Tanaji Balasaheb Gambhire vs Chief Secretary-Gom on 4 May, 2022

[Cites 10, Cited by 0]

National Green Tribunal

Tanaji Balasaheb Gambhire vs Chief Secretary-Gom on 4 May, 2022

1. This appeal has been preferred against order of SEIAA, Maharashtra dated 25.03.2020 granting Environmental Clearance (EC) for construction project "Gangadham Towers" by M/s Goel Ganga India Pvt. Ltd (the PP).

The project in question is on plot area 20,798.00 sq. m. with FSI 50,641.85 sq. m. and non-FSI 74,222.80 sq. m. Brief information of the project given in the EC is as follows:-

" 1. Name of Project M/s Goel Ganga India Pvt Ltd through Shri. Atul Goel

2.Type of institution Private

3. Name of Project Proponent Shri. Atul Goel

4. Name of Consultant NABET Accredited EIA Consultant 1

5. Type of project Housing Project

6. New project/expansion in Amendment in Existing EC existing project/modernization/diversificat ion in existing project

7. If expansion/diversification, EC received vide letter SEAC-III- whether environmental clearance 2015/CR-71/TC-3 dated 17th October has been obtained for existing 2016 project

8. Location of the project S. No. 578/2

9. Taluka Haveli

10. Village Bibvewadi Correspondence Name: Shri Atul Goel Room Number: -

     Floor:                          3rd Floor

     Building Name:                  Sanmahu Complex

     Road/Street Name:               Bund Garden Road

     Locality:                       Camp

     City:                           Pune

11. Whether in Corporation / Pune Municipal Corporation (PMC) Municipal / other area

12.IOD/IOA/Concession/Plan Sanction Plan Approved by PMC and Approval Number HRC approval No - CC/0909/2018 Dated 3-7-2018 HRC dated 9-3-2018 No 9256 IOD/IOA/Concession/Plan Approval Number: Sanction Plan Approved by PMC and HRC approval No -

CC/0909/2018 Dated 3-7-2018 HRC-

dated 9-3-2018 No 9256 Approved Built-up Area: 124864.65 "

2. Grievance in this appeal is that originally EC was granted on 17.10.2016. However, the PP changed the scope of the project and sought Consent to Establish which was declined by the State PCB on 02.04.2018 on the ground that the PP had already established the project without prior consent. Before passing order, show-cause notice dated 16.09.2017 was issued. Details of the changed project are as follows:-

" 1. Name of the project Ganga Dham Tower

2. Name, Contact Number Name: Goel Ganga Developers (I) Address of proponent Pvt. Ltd.

                                    Address Sanmahu complex, 3rd
                                    floor, Opp. Poona Club, Bund
                                    Garden Road , Pune 411001
                                    Telephone       Number     +91(20)
                                    26124265
                                    Email ID :[email protected]
  3.    Consultant                  -
  4.    Accreditation           of Accredited
        consultant        (NABET
        Accreditation)
  5.    Type       of      project: Housing project
        Housing            project:
        Industrial Estate: SRA
        Scheme/         MHADA/
        Township or others
  6.    Location of the project     S. No. 578/2. Bibewadi, Pune

7. Whether in Corporation PMC (Pune Municipal Corporation) / Municipal other area

8. Applicability of the DCR DC Rule

9. IOD/IOA/Concession Received Sanction No. 3456/14 document of any other dated 17.11.2014 form of document as applicable (Clarifying its conformity with local planning rules & provision)

10. Note on the initiated Total constructed work (FSI + Non work (if applicable) FSI): NA Date and area details in the necessary approvals issued by the competent authority (attach scan copies

11. LOI/ NOC from Applicable (mentioned in sanction) MHADA/ other approvals (if applicable)

12. Total Plot area (sq. m.) 20,798.00 sq.m.

        Deductions             6,732.96 sq.m.
        Net plot area          14,065.04 sq.m.
  13.   Permissible            FSI
                               27355.03 sq.m. + For EWS 2823.04
        (including TDR etc.)   sq.m.

14. Proposed built up area FSI area (Sq.m.): 26,547.87 sq.m. + (FSI and non FSI) EWS built up : 2823.04 sq.m. = 29,370.91 sq.m.

Non FSI area (sq.m.) :49, 256.90 sq.m.

Total construction BUA area (sq.m.):

78,627.71 sq.m.

15. Ground coverage 78.09.68(56%) percentage (%) (Note:

percentage of plot not open to sky

16. Estimated Cost of 150.73 Cr project 3

17. No. of building & its 1. Residential: 3 no of building configuration(s) Bldg A:

G+P1+P2+P3+Podium+20 Bldg B:

G+P1+P2+P3+Podium+20 Bldg C:

G+P1+P2+P3+Podium+20

2. Commercial Building: NA

3. Club House: G + 1 EWS bldg: P + 11

18. Number of tenants and 205 Tenements + 54 EWS shops tenements

1. Total Tenements 259

19. Number of expected Residential population:1025 residents/users EWS Population: 270 Total Population: 1295 Commercial Population: NA 20 Tenant density per 561 hector

21. Height of building(s) 69.9 m

22. Right of way (Width of 30.00 m (nearest fire station: Main the road from the fire station at Ghorpadi peth) nearest fire station to the proposed building(s))

23. Turning radius for easy 9 m access of fire tender movement from all around the building excluding the width for the plantation. "

3. It is submitted that the construction project is thus illegal. Grant of ex-post facto EC is illegal as requirement of prior EC is mandatory, as held in the judgment of the Hon'ble Supreme Court in the case of same PP being Goel Ganga Developers India Pvt. Ltd. v UOI1. To the same effect are later judgements in Alembic Chemicals v Rohit Prajapati2 and Keystone Realtors Private Limited v. Anil V. Tharthare & Ors.3. In spite of this legal position, the PP has been granted the impugned EC with no remedial action as per law.

