/िस्पा बनयमो/ शतो का उल्लिं घन बकया गया है ।"
English Translation by Tribunal:
"A-Archival Report -
1- After examining the records related to the Group Housing Building situated at Rukmani Vihar, we found that map no. 162/V- 10-11 has been approved by M/s Paras Realtech Limited on 26-11- 2010. There are 08 conditions mentioned on this approved map and 05 conditions mentioned on the approved map. Thus, the map of this 9 Group Housing Building is duly approved. The approval of the map and the copy of the approved map are enclosed.
2- Regarding the above Group Housing Building, no complaint submitted by the petitioner Mrs. Kaushalya Sharma to the Mathura- Vrindavan Development Authority came to the notice of the Junior Engineer. According to the petition, a complaint was made by Dr. Pawan Sharma in 2017 that was resolved immediately. 3- According to the above documentary evidence, the construction of the colony in question was done till 2015 as per the approval year 2010.
B- Site report -
1- In compliance of the order of the Hon'ble NGT, a site inspection of the Group Housing Paras Pride situated on plot number GH 06 in Rukmani Bihar was conducted and it was found that 8 residential blocks have been constructed on the site. There is a space of 1 meter width on all four sides of each block which is paved. 2- When information was sought from the residents of the group housing building regarding the green belt regarding the paving of the said 1 meter wide area, it was found that a committee namely "Paras Pride Rukmani Bihar Residents Welfare Association" is run by the residents of this building.
3- After meeting with the office bearers of the above association/committee, it was learnt that the developer had constructed a green belt around the residential blocks but this green belt was causing dampness in the buildings which was causing damage to the buildings. Hence, the developer was requested to stop this and now the building owners have no problem. The developer has also planted a sufficient number of trees in the green belt outside the society. Due to which all the residents of the society are completely satisfied and they don't have problem. Rain water harvesting system and parking facility is fully available in the society and all the solid waste is disposed of by the Municipal Corporation outside the society. The developer plants 20-25 trees every year. The committee also obtained a letter addressed to the authority in support of its statements. A copy of the committee's letter dated 24-1-2024 is enclosed.
4- After contacting the company/developer, they also confirmed the fact that this Green Belt was cemented on the request of the Group Housing Society residents due to dampness. When the trees were inspected, many trees were found along the boundary wall of this group housing society, which are more than 50. 5- During inspection, the Rain Water Harvesting System was found to be functioning smoothly in this Group Housing Society. 10
6- There is a provision in clause 3.2 (b) (IV) of the Government Order dated 5-8-2010 that 50 trees should be planted per hectare in the group housing scheme and approval of the landscaping plan along with the building map will be mandatory. The area of the colony in question is 6997.9 sqm i.e. 7000 sqm i.e. 0.70000 hectare. Thus, as per the norms, the number of trees is 35, whereas, there are more than 50 trees on the site. But, the green belt is not developed at the place shown in the approved map of the site. Pucca flooring is found at this place. Thus, the rules/conditions mentioned in the approved map have been violated by the developer company.
16. Consequently, for not developing green area as per sanctioned map, MVDA issued a notice dated 29.01.2024 directing Developer to construct a 'green belt' around the housing society instead of paved floor failing which action will be taken as per UPUPD Act, 1973.
17. Tribunal considered the matter on 02.02.2024 and recorded statement of Learned Counsel for respondent 1 that due action in terms of findings of Joint Committee Report and recommendations made, shall be taken, and action taken Report shall be submitted.
18. Report dated 10.04.2024 was submitted by Regional Officer, UPPCB vide e-mail dated 11.04.2024. Referring to the recommendations made by Joint Committee, Regional Officer, UPPCB said that site was inspected on 08.04.2024. Housing Society has Consent under Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981') and Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974') from UPPCB valid upto 31.03.2026, Clearance from Uttar Pradesh Ground Water Authority (hereinafter referred to as 'UPGWA') for extraction of ground water and has also undertaken plantation/green belt on 10% of the land of the Society. Further, exhaust/chimney height of 62.5 KVA generator set is as per the 11 prescribed norms and two Rain Water Harvesting systems are also established. Relevant extract of the Report reads as under:
"1. सिंिबिस त सॉसाइटी मै ० पारस ररयलटै क बलबमटे ड, िीएि-06, रूकमणी बवहार, वृ न्दावन, मिुरा पर थिाबपत है , िो ताि टर ै पेबियम क्षेत्र के अन्दर है ।
2. सिंिबिस त सॉसाइटी का कुल क्षेत्रफल 6907.00 वगस मी० है । कॉलोनी के बिडअप एररया-13593.04 वगस मी० -ब्लॉक सिं०(1 से 8) (ब्लॉक सिं 0-01- 1814.546 वगस िी०, ब्लॉक सिं 0-02-1420.446 वगस मी०, ब्लॉक सिं0-03- 1211.236 वगस िी०, ब्लॉक सिं 0-04-2044.191 वगस मी०, ब्लॉक सिं0-05- 2048.216 वगस मी०, ब्लॉक सिं 0-06-1511.991 वगस मी0, ब्लॉक सिं 0-07- 1814.546 वगस मी०, ब्लॉक सिं 0-08-1698.640 वगस मी०, शॉबपिं ग-31.195 वगस मी०पर बनमास ण बकया गया है । )
3. सिंिबिस त सॉसाइटी को राज्य िोडस से सशतस सहमबत -अवबि )वायु/िल( 31.03.2026 तक बनगसत है ।
4. सिंिबिस त सॉसाइटी द्वारा ग्राउण्ड वॉटर के बनष्कर्स ण हे तु उ०प्र० ग्राउण्ड वॉटर अिॉररटी से अनापबि प्राप्त है , बिसकी छायाप्रबत सिंलग्न है ।
5. सिंिबिस त सॉसाइटी में थिाबपत डी०िी० सेट क्षमता-62.5 केवीए से सम्बद्ध एक्जॉट बिमनी की ऊाँिाई बनिास ररत मानकोिं के अनुरूप थिाबपत है । /
6. सिंिबिस त सॉसाइटी में 02 नग रै न वॉटर हावे स्टिं ग थिाबपत है ।
7. बनरीक्षण के समय सिंिबिस त सॉसाइटी में लगिग 10% िूिाग पर ग्रीन-िे ल्ट / फोटोग्राफ्स( वृ क्षारोपण बकया गया है सिं लग्न है ।"
English Translation by Tribunal:
1. The society in question is M/s Paras Realtech Limited, situated at GH-06, Rukmani Vihar, Vrindavan, Mathura, within the Taj Trapezium Area.
2. The total area of the society in question is 6907.00 sq.m. The colony has been constructed on built up area of 13593.04 sq.m (Block No. 1 to 8) (Block No. 01 - 1814.546 sq.m, Block No. 02 -
1420.446 sq.m, Block No. 03 - 1211.236 sq.m, Block No. 04 - 2044.191 sq.m, Block No. 05 - 2048.216 sq.m, Block No. 06 - 1511.991 sq.m, Block No. 07 - 1814.546 sq.m, Block No. 08 - 1698.640 sq.m, Shopping - 31.195 sq.m).
3. The said society has been issued conditional consent (water/air) from the State Board till 31.03.2026.
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4. The said society has received no objection from the UP Ground Water Authority for extraction of ground water; a copy of NOC is enclosed.
5. The height of the exhaust/chimney connected to the DG set capacity-62.5 KVA installed in the said society is installed as per the prescribed standards.
6. 02 Rain Water Harvesting facilities are installed in the reference society.
7. At the time of inspection, greenbelt/plantation has been done on about 10% of the land area in the said society (photographs are enclosed)."
19. MVDA also filed its Action Taken Report dated 15.04.2024 stating that pursuant to Tribunal's order dated 02.02.2024, a Junior Engineer visited the site on 01.04.2024 and found following action taken by Developer/Builder (respondent 2) at the project in question:
"A. The Respondent No. 02 has completed the work of green belt in 10% of plot area in terms of the sanctioned map. Some of the photographs of completed green belt are annexed herewith and marked as ANNEXURE- I. B. Further, the rain water harvesting pits which were found clogged and contaminated, during the inspection of Joint Committee, were found to be clean and it is viable to use for the purpose of rain water harvesting at the questioned site. The photograph of cleaned RWH pit is annexed herewith and marked as ANNEXURE - II.
