National Green Tribunal
Mr. Tanaji Balasaheb Gambhire vs Union Of India on 22 February, 2023
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
ORIGINAL APPLICATION NO. 28 OF 2019 (WZ)
Mr. Tanaji Balasaheb Gambhire,
Age : Adult, Occupation : Self-employed,
R/o Flat No.16, CTS-296, Laxmi Apartment,
Near Shivaji Maratha High School,
White House Lane, Shukrawar Peth,
PUNE - 411 002 .....Applicant
Versus
1. Union of India,
Through Secretary,
Ministry of Environment, Forests and
Climate Change,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi - 110 001
2. Chief Secretary,
Government of Maharashtra,
Annex Building,
Mantralaya, Mumbai - 400 032
3. The Principal Secretary,
Environment Department,
Government of Maharashtra,
Room No.217, 2nd Floor, Annex Building,
Mantralaya, Mumbai - 400 032
4. Mr. Satish M. Gavai,
Former Principal Secretary of DoE and
Member Secretary, SEIAA,
Presently Ministry of Industry - Government
Of Maharashtra, Annex Building,
Mantralaya, Mumbai - 400 032
5. State Level Environment Impact Assessment
Authority - Maharashtra (SEIAA), through
Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai - 400 032
6. State Expert Appraisal Committee-III
Maharashtra (SEAC-III)
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Mumbai - 400 032
7. Maharashtra Pollution Control Board,
Through Member Secretary,
Kalpataru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion (E ),
Mumbai - 400 022
Page 1 of 66
8. Maharashtra Pollution Control Board,
Through Regional Officer,
Jog Centre, 3rd Floor, Mumbai-Pune Old Highway,
Wakadewadi, Pune - 411 003
9. The Secretary,
Urban Development Department,
Government of Maharashtra,
4th Floor, Annex Building,
Mantralaya, Mumbai - 400 032
10.Pune Municipal Corporation,
Through Commissioner,
Shivaji Nagar, Pune - 411 005
11.Building Permission Department - PMC
Through City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
12.Mr. Prashant Waghamare-City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
13. Collector of Pune,
As Collector and President of District
Environment Protection Committee, Pune,
Collector Office, Bund Garden,
Pune - 411 001
14. Ministry of Defense,
Through Secretary,
Room No.101-A, South Block, MoD,
New Delhi - 110 011
15.General Officer Commanding-in-Charge,
Southern Command,
Through the Station Commander,
Station Headquarters, Dakshin Maharashtra
Sub Area, Southern Command,
Camp, Pune - 411 001
16.M/s Raviraj Bokadia Creative,
A Partnership Firm registered under the
Partnership Act, 1932, having registered office
At Office No.1 to 5, Second Floor,
Millennium Star, Next to Ruby Hall Clinic,
Dhole Patil Road, Pune - 411 001,
Through its Partners
16A. Ravindra Naupatlal Sakla
16B. Raviraj Abhinandan Associates LLP ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Applicant-in-Person
Respondents : Mr. Rahul Garg, Advocate for R1 and R-10 to R-12
Mr. Aniruddha Kulkarni, Advocate for R-3, R-5 & R-6
Ms. Manasi Joshi, Advocate for R-7 and R-8
Mr. Saket Mone, Advocate along with Mr. Abhishek
Salian, Advocate for R-16
Page 2 of 66
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Reserved on : 18.01.2023
Pronounced on : 22.02.2023
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JUDGMENT
1. This Original Application has been filed to get the Environmental Clearance (for short, "EC") dated 15.06.2018 declared ab initio void as the same is revised/modified/amended version of the EC dated 10.11.2017 granted by Pune Municipal Corporation ("PMC", for short), on the basis of quashed Environmental Impact Assessment (EIA) Notification dated 09.12.2016 by order dated 08.12.2017 passed by this Tribunal in Original Application No.677 of 2016; a direction is prayed to be issued to the respondents to demolish the illegal structures at the site in question and restore the area to its original position; a direction is prayed to be issued to respondent No. 16 - M/s Raviraj Bokadia Creative (Project Proponent) to deposit the amount of compensation in Environment Relief Fund; further it is prayed that respondent No.16 - Project Proponent be directed to deposit the exemplary and deterrent special damages on account of violations of Environment Enactments by doing concretization of space resulting in no plantation of trees;; respondent No. 5 - SEIAA and respondent Nos.7 and 8 - MPCB be directed to initiate appropriate action against respondent No. 16 - Project Proponent, including prosecution for violation of EIA Notification, 2006 and other applicable pollution control laws; direct respondent No.2 - Chief Secretary, Govt. of Maharashtra to conduct inquiry against the officers responsible for not following the mandatory provisions of the EIA Notifications and other applicable environment enactments and take appropriate legal action against them; respondent No.2 - Chief Secretary, Govt. of Maharashtra be directed to take appropriate action against respondent No. 4 - Mr. Satish M. Gavai for recommending, granting the EC in violation of EIA Notification, 2006 and recover the amount of damages/fine/cost from his Page 3 of 66 salary; further it is prayed that respondent No. 9 - Secretary, Urban Development Department, Govt. of Maharashtra be directed to initiate departmental enquiry against respondent No.12 - Mr. Prashant Waghmare, City Engineer for not having taken action despite notice of environmental violations and recover the amount of damages/fine/cost from his salary.
2. The facts of this, in brief, are as follows:-
This Original Application is filed as per liberty granted vide order dated 11.01.2019 passed by this Tribunal in Original Application No.1 of 2019 as the EC/communication dated 15.06.2018 granted by SEIAA to respondent No.16 - Project Proponent within two days without mentioning the same in Agenda of 132nd Meeting and granting continuation/amending/expansion to the EC dated 10.11.2017 granted by PMC as per the S.O. 3999 (E ), EIA Notification, 2016 (which has been quashed by this Tribunal in Original Application No.677 of 2016 vide order dated 08.12.2017). The present application is against the EC/communication dated 15.06.2018 granted by SEIAA without authority and thereby committed gross infringement of provisions of the Environment (Protection) Act, 1986 read with EIA Notification, 2006 along with the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 for carrying out illegal building construction in the Project "93 Avenue" without prior EC and Consent to Establish. The said project is situated in Survey Nos.93A/1A/2, 93A/2, 93A/3, 93A/4 of village Wanwadi, Taluka Haveli, District Pune. The total project land is admeasuring 12,700 sq.mtrs from the above parts of survey numbers but the same is not correct area as encroachment has been made in the adjacent area reserved for other purposes. The Project Proponent has undertaken construction of the commercial building phase-wise from Phase-I to Phase-III. The Project Proponent - respondent No.16 has filed measurement plan dated 08.06.1981 issued by the City Survey Office along with remarks of the Assistant Engineer, Development Plan Division of PMC, which Page 4 of 66 measurement plan is 21 years old surprisingly done by the Secretary of Indian Christian Cemetery, absolutely not related to this project. It was the duty of the Project Proponent to submit the latest plan revealing the exact site condition and changes occurred therein due to various reasons.
The project site is included under "No Development Zone/Agricultural Zone" after deletion of Garden Reservation No.M-324 from Development Plan sanctioned on 05.01.1987 by PMC, but the Project Proponent carried out the construction of Mall. The Project Proponent has relied upon the order dated 15.12.2004 passed by the Additional Collector, Pune granting permission to change the use of said larger land from Agricultural to Non-Agricultural (residential) use. The Project Proponent without change in the Development Plan declared that his land had been converted in residential zone. This conversion from No Development Zone to Residential Zone for construction of commercial structure has been done without obtaining permission from the concerned authority. As per the D.C. Regulations, 1987 of PMC, there is prohibition for construction of shops and other commercial activities on Pune-Solapur road (NH-9) starting from Swargate Chowk to PMC limits at Hadapsar. The PMC officers have conveniently neglected to enforce this prohibition and allowed the Project Proponent to proceed with purely commercial activity in violation of D.C. Rules and provisions of the MR&TP Act, 1966. The DC Regulations were modified on 05.06.1997 and out of 58 restricted roads, 29 roads were allowed to make commercial developments of showrooms having no access to the roads, which has been mentioned in the Proviso. This shows that the present project is in complete violation of clause (i) activity.
3. Further, it is submitted in the Original Application that the Project Proponent - respondent No.16 has filed manipulated measurement plan dated 08.06.1997 issued by the City Survey office, which can be seen as the measurement plan dated 08.06.1997 does not show the specification table pertaining to the land use, which was present in the measurement plan dated 08.06.1981 for development. The Page 5 of 66 Project Proponent has relied upon the order dated 02.06.2001 passed by the Additional Collector, Pune for payment of Rs.93,98,968/- on account of Nazarana/unearned income towards the change of tenure use from Agricultural to Non-Agricultural (Residential) use. This Non-Agricultural permission ought not to have been granted on "no development zone"
unless the Development Plan of the city had been changed. The Additional Collector, without going into this aspect that the land is no development zone, has proceeded to change land use. The Non-
Agricultural permissions were issued only for residential buildings but actual development is of commercial mall. The revised Development Plan of 2007 never showed that the land is in Commercial Zone.
4. It is further submitted that the PMC has issued 14 sanctions, which are as follows:-
Sr. Commencement Certificate No. Date of sanction No.
1. DPO/2007/VI/55 03.01.2001
2. CC/4874/2000 30.03.2001
3. DPO/4740/VI/78 29.03.2001
4. DPO/5128/VI38 06.09.2003
5. DPO/3451/VI/36 07.08.2004
6. DPO/10023/VI/73 08.03.2006
7. CC/0005/06 01.04.2006
8. DPO/SEC6/0051/07/118 08.10.2007
9. CC/3020/07 04.01.208
10. CC/2634/16 22.11.2016
11. CC/0527/17 25.05.2017
12. CC/3314/17 12.03.2018
13. CC/3309/17 12.03.2018
14. CC/0589/18 07.06.2018
5. It is submitted that the Project Proponent - respondent No.16 has obtained sanction on 30.03.2001 for residential development and Page 6 of 66 thereafter revised the sanction for buildings and layout for 14 times, vide orders dated 01.04.2006, 04.01.2008, 22.11.2016, 25.05.2017 and 07.06.2018. The Project Proponent has procured the revised layout sanctions for substantial changes as per the following dates:-
"DPO/2007/VI/55 dated 03.01.2001, revised vide DPO/4740/VI/78 dated 29.03.2001, further revised vide DPO/5128/vi/38 DATED 06.09.2003, further revised vide DPO/3451/VI/36 dated 07.08.2004, further revised vide DPO/10023/VI/73 dated 08.03.2006, further revised vide DPO/SEC6/0051/07/118 dated 08.10.2007, further revised vide DPO/SEC6/0051/07/118 dated 08.10.2007 and CC/3314/17 dated 12.03.2018"
6. According to the applicant, the Project Proponent has changed his residential proposal to commercial vide revised layout sanction dated 07.08.2004. As per the Commencement Certificate issued under the dC Rules, the CC permission is valid only for one year. Thereafter, the PMC issued revisions vide Commencement Certificate dated 22.11.2016, after lapse of eight years from last permission dated 04.01.2008 without taking any legal recourse under the Maharashtra Regional & Town Planning Act, 1966 (MR&TP Act). The PMC has not issued any revision or permission from 04.01.2008 till 22.11.2016. Therefore, as per Sections 44 and 45 of the MR&TP Act, the sanction issued to the present project became invalid, as the building sanction commencement is valid only for one year.
7. It is submitted by the applicant that the Project Proponent has procured Plinth Check Certificate on 21.07.2007. The net plot area shown by the Project Proponent in various sanctions is as follows:-
Commencement Net Plot Permissible TDR claimed Certificate Area TDR (Sq. Mtrs.) (Sq. Mtrs.) CC/0005/06 10938.41 0 0 01.04.2006 Page 7 of 66 DPO/SEC6/0051/07/118 10938.41 40% 4375.36
08.10.2007 4375.36 CC/3020/07 04.01.2008 10938.41 40% 3370.00 4375.36 CC/2634/16 22.11.2016 10938.41 40% 3370.00 4375.36 CC/0527/17 25.05.2017 10938.41 1.40 3370.00 17054.18 CC/3314/17 12.03.2018 11504.35 1.40 Slum-2100 16106.09 Reserv-5969.96 CC/0589/18 07.06.2018 11504.35 1.40 Slum-2100 16106.09 Reserv-7418.15
8. It would emerge from the above table that the net plot area is increased from 10938.41 sq.mtrs. to 11504.35 sq.mtrs., which is completely illegal. At the time of calculating the net plot area in Revision dated 07.06.2018, the Project Proponent has not reduced the open space and transformer area from net gross area. Therefore, the net plot area shown to the extent of 11504.35 sq.mtrs is illegal but the same was approved by the PMC overriding the auto-DCR generated only to benefit the Project Proponent.
9. The Transferable Development Rights (TDR) loading is increased from 40% to 140% i.e. from claimed 4375.36 sq.mtrs. to 16106.09 sq.mtrs. The TDR loading shown is 9518.15 sq.mtrs. (Slum 2100 + reservation 7418.15 sq.mtrs.) against illegal TDR claim of 16106.09 sq.mtrs. The Project Proponent has utilized TDR for 45 Mtr. D.P. Road widening on an area 518.44 sq.mtrs. to the extent of 1036.88 sq.mtrs. and further the Project Proponent has utilized TDR for an area of 677.21 sq.mtrs. but road widening areas are not handed over to the PMC, which is totally illegal and in violation of DC Rules. The Project Proponent has claimed net plot area to the extent of 11504.35 sq.mtrs. without excluding recreational open space of 1218.15 sq.mtrs. for the computation of FSI and TDR instead of 10938.41 sq.mtrs. The development started in the year 2000 with the applicability of DC Rules Provisions of 1987 and therefore, the Project Proponent cannot take benefit of new DC Rules, 2017 merely because of non-issuance of Page 8 of 66 occupancy certificates. The Project Proponent has claimed FSI to the tune of 1.25 and TDR 1.40% of net plot area, which is totally illegal as these loadings will give counterblast to the provisions of occupant load and tenement statements. Moreover, purely commercial development on Pune-Solapur road is totally illegal.
