National Green Tribunal
Ankur vs The State Of West Bengal Represented By ... on 14 March, 2022
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH,
KOLKATA
............
ORIGINAL APPLICATION No. 32/2021/EZ
(I.A. No. 63/2021 & I.A. No. 86/2021)
IN THE MATTER OF:
Ankur Sharma,
S/o Shri Ambooj Sharma,
R/o 13/3, Dr. P.K. Banerjee Road,
P.O. & P.S. & District-Howrah,
Pin - 711101,
....Applicant(s)
Versus
1. The State of West Bengal,
Through Chief Secretary,
Govt. of West Bengal,
Nabanna (13th Floor), 325,
Sarat Chatterjee Road, Shibpur,
Howrah - 711102,
2. The Central Pollution Control Board,
Through Member Secretary,
Parivesh Bhawan, East Arjun Nagar,
Delhi - 110032,
3. The Principal Secretary,
Department of Environment,
Govt. of West Bengal,
Pranisampad Bhawan, Block-(5th Floor),
LB-II, Salt Lake, Sector-III, Bidhannagar,
Kolkata - 700106,
4. The West Bengal Pollution Control Board,
Through Member Secretary,
Paribesh Bhawan, 10A, Block-L.A.,
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Sector-III, Salt Lake City,
Kolkata - 700106,
5. The Principal Secretary,
Department of Fisheries,
Govt. of West Bengal,
Benefish Tower (7th & 8th Floor), 31-GN Block,
Sector-V, Salt Lake,
Kolkata - 700091,
6. The District Magistrate, South 24 Parganas,
Administrative Building, Alipore,
Kolkata - 700027,
7. New Age Nirman LLP,
A limited liability partnership firm incorporated under the
Limited Liability Partnership Act, 2008,
Through Mr. Shrivatsa Khemka,
Office-103, Niharika, 17/1c,
Alipore Road, P.S. & P.O.-Alipore,
Kolkata - 700027,
8. Trimline Distributors and Management Private Limited,
A company incorporated under the Companies Act, 1956,
Through Director Mr. Asit Ghosh,
Office-6th Floor, SW Block, Vishwakarma Building,
86C Topsia Road (S), P.S.-Topsia & P.O.-Govinda Ghatik
Lane, Kolkata - 700046,
9. Bhatter Infrastructure Private Limited,
A company incorporated under the Companies Act, 1956,
Through Director Mr. Raj Kumar Bhatter,
Office-6, Bishop Lefroy Road, Flat 14/1,
Paul Mansion, P.S.-Bhawanipore & P.O.-L R Sarani,
Kolkata - 700020,
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10. Ashiana Vinimay Private Limited,
A company incorporated under the Companies Act, 1956,
Through Director Mr. Shiv Kumar Damani,
Office-1/1A, Vasittart Row, 2nd Floor, Room No.8,
P.S.-Hare Street, P.O.-GPO,
Kolkata - 700001,
11. Kailashdham Commercial Private Limited,
A Company incorporated under the Companies Act, 1956,
Through Director Mr. Netra Thapa,
Office-35A, Chetal Centrla Road,
P.O. & P.S.-Alipore,
Kolkata - 700027,
12. Ministry of Environment, Forests and Climate Change,
Through its Secretary,
Indira Paryavaran Bhawan,
Jorbagh Road,
New Delhi - 110003,
....Respondent(s)
COUNSEL FOR APPLICANT:
Mr. Ankur Sharma, in person
COUNSEL FOR RESPONDENTS :
Mr. Rajib Ray, Advocate for R-1, 3, 5 & 6,
Mr. Surendra Kumar, Advocate for R-2,
Mr. Prithwish Basu, Advocate for R-4,
Mr. Kallol Basu, Advocate a/w Mr. Debnath Ghosh, Advocate,
Mr. Sanjay Ginodia, Advocate, Ms. Sushovit Dutt Majumder,
Advocate, and Mr. Nilanjan Pal, Advocate for R-7 to 11,
Mr. Gora Chand Roy Choudhury, Advocate for R-12,
JUDGMENT
PRESENT:
HON'BLE MR. JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) HON'BLE MR. SAIBAL DASGUPTA (EXPERT MEMBER) 3 __________________________________________________________________ Reserved On:- 23rd February, 2022 Pronounce On:- 14th March, 2022 __________________________________________________________________
1. Whether the Judgment is allowed to be published on the net? Yes
2. Whether the Judgment is allowed to be published in the NGT Reporter? Yes __________________________________________________________________ JUSTICE B. AMIT STHALEKAR (JUDICIAL MEMBER) Heard Mr. Ankur Sharma, the Applicant in person as well as the learned Counsel for the Respondents and perused the documents on record.
