National Green Tribunal
Arvind vs Tamil Nadu Pollution Control Board on 23 May, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.2:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 87 of 2021(SZ)
IN THE MATTER OF:
Arvind Kumar Agrawal,
Flat No.B02-302, Provident Cosmo City,
Near Pudupakkam Panchayat Office,
Pudupakkam - 603 103 and Ors.
.. Applicant(s)
WITH
The Chief Secretary to Government of Tamil Nadu
Govt. Secretariat, Fort St. George,
Chennai 600 009 and Ors.
.. Respondents
For Applicant(s) Mr.Arvind Kumar Agrawal
(Party in person) - 1st Applicant
For Respondent(s): Dr. D. Shanmuganathan for R1
Mr. Meyyappan represented
Mrs. Me. Saraswathy for R2
Mr. S. Sai Sathya Jith for R3 & R4
Mr. R. Sathish Kumar for R5
Judgment Pronounced on: 23.05.2022
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.87/2021 (SZ) 23rd May 2022. SE.
2 Item No.2:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Original Application No. 87 of 2021(SZ) IN THE MATTER OF:
1. Arvind Kumar Agrawal, Flat No.B02-302, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
2. Janarthanan, Flat No. B01-302, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
3. V. Sundareswaran, Flat No. B01-202, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
4. Amit Kumar Ghosh, Flat No. B01-103, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
5. S. Renganathan, Flat No. B01-101, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
6. Radha Krishnan, Flat No. B01-003, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
7. Ravichandran K.S. Flat No. B06-101, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103
8. Santosh Sengunthar, Flat No. A23-201, Provident Cosmo City, Near Pudupakkam Panchayat Office, Pudupakkam - 603 103 .. Applicant(s) 3 WITH
1. The Chief Secretary to Government of Tamil Nadu Govt. Secretariat, Fort St. George, Chennai 600 009
2. Environment Secretary, State Level Environment Impact Assessment Authority (SEIAA), Tamil Nadu Panangal Maaligai, No.1 Jeenis Road, Saidapet, Chennai - 600 015
3. The Chairman, Tamil Nadu Pollution Control Board, 76, Anna Salai, Guindy, Chennai 600 032.
4. District Environment Engineer, Tamil Nadu Pollution Control Board, Maraiamalai Adigalar Street, Next to Municipal Office, Maraimalai Nagar, Kancheepuram District, Chennai 603 209
5. M/s Puruvankara Project Limited, a. No.7, LVR Center, Sheshadri Road, Chennai - 600 018 (Tamil Nadu) b. 36/2, Gandhi Mandapam Road, Kotturpuram, Chennai - 600 085 Tamil Nadu c. 130/1, Ulsoor Road, Bangalore - 560 042 (Karnataka) .. Respondents For Applicant(s) Mr.Arvind Kumar Agrawal (Party in person) - 1st Applicant For Respondent(s): Dr. D. Shanmuganathan for R1 Mr. Meyyappan represented Mrs. Me. Saraswathy for R2 Mr. S. Sai Sathya Jith for R3 & R4 Mr. R. Sathish Kumar for R5 Judgment Reserved on: 29.03.2022 Judgment Pronounced on: 23.05.2022 4 CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The grievance in this application is that the present 5th respondent (originally 11th respondent) namely M/s.Puruvankara Project Ltd. had committed some violation of environment laws.
According to the applicant, the 11th respondent had obtained environment clearance for construction of 1184 units, though they have applied for further expansion of 990 more residential units, the same had not been granted to them but pending application they had constructed the remaining units as well thereby the total construction increased to 2174 units. It was also alleged in the application that on the basis of the reply obtained from Ministry of Environment, Forest and Climate Change under the Right to Information Act, it was revealed that lot of show cause notices were issued to the present 5th respondent (originally 11th respondent) between the period 2012 and 2014 for violation committed by them in several projects including this project, though environment clearance was directed to be kept in abeyance in respect of this project, they had proceeded with the construction and completed the project.
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2. Further, the sewage treatment plant was established originally for the consented capacity of 1184 units alone but now they are using the same for the expanded project, thereby causing lot of pollution. Emissions from Diesel Generators (DG) Sets were also not properly controlled by providing necessary pollution control mechanism which causes air and noise pollution.
3. The applicant expressed their apprehension that the present 5th respondent (originally 11th respondent) is likely to sell the remaining units which were constructed without proper consent and clearance, which is likely to cause more inconvenience to the inmates of the residential plots who have already occupied. Though complaints were made to the authorities, no effective action has been taken. That prompted the applicant to file this application seeking the following reliefs:
Interim Relief:
(i) Direct Respondents 2, 3 and 5 to stop the functioning of STP 1, situating near block B1, B2 and B3 forthwith and plan for its shifting to far away from rehabilitation units.
(ii) Direct the Respondents No.2, 3, 5 to make some temporary arrangements to increase the height of Air Vent for DG sets as per CPCB Emission Regulations (Part IV) Norms and/or guidelines issued by TNPCB in their Consent to Establish Order prerequisite as mentioned to ensure effluent gases emitting out of such DG sets are not affecting to the nearby residents.
Prayer:
(i) Direct Respondents 2, 3 & 5 to demolish/permanent shifting of the STP1 situated near Block B1, B2 and B3 without any remedial 6 measures to avoid any such possibilities of alleged pollution, bad pungent odour & sound and construction/installation/setting up new STP within stipulated fixed timeframe as per the requirement existing dwelling units and TNPCB norms in order to provide permanent solution perceiving the larger public interest.
(ii) Direct the Respondents No. 2, 3, 5 to increase the height of Air Vents/Stack height for all DG sets installed in this residential site/complex as per the CPCB Emission Regulations (Part IV) Norms and/or guidelines issued by TNPCB in their Consent to Establish Order prerequisite as mentioned to ensure effluent gases emitting out of such DG sets are not affecting to the nearby residents.
(iii) Direct Respondents 2, 3, 5 to find a solution to reduce burden to current environment state and ground water depletion.
(iv) Direct the 1st Respondent to ensure bio waste disposal management is performed as per norms through Bio Waste Recycler.
(v) Direct the Respondents 2, 3 & 5 to compensate monetarily to Applicant 1 & others towards suffering pain and damages along with Legal expenses as it may deem fit by this Hon‟ble Court.
(vi) Direct the Respondent No.1 to take appropriate legal action/proceedings under suitable civil/criminal laws against all those officials who abused their power to suppressing facts and abetting 5 th Respondent in many ways & falling in performing their duties in terms of taking timely actions against 5th Respondent.
(vii) Direct the Respondent No.1 to issue directions to Respondent No.5 that, no further sale/purchase of any dwelling units other than 1184 units takes place until the Environment Clearance for expanded 990 units is obtained from TNSEIAA to prevent further damages to environment & safety of residents/apartment owners by any mean & mode in terms of health hazard/mental harassment.
(viii) To pass any such order as this Hon‟ble Tribunal may deem fit to mitigate such unethical practise in future.
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4. While considering the application for admission on 24.03.2021, this Tribunal rejected the prayer of restraining the registering authority from registering the documents and also restraining the present 5th respondent (originally 11th respondent) from selling the plots, which are not sold out and deleted respondents 5 to 10 from the party array.
5. The matter was admitted only to the extent of violation of environmental clearance and other environmental laws and consequential pollution if any caused on account of the non compliance of the pollution norms by the project proponent namely present 5th respondent (originally 11th respondent).
