National Green Tribunal
Malay Rudra vs Bengal Peerless Housing Development ... on 5 May, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 87/2021/EZ
IN THE MATTER OF:
Malay Rudra,
Flat No. 2E-701, Avidipta-1,
401, Barakhola, P.S.-Purba Jadavpur,
Kolkata - 700099, West Bengal,
....Applicant(s)
Versus
1. Bengal Peerless Housing Development Company Ltd.,
Through Chairman,
Registered office at 6/1A, Moira Street,
Mangal Deep, Ground Floor, Kolkata,
Pin - 700017,
2. West Bengal Housing Board,
Through Housing Commissioner,
'ABASAN', 105, S.N. Banerjee Road, Kolkata,
Pin - 700014,
3. West Bengal Pollution Control Board,
Through Chairman,
Paribesh Bhawan, 10A, Block-LA, Sector-III, Bidhannagar,
Kolkata - 700106,
4. The Kolkata Municipal Corporation,
Through Commissioner,
5, S.N. Banerjee Road, Kolkata,
Pin - 700013,
5. Central Ground Water Board,
Through Chairman,
1
Bhujal Bhawan, NH-IV, Faridabad,
Pin - 121001,
6. SLEIAA, Pranisampad Bhawan, Block-LB-2, 5th Floor,
Sector-III, Salt Lake, Kolkata,
Pin - 700106,
7. The Central Pollution Control Board.
Through Chairman,
Paribesh Bhawan, Maharshi Valmiki Marg,
East Arjun Nagar, Vishwas Nagar,
Shahdara, New Delhi - 110032,
8. State Water Investigation Directorate (SWID),
Through Director,
Nirman Bhawan, 3rd Floor, Salt Lake City,
Kolkata - 700091,
....Respondent(s)
COUNSEL FOR APPLICANT:
Ms. Paushali Banerjee, Advocate
COUNSEL FOR RESPONDENTS :
Mr. Abhrajit Mitra, Sr. Advocate a/w Mr. Triptimoy Tallukdar,
Advocate, Mr. Shambar Chakraborty, Advocate, & Mr. K.
Chatterjee, Advocate for R-1&2,
Mr. Dipanjan Ghosh, Advocate for R-3 & 6,
Mr. Sibojyoti Chakraborty, Advocate for R-4 & 8,
Mr. Rajib Ray, Advocate for R-7,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) __________________________________________________________________ Reserved On:- 22nd April, 2022 Pronounce On:- 05th May, 2022 __________________________________________________________________ 2
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes __________________________________________________________________ JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard the learned Counsel for the parties and perused the documents on record.
2. The allegation in this original application is that the certain colonies which have been mentioned in paragraph 4(R) of the Original Application, have not been provided drinking water through pipes by the Kolkata Municipal Corporation and, therefore, these colonies are utilizing groundwater through bore-wells. According to the applicant, this is seriously depleting ground water. Reference has been made to a report contained in the Groundwater Information Booklet, Kolkata Municipal Corporation, West Bengal, filed as Annexure-E to the Original Application, which states that in the last 45 years i.e. 1958 to 2003, the depletion of ground water level has been to the alarming extent of 7 to 11 meters and the declining trend of water level is 0.33 meters per year at the core of the trough and 0.11 meters per year at the periphery. It is also stated that there is presence of Chloride and Arsenic in few places which is extremely deleterious to human and animal health.
3. The learned Counsel also submitted that none of these colonies have provided for rain harvesting and it is not known as to 3 how Kolkata Municipal Corporation has even given permission to these colonies to be set up or to expand their area of construction without first providing mechanism for rain harvesting. It is further stated that it is not known as to how the State Water Investigation Directorate (SWID) has given permission to these colonies for extraction of groundwater and what efforts shall be taken by the SWID to restrain and put a check on all these colonies against excess extraction of groundwater.
