National Green Tribunal
Tanaji Balasaheb Gambhire vs Union Of India Through Secretary Moef & ... on 10 August, 2023
(Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
[THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)]
ORIGINAL APPLICATION NO.48 OF 2020 (WZ)
Mr. Tanaji Balasaheb Gambhire,
Age : Adult, Occu. Self-employed,
R/o CTS-296, Shukrawar Peth,
Laxmi Apartment, White House Lane,
Near Shivaji Maratha High School,
Pune - 411 002 .... Applicant
Versus
1. Union of India through Secretary,
Ministry of Environment and Forest,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi - 110 001
2. Chief Secretary,
Government of Maharashtra,
Annex Building, Mantralaya, Fort,
Madam Kama Road, Mumbai - 400 032
3. The Principal Secretary,
Environment Deptt., Government of Maharashtra,
Room No.217, 2nd Floor, Annex Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
4. State Level Environment Impact Assessment
Authority - Maharashtra (SEIAA),
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
5. State Expert Appraisal Committee (III) -
Maharashtra (SEAC-III),
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
6. Mr. Anil N. Diggikar,
Principal Secretary of DoE and
Member Secretary, SEIAA,
Government of Maharashtra,
Room No.217, 2nd Floor, Annex Building,
Madam Kama Road, Mantralaya, Mumbai - 32
7. Maharashtra Pollution Control Board,
Through Member Secretary,
[NPJ] Page 1 of 58
Kalptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion €,
Mumbai - 400 022
8. Maharashtra Pollution Control Board,
Through Regional Officer,
Jog Centre, 3rd Floor, Mumbai-Pune Old Highway,
Wakadewadi, Pune - 411 003
9. The Secretary,
Urban Development Department,
Government of Maharashtra,
4th Floor, Annex Building,
Mantralaya, Mumbai - 400 032
10.Pune Municipal Corporation,
Through Municipal Commissioner,
Main Building, Shivaji Nagar,
Pune - 411 005
11.Building Permission Department - PMC,
Through City Engineer, Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
12.Mr. Prashant Waghamare-City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
13.Collector of Pune,
As Collector and President of District
Environment Protection Committee, Pune,
Collector Office, Bund Garden, Pune - 411 001
14.M/s Yerrowda Investments Limited,
A Company registered with Corporate Identification
Numbers U65990MH1954PLC009228,
Through its Partners
14A. Mr. Deepak Amratlal Desai
14B. Mr. Krishnan Subharaman
Having registered office at : ―Sai Hira‖,
Survey No.93, Mundhwa, Taluka Haveli, Dist. Pune
Also Having office at : Opp. Golf Course,
Ishanya Mall, Shastri Nagar, Yerrowda,
Taluka Haveli, District Pune - 411 008
15.M/s Deepak Fertilisers and Petrochemicals
Corporation Ltd.
A company registered with Corporate Identification
Number L24121MH1979PLC021360,
Through its Partners
15A. Mr. Sailesh Chimanlal Mehta
15B. Mrs. Parul Sailesh Mehta
Having registered office at : ―Sai Hira‖,
Survey No.93, Mundhwa, Taluka Haveli, Dist. Pune
Also Having office at : Opp. Golf Course,
Ishanya Mall, Shastri Nagar, Yerrowda,
Taluka Haveli, District Pune - 411 008 ....Respondents
[NPJ] Page 2 of 58
AND
APPEAL NO.42 OF 2020 (WZ)
WITH
I.A. NO.85/2020 IN APPEAL NO.42/2020
Mr. Ram Baban Borkar,
Age : Adult, Occu. Self-employed,
R/o 6/1, Near Nisarga Hotel, Gudwill House,
Swatantra Vir Savarkar Mitra Mandal,
Erandwane, Pune - 411 004 .... Appellant
Versus
01.Union of India through Secretary,
Ministry of Environment and Forest,
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi - 110 001
02.Chief Secretary,
Government of Maharashtra,
Annex Building, Mantralaya, Fort,
Madam Kama Road, Mumbai - 400 032
03.The Principal Secretary,
Environment Deptt., Government of Maharashtra,
Room No.217, 2nd Floor, Annex Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