6. This Tribunal also constituted a Joint Committee comprising of (1) Senior Officer from Ministry of Environment, Forest and Climate Change, Regional Office, Chennai, (2) Senior Officer from Tamil Nadu State Level Environment Impact Assessment Authority, Chennai, and (3) Senior Officer from Tamil Nadu Pollution Control Board as deputed by the Chairman to inspect the area in question and consider the following aspect and file a action taken report, if there is any violation found. The committee was directed to consider:
a. Whether any portion of the project was constructed without getting prior Environment Clearance, b. Whether the project proponent had committed any violation of the conditions of Environment Clearance, if any granted for the Project and consent conditions 8 c. The deficiency in Sewage Treatment Plant and the Diesel Generators (DG) Sets provided and the Pollution Control Mechanism provided for operation of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets are sufficient, if not what are the remedial measures to be taken to rectify the same.
d. If there are any violations of environmental laws found then assess the environment compensation and further action to be taken against the project proponent for the violation committed by them.
e. If there are any remedial measures to be provided, then the Committee was directed to suggest the nature of remedial measures to be provided to curb the alleged pollution problems raised by the applicant in the application.
7. 2nd respondent filed Counter Affidavit contending as follows:
a. They have reiterated the provisions in the EIA Notification which requires prior Environmental Clearance before starting the project or expanding the project and the authority to which the same will have been applied. b. They have extracted Item 8(a) and 8(b) of schedule to EIA Notification 2006 relating to Building Projects, which reads as follows:
SCHEDULE (See Paragraph 2 and 7) 9 List of projects or activities requiring prior environmental clearance (8) Project or Activity Category with threshold limit (1) (2) (3) (4) 8(a) Building and >20000 sq.mtrs and Construction Projects <1,50,000 sq.mtrs. ++ 8(b) Townships and Area Covering an area > 50 Development projects ha and or built up area >1,50,000 sq.mtrs. ++
8. They have further contended that the project proponent M/s.Puruvankara Projects Limited had applied to Ministry of Environment and Forest, Government of India seeking Environment Clearance for proposed construction of Residential Apartments in Survey Field Number 53/3, 53/4, 53/1B, 55, 55/1 57/2 and 57/4 of Pudupakkam Village, Chengalpattu Taluk, then Kancheepuram District under EIA Notification, 2006 and the said application was forwarded to State Environment Impact Assessment Authority Tami Nadu from Ministry of Environment, Forest and Climate Change, Government of India after formation of State Environment Impact Assessment Authority and State Level Expert Appraisal Committee of Tamil Nadu. Proposal has been appraised as per the prescribed procedure in the light of provisions under EIA Notification 2006, on the basis of the mandatory documents with the application namely Form-1 application Form-1A Conceptual Plan and EIA/EMP and additional clarifications furnished in response to the observations of the State Level Expert Appraisal Committee in its meeting held on 08-10 May 2008 and 12th June 2008.
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9. The proposal involved, the construction of a Residential Apartment Complex of plot area of 1,27,570.85 sq.mtrs. and total built-up area of 1,44,596 sq.mtrs. with 1184 apartments. The water requirement of the project was 819 KLD and intake of fresh water is 546 KLD which would be met by Chennai Metropolitan Water Supply and Sewage Board. They proposed to construct two Sewage Treatment plants with a capacity of 710 KLD total parking area of 498 cars.
10. The proposed solid waste generation was projected as 3600 kgs/day and power required is of 3 Mega Watt and backup Diesel Generators (DG) Sets 500 KVAx7 and the total cost of the project was Rs.190 Crores.
11. The project activity is covered by item 8(a) of schedule and falls under B2 category and it does not require Public consultation as per Para 7(i) III, Stage (3) (b) "Public Consultation"
EIA Notification, 2006.
12. The State Expert Appraisal Committee, after due considerations of relevant documents submitted by the project proponent and additional clarifications furnished in response to its observations, recommended the Project to State Environment Impact Assessment Authority, Tamil Nadu for issuance of Environmental Clearance in its meeting held on 19.06.2008.
13. The State Environment Impact Assessment Authority, Tamil Nadu granted Environment Clearance vide their proceeding No.SEIAA-TN/EC/8(a)/006/F-20/2008 dated 27.07.2008. The 11 Ministry of Environment, Forest and Climate Change (MoEF & CC) by Notification S.O. 804 (E) dated 14.03.2017 has stated that the cases of violations will be dealt strictly as per the procedure provided in the Notification which reads as follows:
"In case the project or activities requiring prior Environmental Clearance under EIA Notification 2006 from the concerned Regulatory Authority are brought for Environmental Clearance after starting the construction work, or have undertaken expansion, modernisation and change in product-mix without prior EC, these projects shall be treated as cases of violations and in such cases, even Category B projects which are granted Environmental Clearance by the SEIAA constituted under sub-section(3) Section 3 of the Environment (Protection) Act, 1986 shall be appraised for grant of Environment Clearance only by the Expert Appraisal Committee and Environmental Clearance will be granted at the Central Level."
14. As per further notification of Ministry of Environment, Forest and Climate Change, SO 1030(E) dated 08.03.2018 certain clarifications were issued which reads as follows:
"the cases of violations projects or activities covered under category A of the Scheduled to the EIA Notification, 2006, including expansion and modernisation of existing projects or activities and change in product mix, shall be appraised for grant of Environmental Clearance by the EAC in the Ministry and the Environmental Clearance shall be granted at Central level, and for category B projects, the appraisal and approval thereof shall vest with the State or Union Territory level Expert Appraisal Committee and State or Union Territory Environment Impact Assessment Authorities in different States and Union territories, constituted under sub-section (3) of section 3 of the Environment (Protection) Act, 1986."
15. Ministry of Environment, Forest and Climate Change in their official Memorandum No. F.No.Z-11013/22/2017-1A.II(M) dated 15.03.2018 issued the following guideline regarding implementation of Notification S.O.1030(E) which reads as follows: 12
"a)The proposals received up to 13th September, 2017 on the Ministry‟s portal, shall be considered by the EAC or the SEAC / SEIAA in the respective States / UTs, as the case may be, in order of their submission.
b) All the proposals of category „B‟ projects / activities pertaining to different sectors, received within six months only i.e. up to 13 th September, 2017 on the Ministry‟s portal, but yet not considered by the EAC in the Ministry, shall be transferred online to the SEAC / SEIAAs in the respective States / UTs.
c) The proposals submitted directly for considering of EC (in place of ToR) shall also be considered on the same lines, in order of their submission on the Ministry‟s portal.
d) All the projects of category „B‟ pertaining of different sectors, although considered by the EAC in the Ministry and accorded ToR, shall be appraised for grant of EC by the SEAC / SEIAA in the respective States /UTs."
16. The Ministry of Environment, Forest and Climate Change Office Memorandum F.No.Z.11013/22/2017-1A.II(M) dated 16.03.2018 have issued compliance of the order dated 14.03.2018 of the Hon'ble High Court of Judicature at Madras in WMP Nos. 3361 and 3362 of 2018 in WMP No.3721 of 2018 in WP No. 11189 of 2017 wherein it was observed as follows:
"In this view of the matter, considering that sub - clause (i) (dO) of Stage III of paragraph 7 (i) of parent notification as contained in item No. 8(a) of the Schedule being housing projects, we deem it necessary to clarify that projects and project proponents falling under category alone shall be governed by the "Public consultation" clause in the parent notification. With regard to the prayer of MoEF for extension of time for submission of proposals by project proponents, we are of the view that it will served the ends of justice, if time is extended by 30 (thirty) days from the date of delivery of this order in open court"
17. The Project proponent had furnished reply letter dated 27.07.2017 stating that the Project proponent had filed an application seeking expansion activity to Ministry of Environment, 13 Forest and Climate Change during window period vide Application No. A1/TN/NCP/63558/2017 dated 29.03.2017 as per Ministry of Environment, Forest and Climate Change Notification S.O.804(E) dated 14.03.2017. The project proponent had applied for Terms of Reference for the expansion of already constructed residential apartment complex at S.F. Nos. 53/3, 53/4, 53/10B, 55, 56/1, 57/2 and 57/4 of Pudupakkam Village, Chengalpattu Taluk, Kancheepuram District and the proposal involves expansion of already constructed residential apartment complex comprising of 5 modules (A, B, C, D, E) and Club House with 143 blocks (Existing EC: 75 Nos. + Additional 68 Nos.), 2174 dwelling units (Existing EC:
1184 Nos. + Additional 990 Nos.) having total built-up area of 1,91,215.02 sq.mtrs. (Existing EC: 1,44,596 sq.mtrs. + Additional 46,619.02 sq.mtrs.) and the total land area of 1,27,515.46 sq.mtrs. (Existing EC : 1,27,570.85 sq.mtrs.). The proposal was placed for appraisal in the 206th Meeting of SEAC (State Expert Appraisal Committee) held on 08.03.2021. The committee noted that the project falls under violation category and not applied for Environmental Clearance during violation window period. Hence, the State Level Expert Appraisal Committee unanimously decided to inform that this proposal cannot be considered for appraisal and file was referred back to State Environment Impact Assessment Authority Office for further action.