4. Notices were issued to the Respondents in response to which affidavits have been filed.
5. Ms. Paushali Banerjee, learned Counsel for the Applicant submitted that the Respondent No.1, M/s Bengal Peerless Housing Development Company Ltd., has applied for and obtained Environmental Clearance for the proposed expansion of Residential Complex 'Avidipta-II' situated at R.S. Dag No. 125(part) and 126(part), JL No. 21, Mouza-Barakhola, P.S.-Jadavpur, KMC Ward No. 109, District-24 Parganas South, West Bengal on 11.04.2017. It is also stated that the Environmental Clearance laid down certain conditions for avoiding disturbance during construction so as to prevent air, water and noise pollution. It is also stated that the ambient air quality of the Avidipta project area and concentration of particulate matter is more than the prescribed limit. It is further stated that the noise level at different hours of the day were also tested and the report shows exceeding levels of noise 83.7(dB) at 9 AM on 12.12.2019 and again 87.7 (dB) in the afternoon on 13.07.2020 which continues to 87.08 (dB) at 00.38 hours on 4 24.09.2020 whereas the maximum level is 55(dB) in residential areas and the proposed Avidipta lies in silence zone as it is within 100 meters of several big and small hospitals i.e., to the north is Medica Superspeciality Hospitals and AMRI Hospital and to the south is Rabindranath Tagore Multispeciality Hospital, Shankar Netralaya etc. but the noise level which reaches to 81.3(dB) in the afternoon indicates the health hazards faced by the residents in that area. It is also stated that excessive dust is being generated during construction and there is strong smell of diesel and exhaust gas polluting the ambient air quality. The Applicant has also alleged that the water level in the area has fallen @ of 0.33 m/yr at the core of the trough and 0.11 m/yr at the periphery. It is further stated that during 2006, a total 305.20 million litres per day of ground water was being withdrawn in the municipal area which also has traces of arsenic.
6. Along with the Original Application, a chart (page nos. 28 to 29 of the paper book), has also been filed by the Applicant claiming to be illegal, unauthorized and uncontrolled extraction of ground water which reads as under:-
Name of Total Total Water Tentative Date of Delay in the Dwelling Requirement, Date of KMC Water KMC Housing Units KL Approx Completion Supply (as Water Complex could be Supply gathered) Under Under Avidipta-2 660 470 KLD Ground water construction construction Avidipta-1 1064 930KLD 2016 Ground water Already 5 5 years delay still on date in sight Already 3 Utalika 1084 980 KLD 2019 Ground water years Avihikta-1 358 286 KLD* 2006 Jan 2017 10 years Avishikta-2 314 251 KLD* 2006 2015 9 years Green Wood 312 250 KLD 11/2007 7/2016 9 years Nook Already 5 Urbaana 672 599 KLD 2016 Ground water years Kolkata Already 12 Green (HIG 334 267 KLD* 2008 Ground water years only) Already 19 Udayan 1606 1285 KLD* June 2002 Ground water years Highland Already 19 941 753 KLD* 2002 Ground water Park years Already 7 Upohaar 1198 958 KLD* Jan 2013 Ground water years Ruchira 504 403 KLD* 2004 2015 11 years Residency
7. It is alleged that as per the Notification dated 24.09.2020, a 'No Objection Certificate' from the Central Ground Water Authority is required for purposes of extraction of ground water for domestic use in residential apartments but the Respondent No.1 has not obtained any such No Objection Certificate for Avidipta Residential Complex.
8. Reference has been made to Annexure-E (page no. 184 of the paper book) filed to the Original Application, in support of the Applicant's claim with regard to fall in ground water level and presence of Chloride and Arsenic. These figures are stated to be 6 taken from the Ground Water Information Booklet, Kolkata Municipal Corporation, West Bengal but do not pertain to the Avidipta-II, Housing Complex of the Respondent No.1.
