National Green Tribunal
Shashikant Vitthal Kamble vs Ministry Of Environment And Forest And ... on 4 July, 2023
Item No. 3 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Review Application No. 03/2023(WZ)
M/s G.M. Kenjale Developers through Mrs. Milind Kenjale
.....Applicant
In
Original Application No. 01/2022(WZ)
Shashikant Vitthal kamble
.....Applicant
Versus
MoEF&CC & Ors.
....Respondent(s)
Date of hearing: 04.07.2023
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Saurabh kulkarni, Advocate along-with
Mr. Prashant Bhat, Advocate
Respondent(s) : Mr. Rahul Garg, Advocate for R-1/MoEF&CC &
R-12 to 14/PMC
ORDER
1. This review application has been filed by the review applicant seeking review of the Judgment dated 09.05.2023 passed by this Tribunal in Original Application No. 01/2022(WZ), particularly, with respect to the observations made in the said Judgment in para nos. 27 to 32 and also prays that hearing be done in open Court. The grounds, which have been set up for review, are mentioned in para no. 13 (II) of the review application, which are quoted herein below:-
" Sr. Para Observations Facts
No. no.
1. 21 The Joint Committee has In 2013, there were no
proposed penalty of Rs. rules for CTE or CTO to
44,85,260.27/- for be obtained for
violation for a period of Building Constructions,
1279 days for not but in the year 2016
obtaining Consent to for the first time as per
R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 1 of 9
Establish which has been notification date
calculated from 09.12.2016 the
02.02.2013 i.e. date of first building construction
plinth checking certificate came under the CTE
being obtained from the and CTO regime for
Pune Municipal building and
Corporation till 05.08.2016 constructions
(till date of application for (residential buildings) CTE). exceeding 1.5L sq. m only and includes Building and construction projects exceeding 20000 sq.m. In the present case the construction exceeded only after 30.01.2017 when the CTE was received by the PP.
2. 22 It is argued by the learned The reliance is placed counsel for the Respondent on the notification No.15/PP that as per the dated 09.12.2016, Office Memorandum dated more specifically page 15th February, 2020 493 of the Original annexed at page No. 581 Application.
of the paper book, all the projects which required Environmental Clearance were granted exemption from obtaining the Consent to Establish and were supposed to seek only Consent to Operate directly which O.M. is stated to be valid as on date as is stated by Mr. D. M. Gupte, learned counsel for the MoEF&CC.
3. 29 As regards the levying of The said penalty ought penalty of Rs.32,63,698/- to have been for violation of Consent to calculated from the Operate, we do not find dated of grant of CTE any valid objection as the i.e 30.01.2017. Thus, same has been found to be this direction needs to for 906 days treating the be reconsidered on the category of the project as point of view of the Red category which is period of penalty i.e appropriate in terms of the from 30.01.2017 to letter of Central Pollution 22.08.2020 which Control Board dated 7th comes around 1301 March, 2016. days.
"R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 2 of 9
2. Our attention is drawn by the learned Counsel for the review applicant to the observation and fact at serial no. 1 in the table mentioned above, where-in it is stated by him that "in 2013, there was no rules for CTE or CTO to be obtained for Building construction, but in the year 2016 for the first time as per notification dated 09.12.2016, the building construction came under the CTE and CTO regime for building and constructions (residential buildings) exceeding 1.5 lakh sq. mtrs. only and includes building and construction projects exceeding 20,000 sq. mtrs. In the present case, the construction exceeded the said limit only after 30.01.2017 when the CTE was received by the Project Proponent".
3. Based on the above, it is argued by the learned Counsel for the review applicant that this Tribunal had made observation that "the Joint Committee has proposed penalty of Rs. 44,85,260.27/- for violation for a period of 1279 days for not obtaining Consent to Establish, which has been calculated from 02.02.2013 i.e. the date of first plinth checking certificate being obtained from the Pune Municipal Corporation till 05.08.2016 (till date of application for CTE)". The said observation needs to be corrected in the light of the facts mentioned by him in Column no. 1 of the above table, which has been reproduced by us above as part of the argument.