2. This Original Application has been filed by the Applicant with the allegation that there are large water bodies in South 24 Parganas, P.S. Bishnupur, Mouza Bhasa, Touzi No. 14, South 24 Parganas where the 'Swayam City' project is being constructed over thousands of square meters of water bodies by dumping of waste and construction material. It is also stated that no Environmental Clearance or Consent to Operate has been granted for proceeding with the construction and development of the 'Swayam City' Project. It is stated that the Central Pollution Control Board has sent e-mail to the West Bengal Pollution Control Board on 13.01.2021 and 03.03.2021, directing the West Bengal Pollution Control Board to investigate the matter and initiate appropriate action on the Applicant's complaint but till date nothing has been done. It is stated that the Chief Environment Officer, Department of Environment, State Wetlands Authority has addressed a letter to 4 the District Magistrate, South 24 Parganas on 27.01.2021 directing the District Magistrate to enquire into the matter and take necessary action accordingly but till date nothing has been done. It is also stated that in spite of the directions issued on 25.01.2021 by the West Bengal Pollution Control Board, the promoters of the Project are still continuing with the construction activities at the site.
3. At the time of admission, the Tribunal constituted a Committee comprising of the following Members:-
(i) Senior Scientist of Central Pollution Control Board (CPCB) Regional office, Kolkata;
(ii) Senior Scientist of West Bengal Pollution Control Board (WBPCB), Kolkata;
(iii) Member Secretary of State Environment Impact Assessment Authority (SEIAA), West Bengal; and
(iv) District Magistrate, South 24 Parganas,
4. The Committee was entrusted with the task of visiting the site in question and carry out an inspection in the presence of the Respondent Nos. 7 to 11, (Private Respondents) as well as the Applicant, and submit a detailed report. The Committee was also directed to examine as to whether the construction has been continuing over the site in dispute in spite of the directions of the West Bengal Pollution Control Board dated 25.01.2021. Further the Committee was also directed to examine the damage caused to the environment and water body and assess the environmental 5 compensation as cost of such damage to the environment which will be recovered from the promoters/builders, if such violation is found. The Committee was also required to find out whether environmental rules as well as Construction & Demolition (C&D) Waste Management Rules, 2016 have been violated. The Committee was further required to state specifically what action has been taken against the defaulter promoters who are acting in violation of the directions of the West Bengal Pollution Control Board as well as the existing rules, if such violation is found. The Tribunal had further directed that by way of interim protection in respect of the construction over the site in dispute, there shall be status-quo with regard to any construction. Notices were also issued to the Respondents to file their counter-affidavits.
5. On 17.09.2021 Mr. Shreyashi Sanyal, learned Counsel appearing for Respondent Nos. 7 to 11 (Private Respondents), made a statement before the Tribunal that the work of "Swayam City' Project has been completely stopped since January 2021. Mr. Ankur Sharma, the Applicant, on the other hand, disputed this statement and stated that work was still going even on the date of inspection. The Tribunal accordingly, considering the statements of both Mr. Sanyal and Mr. Sharma, directed that the work of "Swayam City' Project shall remain suspended till further orders of the Tribunal.