9. A Test Report dated 13.09.2020 has also been filed by the Applicant but a perusal of the same shows that out of 1 to 12 parameters, 1 to 11 are within the prescribed limit and only parameter no. 12 relating to Total Hardness i.e., CaCo3 is beyond the permissible limit.
10. The Respondent No.8, State Water Investigation Directorate ('SWID' in short), in its affidavit dated 24.01.2022 has given the database of ground water permission to the Residential Complex of the Respondent No.1 which reads as under:-
Name of Surface Ground Water Allotted Total Housing/ water water allotted Registration Complex supply Permission Permit exists Date Yes/No AVIDIPTA-1 NO Yes 360 KLD NIL 360 16.03.2021 KLD AVIDIPTA-2 NO No NA NIL Avishikta-I Yes No AVISHIKTA- Yes Yes 2009 60 KLD NIL 60 KLD II UTALIKA No Yes, 2012 & 240 KLD NIL 730 2018 3 Nos 210 KLD KLD 280 KLD URBANA No 5 Nos 300 KLD 120 KLD 1360 7 300 KLD KLD 400 KLD 240 KLD GREEN Yes NA NIL WOOD NOOK KOLKATA No Yes 2010, 4 160 KLD 640 GREEN Nos. 160 KLD KLD 160 KLD 160 KLD UDAYAN Yes 16 KLD NIL 16 KLD HIGHLAND No Yes 2010 3 640 KLD 1640 PARK Nos. 360 KLD KLD 640 KLD UPOHAR Yes, 2 No. 270 KLD 31/03/2011 270 KLD RUCHIRA Yes No NIL
11. A perusal of this database would show that in respect of Avidipta-II Housing Complex, so far no ground water permission has been granted and no water allotment has been made. We may note here that the allegations of the Applicant are against the Avidipta-II Housing Complex of Respondent No.1. We are not concerned with other housing complexes shown in the database in respect of which no allegations have been made. It is also stated that the ecological strata in Mukundpur area reveals that the principal aquifer system starts from 60 m below ground level. The foundation depth of the Avidipta Housing Complex (Phase-I), G+18 storey is within the clay strata (upto 60m). The principal aquifer system ranges from 60-72m below ground level (12m thick) remains in confined condition, sandwiched by a thick upper confining clay 8 layer (0-60m bg) and lower confining layer (> 72 m bg). It has been observed that the pre-monsoon, monsoon and post-monsoon piezometric levels (imaginary surface representing hydraulic head of confined aquifer) are 15m, 13m and 12m below ground level which lies above the bottom (60 m depth) of upper confining clay layer. It is also stated that hydrogeological setting described above reveals that there is no possibility of reaching ground water upto the pressure bulb of foundation of Avidipta building throughout the year. Therefore, there is no possibility of reduction of effective stresses in soil strata below the foundation of the building (causing settlements of foundation) due to fluctuation of piezometric levels.
12. The Respondent No.4, Kolkata Municipal Corporation, in its affidavit dated 31.01.2022, has stated that an inspection was made of the premises No. 401, Barakhola, Ward No. 109, Borough-XII, on 09.12.2021 and it has been found that one power driven tube well with 250 mm diameter with pipe visible above ground level has been existing in running condition at the premises. On enquiry a photocopy of permit for sinking of a well has been received from the representatives of M/s Bengal Peerless Housing Development Company Limited vide Permit No. P00012109MUKBARAK9901TMP dated 16.03.2011 issued by the Member Secretary, CLA, GWR Act, of Govt. of West Bengal, under Section 7(3)(b)/7(4)(b)/7(5)(b) of the West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005. It is also stated that Respondent No.1 has submitted an application vide SWID Form-1, Book No. BP/A0367, Sl. No. 97, dated 01.11.2021 for sinking of a new tube well at 401, 9 Barakhola, Ward No. 109, Borough-XII. Documents to that effect have also been filed as Annexure-'R-2', to the affidavit.
