National Green Tribunal
Maj Gen Harpreet Singh Bedi (Retd) vs Shri Vijay Singh on 15 October, 2020
Item No. 01 (Bhopal Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(Through Video Conferencing)
Original Application No. 61/2020(CZ)
Maj. Gen. Harpreet Singh Bedi (Retd.) & Ors. Applicant(s)
Versus
Shri Vijay Singh, Dwarkadheesh Haveli Builders
& Ors. Respondent(s)
Date of hearing: 15.10.2020
CORAM : HON'BLE MR.JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. SATYAWAN SINGH GARBYAL, EXPERT MEMBER
For Applicant(s): Maj. Gen. Harpreet Singh Bedi (Retd.), Applicant
in person
For Respondent(s): Mr. Dipesh Joshi, Advocate
Mr. Om Shankar Shrivastav, Advocate for-BMC
Mr. Ardhendumauli Kumar, Advocate for-CGWA
ORDER
1. The matter was taken up on 21.09.2020 and after analysis of the joint report submitted by the Committee it was found that project proponent has no Environmental Clearance (EC) and there is a discharge of untreated sewage water into the open place or river water bodies and the supply of the water for daily use and drinkable purposes was found to be contaminated. The recommendations of the Committee was to the effect that the present project proponent shall immediately stop the water supply and seal the polluted borewell, alternate safe water supply arrangement be immediately taken up and the project proponent shall 1 obtain EC from SEIAA, MP under EIA Notification, 2006. It was further recommended that the project proponent shall obtain 'Consent to Establish' and 'Consent to Operate' from State Pollution Control Board (SPCB) under Section 25 of Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981.
2. A report was also called with regard to the number of drains discharging their sewage/untreated water into the lake or water bodies.
3. Further, (i) Central Pollution Control Board, (ii) State Pollution Control Board, and (iii) Central Ground Water Authority have submitted the Joint Report with regard to the environmental compensation regarding the project and environmental damage caused by respondent no.1 which is narrated as follows:
"3.3 Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority:
BIS 15-1172:1993 suggests that for communities with population above 100,000, minimum of 150 to 200 lpcd of water demand is to be supplied. Further, 85% of return rate (CPHEEO Manual on Sewerage and Sewage Treatment Systems, 2013}, may be considered for calculation of total sewage generation in a city. CPCB Report on "Performance evaluation of sewage treatment plants under NRCD, 2013", describes that the capital cost for 1 MLD STP ranges from 0.63 Cr. to 3 Cr. And O&M cost is around Rs. 30,000 per month. After detail deliberations, the Committee suggested to assume capital cost for STPs as Rs. 1.75 Cr/MLD (marginal average cost). Further, expected cost for conveyance system is assumed as Rs. 5.55 Cr./MLD (marginal average cost) and annual O&M cost as 10% of the combined capital cost. Population of the city may be taken as per the latest Census of India. Based on these assumptions, Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:
EC= Capital Cost Factor x [Marginal Average Capital Cost for Treatment Facility x (Total Generation-Installed Capacity) + Marginal Average Capital Cost for Conveyance Facility x (Total Generation -Operational Capacity)]+ O&M Cost Factor x Marginal Average O&M Cost x (Total Generation- Operational 2 Capacity) x No. of Days for which facility was not available + Environmental Externality x No. of Days for which facility was not available Alternatively;
EC (Lacs Rs.)= [17.5{Total Sewage Generation -Installed Treatment Capacity)+ 55.5{Total Sewage Generation- Operational Capacity)] + 0.2(Sewage Generation-Operational Capacity) xN + 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"
4.6 Environmental Compensation Rate (ECRGw) for illegal use of Ground Water:
The committee decided that the Environmental Compensation Rate (ECRGw) for illegal extraction of ground water should increase with increase in water consumption as well as water scarcity in the area. Further, ECRGw are kept relaxed for drinking and domestic use as compared to other uses, considering the basic need of human being. As per CGWB, safe, semi-critical, critical and overexploited areas are categorized from the ground water resources point of view (CGWB, 2017). List of safe, semi-critical, critical and over-exploited areas are available on the website of CGWB and can be accessed from -
http://cgwanoc.gov.in/LandingPage/NotifiedAreas/Categorization0f Assessment Units. pdf#ZOOM=150. Environmental Compensation Rates (ECRGw) for illegal use of ground water (ECRGw) for various purposes such as drinking/domestic use, packaging units, mining and industrial sectors as finalized by the committee are given in tables below:
4.6.1 ECRGw for Drinking and Domestic use:
Drinking and Domestic use means uses of ground water in households, institutional activity, hospitals, commercial complexes, townships etc. Sr. Area category Water consumption (m3/day) No <2 2 to <5 5 to >25 25 & abov e Environmental Compensation Rate (ECRGw) in Rs./m3 3 1 Safe 4 6 8 10 2 Semi critical 12 14 16 20 3 Critical 22 24 26 30 4 Over-exploited 32 34 36 40 Minimum ECgw=Rs. 10,000/- (for households)and Rs.