Procedural History - facts independently found

4. The matter was earlier heard on 24.05.2021 along with connected matter in respect of same project proponent in Appeal No. 34/2020(WZ), 1 (2018) 18 SCC 257 2 2020 SCC OnLine SC 347 3 (2020) 2 SCC 66 4 wherein the Tribunal directed constitution of a joint Committee comprising MoEF&CC, CPCB, SEIAA, Maharashtra and State PCB to verify facts and also to suggest remedial action, including the quantum of compensation in the individual case. It was further directed that a copy of the report thereof be also forwarded to the PP and the applicant who may file their comments, if any, before the next date by e-mail. Direction was also issued to SEIAA, Maharashtra to review its functioning as ex post facto ECs were rampant with no adverse consequence against violators and report was required to be filed by the Committee after functional audit of SEIAA.

Relevant extracts from the order are:

"5. We have dealt with the same issue today in the connected matter in respect of same project proponent in Appeal No. 34/2020(WZ) and directed constitution of a joint Committee comprising MoEF&CC, CPCB, SEIAA, Maharashtra and State PCB to review their functioning in the light of the Supreme Court judgements and also to suggest remedial action, including the quantum of compensation in the individual case. The same joint Committee may give its report for the present matter in the light of directions in the connected matter by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF before the next date.

6. While submitting the report to this Tribunal, a copy of the report thereof be also forwarded to the PP and the applicant who may file their comments, if any, before the next date by e-mail."

Joint Committee report dated 3.12.2021

5. In pursuance of above, the joint Committee has filed its report dated 03.12.2021. The Committee held its meeting and prepared a questionnaire for seeking relevant information from the concerned organizations. The Committee considered the matter in the light of information received and found that the PP had misrepresented about obtaining full potential sanction/IOD whereas PP was granted only total permissible FSI vide PMC's Sanction No. 2456/14 dated 17/11/2014 which doesn't specify building configuration and non-FSI. The PP also undertook construction of basement prior to amendment of EC which amounted to violation of EC 5 conditions. Construction was also started without CTE. The Committee then noted the steps taken by the PP and found that PP has raised constructions in addition to the configurations proposed for taking EC.

However, the total built-up area was within the limit mentioned in the EC.

The Committee has then referred to the approach adopted by SEIAA in recovering environmental compensation for violation of EC requirement and also SOP issued by the MoEF&CC on 07.07.2021 for dealing with such cases. It is however, incorrectly mentioned that SOP was issued in compliance with directions of this Tribunal vide order dated 03.06.2021 in O.A No. 287/2020, Dastak N.G.O v. Synochem Organics Pvt. Ltd. & Ors.

The Committee then referred to the order of the Hon'ble Supreme Court dated 10.08.2018 in Civil Appeal NO. 10854 OF 2016; M/s Goel Ganga Developers India Pvt. Ltd. Versus Union of India & Ors., wherein for violation of requirement of consent from the State PCB, compensation of Rs. 5 Crores was upheld. Alternative methodology for compensation assessment referred is the mechanism adopted by CPCB based on days of violation for which compensation has been assessed at Rs.2,91,09,375/-.

It is then recommended that either of the two amounts be assessed as compensation for violation for not seeking CTE before construction and compensation be assessed for violating requirement of prior EC.

6. The relevant extracts of the report is reproduced below:-

"2. OBSERVATIONS AND FINDINGS A. Observations w.r.t Environmental Clearance (EC) and violations thereto, if any

(a) The project proponent M/s Goel Ganga Developers (I) Pvt. Ltd.

has been granted EC by SEIAA Maharashtra vide letter dated SEAC-III-2015/CR-7l/TC-3 dated 17.10.2016 for total plot area of 20,798 sq. m. for the project -

"Gangadham Towers" at S. No. 578/2, Bibwewadi, Tal.- Haveli, Dist.- Pune, stipulating Layout Sanction details granted by PMC, total built up area and building configuration therein.

Subsequent to the said EC, the PP has obtained Plinth Check Certificates dated 18/5/2017, 03/11/2017 and 31/10/2018 which are as per the Layout Sanction and Building permission No. CC/0149/17 dated 21/4/2017 granted by PMC. Thereafter, the PP has applied on 03/8/2018 for amendment in the said EC dated 17/10/2016 based on Plan Approval No. CC/0909/18 dated 03/7/2018. Subsequent Plinth Certificates have been obtained by PP on 10/7/2020 which is based on Building Permission No. CC-2866/19 dated 14/2/2020 granted by PMC.

During the visit on 05/10/2021, the committee observed that project is under construction and there was no occupancy.

Details of the building configuration and total built up area mentioned in the aforesaid ECs, Sanction/Building Permissions and construction status are given in Table 1 below:

Table1: Details of the building configuration and total built up area mentioned in ECs, Sanction/Building Permissions and construction status Sl. Particulars (↓) Building Configuration Total Built up No Area

1. Layout Sanctioned  Building C1,C2,C3-P+6 FSI- 16656.22 and Building  Building C4,C5,C6,C7,C8,C9-P+5 Sq.m Non FSI-

Permission No.  Building A1 (LIG & MIG)-P+5 4542.27 Sq.m  Building B1 (LIG & MIG)-P+5 CC/2456/14 dated 2 EC dated 17.10.2016 FSI area (sq. m.):

granted by SEIAA 26,547 .87sq.m + Applicable IOD/IOA/Concession document or any other form of document as stipulated at Sl. EWS built up:

No. 9 of the table at para 2 of the EC- Sanction 2823.04 sq.m= No. 2456/14 dated 17/11/2014* 29,370.91 sq.m Configuration as stipulated at Sl. No. 17 of the Non FSI area (sq. table at para 2 of the EC: m): 49,256.80 sq.m.