18. The Government of India, Ministry of Environment, Forest and Climate Change, Impact Assessment Division vide its Office Memorandum F.No.22-10/2019-1A.111 dated 09.09.2019 14 dealt with such issues relevant portions of such Office Memorandum reads as follows:
"A. It is possible that there may be certain category B proposals which were submitted at SEIAA during or prior to the violation window period but not under violation category and later during the appraisal by State Level Expert Appraisal Committee (SEAC) identified as violation proposals.
B. Now, a decision has been taken in the Ministry that such proposals as mentioned in para (8) above, may be considered in terms of provisions of Ministry‟s Notification dated 14.03.2017 & 08.03.2018 by the SEIAA. It is clarified that only those proposals may be taken up for consideration under this provision which had been submitted to SEAC during the window or prior to it as detailed above."
19. In view of the above, the proposal was again placed for appraisal in the 227th meeting of SEAC (State Expert Appraisal Committee) held on 21.08.2021. Based on the presentation and documents furnished by the project proponent, SEAC (State Expert Appraisal Committee) decided to recommend the proposal for the grant of Terms of Reference (ToR) subject to the following ToR in addition to standard terms of reference.
a. The project proponent furnish assessment of Ecological damage, remediation plan and natural & community resource augmentation plan to be prepared by the Accredited consultant and also with collection and analysis of data for the assessment of ecological damage, preparation of remediation plan and natural & community resource augmentation plan to be done by an Environmental laboratory duly notified under the Environment (Protection) Act, 1986, accredited by NABET or a laboratory of Council of Scientific and Industrial Research Institutions working in the field of Environment.
b. The proponent shall furnish the design details of the STP and Grey water treatment system after revising the water balance. c. As per G.O.Ms. No. 142 approval from central Ground water Authority shall be obtained for withdrawal of water and furnish the copy. d. Commitment Letter from CMWSSB for supply of water shall be furnished.
15 e. Copy of the village map, FMB sketch and „A‟ register shall be furnished.
f. Detailed Evacuation plan during emergency/natural disaster shall be submitted.
g. The space allotment for solid waste disposal and sewage treatment & grey water treatment plant shall be furnished. h. Details of the Solid waste management plan shall be prepared as per solid waste management Rules, 2016 and shall be furnished. i. Details of the E waste management plan shall be prepared as per E waste management Rules, 2016 and shall be furnished. j. Details of the Rainwater harvesting system proposed should be furnished.
k. A detailed storm water plan to drain out the storm water entering the premises during heavy rainy period shall be prepared including main drains and sub-drains in accordance with the contour levels of the proposed project considering the flood occurred in the year 2015 and also considering the surrounding development. The storm water drain shall be designed in accordance with the guidelines prescribed by the Ministry of Urban Development.
l. The proposed OSR area should not be included in the activity area.
The OSR area should not be taken into account for the green belt area. m. The layout plan shall be furnished for the greenbelt area earmarked with GPS coordinates by the project proponent on the periphery of the site and the same shall be submitted for CMDA/DTCP approval. The green belt width should be at least 3m wide all along the boundaries of the project site. The green belt area should not be less than 15% of the total land area of the project.
n. Cumulative impacts of the project considering with other infrastructure developments in the surrounding environs shall be furnished.
o. A detailed post-COVID health management plan for construction workers as per ICMR and MHA or the State Govt. guideline may be followed and report shall be furnished.
p. The project proponent shall furnish detailed baseline monitoring data with prediction parameters for modelling for the Emission, Noise and Traffic.
q. The details of Rain Water Harvesting Plan with cost estimation shall be furnished.
r. As per the MoEF & CC, Office Memorandum F.No. 22-65/2017-1A.III dated 30.09.2020 and 20.10.2020, the proponent shall furnish the 16 detailed EMP mentioning all the activities as directed by SEAC in the CER and furnish the same."
20. The proposal was placed in the 465th Meeting of State Environment Impact Assessment Authority held on 01.10.2021 and the authority decided to accept the recommendation of State Environment Impact Assessment Authority and decided to grant standard terms of reference for undertaking Environment Impact Assessment and preparation of Environment Management Plan with specific terms of reference under violations for assessment of ecological damage, remediation plan and natural and community resource of augmentation plan to be done by an Environmental Laboratory duly notified under the Environmental Protection Act, 1986 or an Environmental Laboratory accredited by National Accreditation Board for Testing and Calibration Laboratories or a Laboratory of a Council of Scientific and Industrial Research Institute working in the field of Environment and it shall be prepared as an independent chapter in the Environment Impact Assessment Report as recommended by State Expert Appraisal Committee and subject to general conditions in addition to the following conditions vide letter No. SEIAA-
TN/F.No.8201/Violation/ToR-1036/2021 dated 13.10.2021.
1. "The proponent shall furnish the analysis of the water quality of the bore well/Open well in and around at least 1km from the boundary of the project site.
2. Details of the building along with floor wise area of the each building.
3. Details of study on social impact, including livelihood of local people.
4. A detailed action plan on plastic waste management shall be furnished. Further, the proponent should strictly comply with, Tamil 17 Nadu Government Order (Ms) No. 84 Environment and Forests (EC-2) Department dated 25.06.2018 regarding ban on one time use and throw away plastics irrespective of thickness." The authority also decided to request Member Secretary- State Environment Impact Assessment Authority to address the State Government requesting to initiate action against the project proponent under provision of the Section 19 of Environment (Protection) Act, 1986 for the violations, since the proponent had initiated the development activities without the Environmental Clearance. Accordingly, State Environment Impact Assessment Authority Tamil Nadu addressed letter to Principal Secretary to Government, Environment, Climate Change and Forest Department, Government of Tamil Nadu, Secretariat, Chennai to initiate action against M/s.Puravankara Limited seeking Environment Clearance under violation for the Proposed Expansion of already constructed Residential Apartment Complex in the survey numbers mentioned above under Section 19 of the Environment (Protection) Act, 1986.
21. As per G.O. Ms. No. 29 dated 21.03.2020, issued by Environment Forest (EC.3-Department) as stated that:
"......10. The Government, after careful examination, accept the proposal of the Chairman, Tamil Nadu Pollution Control Board and empower the Tamil Nadu Pollution Control Board to monitor the compliances of Environmental Clearance conditions further issuance of the compliance certificate relating to Category „B‟ projects issued by the State Level Environmental Impact Assessment Authority...."
22. It was further contended that this Tribunal by order dated 24.03.2021 appointed a Joint Committee to go into the 18 question and the Joint Committee inspected the site on 16.07.2021 and submitted the report before this Tribunal with recommendations including the Environment Compensation for violation. They prayed for accepting their contention and passing appropriate orders by this Tribunal.