6. The Committee constituted by the Tribunal submitted its report dated 16.07.2021 with respect to an inspection carried out 6 on 13.07.2021 in the presence of the Applicant and the Respondent Nos. 7 to 11. The observations, conclusion and recommendations of the Committee's Report may be reproduced herein for proper appreciation of the case which read as under:-
"B. Observation of the Committee during visit of project site on 13.07.2021.
1. The applicant mentioned that there were some waterbodies within the project site, but during site visit he was unable to identify the exact locations of the waterbodies.
2. The Committee observed that the building blocks are in various stages of completion. However, no construction activity was going on during site visit.
3. The Block Land and Land Reforms Officer, Bishnupur-
I at Bhasa, South 24 Parganas provided the information of Land Classification of the L.R. plots situated under the area of Swayam City Project as per Present L.R. ROR vide Memo no.
Miscellaneous/377/BL&LRO/Bish-1/21 dated 13.07.2021. Conversion certificates were issued from 'Shali' to 'Housing Complex' (Bahutal Abasan) during the year 2015 to 2018.
4. The Enquiry Report provided by the Assistant Director of Fisheries vide Memo No. 352 dated 14.07.2021 mentions that no waterbody was found during inspection and the complainant was unable to provide any such plot no., Khatian no. The report also reveals that the alleged areas does not retain water for more than six months.
5. On examining the four sanctioned building plans it was revealed that the same "KEY PLAN" area for the entire project was shown in each of the four plans and has obtained separate phase wise sanction of 7 building plans in contiguous plots within the said demarcated "KEY PLAN" area.
6. In this regard, the Committee sough clarification from Zila Parishad, South 24 Parganas vide memo No. 1286-3L/WPBC(III)/2021 dated 13.07.2021. The response from the ADM & AEO, South 24 Parganas Zila Parishad vide letter no. 493/ZP/BP/21 dated 14.07.2021 is enclosed.
7. The entire 'Swayam City' project site covering all the four phases of development has a single access road from the main abutting road (i.e. Diamond Harbour Road), opposite to Swami Narayan Temple. There is only one entrance gate on the access road for all the four phases. This is also indicated in the sanctioned plans.
8. The representatives of the Respondent No. 7 to 11 present failed to show necessary documentary evidence before the Committee regarding separate Service Plans for Sewage Treatment and Solid Waste Treatment for each of the four phases. They could not produce document regarding permission for water supply/groundwater extraction from the competent authority for the project.
9. During site visit, it was observed that there is no physical demarcation/boundary for the four phases within the project site.
10. No screen cover could be found in any of the building blocks during site visit.
11. Stockpiles of construction materials (sand and stone chips) were found to be lying on ground in uncovered condition.
12. No water sprinkling arrangement could be observed to arrest fugitive dust emission.
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13. The project proponent also did not comply the direction of the WBPCB to submit an Environmental Compensation (EC) of Rs.10,00,000/- (Rupees Ten Lakhs) only within 15 days from the date of issue of the direction by the WBPCB.
C. Conclusion and Recommendations After careful consideration of the available records and site inspection, the Committee concludes that the project should be considered as a single development project, being developed in four phases in contiguous plots without any separate boundary and having single access to the abutting road (i.e. Diamond Harbour Road), with cumulative total built up area of 47,741.81 sq.m. which is far above the threshold area (i.e. 20,000 sq.m.) for obtaining necessary Environment Clearance from the State Environment Impact Assessment Authority (SEIAA) and Consent to Establish from the WBPCB.
The construction activities conducted till the date of site visit without obtaining prior Environmental Clearance and Consent to Establish is a serious non- compliance to the EIA Notification vide S.O. No. 1533 (E) dated 14.09.2006 issued by the MoEF&CC, Govt. of India and the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
The Committee also assessed the Environmental Compensation for the above non-compliance and damage caused to the environment, without taking prior environmental clearance, as Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only). The detailed assessment of Environmental Compensation, as per the "Report of the CPCB in-house Committee on Methodology for Assessing Environmental 9 Compensation and Action Plan to Utilize the Fund" in response to order of the Hon'ble NGT dated 03.08.2018 in OA No. 593/2017(PB).