1. Residential: 3 no of building Bldg A: G+P1+P2+P3+Podium+20 Total construction Bldg B: G+P1+P2+P3+Podium+20 BUA area (sq.m.):

Bldg C: G+P1+P2+P3+Podium+20 78,627.71 sq.m.

2. Commercial Building: NA

3. Club House: G+1

4. EWS bldg: P+11

3 Layout Sanctioned  Building A and B-B1+B2+P1+P2+PODIUM+ 20 FSI- 37693.55 and Building  Building C-B1+B2+P1+P2+PODIUM+ 14 Sq.m Non FSI- Permission No.  Building D- (EWS)- P+11 47481.03 Sq.m.

    CC/0149/17 Dated         Club House-G+1
    21/04/2017granted
    by PMC

4   IOD No.CC/0909/18  Building A,B,C-B1+B2+P1+P2+PODIUM+ 26                FSI-50641.85 Sq.m

Dated 03/07/2018  Two Meditation Hall-GF granted by PMC  Building E-P+11 Non FSI-74222.80  Building D (EWS)-P+11 Sq.m  Club House -G+1 7 5 Amendment EC Building configuration has not been stipulated in the EC but Specific dated 25.03.2020 Conditions No. V of the EC stipulates that the EC for - FSI: 50641.85 granted by SEIAA m2, Non-FSI: 74222.80 m2 and Total BUA: 124864.65 m2 (Plan Approval no-CC/0909/18, dated-03.07.2018) 6 Building Permission  Building A,B-B1+B2+P1+P2+PODIUM+ 20 FSI-37704.11 Sq.m No.CC/2866/19date  Building C-B1+B2+P1+P2+PODIUM+ 13 Non FSI-47158.55 d 14/02/2020  Two Meditation Hall-GF Sq.m  Building D (EWS)-P+11  Club House -G+1 7 Building Permission  Building A,B-B1+B2+P1+P2+PODIUM+ 26 FSI-37479.61 No.CC/0072/20  Building C-B1+B2+P1+P2+PODIUM+ 3 Sq.m, Non FSI-

     dated 11/06/2020         Two Meditation Hall-GF                       47224.39 Sq.m
     granted by PMC           Building D (EWS)-P+11
                              Club House-G+1

8    Status of                                                          Total Built up

construction as on  Building A-B1+B2+P1+P2+PODIUM+26 Floor Area 06.10.2021 as Slab Completed Constructed informed by PMC per  Building B- B1+B2+P1+P2+PODIUM+26 Floor = 66,967.84 Sq.m CC/0072/20 dated Slab Completed 11/06/2020 Building  Building C- Work in progress (Excavation for Permission footing is completed and footing work has begun).

 Building D (EWS)-P +11 Floor Slab Completed other Work in progress  Club House-(G+1) - Building Completed *The Sanction No. 2456/14 dated 17/11/2014 stipulated in the EC is Layout and Building Permission issued by PMC.

Copy of the said EC dated 17.10.2016 and Amendment EC dated 25.03.2020 are given at Annexure-II.

(b) The EC dated 17.10.2016 has been granted w.r.t. Layout Sanctioned and Building Permission vide No. CC/2456/14 dated 17.11.2014 (as at Sl. No. 9 of the table at para 2 of the EC dated 17/10/2016) and the said EC also stipulates nos. of buildings, their configuration and total built up area (as at Sl. No. 17 and 14 of the table at para 2 of the EC dated 17/10/2016).

The building configurations and total built up area in the said stipulated Layout Sanctioned and Building Permission dated 17/11/2014 doesn't match with the nos. of buildings, their configuration and total built up area which have also been stipulated separately in the said EC dated 17/10/2016 (please refer Sl. No. 1 and 2 of the Table 1 above).

(c) The minutes of 46th meeting of State Expert Appraisal Committee-III (SEAC-III), Maharashtra, held during April 25-29, 2016, records that "PP informed that they have obtained full potential sanction."

Relevant part of minutes of subsequent103rdmeeting of the SEIAA Maharashtra held during June 26 - July 02, 2016, wherein SEIAA decided to grant the said EC dated 17/10/2016 under Item No. 49 of the said meeting, is reproduced as below:

"In 103rd meeting of SEIAA, it was observed that PP has submitted IOD vide No. 5/4448 dated 31.03.2015 for a built-up 8 area of 78627.71 sq.m. The project proposal was discussed on the basis of the consolidated statement, compliance of the issues raised by SEAC-III submitted by PP, layout plan, floor plan, location of environmental infrastructures like STP, RWH, SWM, Disaster management plan, parking plan etc. It was noted that the SEAC III had recommended the proposal to SEIAA.

After detail deliberation, while agreeing with the stipulations as recommended by SEAC III in its 46th meeting and compliance submitted by PP, the SEIAA decided to grant Environmental Clearance for the built up area subject to the following conditions :-

i. The EC is granted as per the IOD approved by the Pune Municipal Corporation (PMC) and if there is any change in the total built-up area/construction area, configuration of the building, location of environmental parameters etc., in the sanctioned plan, the project proponent shall approach SEIAA for amendment of environmental clearance.

..."

Copy of the aforesaid minutes of 46th meeting of State Expert Appraisal Committee-III (SEAC-III), Maharashtra, held during April 25-29, 2016 and minutes of 103rd meeting of the SEIAA Maharashtra held during June 26 - July 02, 2016are given at Annexure-III.