C. The Respondent No. 2 has corrected the position and height of exhaust pipe of DG set. The photograph of the corrected position of pipe of DG set is annexed herewith and marked as ANNEXURE
- III.
D. During the inspection, it was informed by the representative of Respondent No. 2 that they have applied for the permission from the ground water authority for withdrawal of ground water through borewells installed at the questioned site vide its application dated 07.03.2024. A true copy of the application dated 07.03.2024 of Respondent No. 2 seeking permission from the ground water department is annexed herewith and marked as ANNEXURE - IV.
13 E. That the Respondent No. 2 issued a letter dated 22.03.2024 to the Respondent No. 1, wherein it was informed that the Respondent No. 2 has removed all the deficiencies which were pointed out by this Hon'ble Tribunal and further, it was informed that for obtaining the completion certificate the Respondent No. 2 submitted its compounding map in the office of the Respondent No. 1. A true copy of the letter dated 22.03.2024 issued by the Respondent No. 2 is annexed herewith and marked as ANNEXURE -V. F. It is to bring to the knowledge of this Hon'ble Tribunal that on the application of the Respondent No. 2 for obtaining the completion certificate, the Respondent No. 1 is in the process of demolishing the excess construction done by the Respondent No.2."
20. Additional Reply dated 15.04.2024 has also been filed on behalf of Developer (respondent 2), raising objection that the issue raised in OA is barred by limitation under Section 14(3) of NGT Act, 2010. However, on merits, respondent 2 has stated on various aspects as under:
(i) NOC from UPPCB: It is said that under Consent Management Policy of CPCB-2016, consent was required for building and construction project having more than 20000 m2 of the built up area, hence at the time of developing the society in question, no consent/NOC was required. Recommendations/observations of Joint Committee are inconsistent to Consent Management Policy of CPCB-2016. A copy of modified directions issued by CPCB to all State PCBs/State Pollution Control Committees vide letter dated 07.03.2016 has been placed on record as annexure R-2/1 at page 243 which provides categorization of industrial sectors in Red, Orange, Green and White categories. However, respondent 2 applied for consent under Water Act, 1974 and Air Act, 1981 which has been granted vide letter dated 10.04.2024 w.e.f. 01.04.2024 upto 31.03.2026, by UPPCB and copy 14 of the said consolidated CTO and Authorization is on record as annexure R-2/2 at page 301 of paper book.
(ii) Occupancy Certificate: It is said that Completion Certificate could not be issued due to lack of response on the part of MVDA despite several requests. Initially, respondent 2 applied for grant of Completion Certificate vide letter dated 05.12.2023. Due to inaction of MVDA, respondent 2 filed Writ Petition No. 31497/2021, M/s. Paras Realtech Limited vs. State of UP & Others in Allahabad High Court for a direction to MVDA for granting Completion Certificate. Vide judgment dated 15.12.2021, Writ Petition was disposed of with a direction to MVDA to consider Developer's application for grant of Completion Certificate in accordance with law. In the meantime, Builder made some alterations in the building by removing doors in some 2 BHK flats and converting into 1 BHK due to lower demand of 2 BHK flats. This resulted in alteration in the sanctioned Plan and accordingly respondent 2 applied for compounding as per law vide application dated 28.09.2022. Receiving no response from MVDA, Writ Petition No. 25219/2023 was filed which was also disposed of vide judgment dated 02.08.2023 by Allahabad High Court directing MVDA to pass orders in accordance with law. However, no order has been passed by MVDA though a further application has been filed on 22.03.2024 for grant of Completion Certificate and a revised map applied for compounding showing 10% green area.
(iii) Green cover around the building inside the project: As per layout plan, there were two types of green area; (i) exclusive green belt at 3 side periphery of unit as whole which is 60 meter in length and (ii) 15 one meter wide green belt around 8 individual blocks (buildings) inside the unit. Both types of green area/green belt were developed by respondent 2 when the project was completed in 2013. Paras Rukmani Vihar Resident Welfare Association (RWA) was registered under Societies Registration Act on 26.10.2018 and society was handed over to the said RWA. With the passage of time, green belt of 01 meter width around the buildings resulted into dampness in the walls of the building which was damaging the building. Consequently, RWA requested respondent 2 to remove green belt around the building and make it paved, vide letter date d24.01.2024 (annexure R-2/7 at page 312). With regard to other green belt area around Northern boundary of the project, more than the prescribed limits of trees were planted and standing and it was duly acknowledged by MVDA in its reply (page 170) wherein it has observed that against the prescribed number of 35 trees, more than 50 are standing. Hence, allegation that there is no development of green belt by respondent 2 is incorrect.
(iv) Be that as it may, respondent 2 has again developed at his own cost one meter green belt around the blocks and the building inside the Society.
(v) Rain Water Harvesting System: Two Rain Water Harvesting systems were established/installed by Developer in the premises. However, at the time of inspection by Joint Committee, both were found clogged and contaminated. Responsibility of maintenance of Rain Water Harvesting system was with RWA who has taken over maintenance of Society from Developer vide letter dated 10.01.2019. 16 In any case, Rain Water Harvesting systems have been cleaned and are functional.
(vi) Diesel Generator Set: Recommendation in respect to DG set regarding stack height has been complied with.
(vii) Extraction of ground water from borewell with permission:
Borewells were installed by RWA without information to the Developer since RWA was managing the Society. After Joint Committee Report, RWA requested Developer vide letter dated 01.03.2024 to render help for obtaining permission of extraction of ground water and accordingly, respondent 2 applied for permission and the same has been granted on 09.04.2024 (R-2/13 at page
324) which is valid for the period from 02.04.2024 to 01.04.2029.
21. Tribunal considered the above Report and replies on 18.04.2024 when applicant sought time to file objections to the Report submitted by UPPCB and respondent 1 and additional reply filed by Developer which was granted. Tribunal also appointed an Advocate as Amicus Curiae to assist it.
22. Report dated 24.05.2024 was filed by Learned Amicus Curiae after making inspection of the project in question on 12.05.2024. Amicus Curiae found green area in the project, plantation, Rain Water Harvesting system, 02 borewells, DG set, municipal solid waste collect, sewerage network and treatment, fire system and vehicle parking area. Status reported by Learned Amicus Curiae is as under:
"STATUS AT SITE:-
1. That during the visit the Amicus observed the Green area of the Project in question, Plantation, Rain Water Harvesting System, status of DG Set, two Bore wells, Municipal Solid Waste collect, 17 Sewerage Network & Treatment, Fire System, Vehicle Parking area. The photographs showing the general view of the site is annexed herewith as Annexure- B (Colly).
2. That the project site were having 08 tower, each tower containing 04 Floors and total around 300 flats developed on the project site having total area of the housing colony is 6997.90 Sqm. and built-
up area is 13593.04 Sqm. (Block No.-1 to 8. The said colony Constructed G+4th floor at the Housing Society Paras Pride Vrindavan, Plot No.- GH06, Rukmani Vihar Avasiya Yojna, Vrindavan, Tehsil and District-Mathura.
3. That during the visit it was observed that only 04 developed trees were noticed in project area, few pots were noticed in project site. The photographs of the trees inside the project area along with pots are attached herewith as Annexure- C (Colly).
4. That it was further noticed that the project proponent and RWA recently settled the soil on concrete floor with the help of bricks and tried to develop the green area in project site. The photographs of the project area attached herewith as Annexure- D (Colly).
5. That during the inspection it was noticed that DG set was fixed at ground and having the chimney of approx. 04 feet's height and DG set was not in function. The photographs of the DG Set are attached herewith as Annexure-E (Colly).
6. That during the inspection it was noticed that two rain water Harvesting Systems were installed but not clean. The photographs of the Rain Water Harvesting System are attached herewith as Annexure- F (Colly).