Therefore, the Committee makes the following recommendations:
1. All construction and development activities inside the entire 'Swayam City' project area at Mouza Bhasa, Touzi No.14, Opposite Swaminarayan Temple, P.S. Bishnupur, South 24 Parganas, PIN-743503 should remain completely suspended till they obtain Environmental Clearance and Consent to Establish.
2. The project proponent should also submit an Environmental Compensation of Rs. 4,13,15,625/-
(Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) for causing damage to the environment."
7. The Committee has computed Environmental Compensation of Rs.4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only).
8. Mr. Kallol Basu, learned Counsel has objected to the methodology of computation of this amount of Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) on the ground that the total period of construction has been counted from 04.07.2017 up to 13.07.2021 i.e. 1469 days.
9. The Tribunal, however, by its order dated 21.12.2021 had directed that the payment of Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) 10 shall remain in abeyance till a decision is taken by the West Bengal Pollution Control Board upon a re-examination of the computation of Environmental Compensation in a scientific and practical manner.
10. One I.A. No.40/2021/EZ was filed on behalf of the Respondent Nos. 7 to 11, praying that the interim order of this Tribunal dated 10.06.2021 be recalled, rescinded, modified, varied or vacated and the present Original Application be dismissed. This I.A. was rejected by the Tribunal by its order dated 21.12.2021.
11. One objection has been filed by the Respondent Nos. 7 to 11 to the Committee's report and one affidavit has been filed by the Respondent No.12. One supplementary affidavit has been filed by the Respondent Nos. 7 to 11 and two affidavits along with one rejoinder have been filed by the Applicant and one para-wise reply has also been filed by the Respondent No.2.
12. One I.A. No. 63/2021/EZ has been filed by the Respondent No.7, New Age Nirman LLP, praying that the findings in the report of the Block Land & Land Reforms Officer and Directorate of Fisheries to the effect that there is no existence of water body on the land in question and that there is no illegal conversion of the land or damage to the ecology, be taken on record.
13. The contention of the Applicant is that the 'Swayam City' Project is being developed by the Respondent Nos. 7 to 11 and constructions are being carried out on Mouza-Bhasa, Touzi No. 14, 11 P.S. Bishnupur, District-South 24 Parganas. It is also stated that the land in question is a water body and as a result of construction of the Housing Colony, the said water body is being devastated and destroyed thereby affecting the ecology and environment of the area. It is also alleged that the Project in question does not have Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA), West Bengal or Consent to Establish from the West Bengal Pollution Control Board and in this regard a reference has been made to the letter of the Chief Engineer, Operation and Execution Cell, West Bengal Pollution Control Board dated 25.01.2021 Annexure P-2 (page no.30) to the Original Application. This letter of the Chief Engineer restrains the Project Proponent from carrying on any further construction activities for their residential project at Bhasa, Diamond Harbour Road, P.S.- Bishnupur, District-South 24 Parganas, without obtaining Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA), West Bengal and Consent to Establish from the West Bengal Pollution Control Board. The Project Proponent was also directed to immediately apply for obtaining Environmental Clearance for their ongoing project and to comply with the directions issued by the Department of Environment, Govt. of West Bengal in their letter dated 10.12.2009. The Project Proponent was also directed to submit Environmental Compensation of Rs. 10,00,000/- (Rupees Ten Lakhs only) within a period of 15 days from the date of this letter. Photographs by way of evidence have also been filed along with the Original Application to 12 show the constructions being made by the Respondent Nos. 7 to 11, Project Proponents. Satellite images have also been filed for the same purpose.