10. It is further submitted in the application that as per the DC Rules, 1987, the ramp slope must be in the form of 1:10 but the Project Proponent has provided only 1:5 ramp slope, which is harmful for smooth vehicle movement up and down and can cause damage to the life of passengers/visitors . Considering the ramp slope of 1:5, it is required to close the basement permanently.
11. It is submitted that the Project Proponent has changed residential proposal to commercial vide revised layout sanction dated 07.08.2004, showing floors B+G+5 having height 25.61 Mtrs. with front and rear margin space 7.5 Mtrs and the side marginal space 9.00 Mtrs. The actual height of the building is more than 25 Mtrs., but the Project Proponent has shown only 23.98 Mtrs., therefore, marginal spaces for the present building should be more than 7.5 Mtrs. The Project Proponent himself in EC dated 17.10.2017 has admitted that the turning radius for fire tender movement is 7.5 Mtrs., but the marginal space to this building is less than 6 Mtrs. The front marginal space is 3 Mtrs, side marginal space and rear marginal space is 6 Mtrs and side marginal space at open space-3 is 3 Mtrs as shown in the sanctioned plan dated 07.06.2018. Therefore, it is apparent that only 3 Mtrs side marginal space is provided at open space-3 instead of 7.5 Mtrs marginal space. The side margin is less than 3 Mtrs at various points of marginal spaces around the buildings, therefore, the fire tender movement cannot be achieved. The calculation of net plot area is flawed, which is revealed from the approved plan dated 07.06.2018 and the condition No.22 of the EC dated 10.11.2017 for maintaining turning radius for easy access for fire tender movement from all around the building, excluding the width for plantation is 7.5 Mtrs, which is not maintainable at all. Page 9 of 66
12. It is submitted that the project in question is sharing common boundary wall with Defense Establishment but No Objection Certificate has been obtained from the Ministry of Defense as per Section 7 of the Works of Defense Act, 1903. On a complaint made by the applicant on 01.10.2018, the Defense Establishment has initiated action against the Project Proponent. The Project Proponent has submitted false submission in form-1 that there is no Defense installation within 15 kms. The Project Proponent has made excavation on the plot for construction of commercial building. Therefore, it was necessary for him to pay royalty to the Mining Department under Collector, Pune, which has not been done and hence, the Project Proponent has duped the exchequer.
13. It is laid down in EIA Notification, 2006 that the building project having BUA of more than 20,000 sq.mtrs would require EC. The present project has potential of BUA of more than 20,000 sq.mtrs. from the beginning i.e. 04.01.2008, therefore it was mandatory for the Project Proponent to obtain prior EC, but without having procured it, the Project Proponent had carried out construction from 2007 to 2010 and then the construction work was stopped for unknown reasons. The Project Proponent obtained plinth check certificate for construction under violation on 21.07.2007. The MoEF&CC has issued Notification dated 04.04.2011 clarifying the EIA Notification, 2006 for the total built up area for the purposes of obtaining EC under EIA Notification, 2006, which includes all commercial area of all floors. The respondent No.10 - PMC had imposed condition on the Project Proponent to obtain EC and consents from the State Pollution Control Board, which is evident from the following details in tabular chart:-
Sr. Commencement No. Date Condition BUA
No. No.
1 CC/2634/16 22.11.2016 35938.2
2 CC/0527/17 25.05.2017 19 32744.95
3 CC/3314/17 12.03.2018 27 47454.97
4 CC/0589/18 07.06.2018 4 49765.13
Page 10 of 66
14. It is submitted by the applicant that the Project Proponent carried out the construction for total BUA of more than 20,000 sq.mtrs. after revalidation of plans 22.11.2016 and before illegal EC dated 10.11.2017 without caring for causing damage to the environment.
15. The MoEF&CC issued Notification dated 09.12.2016 as a counter blast to original EIA Notification dated 14.09.2006, which was issued to help polluters who had not obtained prior EC and started their scheduled activity. The Project Proponent got an opportunity to get the illegal constructions legalized under the Notification dated 09.12.2016 for grant of EC which has been illegally granted by the PMC. The Project Proponent had already crossed limit of 20,000 sq.mtrs. BUA well prior to year 2017 and it is well admitted fact by the Project Proponent that "#" Item No.7 of EC dated 10.11.2017 note on initiated work showed that the Project Proponent has completed 13,700 sq.mtrs. while in fact at the project site, the Project Proponent had completed 20,000 sq.mtrs. of BUA.
16. An Original Application No.677 of 2016 was filed before this Tribunal (Principal Bench) challenging EIA Notification, 2016 wherein on 21.12.2016 on M.A. No.1298/2016, following order was passed:-
―This is an Application praying for interim stay of the Notification dated 09th December, 2016 since we have fixed the matter for hearing on 04th January, 2017 we do not wish to stay the Notification dated 09th December, 2016. However, all the acts done in the meanwhile will be subject to final orders that would be passed in the matter. Accordingly, M.A. No.1283 of 2016 stands disposed of without any order as to costs.‖
17. Thereafter, the NGT passed order dated 15.02.2017 in the same Original Application on M.A. No.148 of 2017 to the following effect:-
―All action taken in the meanwhile including any benefit accruing to any of the stakeholder including private parties will be subject to final orders of the Tribunal.‖
18. Thus, the EIA Notification dated 09.12.2016 was partly quashed by NGT vide order dated 08.12.2017 in Original Application No.677 of 2016 with clear direction "2..... (iii) Appendix-XVI relating to constitution Page 11 of 66 and functioning of Environmental Cell, cannot be sustained and are liable to be quashed for the reasons aforestated...."
19. It is submitted by the applicant that by above judgment of NGT, it is clear that the Environmental Cell created at the level of Authority was declared null and void. Therefore, the present case is a specific case of violation as the local authority has committed intentional negligence.
20. Both the EIA Notifications of 2006 and 2016 do not provide for ex post facto EC, which is a concept alien to the environment jurisprudence.
Issuing of EC is not a mechanical exercise. It requires meticulous and dispassionate study.
21. According to the applicant, the local authority in the case in hand knowingly issued ex post facto EC dated 10.11.2017 for a project which is already in violation and having total constructed BUA potential more than 20,000 sq.mtrs. Therefore, PMC in connivance with the Project Proponent has caused damage to the environment and ecology.
22. The Notification dated 14.03.2017 has been issued by the MoEF&CC to deal with the cases which require ex post facto Environmental Clearance (EC) in cases where expansion or modernization of any activity, requiring EC exceeds the existing pollution load. The EIA Notification dated 14.03.2017 has been issued for regularization of the projects under violation but the Project Proponent did not apply under the same. The Project Proponent in order to overcome the illegality of EC dated 10.11.2017 approached with ulterior motive to SEIAA on 13.06.2018 and procured the EC dated 15.06.2018 (impugned herein) without there being any appraisal by SEAC. The Project Proponent applied for EC before SEIAA/SEAC on 13.06.2018 for expansion/modernization and was granted EC within two days on 15.06.2018. There was no mention of a meeting of SEAC having been made in which the project was appraised, nor is there mention of the project in the agenda of 132nd SEIAA meeting in which the project seems to have been considered for assessment. The SEIAA ignored the fact that the work had already been initiated by the Project Proponent without EC. Page 12 of 66 The amended EC is issued by Mr. Satish M. Gavai, who was facing enquiry pursuant to the order dated 27.09.2016 passed by this Tribunal in Original Application No.184 of 2015 in personal capacity by misusing his powers, therefore, amended EC dated 15.06.2018 is illegal. Mr. Satish Gavai had issued various show-cause notices for having committed violations and for the reasons best known to him, had withdrawn the same and later on issued the EC in question without appraisal of assessment of the proposal.
23. It is further submitted that the Hon'ble Supreme Court in C.A. No.10854/2006in order dated 10.08.2018 has observed as below:-
―We uphold the original order dated 27.09.2016 holding that the construction raised by the project proponent was in violation of environment clearance granted to it on 04/04/2008. We uphold the fine imposed upon the PMC and the direction given to the PMC to take appropriate action against the erring officials. We also uphold the direction given to the Chief Secretary to the State of Maharashtra shall look into the conduct of the official holding the post of Principal Secretary (Environment) to the Government of Maharashtra on 27.09.2016 and will submit his report to the NGT within three months from today.‖ .
24. The Project Proponent has not obtained Consent to Establish nor has he obtained permission to extract the ground water for construction and is discharging polluted water to the sever line of PMC. The dust from the project is spreading all around and the sewage generated from construction work camp is directly flowing to the PMC sever line. The DG sets which are installed are emitting huge pollution in the air. The Project Proponent has procured ex post facto Consent to Establish from MPCB on 07.01.2019. After a complaint was made by the applicant, notice dated 29.10.2018 was issued to the Project Proponent pointing out violation pertaining to the Consent to Establish. The MPCB had issued warning notice dated 16.01.2019 to the Project Proponent for non- compliance of the consent condition and EC.
25. The project is situated on the main road where there is heavy traffic. The PMC, vide letter dated 26.10.2007, had directed the Project Proponent to obtain the NOC from the Traffic Department but the same was not obtained. The Project Proponent has drilled three bore-wells for Page 13 of 66 extracting water for construction from the authority concerned nor has the Project Proponent tested the ground water. The Project Proponent has not preserved the soil which he has excavated and was required to be used for development of recreational space and plantation of the trees.
26. The BUA potential as per sanction dated 08.10.2007 was 26,556.03 sq.mtrs. and the total BUA potential as per sanction dated 04.01.2008 was 35,806.5 sq.mtrs., which is evident from the following table:-
Sr. Description Area in Sq.Mtrs.
No.
08.10.2007 04.01.2008
01 F.S.I. 14850.00 13700
02 Enclosed Balcony 1633.03 1620.85
03 Staircase 1262.54
04 Passage 2881.29
05 Lift Lobby 1567.28
06 Enclosed Lobby 164.40
07 Atrium 2270.55
08 AHU Room 420.07
09 Lift 54.62
10 Parking Area provided 10073.00 11864.90
Total 26,556.03 35,806.5
27. The Project Proponent disclosed the total BUA of 35,938.2 Sq.Mtrs against 22.11.2016 sanction, 32,744.95 Sq.Mtrs. against 25.05.2017 sanction, 47,454.97 Sq.Mtrs. against 12.03.2018 sanction and 49,765.13 Sq.Mtrs. against 07.06.2018 sanction of PMC, as shown in the following table:-
Sr. Description Area in Sq.Mtrs.
No
22.11.2016 25.05.2017 12.03.2018 7.06.2018
1. F.S.I. 13700 14322.51 24089.51 25476.66
2. Enclosed Balcony 1620.85 1696.13 1696.11 1696.11
Page 14 of 66
3. Open Balcony 511.01 434.02
4. Staircase 1262.54 909.76 1355.52 1355.52
5. Passage 2881.29 5991.04 5977.31 5977.31
6. Lift Lobby 1567.28 970.76 970.76 970.76
7. Enclosed Lobby 164.40 159.76 159.76 159.76
8. Atrium 2270.55 484.86 484.86 484.86
9. AHU Room 420.07 155.52 155.52 155.52
10. Lift 54.62 54.61 54.61 54.61
11. Lift M Room 131.70
12. Parking Area 11864.90 8000 12000 13000
provided
Total 35,938.2 32,744.95 47,454.97 49,765.13
28. The Project Proponent procured Plinth Check Certificate on 21.07.2007 and carried out construction till 2010 as per the sanction plan dated 04.01.2008 and completed construction of more than 20,000 sq.mtrs. in the form of B+B+G+1+2+3+4 and 5th floor under construction. The EC in question dated 15.06.2018 is granted for total BUA 51,834.47 sq.mtrs. and the BUA sanctioned by PMC is 49,765.13 sq.mtrs. against last sanction dated 07.06.2018.
29. The Project Proponent has installed one DG set of 180 KVA for electric supply without any permission, which is releasing NOx, Sox, CO, etc. and making noise more than 60 decibel without any acoustic enclosure to control the noise.
30. The Project Proponent had undertaken to plant 158 trees in Form- 1A, but there is no space for plantation. As per DC Rules, 1987, 10% open space of area was to be provided after deducting DP roads, which has not been left in one place,. The said area was not to be less than 400 sq.mtrs, which is not done in the present case. The Project Proponent has provided open space at three places viz. Open Space-1, Open Space-2 and Open Space-3, admeasuring 610.01 sq.mtrs, 215 sq.mtrs and 393.52 sq.mtrs, respectively. Out of them, Open Space-2 and Open Space-3 are less than 400 sq.mtrs. Total open space provided by the Page 15 of 66 Project Proponent is 1218 sq.mtrs., which is affected by the road widening shown in the DP Plan-2017. Therefore, these spaces are not to be treated as open space but are part of DP road widening.
31. In Form No.1, the Project Proponent has indicated that there is excavation of top soil quantity to 6189.12 cu.mtrs., excavation of quantity of soft rock and hard rock to the tune of 27,851 cu.mtrs. and excavation of quantity of murum to the tune of 12,348 cu.mtrs. and this is done without applying any impact assessment. The Project Proponent is using glass for covering the buildings which is generating huge amount of heat and has suppressed actual quantity of building material required for construction in Form-1. The restoration of this area would require the expenditure of more than Rs.110 Crores.
32. As per EC dated 10.11.2017, the occupant load would be 5473 persons while as per PMC sanction plan dated 07.06.2018, the occupant load would be 3831 persons. Therefore, the Project Proponent has provided false and misleading information. The Project Proponent has provided false information in relation to natural resources for construction or operation of the project such as land, water, materials or energy. Hence, the above prayers.
33. When the matter was first taken up on 27.03.2019 for consideration by this Tribunal (Principal Bench), vide order dated 27.03.2019, it has been recorded that since the impugned order is appealable and no appeal has been preferred and is even time barred, the validity of Environment Clearance (EC) is not proposed to be dealt with. Thereafter, the learned counsel for the applicant pressed the prayer for quashing the EC on account of violation of conditions of EC, which find mention in the order of this Tribunal dated 27.03.2019. It is recorded in the said order that before considering the said violations, it was necessary to have a report of the Joint Committee which was constituted by the Tribunal and accordingly, the said Committee was constituted which has submitted its report dated 25.04.2019 (pages 861 and 862 of the paper-book), wherein it is mentioned that the site was visited by the Page 16 of 66 Committee on 19.04.2019 and that the Project Proponent was asked to make available various documents. Nothing of consequence is contained in that report.