7. That during the inspection it was noticed that there are two bore well in project area, which appeared to be quite old. One bore well was inside the project area and another was installed outside the Main Boundary and Permissions were stated to be annexed by Respondent No. 2/Project proponent with additional reply at Page No. 324 to 331, which is valid from 02.04.2024 to 01.04.2029. Photographs of the Bore Well are attached herewith as Annexure-G (Colly).
8. That during the inspection it was observed and informed by the RWA representative that the society is having Sewage connection with municipal authority and the sewage is directly discharging into the municipal network. The photographs of the sewage line are attached herewith as Annexure-H (Colly).
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9. That during the visit it was observed that there were no specific designated site/bins for the garbage waste collection inside the project area and the RWA Members informed that the RWA is under contract with Municipal Authority for collection of daily waste and paid them on monthly basis.
However, it is necessary to mention here that there are two medium size bins (around 3.5 feet) noticed outside the society near main gate and no garbage, waste observed in Society during the visit but some garbage found at the back side of boundary wall. The photographs of the Bins and garbage waste are attached herewith as Annexure-I (Colly).
10. That during the inspection it was observed that the Fire System installed and were functional. The photographs of the Fire Connection System are attached herewith as Annexure- J (Colly).
11. That during the inspection it was observed that around 50 plus developed plants were maintained at the outer wall of the project site. The photographs of the outer wall of the project site shown plants are attached herewith as Annexure-K (Colly).
12. That during the inspection it was observed that there is no reserved and proper parking area in project site and vehicles were parked on road of society. The photographs of the vehicles parked over concrete road are attached herewith as Annexure-L (Colly)."
23. Learned Amicus Curiae also made certain suggestions, as under:
"A. Builder has not developed any specific site for solid waste collection. The RWA/project proponent should maintain the specific site for the daily collection of municipal solid waste from project area and disposal at designated site of Nagar Nigam. B. Project proponent should establish the Sewage Treatment Plant at the project area to avoid the untreated discharge of sewage into MVDA sewerage network.
C. The Exhaust height of DG set should be installed in premises as per norms.
D. The Builder should develop proper green belt area as per plan. E. Project proponent should maintain designated parking for resident. Project proponent has to ensure parking norms as per approved plan of MVDA.
19 F. Rain Water Harvesting Systems should be cleaned and are made operational as per norms and only rain water is discharged into RWH pits."
24. One Sunil Kumar Gautam S/o Ram Kishan Gautam, resident of flat no. 10, Man Mohan Tower, Paras Pride Group Housing Society made an application seeking his impleadment as respondent which was allowed and he was impleaded as respondent 3 vide order dated 08.08.2024.
25. Developer filed objections dated 29.07.2024 to the Report dated 24.05.2024 of Amicus Curiae on the following aspects:
(I) Only 4 Trees in Project Area:
(a) With regard to the observation that only four trees were found in the project area, it is submitted that the said observation of Learned Amicus is contradictory to its own observation in later part of the Report wherein it has stated, "That during the inspection it was observed that around 50 plus developed plants were maintained at the outer wall of the project site".
(b) Be that as it may, it is submitted that the project area has more than 50 trees which are located inside the project as well as at the outer wall of the Project. Further, apart from these trees, the other two boundaries of the project at the periphery of the plots have several trees which are planted by the Respondent no.2. These trees are blooming, growing and being maintained properly. The same are also visible clearly in the photos placed on record by the Ld. Amicus Curiae in its Report (pages 403-
413).
(II) Settling of soil on concrete floor with the help of bricks to develop green area by Project Proponent and RWA 20
(a) With respect to the above findings, Ld. Amicus Curiae has corroborated the one peculiar stand of respondent 2 that development of green cover around the building with pakka base has been undertaken at the insistence of RWA.
(b) Learned Amicus Curiae, however, failed to take note the rationale offered by the Residents for making pakka base instead of kacha one. Further Ld. Amicus Curiae has failed to consider the representation given by the Residents and supported by RWA, in this regard.
(c) Pakka base has been made at the behest of RWA who is the best judge of their interests in the Society. Kacha base around 8 towers was existing till the handing over the same to RWA, however over time, due to saline nature of the soil, walls of buildings suffered dampness and peeling off as a result of continuously in touch of saline moisture soil. And to protect the buildings, at the request of RWA, base of green area was made pakka and then over it, green area was developed. All this was done at the behest of RWA for the reasons mentioned above but not in the capacity of Developer. It is further submitted that neither the answering respondent/resident of the society has encroached the area earmarked for green cover nor such area has been diverted for any other purpose. The ground coverage as per Building plan originally sanctioned is intact on ground.
(d) It is pertinent to mention here that green cover can be maintained on pakka base as well.
(e) It is thus submitted that settling of green area on pakka base, in view of the peculiar circumstances as stated aforesaid, is per 21 se neither improper nor violation of environmental laws. For example, Societies having basement, maintain green area with pakka base. Their green area can't be with kaccha base. Any further direction, if issued, be in respect of RWA considering its best interest.
(III) Two Rain Water Harvesting Systems found, but were not cleaned:
(a) It is reiterated that after handing over charge of maintenance of common services on 01.01.2019, Developer is not answerable to non-maintenance of any service including regular cleaning of Rain Water Harvesting systems. However, the observation by Ld. Amicus Curiae that Rain Water Harvesting system was found unclean, is contrary to what is discernible and evident from the photographs annexed by him (from pages 381-387). Seven photographs do not show any thing littered in the RWH pits. Not even a single piece of solid waste etc., is visible in the photographs.
(b) Day to day maintenance is beyond the reach and liabilities of Developer. Residents and RWA need be careful for maintenance at regular interval.
(IV) Garbage at the backside of boundary wall:
(a) That although daily collections and disposal is being managed by RWA/individuals socially active in the society are having mechanism for collection of waste through MC, Vrindavan.
Developer is not responsible for maintenance. However, none of the photos annexed with OA and report of Ld. Amicus suggest any mismanagement of waste in the society. In any case, RWA has to take steps but not a party to this case. The connection 22 with garbage outside boundary wall can be better answered by the RWA. To the best of knowledge of Developer and interaction of residents of the society, waste does not pertain to persons living in the society. In photos at running Pg 399 and 400, waste lying in vacant plot appears to be old one having cloths etc. Photos do not give any idea of fresh waste/kitchen waste which normally generates in housing society.
(V) No reserved or proper parking area:
(a) There was no designated parking area or reserved area for parking in the sanctioned map. The open space and parking area is allotted as joint space equivalent to 3469.61 m2 (49.58%). Moreover, suggestion of designated parking does not appear to be relating to environmental concern, especially when, it is not pleaded anywhere on record that ground coverage is beyond the sanctioned limit. Entire space other than under towers is open and free for all residents. Such suggestion appears to be made under influence of applicant.
(VI) Suggestion regarding establishment of STP to prevent untreated discharge of Sewage into MVDA sewerage network
(a) This suggestion is without any basis and without any supporting provision of law, guidelines etc. (VII) Suggestion regarding development of green belt area as per plan:
(a) Respondent 2 had indeed developed green cover as per sanctioned plan. Green cover is developed as per the latest sanctioned plan after compounding.
(VIII) Discharge of only Rain Water in the RWH pits: 23
(a) The roof top rain water pipes are directly going in the RWH pits without any leakage etc. and RWH pits are receiving only rain water from rooftop and no other type of water. However, RWA and residents living there may be careful on this aspect and implementation of this suggestion is beyond the reach and liabilities of the respondent 2.
(IX) Liability of the Project Proponent towards maintenance etc.:
(a) Deemed Completion Certificate under Section 15-A (1) UPUPD Act, 1973 accrued in favour of project proponent after expiry of 3 months from date of application on 05.12.2013 and thereafter the Promoter/Developer of the project started selling the built up units to the buyers/intending purchasers. Liability of Developer towards maintenance started shifting to the buyers of flats from the date of possession. In this regard, clause 12 of Builder Buyer Agreement is also clear which says, "The maintenance of Unit including the walls and partitions, sewer drain, pipes etc shall be the exclusive responsibility of the BUYER/s from the date of possession."
