National Green Tribunal
Residents Of Surendra Manik Through Its ... vs M/S. Girija Colonizers & Developers ... on 13 December, 2022
Item No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 14/2021 (CZ)
(I.A. No. 75/2022)
Residents of Surendra Manik Applicant(s)
Versus
Girija Colonizers & Developers & Ors. Respondent(s)
Date of Completion of Hearing and Reserving of Order : 08.12.2022
Date of Uploading of Order on the Website : 13.12.2022
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Mr. Naveen Ahuja, Adv.
For Respondent(s) : Mr. Ravikant Patidar, Adv.
Ms. Parul Bhadoria, Adv.
Ms. Gunjan Chowksey, Adv.
Mr. Sachin K.Verma , Adv.
Mr. Om Shankar Shrivastav, Adv
Mr. Prateek Hatwalne, Adv.
ORDER
1. The issue of discharge of untreated water into the open land and non-
establishment of rainwater harvesting system has been raised in this application. It is alleged that M/s Girija Colonizers and Developers has taken the task of carrying out the development activity of a project namely "Surendra Manik", whereby 346 units/dwellings are being constructed and the same is ongoing as on date in the city of Bhopal.
2. The Original application highlights the issue of non-operation of the sewage treatment plant and non-establishment of rain water harvesting system which should have been established by the builder way back in the year 2013 in terms of the permission accorded by the Municipal Corporation on 20.09.2013 and the Town & Country Planning on 1 26.04.2013, but on the contrary the rain water harvesting system has not been set-up, which is a mandatory condition for protection of ground water and the Sewage Treatment Plant also has not been made functional, rather the entire sewage is being drained on an open land.
The present application also highlights the inaction on the part of the non-applicant officials who are entrusted with the duty of taking immediate action against the polluters.
3. The matter was taken up on 21.05.2021 and a committee consisting of MP State Impact Assessment Authority (MPSEIAA), Bhopal Municipal Corporation and Madhya Pradesh Pollution Control Board was directed to submit a factual and action taken report. The joint committee has submitted the report along with observations made during the site visit, which are as follows :
1. "The residents of Surendra Manik housing society Shri Devendra Chouksey, House no. 56, Shri Madhur, House no. 224 and Shri R. K. Mishra, House no. 57 were present at the time of visit. Mr Prakash Mande, Site-Office in charge of M/s Girija Colonizers & Developers, was also present at the time of inspection.
2. GPS location of the site is recorded using a mobile-based GPS application. The recorded latitude and longitude are marked on the Google Map and photographs taken during the inspection.
The Google map of the site with duly marked locations of STP, shops, and main gate/entrance of the society is attached for observation.
3. As shown in the Google map, the STP is located at the South- West corner of the society and shops are located in the South- West direction on the approach road of the society near the entrance gate of the society.
4. There are 07 gardens provided inside the society. The housekeeping inside the society was found clean.
5. The open space, parking space and internal roads are 2 constructed using pebble blocks.
6. As per the information collected during inspection, the Surendra Manik housing project is planned for construction of a total 346 no. of dwelling units, out of which 180 have been constructed and 125 are occupied by the residents.
7. Committee observed that the built-up area of the constructed buildings is above 20000 square meter and therefore attracts environmental clearance under the EIA notification 2006.
8. The water supply for domestic purposes is supplied through borewells and municipal water supply (Narmada Water Supply). Estimated water demand for present occupancy of 125 families is approx.94 KLD (0.094 MLD) and sewage generation is approx.75 KLD (0.075 MLD).
9. One natural drain is passing through the center of the society in front of House no. 79 and it joins a nalli outside the boundary of the society.
10. The individual household drainage pipe is provided on the back space of each house and it is connected with a 6-inch DIA underground PVC pipe line which is ultimately connected with the STP. Similarly, sewage line is laid down parallel to this line with intermediate manholes and ultimately connected to the STP. The sewage is sent to STP through underground drain.
11. It is observed that the rainwater collected from each roof- top is connected to the household drainage system.
12. Rain-water Harvesting system is not found in society. The entire rain-water gets mixed with the sewage and flows into open land near the society.
13. The residents of the society informed that the wastewater from the shops located outside the society premises is discharged into the sewer line of the society due to which the drainage system is choked, and it overflows through the toilet traps inside the houses. The Committee observed that the size of the drainage system is small in comparison to the incoming flow.
314. STP is located at the South-west corner of the society and at the time of inspection it was not operational and sewage water found accumulated inside and around the STP was overflowing from one side of the tank without treatment.
15. It was observed that the builder has constructed one underground sewage collection tank near the STP. The other units of STP are metallic bio-reactor tank, pressure sand filter, activated carbon filter and filtration units.
16. The design and capacity of the STP is not proper and found under capacity.
17. The untreated sewage from the accumulation tank was discharging outside of the society boundary and mixes into a drain located outside the society premises in the South- East direction.
18. Sewer line chambers located in the open space are found overflowed.
Recommendations of the Committee:
1. The builder shall install an appropriate rainwater harvesting (RWH) system to collect rainwater from the roof top of individual houses to recharge then groundwater.
2. A separate storm water drainage shall be laid to stop the rainwater from getting mixed with sewage as in the present case of combined drainage system.
3. The size of the existing drainage system of household waste water needs to be redesigned to accommodate waste water generated from households and sent to STP.
4. The wastewater of shops shall be collected through separate drainage lines so that choking and overflow like situation does not arise.
5. The sewer line shall be cleaned on a regular interval to prevent the overflow condition.
6. Sewage treatment plant of appropriate capacity shall be designed and installed, and treated sewage shall be used in 4 flushing and gardening.
7. The builder shall obtain environmental clearance under EIA Notification, 2006 and CTE under Water (Prevention and Control) Act 1974 and Air (Prevention and Control) Act l98l.
8. Environmental compensation of INR 8.485 lacs (as per Annexure-4), is to be levied on the builder Girija Colonizers & Developers in regard to the environmental damage caused by the discharge of untreated sewage by them."
4. During the hearing on 25.01.2022 it was argued by the respondent that the opportunity of hearing was not given to the respondent while imposing the environmental compensation for violation of environmental rules. The contention of the Applicant is that the calculation of environmental compensation should be from the date of violation of environmental norms, till the date of continuance of violation. State Pollution Control Board was directed to submit the factual and action taken report and in compliance thereof the report has been submitted as follows :-
"In compliance to the order of NGT, a site inspection was carried out by the officials of MPPCB, RO Bhopal dated 28/03/2022 to check the current status of STP. Representatives of M/s Girija Colonizers & Developers Shri Prakash Mande, Manager, Shri Raunak, Site Engineer and Shri Ramkaran Kushwah, Store Manager were present during the inspection. The observations noted during the inspection are presented as follows:
1. The STP of capacity 75KLD based on MBBR process was found operational during the inspection.
2. The average wastewater generation is approx. 40-45KLD.
3. Treated wastewater was found stored in a storage tank near the STP which is used for gardening purpose inside the society.
4. No wastewater was found flowing outside the premises of STP.5
5. Rainwater harvesting system has been installed by the colonizer. Pipes from the terraces of residential dwelling units are connected to the rainwater harvesting tank which has 04 bore-holes and is covered with gravels for filtration.