50,000 (for institutional activity, commercial complexes, townships etc) The committee also gone through the guidelines prepared by CPCB (Annexure-V) for assessment of environment compensation and also the guidelines published by CGWA vide GoI notification dated 24/09/2020. The formula for "Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority" is well suited above for the concerned project as CPCB guidelines and as narrated above in the order but for assessment of environment compensation for ground water abstraction for drinking purposes is not given in the CGWA guidelines hence the methodology given in the order by the Hon'ble NGT is adopted for assessment.
The committee after study of the guidelines and order draw out the following parameters for assessment of the environment compensation:
1. Water consumption per day
2. Total Sewage Generation
3. Installed Treatment Capacity
4. Operational Capacity of STP
5. N= Number of days from the date of direction of CPCB/SPCB/PCC
6. Marginal Cost of Environmental Externality
7. Area Category for ground water abstraction as CGWA Since the Dwarkadheesh Haveli Builders (Dwarkadham) did not obtained consent from MPPCB and permission for ground water abstraction from CGWA hence the requisite data/documents or the information for assessment of the environment compensation based on above parameters are not available. Therefore the committee decided to visit the site and interact with the applicant and respondent at site itself. The committee visited the project on 29/09/2020. During visit to the project, apart from committee members' applicant Major General H.S. Bedi (Retd.) and respondent Shri Vijay Singh were present.
The committee after discussion with the office bearers of the Dwardham Residents Welfare Society and the developer along with study of the guidelines on NBC, CGWA, CPCB in view of the order 4 dated 21/09/2020, draw out the following parameters for assessment of the environment compensation:
1. Water consumption per day: The developer has 07 bore wells out of which 04 (01 No. 8HP-6stage and 03 Nos. 6HP-4stage) are being used rest are standby in case of any eventuality or failure of pumps of operating bore wells. These bore wells are not fitted with water meters. The developer has one 50 KL capacity storage tank which is being filled five times a day hence total water used per day for domestic and parks etc is 250 KL/day.
2. Total Sewage Generation: as per discussion with the developer and the society members' alongwith applicant about 252 Families (Annexure-VI) are occupying the houses and average
5 persons/family are considered residing presently. Considering National Building Code for domestic water supply about 150 LPCD water is being required, totaling about 190 KLD. As per CPHEEO manual out of domestic consumption about 80% generates as sewage. Hence total Sewage generation would be 0.152 MLD.
3. Installed Treatment Capacity: During visit the sewage treatment plant (STP) created by developer was found defunct and even connections were not made for sewage to enter in the treatment system. As per discussion and information given, the capacity of STP is 200 KLD however no technical design and sizes are provided.
4. Operational Capacity of STP: During visit, the STP was found defunct and even connections were not made for sewage to enter in the treatment system. Hence for environmental compensation calculation point of view operational capacity was considered as nil.
5. N= Number of days from the date of direction of CPCB/SPCB/PCC: After receipt of complaint and visit of the site by M.P. Pollution control Board issued show cause notice on 10th June, 2020 (Annexure-VII) hence as per guidelines and the directions number of days calculated from 10th June, 2020 for estimation of environmental compensation. Hence up to 30th September, 2020 number days are - 113 days.