(b) As per Section 4 clause 7 of Uttar Pradesh Apartment (Promotion of Construction, Ownership, and. Maintenance) Act, 2010 (hereinafter referred to as 'UP
Apartment Act, 2010'), "(7) The promoter shall maintain the common areas and facilities till the Association is formed in accordance with the conditions laid down in sub section (2) of section14 and shall be entitled to levy proportionate maintenance charges as specified in the declaration."24
(c) Any liability after handover of the Project lies with buyers of the flats. Further project proponent can sell the unsold units even after hand over of the Project to RWA.
(d) Project Proponent if sells the unsold Units after handover, then it is doing so in the capacity of owner of these flats and not as in-charge of the Group Housing Society. Administration of Society after handover to RWA lies with RWA and flat buyers. (X) DG SET:
(a) Respondent 2 has installed DG set as per requirement of RWA and residents of the Society and as per norms. After handing over society to RWA, it is best one to take decision and execute the same.
26. Respondent 2 has also filed additional affidavit reply dated 29.07.2024 giving reference to a matter pending before National Consumer Dispute Redressal Commission but we do not find that the same is relevant for the issue in question before Tribunal.
27. However, it is further stated by Developer that the additional units created by removal of walls within permissible limits have been allowed compounding by MVDA on 11.06.2024. There is no change in ground coverage of towers in the Society and no usurpation of area earmarked as green cover. Anomaly with respect to break up of total area into various sub-categories has been removed in site plan approved on 11.06.2024 wherein green cover shown is 10%. Copy of approved plan is placed on record as annexure R-5 (Page 576) which shows 10% of green area i.e., 699.79 m2 approved by MVDA in the project.
25 ARGUMENTS:
28. Learned Counsel for applicant contended that Developer was under
an obligation to maintain green belt but it contravene the sanctioned plan and also mandate of GO dated 05.08.2010. He further contended that there are other violations as noted by Joint Committee, therefore Builder is responsible for violations of environmental laws, hence should restore the position with regard to green belt and be imposed liability towards environmental compensation for violation of environmental laws on various aspects like rain water harvesting etc.
29. Learned Counsel for respondent 2/Developer on the contrary contended that the project was completed in 2013 and Builder applied for grant of Completion Certificate. Since MVDA did not pass any order otherwise, therefore, in view of Section 15A(1) of UPUPD Act, 1973, Completion Certificate stood deemed granted after expiry of 03 months from the date of application i.e., 05.12.2013. It is further contended that RWA was constituted on 26.10.2018 and project was handed over for maintenance to RWA vide letter dated 10.01.2019 (annexure R/4 at page 81 of paper book). Thereafter, Builder ceased to have any responsibility or liability with regard to maintenance etc. of the project. From the date RWA registered, entire responsibility and maintenance etc. is deemed conferred upon RWA under Section 14, sub-section 5 of UP Apartment Act, 2010, therefore, Builder is not responsible for any changes made in the Society by or at the instance of RWA. It is also contended that if applicant has any grievance against management of apartments, which is in the hands of RWA, RWA was/is a necessary and proper party which has not been impleaded. Since RWA has already been registered and handed over management of the project, respondent 2 cannot be held responsible for anything in the project.26
30. Further, it is contended that RWA was registered on 26.10.2018. In view of Section 14 sub-section 5, the entire management of affairs of the apartments regarding common areas and facilities stood deemed transferred from the promoters to RWA. The complaint made by applicant on 04.11.2023 is barred by limitation even under Section 15 of NGT Act, 2010 and hopelessly barred by limitation under Section 14(3) of NGT Act, 2010.
31. Learned Counsel appearing for MVDA however submitted that the suggestions and recommendations of Joint Committee have been complied with and therefore, Tribunal may consider the matter and pass appropriate order.
ISSUES:
32. In view of above rival submissions, following issues have arisen for adjudication of this application:
(I) Whether Developer (respondent 2) has violated environmental laws in respect of green belt/green area/plantation and Rain Water Harvesting system which were obligatory in view of GO dated 05.08.2010?
(II) Whether GO dated 05.08.2010 falls within the scope of the enactments mentioned in Schedule I of NGT Act, 2010 and is enforceable by this Tribunal?
(III) Whether there is any statutory provision requiring the Builder or RWA to maintain green belt in the area in question under the enactments mentioned in Schedule I of NGT Act, 2010? 27 (IV) Whether RWA is a necessary party and if yes, any effective relief can be granted to applicant in its absence?
(V) Whether application is barred by limitation under Sections 14(3) and 15(3) of NGT Act 2010?
(VI) Whether there is any violation of environmental laws mentioned in Schedule I of NGT Act, 2010 in respect whereof preventive, prohibitive or remedial action is required to be taken entitling Tribunal to issue necessary directions?
(VII) Whether applicant is entitled for any relief? ISSUES I, II and III:
33. We proceed to consider issues I, II and III together being over-lapping on some aspects.
34. Applicant has sought enforcement of State Government's Order No. 3348/8-1-10-17 विविध/03 T.C.-1 dated 05.08.2010 i.e., 'GO dated 05.08.2010') which is addressed to Housing Commissioner, UP Awas Evam Vikas Parishad, Lucknow and Vice Chairman of all Development Authorities of State of UP. A perusal of GO dated 05.08.2010 shows that it has been issued by Housing and Urban Planning Department of State Government and refers to some earlier Government's orders dated 20.05.1999, 12.04.2001, 19.06.2003, 25.04.2006, 01.07.2008 and 19.06.2009 wherein it has addressed to adopt the practices relating to conservation of ground water and recharging techniques and also transplantation for improvement of environment. GO dated 05.08.2010 says that for enforcement of Rain Water Harvesting system and plantation, provisions have been made in bye-laws relating to building construction 28 and development. The said bye-laws make it mandatory to provide Roof Top Rain Water Harvesting and ground water recharging system by preservation of ponds/water bodies or to create new water bodies and for plantation and these have been made compulsory at the time of sanction of the map and grant of Completion Certificate, since lowering of ground water table is consistent and water bodies are also drying up which is causing a threat for water conservation, therefore, compliance of certain further directions have been sought to be ensured by the above GO. It says that for ground water conservation and recharging, for every building construction in an area of 300 m2 and more, roof top rain water harvesting system shall be applied effectively. For improvement of water bodies, certain directions have been given.
35. For plantation, it is said that in residential plots where Group Housing Society is to be developed, 50 trees per hectares shall be planted and landscaping plan accordingly shall be compulsory at the time of approval of layout plan of the building. Further, in the residential and institutional development of plots after the "right-of-way", a provision of 5 ft. wide green verge shall be made wherein grass or trees shall be planted.
36. Learned Counsel appearing for respondent 2 contended that the aforesaid order is referable to the provisions of UPUPD Act, 1973 and Rules and Bye-laws made thereunder. The aforesaid Act is not one of the enactments mentioned in Schedule I of NGT Act, 2010 and, therefore, not enforceable by Tribunal.
37. On the contrary, Learned Counsel for applicant submitted that provisions for rain water harvesting and plantation are the steps necessary for conservation and preservation of ground water, cleaner air. Such provisions are directly related with the environment, hence falls within the 29 scope of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986'). He further contended that mere fact that GO dated 05.08.2010 has attempted to enforce the provisions necessary for protection of environment by issuing Government Order in exercise of some provincial enactments, may not deprive the provisions necessary for protection of environment to fall within the province of EP Act, 1986 and hence, direction can be issued by Tribunal even if by not referring to GO dated 05.08.2010 but to direct compliance of the requirement thereunder for protection of environment.
38. In the light of the above rival submission, we have to examine whether the directions relating to Rain Water Harvesting System and green area/green belt/open area have integral connection with conservation/preservation/management/regulation of ground water and clean air and falls within the ambit of EP Act, 1986.
39. In this regard, we find that in India, there is a Statutory Authority constituted under Section 3 of EP Act, 1986, which is 'CGWA'. It will be useful to have a brief retrospect about its origin, powers and duties.