34. The order-sheet dated 04.07.2019 indicates that the Joint Committee report dated 25.04.2019 was before the Tribunal against which the applicant has raised objections.
35. When the matter was considered by the Tribunal on 05.02.2020, it was recorded that on perusal of the report and exceptions taken to it by the applicant, the Tribunal was satisfied that crucial questions involved in the case have not been addressed by the Committee and found the report to be un-satisfactory. Therefore, the matter was remanded to the Committee for examining the questions afresh based upon the points taken by the applicant. It was further directed that during the examination of the objections and site visit that would be necessary, the applicant was permitted to be present and to participate in order to ensure effective exercise to be undertaken by the Committee. Thereafter, the Joint Committee has, in compliance of the said order, submitted the report on 29.11.2019, which is quoted herein-in-below:-
―REPORT OF THE COMMITTEE IN RESPONSE OF THE REPLY AFFIDAVIT FILED BY THE APPLICANT DATED 07 SEPTEMBER 2019.
A. INTRODUCTION
1. Scope: The committee wishes to respond to the aforementioned affidavit by the applicant, largely in the confinement of the operative part of the previous Daily Order by the Hon'ble Tribunal dated 27-03-2019, while providing clarification on all the 7 points mentioned therein. Also, the committee wishes to refute the allegations against the Committee and State level Environment Impact Assessment Authority. All these allegations are baseless, derogatory, painful and hence denied in totality.
2. Limitations: For judging certain aspects, such as Traffic Analysis the observations over certain time period, viz. whole day, a week, and at different nodes around the site are very useful. Such data is not available.Page 17 of 66
3. The project is going on since 2003-04, as such the correct nature of the soil and the sub-soil water, the manner of soil disposal at that point of time cannot be assessed by the Joint Committee.
4. Absence of certificates stating the completion of various stages of building construction, except the plinth stage by the PMC,or the photographic documentation of the building construction progress, makes it difficult to decide if the construction is in lawful-time-limit. The Joint Committee has to rely on the Architect's Certificate to understand the consumption of FSI Area and Total Built up Area [TBA] from time to time.
The mere statement of areas on the drawings, those are approved by the PMC and the Commencement Certificate issued thereafter, is not a proof of consumption of the entire specified area.
5. Keeping faith with certain Government Organizations: The Committee stands by the expertise of SEIAA Maharashtra State, the then Environment Cell of Pune Municipal Corporation [PMC], the PMC, and the office of Chief Fire Officer (CFO) of PMC in granting the Environmental Clearance [EC], permitting the integration of Environmental Conditions in to the project, in permitting and monitoring building construction projects, and in issuing permission to the Fire related Disaster Management respectively.
B. THE BUILDING
1. The project proposal "Commercial Building" now called as "93 Avenue" at S. No. 93A/1A/2, 93A/2, 93A/3, 93A/4, Wanwadi, Pune is adjoining Pune -- Solapur Road [NH-9]. The project proposal has got approvals several times to function as a Commercial Building by the PMC in the aforesaid vicinity.
2. From the drawings shown to the committee, it appears that there is an approval to the basement and parking floor [which is partly below the ground and partly above and is on a sloping ground], vide building permission by the PMC No. 10023/VI/ 73 dated 08-03-2006.
3. It is a single building that houses shops, offices, restaurants, theaters and food court, all in single enclosure over a piece of land of 12,700m2 area. The project proponent [PP] has developed the project so as to consume all the Floor Space Index [FSI]; within the frame-work of Development Control [DC] rules. As the project progressed the DC rules are modified/amended and the PP got the additional FSI. Thus the building became large (in footprint) & taller. As and when the PP will have to concede the plot area for road widening, the plot will look smaller and relatively the building will look bigger.
4. This building has a striking semi-circular recess on its front façade and a large semi-circular canopy at the tall height. This canopy is covered by glass and is at the height of almost 18m, as such it exposes the podium to natural light, rain, etc. The part of the podium below this canopy is largely exposed to the environment.
Page 18 of 66 C. CHRONOLOGY :
1. The chronology of giving the Environmental Clearance [EC] to the "Commercial Building" now called as "93 Avenue" at S. No. 93A/1A/2, 93A/2, 93A/3, 93A/4, Wanwadi, Pune.
2. Construction started as per Sanction No. DPO/ 5128/ VI/ 35dated 06-092003 and went on to the extent of 13700.00 m2 [FSI area] .It has stopped in 2007-2008 started again in 2017-2018.The exact dates of the stopping and restart of construction activity, are unknown. This time period covers the time, even before the MoEF'sEC/EIA Notification 14-09-2006.
3. After the building permission dated 04-01-2008, the next permission is obtained on 22-11-2016; both are for the FSI area of 13700.10m2 [TBA: 35278.17 m2. Ref. Architect's Certificate dated 14-04-
2019]. This time period covers the Total Built up Area norms as per the clarification by MoEF Notification dated 04-04-2011.
4. The PP has sought the building permission for the increased FSI area of 14322.51m2[TBA: 39243.07m2. Ref.: Architect's Certificate dated 14-04- 2019],and got same from PMC on 25-05-2017. The PP sought the Environmental Clearance [EC] on account of increase in the total built-up area due to amendments and the proposed project was in purview of Environmental Clearance vide MOEF&CC amended notification dated 09- 12-2016 and Government of Maharashtra, UDD Directives u/s.154 No. TPS- 1816/ Cr- 443/ 16/ RP Directives/ UD-13 dated 13-04-2017.
5. The Environment Cell [of 6 experts] of PMC has appraised and assessed every parameter of the EC and recommended the project proposal for the building approval under the Integration of Environmental Conditions for Project Category-2 on 10-11-2017.The proposal was considered as per directives of Government of Maharashtra Notification No. TPS1816/CR443/16/ DP/Pune & Konkan/UD-13 dated 28-06-2017.
6. This was the EC for various environmental considerations. Only the points relevant to this report are as below:
Plot Area: 12700.00m2
Net Plot Area: 1093 8.40m2
FSI Area: 22689.18m2
Non-FSI Area: 25795.17m2
Total BUA: 48484.35m2
Ground Coverage: 5471.71m2
Building Configuration: Basement+ Lower Ground+
Ground+4, Total
Height:20.98m.
Page 19 of 66
[Lower Ground is the Storey that is embedded in the slope. In this case, there is a slope from contour level 101.40 m to 103.55 m as mentioned in Sr. No. 2. Topography and Natural Drainage of this EC.] Users: 5473 Sub-soil 6189 m3 Quantity:
Disposal Method of sub-soil:
Site Quantity in m3 Landscaping of 93 Avenue Site 2000 Citadel, Enclave, S. No. 51/1/6, 51/7/7, 3000 51/1/8, B. T. Kawde Road, Ghorpadi, Pune.
Solace Park, B. T. Kawde Road, Ghorpadi, Pune. 1189 6189 Green Belt Development ROS Area: 1218.16 m2 Tree Plantation: 158 Power Requirement:D.G. Set 1No.x 62.5 kVA for Construction Stage AND as back-up power Construction Water 45 m3 /day, Source of Water: Tanker Requirement:
Traffic Management Cars Scooters Cycles 539 1633 643 7'The PP obtained the building permission on 12-03-18 for the FSI Area:24089.51m 2 [TBA:49953.12m 2 . _Ref.: Architect's Certificate dated 14-04-2019].
8. The PP got Revised Fire NOC for Shopping Mall & Multiplex Building for the full height of 23.98 m. on 22-05-2018.Page 20 of 66
9. The PP has amended the proposal for the addition of one floor and got the building permission vide No. Revised CC/ 0589/18 dated 07-
06-2018 for the FSI Area:25476.66 m2[Total BUA:51834.47 m2]
10. State level Environment Impact Assessment Authority [SEIAA] has assessed the aforesaid amended project proposal in 132th meeting on 14-06-2018 for the expansion[addition of one storey as indicated in the Form-1]. Impact on the environment, on account of increase in the total built up area, was assessed for each parameter of the EC. The SEIAA noted that there is no increase in the Ground Coverage. Out of the 54 points assessed the following points are relevant to this report:
Plot Area: 12700.00 m2 Net Plot Area: 11504.35 m2 FSI Area: 25476.66 m2 Non-FSI Area: 26357.81 m2 Total BUA: 51834.47 m2 Ground Coverage: 5471.71 m 2
The Project Proposal is assessed in the SEIAA meeting for the following Building Configuration: Basement+ Lower Ground+ Ground+ 5 (5th floor is an additional floor), Total Height:23.98m. Ref.:Consolidated Statement: SEIAA-Statement-0000001472, Sr. No. 13, Page 1 of 10 read in conjunction with Sr. No. 22, Page 1 of 10, and Form 1, Sr. No. 5, Page 1 of 16.
[Lower Ground is the Storey(floor) that is embedded in the slope. In this case there is a slope from contour level 101.40m to 103.55m.] Users: 6023 Green Belt Development ROS Area: 1218.16 m2 Tree Plantation: 158 Ref.: Consolidated StatementSEIAA-Statement-0000001472, Sr. No. 44.
Power Requirement: 1No.x 62.5 kVA - D.G. Set for Construction Stage and as a power back- up: Traffic Management Cars Scooters Cycles 620 1880 790 Page 21 of 66
11. The EC is granted on 15-06-2018.[The EC is normally granted as soon as the minutes are finalized.]
12. The Six Monthly Compliance Report is submitted on 28-06-2018 for TBA: 42600 m2.
13. The Six Monthly Compliance Report is submitted on 28-06-2018 for TBA: 51834.47 m2.
14. The Joint Committee has visited the site to inspect the 7 points raised by the NGT in response to the appeal and submitted the report on 25-042019.
15. The NGT has sought clarification on the aforesaid report.
D. THE CLARIFICATION
Sr. The clarification
Issues for
clarification
1 Junction at exit and
Though no such issue is raised by the
entry point of project
Environment Cell of PMC, the Joint
can cause huge traffic
committee has applied its own mind. It
obstacle.
has observed the complete stretch of 1
km on both the sides of the site,
travelled to and fro directions, observed
the buildings around for their traffic
generation capacity, and also noted the
varied users and varied vehicles with
respect to the work time. It also looked
in to the parking space provision, the
access length and entry exit points. The
Joint Committee is of opinion that
there will not be huge traffic
obstacle at the junction of exit and
entry points of the project site.
2 No permission for It is submitted by the PP before
Environment
Page 22 of 66
Ground water Department that no ground water will be
extraction. used for construction of the project and
accordingly tanker water issued for the
project construction.
Reference:
Form no. 1, clause no. 1.23 on page
no. 6 of 16. Form no. 1,clause no. 2.2
on page no. 7 of 16
3 No ground water test The Project Proponent has tested the water
and for construction and the results are available for the
of basements.
reference.
4 No soil
Soil Testing has been carried out.
preservation and no
Reference:
soil test by PP.
Form no. 1, clause no. 1.4 on page no. 6 of
16.
Excavated soil and earth had been
transported and used on project site for back-
fill and landscaping purposes; and on other projects of the same firm namely, Raviraj Group. The list of projects where soil and earth have been reused are as per clause no.
C.6 of this report. It appears that this information has been presented to the Environment Cell of PMC.
5 Total BUA The entire information on FSI and non-FSI area proposed and is in the form of the building permissions by the actual PMC and the Architect's certificate, construction.
respectively. The Joint Committee has observed that the work is being carried out on the site as per the building permission dated 07-06-2018 [the basis of the assessment by SEIAA].
6 Illegal installation and In the information provided for Environment operations of the DG Clearance, details of DG sets were provided sets.
[number and capacity]. The Environment Cell of PMC has already appraised and assessed this parameter. Further it was also assessed by the SEIAA.
During the inspection the Joint Committee has Page 23 of 66 observed total 3 numbers of D.G. sets,two each of capacity 1010 kVA and oneof capacity 250 kVA [total 2270 kVA] as against the sanctioned capacity of 3060 kVA. All are properly installed and are meant for standby/back-up power source.
7 PP and PMC committed Open space: Recreational Open Space scam on account of 10% [ROS]to the extent of 10% of the balance plot open space and also area is a mandatory provision under the DC there is no space for Rules of PMC. The project has received several approvals from PMC. Needless to say, landscaping and tree that the PMC has checked for compliance of plantation and there is this mandatory requirement and has damage to the approved the plans. On this site, the ROS is in environment and pieces, few are less than 10m length. However, ecology on account of they are approved, probably because they are illegal construction. not meant for playing. [There is no residential area in the project].
In the DCPR 2017 norms, there is a provision of developing ROS on podium. Here on this site, such ROSs are observed. The aforesaid norms also encourage provision of some shelters and landscaping features in the ROS.
These ROS are affected by newly proposed 60.0m wide D.P. Road and the affected portion is considered as "Differed Area"
under the Maharashtra Regional and Town Planning Act, 1966.
Details of ROS(s) are available on the approved plans.
163 trees planted in the ground [not in pots] are observed on the site, which are more than the statutory requirement.
E. DENIAL OF THE ALLEGATIONS
1. The EC has been granted on two occasions by appraising and assessing the , project proposal by the government organizations viz. the Environment Cell of PMC and SEIAA-Maharashtra State, as per the prevailing rules and regulations. The grant of the EC has not bypassed the appraisal as alleged.
2. The grant of the EC as soon as the finalization of minutes of the meeting is not the act of misconduct or the favor. The EC was uploaded to website after Minutes of Meeting (MoM) are finalized.
3. The Joint Committee report is based on the site visit of Members, perusal of all the documents [available and demanded], checking of dimensions, site observation, and reference of the standards/rules, etc. The Committee has to work Page 24 of 66 under certain limitations (A.INTRODUCTION, Limitation) and has to rely on the certifications of reputed agencies (A.INTRODUCTION, Keeping faith with certain Government Organization) to draw some conclusions. Therefore, in no way the report favors to any party. The Joint Committee stands by its views and refutes all allegations.