4. The learned Counsel for the review applicant has also relied upon the Judgment passed by the Hon'ble High Court of Delhi delivered on 23.01.2012 in the matter of Delhi Pollution Control Committee vs. Splendor Landbase Ltd. [(2012) SCC OnLine Del 400], where-in reliance is placed on para nos. 21, 26 and 34 of the said Judgment, which are quoted here-in below for the sake of convenience:-
R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 3 of 9
"21. The error committed by the learned Single Judge is to mechanically note the definition of 'operation' and 'process', and ignore the sweep of the span of the two words. We do so. Operation is defined as an activity or an act of a practical or technical nature, with emphasis of the acts forming "a step in a process‟. The word 'process' is a going on action or a continuous series of actions "directed at a particular end‟. Thus, an operation would be a working or an activity, where the core of the act constituting the activity is of a practical or technical nature especially one forming a step in a process, and since process is an going on action or a continuous series of action directed at a particular end, the conjoint reading of an operation and a process or even if the two have to be read disjunctively would mean that the expression "establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent‟ would mean to take steps to establish any industry, establishment or undertaking where the operation or process i.e. activity is of a practical or technical nature, at the core of which are ongoing acts, in a series, directed at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labeled as an operation or a process.
26. A word on purposive construction. It simply means that while adopting a purposive approach, Courts should seek to give effect to the true purpose of legislation and must keep in view all material that bears on the background against which a legislation was effected and where more than one construction is possible, the one which eliminates the mischief identified should be favoured. But, where only one construction is possible, the Court is not to strain backwards and then bend forward followed by leaning to the left and then to the right to appropriate a space not intended to be appropriated by the legislation. The Water Act requires prior permission to establish any industry, operation or process which is likely to discharge sewage or trade effluent. It is not intended to apply to all and sundry establishments. It is restricted to only when a building, housing an industry is sought to be established or a building in which an operation or a process is intended to be carried on where effluent or trade effluent would be discharged.
34. For our reasoning herein above pertaining to the Water Act, the said reasoning of the learned Single Judge pertaining to the Air Act is overruled, but would make no difference to the final conclusion arrived at by us pertaining to the applicability of the Air Act when construction activity commences in respect of shopping malls and commercial shopping complexes for the reason, prior consent to establish the same is required on the language of Section 21 of the Air Act in view of the expanded definition of the expression "industrial plant‟. But, for residential complexes, we hold that neither to establish nor to operate, (in fact the concept of "to operate" is not even applicable to a residential complex), any permission is required under the Air Act."R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 4 of 9
5. Further, he has placed reliance on the Judgment passed by the Hon'ble Supreme Court in the matter of State of Andhra Pradesh vs. Raghu Ramakrishna Raju Kanumuru [(2022) 8 SCC 156], where-in reliance is placed on para nos. 11 to 15 of the said Judgment, which are quoted here-in below for the sake of convenience:-
11. This Court, in Priya Gupta v. Ministry of Health & Family Welfare, has observed thus: (SCC pp. 414-15, para 12) "12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court.
Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No court or tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. (Ref. East India Commercial Co. Ltd. v. Collector of Customs 5 and Official Liquidator v. Dayanand6.)"
12. In any case, no law is necessary to state that insofar as the tribunals are concerned, they would be subordinate to the High Court insofar as the territorial jurisdiction of the High Court is concerned. A reference in this respect was also made to the Judgment of the Constitution Bench of this Court in L. Chandra Kumar v. Union of India7.
13. We are, therefore, of the considered view that it was not appropriate on the part of the learned NGT to have continued with the proceedings before it, specifically, when it was pointed that the High Court was also in seisin of the matter and had passed an interim order permitting the construction. The conflicting orders passed by the learned NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 5 of 9 difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over the orders passed by the statutory tribunals.
14. In that view of the matter, we are of the considered view that the continuation of the proceedings before the learned NGT for the same cause of action, which is seized with the High Court, would not be in the interest of justice.
15. We, therefore, quash and set aside the proceedings pending before the learned NGT in Raghu Ramakrishna Raju Kanumuru v. State of A.P.1"
6. Thereafter, the learned Counsel for the review applicant has placed reliance on the Judgment passed by the Hon'ble High Court of Madras in WP (MD) No. 17210 of 2012 (V. Sundararaj vs. Registrar General, High Court of Judicature, Madras & Ors.) [(2023) SCC OnLine Mad 3777], where-in reliance is placed on para no. 24 of the said Judgment, which is quoted here-in below for the sake of convenience:-
"24. The law is settled to the effect that once a provision of the Central Law or a Rule is held to be unconstitutional by a High Court, the same would stand effaced from the statute book in respect of the entire Nation and it cannot be said that it would not be valid within the jurisdiction of the particular High Court and it would be valid in other areas. This position was reiterated by the Hon'ble Supreme Court in Kusum Ingots & Alloys Ltd., Vs. Union of India and another reported in (2004) 6 SCC 254, wherein, the Hon'ble Supreme Court after examining the effect of Clause (2) of Article 226 of the Constitution of India held as follows:-
21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.
22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 6 of 9 the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."