W.r.t. the aforesaid IOD vide No. 5/4448 dated 31.03.2015 mentioned in the minutes of SEIAA and SEAC-III, PMC vide email dated 29.10.2021 and 01/11/2021 has informed that the same is a letter given for total permissible FSI without building configuration and no layout is sanctioned. Copy of the said letter No. 5/4448 dated 31.03.2015 issued by PMC is given at Annexure -IV. Thus, PMC letter No. 5/4448 dated 31.03.2015 does not include non-FSI, total built up area and building configuration and may not be full potential sanction/layout sanction/IOD. It may also be seen that the total FSI area stipulated in the EC dated 17/10/2016 is 29,370.91 sq. m. which is higher than the permissible FSI27,355.94 sq. m. mentioned in the said PMC letter dated 31/3/2015.

Considering that the EC dated 17/10/2016 outlines building configuration, FSI & Non-FSI area and total built up area and there may have been an error in referring Sanction No. 2456/14 dated 17/11/2014in the said EC dated 17/10/2016 in place of the said PMC letter dated 31.03.2015, the committee observes that the PP has not informed SEIAA about such error upon receipt of the said EC dated 17/10/2016.

Thus, PP may have misrepresented the SEAC and SEIAA by informing that they have obtained full potential sanction/IOD whereas PP was granted only total 9 permissible FSI without building configuration and non- FSI or full potential sanction/IOD/Layout Sanction. This reveals that the PP had not obtained full potential sanction/IOD/Layout Sanction for seeking the EC of proposed nos. of buildings, building configurations, non- FSI area and total built up area as granted vide EC dated 17/10/2016 though the project has been appraised for the same as is evident from aforesaid minutes of meeting of SEAC-III and SEIAA given at Annexure-III.

(d) Plinth check certificates dated 18/5/2017, 03/11/2017 and 31/10/2018 have been obtained only for building A, B and D (EWS) prior to amendment EC dated 25/3/2020. These Plinth check certificates have been issued based on Layout Sanctioned and Building permission No. CC/0149/17 dated 21/4/2017 which are same to that of building configuration mentioned in the EC dated 17/10/2016 except that the configuration "G+P1+P2+P3+Podium+nos. of floors" for building A, B and C have been changed to "B1+B2+P1+P2+PODIUM+ nos. of floors" (please refer Sl. No. 2 and 3 of the Table 1 above).

PMC vide email dated 01/11/2021 has informed that there is error in terming the aforesaid building configurations as "B1+B2+P1+P2+PODIUM+nos. of floors" in their Layout Sanctioned and Building permission No. CC/0149/17 dated 21/4/2017 whereas the same are "G+P1+P2+P3+Podium+nos. of floors" as have been stipulated in EC dated 17/10/2016 taking into account the natural contour, definition of basement given under Unified Development Control and Promotions Regulation4for Maharashtra State and PMC site visit on 23/10/2021. However, there is partial basement in building A as B1 while B2+P1+P2+PODIUM of building A are above ground level. The email dated 01/11/2021 as received from PMC in this regard is given at Annexure-V. Based on clarification given by PMC, as above, it may be concluded that no basements have been excavated w.r.t. EC dated 17/10/2016 as well as amendment EC dated 25/3/2020 except one partial basement as B1 in building A and that there is error in building configuration given in the said ECs and Layout Sanctioned and Building permissions/IOD granted by PMC.

The EC dated 25/3/2020 as amendment in EC dated 17/10/2016 has been obtained by the PP based on the IOD No. CC/0909/18 dated 03/7/2018 issued by PMC. Thereafter, Plinth Check certificate dated 10/7/2020 has been granted by PMC to the PP based on Building permission No. CC/2866/19 dated 14/2/2020. It may be observed that building configuration in amendment EC dated 25/3/2020 is similar to that of building configuration in EC dated 17/10/2016 except the aforesaid one basement 4 As per definition under UDCPR, ""Basement" means the lower storey of a building below or partly below the ground level with one or more than one levels." Similar definition has also been laid down under Development Control and Promotions Regulations for PMC (DCPR-2017).

in building A and that nos. of floors have increased from 20 to 26 and two Meditation Halls and another building E (P+11) have been added (please refer Sl. No. 2, 4, 5 and 6 of Table 1 above).

The Meditation Halls and building E (P+11) are yet to be constructed. PMC vide email dated 01/11/2021 has informed that buildings are currently under construction as per Building Permission dated 11/6/2020 and the said Building Permission is in conformation to that of IOD issued dated 03/7/2018 for which amendment EC dated 25/3/2020 is granted. There is no deviation in terms of built up area. The total built up area constructed as on 06/10/2021 is 66,967.84 sq. m. against the total built up area granted vide amendment EC dated 25/3/2020 of 1,24,864.65 sq. m. Details of the same are given at Sl. No. 8 of the Table 1 above.

B. Compliance of Consent required under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 PMC has informed that as per letter dated 08/11/2016, the PP has conveyed that the development work has started from 08/11/2016. Copy of the said letter dated 08/11/2016 is given at Annexure VI.

The PP has made application dated 23/11/2016 to MPCB for Consent to Establish (CTE) under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. Official of MPCB visited the site on 13/12/2016 and observed that excavation work of one building is completed and foundation civil work and compound wall are in progress. Further, sample flat is ready and site office is completed on site.

MPCB issued show-cause notice dated 16/9/2017 for refusal of Consent to Establish as PP has commissioned construction works without CTE from MPCB. Thereafter, CTE was refused by MPCB vide letter dated 02/4/2018 citing that the PP failed to reply to the said show-cause notice and started construction work without CTE. Copy of the said show cause notice dated 16/9/2017 and CTE refusal order letter dated 02/4/2018 issued by MPCB are given at Annexure VII.

The PP made application dated 03/4/2020 for CTE to MPCB. MPCB official during site visit on 10/8/2020 observed that construction activity is in progress. Tower A and B are completed for RCC work for 04 parking + Podium + 18 floors. Excavation work is in progress in Tower C. 10th floor slab for EWS building is in progress. MPCB issued CTE to the PP on 05/2/2021. Copy of CTE dated 05/2/2021 is given at Annexure VIII.