23. The 5th respondent M/s.Puruvankara Project Limited [originally 11th respondent] filed their Counter Affidavit contending as follows:
a. The application is not maintainable and it is barred by limitation. Though there were eight applicants in the application, there is no authorisation produced by the 1st applicant to represent the other applicants. The present application pertains to the multi-storeyed apartment complex, Provident Cosmo City, which is situated in Pudupakkam Village, Tamil Nadu 603 103 wherein initially they have planned to construct 1184 Units of apartments. Since it is a mandate to obtain Environmental Clearance before obtaining planning permit, they submitted the application to the Environmental Clearance with the plan of 1184 Units. Subsequently, due to change of Floor Space Index (FSI) norms, this respondent had decided to construct 2174 instead of 1184 units which was originally planned. Subsequently, they obtained planning permit for 2174 Units from Directorate of Town and Country Planning Authority on 26.02.2009, Mamallapuram Local Planning Authority on 22.05.2009. Building permit from Pudupakkam Panchayat on 05.06.2009. In the meantime, they obtained Environment Clearance for 1184 units on 24.07.2008.
b. As part of the process they had submitted an application for expansion of Environment Clearance on 6th February 2009 (evidenced by Annexure R5-1) and the application for expansion submitted in 2009 was neither granted nor rejected. 19 During 2009-2010, the State Environment Impact Assessment Authority Committee got terminated and there was lot of confusion prevailed as all the files got stacked for want of clarity. Later, it was advised to submit the application in Delhi. Subsequently, the new State Environment Impact Assessment Authority Committee was constituted and they submitted their application in Chennai. While so, the project was listed for violation. Meanwhile, they were constrained to complete the construction as the project cost was high and also to overcome the loss. Currently, the file is in the final stage. c. The project was completed and 2097 apartments have been handed over to the respective purchasers. Further, after the initial maintenance period was over, the 5 th respondent (originally 11th respondent) had handed over the maintenance to Cosmo City Resident‟s Welfare Association (CCRWA) as on 1st November 2017. The applicants themselves have admitted to this position and the document filed as Annexure A-25 clearly prove this fact. For the last almost 4 years, the Cosmo City Resident‟s Welfare Association (CCRWA) has been maintaining the entire apartment complex and its amenities including the ones complied of hereunder being the Sewage Treatment Plant (STP) and Diesel Generator (DG) sets. d. The DG Set installation guidelines and STP guidelines have been followed by the 5th respondent considering the overall unit of 2174.
e. During the preconstruction stage of the project, they had applied for and obtained an Environment Clearance on
24.07.2008 from the Ministry of Environment and Forests. This has been admitted by the Petitioners themselves. As regards the further developments by the Ministry of Environment and Forests in the year 2012, 2013 etc. regarding the direction of Closure of Project, they have sent their replies to the respective Departments vide their letters dated 24.01.2013 and 15.02.2013.
20 f. There was also an admission by the applicants that the construction of 2174 units had been approved by the Director of Town and Country Planning by their proceedings dated 26.02.2009 produced as Annexure C along with the Counter. As regards the construction of STP near Block B1, B2 and B3, it was informed that due to large size of the project and also the site related technical issues, STP has to be split into two different locations to ensure the efficiency of STP flow network. Subsequently, the revised location approval has been obtained from the Director of Town and Country Planning which was marked as Annexure R5 (2).
g. The DG sets was manufactured by Mahindra and installed by Henry & Farad Pvt. Ltd. and have the capacity of 320 KVA. They are at a height of 1800 mm and 2000 mm which is according to the PCB norms.
h. The width of the roads, shops near the complex etc., are clearly not issues that are irrelevant to the present application. These are clearly well within the knowledge of the applicants much prior to the purchase of the apartments from the 5th respondent (Originally 11th respondent) and the same are being used to defame the 5th respondent (Originally 11th respondent). i. This respondent has been permitted to construct 2174 units based on established legal requirements and hence the same cannot be questioned. The depletion of the ground water sources is a global phenomenon for which this respondent cannot be made solely responsible.
j. The allegation that the additional 990 units were not approved is not correct. In fact, the Directorate of Town and Country Planning had accorded approval for the entire project of 2174 units which includes 990 units as well. As regards the STPs are concerned, the documents provided to the Purchasers have clearly stated that the locations of the facilities would depend on the site requirement. Due to large size of the project and also site related technical issues, the STP had to be split into two different locations to ensure the efficiency of the STP 21 flow. Hence, the said space was identified. Further, the service and other utility are in the project will be changed according to site constraints for better improvement of the project. The Water fountain shown in the brochure was conceptual in nature. However, due to the site constraints and requirement, the STP had to be provided in the current location. It was specifically mentioned in the Brochure at Page No.11 that "This brochure is conceptual in nature and is by no mean a legal offering. The promoters have the right to change, alter, delete or add any specification mentioned herein."
24. The respondent further contended that as a goodwill gesture, they had operated the STP from November 2013 for C & D block and August 2015 for C & D Block and August 2015 for A & B Block to 07.11.2017 and minutes of the same are attached as Annexure R5-3.
25. As regards the allegations in Para 7, the answer of the respondent is as follows:
"i. Sought additional car parks by reducing the driveway from 9.00m to 7.2m and 7.2m to 3.5m Answer: The Correction in the drive way has been carried out / revised as per the DTCP norms and the same was approved by DTCP.
ii. Layout of STPs by earmarked it to B2 block and D block barely 3.5m and 6m respectively away from these blocks. Even, the STP 1 near the B1 block has connected effluent gas/contaminated air passage which is erected using front wall. Copy of pic showing visual representation is annexed herewith as ANNEXURE A-16.
Answer: The Location of the STP is mentioned in the sanction plan. Ventilation to the STP to take out the gas generated during the operation of treatment plant is the requirement of the design. In the absence of this ventilation system there is possibility of foul smell if the plant is not maintained in proper condition.
22 iii. By submitting the consent to establish approval obtained from Respondent 1 on dated 19/03/2013. However, it is worth noticing that the consent to provide approval only for establishing 650 KLD capacity of STP in total for the apartment units 1184 and not for 2174 units. Secondly, it was recommended the total capacity of 650 KLD waste water to be precisely treated in two sewage treatment plants thus reduction in plant size.
Answer: The provided STP capacity is sufficient to treat the sewage generating from 2174 units."
26. The issuance of completion Certificate is not within the domain of DTCP at all. There was no Completion Certificate for the project which falls within the purview of DTCP as they did not have jurisdiction to issue Completion Certificate. The Property Tax Assessment will have to be carried out by the Corporation/local body and that was completed in accordance with DTCP approval. So, the building is deemed to be completed in all aspects when the local body started collecting tax for the property, Property Tax receipt was produced as Annexure R5-5.
27. The subsequent application for environment clearance was filed only in respect of expansion of the additional units which were made on 06.02.2009 evidenced by Annexure R-5. After the project was marked as delisted, the 5th respondent had applied to the 2nd respondent/ Ministry of Environment, Forest and Climate Change to relist the project and the same is pending. The STP was provided as per the norms of the authority and the same is inspected and certified during issue of consent for operation. STP is functioning as per desired standard when being managed by skilled persons and maintaining as per PCB Regulations, the same can be 23 ascertained by the periodic test reports of the treated water produced as Annexure R5-7.
28. Once the complex is handed over, it is the duty of the association to take over the responsibility of the STPs as mutually agreed and signed the agreement. The Association CCRWA had taken over the maintenance since 1st November, 2017. When the respondent was operating the STP, the same was not emitting any pungent odour and that the maintenance was also proper. They have provided the provision for solid waste management and has installed OWC capacity of 1000kg/d to compost organic waste. The Cosmo City Resident's Welfare Association (CCRWA) had taken over the same and the allegations of the applicants are regarding the present status for which they are not responsible. The Diesel Generators (DG) Sets are provided as power backup and runs only during power failure. These Diesel Generators (DG) Sets are provided with acoustic enclosures in order to avoid the noise pollution. The sufficient stack heights were provided as per the norms. They were not aware of the proceedings pending before the State Human Rights Commission.