14. The Respondent Nos. 7 to 11 in their affidavit have, on the other hand, denied the allegations made in the Original Application and it is stated that the Project Proponent had applied for approval of the Gram Panchayat on the project building plans for each of the distinct and standalone real-estate projects. After finding no impediment to the Project, the Zila Parishad, District-South 24 Parganas, accorded sanction to the Building Plans for all the four projects of the Project Proponents i.e., Respondent Nos. 7 to 11, and these projects are also registered under the West Bengal Housing Industry Regulatory Act, 2017. It is also stated that the total built- up area of the G+4 buildings of each of the four distinct and standalone projects falls short of the threshold limit of 20,000 square meters as stipulated in Clause 8 (a) of the Schedule to the EIA Notification 2006.
It is also stated that in Memo dated 25.01.2021 Annexure R- 17 to the reply, it is mentioned that the total built-up area of the overall project site for Stage-I development (including all four phases) is 41,741.71 square meters which would attract Environmental Clearance. The letter also mentions that the Project Proponent had at the time of submitting project details stated that their Residential Project comprised of four phases and each phase was below 20,000 square meters for which they have not obtained 13 Environmental Clearance and they have stated that the mistake was unintentional and that now they would obtain Environmental Clearance for Stage-I development. This letter dated 25.01.2021 is already filed as Annexure P-2 (page 30) to the Original Application. The Respondent No.7, M/s New Age Nirman LLP, was, therefore, directed not to undertake any construction activity without obtaining Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA), West Bengal and Consent to Establish from the West Bengal Pollution Control Board, and initial Environmental Compensation of Rs. 10,00,000/- (Rupees Ten Lakhs) was also imposed upon the said Respondent.
15. Similar contention has been raised by the Respondent Nos. 7 to 11 in their objection to the Report of the Committee constituted by the Tribunal.
16. The Ministry of Environment, Forests and Climate Change in its affidavit has stated that as per EIA Notification 2006, matters falling under Category 'B' of the Schedule, shall require Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA). It is also stated that as per para 8(a) of the Amended EIA Notification, building and construction projects exceeding 20,000 square meters but less than 1.5 lakhs square meters of built-up area, if the total built-up area is 20,000 square meters or more, prior Environmental Clearance is required to be obtained from the concerned State Environment Impact Assessment Authority.
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17. We may now refer to the observations of the Committee constituted by the Tribunal. The Committee has recorded a categorical finding that during the site visit it did not find the exact locations of the alleged water bodies nor could the Applicant, who was present during site inspection, point out the same. It is also noted that no construction activity was going on during site visit. The Committee also noted that as per L.R. RoR Memo No. Miscellaneous/377/BL&LRO/Bish-1/21 dated 13.07.2021, conversion certificates were issued from 'Shali' to 'Housing Complex' (Bahutal Abasan) during the year 2015 to 2018. The inquiry report prepared by the Assistant Director of Fisheries vide Memo No. 352 dated 14.07.2021 also mentions that no water body was found during inspection nor was the complainant, Applicant herein, able to point out the same. The Committee, however, noted that the representatives of the Respondent Nos. 7 to 11 who were present at the site, failed to show necessary documentary evidence before the Committee regarding separate Service Plans for sewage treatment and solid waste treatment for each of the four phases. They also could not produce any document regarding permission for water supply/ground water extraction from the competent authority for the project. No screen cover could be found in any of the building blocks during site inspection. Stock piles of construction material (sand and stone chips) were found lying on the ground uncovered. There was no water supply arrangement to arrest fugitive dust emission. The Committee also noted that the construction activities conducted till the date of the site visit without obtaining prior 15 Environmental Clearance and Consent to Establish is a serious non-compliance of the EIA Notification dated 14th September, 2006 and the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. The Committee accordingly computed the Environmental Compensation for non-compliance and damage to the environment at Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only). This amount of Environmental Compensation has been disputed by the Respondent Nos. 7 to 11.
18. Mr. Kallol Basu, learned Counsel appearing for the Project Proponents, submitted that the total budgeted cost of construction is Rs. 1,00,49,55,266.55/- (Rupees One Hundred Crores Forty Nine Lakhs Fifty Five Thousand Two Hundred Sixty Six and Fifty Five Paisa) whereas the amount of expenditure incurred till date, as of 07.02.2022, is only Rs. 35,58,93,016.21 (Rupees Thirty Five Crores Fifty Eight Lakhs Ninety Three Thousands Sixteen and Twenty One Paisa). Mr. Basu, therefore, submitted that the imposition of Environmental Compensation of Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) is highly inflated irrational being more than 10 times of the amount of expenditure actually incurred by the Respondent Nos. 7 to 11 in their Housing Project till date.
