National Green Tribunal
Shashikant Vitthal Kamble vs Ministry Of Environment And Forest And ... on 22 March, 2024
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Original Application No.07/2022(WZ)
IN THE MATTER OF:
Mr. Shashikant Vitthal Kamble
Residing at: Popular Colony Flat No. Ci/13,
Near Vitthal Nagar, Warje Maiwadi, Warje,
Pune - 411 058.
.....Applicant
Versus
1. Ministry of Environment, Forest & Climate Change
(MoEF&CC) New Delhi, through its Secretary,
having office at Indira Paryavaran Bhawan,
Jor Bagh Road, New Delhi - 110 003
2. Central Ground Water Authority (CGWA),
New Delhi, through its Chairman,
having office at: 'Central Ground Water Board',
Bhujal Bhawan, NH-IV, Faridabad - 121 001.
3. Central Pollution Control Board (CPCB),
New Delhi, through its Member Secretary,
having office at : Parivesh Bhawan,
CBD-cum-Office Complex
East Arjun Nagar, Delhi - 110 032.
4. Environment Department, Maharashtra
Through its Principal Secretary,
having office at: Room No.229,
Mantralaya, Mumbai-400 032.
5. State Environment Impact Assessment Authority (SEIAA),
Maharashtra, through its Chairman,
having office at : 601, 6th Floor, NKM International House,
behind LIC Yogakshema Building,
177 Babubhai Chinoy Marg,
Nariman Point, Mumbai -400 020.
6. State Expert Appraisal Committee(SEAC),
Maharashtra, through its Chairman,
having office at : 15th floor, Environment Department,
Mantralaya, Mumbai-411 032.
7. State Ground Water Authority, Maharashtra
Through its Chairman,
having office at: New Agriculture College Building,
1st Floor, Bhujal Bhavan, KB Joshi Marg
Original Application No.07/2022(WZ) Page 1 of 32
Near, Shivajinagar, Pune - 411005.
8. Maharashtra Pollution Control Board (MPCB)
Mumbai, through its Member Secretary,
Having office at: Kalpataru Point, 3rd & 4th floor,
Road No.8, Sion Circle, Opp. PVR Theater,
Mumbai- 400 022.
9. Maharashtra Pollution Control Board (MPCB),
Pune, through its Regional Officer,
Having office at: Jog Center, 3rd Floor,
Mumbai Pune Road, Wakdewadi, Pune - 411 003.
10. District Environment Impact Assessment Authority,
Through the Collector, Pune as a Chairman,
having office at : New Collectorate office,
Opposite Sasson Hospital, Pune- 411 001.
11. The Commissioner Land and Records, Pune
Through its Commissioner and Director,
Having office at: 2nd & 3rd floor,
New Administrative Building, Opposite Council Hall,
Agarkar Nagar, Pune- 411 001.
12. Pune Metropolitan Region Development
Authority (PMRDA) through its Metropolitan
Commissioner and Chief Executive Officer
having office at: Maharaj Sayaji Gaikwad Udyog Bhawan,
Ward No.8, Survey No.152 - 153,
Aundh Gaon, Aundh, Pune - 411 067.
13. Naiknavare Developers Private Limited
through its Project Proponent,
Mrs. Gauri Naiknavare
having office address at : 1204/4,
Ghole Road, Shivajinagar, Pune - 411 005.
having site address at: "Avon Vista"
at Survey No. 8/3, 8/4, 8/5, 8/6, 8/7,
8/9, 8/10, 8/11, 8/12, Mhalunge,
Pune - 410 501.
.....Respondent(s)
Counsel for Applicant:
Mr. Viraj Pawar, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/MoEF&CC & R-3/CPCB
Mr. Atul J. Pathak, Advocate for R-2/CGWA
Mr. Aniruddha Kulkarni, Advocate for R-4/Envt. Deptt.,
R-5/SEIAA & R-6/SEAC
Mr. Yashwant Dhanegave, Advocate for R-7/SGWA
Ms. Manasi Joshi, Advocate for R-8 & 9/MPCB
Mr. R. B. Mahabal, Advocate for R-13/PP
Original Application No.07/2022(WZ) Page 2 of 32
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 21.02.2024
Pronounced on : 22.03.2024
JUDGMENT
1. This Original Application has been filed with the prayers that a direction be issued to the respondent No.13-Naiknavare Developers Private Limited through its Project Proponent to stop illegal construction in contravention to the Environment Clearance condition; a Committee be constituted with a direction to submit a factual report, based on which the illegal constructions, if any, be directed to be demolished; direction be issued to the government authorities as well as the Joint Committee to make a plan for restitution of the environment; and environmental compensation be levied from the respondent No.13-PP.
2. In brief, the facts of this case are that the respondent No.13- Naiknavare Developers Private Limited had obtained the Environment Clearance Permission on 18/07/2016, a copy of which is annexed as Annexure 'A'. On 19/09/2018, the Project Proponent was issued the amended Commencement Certificate by the Respondent No. 12-Pune Metropolitan Region Development Authority (PMRDA) for starting of the construction activity in the said project scheme, a copy of which is annexed as Annexure- 'B'. Another amended Commencement Certificate was issued by the respondent No.12 to the Respondent No.13-PP for the same purpose. On 17.12.2020, the respondent No.12 issued the Completion Certificate to respondent No.13-PP for Residential Building B- 1, a copy of which is annexed as Annexure- 'D'. On 24/03/202021, the respondent No.8- Maharashtra Pollution Control Board issued the Consent Original Application No.07/2022(WZ) Page 3 of 32 to Operate, a copy of which is annexed as Annexure 'E'. On 31/03/2021, the respondent No.12 issued the Completion Certificate to respondent No.13-Project Proponent for Residential Building A-1, a copy of which is annexed as Annexure 'F'.
3. It is further submitted in this application that on 123rd Meeting of the SEAC-3 held on 2nd, 3rd, 6th, 7th, 8th & 9th September 2021, the respondent No.13- Project Proponent submitted proposal for amendment in the Environment Clearance. On 02/06/2021, the respondent No.12 issued the amended Commencement Certificate to the respondent No.13- Project Proponent, a copy of which is annexed as Annexure 'G'. On 14/10/2021, a notice was got issued to the respondent No.13 for violation during the construction activity, which was also duly served upon the respondent No.1-MoEF&CC to respondent No.12- PMRDA.