The above reveals that the PP started development/construction work of the project without CTE from MPCB and violated provisions under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 11 1981 from the day of start of construction i.e. 08/11/2016 till CTE obtained on 05/2/2021. Obtaining CTE before start of any construction work at site was also one of the "General Conditions for Pre-Construction Phase" laid down under the EC dated 17/10/2016.

3. CONCLUSIONS (1) The observations, as given at para 2(A) above, reveal that:

(a) PP may have misrepresented the SEAC and SEIAA by informing that they have obtained full potential sanction/IOD whereas PP was granted only total permissible FSI vide PMC's Sanction No. 2456/14 dated 17/11/2014 which doesn't specify building configuration and non-FSI. Thus, the PP had not obtained full potential sanction/IOD/Layout Sanction for seeking the EC dated 17/10/2016 of proposed nos. of buildings, building configurations, FSI & non-FSI area and total built up area as granted vide EC dated 17/10/2016 though the project has been appraised for the same as is evident from aforesaid minutes of meeting of SEAC-III and SEIAA given at Annexure III. Further, PP has not approached SEIAA upon receipt of the said EC dated 17/10/2016 for error, if any, in citing Sanction No. 2456/14 dated 17/11/2014 at Sl. No. 9 of para 2 in the said EC.

(b) The project has been constructed as per building configuration and total built up area as appraised by SEAC and granted by SEIAA and as stipulated at Sl. No. 9 of para 2 in the said EC dated 17/10/2016 except one basement in building A as B1 has been constructed for which prior EC was not granted.

Subsequent to the said EC dated 17/10/2016, there has been error in stipulating building configuration as "B1+B2+P1+P2+PODIUM+nos. of floors" in the subsequent Layout Sanctioned and Building permissions/IOD granted by PMC as well as in the amendment EC dated 25/3/2020 thereto instead of "G+P1+P2+P3+Podium+nos. of floors" and there does not exist basements except one partial basement as B1 in only building A, as informed by PMC. However, construction of the aforesaid one basement in building A is evident prior to amendment EC dated 25/3/2020 as the Plinth Check Certificate for building A had already been obtained from PMC on 18/5/2017. EC for the said basement was not obtained vide EC dated 17/10/2016. Thus, there is violation of EC dated 17/10/2016 as well as prior EC requirement and that EC dated 25/3/2020 has been obtained as amendment to the said EC dated 17/10/2016 instead of declaring the said violation and also not declaring the said violation while making application dated 03/8/2018 for amendment in the EC dated 17/10/2016 based on which EC dated 25/3/2020 was granted.

(c) The project is currently under construction as per amendment EC dated 25/3/2020. There is no deviation in terms of built up area. The total built up area constructed as on 06/10/2021 is 12 66,967.84 sq. m. against the total built up area granted vide amendment EC dated 25/3/2020 of 1,24,864.65 sq. m. Details of the same are given at Sl. No. 8 of the Table 1 above.

(2) The observations, as given at para 2(B) above, reveal that PP started development/construction work of the project from 08/11/2016 without obtaining CTE from MPCB. The CTE is required under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981. Upon non-response by PP to MPCB's show-cause notice dated 16/9/2017, MPCB issued CTE refusal vide letter dated 02/4/2018. However, the construction work progressed in violations of provisions the said Acts as per site visit reports of MPCB official on 13/12/2016 and 10/8/2020 and also taking into account of plinth completion certificates dated 18/5/2017, 03/11/2017, 31/10/2018 and 10/7/2020 issued by PMC. Obtaining CTE before start of any construction work at site was also one of the "General Conditions for Pre-Construction Phase" laid down under the EC dated 17/10/2016.

4. APPROACH FOR ENVIRONMENTAL COMPENSATION AND REMEDIAL MEASURES FOR PRIOR ENVIRONMENTAL CLEARANCE (EC) VIOLATION Notification no. SO 804(E) dated 14.3.2017 on procedure to be adopted for dealing with the prior Environmental Clearance (EC) violation cases were issued by Ministry of Environment, Forest and Climate Change (MoEF&CC) under the Environment (Protection) Act, 1986 giving 06-month amnesty window for such proponents who have violated the EC regulations. These violations were primarily related to initiating the project work or carrying out the project activities without obtaining the mandatory EC. The cases of such proponents were to be assessed and the project constructed at a site were affirmative which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards. In case, where the finding of the Expert Appraisal Committee is negative, closure of the project were recommended along with other actions under the law. Such affirmative projects were also to be appraised with implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance.

The project proponent were required to submit a bank guarantee equivalent to the amount of remediation plan and Natural and Community Resource Augmentation Plan with the State Pollution Control Board and the quantification were to be recommended by State Expert Appraisal Committee (SEAC) and finalised by State Environmental Impact Assessment Authority (SEIAA) as per the aforesaid notification dated 14/3/2017 and subsequent notification dated 08/3/2018 issued by MoEF&CC. The bank guarantee were to be deposited prior to the grant of environmental clearance and to be released after successful implementation of the remediation plan and Natural and Community Resource Augmentation Plan, and after the 13 recommendation by regional office of the MoEF&CC, SEAC and approval of the SEIAA.

