National Green Tribunal
Tanaji Balasaheb Gambhiretanaji ... vs Union Of India Through Secretary Moef & ... on 17 November, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 33/2020(WZ)
(I.A. No. 40/2020)
(With report dated 25.08.2020)
Tanaji Balasaheb Gambhire Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 17.11.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Nitin N. Lonkar, Advocate
Respondents: Ms. Manasi Joshi, Advocate for MPCB
Mr. Rahul Garg, Advocate for PMC
ORDER
1. The present application has been filed with a grievance that the project proponent has violated the environmental norms by not obtaining mandatory prior Environmental Clearance, consent to establish, consent to operate, CGWA permission for ground water extraction, non- installation of pollution control devices, non-plantation of tress, non- installation of STP, non-installation of solid waste treatment and OWCS unit and illegal ground water extraction, illegal operation of DG sets at site, 10% recreation space is not developed as per norms, no soil preservation, no soil and ground water test, illegal construction of basements, no use of eco-friendly building material for construction, 1 some portion of the construction completed without Environmental Clearance from SEIAA or MoEF&CC, not obtained prior consent to establish for the State PCB, not complied the show cause notice issued by the Competent Authority, construction activity without environmental impact assessment and without implementation of the remedial measures and raised a substantial question of environment.
2. Vide order dated 09.07.2020, the Tribunal constituted a joint Committee comprising the State Environment Impact Assessment Authority (SEIAA), the Maharashtra State Pollution Control Board and the Municipal Commissioner, Chinchwad/Pune to ascertain the facts and furnish a report to this Tribunal.
3. Accordingly, the Committee has furnished its report dated 25.08.2020 after site visit and scrutiny of relevant documents made available by the project proponent. It is mentioned that there are two projects by two names adjacent to each other for which there are two different permissions and completion certificates:-
I. Prayeja City I [12 residential buildings and 1 club house], the total built-up area is 56292.04 Sq. M. II. Prayeja City - II, the total built-up area is 11200.15 Sq. M.
4. The report further mentions that the project proponent has not taken prior Environmental Clearance, the Consent to Establish and the Consent to Operate under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. It has applied for EC on 05.09.2019, after the Environment Department of the Maharashtra Government wrote letter dated 29.08.2019. It is also 2 mentioned that the Municipal Corporation has issued stop work order on 21.09.2019.
5. It has been further observed as follows:-
"Four bore wells are found on the site out of which two bore wells are used for rainwater harvesting and another two bore wells are used by the residents for non-domestic purpose. PP has informed that one bore is there right from the purchase of the land. No NOC from CGWA is obtained for the extraction of ground water."
6. The letter of the Environment Department dated 16.11.2019 addressed to the Municipal Commissioner, Pune with a copy to the project proponent and the State PCB reads as follows:-
"It reveals from the record that the total BUA construction for the project completed is 87,154.88 Sq. Mtrs. It is submitted that both these two projects are independent with separate Commencement and sanctions and therefore requested not to consider these two separate projects as single project as stated in the complaint.
Taking into consideration, the contents of the complaint, reply of the project proponent and record before me, it is clear that there is total BUA construction of 87154.88 Sq. Mtrs. It is clear that Prayeja City-I and Prayeja City-II are the two independent projects. But the BUA construction for Prayeja City-I is 58292.038 which is violation of EP Act. It is also cleared from the record that the BUA construction for Prayeja City-II is 11.150.00 Sq. Mtrs. Which is liable to be excluded from getting environmental clearance as per provisions of the Environment (P) Act. Therefore, legal action needs to be taken against the project proponent.
You are hereby directed to take strict legal action against the project proponent in respect of irregularities in total BUA construction for Prayeja City-I as per the provisions of the EP Act and submit report of the action taken within a period of 15 days."
7. We have heard learned counsel for the parties. Learned counsel for the applicant submits that both the projects are integral but to avoid the mandate of law, the project proponent has split up the same. The project being illegal may be directed to be demolished or adequate compensation 3 be required to be paid for restoration of environment in view of law laid down by the Hon'ble Supreme Court.