40. On 18.03.1996, in daily newspaper, "Indian Express", a news item was published under the caption of "Falling Groundwater Level Threatens City". Supreme Court took judicial notice of the said news item on 20.03.1996 in MC Mehta vs. UOI, (1997) 11 SCC 312 and required Central Ground Water Board (hereinafter referred to as 'CGWB') which was in existence at the relevant time as a part of Ministry of Water Resources and Delhi Pollution Control Committee (hereinafter referred to as 'DPCC') to respond. On 03.04.1996, Court issued notices to Municipal Corporation of Delhi and Delhi Waterworks and Sewerage Disposal Undertaking. One Scientist, Dr. P.C. Chaturvedi, (Director), CGWB filed 30 affidavit stating that since 1962 and onwards, water levels in country are declining. During 1971 to 1983, fall in water level was 4 meters to 8 meters in National Capital Territory. There was a further fall of water level from 4 meters to more than 8 meters during 1983 to 1985. One of the reasons stated in the affidavit for decline of water level was, enhanced pumpage.
Consequently, Supreme Court issued notice to Government of India through Secretary, Ministry of Water Resources and Government of National Capital Territory, Delhi. The factual position regarding fall of water levels in the country was admitted in the affidavits filed by various authorities before Supreme Court. Thereafter, vide order dated 04.09.1996, Supreme Court requested Director, National Environmental Engineering Research Institute (hereinafter referred to as 'NEERI') to examine the matter at institute level, by experts in the field, and submit report. NEERI was also required to submit suggestions and recommendations for checking further decline of underground water level. Consequently, NEERI submitted Report dated 23.09.1996 with the title "Water Resources Management in India, Present Status and Solution Paradigm". An affidavit dated 24.10.1996 was filed on behalf of Ministry of Water Resources, by Additional Secretary, making comments on NEERI report, indicating an overall declining water level picture in the country, and also, schemes and activities undertaken by Government of India through various departments to monitor ground water. It was pointed out that in order to arrest depleting trend and to avoid indiscriminate withdrawal of ground water, Government of India had circulated a Model Bill to States/Union Territories, in 1970, to help them to bring out suitable legislation on the lines of Model Bill to regulate and control development of ground water in the respective areas.
31
41. Noticing all these facts, Supreme Court, accepted one of the suggestions of NEERI, regarding constitution of an Authority under Section 3(3) of EP Act, 1986, and passed order on 05.12.1996, over ruling objection taken by Ministry of Water Recourses, Government of India that water being a State subject, it would not be possible to constitute an Authority under Section 3(3) of EP Act, 1986. Supreme Court held that EP Act, 1986 is made by Parliament under Entry 13 List I Schedule 7 read with Article 253 of the Constitution of India and shall have an over-riding effect. There was already an Organization namely CGWB having its Office across the country, hence Supreme Court directed that Central Government may consider to issue a Notification constituting the "Board" itself as an "Authority" under Section 3(3) of EP Act, 1986. It also observed that the said Authority would have all statutory powers under Section 3(3) of EP Act 1986 and would be in a position to have effective control all over India. Supreme Court also said that any institution/department constituted by State Government can independently function in its own field with the cooperation and under the guidance of the organization set up by CGWB.
42. As a result, thereof, Notification dated 14.01.1997 was issued by Ministry of Environment and Forest (hereinafter referred to as 'MoEF'), in exercise of power conferred by Section 3(3) of EP Act 1986 constituting CGWB as an Authority i.e., CGWA, for the purpose of regulation and control of ground water management and development, from the date of publication of the said Notification in the official Gazette. It was published in the Gazette of India on the same date.
43. Para 1 of Notification of 1997 said that CGWA would constitute of the following:
32
(i) Chairman, CGWB-Chairperson;
(ii) Member (Exploratory Drilling and Materials Management),
CGWB-Member;
(iii) Member (Sustainable Management and Liaison), CGWB-Member;
(iv) Member (Survey, Assessment and Monitoring), CGWB-Member;
and
(v) An officer not below the rank of the Joint Secretary to the
Government of India to be appointed by the Central Government-Member.
44. Para 2 of the said Notification dated 14.01.1997, provided powers and functions of CGWA, and said:
"2. The Authority shall exercise the following powers and perform the following functions, namely: -
(i) exercise of powers under section 5 of the Environment (Protection) Act,1986 for issuing directions and taking such measures in respect of all the matters referred to in sub-
section (2) of section 3 of the said Act;
(ii) to resort to the penal provisions contained in sections 15 to 21 of the said Act;
(iii) to regulate indiscriminate boring and withdrawal of ground water in the country and to issue necessary regulatory directions with a view to preserve and protect the ground water."
45. The jurisdiction of the said Authority was declared to be whole of India, vide para 3.
46. Supreme Court in M.C. Mehta vs. Union of India & Others (supra) also said that the Authority i.e., CGWA can resort to penal provisions contained in Sections 15 to 21 of EP Act, 1986. It also observed that main object for constitution of said Authority being the urgent need for regulating indiscriminate boring and withdrawal of underground water in 33 the country, the said Authority so constituted, shall apply its mind to this urgent aspect of the matter and issue necessary regulatory directions with a view to preserve and protect underground water.
47. Initially, constitution of CGWA was for one year as provided in para 1 of Notification dated 14.01.1997. It was amended by Notification dated 13.01.1998, published in the Gazette of India (Extraordinary) of the same date and in place of one year, it was made five years.
48. Another amendment was brought in Notification dated 14.01.1997 by Notification dated 05.01.1999, published in the Gazette of India (Extraordinary) dated 08.01.1999 and thereby, CGWA was made six persons Authority by adding Regional Director or an officer of equivalent rank, CGWB as Member Secretary.
49. Constitution of CGWA and its functions underwent a major amendment vide Notification dated 06.11.2000, published in Gazette of India (Extraordinary) dated 16.11.2000. Thereby, in para 1, period of CGWA was deleted, hence CGWA became an Authority without any limitation of period. Further, composition of CGWA was also changed by making it a ten members Committee including Chairman, with a further provision authorizing it to have some special invitees, as and when required. The new composition of CGWA was as follows:
(i) Chairman, CGWB-Chairman
(ii) Member (Survey, Assessment and Monitoring), CGWB-
Member
(iii) Member (Exploration Drilling and Materials Management), CGWB-Member 34
(iv) Member (Sustainable Management and Liaison), CGWB-
Member
(v) Member (Training and Technology Transfer), CGWB-Member
(vi) Joint Secretary (Administration), Ministry of Water Resources-
Member
(vii) Joint Secretary and Financial Adviser, Ministry of Water Resources-Member
(viii) Joint Secretary, MoEF-Member
(ix) Chief Engineer, Irrigation Management Organization (Water, Planning and Projects), Central Water Commission-Member
(x) Director/General Manager (Exploration), Oil and Natural Gas Corporation Ltd.-Member
50. The aforesaid Notification further authorized CGWA to invite, from time to time, following, as special invitees, as and when required:
(i) Joint Secretary (Soil and Water Conservation), Department of Agriculture and Co-operation
(ii) Joint Secretary (Water Supply), Ministry of Urban Development
(iii) Joint Secretary (Department of Drinking Water Supply), Ministry of Rural Development
(iv) Director, National Institute of Hydrology, Roorkee
(v) Director, National Geo-physical Research Institute, Hyderabad.
51. The powers and functions of CGWA described by Notification dated 14.01.1997 were also amended and for clause (iii), the following clause (iii) and (iv) were substituted:
"(iii) to regulate and control, management and development of ground water in the country and to issue necessary regulatory directions for this purpose;
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(iv) exercise of powers under Section 4 of the Environment (Protection) Act, 1986, for appointment of officers."
52. CGWA was conferred with powers to issue directions under Section 5 and also to exercise powers on the matters referred to in Section 3(2) of EP Act, 1986. Thus, it would be appropriate to have a bird eye-view of Section 3(3), 3(2) and 5 of EP Act, 1986. Section 3(2) and (3) read as under:
"3(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:
(i) co-ordination of actions by the State Governments, officers and other authorities--
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(ii) planning and execution of a nationwide programme for the prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; 36
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;
(xii) collection and dissemination of information in respect of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.
"3(3) The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures."