29. The building was handed over during 2017 and the application was filed in 2021 alleging the violation which is barred by limitation. The relocation of STP is not possible and the reason for such relocation being odour or sound is direct result of the poor 24 maintenance by the association. The details of the allotments granted to the applicants was as follows:
a. Arvind Kumar - B02-302
b. Janarthanan - B01-302
c. V. Sundareswaran - B01-202
d. Amit Kumar Ghosh - B01-103
e. S. Renganathan - B01-101
f. Radhakrishnan - B01-003
g. Ravichandran KS - B06-101
h. Santosh Sengunthat - A23-201
Flat No. Customer Name Booking Date Registration Possession
Date Date
B-02-302 Riti Agarwal 30-Jun-12 16-Feb-15 11-Mar-15
B-01-302 Janarthanan. P 20-Jun-11 13-Aug-14 6-Nov-15
B-01-202 Sundareswaran 08-May-11 4-Jan-13 4-Apr-16
B-01-103 Seema Kapur 18-Aug-12 12-Nov-14 21-Mar-15
B-01-101 Mir Mohammed 09-Mar-11 4-Jan-16 4-Jan-16
Shujath Ali
B-01-003 Shashikant 25-Jun-11 12-Mar-15 20-Mar-15
Chari
B-06-101 Dr. K.S. 10-Aug-11 27-Jan-12 2-Feb-15
Ravichandran
A-23-201 Umapathy 18-Jan-18 24-Apr-18 27-Apr-18
30. The Joint Committee Report will also go to show that when inspection was done on 10.08.2020 nearly 3 years after the maintenance was being carried out by Cosmo City Resident's Welfare Association (CCRWA) and hence the alleged environment compensation are to be paid by the said association only. Shifting of STP as recommended by the Joint Committee is not possible which will result in several problems. So they prayed for dismissal of the application.
25
31. The applicant filed rejoinder to the counter filed by the 1st respondent denying the allegations. They have reiterated the contentions raised by them in their application. As regards the location of the STP is concerned, they were relying on the circular issued by the Tamil Nadu Pollution Control Board vide Circular Memo No.T16/25323/STP/R1/2007-4 dated 23.10.2008, guidelines was citing Sewage Treatment Plant which reads as follows and this was produced as Annexure A-18.
"Sewage Treatment Plant siting Criteria -
Guidelines
1. The STP site should be at least 205 metres away from any lake or pond preferably in the downstream side of lake or pond so that the sewage shall not reach the water bodies.
2. The STP site should be located more than at least 250 metres away from river or stream and shall ensure that the treated/ untreated sewage should not reach the above water sources.
3. The STP site should be located at least 500 metres away from a notified habituated area and zone of 100 metres around STP site boundary should be declared as no-development zone so that green belt can be developed in that area."
32. As regards the Diesel Generators (DG) Sets are concerned, they are producing enormous pollution during operation and low height of such emissions stacks results in air pollution as well. The Joint Committee also failed to note the conditions mentioned in the construction established where the stack height 26 was mentioned as 15 meters. They have relied on various provisions of the contract. The State Environment Impact Assessment Authority has got power to issue additional safeguards. They have denied various allegations made in the counter statement regarding the permission granted by various authorities. They have reiterated the violation committed by the 5th respondent in carrying out the project. So they prayed for allowing the application.
33. The 1st applicant also filed Rejoinder to the affidavit filed by the 2nd respondent reiterating the contentions raised in the application and also relying on the several decisions and the right of the applicant to challenge the violation as an independent cause. They also mentioned that there are several violations in the construction of the units by the project proponent. They also relied on the Office Memorandum issued by Karnataka State Pollution Control Board in respect of establishment of STPs.
34. As per order dated 29.09.2021 this Tribunal considered a Joint Committee Report signed by the Members on 27.09.2021 e-filed on 28.09.2021 extracted in Para 2 of the Order which reads as follows.
27 28 29 30 31 32
35. The applicant filed objection to the Joint Committee Report and this Tribunal directed the Joint Committee to consider the objections and then directed the Pollution Control Board to file further report. Accordingly, the further report was filed by the Pollution Control Board which was considered by this Tribunal signed by the Officer on 03.03.2022 and e-filed on 04.03.2022 which was extracted in Para 4 of the order which reads as follows:
33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
36. Heard the 1st Applicant who was appearing in person on behalf of the applicants, Dr. D. Shanmuganathan for 1st respondent, Mr. Meyyappan representing Mr. Me. Saraswathy for 2nd respondent, Mr. S. Sai Sathya Jith for 3rd and 4th respondents and Mr. R. Satishkumar for 5th respondent.
37. The 1st applicant who appeared in person argued that the 5th respondent had committed violation of environmental laws, the additional constructions were made without obtaining environmental clearance and the compensation awarded is not proper. Further, the STP was not provided in the location and it is against the siting criteria provided by the Tamil Nadu Pollution Control Board. Since there is environmental violation and still it is continuing, it is a continuing/recurring cause of action and as such any loss sustained by the applicants on account of the violation committed by the 5th respondent including for restoration can be filed within five years and as such the application is within time.
38. Further, they cannot take the shelter of handing over the possession and since the entire project was not completed it cannot be said that the project has been completed and handed over to the association and the liability of the builder to rectify the mistakes committed by them cannot be taken away and that responsibility 48 will continue even now. So, according to the applicant, the application is maintainable and they are entitled for the reliefs claimed in the application.
39. On the other hand, the Counsel appearing for the Pollution Control Board and the Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) submitted that as regards the violation of environment laws are concerned, they are taking appropriate action. The application filed by the 5th respondent for their expansion project enhancing the number of units from 1184 to 2174 is treated as a violation case and that is still pending. Since they have committed violation, they have been directed to stop the work and in spite of that, they have completed the project and appropriate action will be taken by the Ministry of Environment, Forest and Climate Change, in this regard.
40. The Counsel for the Pollution Control Board also submitted that for the violation committed they will be taking appropriate action.
41. The Counsel appearing for the 5th respondent submitted that the application is barred by limitation and that the buildings were handed over in the year 2017 and the application was filed only in the year 2021 and they have no liability to maintain the Sewerage Treatment Pant (STP) and Diesel Generators (DG) Sets, once it was handed over to the association and it is thereafter the responsibility of the association to maintain the same. No compliant were made regarding the violation of Environment laws at the time when the building was handed over. Since the allegations were 49 made only now when they failed to fulfil their responsibility of maintaining the Sewerage Treatment Pant (STP) and also Diesel Generators (DG) Sets the application is barred by limitation. Since they have filed the application for Environment Clearance for the expanded units and while the applications were pending, they were compelled to complete the process as there was some delay in processing the application filed by them and that was done under bona fides in order to avoid escalation of charges in finishing the project. They are not liable to pay any compensation and they are not liable for any of the reliefs claimed by the applicant.
42. Considered the pleadings, report submitted by the Committee and the Pollution Control Board and submissions made by the applicants and the Counsel appearing for the respondents.
43. The points that arise for consideration are :
a. Whether the application is maintainable? b. Whether the application is barred by limitation? c. Whether the 5th respondent has committed any violation of Environmental laws and if so what is the nature of violations committed?
d. What is the nature of action to be taken against the 5th respondent, if the violations were committed by them including imposition of environmental compensation? e. Whether the applicant is entitled to get any of reliefs claimed in the application?
50 f. What is the nature of directions, if any to be issued applying to the precautionary principle and sustainable development on the facts and circumstances of this case.
g. Relief and costs. POINTS:
44. The grievance in this application is regarding improper functioning of Sewerage Treatment Pant (STP) provided proceeding the project by the 5th Respondent without obtaining proper Environment Clearance and Consent to Establish and consent for operation and removal of the sand grievance regarding the location of STP No.2 causing pollution on account of the operation of the Sewerage Treatment Pant (STP), etc.