6. As per the recommendation of joint committee for providing separate storm water drainage system the builder has provided two concrete storm-water drains which is connected to the natural drain outside the society premise.
Environmental Compensation (EC) :- As per the order of NGT with reference to the calculation of Environmental Compensation from the date of violation till date of continuance of the violation, it is stated that as per instructions the revised environmental compensation of Rs. 8.58 lacs is calculated from the date 08/03/2021 i.e. from violation observed on inspection day after receipt of first complaint against M/s Girija Colonizers & Developers in the matter till the date of inspection of the joint committee i.e. 23/07/2021 in reference to the NGT order dated 21/05/2021 (EC calculation attached as per Annexure - 1). The photographs of the inspection are enclosed as per Annexure - 2."
5. The contents of Annexure-1 reveals the revised calculation as follows :-
"Revised Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority:
The revised Environmental Compensation (EC) to be levied on M/s Girija Colonizers & Developers as per the order dated 25/01/2022 of Hon'ble NGT in case of OA 61/2021 is calculated as per the formula given in NGT OA 593/2017 order dated 28/08/2019:6
EC (Lacs Rs.) = 17.5 x (Total Sewage Generation -
Installed Treatment Capacity) + 55.5 x (Total Sewage Generation -
Operational Capacity) + 0.2 (Sewage Generation- Operational Capacity) X N + Marginal Cost of Environmental Externality x (Total Sewage Generation-Operational Capacity) X N. Where; N = Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority. Quantity of Sewage is in MLD".
As per above methodology, the information recorded during inspection and based on following parameters environmental compensation is assessed:-
S.no Components of EC Estimated Remarks . value 1 Water demand per 0.094 Calculated for present occupancy
day (MLD) (approx.) of 125. Assumptions as per NBC :
No. of persons per family = 5Minimum domestic water supply = 150lpcd 2 Total Sewage 0.075 Assumptions as per CPHEEO Generation per day manual: Sewage generation = 0.8 (MLD) (approx.) x Water demand 3 Installed Treatment 0 Capacity (MLD) As noted during the inspection the STP was defunct and not operational on inspection date 4 Operational Capacity 0 23/07/2021, hence the installed of STP (MLD) and operational capacity of the STP is considered as nil.
5 Gap in treatment of 0.075 Total Sewage generation -
Sewage (MLD) Installed treatment capacity of STP = 0.075 Total Sewage generation - Operational treatment capacity of STP = 0.075 5 N=No. of days of 138 From date of inspection dated violation 08/03/2021 on which violation was first observed by MPPCB till date of inspection of joint committee i.e. 23/07/2021.
Total no. of days = 138 days
6 Marginal cost of 0.1 As per the guidelines of CPCB &
Environmental NGT order in case of OA
Externality (Lacs rs. 593/2017 dated 28/08/2019
per day) the Marginal Cost of
Environmental Externality is
taken as minimum 0.05 and
maximum 0.1 for sewage up to
200 MLD.
7
Environmental Rs. 8.58 EC= 17.5*(0.075-0) +
Compensation Lacs 55.5*(0.075-0) + 0.2*(0.075-
0)* 138 + 0.1*(0.075-0)*138
EC = 8.58 (in Lacs Rs.)"
6. The Tribunal on 11.04.2022 observed as follows :-
i. In para 10 of the application, allegation was that the nonapplicant/respondent has constructed the colony in the area which is approximately 9.15 ha. and the total built up area of all the 346 dwelling is more than 20,000 sq.mtr. and thus environment clearance as envisaged under the EIA Notification, 2006 is required.
ii. The joint committee report/the factual report submitted by the committee in para 7 reveals that the built up area of the construction is above 20,000 sq. mtr. and therefore attracts the environmental clearance under the EIA Notification, 2006.
iii. The water supply for domestic purposes is made through bore-well but no permission from the Central Ground Water Authority has been taken for the purpose by the respondents.
iv. The design and capacity of the STP is not proper and also found to be under capacity.
v. The untreated sewage was reported to be discharging outside the society boundary.
vi. Action taken report filed by the State Pollution Control Board does not cover these facts."
7. Respondent no. 6 Madhya Pradesh State Environmental Impact Assessment Authority (MPSEIAA), in its reply had submitted that the joint committee in its report found that the total build up area is above 20,000sq. meter and thus, the project proponent must obtain environmental clearance in view of the provisions of EIA Notification, 2006 and since the Respondent no. 1 Project Proponent has carried out 8 the development without obtaining prior environmental clearance, it is a clear violation of the provisions laid down under the EIA Notification, 2006.
8. In the meantime project proponent respondent no. 1 has filed an I.A. No. 75/2022 with the facts that :-
1. That, Joint Committee submitted their faulty report before NGT on 12.08.2021, which was prepared contrary to the established principles of law. The joint committee went beyond the scope of examining the 2 issues and it made erroneous and whimsical comment upon the area of construction to be above 20,000 sq. mtr. It is submitted that on the date of visit of joint committee at Surendra Manik Project, no measurement of construction was done by any of the members of Joint Committee and a mere assumption has been raised. The threshold limit of construction of 20,000 sq. mtr. for seeking prior EC is to be looked into projects falling under category 8(a) but Surendra Manik township is not governed by category 8(a). Heavy rains took place on the day of visit of joint committee, and flood like situation of Bhopal was reported in Dainik Bhaskar of next day, and no water sample Was ever taken by the joint committee on the day of visit.
2. That, the NGT vide order dated 11.04.2022 directed MPPCB to submit clarification on the point whether Environment Clearance as envisaged under EIA Notification, 2006 is required or not for Surendra Manik Township. The MPPCB conducted inspection at Surendra Manik Township on 26.04.2022 and submitted a report alongwith the township 9 development permission before NGT holding that prior Environment Clearance under category 8(b) of EIA, 2006 is required above 50 hectares of area or construction above 1,50,00W- sq. mtr. The Surendra Manik township is being merely developed on 9.158 hectares and the construction is much lesser than 1.50,000 sq. mtrs, Thus Surendra Manik Township is not required to take prior EC under EIA, 2006.
3. That, on 17.05.2022, the O.A. no. 14/2021 was fixed for consideration of adjournment application I.A. no. 31/2022 and I.A. No. 32/2022 for issuance of directions to MPPCB to grant opportunity of hearing to the respondent no. 1 before presuming the respondent no. 1 to polluter, The adjournment application was considered and was allowed on 17.05.2022 and the 'natter stock' adjourned. The counsel for MPPCB gave an undertaking that the proceedings are continuing before MPPCB in accordance with law and opportunity of hearing shall he granted to respondent no.1 before presuming them to be polluter. No argument and adjudication was done on 17.05.2022 and general recommendations were passed that if anybody is found in violation, then what should be the rate of computation of environmental compensation. It is shall not be out of place to submit that no adjudication. has been done by NGT holding the present respondent no.1 to violator of EIA Notification 2006.
4. That, the Office Memorandum No. F.No.22-21/2020-I-A.111 dated 07.07.2021 issued by MOEF&CC, GOI is worthwile to note that the environmental compensation of 1% of the total project cost and 0.25% of the turnover during the period of 10 violation, is provided for in such cases where the operations have commenced without taking prior Environmental Clearance. There is no provision for imposition of environmental compensation @10% of the project cost in any statute, rules, regulations, guideline or circulars.