4. This particular clarification is also given objectively, without getting carried away by the provocative allegations of the appellant.‖
36. This report was placed before the Tribunal on 19.03.2020 to which the applicant raised objections again. The learned counsel for the Maharashtra Pollution Control Board (MPCB) submitted that the project as very old and much of the records were not available and that the report was submitted based on the materials available. It was submitted that the Committee intended to visit the site and will submit a further report for which time was sought. Accordingly, an order was passed to the effect that further report be filed after inspection. In pursuance of the said order, the Joint Committee submitted its report dated 06.10.2021, which is quoted here-in-below:-
―Joint Committee Report in compliance of Orders passed by Hon'ble NGT on 05/02/2020, 19/03/2020 and 17/06/2020 The Orders passed by the Hon'ble National Green Tribunal, dated 05/02/2020, 19/03/2020 and 17/06/2020, directed the Joint Committee to file a fresh report in consideration of objections raised by the Applicant to the earlier report submitted by the Joint Committee with respect to the project - 93 Avenue. Commercial building located at93A/1/2, 93A/2. 93A/3, 93A/4, Wanwadi Pune.
The objections raised by the Applicant are directly related to the authenticity of the approvals given by different departments. and therefore MPCB vide letters dated 02/09/2020 requested to the Chief Fire Officer. Pune Municipal Corporation, the Tree Officer / Dy. Commissioner, Pune Municipal Corporation, the Additional Commissioner of Police, Traffic Department of Police, Pune and The Chief Engineer, Building Approval/Permission Department, Pune Municipal Corporation, to submit the information on the objections raised by the Applicant.
The Joint Committee has verified the reports received from the above Authorities and submitting the consolidated report as under:-
1. Report of Executive Engineer, Zone - 5, Pune Municipal Corporation, Pune Sr. Points Reply No. Page 25 of 66
1. Details of the land use pattern The subject property is situated in Residential of the lot over which the mall is Zone R-2 (DCR 1987-Rule No. M-2.2.1 & built/ constructed. Modified DCR 1993-Rule No. M-2.2.1 and DCPR 2017- Rule No. 16.2.1)
2. The factual information about The Open Spaces are provided as per DCR the total area of the 1987 Rule No. 13.3 & modified DCR 1997 Rule Recreational Open Space (ROS). No. 13.3 The details of Creational Ground The reason for approving such Open Space as per CC 3020/07 dated space, in spite of the variation 04.01.2008 are as follows:
in dimensions (if any), more Open Space 1-610.01 sqm than the limit stipulated in the DCPR- Pune. Open Space 2- 215.56 sqm Open Space 3- 393.52 sqm
3. The factual information about Open spaces around the building are provided the open spaces other than ROS as per the approved plans.
4. Details of commercial building The subject property is situated in Residential permitted on land reserved for Zone R-2 category wherein commercial use is residential purpose. permitted (DCR 1987- Rule No. M-2.2.1 & modified DCR 1997- Rule No. M-2.2.1 and DCPR 2017- Rule No. 16.2.1)
5. Details of area of the plot which Building plans for the subject property were will be reduced by road approved in 2004. The said plans were widening, and the location and approved after the deduction of area required size of RG open space provided. for the 45m DP road. Recreational Open spaces are provided as per DCR 1987 Rule No. 13.3, after the deduction of area required for the DP Road widening.
As per DP 2017, the width of the Pune Solapur Road is proposed as 60.0 M, thus additional area for this road widening is shown as "Differed Road Widening" on the approved plan CC/3309/17 dated 12.03.2018.
6. The RG Open Space is not of As per 2017 Development Plan, the existing the correct area and 45m wide DP road is widened to 60m width dimensions. Some dimensions due to which the additional widening area is are less than what are required. shown in the approved plans, thus affecting It is located in the front open the previously approved Recreational Ground space and will be affect due to Open Space.
the road widening. Please give Page 26 of 66 details.
7. Open spaces around the Open spaces are provided as per the approved building are not of required plans.
dimensions. Please give details.
A copy of the Report received from the Executive Engineer, Zone 5, Pune Municipal Corporation is enclosed herewith as an Annexure-1
2. Report of Chief Fire Officer, Pune Municipal Corporation, Pune The Chief Fire Officer issued the Final Fire NOC for the project in question, vide no. FB/998, dated 03/06/2019 in view of fire prevention, protection and life safety measures of the building.
The building in question is fully occupied with proper fire prevention and life safety measures along with fire-a fighting system. The Fire Officer tested the Hydrant System, Hose Reel System with equipment, portable fire extinguishers and all types of firefighting system and issued Final Fire NOC to the said project.
A copy of the Report and the copy of the Final Fire NOC received from the Chief Fire Officer, Pune Municipal Corporation is enclosed herewith as an `Annexure - 2'.
3. Report of Assistant Municipal Commissioner and Tree Authority The Assistant Municipal Commissioner and Tree Officer submitted that former Assistant Municipal Commissioner and Tree Officer, Pune had issued NOC to Project Proponent, vide letter no. VPJ/7825, dated 02/03/2019. The said NOC was issued based on Commencement Certificate no. CCO589/18 dated 07/06/2018 issued by PMC. The Tree Officer along with the concerned Tree Inspector i.e. Mr. Vijay Nevase visited the site on Saturday, 5th December, 2020. All trees were checked by the concerned officer and he made a detailed report of these. As per the said report, the total number of trees which exist and newly planted at site is 166 in numbers which is more than the minimum requirement. All the plants are in good condition and are well maintained by the developer.
A copy of the report received from the Assistant Municipal Commissioner and Tree Authority along with the NOC is enclosed herewith as an `Annexure3' collectively.
4. Report of Assistant Commissioner of Police, Traffic Branch, Pune City The objections raised by the Applicant have been discussed in detail, and a descriptive technical, scientific analytical and logical explanation is given in the report. It is concluded that after the spot visit, detailed study and inspection. the 9 objections raised by the applicant do not prove the point that the traffic flow on the main road (Pune Solapur Road and Kawade Road) is obstructed by the incoming / outgoing vehicular and pedestrian traffic generated at and by the said establishment '93 Avenue'. Page 27 of 66 A copy of the report received from Assistant Commissioner of Police, Traffic Branch. Pune Cityis attached as an `Annexure -- 4'.
5. Report of Maharashtra Pollution Control Board
1) Land -- Pune Municipal Corporation has submitted a reply on 15/10/2020 and mentioned that the land use pattern is Residential Zone R-2 category wherein commercial use is permitted.
2) Water (Quality & Quantity, Conservation, Bore Well) --
As per existing Consent to Operate, the total water consumption is 270.62 CMD and total domestic effluent generation is 243.9 CMD. The PP has water supply from Pune Municipal Corporation. Water bills of PMC are verified from August 2019 to August 2020. It is found that water consumption is within consented limit. The PP has provided three nos. of pits for rainwater harvesting. One of the pits was opened during the site visit for verification purposes and it was observed that the rainwater harvesting system was functional.
During the site visit, borewells were not found within the premises.
3) Waste Water Treatment --
For treatment of domestic effluent 243.9 CMD, the PP has provided STP of 260 CMD capacity, consisting Of MBBR technology and up to tertiary treatment stage. During the site visit, the STP was found to be operational. Treated effluent is partly recycled and used for gardening; provision is made for discharge of excess treated effluent into the drainage line of PMC.
The PP has provided an online monitoring system for the STP, to measure parameters such as pH, BOD, COD, TSS and Flow Meter. JVS samples for outlet of STP are collected, analysis results are observed within limit.
Solid Waste Treatment --
PP has provided OVVC for treatment of organic waste of capacity 800 Kg! D. During the site visit, it was found to be operational. Due to low occupancy of tenants, currently the wet waste generated is around 50 Kg! day. Records of the same is verified during the visit.
4) Energy Conservation --
The PP has provided four nos of solar heater on the top terrace. A DG set of five numbers with capacities 1000 KVA x 2 nos., 250 KVA x 2 nos. and 365 KVA provided with stack of height above building roof level. A copy of the MPCB Report is enclosed herewith as an `Annexure - 5'." Page 28 of 66
37. This report came to be considered by this Tribunal on 26.10.2021, which was said to be not in compliance with the order of this Tribunal by the applicant and an adjournment was sought to respond to the said report. The Tribunal also has recorded that cursory perusal of the said report would prima facie disclose that the same was not in compliance with the above order dated 05.02.2020 passed by the Tribunal. However, taking into consideration the plea made by the learned counsel for MPCB, an opportunity was given to file supporting affidavit and supporting documents and the matter was adjourned to 08.12.2021. On that date, the matter was considered in presence of the learned counsel for MPCB and PMC as well as applicant's learned counsel and after hearing the submissions of the learned counsel for PMC and others, it is recorded that in the light of the contents of the affidavit of MPCB dated 07.12.2021, joint inspection would be carried out in the light of averments made in paragraph 3 of the said affidavit before end of December, 2021.
38. In pursuance of the above order, the Joint Committee has submitted its report dated 08.08.2022, which is quoted here-in-below:-
―Joint Committee Report in compliance of order passed by Hon'ble NGT on 08.12.2021
1. Hon'ble National Green Tribunal in O. A. 28/2019 ( IA No.81/2021) filed by Tanaji Balasaheb Gambhire vide order dated 08.12.2021 directed Joint Committee comprising of SEIAA and MPCB to carry out the inspection in the presence of Applicant and examine the objections raised by him to the earlier Joint Committee Report dated 06.10.2021 filed in the matter.
2. Accordingly Joint Committee visit was carried out on 29.12.2021 in the presence of the Applicant Shri, Tanaji Balasaheb Gambhire at the Project site 93 Avenue Mall Survey No. 93(P) Village- Wanawadi, Tal.& Dist- Pune at 11am. Following officials were also present-
Sr. No. Name of the Officials Designation
1. Shri. Pankaj Joshi Member- SEIAA
2. Shri. Nitin Shinde I/c RO MPCB Pune
3. Shri. Pratap Jagtap SRO, MPCB Pune-1
4. Smt. Radhika Hawal-Bartakke Tahsildar Pune City-
Representative of
Collective Pune
Page 29 of 66
5. Smt. Harshada Shinde Executive Engineer
Building Permission
Department PMC
6. Shri. Ramesh Kakade Dy. Engineer Building
Permission Department
PMC.
7. Shri. Ratnakar Taru Tree Authority PMC
8. Shri. Prashant Ranpise CFO PMC
9. Shri. Shyam Taru AMC, Wanawadi
Site visit was carried out. Issues in the case were discussed at length with the Applicant in presence of his Advocate and concerned Officials as mentioned above. Site inspection was also vide recorded and concluded the vist at 3 pm. Concerned Officials were directed to submit their replies along with necessary documentary evidence about the submissions made/ issues discussed during the site visit.
3. Report of Executive Engineer, Zone-5 Pune Municipal Corporation- Executive Engineer, Pune Municipal Corporation submitted a tabular report on 24.003.2022 (Annexure-I). Findings in the PMC report are summarized below:
Sr. Points raised by the applicant Clarification No.
1. i. Project is constructed on i. As per DP 1987 plot was development zone as per DP- Agricultural Zone. As per year 1987 and construction of comprehensive Development plan commercial building on sanctioned in 2000, the plot is in residential zone (para8 (A) of Residential Zone and fronting 45.0M OA) DP road. Therefore, the plot is in ii. Commercial construction on category of Residential-2 Zone. As prohibited road (para 8 (B,C &D) per DC Rules all commercial users of OA) are permitted in residential-2 zone.
ii. Intentional violation of non Reference:
agricultural permission: NA
order No. PMN/NA/SR/3/2001 i.Zoning Demarcation No. DPO/4677
dated 02.06.2001 granted for dated 23.03.2001 (Annexure-II)
change of tenure use from
Agricultural to Non Agricultural ii. Government Resolution NO. TPS-
(Residential) use, but the land 1893/1045/CR54/93/UD-13 dated
project land demarcate as ―no 05.06.1997 Modified DCR 1997
development zone‖ Actual DCR No. Clause M-2 (Annexure-III)
construction of Commercial mall(
iii. DCPR2017 clause 16.2.1
Para-10 of OA)
Page 30 of 66
iv. Revised development plan (Annexure - IV) (2007-2027) for old PMC limit including Wanwadi Village clearly shows, the Project land is marked as residential area zone (Para 16 of OA) v. Permissible land use of the plot over which the mall is constructed.
2 Open Space Objections i. As per Garden NOC No. i. PP and PMC committed 7825 dated 02.03.2019 scam on account of requisite number of trees 10% open space and have been planted at site.
there is no space for ii. Lay-out plan was
landscaping and trees sanctioned in 2007 in
plantation. which 10% open space
ii. Mandatory to provide was shown after 45.0 M
10% open space after DP Road widening area.
deducting DP) roads Thereafter in all revised
and reservations. plans area of 10 % open
iii. Important to provide space has not changed.
10% open space in one As per 2017 DP width of
place and shall not be Pune Solapur road is
less than 400 Sq. M.s. proposed as 60 M wide.
iv. Open space-1, Open Therefore, subject plot is
space-2 Open space-3, affected by 60M DP road
admeasuring about widening. This road
610.01 Sq. M, 215 widening area is
Sq.M and 393.52 Sq. considered as ―differed
M.s respectively. Open area‖/
space 2& 3 are less iii. For Plots having area of
than 400 Sq. M.s. more than 5000 Sq.M.s
v. Total Open Space to be open spaces may be
provided by PP is 1218 provided in more than one
Sq. M.s but these open place. But at least one of
space are affected by such places shall not be
the DP plan 2017 and less than 50% at one
therefore these open place.
spaces are not the iv. As per GR No. TPS-
open spaces but these 893/1045/CR-54/93/UD-
are part of DP road 13 dated 050.06.1997
widening. Modified DCR 1997 DCR
vi. PP has committed the No. 13.3.1 any open space
scam on account of the shall not measure less
open space by than 200 Sq. M. S.
providing the 10% Reference :
space and by showing
i. Garden NOC No. 7825
the open space in DP
dated 02.03.2019
road widening area
(Annexure- V)
and also by showing
ii. DCPR-2017 clause 17.2.1
open spaces less than
Note (Annexure-VI)
400 Sq. Mts. At one
iii. Govt. Resolution TPS
place (para 29 of OA)
/1893/1045/CR54/93/U
D-13 dated 05.06.1997
Page 31 of 66
DCR NO.13.3.1(Annexure-
VII)
3. 45 Mtrs and 60 Mtr. Road Area under 45.0 M D. P. Road has widening areas are not handed been handed over to PMC and over to PMC and affected by accordingly updated on 7/12 extract open spaces 2 & 3 Reference :
i. Copy of 7/12 Extract
(Annexure-VIII)
ii. DCPR 2017 No. 1.4,
UDCPR 2020 clause No.