19. In (2018) 2 SCC 203; Secretary, Kerala State Coastal Management Authority Vs. DLF Universal Limited & Ors., the Hon'ble Supreme Court has held that wherever permissions are 16 required and are to be obtained before commencement of construction, it would be no answer that activity can be carried on without obtaining the permissions. Para 51 of the judgment reads as under:-
"51. We also make it clear that in the future, wherever permissions are required to come and are to be obtained before commencement of construction, it would be no answer that activity can be carried on without obtaining the permissions. Simultaneously, the permissions itself are envisaged in a time-bound schedule and not through improvement of cases by authorities running into years. Thus, from the inception itself, there should be clarity on what is permissible and what is not."
20. In that case the Project Proponent had the requisite Environmental Clearance but did not have the requisite CRZ-I Clearance for which fine of Rs. 1 Crore was imposed by the Hon'ble Supreme Court with direction for strict adherence to the norms in future and avoidance of contradictions by the authorities.
21. The Hon'ble Supreme Court in the case of DLF Universal Limited (Supra) has clearly held that for future whatever be the manner in which para 8 (3) of the Notification of 2006 is worded, it should imply henceforth a prior clearance and necessary clarifications should be issued by the authorities concerned in a time bound manner and procedure of deemed clearance is not to be followed in future. Para 66 of the judgment reads as under:-
"66. We are, thus, not in agreement with the findings of the courts below on the violations alleged against DLF except to the extent that there is a question mark on the issue of not having obtained prior clearance and 17 proceeding on the basis of a deemed clearance, which aspect, at least for the future we have clarified that whatever be the manner in which para 8(3) of Notification of 2006 is worded, it should imply henceforth a prior clearance and necessary clarifications should be issued by the authorities concerned in a time bound-bound manner to obviate such situations to arise in the future. We feel that the direction contained in the impugned order to deposit Rs. 1 crore (stated to be already deposited) can be treated as a fine for the said purpose."
22. Mr. Basu has also referred to the affidavit filed by the West Bengal Pollution Control Board wherein a reference has been made to the Ministry of Environment, Forests and Climate Change Office Memorandum dated 07.07.2021 defining the Standard Operating Procedure (SOP) for identification and handling of violation cases under EIA Notification 2006 and referred to NGT order passed in O.A. 34 of 2020 (WZ) which was upheld by the Hon'ble Supreme Court vide its order dated 09.12.2021 in Civil Appeal Nos. 7576- 7577 of 2021 in Electrosteel Steels Limited Vs. Union of India & Others, and the Ministry of Environment, Forests and Climate Change Office Memorandum dated 28.01.2022, which provides that for new projects where operation has not commenced, penalty be determined at 1% of the total project cost incurred upto the date of filing of application along with EIA/EMP report (ex. Rs. 1 lakh for project cost of Rs.1 crore).
23. Mr. Basu, therefore, referring to the judgment of the Hon'ble Supreme Court reported in 2021 SCC Online SC 1247 in Civil Appeal Nos. 7576-7577 of 2021 (Electrosteel Steels Limited Vs. 18 Union of India), and submitted that the project proponent may be permitted to continue with the construction work subject to grant of Environmental Clearance by the State Environment Impact Assessment Authority.