45. The 5th respondent filed counter admitting that originally they proposed to have a building complex of 1184 units for which Environment Clearance was obtained in the year 2008. But during the course of the proceedings in 2009, they decided to enhance the units to 2174 and accordingly obtained revised Planning Permission from Town and Country Planning Authority and thereafter, filed an application for environment clearance for the expanded project, but due to some administrative reasons and non-functioning of the Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) for expiry of the term they could not process the application but in order to avoid delay in completing the process and also to avoid escalation of charges of the cost of the project, they have proceeded with the project. Subsequently, the Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) 51 found that it was violation case and on that basis, an application has been filed for treating this as violation case and the proceedings are pending. But, they have also contended that the project in respect of the applicant's area was completed in the year 2017 and it was handed over and the Provident Cosmo City Resident's Welfare Association (CCRWA) is in management of the same and the application filed after four years of handing over and complaining about the function of Sewerage Treatment Pant (STP) etc. is barred by limitation. They have also contended that there was no authorization produced by other applicants for the 1st applicant to conduct the case and as such the application is not maintainable. It may be mentioned here that the application was filed as a joint application by several petitioners. The 5th respondent had no case they have not signed the application. Merely it was the 1 st applicant was representing other applicants, will not ipso facto made the application non-maintainable, especially when no document has been produced by the 5th respondent to show that others have not joined the application along with the 1st applicant. Further, even according to the 5th respondent the entire project has not been completed and stop order was issued and environment clearance granted was kept in abeyance by the Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA). In spite of that they continued the construction of the project. Further it is seen from the report submitted by the Pollution Control Board that as far as the second STP which is the subject matter of this case, no consent to establish or consent to operate was obtained. So under such 52 circumstances, it is a case of continuous violation of the environmental laws and it cannot be treated to be a completed project and handed over to the purchasers in accordance with law.
46. During the course of the pendency of the environment clearance, if anything was done in violation of the environment laws it will be deemed to be a continuing and recurring cause of action and each violation will amount to a fresh cause of action for the applicant to file the application. So, under such circumstances, the contention raised by the Counsel for the 5th Respondent that the application is not maintainable and the same is barred by limitation is unsustainable in law and the same is rejected.
47. Admittedly, the portion which is in occupation of the applicants namely B-1 block and the Sewerage Treatment Pant (STP) under dispute namely STP No.2 are constructed without obtaining environment clearance for the expanded project as it is seen from the Joint Committee Report that the Block D and STP No.1 are part of the original environment clearance of 1184 units and B Block is part of the second phase namely expanded project of 990 units. As regards the second block is concerned, there was no environment clearance, there was no consent to establish or consent to operate obtained and the entire expanded project was proceeded with the flagger violation of environment laws. Further, it is seen from the Joint Committee Report that there are some deficiencies noted by the Joint Committee in respect of the STP in dispute, which reads as follows:
53
"Observations of the joint committee made during the time of inspection:
1. The Unit of M/s. Puravankara Projects Limited - Cosmocity - S.F. No.53/3, 53/4, 53/10B, 55, 56/1, 57/2, 57/4 Pudupakkam Village, Vandalur Taluk, Chengalpattu District has constructed a residential complexasPhase-1 with total built up area of 144596 sq.m. with 1184 Dwelling units for which the unit has obtained Environmental Clearance from SEIAA, Chennai and Consent to operate under the Water(P&CP) Act, 1974 and the Air (P&CP) Act, 1981 from the TNPC Board vide proceedings dated 15.03.2017 valid upto 31.03.2018.
2. The unit has provided Sewage Treatment Plant (STP-1) of capacity 650 KLD near Block D for the treatment of sewage generated from the Phawe- 1 residential complex with 1184 dwelling units.
3. The unit has constructed additional residential complex as Phase II with total built up area of 40619.02 Sq.m with 990 dwelling units without obtaining Environmental Clearance and also without obtaining consent for establishment from the TNPC Board.
4. The unit has provided Sewage Treatment Plant (STP-II) of capacity 650 KLD for treatment of sewage generated from the 990 dwelling units near Block B, the area in question.
5. The STP meant for treating the sewage generated from the 990 dwelling units is placed near Block B i.e. Block B1 & Block B2 with a distance of 6m in between.
6. The applicant Thiru. Arvind Kumar Agarwal (Block B2, Flat No.302) residential flat is located in 3rd floor (Total floors -4 including Ground floor) of the Block B of the said residential complex.
7. Sewage Treatment Plant (STP-II) of capacity 650 KLD was provided for the treatment of sewage generated from the Block A & Block B of the said residential complex is located at about 6m from the Block B and reported to be functioning since 2017.
8. The said Sewage Treatment Plant (STP-II)comprises of Collection cum Equilization Tank, Aeration cum Settling Tank (SBR), Studge Holding Tank, Filter feed tank, dual Media Filter, Treated sewage tank and Filter press which were in operable condition at the time of inspection. The filter press(sludge dewatering mechanism) was found to be not put into operation so far, thus the excess sludge generated during the treatment of sewage was let out outside the premises through private tanker lorries. 54
9. The entire treatment units except Dual Media Filter and Treated sewage tank of the said STP is housed in a closed building with concrete roof with a door and two windows.
10. Dual Media Filter and Treated sewage tank of the said STP is housed in a covered shed.
11. An Electro Magnetic Flow meter (EMFM) was fixed at the outlet of the STP to assess the quantum of sewage treated in the STP, whereas an EMFM at the inlet of said STP, Toilet flushing reuse and Gardening purposes are yet to be installed.
12. Blower 2 Nos - 30 HP each is housed in the said STP for the supply of air to the aeration tank which is partially covered with acoustic enclosures as shown in the following photographs, which is the main source of noise pollution.
13. Aeration cum settling tank above the ground level is completely closed and provided with 4 Nos. of manhole for inspection purpose.
14. The blower arrangement provided to suck & release the odorous gas if any generated from collection cum equilization tank was under operation at the time of inspection.
15. The arrangement has been provided for the utilization of the treated sewage for gardening and for toilet flushing by providing dual plumbing line within the Flat premises. But there is no disinfection facility to disinfect the treated sewage before utilizing for toilet flushing.
16. During the time of inspection odour was felt by the members of the committee near the STP-II area.
It is respectfully submitted that another Sewage Treatment Plant (STP-1) for the treatment of sewage generated from other blocks such as Block C & Block D of the said residential complex is also functioning in the same premises in other location near Block D which is also operated by Provident Cosmo City Resident‟s Welfare Association (CCRWA) for which there is no complaint has been received from the nearby residents. 55
Report of analysis of the treated sewage collected from the STP on 26.07.2021 by the District Environmental Engineer, TNPCB, Maraimalai Nagar reveals that the parameters (pH, TSS & BOD) analysed are satisfy the treated sewage standards prescribed by the Board. Report of analysis of the Ambient Noise Level survey conducted by the TNPC Board Laboratory on 02.08.2021 reveals that the notes level measured at the petitioner‟s residence Flat NO.B2-302 is 57.3 dB(A) Leq (in the Hall), 59.6 dB(A)Leq (in the Bed room) as against the standard of 55 dB(A). Further, in the residence of Thiru. Radhakrishnan Flat No.B1-003 is 61.3 dB(A) Leq. as against the standard of 55 dB(A). The noise level is 65.9 dB(A) as measured in the common corridor near STP."
48. They have also made certain recommendations which reads as follows:
"Recommendations of the Joint Committee:
The Joint Committee has suggested the following recommendations in the above said subject matter before the Hon‟ble National Green Tribunal:
1. The proponent/association shall operate and maintain the STPs components continuously & efficiently so as to achieve the treated sewage standards prescribed by the Board.
2. The proponent/association shall utilize the treated sewage on land for gardening and toilet flushing within the flat premises after satisfying the treated sewage standards prescribed by the Board.