13. One more affidavit dated 05.03.2022 has been filed by the Respondent No.4, Kolkata Municipal Corporation, wherein it is categorically stated that no water is being supplied by the Kolkata Municipal Corporation to the premises Avidipta, Phase-I, and there is no network of Kolkata Municipal Corporation Service Main for water supply.
14. One more affidavit dated 07.03.2022 has been filed on behalf of the Respondent No.8, State Water Investigation Directorate, wherein it is categorically stated that only 360 KLD of drinking water is being supplied which is much less than the required quantity. It is also stated that the depth of the foundation for G+18 storeyed building is well within 60 meter below ground level, for alluvial zone like the city of Kolkata. It is further stated that since the Kolkata Municipal Corporation is unable to provide drinking water to the Project Avidipta-I, Phase-I, hence, the same is supplied by the Respondent No.8, SWID.
15. The Respondent No.3, West Bengal Pollution Control Board, has also filed an affidavit dated 07.03.2022, stating therein that upon receiving complaint from the residents of Avidipta-I Housing Complex regarding noise, dust and water accumulation at the construction site, the Board caused an inspection on 19.02.2021 and thereafter a Bank Guarantee of Rs. 5,00,000/- (Rupees Five Lakhs only) was imposed upon the Respondent No.1 which has duly 10 been submitted by the Respondent No.1 to the West Bengal Pollution Control Board. It is also stated that an inspection was carried out at the site of M/s Bengal Peerless Housing Development Company Limited (Phase-II), located at 401, Barakhola, Mukundapur, EM Bypass, P.S.-Purba Jadavpur, Kolkata - 700099, on 22.02.2022 and the noise level during inspection ranged from 56.58 dB(A) Leq (minimum) to 71.41 dB(A) Leq (maximum). The report further mentions that no major construction activity was noted during inspection and the construction of the project is almost complete except minor terminal steps like plumbing, electrical connections, painting of rooms, mounting of doors and windows etc. The Observation and Remarks of the Inspection Report read as under:-
Observation:
1. The inspected unit is a big housing project which has been inspected in response to NGT direction vide original application No. 87/2021/EZ dt. 01.02.2022 on grounds of disturbing noise generated at the construction site. The project is basically about construction of 04 towers-G+G+46(02 towers), B+G+29 floors (01 tower) & B+G+34 (01 tower).
2. The total built up area of the project is 99,905.715 sq.m. The project is surrounded by the Eastern Bypass to the West, with a buffer in between zone, another completed and inhabited sister housing project (Phase-I) to the East, local by lane of the Bypass to south and a water body to North. The project has started in 2018. The entire project is expected to be completed in 2023, as informed by Unit's representative.
11
3. At present, the construction of the project is almost complete except minor terminal steps like plumbing, electrical connections, painting of rooms & mounting of doors and windows. During inspection such terminal construction work of the project was found running.
4. The noise level was monitored at seven (7) locations over a period of 10-20 am to 07-10 pm. The summary of Noise Level measured is as follows:
Location Noise measurement Noise
with project measured
Remarks
operations-dB(A)Leq without
project
operations-
d(B)A Leq
10.20 01.40 4.00 pm 6.25 pm -
am pm - - 7.10pm
11.30 02.20 4.50 pm
am pm
South West Near local
busy road
corner of
Phase I 68 70 66.82 70.05
(adjacent to
Phase II)
Midway of Residential
zone
Western
Boundary of
63.93 59.16 60.24 75.32
Phase I
(adjacent to
Phase II)
North West Desolate zone,
near water
corner near
body
Car Park of
56.51 58.51 65.14 59.7
Phase I
(adjacent to
Phase II)
12
North East Near local
lane with
corner of 63.45 63.36 65.58 61.8
some traffic
Phase I
South East Near local
busy road
corner near
63.61 71.41 63.92 64.51
Gate 03 of
Phase I
At Near material
handling
construction
operations
site near
67.03 67.01 64.48 69.8
main
entrance of
Phase II
8th floor Opposite to
balcony near construction
Complainant' 65.09 69.18 65.9 66.47 site
s home at
Phase I
Remarks:
1. The noise level observed during inspection ranges from 56.58 dB(A) Leq (Minimum) to 71.41 dB(A) Leq (Maximum).
2. No major construction activity was noted during inspection as construction of the project is almost complete except minor terminal steps like plumbing, electrical connections, painting of rooms, mounting of doors & windows etc.