4. It is further submitted in this application that the respondent No.13- Project Proponent had proposed to construct the said project in question in the year 2016 and construction of the same was carried out by the respondent No.13 in violation of the EC terms & conditions. The respondent No.13-Project Proponent carried out additional construction without getting the EC amended. Since 2016 till the filing of this application, the respondent No.13-PP never made an application for obtaining amendment in the Environment Clearance. On 18/07/2016, the Environment Clearance was granted to the Respondent No.13 for carrying out construction for the Residential Buildings Al, Bl, B2, A2, A3, B3 and Club Houses. The said Environment Clearance Permission is annexed as Annexure- 'A'. On 17/12/2020 and 31/03/2021, the Respondent No.12 issued the Completion Certificate to the Respondent No.13, which are annexed as Annexure 'D' & 'F' respectively.
Original Application No.07/2022(WZ) Page 4 of 32
5. We find that there are number of repetitions made in the pleadings by the applicant and that the pleadings mentioned in this application are very vague, making it difficult to understand as to what is the actual dispute, by and large, it appears that the ground of filing this application is that the terms & conditions of EC are allegedly violated by the respondent No.13-PP.
6. In para nos.27 & 28 of this application, there appears to be repetition of the earlier mentioned facts. In para no.29 of this application, it is submitted that the respondent No.13 approached the respondent No.12-PMRDA and obtained the Commencement Certificate dated 19/09/2018 for a total plot area of 50,900.00 sq. mtrs. The Environment Clearance dated 18.07.2016 for the same including FSI and Non-FSI built up area was 73427.00 sq. mtrs. There are various typographical errors found in the present Original Application, such as in para no.32, reference is being made of respondent No.15. But we do not find the name of respondent No.15 to be there in the present application.
7. It is further submitted in this application that the respondent No.13 has extracted the ground water through drilling bore in the ground without taking prior permission. The Respondent No.13-PP did not carry out plantation as per the guidelines of the appropriate Government authority. Respondent No.13 has not installed Rain Water Harvesting System, Sewage and Waste Water Management Systems nor have installed Pollution Monitoring Systems.
8. In other paragraphs of the present Original Application, by and large, there is repetition of facts and it is very much apparent that there is no coherence in what the applicant is trying to convey. Original Application No.07/2022(WZ) Page 5 of 32
9. Looking to the facts, it appears that the Predecessor of this Tribunal, on the very first date i.e. on 22.02.2022, while admitting the matter, has noted only 5 points pertaining to the violations of EC norms, which are narrated herein below:-
"
(i). Plot area of Environmental Clearance (EC) and the plot area of the commencement certificate are different.
(ii). The configuration of the buildings has been changed.
(iii). Construction without prior permission of the competent authority.
(iv). Construction of the building (A-1 and B-2) without having any environmental clearance.
(v). Construction and action of the Respondent in contravention of the sanctioned layout plan and the environmental clearance conditions."
10. On 21.02.2024, during argument, the learned counsel for applicant has also tried to confine himself to these five points only. On the very first date of this matter having been admitted by the Tribunal, the Joint Committee was constituted and also direction was given to send notices to the respondents.
11. In compliance of the above-mentioned order, the Joint Committee has submitted its report, which is annexed at page nos.129 to 355 of the paper book, the relevant part of which is quoted herein below for the sake of convenience:-
"3.0 Observation and Findings:-
This report is outcome containing factual and action taken report of the said joint committee based on the preliminary information received from the nodal agency, followed by site inspection, information given by PP & Pune Metropolitan Region Development Authority (PMRDA) through MPCB and subsequent discussions of the joint committee. The observations & findings of the joint committee are given as below: Observations w.r.t Environmental Clearance Details of EC, sanctioned plans, plinth certificate, completion certificate and current status of the project as verified and submitted by PMRDA to MPCB is given at Table No. 1. Copy of the same is given at Annexure-2 for kind information.Original Application No.07/2022(WZ) Page 6 of 32 Original Application No.07/2022(WZ) Page 7 of 32
i. PP has been granted Environmental Clearance (EC) by SEIAA vide letter No. SEAC-III-240/CR-369/TC-3, dated 18/07/2016 for construction of residential project for Total Built Up Area (TBA) of 51,587.80 sq.m. Copy of EC dated 18/07/2016 is given at Annexure-3.
ii. As per the information provided by PMRDA vide letter dated 13/06/2022, it is observed that subsequent to the said EC, the PP has obtained first layout sanctioned vide sanction plan vide no. BMU/C.R.No.1385/16-17 dated 21/11/2016 for TBA- 44294.29 sq.m (FSI- 23517.45 sq.m & Non FSI-20776.84 sq.m) wherein building no. & configuration of A1: P+21, B1: P+21, A2: P+21, B2: P+21, A3: P+5, B3/C: P+5, Club House: G+2, P-Lower + Upper Level Parking have been obtained. Subsequently, the PP has obtained first plinth check certificate dated 01/06/2017 for club house only as per aforesaid sanction plan dated 21/11/2016.
iii. PP has obtained second layout sanctioned vide sanction plan vide no. BMU/C.R.No. 459/17-18 dated 21/12/2017 for TBA- 45108.58 sq.m (FSI-24218.68 sq.m & Non FSI- 20889.9 sq.m) wherein building no. & configuration of A1: P+21, B1: P+21, A2: P+21, B2: P+21, A3: P+5, B3: P+5, Club House: G+1, P-Lower + Upper Level Parking have been obtained. Subsequently, the PP has obtained Plinth Check Certificate dated 17/03/2018 for building B1 as per aforesaid sanction plan dated 21/12/2017. Further, the PP has obtained plinth check certificate dated Original Application No.07/2022(WZ) Page 8 of 32 20/11//2018 for building A1 as per aforesaid sanction plan dated 21/12/2017.
iv. PP has obtained third layout sanctioned vide sanction plan vide no. BMU/C.R.No. 217/18-19 dated 19/09/2018 for TBA- 43855.93 sq.m (FSI-23960.84 sq.m & Non FSI- 19895.09 sq.m) wherein building no. & configuration of A1: P+21, B1: P+21, A2: P+21, B2: P+21, A3: P+1, B3: P+1 Club House: G+1, P-Lower + Upper Level Parking have been obtained. The PP has obtained plinth check certificate dated 20/09/2019 for building A2 as per aforesaid sanction plan dated 19/09/2018.