7. Having relied upon the above rulings, it is mainly argued by the learned Counsel for the review applicant that the position of law is made clear by the Hon'ble High Court of Delhi in above cited Judgment that for residential complexes, neither Consent to Establish nor Consent to Operate is required under the Air (Prevention and Control of Pollution) Act, 1981 and that the said Judgment being of the Hon'ble High Court of Delhi should be followed by this Tribunal being subordinate to the jurisdictional High Court because the position of law should be consistent all across India.
8. We have considered the matter. Since the prayer made by the review applicant that para nos. 27 to 32 of the Judgment passed in Original Application No. 01/2022 (WZ) are to be reviewed, which are quoted here-in below for the sake of convenience:-
"27. In the case in hand, Consent to Operate was granted on 30.01.2017. Thereafter, only constructed portion would be treated to be causing pollution related to water as prior to that, it would only be causing air pollution. Therefore, this activity should be treated to be in Orange Category till 30.01.2017, according to these Central Pollution Control Board guidelines and thereafter in Red category.
28. Therefore, we are of the view that the present project be categorized in Orange Category till 30.01.2017 and accordingly we direct the Maharashtra Pollution Control Board to recalculate the amount of penalty and levy the same.
29. As regards the levying of penalty of Rs.32,63,698/- for violation of Consent to Operate, we do not find any valid objection as the same has been found to be for 906 days treating the category of the project as Red category which is appropriate in terms of the letter of Central Pollution Control Board dated 7th March, 2016.
30. In view of above analysis made by us, we dispose of this Application with the direction to the Maharashtra Pollution Control Board (MPCB) that it shall treat the project in question till the grant of Consent to Establish in Orange Category as per the CPCB R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 7 of 9 guidelines and recalculate the penalty accordingly. This exercise shall be completed within one month and whatever amount is arrived at by them towards penalty, the same shall be deposited by the Project proponent within next 15 days with the MPCB.
31. Further, we direct the Project Proponent to deposit the amount with respect to violation of Consent to Operate to the tune of Rs. 32,63,698/- within one month from today with the Maharashtra Pollution Control Board.
32. Further, we direct Maharashtra State Pollution Control Board to make calculation of Environmental Damage Compensation as per the methodology / guidelines laid down by the Central Pollution Control Board (CPCB) pursuant to the Judgment delivered in the case of Paryavaran Surkasha, regarding the consent violations, which have been found to be there concerning Consent to Operate and Consent to Establish after giving opportunity of hearing to Respondent No.15/PP which shall be completed within a period of one month. The amount so arrived at would be deposited by the Project Proponent within next one month with Maharashtra Pollution Control Board."
9. We are not inclined to accept the prayer made by the learned Counsel for the review applicant because the Judgment of Hon'ble High Court of Delhi on which reliance has been placed, which is cited above, it was decided on 23.01.2012 while the rule framed by the CPCB is on 04.06.2012 (the date after the Judgment was passed by the Hon'ble High Court of Delhi), which provides the list of Orange Category units, which include at serial no. 8 "Building & construction projects more than 20,000 sq. mtrs. built up area". The learned Counsel for the review applicant says that as soon as the area of 20,000 sq. mtrs. was crossed, as far as the construction is concerned, they sought permission from the State PCB regarding Consent to Establish and Consent to Operate. But prior to that, there was no need for taking such permission. We are of the view that Rule 25 of the Water (Prevention and Control of Pollution) Act, 1974, provides as follows:-
"(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,--
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto, which is likely to discharge R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 8 of 9 sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage)
(b) ...........................................................................................
(c) .........................................................................................."
10. It is absolutely made clear that there is no limit of 20,000 sq. mtrs. construction to be overshot before taking permission under this Act. Moreover at page no. 42 of the paper book, whereon in the Judgment in above-mentioned original application, it is found to have been mentioned in the reply affidavit of respondent Nos. 12, 13 & 14/PMC that the building permission dated 10.06.2011 was granted for the area of 28750.18 sq. mtrs., therefore, it is apparent that the construction, which was required to be done by the review applicant was more than 20,000 sq. mtrs., for which permission was taken as far back as on 10.06.2011, therefore, it was very much required that the permission should have been obtained from the State PCB for Consent to Establish, which has not been taken in this case. Therefore, we are of the view that the review application does not deserve to be allowed and accordingly, it is rejected.
11. Review Application No. 03/2023(WZ) stands disposed of accordingly.
12. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM July 04, 2023 Review Application No. 03/2023(WZ) In Original Application No. 01/2022(WZ) P.Kr R.A. No. 03/2023(WZ) in O.A. No. 01/2022(WZ) Page 9 of 9