04.State Level Environment Impact Assessment
Authority - Maharashtra (SEIAA),
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
05.State Expert Appraisal Committee (III) -
Maharashtra (SEAC-III),
Through Member Secretary,
15th Floor, New Administrative Building,
Mantralaya, Fort, Madam Kama Road,
Mumbai - 400 032
06.Mr. Anil N. Diggikar,
Principal Secretary of DoE and
Member Secretary, SEIAA,
Government of Maharashtra,
Room No.217, 2nd Floor, Annex Building,
Madam Kama Road, Mantralaya, Mumbai - 32
07.Maharashtra Pollution Control Board,
Through Member Secretary,
Kalptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion €,
Mumbai - 400 022
[NPJ] Page 3 of 58
08.Maharashtra Pollution Control Board,
Through Regional Officer,
Jog Centre, 3rd Floor, Mumbai-Pune Old Highway,
Wakadewadi, Pune - 411 003
09.The Secretary,
Urban Development Department,
Government of Maharashtra,
4th Floor, Annex Building,
Mantralaya, Mumbai - 400 032
10.Pune Municipal Corporation,
Through Municipal Commissioner,
Main Building, Shivaji Nagar,
Pune - 411 005
11.Building Permission Department - PMC,
Through City Engineer, Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
12.Mr. Prashant Waghamare-City Engineer,
Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005
13.Collector of Pune,
As Collector and President of District
Environment Protection Committee, Pune,
Collector Office, Bund Garden, Pune - 411 001
14.M/s Yerrowda Investments Limited,
A Company registered with Corporate Identification
Numbers U65990MH1954PLC009228,
Through its Partners
14A. Mr. Deepak Amratlal Desai
14B. Mr. Krishnan Subharaman
Having registered office at : ―Sai Hira‖,
Survey No.93, Mundhwa, Taluka Haveli, Dist. Pune
Also Having office at : Opp. Golf Course,
Ishanya Mall, Shastri Nagar, Yerrowda,
Taluka Haveli, District Pune - 411 008
15.M/s Deepak Fertilisers and Petrochemicals
Corporation Ltd.
A company registered with Corporate Identification
Number L24121MH1979PLC021360,
Through its Partners
15A. Mr. Sailesh Chimanlal Mehta
15B. Mrs. Parul Sailesh Mehta
Having registered office at : ―Sai Hira‖,
Survey No.93, Mundhwa, Taluka Haveli, Dist. Pune
Also Having office at : Opp. Golf Course,
Ishanya Mall, Shastri Nagar, Yerrowda,
Taluka Haveli, District Pune - 411 008 ....Respondents
[NPJ] Page 4 of 58
APPEARANCE IN ORIGINAL APPLICATION NO.48/2020 (WZ) :
Applicant : Applicant-in-person
Respondents : Mr. Rahul Garg, Advocate for R-1, R-10 to R-12
Mr. R.B. Mahabal, Advocate and Mr. Aniruddha
Kulkarni, Advocate for respondent Nos.3, 4 and 5
Mr. R.B. Mahabal, Advocate for R-6
Ms. Manasi Joshi, Advocate for R-7 and R-8
Mr. Dhruv Mehta, Senior Counsel i/b and with
Mr.Ajay Gadegaonkar, Advocate for R-14 & R-15
APPEARANCE IN APPEAL NO.42/2020 (WZ) :
Appellant : Mr. Saurabh S. Dongre, Advocate along with
Mr. Chandan Sagawekar, Advocate
Respondents : Mr. Rahul Garg, Advocate for R-1, R-10 to R-12
Mr. R.B. Mahabal, Advocate and Mr. Aniruddha
Kulkarni, Advocate for respondent Nos.3, 4 and 5
Mr. R.B. Mahabal, Advocate for R-6
Ms. Manasi Joshi, Advocate for R-7 and R-8
Mr. Dhruv Mehta, Senior Counsel i/b and with
Mr.Ajay Gadegaonkar, Advocate for R-14 & R-15
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
=================================================================
Reserved on : 14.07.2023
Pronounced on : 10.08.2023
=================================================================
JUDGMENT
1. Since the facts involved in both these matters i.e. Original Application No.48/2020 (WZ) and Appeal No.42/2020 (WZ), grounds raised therein by the applicant/appellant and the legal position are identical, both the matters are being decided and disposed of by this common judgment.