3. The proponent/association shall provide UV disinfection system for the disinfection of the treated sewage before utilization of the same for toilet flushing.
4. The proponent/association shall provide separate EMFMs at the inlet of STPs. Toilet flushing reuse line & Gardening reuse line so as to assess the continuous operation & utilization of the treated sewage from the STPs. 56
5. The proponent/association shall revamp, provide the acoustic enclosure to the blowers attached to aeration tank of the STP II located near Block B to mitigate the noise nuisance.
6. The proponent/association shall provide acoustic measures for the doors and the windows provided in the STP II located near Block B to mitigate the noise nuisance.
7. The proponent/association shall remove the flexible hoses provided for pumping of the sewage from the collection tank and shall avoid in future also.
8. The proponent/association shall operate the filter press provided in the unit for the removal of excess sludge and shall stop disposing the same through lorry tankers.
9. The proponent/association shall ensure that the blower arrangement to suck & release the odorous gas if any generated from collection cum equilization tank provided is operated continuously.
10. The proponent/association shall provide full fledged mechanical ventilation arrangement in the STP II located near Block B.
11. The proponent/association shall maintain logbook for the operation of the STPs and to assess the quantity of energy consumption.
12. The proponent/association shall make all provisions for avoiding the entry of storm water into STPs which hampers the regular and efficient operation of the treatment system.
13. The treated sewage shall be reused completely in the complex and shall not be discharged outside the premises at any point of time.
14. The proponent/association shall engage a qualified firm/agency for operating & maintaining the STPs. The STPs has to be operated regularly in a scientific manner to avoid septi conditions and resulting odour problems.
15. The analysis of the treated sewage shall be done periodically to assess the performance of the STPs.
57
16. The proponent shall apply and obtain Environmental Clearance for the additional constructed residential complex with 990 dwelling units with total built up area of 26619.02 Sq.m.
17. The proponent shall remit the Environmental Compensation of Rs.1,24,20,000/- for the above said violations.
18. The proponent shall shift the Sewage Treatment Plant-II of capacity 650 KLD located adjacent to the petitioners residence to the permissible location within the premises as there was noise and odour nuisance as observed during the time of inspection by the committee members."
49. The applicant filed objection to the same. They have also assessed environment compensation to the tune of Rs.1,24,20,000 for the violation committed treating the number of days of violation as 414 (from the date of violation noticed to 27.09.2021). It was observed that the violation was noticed only on the date on which the inspection was conducted but this was contrary to the proceedings already initiated by the Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) and also admission made by the 5th respondent themselves that during 2009 itself they filed an application for expansion of increasing the number of units to 2174 from 1184 and during the pendency of the application, the project was proceeded with.
50. The further report submitted by the Pollution Control Board e-filed on 03.03.2022 which was extracted earlier also shows that there was some deficiencies in the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets provided which results in pollution both odour and noise. They also suggested certain measures to be taken by the project proponent to rectify the same. 58 It is also seen from the documents produced by the applicant themselves that there was a tripartite agreement entered into between the project proponent Resident Association and another agency for revamping the STP evidenced by an agreement dated 22.03.2021 between CCRWA (Cosmo City Residents Welfare Association) and M/s.Provident Housing Limited and M/s. Seemak Hi-Tech Products produced along with the objection filed by the applicant dated 21.10.2021 wherein they have agreed to share the expenditure equally between the developer and the resident Association. Further, the document produced by the applicant will go to show that proceedings have been initiated against the 5th respondent by MoEF & CC as early as on 14.10.2013 vide their proceedings F. No.CR/TN/EC/D(A)/ O06/F-20-2008 whereby a show cause notice was issued as to why closure of the project should not be ordered and reply was submitted by the 5th respondent but the act of the 5th respondent was not ratified by MoEF & CC and even admittedly, the proceedings were still pending. So, under such circumstances, it cannot be said that there was no latches/lapses on the part of the 5th respondent in proceeding the project and they are not liable to compensate or rectify the mistakes in the amenities provided, if they are not properly working and some rectification is required in this regard. As regards the contractual obligations are concerned, the remedy of the applicants is to approach the Real Estate Regulatory Authority (RERA) for redressal of the grievance. This tribunal can consider only the question of environmental law violation and any further 59 directions to be given to the project proponent to rectify the activities, which causes pollution on account of operation of certain amenities provided by the Project Proponent. If the project has been done in violation of the environment laws, the project proponent cannot take shelter under the handing over the same to the purchasers and put the responsibility on them to rectify the defects if any, in the amenities provided. Since, they have not obtained any consent establish or consent operate for STP No.2 which is under dispute it cannot be said that it was done in tune with the terms and conditions of the consent mechanism which they are expected to obtain under Water Act and Air Act.
51. Further the decision reported in M/s. Goel Ganga Developers India Pvt. Ltd. v Union of India and ors. 2018 (18) SCC 257, Sterlite Industries India Pvt. Ltd. v Union of India through Secretary, Ministry of Environment and Forests & others 2013 (4) SCC 575 and Alembic Pharmaceuticals Ltd. v Rohit Prajapati & Ors. 2020 SCC online Supreme Court 347, Keystone Realtors Pvt. Ltd. v Anil V Tharthare & Ors. 2020(2) SCC 666, the Apex Court has categorically said that closure is not the ultimate aim and applying the doctrine of proportionality the damage caused for environment can be compensated by imposing Environment Compensation.
52. Further, closure and demolition of the units will affect the occupier of the building as well and they will be made homeless. The question as to whether postfacto clearance has to be granted or not can be considered by the authority but at the same time, this Tribunal is entitled to impose compensation for the violation of the 60 environment laws committed by the 5th respondent. We are not in agreement with the number of days violation noted by the Joint Committee especially, even in 2013 a Show Cause Notice was issued to the Project Proponent for completed the project without obtaining environment clearance for the expanded project and no consent establish or consent operate was obtained for the expanded project or for the establishment of the second Sewerage Treatment Pant (STP) which is under dispute. So, we feel that five years period of violation can be taken for the purpose of assessing compensation if that be the case instead of 424 days number of days violation has to be taken as 1825 days. If recalculation is made on that basis, then the compensation amount will come to Rs.5,47,50,000/- (80 x 1825 x 250 x 1.5 x 1) and we are rounding into 5,50,00,000/- which the 5th respondent is liable to pay to Tamil Nadu Pollution Control Board as Environmental Compensation for the violation committed by them instead of 1,24,20,000/- fixed by the committee.
53. As regards the location of STP is concerned, even at the time when they applied for Environment Clearance they anticipated two STPs and even at the time when they launched the project they anticipated collection of sewage at a particular limit and STP was proposed for that purpose. When the subsequent expansion was anticipated and proposal of a revised plan was approved, they are decided to go for another STP for the purpose of sharing the treatment of sewage generated in the entire complex. The siting criteria that has been relied on by the applicant issued by the 61 Pollution Control Board for establishment of Common Sewage treatment Plant and the common waste disposal facilities cannot be made applicable to establishment of Waste Management facility and Sewage Treatment Plants in a building complex, which is intended for treating the waste and sewage generated by the occupants of the complex alone. If such a siting criteria is proposed, then it will not be possible for granting permission for any Building Complex at any place as so much area will not be available for the purpose of providing STP and the Waste Management facility as the quantity generated will be much less. So, the submission made by the applicants that the Sewage Plants are situated very near to their Residential Complex and thereby violating the siting criteria cannot be accepted. It is likely to be situated, near to any one of blocks but only thing is either the association or the project proponent has to make adequate Pollution Control Mechanism for the units to avoid complaint of any Odour or Sound Pollution being caused on account of the operation of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets.