53. Section 5 confers power to give directions which was also conferred upon CGWA by Central Government in its notification under Section 3(3). Section 5 reads as under:
"5. POWER TO GIVE DIRECTIONS:
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-37
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service."
54. Perusal of above, shows that Section 5 has been given an overriding effect over any other law but directions issued under Section 5 have to be within the compass of EP Act, 1986 and cannot travel beyond. Further sub-section 2 of Section 3 has to be read with sub-section 1 which shows that power to take such measure as deemed necessary and expedient, was conferred with the clear objective that it should be for the purpose of protecting and improving quality of environment and preventing, controlling and abating environmental pollution. Further the aforesaid power is also subject to the provisions of EP Act, 1986.
55. Section 24 of EP Act, 1986 also made a declaration that subject to sub-section 2, provisions of EP Act, 1986 and the rules or orders made therein, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than EP Act, 1986.
56. Therefore, not only provisions of EP Act, 1986 but even rules or orders issued under EP Act, 1986 shall prevail over any other enactment except EP Act, 1986. In other words, if, there is anything otherwise provided in EP Act, 1986, then the rules/orders etc. will have to be read consistent therewith and as per legislative or statutory hierarchy, the one which is superior in hierarchy, shall prevail.
57. The steps, taken by Central Government or the Authority constituted under Section 3(3) with power to issue directions under Section 5 or to take such measures as are necessary under sub-section 2 of Section 3, are the orders in respect whereof, Section 24 sub-section 1 38 provides that the same shall prevail over any other enactment having any inconsistent provision. The only exception is with regard to the offences and punishment, subject to the provisions of sub-section 2 of Section 24, which provides, where any Act or omission constitutes any offence punishable under EP Act, 1986 and also under any other Act, then the offender found guilty of such offence, shall be liable to be punished under the other Act and not EP Act, 1986.
58. Section 25 of EP Act, 1986 confers power upon Central Government to frame rules and Section 26 provides procedure which obviously would not include or cover the direction or orders or steps taken by virtue to Section 3(2) or Section 5 of EP Act, 1986.
59. Hence directions issued under Section 5 or orders issued on the matters referable to Section 3(2), in our opinion, are statutory orders. We have already discussed that EP Act, 1986 is referable to Entry 13 List I Schedule VII of the Constitution read with Article 253, having been enacted pursuant to the International Conference and resolutions and to give effect thereto, it shall prevail over Provincial legislation. All Provincial enactments therefore, would have to subserve the Guidelines issued by CGWA since these guidelines are referable to Section 5 read with Section 3(2) of EP Act, 1986. These guidelines are statutory orders and, in any case, having been issued in exercise of powers under EP Act, 1986, as stated above, shall prevail over Provincial enactments/legislations. To the extent, subject is covered by EP Act, 1986 and the orders/directions issued by CGWA, Provincial legislature would lack power to make law, and if made, shall sub serve.
60. Limitation upon CGWA is that the guidelines, not only, are subject to the provisions of EP Act, 1986 but should also conform the mandate 39 that it should be for the purpose of protecting and improving quality of environmental and preventing, controlling and abating environmental pollution.
61. We may also notice at this stage that for regulating ground water, some provincial legislature have enacted State laws but the provisions of these State enactments are subject to the ultimate directions, instruction and guidelines issued by CGWA for regulation, control, management and development of ground water in the country. Various enactments made by different States may be referred hereunder:
(i) Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996
(ii) Assam Ground Water Control and Regulation Act, 2012.
(iii) Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006
(iv) Goa Ground Water Regulation Act, 2002
(v) Gujarat Irrigation and Drainage Act, 2013
(vi) Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005
(vii) Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020 published in the Gazette of Haryana dated 07.12.2020 (Extraordinary)
(viii) In Jammu and Kashmir, it is Water Resources (Regulation and Control of Development and Management) Act, 2010
(ix) Karnataka Ground water (Regulation and Control of Development and Management) Act, 2011
(x) Kerala Ground Water (Control and Regulation) Act, 2002 (Act 19 of 2002 40
(xi) Lakshadweep Ground Water (Development and Control) Regulation, 2001
(xii) Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986.
(xiii) Maharashtra Groundwater (Development and Management) Act, 2009
(xiv) National Capital Territory of Delhi, Department of Environment, has issued an order dated 18.05.2010, purported to be a direction under Section 5 of EP Act, 1986
(xv) Pondicherry Ground Water (Control and Regulation) Act, 2002 (Act No. 2 of 2013) (xvi) Punjab Preservation of Subsoil Water Act, 2009 (xvii) Rajasthan Soil and Water Conservation Act, 1964 (xviii) Tamil Nadu Municipal Laws and the Chennai Metropolitan Area Groundwater (Regulation) Amendment Act, 2014 (Act No. 23 of 2014) (xix) Union Territory of Chandigarh Water Supply Byelaws, 2011 (Amendment 2018) (xx) Uttarakhand Ground Water (Regulation and Control of Development and Management) Act, 2016 (xxi) Uttar Pradesh Ground Water (Management and Regulation) Act, 2019 (xxii) West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005 (Act XVIII of 2005).
62. In this backdrop, we find that in September 2007, Government of India, Water Resources, CGWB published "Manual on Artificial Recharge of Ground Water". The said Manual contains detailed Guidelines on the aspect of artificial recharge schemes of ground water. It is said that ground water plays an important role in sustaining India's economy, environment 41 and standard of living. It is not only the main source for water supply in urban areas for domestic uses, but also the largest and most productive source of irrigation water. Indiscriminate ground water development is leading to substantial ground water level declines both in hard rocks and alluvial areas threatening sustainability of this resource. The earth and plantation thereon provide natural pattern of recharge but looking to the level of extraction of ground water, such natural recharge is highly deficient and hence need of techniques for artificial recharge of ground water. Artificial recharge of ground water may be defined as the recharge that occurs when the natural pattern of recharge is deliberately modified to increase recharge. The process of recharge itself is not artificial. In other words, artificial recharge is any procedure which introduces water in a previous stratum. Artificial recharge refers to transfer of surface water to the aquifer by human interference. Natural process of recharging the aquifers is accelerated through percolation of stored or flowing surface water, which otherwise does not percolate into the aquifers. One of the direct methods of natural recharge of ground water is the availability of contact area and resistance time of surface water over the soil to enhance infiltration and to augment the ground water storage in phreatic aquifers. Downward movement of water is governed by a host of factors including vertical permeability of the soil, presence of grass or entrapped air in the soil zone and presence and absence of limiting layers for low vertical permeability at depth.
63. Roof Top Rain Water Harvesting is an indirect recharge system which involves tapping rain water where it falls particularly urban areas where natural recharge is considerably reduced due to increased urban activities and lesser availability of land for implementing any other artificial recharge method. The above Guidelines contained in the Manual 42 has a full chapter of Roof Top Rain Water Harvesting narrating its advantages as under:
"a) Roof top rainwater harvesting is one of the appropriate options for augmenting ground water recharge/ storage in urban areas where natural recharge is considerably reduced due to increased urban activities and not much land is available for implementing any other artificial recharge measure. Roof top rainwater harvesting can supplement the domestic requirements in rural areas as well.
b) Rainwater runoff which otherwise flows through sewers and storm drains and is wasted, can be harvested and utilized.
c) Rainwater is bacteriologically safe, free from organic matter and is soft in nature.
d) It helps in reducing the frequent drainage congestion and flooding during heavy rains in urban areas where availability of open surfaces is limited and surface runoff is quite high.
e) It improves the quality of ground water through dilution.
f) The harnessed rainwater can be utilized at the time of need.
g) The structures required for harvesting rainwater are simple, economical and ecofriendly.
h) Roof catchments are relatively cleaner and free from contamination compared to the ground level catchments.
i) Losses from roof catchments are much less when compared to other catchments."