5. That, the Government of India has further issued office memorandum no. F. NO. IA 3-22/30/2022-IA.III(E182415) dated 28.07.2022, thereby directing Member Secretaries of all the Pollution Control Boards of the Country to strictly follow the OM Dated 07.07.2021.
6. That, though the MPPCB has concluded that Surendra Manik Township is not required to take EC, still MPPCB is considering order dated 17.05.2022 to be an order adjudicating the respondent no.1 to violator of EIA notification 2006. Therefore it may be clarified by the NGT that no such order holding the respondent no. 1 to be in violation of EIA, 2006 has been passed in order dated 17.05.2022.
7. That, the order dated 17.05.2022has been passed without consideration of OM dated 07.07.2021 issued by MOEF&CC, GOI. Thus, the order dated 17.05.2022 suffers from prima facie error of law therefore the said order dated 17.05.2022 may be recalled by the Tribunal.
8. That the Hon'ble Supreme Court of India has passed the judgment of Goel Ganga Developers India Pvt. Ltd. Vs. UOI.
(2018) 18 SCC 257, in the peculiarity of circumstances and violations committed by the developer therein, but the said circumstances are not available in the present case. The 11 environmental compensation imposed there under was not a general guideline laid by Hon'ble Supreme Court, and the same is obiter dictum. Hence, the same is not the law of the land."
9. The matter of illegal construction in violation of Environmental Laws has been dealt with by the Hon'ble Supreme Court of India in Civil Appellate Jurisdiction Civil Appeal No. 5041 of 2021 arising out of SLP (C) No. 11959 of 2014 decided on 31.08.2021 where Hon'ble the Supreme Court of India discussed the matter of illegal /unauthorized constructions as follows:-
"146 The rampant increase in unauthorized constructions across urban areas, particularly in metropolitan cities where soaring values of land place a premium on dubious dealings has been noticed in several decisions of this Court. This state of affairs has often come to pass in no small a measure because of the collusion between developers and planning authorities."
"147 From commencement to completion, the process of construction by developers is regulated within the framework of law. The regulatory framework encompasses all stages of construction, including allocation of land, sanctioning of the plan for construction, regulation of the structural integrity of the structures under construction, obtaining clearances from different departments (fire, garden, sewage, etc.), and the issuance of occupation and completion certificates. While the availability of housing stock, especially in metropolitan cities, is necessary to accommodate the constant influx of people, it has to be balanced with two crucial considerations - the protection of the environment and the well-being and safety of those who occupy these constructions. The regulation of the entire process is intended to ensure that constructions which will have a severe negative environmental impact are not sanctioned. Hence, when these regulations are brazenly violated by developers, more often than not with the connivance of regulatory authorities, it strikes 12 at the very core of urban planning, thereby directly resulting in an increased harm to the environment and a dilution of safety standards.
Hence, illegal construction has to be dealt with strictly to ensure compliance with the rule of law."
"148 The judgments of this Court spanning the last four decades emphasize the duty of planning bodies, while sanctioning building plans and enforcing building regulations and bye-laws to conform to the norms by which they are governed. A breach by the planning authority of its obligation to ensure compliance with building regulations is actionable at the instance of residents whose rights are infringed by the violation of law. Their quality of life is directly affected by the failure of the planning authority to enforce compliance. Unfortunately, the diverse and unseen group of flat buyers suffers the impact of the unholy nexus between builders and planners. Their quality of life is affected the most. Yet, confronted with the economic might of developers and the might of legal authority wielded by planning bodies, the few who raise their voices have to pursue a long and expensive battle for rights with little certainty of outcomes. As this case demonstrates, they are denied access to information and are victims of misinformation. Hence, the law must step in to protect their legitimate concerns."
10. In K. Ramadas Shenoy v. Chief Officer, Town Municipal Council, Chief Justice AN Ray speaking for a two judge Bench of this Court observed that the municipality functions for public benefit and when it ―acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess‖. This Court also held:
"27...The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community 13 residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the courts. If sanction is given to build by contravening a bye-law the jurisdiction of the courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative. (See Yabbicom v. King [(1899) 1 QB 444])."
"This Court held that an unregulated construction materially affects the right of enjoyment of property by persons residing in a residential area, and hence, it is the duty of the municipal authority to ensure that the area is not adversely affected by unauthorized construction."
11. These principles were re-affirmed by a two judge Bench in Dr. G.N. Khajuria v. Delhi Development Authority where this Court held that it was not open to the Delhi Development Authority to carve out a space, which was meant for a park for a nursery school. Justice BL Hansaria, speaking for the Court, observed:
"10. Before parting, we have an observation to make. The same is that a feeling is gathering ground that where unauthorized constructions are demolished on the force of the order of courts, the illegality is not taken care of fully in as much as the officers of the statutory body who had allowed the unauthorised construction to be made or make illegal allotments go scot free. This should not, however, have happened for two reasons. First, it is the illegal action/order of the officer which lies at the root of the unlawful act of the citizen concerned, because of which the officer is more to be blamed than the recipient of the illegal benefit. It is thus imperative, according to us, that while undoing the mischief which would require the demolition of the unauthorised construction, the delinquent officer has also to be punished in accordance with law. This, however, seldom 14 happens. Secondly, to take care of the injustice completely, the officer who had misused his power has also to be properly punished. Otherwise, what happens is that the officer, who made the hay when the sun shined (sic), retains the hay, which tempts others to do the same. This really gives fillip to the commission of tainted acts, whereas the aim should be opposite."
12. In Friends Colony Development Committee v. State of Orissa, this Court dealt with a case where the builder had exceeded the permissible construction under the sanctioned plan and had constructed an additional floor on the building, which was unauthorized. Chief Justice RC Lahoti, speaking for a two judge Bench, observed :
"24. Structural and lot area regulations authorise the municipal authorities to regulate and restrict the height, number of storeys and other structures; the percentage of a plot that may be occupied; the size of yards, courts and open spaces; the density of population; and the location and use of buildings and structures. All these have in our view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk, inconvenience and hardship which is posed to the occupants of the building."
Noting that the private interest of land owners stands subordinate to the public good while enforcing building and municipal regulations, the Court issued a caution against the tendency to compound violations of building regulations:
"25...The cases of professional builders stand on a different footing from an individual constructing his own building. A professional builder is supposed to understand the laws better and deviations by such builders can safely be assumed to be deliberate and 15 done with the intention of earning profits and hence deserve to be dealt with sternly so as to act as a deterrent for future. It is common knowledge that the builders enter into underhand dealings. Be that as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop a welfare fund which can be utilised for compensating and rehabilitating such innocent or unwary buyers who are displaced on account of demolition of illegal constructions.‖
13. In Priyanka Estates International (P) Ltd. v. State of Assam, Justice Deepak Verma, speaking for a two judge Bench, observed:
"55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multistoried buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder.