v. PP has obtained fourth layout sanctioned vide sanction plan vide no. BMU/203/19-20 dated 13/11/2019 for TBA- 49909.04 sq.m (FSI- 26878.24 sq.m & Non FSI- 23030.8 sq.m) wherein building no. & configuration of A1: P+21, B1: P+21, A2: P+21, B2: P+19, A3: P, B3: P Club House: G+1, P-Lower + Upper Level Parking have been obtained. The PP has obtained plinth check certificate dated 17/12/2020 for building B2 as per aforesaid sanction plan dated 13/11/2019.
vi. PP has obtained fifth layout sanctioned vide sanction plan vide no. DP/MU/515/20-21 dated 02.06.2021 for TBA- 65439.02 sq.m (FSI- 39829.96 sq.m & Non FSI- 25609.60 sq.m) wherein building no. & configuration of A1: LP + UP +21, B1: LP + UP +21, A2: LP + UP +21, B2: LP + UP +19, A3: LP + UP+ 12, B3: LP + UP + 12, Club House: G+1, have been obtained. The PP has obtained plinth check certificate dated 22/02/2022 for building A3 & B3 as per aforesaid sanction plan dated 02/06/2021. vii. However, the total current construction area of the project as per the Architect Certificate dated 03/06/2022 (Annexure-4) is TBA: 51122.25 sq.m (FSI-23086.46 sq.m & Non FSI-28053.79 sq.m). Wherein it is observed that building A1 & B1 is completed & occupied. Similarly, building A2 is completed & finishing works are in progress, building B2 is completed up to 11th floor and building A3 & B3 was completed up to podium level. All the aforesaid buildings were constructed as per the various sanctioned plans granted from time to time by the PMRDA. viii. PP has made an application to SEIAA for amendment in existing EC dated 18.07.2016 with proposed total built-up area 92,328.80 sq.m (FSI- 51,727.43+ Non FSI- 40,601.37 sq.m) on 13.02.2020 & 17.02.2020. (Copy of the applications submitted to SEIAA given at Annexure-5.
ix. As per the 123rd SEAC-3 Meeting scheduled in September, 2021;
"Committee noted that, there is change in building profile; PP has constructed different profile than approved in EC. After detail deliberation & considering the above said changes in the approved building profile, committee noted that this seems to be a violation case. The expansion/amendment proposal therefore cannot be appraised at this juncture. Committee also noticed that, the PP has not submitted their application as per Notification issued by MoEF & CC dated 14.03.2017 for violation cases, hence Committee decided to refer the application to SEIAA for further necessary action." Original Application No.07/2022(WZ) Page 9 of 32
x. As per 203rd SEIAA Meeting scheduled of October, 2021;
"PP further submitted that, there is a proposal considered in 203rd meeting of SEIAA at S.no 14 in which deviation made within the limit of BUA without increase in tenements has not been considered as violation by the SEIAA. The Minutes of the said meeting are as-The EIA Notification 2006 dated 14.09.2006 has laid down threshold area and limits for consideration of proposals of building construction under B2 category. Accordingly, when Environmental Clearance was already granted once for a specified Built Up Area (BUA) and afterwards Project Proponent comes for amendment/expansion, the area for which Environmental Clearance is granted is the primary factor in deciding amendment/expansion. The configuration of buildings submitted for Environmental Clearance may vary sometimes, but should be done to determine whether the environmental requirements/parameters are met. Such proposals cannot be considered as violation in terms of EIA Notification, in case Environmental Clearance was granted for a larger area. However, adequacy of environmental requirements/ stipulations should be appraised by the SEAC before considering grant of Environmental Clearance for amendment/expansion. PP requested that, the same precedent may be applied to this case. In the view of above, SEIAA is of the opinion that the proposal may not be considered as violation of earlier EC. SEIAA after deliberation decided to refer back the Proposal for appraisal"
xi. Based on the recommendations in 203rd SEIAA meeting, the project was again appraised in 133rd SEAC-3 meeting of Jan, 2022 and was referred back to SEIAA for EC. However, in 240th SEIAA meeting of March, 2022 the project was differed due to Hon'ble NGT order dated 22/02/2022. Copy of above mentioned Minutes of SEAC-3 and SEIAA meetings attached as Annexure-6. xii. PP has provided solar water heating system for the completed buildings A1, B1 & A2 as per s. no. 33 of EC conditions dated 18/07/2016, it is informed that installation of solar panels shall be completed in a phased manner as & when the buildings are completed. Also, provided 02 out of 8 nos. of rain water harvesting recharge pits and storm water drainage system as per EC conditions dated 18/07/2016. PP has planted about 127 no. of trees against 233 no. of trees, as informed planation of remaining no. of trees shall be completed in a phased manner. Further, PP has provided organic waste convertor of reported design capacity of 750 Kg/day for processing of bio-degradable waste, which was found working. The manure is utilized for gardening within the project premises. PP has provided STP consisting of phytorid treatment system and tertiary treatment facility consisting of pressure sand, activated carbon filter & ozonation. As per conditions of CTO, the treated wastewater is reused in flushing & ancillary activities and remaining is reused in gardening/discharged into municipal drainage. However, no records were maintained for utilization of treated wastewater. Original Application No.07/2022(WZ) Page 10 of 32 Original Application No.07/2022(WZ) Page 11 of 32 3.3 Observations w.r.t Consent to Establish/Operate i. PP has obtained Consent to Establish (CTE) dated 24/04/2017 (Annexure-9) from MPCB for total plot area of 19,477.87 sq.m and total proposed construction built up area 73,423.09 sq.m. ii. PP has obtained Consent to Operate (CTO-Part 1) dated 24/03/2021 (Annexure-10) from MPCB for total plot area of 19477.87 sq.m and construction BUA 27995.26 sq.m out of total construction built up area 51,587.80 sq.m which is valid up to 31/12/2021. Further, PP has applied for renewal of CTO to MPCB on 30/12/2021 (Annexure-11).