16. A perusal of the Report would show that the site in question is near a local busy road and, therefore, there is a possibility of the sound level being higher for which the Respondent No.1 alone cannot be held responsible.
17. From the documents on record, we find that a tube well has been installed by the Respondent No.1 at the site in question for 13 extraction of ground water for which permit had been granted as far back as on 16.03.2011 and the Respondent No.1 has also applied for a new well permission on 01.11.2021 for sinking of a new tube well. Even otherwise, from the database filed by the SWID, Respondent No.8, we find that as yet no ground water permission has been granted to Avidipta-II nor has any water permit been allotted. The permit for 360 KLD which was granted on 16.03.2011 by the Respondent No.8, SWID, was for Avidipta-I i.e., Phase-I, of the Housing Complex of the Respondent No.1. In this view of the matter, the question of Respondent No.1 extracting ground water in excess of sanctioned amount as alleged by the Applicant does not hold ground.
18. We also find that though the Environmental Clearance has been granted for the proposed project and in the Environmental Clearance the total water requirement is shown to be 470 KLD for the proposed expansion (Phase-II) i.e., Avidipta-II, as would be evident from the affidavit of SWID, Respondent No.8, so far no water allotment has been made to the Respondent No.1 for Avidipta-II Housing Complex.
19. The Respondent Nos. 1 & 2, M/s Bengal Peerless Housing Development Company Limited, in their affidavit dated 31.01.2022 have stated that noise pollution from the neighbouring area is unavoidable since the Avidipta Housing Complex is within 200 meters of a large scale metro railway of which construction work is still in progress. There are also roads on three sides of the said 14 building project, including E.M. Bypass, which carry huge volume of traffic, and hospitals are within 500 meters which are also undergoing expansion involving civil works.
20. The learned Counsel for the Applicant has also referred to the Ministry of Jal Shakti Notification dated 24th September, 2020, and submitted that non-submission of water level, water quality data, entails a penalty of Rs. 50,000/- (Rupees Fifty Thousand). Learned Counsel has also referred to para 9 of the Ministry of Jal Shakti Notification under the heading of 'General Compliance Conditions in 'No Objection Certificate' and submitted that para 9.1 thereof provides that installation of digital water flow meter (continuing to BIS IS standards) having telemetry system in the abstraction structure(s) shall be mandatory for all users seeking No Objection Certificate and intimation regarding their installation shall be communicated to the Central Ground Water Authority within 30 days of grant of No Objection Certificate through the web-portal.
21. We find that these guidelines are of 24.09.2020 and lay down the mechanism to regulate and control ground water extraction in India. So far as the Avidipta-II i.e., Phase-II of the M/s Bengal Peerless Housing Development Company Limited, is concerned, as we have already noted herein above that no permission has been granted by the SWID, Respondent No.8 for that project, therefore, the question of non-compliance of the guidelines under the Notification of 24.09.2020 does not arise. However, we may, at the cost of repetition, note here that the Respondent No.1 has 15 submitted an application dated 01.11.2021 to the SWID, Respondent No.8 for sinking a tube well at 401, Barakhola, Ward No. 109, Borough-XII, but the requisite permission has not yet been granted.
22. For reasons aforesaid, we do not find any merit in the present Original Application and the same is accordingly dismissed.
23. There shall no order as to costs.
....................................... B. AMIT STHALEKAR, JM .....................................
SAIBAL DASGUPTA, EM Kolkata, May 05th, 2022, Original Application No. 87/2021/EZ AK 16