24. In that case of Electrosteels Steel Limited (Supra), we find that the Appellants therein had applied for ex-post facto Forest Clearance approval without prejudice to its rights and contentions that its steel plant is not on forest land and had also applied for revised Environmental Clearance. The facts of the case also show (as emerging from para 88 of the judgment) that that was not a case where the steel plant had been started without Environmental Clearance or consent of the State Pollution Control Board. The appellant therein had applied for and obtained Environmental Clearance to set-up an integrated steel plant (3 MTPA) on 1350 acres of land. Environmental Clearance had been granted on 21st February, 2008 and Consent to Operate had been granted by the Jharkhand State Pollution Control Board on 5th May, 2008. The steel plant, however, was established by the appellant at a site 5.3 kilometers away from the site for which Environmental Clearance and Consent to Establish had been granted, which according to the appellant was a minor shift and made no change in the EIA/EMP on the basis of which Environmental Clearance had been granted. The appellant had also applied for revised Environmental Clearance, Consent to Operate etc. The Hon'ble Supreme Court directed the Respondent No.1, Ministry of Environment, Forests and Climate Change, to take a decision on the application of the 19 appellant for revised Environmental Clearance in accordance with law within three months and pending such decision, it was directed that the operation of the steel plant shall not be interfered with on the ground of want of Environmental Clearance, Forest Clearance, Consent to Establish or Consent to Operate.
25. Mr. Basu, therefore, submitted that till such Environmental Clearance is granted, the Respondent Nos. 7 to 11, Project Proponent, be permitted to continue with their construction Project.
26. We have considered the submissions of the learned Counsel for the Respondent Nos. 7 to 11. We find that the judgment of the Hon'ble Supreme Court in the case of Electrosteel Steels Limited (supra) has no application to the present case in as much as in the present case admittedly the Respondent Nos. 7 to 11 had never applied for Environmental Clearance before commencement with their construction Project. Even now there is nothing on record to show that the Project Proponent has applied for grant of Environmental Clearance. The report of the Committee constituted by the Tribunal clearly records a finding that the construction activities are going on at the site in question without obtaining Environmental Clearance and Consent to Establish. Therefore, in the facts and circumstances of the present case, the question of permitting the Respondent Nos. 7 to 11 to proceed with their construction work till Environmental Clearance is granted does not arise. The Respondent Nos. 7 to 11, (Private Respondents), ought to have obtained necessary clearances i.e., Environmental Clearance, 20 prior to proceeding with their construction activities at the site in question.
27. The Chief Engineer, West Bengal Pollution Control Board, who has sworn the affidavit dated 15.02.2022 has completely misread the Ministry of Environment, Forests and Climate Change Office Memorandum dated 07.07.2021 and for reasons best known to him, interpreted the para 12 which speaks of 'Penalty' provisions for violation cases to read as 'Environmental Compensation'.
In the observations signed by the Environmental Engineer and Chief Engineer, West Bengal Pollution Control Board, which has been filed as Annexure - 'R' to the affidavit of the West Bengal Pollution Control Board dated 15.02.2022, they have wrongly interpreted the operation of the project of Respondent Nos. 7 to 11 to mean 'where operation has not commenced' though, in fact, in the present case the construction project of the Respondent Nos. 7 to 11 has commenced and is in actual operation which has not been by the Private Respondents themselves and, therefore, the case of the Private Respondent Nos. 7 to 11 for purposes of computing penalty under para 12 of the Ministry of Environment, Forests and Climate Change Office Memorandum dated 07.07.2021 would be covered by para 12 (a) (ii) and not by para 12 (a) (i). Para 12 of the Office Memorandum of the Ministry of Environment, Forests and Climate Change dated 07.07.2021 reads as under:-
12. Penalty provisions for violation cases and applications:21
a. For new projects:
i. Where operation has not commenced: 1% of the total project cost incurred upto the date of filing of application along with EIA/EMP report; (Ex: Rs. 1 lakh for project cost of Rs. 1 Cr.) ii. Where operations have commenced without EC: 1% of the total project cost incurred upto the date of filing of application along with EIA/EMP report PLUS 0.25% of the total turnover during the period of violation. (Ex: For Rs. 100 cr project cost and Rs. 100 cr total turnover, the penalty shall be Rs. 1 Cr + Rs. 0.25 Cr = 1.25 Cr).
b. For expansion Projects:
i. Where operation/production with expanded capacity has not commenced: 1% of the project cost, attributable to the expansion, incurred up to the date of filing of application along with EIA/EMP report.
ii. Where operation/production with expanded capacity have commenced: 1% of the project cost (attributable to the expansion activity) incurred upto the date of filing of application along with EIA/EMP report PLUS 0.25% of the total turnover (attributable to the expanded activity/capacity) involved during the period of violation."
