National Green Tribunal
Sri. B. Raghupathy vs Union Of India on 4 September, 2019
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O. A. No. 595/2018
(M.A. No. 1769/2018)
(With report dated 14.05.2019)
B. Raghupathy Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 04.09.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Prasad and Sharon Mathew, Advocates
ORDER
1. Question for consideration is the remedial action for violation of environmental norms in setting up of M/s New Ark Project, a residential complex at Bangalore.
2. Vide order dated 14.03.2019. this Tribunal sought a report from a Committee comprising representatives of Ministry of Environment, Forests and Climate Change (MoEF&CC), Central Pollution Control Board (CPCB), Central Ground Water Authority (CGWA), Bruhat Bengaluru Mahanagara Palike (BBMP) and Karnataka State Pollution Control Board (KSPCB). KSPCB was to act as nodal agency for coordination.
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3. A report has been filed by the KSPCB vide letter dated 14.05.2019 holding as follows:
"During the inspection , the violations noticed by the members of the expert committee to the consent for establishment order are listed below:
1. The project authority has constructed Commercial Building without the prior consent of the Board, whereas they have obtained Consent for Establishment of Residential Apartment (72 flats) only.
2. Not obtained necessary license / permission for drawing ground water either from CGWA or from SGWA. The same is confirmed by the Bangalore Water Supply Board (BVVSSB) vide their letter No 262/2001920 dated 22.4.2019, stating that M/s. New ARK project located at Sy. no 776/2, of Kasavanahalli Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru have not applied to their office for seeking permission to drill the borewell in their premises and no permission issued. Copy of the BWSSB letter is enclosed Annexure 14.
3. The project authorities have given occupancy to few flats without obtaining occupancy Certificate from the BBMP and without obtaining Consent for Operation (CFO) from the Board.
4. The committee has verified permission, if any obtained from BWSSB regarding the Water supply and sewerage connection to the project and observed that they have not taken any permission from BWSSB.
5. The project authorities have not informed the exact date of commissioning of the sewage treatment plant and not applied for Consent for operation of the STP."
4. In view of above observations, the SPCB issued show cause notice dated 27.04.2019 to the project proponent under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 proposing to withdraw the 'Consent to Establish' and to disconnect the electricity and water supply. The conclusions of the Committee recorded in the report are as follows:
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"a. M/s New ARK project, has constructed Residential and commercial building at Sy 76/2, KAsavanahalli Village, Varthur Hobli, Bangalore East Taluk. b. There is difference in approval obtained from Joint Director Town Planning (North), BBMP and from Karnataka State Pollution control Board (KSPCB). The project authority obtained consent for establishment for residential apartment from KSPCB whereas obtained sanctioned plan from Town Planning Department, BBMP for Residential and Commercial building.
c. The total sanctioned area of the project is 12975.48 M 2. However, after receipt of "As built drawings" of the project from BBMP Town Planning authorities, the committee will verify the same and will submit the final report on the applicability of Environmental Clearance separately.
d. As per the clarification submitted by the Joint Director Town Planning, There are no classified drains as per Revised Master Plan - 2015 in and around the property in question within a distance of 50 M. As per the DC conversion order, there is no Kharab land in the converted site area. But as per Akhar Bandh document there is a Bandi Dari Kharab of 3.5 Guntas, which is found to be merged in the existing 12.2 M wide public road adjacent to this property. This site area considered for plan sanctions is exclusive of this 3.5 Guntas Kharab.
Apart from this an area of 219.41 .M 2 is left out of the site area for road widening as per Revised Master Plan - 2015 which is relinquished to BBMP through registered relinquishment deed dated 19.09.2016."
5. Apart from the above report, the applicant has filed a copy of order dated 26.08.2019 passed by the Commissioner, BBMP revoking the building plan and the building license as follows:
"Therefore, for all the above reasons and facts and circumstances:
i. The building plan and building license in LP No. Addl. Dir/JD North/173- 2015-16 dated 13.10.2015 is hereby revoked with immediate effect;
ii. In continuation of the stop work issued by the BBMP vide notice dated 25.07.2016„ the "stop-work" is confirmed and is 3 hereby restrained/stop work of all types of constructions/construction activities; iii. In continuation of the direction to restrain issued by the BBMP vide notice dated 25.07.2019, the direction to restrain is confirmed and is hereby restrained from violating Section 310 of KMC Act, 1976;
iv. It is hereby stated that all the occupants in project are wholly illegal and unauthorized and in violation of Section 310 of the KMC Act, 1976 and in accordance with law stated by the Division Bench judgment of the Hon'ble High Court of Karnataka in Mahadeva vs Karnataka Electricity Board, ILR1987 KAR 3720. Therefore, all the occupants shall be evicted after issuing notice by the concerned zonal office of the BBMP Ward No.150 (Bellandur Ward);
v. Concerned zonal office of the BBMP Ward No.150 (Bellandur Ward) shall obtain measurements of total constructed area by 'total station survey' method as explained in this order along with supporting photographs, total station survey sketch, report as well as the actual total number of apartments constructed plus total number of units in the commercial building in order to ascertain the requirement of Environment Clearance (EC) for the project and to comply with the letter issued by the KSPCB regarding total area of constructions as per decision of the Hon'ble Supreme Court in Goel Ganga Developers Pvt Ltd vs Union of India and Ors., 2018 (9) SCALE 530;
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vi. Concerned zonal office of the BBMP Ward No.150 (Bellandur Ward) shall also obtain separate measurements to the extent of violations/deviations with reference to the BBMP building plan along with survey measurement sketch, report, supporting photographs and to take action in accordance with law;
vii. Concerned zonal office of the BBMP Ward No.150 (Bellandur Ward) shall also obtain measurements along with survey sketch and supporting photographs indicating the two bifurcated plots of the master plot of 1 Acre 4 Guntas in Survey Number 76/2 of Kasavanahalli Village; viii. In case of further violations arising from the project,50P, Shall file police complaint with the jurisdictional police station."
6. None appears for any of the respondents and no submission has been put forward.
7. The above order has been passed in exercise of powers under Section 443 of the Karnataka Municipal Corporation Act, 1976 after giving due opportunity and considering the reply of the project proponent as shown by the detailed order.
8. In view of the above, subject to any challenge to the above orders, no further order is necessary except to direct that the SPCB and the BBMP may take such further action as is necessary in accordance with law, which may include prosecution and recovery of compensation on 'Polluter Pays' principle within one month. The application is disposed of.
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Adarsh Kumar Goel, CP S.P. Wangdi, JM Dr. Nagin Nanda, EM September 04, 2019 O. A. No. 595/2018 DV 6