2. By filing Original Application No.48 of 2020 (WZ), the applicant has prayed that the respondents be directed to demolish the illegal structures at the site in question and restore the area; respondent Nos.14 - M/s Yerrowda Investments Ltd and respondent No.15 - M/s Deepak Fertilisers and Petrochemicals Corporation Ltd be directed to deposit [NPJ] Page 5 of 58 amount of environment compensation on the ―polluter pays‖ principle; the exemplary and deterrent special damages be levied from respondent Nos.14 and 15 for not developing 10% landscape area as per norms; respondent No.9 - PMC be directed to forfeit all the benefits arising from the present project with permanent prohibition on construction; respondent No.3 - Environment Department, Govt. of Maharashtra, respondent No.4 - SEIAA, Maharashtra and respondent Nos.7 and 8 - MPCB be directed to initiate prosecution against the Project Proponents for violating the provisions of EIA Notification, 2006; respondent No.2 - Chief Secretary, Govt. of Maharashtra be directed to take legal action against respondent No.6 - Anil U. Diggikar, Principal Secretary and Member Secretary, SEIAA for withdrawing the show-cause notice and violating the principles of natural justice; respondent No.9 - Secretary, Urban Development Department, Govt. of Maharashtra and respondent No.10 - Municipal Commissioner, Pune Municipal Corporation be directed to take action against respondent No.12 - Prashant Waghmare, City Engineer, PMC for allowing illegal construction and appropriate action be directed to be taken against the erring officers of PMC, SEAC-III members, SEIAA Members and MPCB for intentional negligence.
3. The facts of Original Application No.48 of 2020 (WZ), in brief, are as follows:-
4. Respondent Nos.14 and 15 are raising construction of commercial building project by name ―Ishanya Mall‖ at Survey No.190(P) and 192(P) CTS No.2185-A, Plot Nos. A, B and C, Shastri Nagar, Village Yerwada, Taluka Haveli, District Pune, on an area admeasuring 59,399.43 Sq.Mtrs. The Project Proponents had obtained Environmental Clearance (EC) on 10.04.2007 under EIA Notification, 1994 read with Amendment of 2004 (from record, we find that the EC dated 10.04.2007 annexed at pages 65 to 69 of the paper-book was granted also under the provisions of EIA [NPJ] Page 6 of 58 Notification, 2006) and Consents to Operate were obtained on 21.01.2014, 03.06.2015, 14.08.2018 and 17.05.2019. The details of the actual construction carried out in violation of the EC, Consent to Establish and Consent to Operate are as follows:
Table No.1: Actual Construction carried out at site in violation of Environmental Clearance Description EC Actual Excess Construction Construction 10.04.2007 Plot Area 41806.35M2 59399.43M2 17593.08 M2 Total BUA 34170.82 M2 94568.64 M2 60397.81 M2 Total Fresh 637 CMD 633.43 CMD -4.43 CMD Water Requirement Total Waste 245 CMD 300.08 CMD 55.08 CMD Water STP 300 CMD 255 CMD 5 CMD Capacity Dry Waste Not Disclosed Commercial & 823KgPD Multiplex: 724 kg/day, Restaurant: 99 kg/day.
Wet Waste Not Disclosed Commercial & 632 KgPD Multiplex : 483 kg/day, Restaurant: 149 kg/day Solid Waste Not Disclosed OWC Not installed Treatment Condition of ―6. In the case of any change(s) in the project, the project EC dated would require a fresh appraisal by this Ministry.‖ 10.04.2007 PP has carried out the construction of 94568.64 M2 against the total BUA of 34170.83 M2 permitted in EC dated 10.04.2007.