1.5 (Annexure- IX)
iii. DCPR 2017 clause No.
17.2.2 Note No. 13
(Annexure- VI)
As per 2017 DP width of Pune
Solapur road is proposed as 60 M
wide. Therefore, subject plot is
affected by 60M DP road widening.
This road widening area is
considered ‗differed area'.
4. PMC sanction plan dated As per the approved plan and as per
15.01.2019 permits only actual site condition found after site
B+LG+G+1+2+3+4+5 floors. In visit along with the applicant and
actual B+B+G+1+2+3+4+5+6 his advocate, building is of
PP has made illegal construction B+LG+G+1+2+3+4+5 floors only.
of two basements
Jt. Committee is misleading on
account of illegal construction of
Two basements.
JT Committee is misleading on
account of illegal construction of
6 floors beyond scope of alleged
EC.
5. The project is sharing common In this regard a copy of order dated
boundary wall with the defense 04.01.2003 passed by 3rd Jt. Civl
establishment and it is Judge, S. D. Pune provided to the
mandatory to obtain the defence Joint Committee is attached
NOC through the local authority, (Annexure- X). The defendants (
but there is no such NOC Union of India, through secretary
obtained from Ministry of Defence Department, Army school of
Defence . As per Section 7 of physical Training etc) are restrained
the Works of Defence Act-1903 by way of perpetual injunction from
and it is quite strange and entering upon the suit properties or
shocking while seeking the EC doing any act causing obstruction to
dated 15.06.2018 the PP has the construction and development
made false submissions in form work upon the suit properties.
1 stating that there is no
Defense installations within 15
Page 32 of 66
KM when in fact the project is
sharing the boundary with the
Defense establishment. (Para-15
of OA)
6. TDR loading is increased from As per Government directions and
40% to 140% i. e. From claimed sanctioned UDCPR 2020, plot
4375.36 Sq. Mtrs. to 16106.09 fronting on roads more than 30.0 M
Sq. Mtrs (para-12(i) of OA) wide, permissible TDR is 1.40
subject plot is fronting 45.0 M DP
road.
i. GR No. TPS-
1813/3067/CR-
122/MCORP/12/UD-13
dated 28.01.2016
(Annexure XI)
ii. GR Addendum GR No.
TPS- 1813/3067/CR-
122/MCORP/12/UD-13
dated 02.05.2016
(Annexure-XII)
8. PP has Provided only 1:5 ramp After measurement at site slope which must be in the form along with the applicant and of 1:10 (para -13 of OA) his advocate vehicular ramp was found to be 1:9 9 Illegality by issuing Number of All the approvals are given in building sanctions by accordance with the then Respondent PMC, there are Development Control Regulations, revision for 14 time in the circulars, GRs etc. sanction plan and PP changed residential proposal to commercial vide revised layout sanction DPO/345 1/VI/36 dated 07.08.2044 (para 11 of OA) 10 Illegal increase in Net Plot Area Definition of ―Net Plot Area‖ is from 10938.41 sq. Mtrs. to mentioned in DCR 1987 clauses no. 11504.35 Sq. Mtrs. PP has not 13.4.4(Annexure - XIII) and as deducted the Open Space and mentioned DCPR 2017 clause No. transformer area from net gross 15.8 (Annexure- XIV) area ( para 12 (c) of OA)
11. Commercial Construction on As per sanctioned 1997 DC Rules, Prohibited Road ( Para8(B,C&D) Pune Solapur Road is not in the list of OA of prohibited road for commercial user, hence permission for commercial user, hence permission for commercial use was granted.
Page 33 of 66
12. Project had total potential of Building plans for the commercial BUA more than 20,000 Sq. Mtrs. building were approved in the year from beginning of the project 2007 and 2008. At the time of these and it was mandatory to obtain approvals FSI Built-up area was prior EC as per EIA. below 20,000 Sq. M. The clarification regarding applicability of EC on total FSI and non- FSI area exceeding 20,0000 Sq. M. Was received in 2012. Accordingly every building plan approval after year 2012 is on condition of obtaining EC.
Excavation PP has made excavation of plot District Mining Officer, Pune vide letter dated 11.07.2022 after for construction of commercial verification of the record has informed that temporary mining building, therefore, it was permission for plot at S. NO. 93A/1, necessary to pay the royalty to A/2, 93A/2, 93A/3 and 93A/4 was not given (Annexure - XV) the Mining Department under the Collector Pune. But PP has not paid single rupee towards thge royalty and has duped the exchequer. (para 17 of OA) Points regarding EC given to Project Total BUA proposed and actual A copy of the Architect Certificate Construction carried out prior to dated 28.03.2022 submitted by Ex- post facto EC is more than Hirak Shah Associates is attached 20000 sq. M. ( Para 27 of OA) pp (Annexure-XVI). From the has completed total BUA of 40000 certificate it is observed that as M2 prior to grant of ex-post facto per approval plan dated EC 04.01.2008, approved FSI + Non Sanction Total BUA FSI area was 13700.10 +21578.07= 35278.17 Sq. M. However, total construction (FSI+ 08.10.2007 26,556.03M2 Non FSI) done as on June 2010 was 31844.35. Thereafter 04.01.2008 35,806.5M2 construction work was on hold from November, 2010 to 22.11.2016 35,938.2 M2 November, 2017 Plan approved on 04.01.2008 was Page 34 of 66 25.05.2017 32,744.95M2 revalidated on 22.11.2016. This was further revised on 25.05.2017 and approval for FSI 12.03.2018 47,454.97 M2 area of 14322.51Sq.M+ Non FSI area of 24920.56 Sq. M .= Total 07.06.2018 49,765.13M2 (FSI+Non FSI) of 39243.07 Sq. M. was obtained.
PP submitted application to Pune Municipal Corporation (PMC) for Environmental Clearance on 30.08.2017 for FSI of 22689.18 Sq. M +Non FSI of 25795.17 Sq.
M. = Total 48484.35 Sq. M. Construction done on the date of submission of application for EC i.e. 30.8.2017 was (FSI +Non FSI) 31844.35 Sq. M. EC was granted by the PMC on 10.11.2017 for an area of 22689.18 Sq. M. (FSI) +25795.17 Sq. M ( Non FSI)= 48484.35 Sq. M is attached (Annexure-XVII)
15. EIA Notification 09.12.2016 is quashed by order dated 08.12.2017 in OA 677 of 2017 and therefore Environment conditions dated 10.11.2017 obtained under this notification is illegal, PMC has no right to issue such conditions.
16. Ex Post facto EC 15.06.2018 is procured from member secretary SEIAA without any appraisal & assessment and therefore it is total illegal.
EC Application: 13.06.2018 SEIAA Meeting : 14.06.2018, EC granted on 15.06.2018, No appraisal by SEAC-III, EC granted within one day, Case was not on SEIAA agenda (para 21 of OA) Alleged EC dated 15.06.2018 suppresses the configuration of Building. SEIAA 132nd MoM has assessed only G+5FLRS.
17. Mischievousness illegal activity of On 09.12.2016 MoEF&CC Mr. Satish M. Gavai, habitual amended EIA notification 2006 offender NGT order dated regarding integration of 27.09.2016 in OA No. 184/2015 environmental conditions in Hon'ble SC order dated building bye law. In pursuance of Page 35 of 66 10.08.2018 in CA No. the amended notification, Urban 10854/2016(Para-22 of OA) Development Department, Govt. Of Maharashtra vide notification dated 28.06.2017 published the integration of environmental conditions in building bye laws.
As per the notification, environment cell of the local body shall carry out the environment appraisal of the proposals with built up area between 20,000 Sq.M. and 1,50,000 Sq. M. Said EC dated 10.11.2017 was issued by the PMC. However, the said notification dated 09.12.2016 was stayed by Hon'ble NGT, Principal Bench, New Delhi in OA No. 677/2016 on 08.12.2017.
Thereafter environment Department, Govt. of Maharashtra issued circular dated 29.01.2018, stating that, all Municipal Corporations, Municipal Councils and all special planning authorities in the state shall not process any permission to building and construction projects with BUA between 20,000 M2 - 150000 m2 by integrating Environment Clearance conditions.
EC granted by PMC on 10.11.2017 was in pursuance of Urban Development Department, Govt. of Maharashtra notification dated 28.06.2017 regarding integration of environmental conditions in building bye laws which was in operation on that date and was subsequently stayed on 08.12.2017.
Thereafter PP further revised the plan on 12.03.2018 and 07.06.2018 thereby increasing the TBUA from 48484.35 Sq. M.s to 5183.47 Sq. M. i. e. By approx.
3350 Sq. M. S which is 7% more than the are mentioned in EC dated 10.11.2017 given by PMC.
After the said revised approval of the plan application was made to SEIA and EC was granted on 15.06.2018 a copy of which is Page 36 of 66 attached. (Annexure-XVIII) From the Architects Certificate dated 28.03.2022 it is observed that EIA notification 2006 has been violated by PP since June 2010 as the constructed TBUA exceeded 20,000 Sq. Mtrs.
PP should have applied for EC under window period under amnesty scheme.
EC granted by SEIAA was for expansion (TBUA as per EC given by PMC48484.35 Sq. M.s which increased by approximately 7% i.
e. 3350 Sq. M. S TBUA 51834.47 Sq. M.s) MPCB Recommendations regarding Consent to Establish PP has not obtained prior consent PP has obtained EC from local body on to establish from MPCB. (Para-23 10.11.2017 for TBUA 48484.35 Sq.
of OA) Mtrs; again PP has obtained EC from SEIAA on 15.06.2018 for TBUA 51834.47 Sq. Mtr. Accordingly, PP has applied for Consent to Establish on 21.05.2018 for TBUA 48484.35Sq. Mtr and Board has granted Consent to Establish on 07.01.2019 on the basis of the EC granted vide dated 15.06.2018.
Again, PP has obtained amendment in Consent to Establish from Board on 11.07.2019 for TBUA 51834.47 Sq. Mtr as per EC granted on 15.06.2018 (Annexure-XIX) Ground Water Extraction No permission for ground water Site was thoroughly inspected for extraction, no ground water test ground water extraction in presence of and for construction of basements application and his advocate, but Two Bore wells No permission ground water extraction was not found. from CGWA No ground water test (para-25 of OA) PMC warning notice dated 16.01.2019, point No.2 - You have not yet obtained NOC from Central Ground Water Authority (Page 892 to 893j) There is no ground water test attached to the Page 37 of 66 Jt. Committee report and committee is misleading.
Soil Testing and Soil Preservation
21. No soil preservation and no soil As project commissioned in 2007, test by PP condition No. XII & XV joint committee is unable to of the EC dated 15.06.2018 comment on this point. (para 2B of OA) False statement by Jt. Committee. Plinth check is issued on 21.07.2007. Excavation is done in 2007. Therefore, SEAC has not found any abnormality in report is totally false and misleading statement and SEAC has not appraised this project.
4. Report of the Chief Fire Officer PMC- PP himself in EC dated 17.10.2017 admitted that, the turning radius for fire tender movement is 7.52 Mtrs, but marginal spaces to this building is less than 6 Mtrs which are less than 7.5 Mtrs ( Para-14 of OA).
Chief Fire Officer who was present during site visit submitted the report dated 12.01.2022 which annexed hereto (Annexure- XX). During site visit, movement of fire Engine was done in presence of Applicant. No difficulty was found which case cause obstruction for fire tender movement. Only at one corner fabricated steps were found to be installed behind the complex for loading and unloading material of one unit holder because of which Fire Engine speed got slower at that point. Instructions were given to remove the fabricated steps to maintain the marginal distances for smoother movement of fire engine in case of emergency. No difficulty was found because of turning radius or margins in the movement of Fire Engine.
5. Report of the Authority Pune Municipal Corporation: Shri Sham Taru Tree Authority Pune Municipal Corporation was present during site visit. It has submitted its report on 11.02.2022 ( Annexure- XXI). As per the report total 166 number of trees were checked. Trees commonly known as Shirish, raintree and Umber are 15-16 years old and these three trees are well maintained. But the commonly named tree Shirish is in between the side compound wall of Creative 93 Avenue building. The tree is fully grown but in future growth of tree will damage compound wall. Therefore, it is recommended that developer can do fencing in fabrication work which will provide some space from growth of tree. 31 tree mentioned in the report are planted behind the building in pot like structure of cement wall. Due to this trees will not die but growth will be stunted. For full growth of trees it is recommended that developer should leave a space of 1.5 meters from compound wall and replant the trees in a proper pit of 1mx1mx1m with 4meter space between the trees. 5 number of trees commonly known as Kordia planted on compound wall should also be replanted as above. Recommendations : It is recommended that
1. Maharashtra Pollution Control Board shall initiate: Page 38 of 66
a. Action under Section 15 read with Section 19 of the Environment ( Protection) Act, 1986.
b. Action under water ( Prevention and Control ) Act 1974 and Air ( Prevention and Control) Act, 1981.