4.0 Conclusions:
i. PP has applied for Environmental Clearance (EC) for the total built-
up area (TBA) of 73,423.3 sq.m. However, as per General Conditions for Pre-construction phase vide s. no. (i), PP has been granted EC by SEIAA vide letter No.SEAC-III-240/CR-369/TC-3, dated 18/07/2016 for construction of residential project for TBA of 51,587.80 sq.m.
ii. PP has obtained first plinth check certificate dated 01/06/2017 for construction of club house, which was constructed after obtaining prior EC from SEIAA, Maharashtra dated 18/07/2016 and CTE from MPCB dated 24/04/2017. Whereas, club house has not been stipulated/mentioned in s. no. 16 (no. of buildings & its configurations) of the aforesaid EC dated 18/07/2016. However, club house has been mentioned in the layout sanctioned vide sanction plan vide no. BMU/C.R.No.1385/16-17 dated 21/11/2016.
iii. PP has made an application to SEIAA, Maharashtra for amendment in existing EC dated 18/07/2016 with proposed TBA of 92,328.80 sq.m (FSI- 51,727.43 & Non FSI- 40,601.37 sq.m) on 13.02.2020 & 17.02.2020. However, grant of amended EC for the proposed expansion is pending before SEIAA, Maharashtra. Meanwhile, PP has obtained recent/revised layout sanctioned vide sanction plan vide no. DP/MU/515/20-21 dated 02/06/2021 for TBA-65439.02 sq.m (FSI- 39829.96 sq.m & Non FSI- 25609.60 sq.m) which is observed to be more than the granted TBA of 51,587.80 sq.m of earlier EC dated 18/07/2016. Further, the PP has obtained plinth check certificate dated 22/02/2022 for building A3 & B3 and also obtained completion certificate dated 28/07/2021 & 06/12/2021 for building B1 & A1, which are as per aforesaid sanction plan dated 02/06/2021.
From the above, it is observed that the PP without obtaining amended EC for the proposed expansion of project (from existing TBA of 51,587.80 sq.m to 92,328.80 sq.m) has obtained the aforesaid plinth check certificate and building completion certificates. However, the total current construction area of the project as per the Architect Certificate dated 03/06/2022 (Annexure-4) is TBA: 51,122.25 sq.m (FSI-23086.46 sq.m & Non FSI-28053.79 sq.m) which is less than the granted TBA of 51,587.80 sq.m of earlier EC dated 18/07/2016.
iv. As per the various layout sanctioned plans of the aforesaid project, it is observed that the PP has changed the building no. & Original Application No.07/2022(WZ) Page 12 of 32 configurations, which are different from that of the EC granted dated 18/07/2016. However, total current construction area of the project as per the Architect Certificate dated 03/06/2022 (Annexure-4) is TBA: 51,122.25 sq.m (FSI-23086.46 sq.m & Non FSI-28053.79 sq.m) which is less than the granted TBA of 51,587.80 sq.m as per EC dated 18/07/2016.
v. PP has not provided wastewater treatment system consisting of MBBR technology as per the s. no. 1 A of Schedule-I (i.e. terms & conditions for compliance of water pollution control) of the CTO dated 24/03/2021 and also as per s. no. 30 of the EC conditions dated 18/07/2016, instead PP has provided wastewater treatment system consisting of phytorid treatment system and tertiary treatment facility consisting of pressure sand, activated carbon filter & ozonation.
5.0. Approach for penalty and remedial measures for prior environmental clearance (EC) violation Original Application No.07/2022(WZ) Page 13 of 32 Original Application No.07/2022(WZ) Page 14 of 32 "
12. From the side of respondent No.13-Naiknavare Developers Private Limited, reply affidavit dated 19.09.2022 has been filed, wherein it is submitted that the applicant has wrongly impleaded Naiknavare Developers Private Limited as one of the respondents in the present application because there is another company by the name Naiknavare Profile Constructions Pvt. Ltd., which is raising the construction of project by the name 'Avon Vista'. In this regard, we have perused the EC dated 18.07.2016, in which we find that the name of the Project Proponent mentioned is M/s. Naiknavare Profile Developers LLP., which is annexed as Annexure- R3 at page no.446 onwards of the paper book.
13. In para no.12 of this affidavit of respondent No.13, it is mentioned that the Residential project- Naiknavare Profile LLP was erstwhile developer, therefore, the name of the said respondent would be read as Naiknavare Profile Constructions Pvt. Ltd. (NPCIL), which has undertaken the project by the name 'Avon Vista', which is being represented by the learned counsel Mr. R. B. Mahabal.
Original Application No.07/2022(WZ) Page 15 of 32
14. It is further submitted in this affidavit by the respondent No.13 that the residential project 'Avon Vista' is situated on Plot-A with a net plot area of 19,477.87 m2, out of the gross plot area of 34,090 m2 and is a part of larger layout of Plots. The land holding of the original land owner as indicated in Annexure- R-1 was 50,900 m2. Out of this total land holding, 8,500 m2 was earmarked for acquisition by NHAI for National Highway- NH4. Accordingly, the same was acquired by NHAI. The balance land area of 41,100 m2 was purchased by 'Synergy Corporation', a company of numerous investors, some of whom opted out, while some decided to keep the property in proportion to their respective investments. The 'Synergy Corporation', which was the owner of Plot-A, transferred development rights to Naiknavare Profile Constructions Pvt. Ltd. vide registered deed dated 25/04/2015. Thus, as per the above distribution in 50,900 m2, only Plot- A admeasuring 34,091.78 m2 is gross plot area and net plot area is 19,477.87 m2 which remained for the development by erstwhile Naiknavare Profile LLP. As per the 2015 PMRDA rules, the proposed 12m. service road, 24m wide DP road and green belt located in the layout, as per the development plan, had to be deducted from the FSI calculations before receiving building sanction.
15. It is further submitted in this affidavit by the respondent No.13 that when the road area was handed over to the PMRDA, FSI of 1.0 was made available on the said Plot- A. Also, the Green Belt Area, adjoining to the Plot-A had to be deducted at the time of area calculations, as no FSI was then available for the same. After these deductions, Plot- A belonging to the respondent No.13-Naiknavare Profile Constructions Pvt. Ltd. admeasured 19,477.87 m2, on which the proposed residential project was sanctioned in 2016 and it is because of this reason that the net plot area of 19477.87 m2 of Plot-A has been mentioned as Plot-A in the EC Original Application No.07/2022(WZ) Page 16 of 32 application made in 2016. We have also verified this fact in the said EC and find that this is an area, which is mentioned therein, granted to the respondent No.13-PP.