6. Marginal Cost of Environmental Externality : As per the guidelines CPCB for calculation of environmental compensation for "Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority" and the order dated 21/09/2020 the Marginal Cost of Environmental Externality is taken as minimum 0.05 and maximum 0.10 for sewage up to 200 MLD. Hence for calculation of the 5 environmental compensation Marginal Cost of Environmental Externality is taken as maximum Rs. 0.1 Lacs/day.
7. Area Category for ground water abstraction as CGWA : As per the CGWA guidelines and categorisation done, this area falls under - Semi-critical category.
EC calculations:
The committee discussed the matter of air pollution from the township, there is no specific source of air pollution in the township however the member from MPPCB informed that the Board has filed prosecution against the builder under Water Act 1974, Air Act 1981 and Environment (Protection) Act 1986. Hence the committee decided to calculate EC for Sewage disposal and ground water abstraction. The details are as follows:
1. EC for sewage treatment -
EC (Lacs Rs.)= [17.5{Total Sewage Generation -Installed Treatment Capacity)+ 55.5{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 EC (Lacs Rs.)=[17.5(0.152-0)+55.5(0.152-0)]+0.2(0.152-
0)X113+0.1X(0.152-0)X113 EC (Lacs Rs.)=[2.66+8.436+3.435+1.1725] EC (Lacs Rs.)=15.7035 Lacs.
Note: Since the STP of the township is not functional hence the EC shall be continued till developer reports the same to the Hon'ble NGT.
2. EC for Ground water abstraction Total ground water abstraction by the builder for the project is about 190 KLD. Area Category for ground water abstraction as CGWA guidelines falls under - Semi-critical category. The rate for this category is Rs. 20lm3.
EC rate:190X 20 Rs./KL:3800 Rs./day.
As per order of Hon'ble NGT in the matter of OA No. 17612015 dated lIl09l20l9 para- "21. The Committee has given following recommendations:
1. In case of fixation of liability, it always lies with curent owner of the premises where illegal extraction of groundwater is taking place.
2. Violation duration may be assumed as at least one year in case where no evidence for period of installation of borewell could be established."6
The committee during visit and discussion with developer could not get the exact date of establishment of bore wells hence the period of EC for ground water abstraction has been considered from the date of above order i,e. 11.09.2019 to 30.09.2020. The calculations are as follows:-
Total EC GWA = EC rate X days Total EC GWA = Rs. 3800/day X 384 days = Rs. 14.592 Lacs.
Recommendations:
Environmental compensation calculated based on the order of Hon'ble National Green Tribunal and the guidelines of CGWA & CPCB the details are as follows:
1. Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual Authority- Rs. I 5.7035 Lacs
2. ECGWA for Drinking and Domestic use: Rs. 14.592 Lacs. Total Environmental compensation is Rs. 30.2055 Lacs."
4. Respondent no. 1 has submitted the reply that construction was without EC and the reason as stated by the respondents are that initially there was a proposed construction of 600 units and out of which approximately 300 units are already constructed. M/s Ashram Homes and Colonizer (P) Ltd. is a company incorporated under the provisions of Companies Act and carrying out the business of construction of residential area. It is further submitted that the township is developed on 54.20 acres of land and total built up areas as stated is less than 1,50,000 sqmtr. It is further submitted that including cultural hall, health centre, school, multiplex, services for area for public and places of worship i.e. totalling 1,27739.45 sqmtr. The reply submitted by the respondent is to the effect that he was advised that the EC is not required and thus the EC was not obtained. Further, establishment of Sewage Treatment Plant (STP) to treat 400 KLD of waste water was submitted before the Madhya Pradesh State Pollution Control Board (MPPCB) but it was not allowed and the 7 version of the respondent is that the permission should be deemed to be permitted in accordance with the provisions contained in Section 25 of the relevant Act. For the extraction of the ground water, it is stated that the borewell was existing prior to 1990 and thus it was not deemed to take permission from the Central Ground Water Authority (CGWA). The version as stated by the respondent is not tenable. Ignorance of law is no excuse. The advice against the provision of law cannot be made ground in defence.