There illegal Excess Construction carried out by PP is 60397.81 M2 5. [NPJ] Page 7 of 58 Table No.2 :- Actual Construction carried out at site in violation of Consent to Establish Description CTE Actual Excess Construction construction 29.04.2006 Plot Area 41806.35 M2 59399.43 M2 17593.08 M2 Total BUA 34170.83 M2 94568.64 M2 60397.81 M2 Total Fresh 636 CMD 633.43 CMD -3.43 CMD Water Requirement Total Waste 255 CMD 300.08 CMD 45.08 CMD Water STP Capacity Not Disclosed 255 CMD Not in Operation Sold Waste 295 KgPD Dry: 823 KgPD 1160 KgPD Generated Wet: 632 KgPD Total; 1455 KgPD Table No.3:- Actual Construction carried out at site in violation of Consent to Operate Description CTO-1 CTO-2 CTO-3 CTO-4 Total 21.04.2014 03.06.2015 14.08.2018 17.05.2019 Validity 31.01.15 31.01.17 31.01.19 31.01.20 No CTO for From From From the period 01.02.15 01.02.19 01.02.20 to to to 02.06.15 16.05.19 till date Plot Area(M2) 41806.35 41806.35 41806.35 41806.35 59399.43 Total BUA(M2) 34170 34170 34170 34170 94568.64 Total Water 636 CMD 636 CMD 636 CMD 636 CMD Extraction Requirement of ground water Total Waste 255 CMD 255 CMD 255 CMD 255 CMD Waste Water Water is more STP Capacity 80% 60% 60% 60% STP is not in operation Total Solid 295 KgPD 295 KgPD 295 KgPD 295 KgPD Direct Waste dumping to PMC Dump yard.
[NPJ] Page 8 of 58
5. The completed Built Up Area (BUA) till the date of filing of Original Application is 94,568.64 M2 (which finds mention in Table 1, attached with the Joint Committee report of July, 2022 at page 1528 of the paper- book) against permissible BUA of 34,170 M2. Therefore there is substantial increase in total BUA to the extent of 60,398.64 M2. The Project Proponent is trying to procure ex post facto Environmental Clearance (EC) for total BUA of 94,568.64 M2 to overcome the violation of the terms and conditions of the EC dated 10.04.2007. Even after expiry of the EC dated 25.06.2017 on 09.04.2012, the re-validation of the said EC was not obtained from SEAC-III and SEIAA. The Project Proponent is attempting to obtain ex post facto EC. While attempting to obtain ex post facto EC, the Project Proponent has suppressed the actual permissible construction of BUA of 34,170 M2. The Project Proponent has also not obtained Consent to Establish for total BUA of 94,568.64 M2. Besides that, the Project Proponent has operated the project without Consent to Operate from 01.02.2015 to 02.06.2015 01.02.2019 to 16.05.2019 and from 01.02.2020 till date. The Project Proponent never applied for EC before starting expansion nor did it apply for the Consents from MPCB. The other violations of terms and conditions are enumerated in the application as below:
―n. PP is illegally extracting huge quantity of ground water from Five bore wells without any permission from competitive authority for construction of project as well as domestic use of occupied part.
0. PP has not made any test for ground water contamination and quality of water and there is serious ground water contamination.
p. PP has not provided any solid waste management system and waste generated is dumped to PMC waste yard creating burden on public systems and solid waste is generating various greenhouse gases and there is no scientific disposal of the solid waste generated from project.
q. PP has not provided any energy conservation system for energy saving like solar system.[NPJ] Page 9 of 58
r. PP has not provided any rain water harvesting system for ground water recharge against required 21 number of recharge pit.
s. PP has not preserved top layer of fertile soil and there is no soil test for contamination.
t. PP has not provided mandatory 10% open space for recreational purpose and not made tree plantation as per the norms and around the periphery of the project.
u. Huge noise causing due to air condition equipment like AHU, exhaust fans, cooling towers etc. v. Huge traffic congestion in the air causing air pollution.
w. PP has installed 8 DG sets at project site and operation of DG set is causing air pollution.
x. PP has not provided any solid waste management system like OWS/ Compost pits and waste generated is dumped to PMC waste yard creating burden on public systems and solid waste is generating various greenhouse gases and there is no scientific disposal of the solid waste generated from project.
y. PP has done concretization of marginal spaces, open spaces.
z. PP has used traditional clay bricks and PP has not used any scientific construction method.
aa. Huge quantity of sewage water is generated and there is no scientific treatment of sewage water and STP installed is just scrape skeleton.
bb. PP is creating huge burden on the environment due to day to day waste generation by consumption of natural resources and it is causing huge burden on the public facilities and services on account of environmental damage.
cc. PP has committed the illegal activities and given rise to the violation of environmental protection enactments and further caused degradation of environment & ecology intentionally.
dd. PP has not complied the conditions of commencement certificate mandating prior environment clearance and consents from the MPCB.