16. It is further submitted in this affidavit by the respondent No.13 that the PMRDA, while sanctioning proposals on Plot in question, requires the history of the total land holding to be represented and hence the land area of the larger layout is mentioned to be 50,900 m2.
17. Much emphasis is laid by the learned counsel for applicant on this aspect that the respondent No.12-PMRDA had sanctioned the project for an area of 50,900 sq. mtrs., while in the EC, the area recorded is only 19,477.87 m2, which is discrepant. When we enquired as to what could be inferred from this discrepancy, he tried to convince us that the FSI at an area of 50,900 sq. mtrs. would be larger than on an area of 19,477.87 m2. This discrepancy ought to have been clarified by the respondent No.6- SEIAA at the time of grant of EC. But we do not find any force in the argument made by the learned counsel for applicant because respondent No.6-SEIAA had granted the EC on earlier date i.e. on 18.07.2016, while the respondent No.12- PMRDA had issued Development Permit and Commencement Certificate on 19.09.2018, wherein the total BUA is recorded as 50,900 sq. mtrs. We also find at this stage that the Development Permit and Commencement Certificate issued in Marathi language, which are annexed at page nos.38 to 43 of the paper book, are not translated in totality by the applicant and only part of which has been presented before us at page no.44 of the paper book in the form of its English translation, which cannot be treated to be correct. This has very careless approach on the part of applicant and would amount to concealing the full information from the Tribunal. Original Application No.07/2022(WZ) Page 17 of 32
18. We may also note here that the argument, which is raised by the learned counsel for applicant, is that if a larger plot area would have been mentioned by the SEIAA in the EC to be 50,900 sq. mtrs., in-stead of 19,477.87 m2, the FSI would have been larger and that would further go against the argument of the applicant.
19. It is further submitted in this affidavit by the respondent No.13 that the CC Certificate dated 21/11/2016 (copy is not found to have been enclosed) shows the plot area to be 50,900 m2, which seems to be an inadvertent mistake. The answering respondent is making development only for the gross plot area of 34091.78 m2 and net plot area of 19,477.87m2, belonging to the NPCPL. In the next CCs dated 13/11/2019 & 02/06/2021, which are found annexed at page no.477 of the paper book, the area of the plot has been revised by the respondent No.12- PMRDA from 50,900 m2 to 34091.78 m2 gross plot area.
20. With respect to the clarification pertaining to configuration of building, it is submitted by the answering respondent that the Project Proponent received an EC on 18/07/2016 for 6 Towers on Podium and 1 clubhouse with a total of 492 residential flats for the sanctioned built-up area of 51,587.80 m2. While granting this EC, SEAC-III made scrutiny for a total covered built-up construction area of 73,423.30 m2 (FSI + non-FSI). However, EC was restricted to the area sanctioned by the PMRDA at that time. The market forces and change in DC rules, which permitted additional FSI, resulted in changes in project design. Thereafter, the answering respondent made an application for expansion of the EC in February 2020 (amendment application), for a total covered built-up construction area of 92,328.80 m2 (FSI+Non-FSI). The said application has the same 6 Towers with no change in location on the proposed Podium. This application was first appraised in March 2020 during which the Original Application No.07/2022(WZ) Page 18 of 32 changes/revisions proposed in towers B2, A3, and B3 were shown and no non-compliance points were observed by the SEIAA. Despite Covid, the answering respondent continued the construction on the proposed 3 Towers A1, A2, and B1, out of the 6 towers that had received the sanction and EC, without any change in design. With the change in design, 2 Towers namely, A3 and B3 have been revised and accordingly sanction has been given by the respondent No.12-PMRDA, but no construction had been started on the project site for A3 and B3.
21. It is further submitted in this affidavit by the respondent No.13 that for tower/building B2, due to the market forces and change in the DC rules, the answering respondent was compelled to change design and to reduce the size of tenements. Thereby, on each floor, respondent No.13 had accommodated 6 smaller flats instead of 4 large flats without changing the location of the tower on the podium. This change in design is done as a response to the economic affordability of customers, post the pandemic.
22. It is further submitted in this affidavit by the respondent No.13 that the answering respondent began construction of Tower B2, which is constructed on a Podium connecting the towers A1, B1, B2, A2, B3 & A3, which had been approved by the EC granted to the answering respondent in 2016 and was also sanctioned by the PMRDA. Hence, there was no change in the building footprint on the Mother Earth and no additional impact had been created on the environment. Neither the area constructed nor the number of tenements constructed till date have exceeded than what was granted to the Project Proponent in the EC of July 2016. The change in design increased the floor space of building B2 only by 3%, above the level of Podium, which was already approved and granted to the answering respondent in the EC. However, concerning the footprint on the Original Application No.07/2022(WZ) Page 19 of 32 earth, there was no increase. The reasons for continuing with the construction, with this minor change in design, were felt to be justified in the face of the Covid pandemic, as it involved the issue of an existing labour force of 200 persons living in the labour camp. If the construction was stopped, they would have otherwise migrated back to their villages, causing social issues that the country faced.
23. It is further submitted in this affidavit by the respondent No.13 that the project in question has been built in full conformity with the PMRDA DCR and only after receiving the required sanction. The layout was sanctioned on 05/09/2014, wherein the total land was sub-divided into subplot nos.A, B & C. Revised Layout was sanctioned on 21/11/2016 and the Google Satellite Image showed that there was no construction on-site before 20/07/2016.
24. With respect to the allegation of construction being in contravention of Sanctioned layout and the EC condition, it is submitted that the construction on-site is as per the Updated Sanctioned Layout. The revised sanction was obtained on 13/11/2019 for the additional FSI available as per the changed DC rules. Soon after that, Amendment to EC was applied in February 2020 for a total covered built-up construction area of 92,328.80 sq. mtrs. Also, Consent to Establish was granted on 24/04/2017 by the MPCB. Consent to Operate was granted on 24/03/2021. All these documents have been filed as Annexures- 7, 9 & 11 respectively.