2. Project Proponent to apply for violations ToR and strictly follow the due process under MoEF&CC O. M. Dated 07.07.2021.‖
39. This Tribunal next considered this matter on 14.09.1011 and recorded service to be sufficient.
40. The stand of respondent No.16 - Project Proponent is as follows:-
. For the present project, the Project Proponent procured the sanctioned lay-out plan from Pune Municipal Corporation (PMC) on 03.01.2001 and obtained commencement certificate. On 06.09.2003, the answering respondent procured the sanctioned amalgamation and lay-
out plan from PMC and obtained commencement certificate. On 07.08.2004, it obtained commencement. Thereafter, on 08.03.2006, it obtained further commencement certificate. On 01.04.2006, it obtained further commencement certificate. On 21.07.2007, it obtained plinth checking certificate. On 08.10.2007, it obtained commencement certificate. On 07.12,2007, it obtained plinth checking certificate, on 04.01.2008, it obtained commencement certificate and that all the construction carried out prior to obtaining EC is as per the said commencement certificate dated 04.01.008 wherein total built-up area (BUA) is 13,700 sq.mtrs. (only FSI area). Hence, the same was below 20,000 sq.mtrs. It, therefore, did not require EC to be obtained. On 21.04.2015, the Principal Secretary, Environment Department in furtherance of the order from the Hon'ble High Court of Bombay in Writ Petition No.654 of 2014 issued a certificate giving clarification that the EC was not required to be obtained as long as actual construction carried out is below the threshold limit of 20,000 sq.mtrs. On 22.11.2016, the answering respondent obtained further commencement certificate. On 25.05.2017, it obtained further commencement certificate. On 10.11.2017, it obtained EC with respect to the existing project from PMC under Office Memorandum (OM) issued by the MoEF&CC dated Page 39 of 66 09.12.2017 for a total built-up area of 48,484.35 sq.mtrs. (FSI 22,689.18 + Non-FSI 25995.17) prior to obtaining the said EC, at no point of time did the answering respondent cross threshold limit of 20,000 sq.mtrs. as per the then existing definition of built-up area under EIA Notification 2006. Therefore, no violation has been committed with respect to carrying out the construction with EC. On 12.03.2018, the answering respondent obtained commencement certificate, on 12.03.2018, it obtained commencement certificate, on 07.06.2018, it obtained further commencement certificate, on 15.06.2018, it obtained revised EC for a total proposed built-up area of 51834.47 sq.mtrs. (FSI 25476.66 sq.mtrs. + Non-FSI 26357.81 sq.mtrs.). The application of the answering respondent for amendment in EC was considered by SEIAA in its meeting dated 14.06.2018 and after due deliberation and considering all the environment aspects, it granted amended EC for the project in question. On 01.11.2018, the answering respondent obtained completion certificate with respect to Part-I of the said project. On 07.01.2019, it obtained Consent to Establish, on 15.01.2019, it obtained further commencement certificate, on 25.02.2019, it obtained completion certificate with respect to Part-II of the said project, on 11.04.2019, it obtained commencement certificate, on 06.05.2019, it obtained Consent to Operate and on 11.07.2019, it obtained Consent to Establish. On 18.02.2020, it obtained commencement certificate, on 06.03.2021, it obtained completion certificate with respect to Part-III of the said project. On 17.03.2020, it obtained Consent to Operate, on 22.06.2022, it obtained commencement certificate with respect to Part-IV of the said project. On 17.05.2021, it obtained renewal of consent for construction of commercial project from MPCB. On 27.10.2021, it obtained commencement certificate. On 21.01.2022,it obtained commencement certificate with respect to Part-V of the project. On 12.07.2022, it obtained final completion certificate with respect to Part-VI of the said project.
Page 40 of 66
41. The answering respondent has completed the said project and sold approximately 310 commercial units to various third party purchasers who are operating out of their respective units and the answering respondent has further executed Deed of Declaration under Section 2 of the Maharashtra Apartment Ownership Act, 1970 and formed the "93 Avenue Condominium". The said declaration is duly registered on 26.05.2022 in the office of Sub-Registrar, Haveli.
42. It is further submitted that the EC is required to be obtained only if construction is made beyond 20,000 sq.mtrs. and not below that. It has been affirmed by the Circular issued by the Environment Department dated 21.04.2015 and various judgments of the Hon'ble High Court of Bombay. By amendment dated 04.04.2011, the EIA Notification 2006 was amended, according to which the built-up area for the purpose of EC included the FSI and non-FSI area. Prior to the said amendment, the custom and common practice was only to take into consideration the FSI area for the purposes of EC and in the case in hand, the FSI of the project was below threshold limit of 20,000 sq.mtrs. Hence, there was no requirement to obtain EC. Around the year 2018, the Hon'ble Supreme Court of India in Goel Ganga Developers Vs. Union of India; 2018 SCC OnLine SC 930, while interpreting the term `BUA', has held that the same would include FSI as well as non-FSI area. However, the Hon'ble Apex Court, while passing the said judgment, did not consider the prior judgment passed by the Bench of three Hon'ble Judges in the matter of Re:Construction of Park at Noida near Okhla Bird Sanctuary, T.N. Godavarman Thirumulpad Vs. Union of India & Ors.; (2011)1 SCC 744, wherein the Hon'ble Apex Court had categorically opined that the concept of BUA under the EIA Notification 2006 was vague and ambiguous. The MoEF&CC taking note of the judgment in Okhla Bird Sanctuary (supra) for the first time decided to define BUA by Notification dated 04.04.2011 providing completely different regime of calculation of BUA in building construction. The necessary consequence was that residential/commercial building projects which were earlier outside the Page 41 of 66 purview of the EIA Notification 2006, would get covered by such requirement if the amendment brought about by the Notification dated 04.04.2011was applied retrospectively. A plain reading of the said amendment would make it indubitably clear that the amendment is prospective in nature and would not affect the projects which were sanctioned between the period 2006 and 2011.
43. The Builders Association of India (BAI) had filed Special Leave Petition No.10078 of 2019 challenging the order dated 29.03.2018 passed by the Hon'ble High Court of Bombay in Writ Petition (L) No.954 of 2019. BAI had initially filed Writ Petition No.24 of 2019 under Article 32 of the Constitution of India before the Hon'ble Supreme Court, taking up the issue of BUA and the amendment dated 04.04.2011 and its applicability. By the order dated 12.02.2019, the Hon'ble Apex Court granted liberty to BAI to approach the High Court and consequently, Writ Petition No.24 of 2019 came to be withdrawn. Thereafter Writ Petition (L) No.954 of 2019 was filed before the Hon'ble High Court of Bombay, which was decided on 29.03.2019 whereby the Hon'ble High Court dismissed the Writ Petition. Feeling aggrieved by the said order, BIA preferred Special Leave Petition No.10078 of 2019, wherein the Hon'ble Apex Court, by order dated 03.05.2019, issued notice and further directed that in the meantime, no coercive steps shall be taken against the members of BAI. The said Special Leave Petition is still pending. Further it is submitted that similar Special Leave Petition was filed by another representative Association - CREDAI, Pune Metro bearing SLP No.23143 of 2019 raising identical issue before the Hon'ble Supreme Court, wherein also, the Hon'ble Apex Court passed order dated 20.09.2019, issuing notice and directing that in the meantime, no coercive action shall be taken against the members of CREDAI - Pune Metro. The said Special Leave Petition is still pending.
44. Further it is submitted that the answering respondent obtained various commencement certificates and sanctions, which have been detailed hereinabove. However, it commenced construction as per Page 42 of 66 commencement certificate dated 01.04.2006, according to which the FSI area was 11481.84 sq.mtrs. Therefore, there is no requirement to obtain the EC. The answering respondent commenced construction and completed 17262.43 (including FSI as well as non-FSI area). Therefore, till then, there was no requirement of EC. On 04.01.2008, it further obtained commencement certificate for 13700.10 sq.mtrs. (Non-FSI area was about 2158.07 sq.mtrs.). As the FSI area was below the threshold limit of 20000 sq.mtrs., the answering respondent did not obtain EC for carrying out construction. Around the year 2010, the total FSI area constructed was about 13700 sq.mtrs. and the non-FSI area was about 18144.35 sq.mtrs. and as the amendment dated 04.04.2011 had not come into force, the BUA was treated to include only FSI area which was below 20000 sq.mtrs. till then. Hence, the answering respondent did not require to obtain EC. From the year 2010 to November, 2017, the answering respondent did not carry out any construction activity owing to the market conditions. On 22.11.2016, it obtained revalidation of the commencement certificate dated 04.01.2008, which was approved on 25.05.2017. By this time, definition of "Built-Up Area (BUA)" included FSI as well as non-FSI area. Therefore, the the total built-up area of the project exceeded 20000 sq.mtrs. Therefore, prior to carrying out any further construction, the answering respondent duly applied to Pune Municipal Corporation (PMC) for grant of EC under Notification dated 09.12.2016. The PMC granted it EC on 10.11.2017, but the Principal Bench of the NGT had quashed the Notification dated 09.12.2016 in Original Application No.677 of 2017 on 08.12.2017. The EC had been obtained by the answering respondent prior to the Principal Bench of NGT quashing the Notification dated 09.12.2016. The Hon'ble Supreme Court in M/s Saibaba Sales Vs. Union of India & Ors. declared that quashing and setting aside of the Notification dated 09.12.2016 will not affect any EC granted prior to the date of quashing order i.e. 08.11.2017. Admittedly, in the present case, the answering respondent had obtained EC on 10.11.2017, therefore, the same was valid and subsisting. The EC Page 43 of 66 granted to the answering respondent by the PMC was for total area of 48484.35 sq.mtrs. (FSI 22689.18 sq.mtrs. and non-FSI area 25795.17 sq.mtrs.). The answering respondent on 12.03.2018 and 07.06.2018, further obtained revised commencement certificate. As per the commencement certificate dated 07.06.2018, the total BUA and total FSI area was about 25476.66 sq.mtrs. and non-FSI area was 26357.81 sq.mtrs. Therefore, the approved FSI + non-FSI area was 51834.47 sq.mtrs. Accordingly, it obtained EC from SEIAA prior to commencement of the construction. Therefore, the answering respondent has a valid and subsisting EC and has carried out construction as per the said EC. It is also to be noted that the respondent No.16 has not challenged the EC under Section 16 of the NGT Act. Therefore, it ought not to have been permitted to challenge the same by way of the present Original Application and on this count itself, this Tribunal ought not to have decided the issue with respect to EC dated 15.06.2018.
45. The answering respondent had duly obtained Consent to Operate on 05.06.2019 and 17.03.2020. Therefore, the allegations contrary to that are false.
46. The answering respondent has installed rainwater harvesting pits and the local bye-law already provides for adequate rainwater harvesting which had been duly followed.
47. There are absolutely no borewells existing on the site in question. At the stage of construction, the answering respondent obtained water through water tankers and post completion of the construction, the occupants of the said project use water supplied by the PMC. The answering respondent utilizes the top soil and other excavated material within the same project itself for landfilling and landscaping.
48. The answering respondent has obtained NOC from Tree Authority on 02.03.2019 and carried out plantation and other activities related to the trees strictly as per the terms and conditions of the NOC.
49. The answering respondent has ensured that the DG sets installed at the site is completely complied with as per Rules and regulations and Page 44 of 66 the sound produced by the DG sets are within the permissible limit by providing acoustic enclosures to the DG sets.
50. The Development Plan of Pune had been sanctioned by Notification dated 05.01.1987 and the Development Control Regulations have been sanctioned as per part of the said plan. As per the Development Plan sanctioned in 2000, the plot in question is in residential zone fronting 45.00 mtr DP road. Therefore, it falls in the category of Residential-2 zone. As per the DC Rules, all commercial users are permitted to raise construction in Residential-2 zone. Building plans of commercial buildings were approved in 2007 and 2008. The Tahsildar, Pune, vide order dated 13.12.2018, directed the owner to pay an amount of Rs.9,09,486/- towards N.A. charges for commercial use and conversion of tax which was deposited on 13.12.2018. There are absolutely no borewells existing on the site. The allegations regarding occupant load, production of solid waste during construction or operation or decommissioning are false.
51. The violation of the provisions of the Maharashtra Regional and Town Planning Act (MRTP Act) and Development Control Regulations (DCR) are not mentioned in Schedule-I of the NGT Act and therefore, this Tribunal does not have jurisdiction to hear this case and that any allegation with respect to MRTP Act and DCR were not be entertained. The project was sanctioned in the year 2007 when there was a 45 mtr. DP road to the front side of the said area. The said 10% area remained constant and construction activities have been carried out accordingly. Around 2017, there was a proposed widening of about 15 mtrs. road on Pune-Solapur road, which has affected the plot in question. The building construction by the answering respondent comprised of basement + lower ground + ground + 1 + 2 + 3 + 4 + 5 floors. No-where the boundary of this project wall is shared with the wall of Defence Establishment. By order dated 04.01.2003, passed by the learned Civil Judge, Senior Division, Pune, perpetual injunction was granted restraining the Defence Department from entering into the plot of the answering respondent. As Page 45 of 66 per the applicable UCPR 2020, any construction on the road admeasuring 30 mtrs. or wider is entitled to 1.40 FSI. In the instant case, the project stands over 30 mtrs. road and thus, FSI available to the answering respondent is 1.40. The answering respondent has provided vehicular ramp in the ratio of 1:9. The Pune-Solapur road is not in the list of prohibited roads as per sanction as per the Development Control Rules and therefore, this Original Application deserves to be dismissed.
52. The stand of respondent No.1 - MoEF&CC is that EIA Notification SO 3999 € dated 09.12.2016 was challenged before the National Green Tribunal, Principal Bench in Original Application No.677 of 2016 (Society for Protection of Environment & Biodiversity Vs. Union of India), which has been disposed of on 08.11.2017 wherein MoEF&CC was directed to re-examine its Notification dated 09.12.2016 and take appropriate steps to delete, amend and rectify the clauses of the said Notification in light of the said judgment. Further it was held that the byelaws amended by the DDA vide its Notification dated 22.03.2016 can also not be given effect to unless the Notification dated 09.12.2016 is amended in terms of said judgment. Till the time the Ministry complies with the above directions and notifies the amended provisions of Regulations of 2006, it will not implement the impugned Notification. Further it was held that once the amended regulations are notified, MoEF&CC/SEIAA/Local Authorities can give effect to that, without further reference to the Tribunal. The answering respondent filed Civil Appeal No.2522 of 2018 (Union of India Vs. Society for Protection of Environment & Biodiversity) before the Hon'ble Apex Court against the order dated 08.12.2017, which is pending adjudication. No stay has been granted with respect to the order dated 08.12.2017. However, it was directed vide order dated 23.03.2018 that it is agreed between the parties that there were pending applications before the Environment Cell which may be forwarded to the SEIAA or MoEF&CC.