64. CGWB in May 2011 published "Select Case Studies Rain Water Harvesting and Artificial Recharge" giving details of success attained in upgrading water table in certain States due to adoption of artificial recharge system which included States of Andhra Pradesh, Chhattisgarh, National Capital Territory Delhi, Karnataka, Madhya Pradesh, Maharashtra, North Eastern States i.e., Assam, Nagaland, Arunachal Pradesh, Meghalaya, Mizoram; Orissa, Haryana, Punjab, Tamil Nadu, West Bengal, Sikkam and Andaman & Nicobar islands. In the backdrop of 43 the above case studies in different States, CGWB stated that a model bill for regulation and management of ground water by States was circulated by Ministry of Water Resources first in 1972. Thereafter with changing scenario of ground water development, model bill was revised and circulated in 1992, 1996 and latest in 2005 in which artificial recharge component was added and it became mandatory for State Government to include Artificial Recharge while formulating the ground water regulation Act.
65. CGWA also in exercise of its powers under Section 5 of EP Act, 1986 issued directions to Chief Secretaries of the States to adopt Rain Water Harvesting Systems in all Over-exploited/critical blocks/Talukas/States. This was followed by issue of more directions for implementation for rain water harvesting in urban and other areas such as (i) directions to Civic bodies in NCR for drinking water supply network and Rain Water harvesting/recharge, (ii) direction to adopt artificial recharge/Rain Water Harvesting in 1065 areas/blocks, (iii) directions to all residential group housing societies/institutions/Schools/Hotels/Industrial Establishments falling in Over-Exploited/Critical Areas of country, and (iv) direction for implementation of scheme of rainfall runoff across all National and State highways, airports, stadia etc. in the country for Rain Water Harvesting and adopting Artificial Recharge of ground water.
66. In reference to the above directions issued by CGWA, it is said that various States have taken steps to promote and make Rain Water Harvesting mandatory and with regard to State of UP in table 39, the following status has been given:
"Rain Water Harvesting made mandatory for all new housing schemes/plots/buildings/ group housing schemes with separate network of pipes for combined Rain Water Harvesting/Recharging system.
44 In all developmental schemes (Govt./private) roof top rain water harvesting is compulsory for plots of 100 sq.m. and above but below 200 sq.m., network of combined recharge system is essential and for plots of 300 sq.m. and above, if combined system is of recharge is not possible, landlord has to install the system.
In Govt. Buildings (both new as well as old), installation of rain water harvesting structures has been made mandatory. For housing schemes of 20 acres and above it is mandatory to develop ponds/ water bodies in 5% of the total proposed area. For regular monitoring of different schemes of rain water harvesting by different departments, an 'Executive Committee' under the chairmanship of the Chief Secretary has been constituted.
67. We may also refer judgment of this Tribunal in OA 94/2013, Vikrant Kumar Tongad vs. Delhi Metro Rail Corporation Ltd. wherein in respect of NCT of Delhi, Tribunal observed that directions were issued by order dated 01.12.2014 to take effective steps for ensuring Rain Water Harvesting System at hospitals, malls, commercial complexes, hotels and Resident Welfare Associations. Tribunal made it mandatory vide judgment dated 17.07.2018 in the above matter to provide Rain Water Harvesting systems in NCT Delhi in all buildings where area is more than 100 meters.
68. In the light of above, we are clearly of the view that the directions for Roof Top Rain Water Harvesting system is essential part of the programme of ground water recharge since water table is depleting at various places in the country and there is huge deficiency of water for use of the people therefore, its implementation must be mandatory and obligatory across the country. However, requirement of area of building etc. may differ in the light of the local conditions and that may be taken into consideration by the concerned State Governments as has been done by State of UP in its State vide GO dated 05.08.2010.
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69. Requirement of leaving open area for maintaining green cover or green belt, as the case may be, is also natural way of ground water harvesting and if provisions have been made in this regard, they must also be observed and complied with in letters and spirit.
70. We accordingly hold that requirement of GO dated 05.08.2010 in respect of Roof Top Rain Water Harvesting and plantation must be observed in the manner it is provided therein as it is in furtherance of the directions and Guidelines issued by CGWB/CGWA and mandatory to be complied with under the provisions of EP Act, 1986.
71. Now coming to the question, whether the provisions of GO dated 05.08.2010 have been complied with by respondent 2. We find that two Roof Top Rain Water Harvesting systems were installed. Open area was also provided in the Housing complex in question.
72. Joint Committee in its Report dated 30.01.2024 has observed that no proper green belt area of 4191.852 m2 has been developed by the Developer. The above observations, in our view, appear to be erroneous, in as much as, the total land area of Housing Complex is 6997.90 m2 and almost 2/3rd thereof, cannot be required to be developed as green belt. At least, no provision has been shown to us for developing such a huge area as green belt as mentioned in the Joint Committee Report.
73. Joint Committee Report dated 30.01.2024 also said that only two plants have been found inside the project area but the Developer has explained that there were two types of green area in the Housing Complex;
(i) exclusive green belt at 3 side periphery of unit as whole which is 60 meter in length and (ii) one meter wide green belt around 8 individual blocks inside the unit. The stand taken by Regional Officer, UPPCB in its 46 Report dated 10.04.2024 has observed that the Developer was required to provide 10% of the land for plantation and green belt and that was provided with plantation. This is also supported by Action Taken Report dated 15.04.2024 submitted by MVDA.
74. Moreover, GO dated 05.08.2010, on the question of plantation provides that in a Group Housing Society, 50 trees per hectare should be planted. Report dated 25.01.2024 which has been made part of MVDA's reply dated 01.02.2024 shows that total area of Housing Complex is 6997.90 m2 i.e., 0.7 hectare, therefore, required number of trees comes to 35 though, 50 trees and more were found planted thereat. Report however, says that green area was not developed as per approved plan but plantation was found at different places. When the requisite plantation is available in the Society even if it is not as per Approved Map, so far as this Tribunal is concerned, it cannot be said that there is violation of environmental laws.
75. Therefore, we are inclined to hold that respondent 2 has not violated environmental laws in respect of plantation and Rain Water Harvesting as required under GO dated 05.08.2010.
76. Issues I, II and III are answered accordingly by holding that compliance of GO dated 05.08.2010 is mandatory in respect of rain water harvesting system and plantation but in the present case Developer has complied the same.
ISSUE IV:
77. Respondent 2 has stated that the present OA has been filed in 2023 when management of entire Housing Complex already stood transferred to RWA and if they are not properly maintaining Rain Water Harvesting 47 System or plantation of green area, Developer is not responsible and fault/violation is on the part of RWA but the same has not been impleaded and therefore this application suffers from the vice of non-impleadment of necessary party and defective.
78. We find from record that respondent 2 has categorically stated that the Group Housing Society in question (affordable) under the title "Rukmani Vihar Avasiya Yojna" was sanctioned in 2010, launched in 2011 and completed in 2013 and respondent 2 applied for Completion Certificate on 05.12.2013. The units constructed in the Housing Complex were sold and the applicant himself got the sale deed executed on 29.08.2014 for residential flat no. ST-08/003 in Shrestha Tower, ground floor, built up area - 100.33 m2. Copy of sale deed is on record at page
62. Possession letter is also on record at page 56 showing that the possession was transferred to applicant of the above flat on the same date i.e., 29.08.2014.
79. RWA was constituted and registered under Society Registration Act, 1860 on 26.10.2018 (para 7 at page 236 of reply of respondent 2) and pursuant thereto, management of Housing Complex by handing over documents was transferred to RWA vide transfer letter dated 10.01.2019 which is on record at page 81 of the paper book. There is nothing on record to contradict the above facts. On the contrary, applicant admits that it got another flat No. ST-08/004 in the project purchased after execution of sale deed.
80. Since January 2019 management of Housing Complex is in the hands of RWA. In State of UP, ownership of an individual apartment in a building of an undivided interest in the common areas and facilities pertinent to such apartments and to make such apartments and interest 48 heritable and transferable and for matters connected therewith or incidental thereto, UP Legislature has enacted UP Apartment Act, 2010. The aforesaid Act has been made effective/operative/enforced on 19.03.2010.