25. It is further submitted in this affidavit by the respondent No.13 that all the conditions stipulated in the EC were taken into consideration and mitigation measures were also put in place. Existing Borewell was present on-site, which was used by the previous owner and the same was not used Original Application No.07/2022(WZ) Page 20 of 32 for construction. Tanker water was being used for the purpose of construction activities. The Project Proponent had obtained permission from the Irrigation Department to lift water from the river, which was further treated in a WTP (Water Treatment Plant) for domestic use. All the other requirements as per the granted EC-2016, like UGWP, STP, OWC, Solar Water Heater, etc. have been provided on-site.
26. Point-wise replies to the allegations made in the present application are contained from page nos.388 to 413 of the paper book, in which all the allegations have been refuted and it is reasserted that there is no violation committed by the Project Proponent in any manner. Therefore, it is not being considered proper to reproduce all those averments in denial for the sake of brevity.
27. From page no.414 onwards, the Joint Committee Report has been dealt with by the Project Proponent.
28. With respect to the observations made by the Joint Committee in its Report at para no.4.0(i), the same has been either agreed/accepted or it is mentioned that nothing is required to be said in that regard.
29. With respect to the observation made by the Joint Committee in its Report at para 4.0(ii) that the Project Proponent obtained first plinth check certificate dated 01/06/2017 for construction of club house, which was constructed after obtaining prior EC from SEIAA, Maharashtra dated 18/07/2016 and CTE from MPCB dated 24/04/2017. Whereas, club house has not been stipulated/mentioned in sr. no.16 (no. of buildings & its configurations) of the aforesaid EC dated 18/07/2016. However, club house has been mentioned in the layout sanctioned vide sanction plan dated 21/11/2016. In this regard, it is submitted by the respondent No.13-Project Proponent that the EC dated 18/07/2016 was approved on Original Application No.07/2022(WZ) Page 21 of 32 the basis of the conceptual plan of 2014. Club House was also included therein and was part of the said conceptual plan, and this is also evident from the mention of the clubhouse and swimming pool at s.nos.7 & 8 of clause no.25 in the chart for the total water requirement column, although the same has also been shown in CS (Consolidated Statement) submitted by the PP in the application for EC in 2016.
30. The above-mentioned explanation appears to be justified because when at clause no.25 of the EC, there is mention made of Club House and Swimming Pool then certainly they ought to have been incorporated in the Column No.16 of the EC by the SEIAA. But it appears that the same has been omitted from being mentioned or it could be likely that the major construction works were shown and not the smaller one such as Club House, Security Cabin, Swimming Pool etc.
31. The Joint Committee in its Report at serial no.4.0 (iii) observed that the PP made an application to SEIAA, Maharashtra for amendment in existing EC dated 18/07/2016 with proposed TBA of 92,328.80 sq.m (FSI- 51,727.43 & Non FSI- 40,601.37 sq.m) on 13.02.2020 & 17.02.2020. However, grant of amended EC for the proposed expansion is pending before the SEIAA, Maharashtra. Meanwhile, the PP obtained recent/revised layout sanction vide sanctioned plan dated 02/06/2021 for TBA-65439.02 sq.m (FSI- 39829.96 sq.m & Non FSI- 25609.60 sq.m), which is observed to be more than the TBA granted to the extent of 51,587.80 sq.m in earlier EC dated 18/07/2016. Further, the PP obtained plinth check certificate dated 22/02/2022 for building A3 & B3 and also obtained completion certificate dated 28/07/2021 & 06/12/2021 for building B1 & A1, which are as per the aforesaid sanction plan dated 02/06/2021. From the above, it is observed that the PP without obtaining amended EC for the proposed expansion of project (from existing TBA of Original Application No.07/2022(WZ) Page 22 of 32 51,587.80 sq.m to 92,328.80 sq.m) obtained the aforesaid plinth check certificate and building completion certificates. However, the total current construction area of the project as per the Architect Certificate dated 03/06/2022 is TBA: 51,122.25 sq.m (FSl-23086.46 sq.m & Non FSI- 28053.79 sq.m), which is less than the granted TBA of 51,587.80 sq.m of earlier EC dated 18/07/2016.
32. With respect to the above observation made by the Joint Committee, a clarification has been submitted by the Project Proponent that the revised sanction has been obtained as per the prevailing rules. No actual construction was done exceeding the granted TBA limit of 51587.80 m2, as per 2016 EC. No change in building A1, B1 & A2 in profile, number of tenements or height of building is effected because whatever was stipulated in respect of these buildings in conceptual plan for EC, the same remained till completion of the construction. Building A3 and B3 are planned on a podium, which has been shown in the conceptual EC plan as well as building sanction plans issued by the PMRDA from 21/11/2016 to 02/06/2021. Hence plinth checking was required at podium level. No construction above the podium has been commenced. The construction is restricted to 51,122 m2, which is < 51,587.80 m2 granted under 2016 EC.
33. We find that the observation made by the Joint Committee at para no.4.0(iii) above has been directly replied by the Project Proponent, which has been mentioned by us above and it is quite evident from the said explanation that there is no construction found beyond the total BUA of 51,587.80 m2, which was granted under 2016 EC because the area, which has been built up till then, was 51,122.25 sq.m, which is well within the said stipulation.
Original Application No.07/2022(WZ) Page 23 of 32
34. The observation made by the Joint Committee in its report at para no.4.0 (iv) is that as per the various layout sanctioned plans of the project in question, it is observed that the PP has changed the building number & configurations, which are different from that of the EC granted dated 18/07/2016. However, total current construction area of the project as per the Architect Certificate dated 03/06/2022 (Annexure-4) is TBA:
51,122.25 sq.m (FSI-23086.46 sq.m & Non FSI-28053.79 sq.m), which is less than the granted TBA of 51,587.80 sq.m as per EC dated 18/07/2016.
35. With respect to our observation, it is responded by the answering respondent that both the EC of 2016 i.e. the Master layout and sanctions dated 21/11/2016 and 02/06/20201 respectively, show that there is neither change in the number of buildings nor in their locations.
36. We could not understand as to what the Joint Committee in its Report wanted to communicate at point no.4.0 (iv) in terms of the violation at the end of the Project Proponent, as it appears to be a simple observation of the situation.