ee. PP has not complied the conditions of commencement certificate related to the installation of environment infrastructure to avoid the environmental degradation.
ff. PP has made illegal tree cutting.
gg. PP has committed the illegal activities and given rise to the violation of environmental protection enactments and further caused degradation of environment & ecology intentionally.[NPJ] Page 10 of 58
hh. PP has not provided fire and safety system at site and there is no approach road for fire engine.
ii. PP has not provided the ramp slope in the ratio of 1:10.
jj. PP has not provided site margin as per the DC Rules.
kk. PP has not provided mandatory 15% amenity space under DC Rules of PMC.
ll. PP has violated the principle of sustainable development.
mm.PP has caused traffic congestion in the area due to this project and cause to air pollution on account of emission from the vehicles.
nn. PP in connivance with PMC officer has violated the provisions of Environment enactment and PMC officers are also equally responsible.
oo. Involvement of bureaucratic nexus in the illegal act to help PP by misuse of their position.
pp. PP has not made any environment management plan.
qq. Therefore, PP as well as respondent authorities has violated the provisions of EIA Notification- 2006 r/w Environment Acts- 1986, Water ( P& CP) Act-1974 and Air (P& CP) Act- 1981.
rr. PP has caused substantial damage to environment and ecology more than Rs. 600 Crores, which shall be recovered from PP.
ss. PP is unapologetic and PP has adopted careless and reckless attitude towards the environment protection.
tt. Thus it is mandatory to demolish the project construction and stop further construction permanently.
6. The Project Proponent has carried out construction in violation of the terms and conditions of the Consent to Establish dated 29.04.2006. The details are mentioned in paragraph No.12 of the application regarding sanctions granted by PMC in illegal manner and that the Project Proponent has obtained more than 20 revisions with the last revision being on 04.04.2019. The revalidation and change of sanctions are with respect to the same project in plot-wise manner under one layout and that there is no boundary or any separation of project from each other. The entire project has been developed in single layout. The tactic adopted by the Project Proponent is to overcome the requirement of [NPJ] Page 11 of 58 prior EC for expansion, as the total BUA of each sanction for the individual plots is also more than 20,000 sq.mtrs. The project in question is the recurring activity and enlarging its scope from excavation of land to the full potential construction of the BUA.
7. The online application for grant of ex post facto EC by the Project Proponent was moved on 23.12.2016, wherein following description was mentioned:
Online application of PP dated 23.12.2016 Description Area Total Plot Area 59,399.43 M2 Deductions 18,743.77 M2 Net Plot Area 40,655.66 M2 FSI Area 33,008.80 M2 Non-FSI Area 62,073.48 M2 Total BUA 95,082.28 M2
8. On the basis of above violations, which have been noted, it is submitted that the environmental compensation of sum of Rs.600 Crores needs to be levied from the Project Proponent.
9. As far as Appeal No.42 of 2020 (WZ) is concerned, it has been preferred against the ex post facto EC dated 20.07.2020 granted to respondent Nos.14 and 15 - Project Proponent on the ground that the ex post facto EC is not permissible in Environmental Jurisprudence in India. If such kind of ex post facto ECs are allowed, the Project Proponent would complete his project by causing irreversible damage to the environment and then would seek EC and may render the provisions under EIA Notification infructuous. This would defeat very purpose of environmental laws. Rest of the facts, we find nothing but repetition [NPJ] Page 12 of 58 which have already been stated by us in the facts of Original Application, stated hereinabove.
10. This matter was taken up by us on 01.09.2021 and a direction was issued to the Registry to issue notices to respondent Nos.1, 3 to 5, 7 to 11 and 13 to 15 and in the same order, it is also noted that a Joint Committee was constituted in a connected matter i.e. Appeal No.42 of 2020, which has been preferred by the applicant of this Original Application in respect of seeking quashing of ex post facto EC dated 20.07.2020 granted to the Project Proponent. The relevant portion of the Joint Committee report of July, 2022 is as follows:
"2.0 OBSERVATIONS AND FINDINGS 2.1.2 The said EC dated 10.04.2007 was granted for total plot area of 41,806.35 sq.m for development of Shopping Mall ―Ishanya‖ at C.S. No.190 & 192, Shastri Nagar, Yerwada, Pune, Maharashtra with a total built up area of 34,170.83 sq.m.