In view of the above notifications, a committee was constituted (constituting Ex. Expert Member, NGT; members of SEIAA and SEAC for Maharashtra and advocate) in Maharashtra for evaluation process to evolve uniform guidelines to deal with the cases of violations under the chairmanship of Chairman, SEIAA, Maharashtra and submitted its report to the Department of Environment, Govt. of Maharashtra. After due consultation with stakeholders in a round table workshop, the Department of Environment (DoE) and SEIAA Maharashtra decided to follow the provisions of MoEF&CC notification dated 14.03.2017 as per the report submitted by the committee. Copy of the "Approach for the said Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory Environmental clearance (Violation Cases)" decided to be followed by the DoE and SEIAA Maharashtra vide SEIAA letter no. SEIAA-2018/CR-150/SEIAA dated 30/1/2019 is available at https://www.ecmpcb.in/login/download_ec_document/QjAwN0E4 NkZDM0I2NDY4Mzk3QzUxOEVCQURGNzlGOTcucGRm The aforesaid notification of MoEF&CC was, however, applicable for six months from the date of publication i.e. 14.03.2017 to 13.09.2017 and further based on Hon'ble court direction from 14.03.2018 to 13.04.2018.

Hon'ble NGT in Original Application No. 287 of 2020 in the matter of Dastak N.G.O. Vs Synochem Organics Pvt. Ltd. & Ors. and in applications pertaining to same subject matter in Original Application No. 298 of 2020 in Vineet Nagar Vs. Central Ground Water Authority & Ors., vide order dated 03.06.2021 held that "(...) for past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process".

Further, the Hon'ble National Green Tribunal in O.A No. 34/2020 WZ in the matter of Tanaji B. Gambhire vs. Chief Secretary, Government of Maharashtra and ors., vide order dated 24.05.2021 has directed that"...a proper SoP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SoP to all SEIAAs in the country".

In compliance to the directions of the Hon'ble NGT, a Standard Operating Procedure (SoP) for dealing with violation cases were issued by the MoEF&CC vide Office Memorandum F. No. 22- 21/2020-IA.III dated 07/7/2021. The SoP outlines similar features of implementation of environmental management plan based on remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance to that of earlier notification dated 14.3.2017 but with some changes.

However, in the matter of Fatima vs The UOI, WP(MD) No.11757 of 2021, Hon'ble Madurai Bench of Madras High Court (Special Original Jurisdiction) vide order dated 15/07/2021 has ordered an interim stay on the said SOP.

In view of the aforesaid interim stay on the SoP for dealing with violation cases issued by the MoEF&CC, the aforesaid approach adopted by SEIAA Maharashtra for dealing with EC violations cases may be considered. Salient features of the said Department of Environment (DoE) and SEIAA Maharashtra adopted approach paper are as below:

(i) It is in line with MoEF&CC Notification dated 14/03/2017 applicable for 06-month amnesty window for such proponents who violated prior Environmental Clearance (EC) requirement and takes into account of ecological damage and economic benefit derived due to violation and remediation plan and natural and community resource augmentation plan preparation & implementation thereto for building construction projects violation cases.

(ii) Environmental damage cost assessment considering various project related attributes (air pollution, water pollution, soil environment, noise & vibration, green belt and Occupational Health & Safety) and their recurring & non-recurring cost.

(iii) Assessment of economic benefits derived due to violation inclusive of the following:

(a) costs saved or/and not taking appropriate environmental protection measures and also, the benefits derived by going ahead with project to gain commercial gains. The same have been considered as 10% of Ready reckoner cost of the construction under violation if it is already occupied (fully or partially) or reasonably in advance stage of completion (more than 50%). In case, the construction is still not in advance stage of completion (less than 50%) and no occupation is given, then the benefits can be taken as 5% of the Ready reckoner cost for the construction in violation;

(b) environmental track record of the project proponent of Rs.

10,00,000/- (Rs. Ten lakhs) for each of earlier or similar other environment clearance violation in other projects being developed by project proponent and/or any one of its directors.

(iv) Preparation of remediation plan and natural and community resource augmentation plan as Environmental management plan (EMP) equivalent to the above-mentioned environmental damage cost and economic benefits, as at (i) and (ii) above, or the amount equivalent to the CER amount as per the MOEF&CC's office Memorandum No: F NO 22-65/2017-IA-III 15 dated 01/05/2018, whichever is higher. Areas identified for resource allocation through such EMP cost are as below:

Sr   Description                 %      Implementing Remarks
No   Activity                Allocation Agency
1    Afforestation (can         25    Social Forestry The afforestation
     include Plantation               & Local Body    Can be either
     garden                                           Through          social
     development)                                     forestry or the Local
                                                      body.        Preferably
                                                      within 50 km from
                                                      project site
2     Water                     25                    Preferably within 50
      conservation                                    km radius of project
      program (Jalyukt                                site
      shivar, etc)
3    Urban                      20    Local body
     environment and
     Sanitation      (can
     include Swatccha
     Bharat,
     playground
     development,
     urban        ground-
     water       recharge
     schemes etc)

4    Sewerage lines and         20    Local Body
     STP, solid waste
     Management

5    Urban       air/noise      10    Local Body
     pollution     control
     initiatives


     (v)    The assessment of above mentioned environmental damage

cost and economic benefits and preparation of remediation plan and natural and community resource augmentation plan as environmental management plan (EMP) to be prepared as an independent chapter in the environment impact assessment report by the consultants duly recognised by NABET (National Accreditation Board for Education and Training) while seeking grant of environmental clearance. The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and natural and community resource augmentation plan shall be done by an environmental laboratory duly notified under Environment (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 institution working in the field of environment. The SEAC will prescribe a specific Terms of Reference for the project on assessment of the above plans.

(vi) The cases of violation will be appraised by SEAC with a view to assess that the project has been constructed at a site which under prevailing laws is permissible and expansion has been done which can be run sustainably under compliance of 16 environmental norms with adequate environmental safeguards; and in case, where the finding of the SEAC is negative, closure of the project will be recommended along with other actions under the law.

(vii) The Expert Appraisal Committee shall stipulate the implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance.