The Court lamented that the earlier decisions on the subject had not resulted in enhancing compliance by developers with building regulations. Further, the Court noted that if unauthorized constructions were allowed to stand or are ―given a seal of approval by Court‖, it was bound to affect the public at large. It also noted that the jurisdiction and power of Courts to indemnify citizens who are affected by an unauthorized construction erected by a developer could be utilized to compensate ordinary citizens."16
14. In Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai, Justice GS Singhvi, writing for a two judge Bench, reiterated the earlier decisions on this subject and observed:
"8. At the outset, we would like to observe that by rejecting the prayer for regularisation of the floors constructed in wanton violation of the sanctioned plan, the Deputy Chief Engineer and the appellate authority have demonstrated their determination to ensure planned development of the commercial capital of the country and the orders passed by them have given a hope to the law- abiding citizens that someone in the hierarchy of administration will not allow unscrupulous developers/builders to take law into their hands and get away with it.
The Court further observed that an unauthorized construction destroys the concept of planned development, and places an unbearable burden on basic amenities provided by public authorities. The Court held that it was imperative for the public authority to not only demolish such constructions but also to impose a penalty on the wrongdoers involved. This lament of this Court, over the brazen violation of building regulations by developers acting in collusion with planning bodies, was brought to the fore-front when the Court prefaced its judgment with the following observations:
"1. In the last five decades, the provisions contained in various municipal laws for planned development of the areas to which such laws are applicable have been violated with impunity in all the cities, big or small, and those entrusted with the task of ensuring implementation of the master plan, etc. have miserably failed to perform their duties. It is highly regrettable that this is so despite the fact that this Court has, keeping in 17 view the imperatives of preserving the ecology and environment of the area and protecting the rights of the citizens, repeatedly cautioned the authorities concerned against arbitrary regularisation of illegal constructions by way of compounding and otherwise.
Finally, the Court also observed that no case has been made out for directing the municipal corporation to regularize a construction which has been made in violation of the sanctioned plan and cautioned against doing so. In that context, it held:
"56. We would like to reiterate that no authority administering municipal laws and other similar laws can encourage violation of the sanctioned plan. The courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorised constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas.
"154 These concerns have been reiterated in the more recent decisions of this Court in Kerala State Coastal Zone Management Authority v. State of Kerala, Kerala State Coastal Zone Management Authority v. Maradu Municipality, Maradu and Bikram Chatterji v. Union of India."
15. Hon'ble the Supreme Court of India in the case reported in LL 2021 SC-
14 Civil Appeal in 5231-32 of 2016 of Himachal Pradesh Bus Stand Management and Development Authority Vs. The Central Empowered Committee Etc. & Ors. has held as follows :-
Environmental Rule of Law "46. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal 18 values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations.
A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance.
47. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they 19 have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the 20 issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today."
16. In its decision in Hanuman Laxman Aroskar vs Union of India (supra), the Court recognized the importance of protecting the environmental rule of law. The court observed:
"142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these 21 laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ..........................
156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution."
49. In its first global report on environmental rule of law in January 2019, the United Nations Environment Programme ("UNEP") has presciently stated1:
"If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between 1 UNEP, 'Environmental Rule of Law First Global Report' (January 2019), pgs viii and 223.22
environmental laws on the books and in practice and is key to achieving the Sustainable Development Goals.
...................
Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law."
50. The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the following terms2:
"Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions 2 Bruce Pardy, 'Towards an Environmental Rule of Law', 17 Asia Pacific Journal of Environmental Law 163 (2014).23
contained in the statute under which they are promulgated. However, where the contents of the statute are themselves indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards. Their development can therefore be highly political and potentially arbitrary.
.................
Instead of serving to protect citizens'
environmental welfare, an indeterminate
environmental law facilitates a utilitarian calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations."
51. However, even while using the framework of an environmental rule of law, the difficulty we face is this - when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations.
52. In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio3:
3Arnold Kreilhuber and Angela Kariuki, 'Environmental Rule of Law in the Context of Sustainable Development', 32 Georgetown Environmental Law Review 591 (2020).24
"One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made."
The point, therefore, is simply this - the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.
53. In the case before us, it is not possible for us to determine in quantifiable terms the exact effect of the construction of the Hotel-cum-Restaurant structure by the appellant and the second respondent on the ecology of the area. Both of them have tried to argue that the number of trees felled by them, in the case of the present construction, is what it would have been, had they only built a bus stand and a parking space. However, what we can record a determination 25 on is the way in which the appellant and second respondent have gone about achieving this object. Specifically, the parties have engaged in the construction without complying with the plans drawn by the appellant's third-party consultants, which were agreed to by them in the RFP. The construction proceeded even when the TCP Department tried to halt it, refusing to approve its plans. Even the post facto refusal by the MOEF for changing the nature of the diverted forest land was not enough to stop the parties. Ultimately, when they were forced to halt the construction by the CEC, they proceeded with it under the guise of an order of this Court which permitted only legal construction. A combination of these circumstances highlights not only conduct oblivious of the environmental consequences of their actions, but an active disdain for them in favour of commercial benefits. While the second respondent was a private entity, they were actively supported in these efforts by the appellant. Hence, it is painfully clear that their actions stand in violation of the environmental rule of law. Whatever else the environmental rule of law may mean, it surely means that construction of this sort cannot receive our endorsement, no matter what its economic benefits may be. A lack of scientific certainty is no ground to imperil the environment.
Role of courts in ensuring environmental protection
17. In a recent decision the Court in Bengaluru Development Authority vs Sudhakar Hegde4 held:-
"107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth...
108. Professor Corker draws attention to the idea that the 4 2020 SCC OnLine SC 328 26 environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions...
109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place."
18. In Lal Bahadur vs State of Uttar Pradesh5, the Court underscored the principles that are the cornerstone of our environmental jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union, this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs 5 (2018) 15 SCC 407 27 of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.
54. The UNEP report (supra) also goes on to note6:
"Courts and tribunals must be able to grant meaningful legal remedies in order to resolve disputes and enforce environmental laws. As shown in Figure 5.12, legal remedies are the actions, such as fines, jail time, and injunctions, that courts and tribunals are empowered to order. For environmental laws to have their desired effect and for there to be adequate incentives for compliance with environmental laws, the remedies must both redress the past environmental harm and deter future harm."
55. In its Global Judicial Handbook on Environmental Constitutionalism, the UNEP has further noted7:
"Courts matter. They are essential to the rule of law. Without courts, laws can be disregarded, executive officials left unchecked, and people left without recourse. And the environment and the human connection to it can suffer. Judges stand in the breach."
56. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the 'shield' of the "rule of law" can be used as a facilitative instrument in ensuring compliance with environmental regulations.
6 Supra at note 5, pg 213.
7 UNEP, Global Judicial Handbook on Environmental Constitutionalism (3rd edition, 2019), pg 7.
28Illegal activities on forest land
57. We are not traversing unexplored territory. In the past, this Court has clamped down on illegal activities on reserved forest land specifically, and in violation of environmental laws more generally, and taken to task those responsible for it. In a recent three-judge bench decision of this Court in the case of Hospitality Association of Mudumalai vs In Defence of Environment and Animals8, this Court was confronted with a situation involving illegal commercial activities taking place in an elephant corridor. Justice S. Abdul Nazeer, speaking for the Court, held as follows:
"42... the "Precautionary Principle" has been accepted as a part of the law of our land.