37. The Joint Committee has further observed at point no.4.0(v) that the Project Proponent has not provided wastewater treatment system consisting of MBBR technology as per the s. no. 1 A of Schedule-I (i.e. terms & conditions for compliance of water pollution control) of the CTO dated 24/03/2021 and also as per s. no.30 of the EC conditions dated 18/07/2016, instead PP has provided wastewater treatment system consisting of phytorid treatment system and tertiary treatment facility consisting of pressure sand, filter, activated carbon filter & ozonation. In this regard, the Project Proponent has submitted that the current phytorid treatment system has been installed considering that there were lesser Original Application No.07/2022(WZ) Page 24 of 32 number of occupants and hence it did not justify to install MBBR technology. On completion of the project & full occupancy, the said phytorid treatment will be converted into MBBR technology. By this, the Project Proponent has saved the excess use of electricity and power requirements to treat the low volume of sewage. It is very difficult to operate the complete capacity of instruments of the proposed MBBR with very low volume of sewage.
38. At this stage, we may mention about this observation of the Joint Committee and response of the Project Proponent that there does not appear to be any violation in regard to setting up of waste water treatment system because the technology, which has been employed by the Project Proponent, at this stage, seems to be in proportion to the local population of occupants and moreover, in the additional affidavit dated 21.02.2024 of respondent No.13, in which at internal page no.4, it is recorded that the Advocate for the MPCB during hearing on 20.02.2024 had orally informed that "constructed wetland technology" is the one that was approved by the NEERI and the Ministry of Drinking Water & Sanitation. Constructed Wetland Technology is the same as 'Phytorid Treatment System'.
Therefore, we are of the view that the system, which was put in place, is now found to be good enough keeping in view the total number of occupants in the building in question and that the Project Proponent has also undertaken to convert the same when deemed necessary.
39. We find from the EC, granted on 05.01.2024 to the respondent No.13- Project Proponent, that serial no.27 of that EC pertains to Sewage and Waste and they are permitted to adopt the STP technology "Constructed Wetland". Therefore, it cannot be said that there is any violation on the part of the Project Proponent in this regard, as the PP has already set up that technology in the project in question as per its affidavit Original Application No.07/2022(WZ) Page 25 of 32 dated 21.02.2024 and photographs of the said system, which are annexed at page nos.7 to 13 of this affidavit, are also made part of this affidavit.
40. With respect to recommendation made by the Joint Committee at Point No.6.0 (A) to the effect that in view of the violation w.r.t. PP obtaining Plinth Check Certificate dated 22/02/2022 for building A3 & B3 and obtaining Completion Certificates dated 28/07/2021 & 06/12/2021 for building B1 & A1, as per sanction plan dated 02/06/2021 for TBA of 65439.02 sq.m, which is exceeding the present TBA of 51,587.80 sq.m as per earlier EC dated 18/07/2016:- (i) action may be taken against the PP by the respective State Pollution Control Board under the provisions of Section 19 of the Environment (Protection) Act, 1986; (ii) Appraisal of the project under EIA Notification, 2006 as outlined under serial no.(iii) (as above, given at paragraph 5- appears to be of the Joint Committee Report) along-with penalty for the expansion of project i.e. 1% of project cost (attributable to the expansion activity) incurred up to the date of filing application along-with EIA/EMP Report PLUS 0.25% of the total turnover (attributable to the expanded activity/capacity) involved during the period of violation may be levied and deposited with the respective State Pollution Control Board. In this regard, the respondent No.13- Project Proponent has submitted that it is not liable for any action because the construction of the site has not exceeded 51,587.80 m2. The number of tenements is also within 492 residential flats, as per the Environmental Clearance granted on 18.07.2016. There was no change in buildings where completion had been taken from 2016 to date. Plinth Checking Certificate had been obtained only for podium level, which was sanctioned in EC granted. No further work above the podium has been initiated (Google image dated 11/08/2022 is annexed as Annexure -14). The amended EC applied for is pending with SEAC & SEIAA since 2020.
Original Application No.07/2022(WZ) Page 26 of 32
41. We are of the view that the Joint Committee Report appears to be erroneous in respect of holding the Project Proponent to have caused a violation only because TBA of 65439.02 sq.m area is being shown in the sanctioned plan dated 02/06/2021 for the total project, whereas in the EC dated 18.07.2016, the total BUA, for which sanction was given, is recorded as 51,587.80 sq.m. As per the Joint Committee Report itself, nowhere has it been stated therein that the Project Proponent exceeded construction beyond 51,587.80 sq.m. Therefore, to hold the Project Proponent accountable for any construction beyond the said limit would not be appropriate only because the sanctioned plan was of larger TBA i.e. 65439.02 sq.m. Therefore, we are satisfied with the reply submitted by the respondent No.13- Project Proponent in this regard.
42. The next point no.6.0(A)(iii), which has been observed by the Joint Committee in its report that PMRDA may examine the Architect Certificate dated 03/06/2022 including verification of current constructed total built up area (as on 03/06/2022) and deviation/changes, if any. As per the latest Layout Sanction(s) granted by the PMRDA and in case it is found that there was any deviation/changes if any, SEIAA may take necessary action as per the aforesaid SOP for identification and handling of violation cases under the EIA Notification, 2006 issued by MoEF&CC's OMs dated 07/07/2021 and 28/01/2022. In this regard, reply has been submitted by the respondent No.13- Project Proponent that PMRDA has given a letter dated 13/06/2022, the figures given therein corroborate with those given in the Architect Certificate dated 03/06/2022.
43. We do not find the PMRDA letter dated 13/06/2022 and Architect Certificate dated 03/06/2022 having been annexed with this reply affidavit for the sake of perusal. It is a bulky compilation, therefore, it was the duty Original Application No.07/2022(WZ) Page 27 of 32 cast upon the respondent No.13 to point out these documents by indicating pages thereof where these documents are appended.
44. At Point No.6.0(B) of the Joint Committee Report, it is observed that the PP is not providing particular type of wastewater treatment system as laid down in CTO dated 24/03/2021 and also as per serial no.30 of the EC conditions dated 18/07/2016. Therefore, MPCB may direct the PP to provide wastewater treatment system consisting of MBBR technology in compliance to the conditions of serial no. 1A of Schedule-I (i.e. terms & conditions for compliance of water pollution control) of the above consent and EC conditions. We have already dealt with this issue (supra), hence need not be taken again.