5. Applicant has not taken any permission under Water (Prevention & Control of Pollution) Act, 1974 Air (Prevention & Control of Pollution) Act, 1981, permission from Central Ground Water Authority as deemed permission and proceeded according to his wishes without taking care of all rules, provisions and environmental laws and permission from the competent authority. The action as stated was being done as there is no authority to control the respondent for his activities. The dumping of the solid waste and the discharge of untreated water into the premises which was reported by the joint committee has been replied that these are from the neighbouring or the residential colony adjacent to the place under question. It is further submitted that the respondent reserves his right to further reply and also made a request to direct the committee to further visit and report. The conduct of the respondent no.1 shows that he want that the matter should be kept pending. The pendency of the application cannot be indirect permission to the respondent for continuing him his activities or continuing the pollution.
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6. The action and construction is not only disregard to the law but it is negation of the authority of the State by the public official doing the act and expending the budget in accordance with their wishes. An action specifically punitive action does lie for doing what the legislature has authorized if it is done negligently carelessly and in violation of the law.
Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. Any act by any officer in violation of the rules is abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. The servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty mala-fidely and not in accordance with the guidelines, when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social 9 significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook.
7. Absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The Rule of Law means that the decisions should be made by the application of known principles and rules, such decisions should be predictable and the citizens should know where he is. If decision is taken without any principle or without any rule, it is unpredictable and such decision is the anti-thesis of a decision taken in accordance with the Rule of Law. Even where there is no ministerial duty as above, and even where no recognised tort such as trespass, nuisance, or negligence is committed, public authorities or officers may be liable in damages for malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. 10
8. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. The servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of powers results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it.
9. When a person approaches a Court of Equity, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.
In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:
"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."-
Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers. 11 (Emphasis added)"
In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."
Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.
In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.
In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-
"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."12
In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case.
10. Statutory rules are required to be observed. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities." Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-
"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of 13 statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).
11. Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-
"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."
In Commissioner of Police (supra), the Apex Court observed as under:-
"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."
In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:
-
"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy." 14
The Supreme Court has taken the same view in Ram Chand & Ors. Vs. Union of India & Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness." A Constitution Bench of the Hon'ble Supreme Court in Ajit Singh (II) Vs. State of Punjab & Ors., (1999) 7 SCC 209 held that any action being violative of Article 14 of the Constitution is arbitrary and if it is found to be de hors the statutory rules, the same cannot be enforced.
12. Therefore, it is evident from the aforesaid judgments of the Hon'ble Apex Court that whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the Court to sanctify such an illegal act. Wherever the statuary provision is ignored, the Court cannot become a silent spectator to such an illegal act, and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands. (Vide R.N. Nanjundappa Vs. T. Thimmaiah & Anr., AIR 1972 SC 1767; B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., AIR 1979 SC 1676; Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Orissa & Ors. Vs. Sukanti Mohapatra & Ors., AIR 1993 SC 1650; Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. Vs. Bal Kishan Soni & Ors. (1997) 5 SCC 86; State of Himachal Pradesh Vs. Nodha Ram & Ors., AIR 1997 SC 1445; Ashwani Kumar & Ors. Vs. State of Bihar & Ors., AIR 1997 SC 1628; State of M.P.& Anr. Vs. Dharam Bir, (1998) 6 SCC 165; Municipal Corporation, Bilaspur & Anr. Vs. Veer Singh Rajput & Ors., (1998) 9 SCC 258; Nazira Begum Lashkar & Ors. Vs. State of Assam 15 & Ors., AIR 2001 SC 102; Mrs. Dr. Chanchal Goyal Vs. State of Rajasthan, AIR 2003 SC 1713; M.D., U.P. Land Development Corporation & Anr. Vs. Amar Singh & Ors., AIR 2003 SC 2357; State of Haryana & Anr. Vs. Tilak Raj & Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. Vs. Fakir Chand & Ors., AIR 2003 SC 4465; Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 SC 1377; and A. Umarani Vs. registrar, Co- operative Societies & Ors., 2004 AIR SCW 4462).