Articles 21, 47, 48A and 51A(g) of the Constitution of India give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wild life of the country. It is the duty of every citizen of India to protect and improve the natural environment including forests and wild life and to have compassion for living creatures. The Precautionary Principle makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation."
19. In Goel Ganga Developers India Pvt. Ltd. vs Union of India9, this Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, speaking through Justice Deepak Gupta, held as follows:
8(2018) 18 SCC 257.9
(2018) 18 SCC 257 29 "64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase.
This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more."
20. In M.C. Mehta vs Union of India10, two judge Bench of the Court held that the land notified under Punjab Land Preservation Act, 1900 in the Kant Enclave was to be treated as "forest land". As a result, any construction made on the land or its utilization for "non-forest purposes"
without Central Government approval was violative of the Forest Act and therefore illegal. The relevant excerpt of this Court's decision, speaking through Justice Madan B. Lokur, is as follows:
"132... R. Kant & Co. and the Town and Country Department of the State of Haryana being fully aware of the statutory Notification dated 18-8-1992 and the restrictions placed by the notification. R. Kant & Co. and the Town and Country Department of the State of Haryana were also fully aware that Kant Enclave is a forest or forest land or treated as a forest or 10 (2018) 18 SCC 397 30 forest land, and therefore any construction made on the land or utilisation of the land for non-forest purposes, without the prior approval of the Central Government, would be illegal and violative of the provisions of the Forest (Conservation) Act, 1980.
Notwithstanding this, constructions were made (or allowed to be made) in Kant Enclave with the support, tacit or otherwise, of R. Kant & Co. and the Town and Country Department of the State of Haryana. They must pay for this."
59. In the present set of appeals, the forest land was allowed to be used by the MOEF for the specific purposes of constructing a 'parking space' and 'bus stand' in McLeod Ganj. MOEF made a conscious decision not to modify the terms of this permission, even when granted an opportunity to do so. Hence, any construction undertaken by the second respondent, even with the tacit approval of the appellant being a statutory authority under the HP Bus Stands Act, will be illegal.
Jurisdiction of NGT
21. An ancillary issue now remains for our consideration, which is whether the NGT could have adjudicated upon a violation of the TCP Act, which is not an Act present in Schedule I of the NGT Act. In a recent two-judge Bench decision of this Court in State of M.P. vs Centre for Environment Protection Research & Development11, one of us speaking for the Court (Justice Indira Banerjee), held as follows:
"41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.11
(2018) 9 SCC 781 31
42. In view of the definition of "substantial question relating to environment" in Section 2(1)(m) of the NGT Act, the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.
43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.
44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I."
The provisions of the TCP Act required the appellant and second respondent to take prior permission from the TCP Department before changing the nature of the land through their construction. Non-conformity with this stipulation led to a violation of their environmental obligations. In any case, this question is academic because the NGT's impugned judgment grounds its decision in the appellant and second respondent's violation of Section 2 of the Forest Act, which is an Act present within Schedule I of the NGT Act.
65. Hence, we direct that the process of demolishing the Hotel-cum- Restaurant structure in the Bus Stand Complex be commenced within two weeks from the date of the judgment and the structure shall be demolished by the second respondent within one month thereafter. In the event of default, the Chief Conservator of Forest along with the administration of district Dharamshala shall demolish the structure and recover the cost and 32 expenses as arrears of land revenue from the second respondent."
22. Thus The Tribunal on 17.05.2022 observed as follows :-
"12. In view of the above guidelines in Goel Ganga Developers India Pvt. Ltd. Vs. Union of India (2018) 18 SCC 397, State Pollution Control Board is statutorily bound to proceed to act in accordance with law and the violators of law with impunity cannot be allowed to go scot-free. In Goel Ganga case referred above and in Himachal Bus Stand case referred above, Hon'ble Supreme Court of India has imposed an environmental compensation at the rate of 10 percent of the project cost. Further there are minimum three types of violation :-
1) Construction of the building in violation with EIA Notification, 2006 and assessment of the environmental compensation for the construction in violation of EIA notification is to be calculated in accordance with the provisions of Goel Ganga case i.e. @10 percent of the project cost.
2) Discharge of sewage / untreated water in that case the calculation of the environmental compensation must be in accordance with the CPCB guidelines or the orders and parameter laid down by the NGT, w.e.f. the date of violation till its continuance.
3) In case of the other violation, the State Pollution Control Board is at liberty to proceed in accordance with law but the calculation must be separately in view of the guidelines referred above and in view of the statutory rules, w.e.f. the violations till its continuance."
23. A question was raised as to whether environment clearance is required or not and in light of the above facts a joint report was called from State PCB and learned counsel for the State PCB has argued that the project proponent took the permission from the TNCP and in view of the EIA 33 notification environmental clearance is required. The permission dated 26.04.2013 reveals that there are proposed residential units and construction of approximately 346 for general category and others for EWS category all residential construction. The contention of the MPSEIAA is that:-
"1. In the Joint Committee Report that the total build-up area of the residential colony is above 20,000 m2 (Twenty thousand square meter) and thus the Respondent No. 1 shall obtain Environmental Clearance (hereinafter referred as "EC") as per the provisions of EIA Notification, 2006 (hereinafter referred as "Notification").
2. In the 91st SEIAA Meeting dated 11.05.2012 clarification was sought regarding the projects falling under Category 8(a) and 8(b) of the Notification, wherein it was clarified by the Ministry of Environment, Forest and Climate Change (hereinafter referred as "MoEF&CC") that the contents of Category 8(a) and 8(b) of the Schedule of the Notification must be considered together."
24. It is further argued that since respondent no. 1 has carried out the development and construction without obtaining prior environmental clearance thus it is a clear violation of the provision laid down under the EIA notification, 2006. The projects falling under category 8 (a) or 8 (b) was discussed in the 91th meeting of SEIAA dated 11.05.2012 which is extracted below :
"Reconsideration of the policy decision related to projects failing under item 8 (a) & 8 (b) (Building/ construction projects area development projects & township projects as per EIA notification, 2006 in view of further developments.)
1. As per point 6 of the minutes of the 62nd SEIAA meeting dated 13.07.2011, a Policy Decision for the cases approaching to SEIAA for NOC based on condition laid 34 down by other Regulatory Agencies was taken in reference to M/s Dwarkadhish Haveli Builders. In this it has been recorded that M/s Dwarkadish Haveli Builders, Karond, Bhopal have approached SEIAA (vide letter No DD/10-11/55 dt. 27-05-11) for Prior Environmental Clearance for their township Project at Bhopal. The Proponent is developing Township on 21.943 ha land and the total built up area of 1,27,689.45 sq m. The Town & Country Planning has laid a condition to the project proponent to obtain NOC for environment from the concerned department as per Environmental Protection Act, 1986.
As per schedule Item 8(b) of EIA notification, 2006 the Township and Area Development Projects covering an area > 50 ha and/or built up area > 1,50,000 sq m require Prior Environmental Clearance.
The Authority decided as policy issue that in future such cases which are not in the jurisdiction (preview) of SEIAA as laid down by MoEF-GoI, EIA notification, 2006 should be directly returned to the proponent by Member Secretary.