28. Hence, the Respondent Nos. 7 to 11 are liable to pay the amount of penalty at 1% + 0.25% of the total incurred cost which comes to Rs. 44,48,663/- (Rupees Forty Four Lakhs Forty Eight Thousand Six Hundred Sixty Three only) as per para 12 (a) (ii) of the Office Memorandum of the Ministry of Environment, Forests and Climate Change dated 07.07.2021.
29. In addition to the fact that the Project of the Private Respondent Nos. 7 to 11 had commenced operations without 22 Environmental Clearance, the Committee constituted by the Tribunal had also noted several irregularities/violations of environmental norms in its inspection conducted on 13.07.2021 which is already reproduced by us hereinabove.
30. We are, therefore, of the view that payment of penalty alone does not absolve the Private Respondent Nos. 7 to 11 from paying Environmental Compensation for which we feel that Rs. 50,00,000/- (Rupees Fifty Lakhs only) would suffice for violations/irregularities which have been noted by the Committee.
However, if the amount of Rs. 10,00,000/- (Rupees Ten Lakhs) has been deposited by the Private Respondent Nos. 7 to 11 as Environmental Compensation as claimed by them, then they may be entitled to a deduction of the same from the total Environmental Compensation amount of Rs. 50,00,000/- (Rupees Fifty Lakhs only).
31. We, therefore, direct the Private Respondent Nos. 7 to 11, to deposit the Penalty amount of Rs. 44,48,663/- (Rupees Forty Four Lakhs Forty Eight Thousand Six Hundred Sixty Three only) and Environmental Compensation of Rs. 50,00,000/- (Fifty Lakhs only) amounting to a total sum of Rs. 94,48,663/- (Rupees Ninety Four Lakhs Forty Eight Thousand Six Hundred Sixty Three only), with the West Bengal Pollution Control Board within a period of one month from the date of receipt of certified copy of this judgment.
32. We further direct that the Respondent Nos. 7 to 11, (Project Proponent), shall apply before the State Environment Impact 23 Assessment Authority (SEIAA), West Bengal for grant of Environmental Clearance as per rules within a period of one month. The State Environment Impact Assessment Authority (SEIAA), West Bengal, shall consider such application of the Respondent No. 7 to 11 for grant of Environmental Clearance and pass appropriate orders in accordance with law within a further period of three months thereafter from the date of receipt of such application and in case the Environmental Clearance is granted by the State Environment Impact Assessment Authority (SEIAA), West Bengal, the Respondent Nos. 7 to 11 shall also apply to the West Bengal Pollution Control Board for grant of Consent to Establish and Consent to Operate and on such application being submitted for grant of Consent to Establish and Consent to Operate by the Respondent Nos. 7 to 11, the West Bengal Pollution Control Board shall consider the same and pass appropriate orders in accordance with law within a further period of one month from the date of receipt of such applications.
33. We further direct that in view of the order passed in the preceding paragraphs, the Respondent Nos. 7 to 11 (Private Respondents) shall not proceed with the construction work till the Environmental Clearance as well as the Consent to Operate is granted by the respective authorities.
34. With the aforesaid directions, the Original Application is disposed of.
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35. In view of above, the I.A. No. 63/2021/EZ and I.A. No. 86/2021/EZ is also stands disposed of.
36. There shall be no order as to costs.
......................................... B. AMIT STHALEKAR , JM .....................................
SAIBAL DASGUPTA, EM Kolkata, March 14, 2022, Original Application No. 32/2021/EZ (I.A. No. 63/2021/EZ & I.A. No. 86/2021/EZ) AK 25