13. In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.
14. The Applicant-Maj. Gen. Harpreet Singh Bedi (Retd.) appearing in person has submitted that the terms of agreement written in the brochure at the time of application applying for the residential accommodation must be complied with by the project proponent and the version that due to protest of some of the persons, the potable water facility was not done, is not tenable. He has further submitted that since 2 % of the cost is being deposited to the account of Bhopal Municipal Corporation. Thus, BMC is also accountable to monitor during the construction activities as to whether basic facilities as required under the rules are provided or not and the BMC fail to comply the public duty. He has further submitted 16 that he is not in a view to have any compensation or he has not filed this application for any compensation but only for the reasons to have a residential accommodation to live with peace because his passed life of more than 37 years in the army and now the total salary and savings which was accumulated were diverted to the account of respondent no.1 only for a residents and after coming here he is feeling very much worried. It is further submitted that there is no provision of water harvesting, there is no provision of natural flow of water and thus, necessary action should be taken against the authorities and the project proponent.
15. The Learned Counsel Sh. Dipesh Joshi appearing for respondent no.1 has submitted that he should be provided 15 days time and the STP may be made functional. He has further submitted that he may resolve the problem with consultation to the applicant and the residents for provision of potable water.
16. The Learned Counsel appearing for MoEF & CC has submitted that the occupancy and the residential accommodations have been started to allot for residential purposes from 2012 and it continued upto 2015 and thus the compensation under the Environment Act for violations of rules should be counted from 2012 onward. It is further submitted that damage to the persons residing there, using contaminated water or residing in the atmosphere where there is a discharge of sewage water has not been calculated. The Central Pollution Control Board and State Pollution Control Board are directed to calculate the amount of compensation on this point also.
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17. The Learned Counsel appearing for Bhopal Municipal Corporation Sh.
Om Shankar Shrivastav has submitted that the matter with regard to the 55 drains of Municipal Corporation discharging of untreated water may be taken in the matters in which the Municipal Corporation is a party in another case. It is reported that more than 10 matters of Bhopal Municipal Corporation is pending where there is allegation that sewage and untreated water is being discharged regularly and continuously by Bhopal Municipal Corporation in the open place or in the water bodies.
18. Accordingly, we direct as follows:-
(i) The respondent no.1 is directed to do the needful and ensure that no sewage/untreated water is discharged in the open space or the water bodies and STP be made functional within 15 days as stated by the Learned Counsel for the respondent no.1.
(ii) The provision of potable water must be made available to the residents and the matter must be solved and reported before the next date of hearing.
(iii) The report submitted by the Joint Committee with regard to the calculation of environmental compensation to the tune of Rs. 30.2055 Lakhs is accepted. The authorities calculating the environmental compensation are statutory authorities having power to calculate and realise the amount according to the rules. We cannot interfere in the statutory power of the authority.
(iv) Accordingly, we direct the Central Pollution control Board and Central Ground Water Authority to recover the amount 18 according to law. If the amount aforesaid is not deposited within the time as aforesaid the Central Pollution Control Board is at liberty to realise the amount with interest at the rate of 6 % per annum in accordance with the law laid down by Hon'ble the Supreme Court in Indian Council for Enviro- Legal Action v. Union of India & Ors.(2011) 8 SCC-161 on the principle that, Polluter who unjustly enriches itself, not paying the environmental compensation, must pay interest and further compensation shall be in addition to criminal action (2018)11 SCC 572.
(v) The respondent no.1 is directed to deposit the amount within 15 days from today to the account of Central Pollution Control Board. The above amount be spent on environmental matters.
19. Further compliance report with regard to the above facts be submitted within two weeks by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
20. List it on 06.11.2020.
Sheo Kumar Singh, JM Dr. S.S.Garbyal, EM JG Original Application No. 61/2020(CZ) 19