In this case, the copy of the letter to be sent to the proponent should be endorsed to the -Director, Town Country Planning for future guidance.
2. As per the procedure the copy of 62nd SEIAA meeting minutes dtd 13.07.2011 was uploaded on SEIAA website. The decision of the Authority was communicated to M/s Dwarkadhish Haveli Builders, Karond, Bhopal (vide letter no. 305/EPCO-SEIAA/11 dtd 26.07.11) and copy of the letter was endorsed to Director, Town & Country Planning, Bhopal.
3. Subsequently a letter from Member Secretary, MP Pollution Control Board (vide no. 1832 dtd 16.03.12) was sent to Director, MoEF, GoI, New Delhi seeking clarification related to category 8 (a) and 8 (b) projects of the EIA notification, 2006 and its amendments and also the Policy 35 Decision taken by MP SEIAA in its 62nd meeting dtd 13.07.11. Copy of the letter was also endorsed to Member Secretary, SEIAA. The relevant part of the content of the letter is being reproduced below:
"Till now it was assumed by the Board Vial any building -- construction project where total built up area is equal to or more than 20,000 sqmt.
irrespective of plot area for development of Township shall require prior EC either as. Accordingly, the MPPCB has been directing the Project Proponent of such projects to get prior EC and subsequently apply for consent under Air and Water. Nevertheless, quoting the referred decision as precedent several township projects falling under above criteria have approached MP Pollution Control Board for obtaining air & water consent without EC." Member Secretary, MPPCB requested MoEF to provide necessary clarification guidance in the context."
As per information provided by MS, MP Pollution Control Board no clarification from the MoEF, GoI has been received in this context till date."
4. In the light of facts mentioned above, the issues were discussed in depth. The authority in its 62nd meeting dtd 13.07.11, inadvertently considered the case of M/S Dwarkadhish Haver Builders in reference to category 8 (b) of the schedule of EIA notification. The provision of category 8 (a) was over looked at that time. In light of the issues raised by MP Pollution Control Board for seeking clarification from MoEF and further developments, the Authority decided that the contents of items 8 (a) and 8 (b) of the schedule of notification 2006, Gol are to be considered together. On this basis it was decided that:
36i. The Authority reconsidered its earlier decision (i.e. "in future such cases which are not in the jurisdiction (preview) of SEIAA as 'aid down by MoEF-Gol, EIA notification. 2006, should be directly returned to the proponent by Member Secretary). is being withdrawn with immediate effect. It was decided that in future such decisions will be taken by the Authority.
ii. The case of M/S Dwarkadhish Haveli Builders was also considered by the Authority and decided to inform PP to stop further construction immediately and apply for prior EC as per provision under item 8 (a) of the schedule of EIA notification, 2006 and submit application to the SEIAA office in prescribed format. It was also decided that, if the Project Proponent continues with further construction of works without obtaining prior EC, then it will be the case of deliberate violation under Environment (Protection) Act, 1986 and various penal actions shall be initiated against PP. Copy of the letter should be endorsed to MS. State Pollution Control Board, MS, SEAC.
Director, Town & Country Planning and also Director, Ministry of Environment & Forests, Gol for their information and consideration. The proceeding related to this item should be enclosed with these letters / endorsements. It was decided that once they apply, the decision will be taken expeditiously in their case.
iii. The authority decided that if any other case has been returned on similar grounds, then letter should be issued such PPs as being sent to M/s. Dwarkadish Haveli Builders and such information should be placed in the next meeting of the authority."37
25. Further Status Report has been submitted by the Regional Officer, State Pollution Control Board as follows :
1. "An environmental compensation of Rs 8.58 lacs was imposed on the builder in the present case and in this regard builder has deposited the environmental compensation on dated 27/06/2022 to the MPPCB.
2. The sewage treatment plant is inspected and found operational during the inspection. The average wastewater generation is approx. up to 45KLD. After treatment treated wastewater is stored in a storage tank and used for gardening purpose inside the society.
3. As per the order of Hon'ble NGT with reference to the calculation of Environmental Compensation from the date of violation till date of continuance of the violation, it is stated that as per instructions the environmental compensation of Rs. 8.58 lacs is calculated from the date 08/03/2021 i.e. from violation observed on inspection day after receipt of first complaint against M/s Girija Colonizers & Developers in the matter.
4. As per order the Environmental Compensation for construction of the building in violation with EIA Notification, 2006 with reference to the provisions of Goel Ganga case i.e. @10 percent of the project cost is calculated. The cost of the project is obtained from Real Estate Regulatory Authority Madhya Pradesh (RERA) web portal. The copy is enclosed as Annexure-
I. The cost shown on the RERA portal is Rs. 61.53 Cr ( land const + construction cost). The Calculation of environmental compensation as under:
Environmental compensation in Rs. = 61.53 Cr X 10/100 Environmental compensation in Rs. = 6.153 Cr."
26. Learned Counsel for the project proponent/respondent no. 1 has further contended that in light of the factual report submitted by the Joint Committee dated 27.06.2022 calculating the Environmental Compensation 38 to the tune of Rs. 8,48,500/-, Respondent no. 1 has deposited the environmental compensation and receipt has been filed which has been admitted by the Counsel representing the State Pollution Control Board. It is further contended that the responsibility for upkeeping the maintenance of facilities provided at the residents of colony is not the respondent no. 1/ colonizer but the residents and the society under the colony name Surendra Manik. Residents Welfare and Maintenance Association has their primary responsibility of doing maintenance of the colony but the residents do not want for a Resident Welfare and Maintenance Association. It is further contended that the State Pollution Control Board visited and inspected the site and found the STP is in operation.
27. It is further submitted by the respondent no. 1 that all the constructions which have been done is as per the permission granted by the competent authorities. It is further submitted that the respondent no.1 has obtained requisite permissions for plotted development approved from Department of Town and Country Planning for the said area of the colony. The EIA Notification, 2006 prescribes 1,50,000 sq. meter area of the built-up area for taking prior EC and the respondent no. 1 has not crossed the said threshold.
28. Learned Counsel for the respondent has submitted the copy of the office memorandum dated 07.07.2021 issued by the MoEF&CC which prescribes SOP/Standard Operating Procedure. The office memorandum provides the relevant guidelines for environmental clearances in violation cases, which is extracted as below :
Issue 1: Proposal for grant of Environmental Clearance in violation cases - to be considered on merits.
i. Hon'ble High Court of Jharkhand in the matter of Hindustan Copper Limited Vs Union of India in W.P. (C) No. 2364 of 2014, vide order dated 28.11.2014 39 Held: "(...) action for alleged violation would be an independent and separate proceeding and therefore, consideration of proposal for environment clearance cannot await initiation of action against the project proponent."
"(...) the proposal of the petitioner company for environmental clearance must be examined on its merits, independent of any proposed action for the alleged violation of the environmental laws.
ii. Hon'ble Madras High Court in the matter of Puducherry Environment Protection Association Vs The Union of India in W.P. No. 11189 of 2017, vide order dated 13.10.2017 Held "27. The question is whether- an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down only because of failure to obtain prior environmental clearance, even though the establishment may not otherwise be violating pollution laws or the pollution, if any, can conveniently and effectively be checked. The answer necessarily has to be in the negative."