(viii) The project proponent will submit a bank guarantee equivalent to the amount of remediation plan and Natural and Community Resource Augmentation Plan with Maharashtra Pollution Control Board (MPCB) and the quantification will be recommended by SEAC Committee and finalized by SEIAA and the bank guarantee shall be deposited prior to the grant of environmental clearance and will be released after successful implementation of the said plans, and after the recommendation by regional office of the MoEF&CC, SEAC and approval of the SEIAA.

(ix) With regard to implementation of the aforesaid EMP, the project proponent will be required to deposit such apportioned funds of the EMP with concerned authorities and the confirmation of deposit of such funds will be the compliance of such EMP efforts at the project proponents end. Still however, he needs to get engaged with concerned departments to ensure that the amount is effectively spent in time bound manner.

The outer limit for execution of the projects could be maximum 2 years, and if any amount still remains unspent then the same will be reverted back to DoE by concerned department which can conduct specific state level programs form such funds.

5. APPROACH FOR DAMAGES (in addition to the environmental compensation as given at para 4) FOR CONTRAVENING MANDATORY PROVISIONS OF ENVIRONMENTAL LAWS In the matter of Civil Appeal NO. 10854 OF 2016; M/s Goel Ganga Developers India Pvt. Ltd. Versus Union of India & Ors. the Hon'ble Supreme Court vide order dated 10/8/2018 upheld Rs. 05 crores on project proponent as levied by the Hon'ble NGT for contravening mandatory provision of Environment Laws and for not obtaining the consent from the Board. Vide para 57 of the said Hon'ble Supreme Court order, it has been directed that "(...)The project proponent shall also pay a sum of Rs. 5 crores as damages, in addition to the above for contravening mandatory provisions of environmental laws."

"Report of the CPCB In-house Committee on Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund" outlines a formula for imposing environmental compensation on industrial units for violation of directions issued by regulatory bodies listing the instances for taking cognizance of cases fit for violation and levy environmental compensation. The same has also been referred by the Hon'ble NGT in its order (para 14 to 16) dated 28/8/2019 in the matter of Original Application No. 593/2017 titled 17 Paryavaran Suraksha Samiti & Anr. Versus Union of India & Ors. The instances considered for levying Environmental Compensation (EC) in the said report are:

a) Discharges in violation of consent conditions, mainly prescribed standards / consent limits.

b) Not complying with the directions issued, such as direction for closure due to non-installation of OCEMS, non-adherence to the action plans submitted etc.

c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems.

d) Accidental discharges lasting for short durations resulting into damage to the environment.

e) Intentional discharges to the environment -- land, water and air resulting into acute injury or damage to the environment.

f) Injection of treated/partially treated/ untreated effluents to ground water.

Though such listed instances may not be directly applicable in the current matter for arriving at the damages amount (in addition to the environmental compensation as given at para 4) for contravening mandatory provisions of environmental laws (w.r.t. starting construction without CTE and obtaining EC after construction of one basement), an attempt is being made by this committee to assess the environmental compensation using the formula prescribed in the said CPCB report which may be taken as damages amount for contravening mandatory provisions of environmental laws. The formula takes into account of number of days violation took place, pollution index of unit, scale of operation, location factor based on population and an amount factor in Rupees.

Environmental Compensation (EC) in Rupees as mentioned in the aforesaid CPCB report = PI x N x R x S x LF Where, PI = Pollution index of the project. Considering that the activity falls under Orange category during construction phase as it may not discharge waste water more than 100 KLD, hence PI = 50 N = Number of days violation took place.

R is a factor in Rupees, which may be a minimum of 100 and maximum of 500. The aforesaid report also suggests to consider R as 250, as the Environmental Compensation in cases of violation. Hence, R = 250.

S = Factor for the scale of operation. The unit being LSI, S=1.5 LF = Location factor, since the population of Pune is more than 1 Million but less than 5 Million, LF=1.25 Considering the period since start of development/construction till the date of application for CTE on which the same was granted on 05/2/2021 by MPCB (i.e. 08/11/2016 till the date of CTE application made on 03/04/2020), N - the number of days violation took place, comes out to be 1,242 days.

Therefore, Environmental Compensation (EC) in Rupees 18 = 50 x 1242 x 250 x 1.5x 1.25 = Rs. 2,91,09,375/- (Rupees Two Crores Ninety One Lakhs and Nine Thousands Three Hundred Seventy Five Only) Per day Environmental Compensation (EC) comes out to be Rs. 23,437.5/- (Rupees Twenty Three Thousand Four Hundred Thirty Seven and Five Paise)

6. RECOMMENDATIONS In view of the aforesaid violations of:

(i) obtaining EC dated 25/3/2020 after construction of one basement in building A of the project for which prior EC was not obtained;

(ii) misrepresenting SEAC and SEIAA Maharashtra about obtaining full potential sanction during grant of EC dated 17/10/2016 and not approaching SEIAA thereafter too, and;

(iii) constructing the project without obtaining CTE required under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 which was also one of the pre-phase construction conditions stipulated in EC dated 17/10/2016;

The committee recommends that SEIAA Maharashtra may proceed for estimating & implementing Environmental Management Plan (EMP) cost as environmental compensation amount following the approach paper adopted by DoE and SEIAA Maharashtra vide SEIAA letter SEIAA-2018/CR-150/SEIAA dated 30/1/2019 for the "Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory prior EC". The said approach paper also outlines preparation of remediation plan and natural and community resource augmentation plan equivalent to the said EMP cost taking into account of ecological damage and economic benefit derived due to violation. Areas identified for resource allocation through such EMP cost are Afforestation; Water conservation program; Urban environment and sanitation; Sewerage lines and STP, solid waste management, and; Urban air/noise pollution control. Details of the same including estimation and implementation procedures thereto are given under para 4 of this report.