53. Further it is submitted that another similar case related to Civil Appeal No.595 of 2021 (M/s Saibaba Sales Pvt. Ltd. Vs. Union of India & Page 46 of 66 Ors.) was filed against the judgment dated 18.01.2021 passed by the National Green Tribunal, Principal Bench in Original Application No.83 of 2019, which pertained to demolition of the illegal structure of a housing complex set up by M/s Saibaba Sales Pvt. Ltd., Pune. M/s Saibaba Sales Pvt. Ltd. had made construction on the basis of EC issued by the Pimpri Chinchwad Municipal Corporation (PCMC) as per the Notification dated 09.12.2016 and the following directions were given in O.A. No.83 of 2019:-
―Accordingly, having regard to the facts of the present case and in endeavor to balance the perceived hardship to the PP for the constructions already carried out on the one hand and the public interest of enforcing the environmental law on the other, we direct that while no coercive action may be called for in respect of construction prior to 08.12.2017 except for enforcing environmental norms, construction thereafter be permitted only after the statutory EC and other requirements as per law.....‖
54. Civil Appeal No.595 of 2021 filed by M/s Saibaba Sales Pvt. Ltd.
has been disposed of vide order dated 26.11.2021 with the following observations:-
―As seen, the NGT in the impugned judgment has protected the completed construction and, on this aspect, we deem it appropriate to endorse the same, by accepting the submission of the appellant's Counsel and the learned ASG. The four constructed buildings are resultantly to be treated to be under a valid EC with all legal consequences. It is, however, made clear that if any further construction is proposed by the appellant with the sanctioned layout, the same should not be done on the strength of the EC granted on 28.11.2017 by the PCMC. In other words, if the Project Proponent wishes to construct the remaining buildings, they must secure fresh clearance from the competent authority, as per the currently applicable framework.‖
55. It is further submitted that in view of above, it is clear that the version of the applicant that the Project Proponent has obtained EC dated
10.11.2017 in pursuance of quashing Notification dated 09.12.2016 is sub-judice before the Hon'ble Supreme Court. The construction made by M/s Saibaba Sales Pvt.Ltd. was treated by the Hon'ble Supreme Court as valid as the EC was granted on 28.11.2017 by the PCMC with all legal consequences and the Project Proponent must secure fresh clearance from the competent authority as per the applicable framework. Page 47 of 66
56. The stand of respondent Nos.7 and 8 - MPCB is as follows:-
The Project Proponent has obtained EC from the Local Body on 10.11.2017 for total BUA of 48,484.35 sq.mtrs. and again obtained the EC from SEIAA on 15.06.2018 for total BUA of 51,834.47 sq.mtrs. The answering respondent has granted Consent to Establish to respondent No.16 for total BUA of 48,484.35 sq.mtrs. vide letter dated 07.01.2019 on the basis of EC dated 15.06.2018 granted by SEIAA, which is valid for the period upto commissioning of the project or five years or co-terminus with the validity of EC i.e. upto 15.06.2025, whichever is earlier. The answering respondent has granted amendment to Consent to Establish for total BUA of 51,834.47 sq.mtrs. on 11.07.2019 based on the EC granted on 15.06.2018. The answering respondent has granted renewal of Consent to Operate to Project Proponent on 17.05.2021, which is valid upto 31.10.2022. The Joint Committee of SEIAA and MPCB has submitted detailed report on 08.08.2022.
57. On the above pleadings, the following issues need to be decided by us:-
(i) When the Environmental Clearance (EC) requirement became applicable to the project ?
(ii) How-much construction was raised without EC ?
(iii) When Consent to Establish (CTE)/Consent to Operate (CTO) requirement became applicable ?
(iv) In case CTE/CTO are not obtained, the effect thereof ?
(v) What are the environmental damages as per the applicant and the responses thereto of the Joint Committees and our estimate in that regard ?
(vi) What is the EDC to be imposed ?
FINDING ON ISSUE OF LIMITATION :
58. Before we render our findings on the above issues, it would be appropriate to deal with the issue of limitation first.Page 48 of 66
The submission made by the learned counsel for respondent No. 16
- Project Proponent is that the present Original Application is filed under Section 14 and/or Section 16 of the National Green Tribunal Act, 2010 ("NGT Act", for short) and that cause of action first arose on 06.09.2003 with respect to the project in question as it has been filed on 04.02.2019 much beyond the period of limitation. In the meantime, substantial rights have accrued in favour of the answering respondent as well as the third party purchasers. In the present case, there is no delay condonation application filed. According to the averments made by the applicant, cause of action is shown to have arisen on 29.10.2018, when the applicant issued notices to respondent authorities with respect to alleged violations relating to the said project. Section 14 and 15 of the NGT Act categorically provide for calculating the period of limitation from the "date of action when the cause of action first arose". The cause of action which has been tried to be set up by the applicant will lead to absurd situation wherein it would give an opportunity to revive the period of limitation as per one's whims by merely issuing a notice. In support of the above contentions, reliance is placed on the following citations:-
(i) Graminee Environment Development Foundation V. Balaji Infrastructure Ltd. and Ors.
2017 SCC OnLine NGT 1098
(ii) Jai Javan Jai Kisan and Ors. V. Vidarbha Cricket Association and Ords.
MANU/GT/0006/2017
(iii) Surendra Waman Dhavale & Ors. V. Secretary, MoEF & Ors.
2017 SCC OnLine NGT 1581
(iv) Aradhana Bhargav & Ors. Vs. MoEF & Ors.
Application No.11/2013 (P.B.46/2013) decided by the National Green Tribunal, Central Zone Bench, Bhopal on 12.08.2013
(v) Mr. Ajay Jayvantrao Bhosale Vs. Union of India through MoEF&CC & Ors.
Original Application No.63/2019(WZ) Decided by this Tribunal on 01.12.2022
59. Per contra, the stand taken by the applicant is that the cause of action is bundle of actions. The Project Proponent has made changes in Page 49 of 66 the capacity or modification in the project lay out by carrying out the changes through subsequent amendments till 07.06.2018 in the sanction, which has given rise to new cause of action, as this is change in the previous sanction. The Project Proponent had carried out construction from 0 sq.mtrs. to 48.00 sq.mtrs. till the date of filing of this application and also had intention to go to raise further construction beyond 52,000 sq.mtrs and civil construction activity is the recurring process. Therefore, it is not the continuous cause action rather it is a recurring cause of action for building construction activity. The Project Proponent has been increasing the project capacity since 2007 till the filing of Original Application. The Project Proponent has procured the EC dated 10.11.2018 from the Environmental Cell of PMC under EIA Notification, 2016, which was quashed by the NGT vide order dated 08.12.2017, pursuant to which the EC dated 10.11.2017 became null and void. Thereafter, the Project Proponent made amendment in the plan vide Commencement Certificates dated 12.03.2018 and 07.06.2018 and procured EC dated 15.06.2018 from SEIAA. Thereafter, the applicant obtained information under the Right to Information Act between 15.06.2018 and 28.10.2018 and thereafter, sent legal notice on 29.10.2018 to the respondents inviting their attention to the violation. Therefore, the cause of action to file this Original Application arose on 29.10.2018. It is, therefore, submitted that the date of filing of the present application being 04.02.2019, the same would stand covered within the limitation as per the provisions of Section 15 of the NGT Act, which is five years.
60. In The Forward Foundation & Ors. Vs. State of Karnataka & Ors. (Original Application No.222 of 2014), decided by this Tribunal (Principal Bench) on 07.05.2015, it has been observed as follows:-
―24. The expression ‗cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to the provisions of the NGT Act. Such ‗cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of the NGT Act. A ‗cause of action' might arise during Page 50 of 66 the chain of events, in establishment of a project but would not be construed as a ‗cause of action' under the provisions of the Section 14 of the NGT Act, 2010 unless it has a direct nexus to environment or it gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of the NGT Act, ‗being cause of action first arose'. A dispute giving rise to a ‗cause of action' must essentially be an environmental dispute and should relate to either one or more of the Acts stated in Schedule I to the NGT Act, 2010. If such dispute leading to ‗cause of action' is alien to the question of environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr., (2004) 9 SCC 512, J. Mehta v. Union of India, 2013 ALL (I) NGT REPORTER (2) Delhi, 106, Kehar Singh v. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556, Goa Foundation v. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234].
Furthermore, the ‗cause of action' has to be complete. For a dispute to culminate into a cause of action, actionable under Section 14 of the NGT Act, 2010, it has to be a ‗composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of the NGT Act, 2010. It must satisfy all the legal requirements i.e. there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before the Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of ‗cause of action' as afore-stated would have to be considered as to when it first arose.
25. In contradistinction to ‗cause of action first arose', there could be ‗continuing cause of action', ‗recurring cause of action' or ‗successive cause of action'. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, ‗Cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that ‗cause of action' were complete, providing applicant right to invoke the jurisdiction of the Court or the Tribunal. The ‗Right to Sue' or ‗right to take action' would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by the Hon'ble Supreme Court in the case of Bal Krishna Savalram Pujari & Ors. v. Sh. Dayaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798.
26. In the case of State of Bihar v. Deokaran Nenshi and Anr., (1972) 2 SCC 890, Hon'ble Supreme Court was dealing with the provisions of Section 66 and 79 of the Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. The Hon'ble Supreme Court held as under: Page 51 of 66
―5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.‖
27. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of ‗continuing wrong or offence'. For instance, using the factory without registration and licence was an offence committed every time the premises were used as a factory. The Hon'ble Supreme Court in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi, (1986) 1 SCC 445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, the Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesse does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. Hon'ble High Court of Delhi in the case of Mahavir Spinning Mills Ltd. v. Hb Leasing And Finances Co. Ltd., 199 (2013) DLT 227, while explaining Section 22 of the Limitation Act took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or the tort, as the case may be, continues.
Therefore, continuing the breach, act or wrong would culminate into the ‗continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law.
Thus, the expressions ‗cause of action first arose', ‗continuing cause of action' and ‗recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given case. These are generic concepts of civil law which are to be applied with acceptable variations in law. In light of the above discussed position of law, we may revert to the facts of the case in hand.
28. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words distinction must be made between Page 52 of 66 continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will began to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Anr. v. Union of India (UOI) and Anr., (2011) 9 SCC 126, Bal Krishna Savalram Pujari & Ors. v. Sh.Dayaneshwar Maharaj Sansthan & Ors, AIR 1959 SC 798, G.C. Sharma v. Municipal Corporation of Delhi, (1979) ILR 2 Delhi 771, Kuchibotha Kanakamma and Anr. v Tadepalli Ptanga Rao and Ors., AIR 1957 AP 419].
29. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of the National Green Tribunal (Practise and Procedure) Rules, 2011, shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and therefore, there is exclusion of the concept of the ‗joinder of causes of action' under the Rules of 2011. The multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In latter, it may give rise to cause of action or if the statutes so provide when the ‗cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may gives rise to a fresh cause of action. To this general rule, there could be exceptions. In particular such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like ‗cause of action first arose' in contradistinction to ‗cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions ‗when right to sue first arose' or ‗cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of the Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing Environmental Clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting Environmental Clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the Environmental Clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action ‗first arose', it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
Page 53 of 66
30. Now, we would deal with the concept of recurring cause of action. The word ‗recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when ‗cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression ‗cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression ‗cause of action first arose'. The Supreme Court clarified the distinction between continuing and recurring cause of action with some finesse in the case of M. R. Gupta v. Union of India and others, (1995) 5 SCC 628, the Court held that:
―The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Page 54 of 66 Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) F C1.‖
31. The Continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide the applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh v. Union of India and Ors., 2006 (91) DRJ 324, M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99].
32. The principle that emerges from the above discussion is that the ‗cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression ‗cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation To such composite and complete cause of action that has arisen subsequently, the phraseology of the ‗cause of action first arose' would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently. To illustratively demonstrate, we may refer to the challenge to the grant of Environmental Clearance. When an appellant challenges the grant of Environmental Clearance, it cannot challenge its legality at one stage and its impacts at a subsequent stage. But, if the order granting Environmental Clearance is amended at a subsequent stage, then the appellant can challenge the subsequent amendments at a later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the concept of cause of action first arose.‖
61. From the above ruling, it is absolutely clear that in a case of recurring cause of action, which is complete in itself and satisfies the requisite ingredients, to such composite and complete cause of action that has arisen subsequently, the phraseology of the `cause of action Page 55 of 66 first arose' would not affect in computing the period of limitation. The concept of `cause of action first arose' must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. In the above citation, it has also been made clear that if the order granting Environmental Clearance is amended at subsequent stage, then the appellant can challenge the subsequent amendments at a later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the "concept of cause of action first arose." Further it is clarified in the above citation that recurring or continuous cause of action may give a fresh cause of action resulting in fresh right to sue. In such case, subsequent wrong would be independent of first wrong and that the subsequent composite and complete cause of action would not be hit by "cause of action first arose". We do not find this position to have been unsettled by any subsequent ruling and appears to be settled law as on date.
62. In view of above position of law, if we scrutinize the matter at hand, we find that for construction of the present project, commencement certificate was initially taken on 01.04.2006 as is evident from the information given by the applicant in tabular form in paragraph No.12 of the application and thereafter, net plot area, permissible TDR and TDR claimed continued to rise from thereon on different dates upto 07.06.2018. Similarly, in paragraph No.18 of the application at clause (f), the dates of commencement certificates alongwith the BUA have also been mentioned which has been consistently rising from 22.11.2016 to 07.06.2018. It has also come on record that the Project Proponent has also planned to further raise construction in the same project. The last EC which has been obtained by the Project Proponent is dated 15.06.2018. Therefore, this appears to fall in the category of "recurring cause of action" and the cause of action which appears to have arisen on 15.06.2018 as per the grant of fresh EC, from that date and thereafter, under the Right to Information Act, the information is said to have been obtained regarding the same on 15.06.2018 and 20.08.2018 and Page 56 of 66 thereafter, a legal notice is said to have been issued by the applicant on 29.10.2018, which is a date from which the applicant has claimed to have computed the period of limitation.