45. At Point No.6.0(C) of the Joint Committee Report, it is observed that the PMRDA shall ensure the compliance for installation of solar water heating panels for the remaining buildings and tree planation as per the EC conditions before issuance of final occupancy certificates to the Project Proponent. In this regard, the respondent No.13- Project Proponent has submitted that the PP is bound to carry out these and undertakes to install solar water heating panels for the remaining buildings and tree plantation as per the EC conditions before issuance of the final occupancy certificate.
46. Rest of the issues, which are mentioned in this reply affidavit by the respondent No.13, are never raised during the argument by the learned counsel for applicant, hence we do not consider it necessary to take those facts into consideration.
47. During the argument, the learned counsel for applicant has pointed out an issue with respect to change in configuration by the Project Proponent in the building in question and has drawn our attention to page Original Application No.07/2022(WZ) Page 28 of 32 no.23 of the main petition, regarding which we have already dealt with (supra). We may, however, deal with the argument, which was specifically raised by him, with respect to applicability, in the case in hand, of Office Memorandum dated 05.05.2022, which relates to clarification having been issued by the MoEF&CC with regard to non-requirement of EC amendment due to change in conceptual plan arising out of statutory requirements in building and construction sector, in which in para no.5, following is recorded:-
"5. Accordingly, matter has been examined and it has been decided that any change in configuration/planning/design of the appraised building Project for which EC was granted shall not require amendment of EC, subject to no change in (i) Built Up Area (ii) Floor Area Ratio (FAR)
(iii) change in exterior spaces green belts, parking, walkways and driveways that are covered including attics and outdoor sports courts Further there shall be no change in the designated use of the building, number of dwelling units, height of the building, number of floors & basements and total excavation of earth of the building/construction/ township/ area development project so as not to require any changes in the already approved Environmental Impact Analysis (EIA) and Environmental Management Plan (EMP)."
48. Having drawn our attention to the above-mentioned OM, it is argued by the learned counsel for applicant that it would amount to interpretation that if there is any change in exterior spaces of the building in question, in that condition, an amendment in the EC would be required. But in the present case, despite their being changes in the exterior spaces of the building in question, the Project Proponent has not obtained any EC. Therefore, whatever changes have been made beyond the scope of original EC, they should be ordered to be demolished.
49. In this regard, we would like to mention here that we had made a query from the learned counsel for applicant, as to where is the evidence on record to show that there were any changes made by the Project Proponent in exterior spaces of the building in question, he could not show any evidence in that regard, except saying that Plinth Certificate has been Original Application No.07/2022(WZ) Page 29 of 32 granted for construction above podium, which should be treated to be change in exterior spaces of the building in question. We are not inclined to accept this argument raised by the learned counsel for applicant.
50. We may also mention here that a Summary in tabular form has been submitted by the respondent No.13- Project Proponent in respect of the Environmental Clearance (EC) granted to the Project Proponent along-with the Consent to Establish, Consent to Operate and Occupancy Certificates from time to time, that summary, which is for the sake of identification, is marked as Annexure-"X", was provided to the learned counsel for applicant in order to verify whether the facts mentioned therein were correct or erroneous. On the date of argument, he did not show any error in these dates and details mentioned in this document. Therefore, we have taken these dates as well as information mentioned therein to be correct.
51. He tried to impress upon us that since the first EC was granted to the Project Proponent on 18.07.2016, some construction had already been made by the Project Proponent. The 2nd EC dated 09.01.2023 was also granted after the construction had happened. But when we enquired from the learned counsel for applicant as to where is the evidence to that effect, he could not show. Therefore, only because he alleged orally that there was violation in this regard, cannot be taken to be a gospel truth for want of evidence.
52. From the side of respondent Nos.8 & 9-MPCB, reply affidavit dated 17.11.2022 has been filed, wherein no violations have been found to have been committed by the Project Proponent.
53. The learned counsel for respondent Nos.8 & 9-MPCB has also apprised us that there was no gap in dates in obtaining the Consents to Establish and Consents to Operate. Therefore, no rejoinder has been filed Original Application No.07/2022(WZ) Page 30 of 32 from their side against the reply affidavit of respondent No.13-Project Proponent. Therefore, the contents of the said affidavit are found to be correct.
54. From the side of respondent No.5- SEIAA, reply affidavit dated 25.04.2023 has been filed, wherein details of the various meetings of SEIAA and SEAC are given, where-under the EC/amended EC granted to the Project Proponent from time to time are mentioned. We do not find any lacuna to have been pointed out to be there at the end of the Project Proponent. The last amended EC, which has been granted by the SEIAA, is dated 09.01.2023, wherein total BUA is recorded as 92,328.80 m2. We are of the view that at the time of grant of this EC, the terms and conditions of all the earlier ECs must have been verified and it must have been ensured by them that all the stipulated terms and conditions would have been followed/complied with by the Project Proponent, then only EC would have been granted. Therefore, the allegations made by the applicant that there were violations of the terms and conditions of EC at the end of the Project Proponent does not appear to be a valid allegation. It appears to have been levelled lightly without collecting any proper evidence at his end.
55. From the side of respondent No.2- Central Ground Water Authority (CGWA), reply affidavit dated 20.02.2024 has been filed, wherein, in para no.9, it is mentioned that the Project Proponent has obtained NOC from them with respect to the project in question.
56. In view of above analysis made by us, we do not find any infirmity in the project in question nor did we find any non-compliances of the terms and conditions stipulated in the EC, shown from the side of the learned counsel for applicant. It may also be made clear that in four ECs, which have been granted to the respondent No.13- Project Proponent from time Original Application No.07/2022(WZ) Page 31 of 32 to time, none of them has been challenged from the side of applicant at relevant time within the prescribed limitation period.
57. With the above directions/observations, we deem it appropriate to dispose of this application and is accordingly disposed of.
58. All pending applications, if any, also stand disposed of. No order as to cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM March 22, 2024 Original Application No.07/2022(WZ) P.Kr Original Application No.07/2022(WZ) Page 32 of 32