Table No. 01: Details of the Commencement Certificate, Plinth Check Certificate, EC granted and Construction Status Sl.
No Particulars Plot Area Configuration Total Built-up Area .
1. Commencement 88593.06 sq.m N-Showroom: G+2 Total FSI-27561.02 sq.m Certificate O-Showroom: G+2 Total Non-FSI#- 28091.31 sq.m CC/1050/03 dated P-Showroom: G+3 19.12.2003 Q-Showroom: G+2 TBUA- 55652.33 sq.m S-Centre Entrance Lobby: G T-Multipurpose Hall: G Stalls (1-4): G+1
2. Plinth Check - For Building No. 'N' & 'O' as per Commencement Certificate dated 19.12.2003 Certificate dated 09.11.2005
3. Commencement 88593.06 sq.m Building No. 0: 0 Total FSI-28719.25 sq.m Certificate Building No. 1: G+4 CC/4109/05 dated Building No. 2: G+3 Total Non-FSI#-38014.91 sq.m 27.02.2006 Building No. 3 & 4: G+4 TBUA- 66734.16 sq.m Building No. 5: G+1 Building No. 6: G+2
4. Plinth Check - For Building No. '4', as per Commencement Certificate dated 27.02.2006 Certificate dated 04.03.2006 [NPJ] Page 13 of 58
5. Plinth Check - For Building No. '3', as per Commencement Certificate dated 27.02.2006 Certificate dated
21.06.2006
6. Plinth Check - For Building No. '0' (Part), Building No. '5' (Part) and Building No. '6' Certificate (Part) as per Commencement Certificate dated 27.02.2006 dated 19.10.2006
7. EC dated 41806.35 sq.m For development of Shopping Mall "Ishanya" with a Total Built Up Area of 10.04.2007 34,170.83 sq.m.
granted by MoEF&CC, GoI
8. Commencement 60981.55 sq.m Building No. 0: LG+S+2 Total FSI-32853.24 sq.m Certificate Building No. 1: LG+S+3 CC/0712/07 dated Building No. 2: LG+S+3 Total Non-FSI#-38050.66 sq.m 28.05.2007 Building No. 3 & 4: LG/P+S+3 TBUA- 70903.90 sq.m Building No. 5: LG+S+1 Building No. 6: LG/P+S+2
9. Completion - For 21 Showrooms of Building No. 4 as per Commencement Certificate Certificate dated 16.03.1990 & 28.05.2007 Dated 17.08.2007
10. Commencement 60981.55 sq.m Building No. 0: LG+S+2 Total FSI-32423.65 sq.m Certificate Building No. 1: LG+S+3 CC/2804/07 dated Building No. 2: LG+S+3 Total Non-FSI#-38480.25 sq.m 15.12.2007 Building No. 3 & 4: LG/P+S+3 TBUA- 70903.90 sq.m Building No. 5: LG+S+1 Building No. 6: LG/P+S+2
11. Completion - For 20 Showrooms of Building No. 1 as per Commencement Certificate Certificate dated 15.12.2007 Dated 18.12.2007
12. Commencement 60981.55 sq.m Building No. 0: LG+S+2 Total FSI-31121.99 sq.m Certificate Building No. 1: LG+S+3 CC/0163/08 dated Building No. 2: LG+S+3 Total Non-FSI#-39781.91 sq.m 16.04.2008 Building No. 3 & 4: LG/P+S+3 TBUA- 70903.90 sq.m Building No. 5: LG+S+1 Building No. 6: LG/P+S+2
13. Completion - For Certificate Dated 7 Showrooms with entire Building No. 0, 03.06.2008 44 Showrooms & 2 Store Room of Building No. 2 only, 74 Showrooms & 2 warehouse storage of Building No. 3&4only, 20 Showrooms, 1 Office, Kitchens, Communications Room, Storeroom, Mall Office, Cafeteria of Building No. 5 only, 10 Showrooms, 7 Offices, Kitchen of Building No. 6 only, as per Commencement Certificate dated 16.04.2008 [NPJ] Page 14 of 58
14. Commencement 59399.43 sq.m Building No. 0 (Entrance Hall): Total FSI-32113.18 sq.m Certificate LG+S+2 CC/0924/10/51 Total Non-FSI#-41539.76 sq.m Building No. 1 (Showroom): LG+S+3 TBUA- 73652.94 sq.m dated 15.06.2010 Building No. 2 (Showroom): LG+S+3 Building No. 3 & 4 (Showroom):
LG/P+S+3 Building No. 5 (Cafe): LG+S+1 Building No. 6 (Multipurpose Hall):