63. Much objection was raised by the learned counsel for the Project Proponent that this very Tribunal had in a case decided earlier took the view the computation of limitation to be allowed from the date when the information was obtained by the Project Proponent under the Right to Information Act would be improper holding that it would allow the Project Proponent to make a date relevant for computation of limitation at his own whims. Therefore, in the present case, following the same principle, the applicant should not be allowed to reckon the period of limitation from 29.10.2018 on which he claims to have sent notice after obtaining information under R.T.I. regarding grant of EC to the Project Proponent from SEIAA on 15.06.2018 and thereafter, having sent a notice to the respondents on 20.10.2018.
64. We find substance in the argument of the learned counsel for the Project Proponent in this regard. However, we are of the view that Section 15 of the NGT Act provides period of limitation to be five years from the date when cause of action first arose and further period of 60 days is at the discretion of the Tribunal in case the delay is found to be justifiable. In the present case, there is no specific application made for seeking condonation of delay by the applicant. We find that even if the cause of action be taken to have arisen on 15.06.2018 when SEIAA granted EC to the Project Proponent from that date onwards, five years would expire on 14.06.2023 while the present application has been filed on 04.02.2019 which is well within the prescribed period of limitation i.e. five years.
65. As regards reliance placed by the learned counsel for the Project Proponent on Graminee Environment Development Foundation (supra), the facts in the case at hand are totally different from the facts in the said case. In the said case, the EC was taken on 30.09.2005 which permitted Dighi Port Ltd. to carry out reclamation within the sea. The Page 57 of 66 application to seek quashing of the same was made on 30.07.2016, which was held to be beyond the prescribed period of limitation and therefore, it was held to be barred rightly. But here in case in hand, the EC was granted by SEIAA on 15.06.2018 while the application is filed on 04.02.2019, much within limitation.
66. As far as the decision in Jai Javan Jai Kisan and Ors. is concerned, the facts of this case are also different from the facts in the case in hand. In the said case, Vidarbha Cricket Association was found to have become functional in the year 2008 against which the reliefs were being sought by filing application under Section 15 of the NGT Act on 11.04.2016, which was rightly found to be beyond limitation of five years. In the instant case, since EC was granted by SEIAA on 15.06.2018 and the application has been filed on 04.02.2019, the same is well within the prescribed period of limitation of five years.
67. Insofar as the decisions in other citations relied on by the learned counsel for the Project Proponent are concerned, those cannot be made applicable to the facts of the present case.
FINDINGS ON ISSUES NOS.(i) to (v) :
68. As far as Issue no. (i) is concerned, as per the site plan dated 30.08.2001 approved by the PMC relating to the present project, total BUA is shown as 7053.66 sq.mtrs. and the proposed building was to contain Stilt + First + Second + Third floor, which does not include the balcony i.e. 1054.32 sq. mtrs., passage 188.01 sq.mtrs., lift room 78.508 sq.mtrs, stair case 541.76 sq.mtrs. and parking 3197.96 sq. mtrs. Thus in terms of EIA Notification 2006, the BUA works out in the case of present project to be 12,106.918 sq.mtrs.
69. Since prior to 04.01.2006, BUA of the project in question was less than 20000 sq.mtrs., it did not require EC but the Project Proponent went for further approval in the case in hand on 04.01.2006 from PMC, which shows BUA (Floor area + excess balcony) as 13,700 sq.mtrs, which Page 58 of 66 includes only FSI area while non-FSI area comprising stair case 1262.54 sq.mtrs., passage 2881.29 sq.mtrs., lift lobby 1567.28 sq.mtrs. The balcony, lobby, lift area, lift machine room, area of AHU and Atrium were not added in the BUA by the Project Proponent, therefore, according to us, the total BUA would be 33,667.95 sq.mtrs, which obviously is above 20,000 sq.mtrs. Hence, it would require the prior EC from the Authority concerned. It would be pertinent for us to mention that the Project Proponent has tried to convince us that till the issuance of Notification dated 04.04.2011, there was no clarity with respect to the fact that BUA would include FSI as well as non-FSI area, therefore, he did not go for obtaining prior EC because on the basis of FSI area only, the area of construction was below 20,000 sq.mtrs. We do not approve of this stand taken by the Project Proponent because it was made very clear in the case of Goel Ganga Developers (supra) that BUA would include both FSI and non-FSI area and that the Notification of MoEF&CC of 2011 was only clarificatory. Hence, it is absolutely clear that the EC becomes applicable with respect to the present project very much with effect from 04.01.2008 when the Project Proponent had got its second approval pursuant to its submitting the application for approval on 04.01.2006. The issue no. (i) is accordingly decided.
70. As to Issue no. (ii), we find from the record that as per Form-1 dated 13.06.2018, till that date, the construction which was shown to have already been done was 42,200.0 sq.mtrs. We find that the Project Proponent had applied for EC before PMC, which shows that by then, he had already constructed 13,700 sq.mtrs, which is as per sanction plan No.CC/3020/07 dated 04.01.2008 with total BUA of 33,33,667.95 sq.mtrs. Therefore, it is apparent that between 04.01.2008 and 10.11.2017, the Project Proponent had already constructed 13,700 sq.mtrs. without obtaining prior EC. It is also apparent that this construction which is shown of 13,700 sq.mtrs., does not disclose as to whether the same was including FSI or FSI + non-FSI both. We assume it to be FSI because it was mentioned as FSI in sanction plan dated Page 59 of 66 04.01.2008. Therefore, total BUA, in our estimation, which had already been done by the Project Proponent till 10.11.2017 after 04.01.2008, stands at 13,700 sq.mtrs., which would be treated to be in violation. We assume that any construction raised by the Project Proponent after 10.11.2017 would have been in accordance with the EC conditions because initially EC was from PMC and thereafter when the said Project Proponent approached the SEIAA as it was held that PMC did not have jurisdiction to grant EC, the EC was granted on 15.06. 2018 for total 51,834.47 sq.mtrs. Although we find that the applicant has raised objections on various counts saying that even pursuant to EC, whatever constructions have been made by the applicant were not made in accordance with the terms and conditions stipulated therein and they committed various violations. This issue is decided accordingly.
71. As regards Issue Nos. (iii) and (iv) are concerned, we have to decide as to when requirement of Consent to Establish (CTE)/Consent to Operate (CTO) became applicable in the present project and when the same were obtained and if not, its consequences. We are of the view that CTE and CTO both were required to be obtained from MPCB soon after approval from the PMC before the construction was started i.e. 04.01.2008 but from record, it is revealed that CTE was applied for to on 21.05.2018 and it was granted on 07.01.2019. Therefore, there was no CTE granted in favour of the Project Proponent from 04.01.2008 to 07.01.2019. We find from the record that there was no CTO granted in favour of the Project Proponent till date. For these violations EDC is required to be imposed. This issue is decided accordingly.
72. As to Issue No. (v), according to the applicant following illegalities are said to have been committed by the Project Proponent while making constructions:-
a. It is submitted that, the PP has used huge quantity of the natural resources for the construction of the project without any impact assessment and caused irreparable damage to the environment and ecology in substantial nature.Page 60 of 66
b. It is submitted that GHG emissions especially carbon from the material process and its use during the construction and operation phase is huge and it has adverse impact on the environment and therefore the prior impact assessment is required for the better protection and improvement of the environment due to the activity of the project proponent. But PP intentionally failed to prepare such EIA and further neglected to implement such assessment in his project and caused huge damage to environment.
c. It is submitted that, the PP has made excavation of two basements and this is one of the major damage to the environment.
d. It is submitted that, the PP has admitted in Form-1 in item#4.1 there is excavation of top soil quantity to 6,189.12 Cu. Mtrs, excavation of quantity of Soft rock & Hard rock to the tune 2,7851 Cu. Mtrs. and excavation of quantity of Murum to the tune 12,348 Cu. Mtrs. and this is done without applying any impact assessment.
e. It is submitted that, the PP is using glass for covering the buildings which will generate huge amount of heat.
f. It is submitted that, the PP is extracting the ground water from bore wells.
g. It is submitted that, the PP has used traditional clay bricks and PP has not used any scientific construction method.
h. It is submitted that, the PP has suppressed actual quantity of building material required for construction in Form 1 Page 61 of 66 i. It is submitted that, the environmental issues are very complex and its restoration is more difficult than complexity. But PP has callous attitude for environmental protection and adopted careless, reckless, attitude with unapologetic behavior and manipulated the government authorities, therefore the amount of environmental damages to be imposed on this PP must be exemplary to teach the deterrent lesson.
73. After having gone through the Joint Committee reports, which have been cited by us, we studied them closely in the light of above objections by the applicant and found as follows:-
SN Concern Raised Remark
a. It is submitted that the PP has EC process / EC conditions do
used huge quantity of the natural not result in reduction in
resources for the construction of construction material.
the project without any impact
assessment and caused
irreparable damage to the Hence, there is no substance
environment and ecology in in the concern raised.
substantial nature.
b. It is submitted that GHG Building construction project
emissions especially carbon from of 8(a) category does not
the material process and its use require EIA.
during the construction and operation phase is huge and it has adverse impact on the In any case, EC process / EC environment and therefore the conditions do not result in prior impact assessment is reduction in construction required for the better protection material.
and improvement of the environment due to the activity of the project proponent. But PP Hence, there is no substance intentionally failed to prepare in the concern raised.
such EIA and further neglected to
implement such assessment in
his project and caused huge
damage to environment.
C. It is submitted that, the PP has EC process does not reduce
made excavation of two quantity of excavation
basements and this is one of the required. However, EC
Page 62 of 66
SN Concern Raised Remark
major damage to the condition to ask for
environment. preservation of top soil. As per
JC reports construction was
carried out since year 2007.
Hence, it is not possible to
opine whether top soil was
preserved or not.
d. It is submitted that, the PP has Building construction project admitted in Form-1 in item#4.1 of 8(a) category does not there is excavation of top soil require EIA.
quantity to 6,189.12 Cu. Mtrs, excavation of quantity of Soft rock & Hard rock to the tune 2,7851 EC process does not reduce Cu. Mtrs. and excavation of quantity of excavation quantity of Murum to the tune required. However, EC 12,348 Cu. Mtrs. and this is done condition to ask for without applying any impact preservation of top soil. As per assessment. JC reports construction was carried out since year 2007.
Hence, it is not possible to opine whether top soil was preserved or not.
e. It is submitted that, the PP is Use of glass for facilitating using glass for covering the natural light is in keeping with buildings which will generate standard design process for huge amount of heat. commercial buildings. In fact, it saves on requirement of electricity for lighting.
Hence, there is no substance in the concern raised.
f. It is submitted that, the PP is As per JC reports there were extracting the ground water from no borewells at the site. bore wells.
Hence, there is no substance in the concern raised.
g. It is submitted that, the PP has It is not clear what is un- used traditional clay bricks and scientific in use of clay bricks. PP has not used any scientific There is no substance in the construction method.
concern raised.
Page 63 of 66
SN Concern Raised Remark
h. It is submitted that, the PP has As per EIA Notification,
suppressed actual quantity of proposals are appraised on the
building material required for basis of conceptual plan. At
construction in Form 1 that stage requirement of
construction material is
worked out based on thumb
rule calculations. Hence,
quantities stated in the Form I
are merely indicative.
Hence, there is no substance
in the concern raised.
i. It is submitted that, the It is generic statement not
environmental issues are very supported by any data.
complex and its restoration is
more difficult than complexity.
But PP has callous attitude for
environmental protection and
adopted careless, reckless,
attitude with unapologetic
behavior and manipulated the
government authorities, therefore
the amount of environmental
damages to be imposed on this PP
must be exemplary to teach the
deterrent lesson.
74. As to Issue No. (v), the above study by us in the light of the Joint Committee report would indicate that the Joint Committee had failed to render its opinion with respect to preservation of top soil as the construction was carried out long back in the year 2007. Similarly, we also could not get any evidence on record indicating that any violation was there in that regard. Apparently, on rest of the counts, the Joint Committees have not found any infirmity. We dispose of this issue accordingly.
75. As to Issue No. (vi), in this regard, as per our calculation, we have worked out project cost for violation which comes to the tune of Rs.3500/- per sq.feet i.e. Rs.35,000/- per sq.mtr. The total constructed area, which has been raised in violation i.e. without obtaining Page 64 of 66 Environmental Clearance is 33,667.95 sq.mtrs. i.e. 3,36,679.5 sq.feet. Accordingly, the cost of the project works out to be Rs.117.8 Crores and 5% of the said project cost would be Rs.5.9 Crores. We deem it proper to levy this amount as compensation towards environmental damage from the Project Proponent in this case.
76. As regards the environmental compensation with respect to the violation of Consent to Establish and Consent to Operate for the aforesaid period, we leave it to the Maharashtra Pollution Control Board (MPCB) to calculate as per the law laid down in Paryavaran Suraksha's case.
77. In view of above, we dispose of this Original Application with following directions :-
(i) The Project Proponent is directed to deposit the amount of Rs.5.9 crores as assessed above, with the Maharashtra Pollution Control Board (MPCB) within a period of 2 (two) months from the date of this order.
(ii) The MPCB is directed to calculate the amount of Environmental Compensation with respect to the violation of Consent to Establish and Consent to Operate for the aforesaid period within one month and realize the same from the Project Proponent within a period of next 2 (two) months from the date of this order. MPCB shall also take action against Project Proponent under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 as recommended by Joint Committee for violations and submit its report to the registrar of this Tribunal within three months.
(iii) The amount of compensation so realized shall be utilized for remediation of environmental damage caused by the project and for improving / restitution of the environment in the area in question within a period of next six months after realisation of amount and report of the same shall be posted on MPCB website.Page 65 of 66
(iv) Commissioner PMC shall investigate and take action both administrative and criminal against the officers who have granted building plan approvals/ plinth certificates/ completion certificates/ occupancy certificates without ensuring availability of requisite EC and/or compliance of environmental clearance conditions, within 3 months and if found guilty at least adverse ACR may be recorded in their service book and submit report to Registry of this Tribunal. This report shall be posted on PMC and MPCB website.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM February 22, 2023 Original Application No. 28 of 2019 npj Page 66 of 66