"29. It is reiterated that protection of environment and prevention of environmental pollution and degradation rise non-negotiable. At the same time, the Court cannot altogether ignore the economy of the Nation and the need to protect the livelihood of hundreds of employees employed in projects, which as stated above, otherwise comply with or can be made to comply with norms.40
Issue 2: Environmental Clearance - Prospective & not ex-post facto Hon'ble Supreme Court in the matter of Common Cause Vs Union of India in W.P. IC) No. 114 of 2014, vide order dated 2.8.2017 Held: "(...) an EC will come into force, not earlier than the date of its grant."
Issue 3: `Principles of Proportionality' - to be applied:
Hon'ble Supreme Court in the matter of Alembic Pharmaceuticals Ltd. Vs Rohit Prajapati & Ors. in C.A. No 1526 of 2016, vide order dated 1.4.2020 Held: "(...)this Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations. The directions of the PICT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality"
Issue 4: 'Polluter pays' principle & Issue 5: Costs for remedial measures implicit in Sections 3 & 5 of Environment (Protection) Act, 1986.
Hon'ble Supreme Court in the matter of Indian Council for Enviro- Legal Action Vs Union of India (the Bichhri village industrial pollution case) in 11996 SCC [3] 212) Held:
a) The Central Government is empowered to take all measures and issue al! such directions as are called for the above purpose. The said powers will include gluing directions and also the power to impose the cost of remedial measures on the offending industry and utilize the amount so recovered for currying out remedial measures........
b) Levy of costs required for carrying out remedial measures is implicit in Sections 3 and 5 which. are couched in very wide 41 and expansive language. Sections 3 and 5 of the Environment (Protection) Act, 1986, apart from other provisions of Water and Air Acts, empower the Government to make all such directions and take all such measures as are necessary or expedient for protecting and promoting the `environment', which expression has been defined in very wide and expansive terms in Section 2 (a) of the Environment (Protection) Act. This power includes the power to prohibit an activity, close an industry, direct-to carry out remedial measures, and wherever necessary impose the cost of remedial measures upon the offending industry.
c) The question of liability of the respondents to defray the costs of remedial measures can also be looked into from accepted universally sound principle, viz., the "Polluter Pays" Principle. "The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution".
8. Legal provisions:
i. The Environment (Protection) Act, 1986 mandates the Central Government to take all measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution (reference sub-section 11) of Section 3 of Environment 'Protection) Act, 1986). Further, clause (xiv) of sub-section (2) of Section 3 of the Environment (Protection) Act. 1986 specifies that the measures stipulated under subsection (1) of Section 3 of the Environment (Protection) Act 1986 includes 'such other matters as the Central Government deems necessary or expedient fur the purpose of securing effective implementation of the provisions of this Act."
ii. Further, notwithstanding anything contained in any other law but subject to the provisions of the 42 Environment Protection Act, 1986, Section 5 of the Environment (Protection) Act, 1986, provides that the Central Government may, in the exercise of powers and performance of Central Government functions under the said 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.
9. Definition of Violation and Non-compliance:
The Standard Operating Procedure (SoP) considers 'Violation' & Noncompliance' from the following perspective:
'Violation' means cases where projects have either started the construction work or installation or excavation whichever is earlier, on site or have expanded the production capacity and / or project area beyond the limit specified in the Environmental Clearance (Prior-EC) without obtaining Prior-EC or change of scope without prior approval from the Ministry.
'Non-compliance" means non-compliance of terms and conditions prescribed by the Regulatory Authority in the Prior Environment Clearance accorded to the project.
10. Standard Operating Procedure - Guiding Principles:
i. Without prejudice to airy other consequences, action has to be initiated under section 15 read with section 19 of The Environment (Protection) Act, 1986 against all violations.
ii. Projects not allowable/ permissible, for grant of EC, as per extant regulations: To be demolished.
i. Projects allowable/permissible, if prior EC had been taken as per extant regulations: To be closed until EC is granted (if no prior EC has been taken) or to revert to permitted production level (in case prior EC has been granted). ii. Polluter pays: Violators to pay for violation period - proportionate to the scale of project and extent of commercial transaction.43
iii. Setting up a mechanism for reporting of violation to the regulatory authority(ies).
11. SOP for dealing with the violation cases:
Step 1: Closure or Revision Sl Status of EC Actions no. If no prior EC has been Order Ordertotoclose itsits close operation.
operation 1 taken 2 If prior EC is available Order to revert the activity/ for existing/old unit production to permissible limits.
3 If prior EC was not Restrict the activity/production required for earlier to the extent to which prior production level but is E,C was not required.
now required Step 2: Action under Environment (Protection) Act, 1986 Action under section IS read with section19 of the Environment Protection) Act, 1986 shall be initiated against the violators.
Step: 3: Appraisal under ETA Notification, 2006 The permissibility of the project shall be examined from the perspective of whether such activity/project was at all eligible for the grant of prior EC.
A. If not permissible:
i. The project shall be ordered for the demolition/closure after issuing show cause notice and providing an opportunity of hearing.
Ex. If a red industry is functioning in a CRZ-I area which means that the activity was, in the first place, not permitted at the time of commencement of project. Therefore, the activity is not permissible and therefore it shall be closed & demolished. ii. Respective regulatory authorities shall issue directions under section 5 of the Environment (Protection) Act, 1986 for such closure & demolition of the project/ activity.44
B. If permissible:
i. As per extant regulations at the time of scoping, if it is viewed that the project activity is otherwise permissible, Terms of Reference (TOR) shall be issued with directions to complete the impact assessment studies & submit Environmental Impact Assessment (EIA) report tip Environmental Management Plan (EMP) in a time hound manner. ii. Such cases of violation shall be subject to appropriate
a) Damage Assessment
b) Remedial Plan and
c) Community Augmentation Plan by the Central level Sectoral Expert Appraisal Committees or State/Union Territory Level Expert Appraisal Committees, as the case may be.
iii. The Competent Authority shall issue directions to the project proponent, under section 5 of the Environment (Protection) Act, 1986 on case to case basis mandating payment of such amount (as may be determined based on Polluters Pay principle) and undertaking activities relating to Remedial Plan and Community Augmentation Plan (to restore environmental damage caused including its social aspects). iv. Upon submission of the EIA & EMP report, the project shall be appraised by the Central Sectoral Expert Appraisal Committees or the State/Union 'Territory Level Expert Appraisal Committees, as the case may be, as if it was a new proposal. If, on examination of the EIA/EMP report, the project is considered permissible fur operation as per extant regulations, the requisite Environmental Clearance shall be issued which shall be effective from the date of issue. v. However, during appraisal after examination if it is found that even though the project may be permissible but not environmentally sustainable in its present form/configuration/features then the project shall be directed to be modified so that the project would be environmentally sustainable.
vi. If, however, it is not considered appropriate to issue EC, the project shall be directed to be demolished/ closed. If such 45 proposal is a case of expansion, the project shall be directed to revert back to the extent of activity for which EC had been granted earlier or to revert back to the extent of activity for which EC was not required (as the case may be). vii. Central Sectoral Expert Appraisal Committees or the State/Union Territory Level Expert Appraisal Committees, as the case may be, may insist upon public hearing to be conducted for such categories of projects for which the EIA Notification 2006, as amended from time to time, requires the public hearing to be conducted.
viii. The project proponent will be required to submit a bank guarantee equivalent to the amount of Remediation Plan and Natural & Community Resource Augmentation Plan with Central / the State Pollution Control Board (depending on whether it is appraised at Ministry or by SEIAA). The quantification of such liability will be recommended by Expert Appraisal Committee and finalized by Regulatory Authority. The bank guarantee shall be deposited prior to the grant of environmental clearance and will be released after successful implementation of the Remediation plan and Natural & Community Resource Augmentation Plan.