81. Section 14 of UP Apartment Act, 2010 deals with association of apartment owners and bye-laws relating thereto. Sub-section 2 imposes a joint responsibility upon promoter and apartment owners to form an Association and the promoter is under an obligation to get the Association registered when number of apartments handed over to the owners reached required strength 33% of apartments, whichever is more. In the present case, date of formation of RWA has been stated to be 26.10.2018 and requisite documents for maintenance of common areas etc. were handed over on 10.01.2019. Sub-section 5 of Section 14 provides that on formation of the Association of the Apartment Owners under sub-section (2) above, the management of the affairs of the apartments regarding their common areas and facilities shall be deemed to be transferred from promoter to the Association which shall thereupon maintain them. It reads as under:
"Section 14 - Association of apartment owners and bye-laws relating thereto (5) On formation of the Association of the Apartment Owners under subsection (2) above, the management of the affairs of the apartments regarding their common areas and facilities shall be deemed to be transferred from the promoter to the Association which shall thereupon maintain them, Provided that till all the apartments are sold or transferred, the promoter shall proportionately share the maintenance cost of common areas and facilities."
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82. Since transfer of management of affairs in respect of common areas and facilities to the Association and apartment owners is deemed under sub-section 5 on the date of formation of the said Association, it is clear that after formation of Association, management stood transferred by operation of law and even de facto transfer was given effect on 10.01.2019. That being so, for management of common areas and facilities in Housing Complex, Developer ceased to have any responsibility or authority as it stood transferred and conferred upon RWA.
83. In 2023, when present OA was filed, RWA was responsible for management of common areas and facilities and not the Developer. In that view of the matter, RWA is and was a necessary party. In its absence no such direction can be issued which may place any obligation upon RWA in regard to management to common areas and facilities in the Housing Complex.
84. Issue IV is answered accordingly against applicant and in favour of respondent 2.
ISSUE V:
85. Learned Counsel for the proponent contended that the project was completed in December 2013 and applicant purchased resident unit/flat in Housing Complex in question in 2014. If there was any non-compliance with regard to plantation, Rain Water Harvesting etc., the applicant has cause of action at that point of time in 2014 and took possession of residential accommodation but did not raise any issue at that time. Later on, when the number of units exceeded the requirement of constitution of RWA, the same was constituted on 26.10.2018 and actual physical handing over of the Housing Complex took place on 10.01.2019. In view thereof, the application filed/presented before Tribunal on 04.11.2023 is 50 apparently barred by limitation under Section 14(3) as well as 15(3) of NGT Act, 2010.
86. The stand of the applicant on the contrary is that even if the proponent applied for grant of Completion Certificate on 05.12.2013, no such certificate has been granted till date and therefore, it cannot be said that the project was completed in law, hence, it is a 'continuous cause of action' and the application is not barred by limitation. So far as the Completion Certificate is concerned, it has come on record that respondent 2 applied for grant of Completion Certificate on 05.12.2013 before MVDA. The process of grant of Completion Certificate is governed by Section 15A of UPUPD Act, 1973. Sub-section 1 of Section 15A of UPUPD Act, 1973 says that every person or body having been granted permission under sub- section 3 of Section 15 shall complete the development according to the approved plan and send a notice in writing of such completion to the authority and obtain a Completion Certificate from the authority in the manner prescribed or provided in the bye-laws of the authority. Proviso 2 Section 15A sub-section 1 however, says that if Completion Certificate is not granted and refusal to grant it is not intimated within three months after receipt of notice of completion, it shall be deemed that Completion Certificate has been granted by the authority. The above provision makes it very clear that if the application for grant of Completion Certificate is not declined or rejected and intimation is given within 3 months and after 3 months, there is a deeming clause with regard to grant of Completion Certificate and it shall be deemed to have been granted. The respondent 2 is relying on Section 15A of UPUPD Act, 1973 and in the absence of any material as also contradiction by MVDA in this regard in its reply that the request for grant of Completion Certificate was rejected by MVDA and communicated to respondent 2 by operation of law, deeming provision will 51 operate with regard to grant of Completion Certificate, therefore, it cannot be said that after expiry of 3 months, respondent 2 did not have any Completion Certificate.
87. Moreover, in the present case, applicant has purchased ST-08/003 vide sale deed dated 29.08.2014 i.e., after the deeming clause came into effect. If as per the approved plan, there was any deficiency in Group Housing Scheme, the 'first cause of action' arose to the applicant to raise dispute after execution of sale deed and obtaining possession of residential unit in the Group Housing Scheme. Admittedly, no such attempt was made by applicant. It is also evident from record that even RWA was constituted on 26.10.2018 and the present application has been preferred after more than 05 years from the date of constitution of RWA, hence, apparently the complaint made in our view, is barred by limitation both under Section 14(3) where it is 06 months from the date of 'first cause of action' and also under Section 15(3) where it is 05 years from the date of accrual of 'first cause of action'.
88. Issue V is answered accordingly and against the applicant. ISSUES VI and VII:
89. Both these issues can be returned together. We have already answered issue III as to whether there is any violation in making provision for green area and plantation and Rain Water Harvesting and returned the same in favour of Developer and against the applicant. However, there are some other violations which were found by Joint Committee in its Report dated 30.01.2024 which are:
(i) Two borewells have been installed without permission from CGWA;
(ii) Height of exhaust/stack of DG set is not as per norms; 52
(iii) Rain Water Harvesting Systems were clogged and contaminated; and
(iv) Untreated sewage is being discharged in MVDA sewage network.
90. Joint Committee also made a recommendation that Developer must obtain Completion Certificate from MVDA.
91. Developer has replied that for compliance of environmental laws, it has obtained consolidated CTO and Authorization from UPPCB and copy of letter dated 10.04.2024 which is valid for the period from 01.04.2024 to 31.03.2026 is at page 301 of paper book. There is no violation of Water Act, 1974 and Air Act, 1981. With regard to Occupancy Certificate, he stated that the directions by High Court have also been issued to MVDA for passing a decision on Completion Certificate but MVDA has not passed any final order.
92. Learned Counsel appearing for respondent 2 submitted that the question of Completion Certificate is beyond the purview of enactments mentioned in Schedule I of NGT Act, 2010, therefore, on this aspect, no adverse inference may be drawn against respondent 2.
93. With regard to permission for extraction of ground water from borewell, we find that the permission has been granted on 09.04.2024 and it is at page 324 which is valid for the period from 02.04.2024 to 01.04.2029. With regard to discharge of sewage directly in MVDA Sewerage Network, Learned Counsel for respondent 2 stated that Housing Complex does not satisfy the parameters wherein installation of STP is necessary and therefore, discharge of sewage directly in the Sewerage Network of MVDA does not violate any environmental laws. Nothing has 53 been brought on record and pointed out to us by applicant that the above facts are incorrect.
94. It thus appears that there were some past violations in as much as without obtaining CTO, third party rights were created and the units were transferred to buyers but the said transactions had taken place long back and more than five years from the date of filing of this OA, therefore, the same is beyond the limitation prescribed in Sections 14(3) and 15(3) of NGT Act, 2010. With regard to extraction of ground water without permission, prior to the permission granted on 09.04.2024 apparently, there is past violation for which management of the affairs of the housing society is responsible i.e., RWA but since it is not a party in these proceedings, we find it difficult to issue any direction against it in the present proceedings.
95. In view thereof, issues VI and VII are answered accordingly. We hold that applicant is not entitled for any relief.
96. However, before parting, we find it appropriate to direct UPPCB to periodically monitor compliance of environmental laws in Housing Society in question and if there is any violation, it shall take appropriate remedial, punitive, prohibitive and preventive action in accordance with law.
97. In view of the discussion made above, with regard to requirement of Rain Water Harvesting System and Plantation, as direct or indirect techniques for recharging of ground water, we find that PAN India, a uniform Policy should be made and circulated by CGWA in exercise of its powers under Section 5 read with Section 3(2) of EP Act, 1986 so that there may not be any ambiguity on the question whether these conditions if imposed by respective State Governments or local bodies, are required to 54 be complied with by Developers and/or bodies, maintaining Group Housing Societies and other buildings. We direct CGWA to act accordingly.
98. OA is accordingly disposed of with the above observations and directions.
99. Copy of this order be forwarded to CGWA, UPPCB and MVDA for information and compliance.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM September 09, 2024 Original Application No. 698/2023 R 55