54. Though the applicants submitted that even in respect of STP No.1 there are complaints among the members but the committee members at the time of inspection informed that there was no such complaint and it is functioning properly. Even in respect of STP No.2, it meets standard but there are certain installation problems like providing vents, disinfection procedure and proper closure for the STP and not providing necessary sound protection mechanism for the Diesel Generators (DG) Sets. The 62 association cannot be blamed for that as they can only manage the manner in which it was handed over to them or said to have been handed over to them. The project proponent had no case that any of the deficiencies noted by the Joint Committee was due to improper operation of Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets by the occupier. It is seen from the report that the sound emanates from the Diesel Generators (DG) Sets exceed the limit provided for residential area both at the day time and night time. So, it is the responsibility of the Project Proponent to rectify the same. Similarly, the odour pollution and the sound pollution caused on account of the operation of the Sewerage Treatment Pant (STP) was also not due to the mismanagement of the same by the association but it is the inherent defect noticed at the time of handing new by the Project Proponent which also has to be rectified by them. One of the suggestion given by the Joint Committee was to relocate the Sewerage Treatment Pant (STP) from that place but before directly relocation of the same, we feel that an opportunity can be given to the Project Proponent to carry out the recommendations made by the Joint Committee for resolving the Pollution issues both Odour and Sound on account of the operation of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets, in consultation with the Pollution Control Board to be carried out by them within a reasonable period and even if after such rectification methods are provided by the Project Proponent the nuisance subsists, then the Project Proponent has to take steps to relocate the STP No.2 from the present location and establish the 63 same in a suitable location with all infrastructure facilities including all Pollution Control Mechanism to avoid complaint being coming from the occupants of the unit. After the same is rectified to the satisfaction of the Members of the Association then the maintenance of the same has to be undertaken by the association as has been agreed to by them when they purchased the units. Till the amenities like Sewerage Treatment Pant (STP) and Diesel Generators (DG) Sets achieves the norms to the satisfaction of the Statutory Authorities without causing pollution then the responsibility is always on the Project Proponent to rectify the same and that cannot be shifted to the residents of the association unless it was established by cogent evidence that this has caused on account of the mishandling of the units by the users namely Residents Association and such an evidence is not produced. So, the project proponent is liable to remedy the situation by providing all suitable remedial measures suggested by the Joint Committee to see that the STP No.2 and Diesel Generators (DG) Sets are functioning properly without causing any pollution and if it is not possible, in spite of the rectification provided, then they will have to take steps to shift the STP No.2 to a suitable position as recommended by the Joint Committee subject to necessary clearances in force.
55. In view of the discussions made above, we feel that the application can be disposed of as follows:
64
a. The application is maintainable and the application is filed within limitation. The contention contra raised by the Project Proponent are rejected.
b. The Project Proponent had committed violation of Environment laws and proceeded with expanded project without obtaining environment clearance and consent of establish and consent for operation and as such they have committed violation of environment laws and they are liable for the damage caused to environment which they are liable to compensate.
c. The defect noted in STP No.2 and the pollution caused on account of the operation of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets are due to not providing proper mechanism to avoid pollution being caused by the Project Proponent and as such they are liable to rectify the same. After rectifying the same, they are also expected to apply for renewal of the consents and the same will have to be obtained and thereafter the liability to maintain the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets and further obtaining renewal thereafter of necessary consent etc. will be that of the association.
d. The 5th Respondent is liable to pay an Environmental Compensation of Rs.5,50,00,000/- (Rs.5,47,50,000/- = 80 x 1825 x 250 x 1.5 x 1 and we are rounding into Rs.5,50,00,000/-) to the Tamil Nadu Pollution Control Board within a period of two months and if the amount is not paid 65 within that time, then the Pollution Control Board is directed to take steps to recover the amount in accordance with law from them.
e. The Project Proponent is directed to carry out the recommendations for rectifying the defects noted in the STP No.2 and the Diesel Generators (DG) Sets and take all mitigation measures to remedy the situation and avoid Pollution being caused on account of the operation of the same by providing necessary Pollution Control Mechanism as suggested by the Joint Committee within a period of two months in consultation with and to the satisfaction of the Pollution Control Board and in spite of the rectification made, if the pollution caused on account of the operation of the STP could not be resolved permanently then the same (STP No.2) will have to be relocated from that place to a suitable position as suggested by the Joint Committee and subject to necessary clearances in force.
f. The MoEF & CC is directed to consider the application for Environment Clearance filed by the project proponent as a violation case, has taken appropriate decision at the earliest. g. Once the defects noted for Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets are rectified to the satisfaction of the Pollution Control Board and thereafter it is the responsibility of the Association of the Residents of the Complex (Cosmo City Residents Welfare Association) to carry out the maintenance of the Sewerage Treatment Pant (STP) 66 and the Diesel Generators (DG) Sets including obtaining necessary consent thereafter.
h. The right of the applicant to approach the RERA (Real Estate Regulatory Authority) for enforcing any of the rights against the Project Proponent for violation of the contract conditions or deficiency in service and seek their remedy is left open.
56. The points are answered accordingly.
57. In the result, the application is allowed in part and disposed of as follows with following directions.
(i) The application is maintainable and the
application is filed within limitation. The
contention contra raised by the Project
Proponent are rejected.
(ii) The Project Proponent had committed violation of
Environment laws and proceeded with expanded project without obtaining environment clearance and consent of establish and consent for operation and as such they have committed violation of environment laws and they are liable for the damage caused to environment which they are liable to compensate.
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(iii) The defect noted in STP No.2 and the pollution caused on account of the operation of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets are due to not providing proper mechanism to avoid pollution being caused by the Project Proponent and as such they are liable to rectify the same. After rectifying the same, they are also expected to apply for renewal of the consents and the same will have to be obtained and thereafter the liability to maintain the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets and further obtaining renewal thereafter of necessary consent etc. will be that of the association.
(iv) The 5th Respondent is liable to pay an
Environmental Compensation of
Rs.5,50,00,000/- (Rs.5,47,50,000/- = 80 x
1825 x 250 x 1.5 x 1 and we are rounding into
Rs.5,50,00,000/-) to the Tamil Nadu Pollution Control Board within a period of two months and if the amount is not paid within that time, then the Pollution Control Board is directed to take steps to recover the amount in accordance with law from them.
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(v) The Project Proponent is directed to carry out the recommendations for rectifying the defects noted in the STP No.2 and the Diesel Generators (DG) Sets and take all mitigation measures to remedy the situation and avoid Pollution being caused on account of the operation of the same by providing necessary Pollution Control Mechanism as suggested by the Joint Committee within a period of two months in consultation with and to the satisfaction of the Pollution Control Board and in spite of the rectification made, if the pollution caused on account of the operation of the STP could not be resolved permanently then the same (STP No.2) will have to be relocated from that place to a suitable position as suggested by the Joint Committee and subject to necessary clearances in force.
(vi) The MoEF & CC is directed to consider the application for Environment Clearance filed by the project proponent as a violation case, has taken appropriate decision at the earliest.
(vii) Once the defects noted for Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets are rectified to the satisfaction of the Pollution Control Board and thereafter it is the responsibility of the Association of the Residents 69 of the Complex (Cosmo City Residents Welfare Association) to carry out the maintenance of the Sewerage Treatment Pant (STP) and the Diesel Generators (DG) Sets including obtaining necessary consent thereafter.
(viii) The right of the applicant to approach the RERA (Real Estate Regulatory Authority) for enforcing any of the rights against the Project Proponent for violation of the contract conditions or deficiency in service and seek their remedy is left open.
(ix) The MoEF & CC, Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) and the Pollution Control board are directed to take appropriate action against the Project Proponent including initiation prosecution for violation of Environment Laws as provided under Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 in accordance with law.
(x) Considering the circumstances the parties are directed to bear respective cost in the application.
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(xi) The Registry is directed to communicate this order to the MoEF & CC, Tamil Nadu State Environment Impact Assessment Authority (TNSEIAA) and Pollution Control Board for their information and compliance with the directions.
58. With the above directions and observations, the application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No. 87 of 2021 23rd May, 2022 SE.
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