Note - The activities, as per above clauses, shall be undertaken simultaneously wherever feasible. Environmental Clearance, if granted, to such projects or activities, after due appraisal of EIA/EMP report, shall be effective only from the date of issuance of such clearance and shall be subject to compliance of obligations towards Damage Assessment, Remedial Plan 8a Community Augmentation Plan, etc. finalized in each case.
12. Penalty provisions for Violation cases and applications :
a. For new projects:
i. Where operation has not commenced: 1% of the total project cost incurred up, to the date of filing of application along with EIA/EMP report; [Ex: Rs.1 lakh for project cost of Rs.1 Cr] 46 ii. Where operations have commenced without EC:
1% of the total project cost incurred up to the date of filing of application along with EIA/EMP report PLUS 0.25% of the total turnover during the period of violation. [Ex: For Rs.100 Cr project cost and R.s.100 Cr total turnover, the penalty shall be Rs.1 Cr + Rs. 0.25 Cr. = Rs.1.25 Cr].
b. For expansion projects:
i. Where operation/production with expanded capacity
has not commenced: 1% of the project cost, attributable to the expansion, incurred up to the date of filing of application along with EIA/EMP report.
ii. Where operation/ production with expanded capacity have commenced: 1% of the project cost (attributable to the expansion activity) incurred upto the date of filing of application along with EIA/EMP report PLUS 0.25% of the total turnover (attributable to the expanded activity/capacity) involved during the period of violation.
12.1. Without prejudice to obligation as per (a) tic. (b) above, where the project or activity is considered for appraisal as above 86 the project proponent fails to provide required information or requisite documents or complete the requisite study for the put-pose of EIA/EMP reports or does not furnish such reports within such period, as specified by the appraisal committee, without reasonable cause, it shall be interred that the project proponent is not serious enough and the project or activity shall be directed to be demolished / closed.
12.2. The percentage rates, as above, shall be halved if the project proponent suo-moto reports such violations without such violations coming to the knowledge of the Government either on inquiry or complaint.
12.3. The penalty, as above, shall be in addition to liability for carrying out various remedial measures which shall be worked out 47 based on the damage assessment for quantifying the environmental damage caused due to unauthorized project activity [as per Step 3 enumerated above].
13. Identification of Violation cases:
With a view to protecting the environment and to expeditiously bring violators into a regulatory regime so as to prevent & control environment damage caused by such violation & to determine whether operation of such projects is permissible and to take action stipulated under Section 15 of the Environment (Protection) Act, 1986 for contravention of the provisions of the said Act, Rules, orders and directions, it is expedient to also identify the cases of violation, examine and appraise such Projects so as to refrain them from causing further environmental damage and also to compensate for causing damage to the environment. Therefore, in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986, the Central Government hereby directs that:-
i. State Pollution Control Boards & Union Territory Pollution Control Committees, before grant or renewal of Consents under Water (Prevention & Control of Pollution) Act, 1974 & Air (Prevention & Control of Pollution) Act. 1981, shall ensure that the project proponents applies for or possess valid Prior Environment Clearance in Terms of extant EIA Notification and shall not grant or renew CTO (Consent to Operate) unless Environment Clearance (if applicable) has been obtained.
ii. The Central Pollution Control Board, all State Pollution Control boards and all Union Territory Pollution Control Committees shall identify cases of violation under their respective jurisdiction, report such cases to the Ministry or State/Union Territory Level Environmental Impact Assessment Authority, as the case may be and also revoke CTO, if granted to the unit after giving an opportunity of being heard.48
iii. The Central Pollution Control Board, all State Pollution Control Boards and all Union Territory Pollution Control Committees shall expeditiously examine the references, received from public and other bodies, relating to violations and take necessary steps as per (ii) above."
29. Learned Counsel for the State Pollution Control Board has submitted that in view of the guidelines show cause notice has been issued to the Project Proponent for realization and calculation of environmental compensation for the project, found to be in violation of EIA notification, 2006 and reply has been submitted by the project proponent. Contention of the Learned Counsel for the State Pollution Control Board is that in view of the constructed area found more than 20,000 sq. mt. EC is required and the matter is within the consideration of competent authority.
30. Learned counsel for the respondent submitted that his only prayer is that opportunity of hearing should be given to the project proponent for finalizing the matter by the State Authorities. Since, Learned Counsel for the State Pollution Control Board has filed the copy of the notice which has been duly admitted by the learned counsel for the project proponent and the reply submitted by the project proponent is under consideration for the State PCB, thus, the matter of compliance of principle of natural justice has been done and the proper adjudication on this point rests with the PCB.
Since, any order passed by the State Pollution Control Board is appealable order thus the project proponent or any person aggrieved have an opportunity to file an appeal before the appropriate authority.
31. Since the matter is under consideration before the competent authority thus interference or passing any remark on the points which is under consideration before appropriate authority may not be taken in the way to 49 directly or indirectly influence the proceedings. Thus, the matter of imposition of environmental compensation is within the statutory zone of State Pollution Control Board and the statutory authorities are expected to pass an appropriate order in accordance with law. Person aggrieved may file an appeal before the appropriate forum for appropriate remedy.
32. In light of above facts, there is no need of recalling the order as narrated in I.A. No. 75/2022. So far as rest non-compliances are concerned State Pollution Control Board has submitted that in view of the Joint Committee report dated 23.07.2021 the Sewage Treatment Plant of society was found non-operational and later on the project proponent was directed to take remedial measures and later on remedial actions have been taken by the project proponent and now it was found operational. So far as, past violations are concerned environmental compensation as mentioned above was imposed on the project proponent which was deposited by the violator of law.
33. In the matter of discharge of untreated water, compliances have been done by the project proponent. However, we direct the State Pollution Control Board to periodically visit the site to observe and monitor the compliances of environment rules and in case it is found that there are violations of environmental rules, State Pollution Control Board is directed to take necessary legal and remedial action.
34. This is a case of not only area development but involves construction too, and therefore construction larger than 20000 sq. mtrs. attracts provision of 8(a) of EIA Notification, 2006. Hence, 8(b) of the notification pertains to B1 category of projects. So far as, the calculation of environmental 50 compensation without EC is concerned the State Pollution Control Board, being a Statutory Authority is directed to proceed in accordance with law.
35. With these observations, the Original Application No. 14/2021 alongwith I.A. No. 75/2022 disposed stands disposed of.
Sheo Kumar Singh, JM Dr. Arun Kumar Verma, EM 13th December, 2022 OA No. 14/2021(CZ) PN 51