8. We have dealt with an identical issue by a separate order today in OA 83/2020 which has also been filed by the same applicant. Observations therein are :
"6. Learned counsel for the applicant submitted that the impugned constructions are patently in violation of mandate of EIA notification requiring prior Environmental Clearance from SEIAA which is not a formality but involves assessment of impact of such project on the environment and limited resources in terms of air, water and open spaces. Thus, apart from compliance of environmental norms, the project proponent has to be required to take remedial action to enforce the law either by demolishing the illegally raised construction or to pay compensation for restoration of the environment. Constructions raised without prior impact assessment. It is submitted that the Municipal Corporation granted EC on 28.11.2017 but the authority to grant EC is SEIAA as per Notification dated 14.09.2006. The EC from the MC Pune cannot be relied upon. Reliance has been placed on judgment of this Tribunal dated 08.12.2017 in OA No. 677/2016, Society for Protection of Environment and Biodiversity vs. Union of India and Ors. Therein, the Tribunal held that there was no justification for exemption of building constructions from EIA as per notification dated 9.12.2016. Such constructions put tremendous pressure on limited natural resources. Environment impact assessment for each project was necessary on 'Precautionary' principle. Similarly, consent to establish and consent to operate under the Water Act and Air Act could not be dispensed with. It is submitted that the said judgement has attained finality and is binding. It is further pointed out that in Alembic Pharmaceuticals Ltd. vs. Rohit Prajapati and Ors., (2020) SCC OnLine SC 347, the Hon'ble Supreme upheld the view that requirement of prior EC could not be dispensed with by a circular as there is no mechanism to determine how detrimental effect on the environment will be taken care of if EIA requirement is to be dispensed with. The concept of ex post facto EC was against fundamental principle of environmental jurisprudence (Paras 24, 26). The Hon'ble Supreme Court held that environmental degradation cannot be left unattended by legal consequences. However, in the said case, EC was granted ex-post facto in accordance with circular issued by the MoEF&CC and having regard to the fact situation, the three units were required to pay compensation at rate of Rs. 10 crores, each even in absence of specific proof of violations (Para 49). In (2020) 2 SCC 66, Keystone Realtors Private Limited v. Anil V. Tharthare and Ors., amendment to EC for expansion of the project, without conducting impact assessment was held to be invalid. The Hon'ble Supreme Court upheld award of Rs. 1 Crore as environmental compensation, apart from requiring the environment impact ex-post facto. In M/s Goel Ganga Developers India Pvt. Ltd. v. Union of India, (2018) 18 SCC 257, para 64, it was held that project set up without prior EC may be demolished but in a given fact situation, alternative of requiring payment of compensation may be 4 accepted. Compensation should normally be 5% of project cost but if violations are serious, it can go up.
7. From the facts noted above, it is clear that construction of more than 20,000 sq. mtrs. has been already completed in violation of the EIA Notification dated 14.09.2006. The illegal construction has either to be demolished or subject to compliance of all environmental norms, compensation has to be recovered. We find from the letter of consent to establish dated 04.05.2019 issued by the State PCB that the proposed capital investment of the project is Rs. 82 crores. The proposed construction is about 49000 sq. mtrs. approx. out of which the project has been completed to the extent of 23000 sq. mtrs. approx.
8. In view of above, we constitute a joint Committee comprising the CPCB, the SEIAA and the State PCB to take further remedial action by way of removing the illegal construction and/or recovering compensations for the violations, following due process of law. The State PCB will be the nodal agency for compliance and coordination. The joint Committee may complete its action in exercise of statutory powers available under the EP Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 within three months and furnish an action taken report before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. Applying the ratio of Goel Ganga to the facts of the present case, we direct the project proponent to deposit interim compensation of Rs. 2 crores within two months with the State PCB failing which the State PCB will be at liberty to take coercive measures. We further direct that the Committee may ensure that no further construction takes place without compliance of statutory norms. Needless to say that the statutory authorities, in exercise of their statutory powers, will afford opportunity of hearing to the project proponent."
9. Following the above order, we constitute a joint Committee comprising the CPCB, the SEIAA and the State PCB to take further remedial action by way of removing the illegal construction and/or recovering compensations for the violations, following due process of law. The State PCB will be the nodal agency for compliance and coordination. The joint Committee may complete its action in exercise of statutory powers available under the EP Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 within three months and furnish an action taken report before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of 5 Image PDF. Further, on the same pattern but having regard to the magnitude of the project, which is atleast 2.5 times more than the construction in the said case, we direct deposit of interim compensation of Rs. 5 crores with the State PCB within two months to be used for restoration of environment, failing which the State PCB will be at liberty to take coercive measures. Needless to say that the statutory authorities, in exercise of their statutory powers, will afford opportunity of hearing to the project proponent.
List for further consideration on 23.03.2021. A copy of this order be forwarded to the CPCB, the SEIAA and the State PCB by email for compliance.
In view of above, no separate order is necessary on I.A. No. 40/2020 seeking interim relief which will stand disposed of.
Adarsh Kumar Goel, CP S.K. Singh, JM Dr. S.S. Garbyal, EM Dr. Nagin Nanda, EM November 17, 2020 Original Application No. 33/2020(WZ) (I.A. No. 40/2020) SN 6