In addition to the above, Rs. 05 crores or Rs. 2,91,09,375/- (Rupees Two Crores Ninety One Lakhs and Nine Thousands Three Hundred Seventy Five Only), as derived under para 5 of this report, as deemed fit by the Hon'ble NGT, may also be added in the said environmental compensation or EMP cost as damages for contravening provisions under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, prior EC requirement notified under the Environment (Protection) Act, 1986 and one of the pre-phase construction conditions stipulated in EC dated 17/10/2016."

Today's consideration and final order

7. We have heard learned Counsel for the appearing parties, perused the records and considered the matter. None appears for the PP even though according to learned counsel for the appellant, complete set of papers have been served on the PP and there was a direction of this Tribunal to provide a copy of the report by the Committee to enable the PP to respond. The Appellant has filed a written statement as follows:-

"5. That the appellant have filed his comments cum objections to the Joint Committee Report vide its affidavit dated 18.04.2022 and also served the copy to all the respondents on same day along with PP including the joint Committee report and therefore this Appellant have complied the Order dated 24.05.2022 of this Hon'ble Tribunal."

8. The report shows that "the committee carried out site visit of the construction project- "Gangadham Towers" by M/s Goel Ganga Developers (I) Pvt. Ltd. at S. No. 578/2, Bibwewadi, Tal.-Haveli, Dist.-

Pune on 05/10/2021. Smt. Harshada Shinde, Executive Engineer, Pune Municipal Corporation (PMC) and Shri Atul Jayprakash Goyal, Managing Director, along with his representative from M/s Goel Ganga India Pvt. Ltd., were also present during the site visit."

9. Accordingly, learned Counsel for SEIAA, CPCB and State PCB submit that principles of natural justice for opportunity to the PP are fully complied even if it has chosen not to appear. The Tribunal may proceed against the PP ex-parte and to take further decision in the matter on merits as per law. We see no reason to defer the matter further in these circumstances.

10. From the report of the joint Committee, it is seen that the PP has misrepresented to the SEIAA and SEAC of having obtained full potential sanction/IOD whereas PP was granted only total permissible FSI and thus EC has been obtained without complete disclosure. The PP also failed to 20 obtain CTE from State PCB before commencing the project, as required in terms of EC conditions. Show-cause notice was given to the PP by the PCB and CTE was refused. The conclusions of the Committee with regard to these violations are based on record and we see no reason not to accept the same and proceed on that basis. We thus hold that the PP has proceeded to construct the project without valid EC and in terms of judgements of the Hon'ble Supreme Court inter-alia in Alembic Chemicals v Rohit Prajapati and Keystone developers v. Anil Tharthare, in place of directing demolition of the project, the PP has to be required to pay compensation for restoration of the environment.

11. The report refers to SOP issued by MoEF&CC on 07.07.2021 but it is incorrectly mentioned that it is on the direction of this Tribunal vide order dated 03.06.2021 in Dastak N.G.O v. Synochem Organics (Supra).

The approach paper of SEIAA is also referred to suggesting that 10% of the project cost be recovered in case the project is completed and 5% where the project is not completed in case there is violation of prior EC. In respect of violation of taking CTE, the Committee has referred to order of the Hon'ble Supreme Court approving damages of Rs. 5 Crore and also referred to a formula of CPCB for calculation of compensation based on the number of days of violation.

12. We are of the view that approach of the Committee in this regard is mechanical and not sound. Basis for compensation is restitution principle based on cost of restoration of damage with deterrent element as per financial capacity. Certain percentage of turnover can also be the basis depending on nature of violation. This is settled inter alia in the judgements of Hon'ble Supreme Court inter alia in MC Mehta, (1987) 1 SCC 395, Sterlite (2013) 4 SCC 575 and Goel Ganga (2018) 18 SCC 257. The 21 Committee has suggested compensation of Rs. 5 crores or Rs.

2,91,09,375/- as alternative for violation in obtaining CTE and further compensation based on approach paper of SEIAA dated 30.01.2019, i.e. equivalent to EMP cost considering factors like - Afforestation; Water conservation program; Urban environment and sanitation; Sewerage lines and STP, solid waste management, and Urban air/noise pollution control.

It has been clearly found in the present case that EC was obtained after part construction of the project, there was misrepresentation by the PP and construction of the project was without requisite CTE. In respect of violation in proceeding without CTE, compensation has been assessed at Rs. 5 crores or Rs. 2,91,09,375/- and for the remaining, the assessment of cost has been left to SEIAA or this Tribunal. The project cost in the present case is said to be Rs. 250 crores.

13. Having regard to the entirety of facts and circumstances pointed out above, we determine the total compensation payable by the PP at Rs. 10 crores which may be spent on restoration of environment by preparing an appropriate Environmental Restoration Plan by joint Committee comprising of CPCB, State PCB, SEIAA Maharashtra, and District Magistrate, Pune. The Environment Restoration Plan may be prepared within one month and executed within six months in the manner which may be determined by the joint Committee. The State PCB will be the nodal agency for coordination and compliance. The compensation may be paid by the PP within one month and deposited with the State PCB to be kept in a separate account for restoration of environment as directed above.

14. We also note that an affidavit has been filed by the SEIAA Maharashtra to the effect that it is streamlining shortcomings in its procedure. We take the affidavit on record without making any comments for the time being.

15. In view of above discussion, though the impugned EC is illegal being ex post facto, applying the doctrine of proportionality, the same is upheld subject to payment of compensation determined above for restoration of environment. The appeal succeeds to this extent.

A copy of this order be forwarded to the CPCB, State PCB, SEIAA Maharashtra, and District Magistrate, Pune by email for compliance.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM May 04, 2022 Appeal No. 32/2020(WZ) AB 23

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