LG/P+S+2 Building No. 7: (Arcade): G+3
15. Commencement 59399.43 sq.m Building No. 0: LG+S+2 Total FSI-32838.88 sq.m.
Certificate Building No. 1: LG+S+3
CC/2106/10 dated Building No. 2: LG+S+3 Total Non-FSI"-41539.76 sq.m.
30.09.2010 Building No. 3 & 4: LG/P+S+3 TBUA- 74378.64 sq.m.
Building No. 5: LG+S+1
Building No. 6: LG/P+S+2
Building No. 7: LG/P+S+2
16. Commencement 59399.43 sq.m Building No. 0: LG+S+2 Total FSI-36847.09 sq.m.
Certificate Building No. 1: LG+S+3
CC/4177/10 dated Building No. 2: LG+S+3 Total Non-FSI#-41874.27 sq.m
15.03.2011 Building No. 3 & 4: LG/P+S+3 TBUA- 78721.36 sq.m
Building No. 5: LG+S+1
Building No. 6: LG/P+S+2
Building No.7:LG/P+S+2
17. Completion 59399.43 Building No. 0: LG+S+2 Total FSI - 36847.09 sq.m
dated 15.12.2007 sq.m.
Certificate Building No. 1: LG+S+3 Total Non-FSI" - 41874.27
CC/4177/10 Building No. 2: LG+S+3 sq.m
Dated Building No. 3 & 4: LG/P+S+3 TBUA - 78721.36 Sq.m.
15.03.2011 Building No. 5: LG+S+1
Building No. 6: LG/P+S+2
Building No.7:LG/P+S+2
18. Plinth Check For Building No. `O' (Part), Building No. `6' (Part) and Building No.`7' as
Certificate dated per Commencement Certificate dated 30.09.2010
16.03.2011
19. Plinth Check - For Building No.`5' (Part) as per Commencement Certificate dated 15.03.2011
Certificate
dated
18.04.2011
20. Commencement 59399.43 sq.m Building No. 0: LG+UG+2 Total FSI-38624.28 sq.m.
Certificate Building No. 1: LG+UG+3
CC/1875/12 dated Building No. 2: LG+UG+3 Total Non-FSI#-42002.30 sq.m.
03.09.2012 Building No. 3 & 4: LG+UG+4 TBUA- 80626.58 sq.m
Building No. 5: LG+UG+1
Building No. 6: LG+UG+2
Building No. 7: LG+UG+2
21. Completion For 14 Showrooms, 11 Showrooms with Store, Office Storeroom, Electrical Room
Certificate dated & Communication Room, Parking of Building No.5 as per Commencement dated
12.02.2013 03.09.2012
[NPJ] Page 15 of 58
22. Commencement For Lobby, Panel room, 4 Shops, 4 Anchor Shops, A.H.Us Lift Lobbies,
Certificate dated Electrical room, Gents & Ladies toilets, Corridors & Parking of Building No.7
30.09.2013 only as per Commencement Certificate dated 03.09.2012
23. Commence -59399.43 Building No. 0: LG+UG+2 Total FSI-38624.28 sq.m.
ment sq.m. Building No. 1: LG+UG+3
Certificate Building No. 2: LG+UG+3 Total Non-FSI"-42002.30 sq.m.
CC/1148/14 Building No. 3 & 4
TBUA-80626.58 sq.m.
dated :LG+UG+4
14.07.2014 Building No. 5: LG+UG+1
Building No. 6: LG+UG+2
Building No.7:LG+UG+2
24. Commencement For 1 Electrical room, 2 A.H.U., 13 Showrooms, Gents & Ladies Toilet, Lift
Certificate dated Lobby, Passage & Parking of Building No.2 only as per Commencement
03.11.2016 Certificate dated 14.07.2014
25. Commence -59399.43 Building No. 0: LG+UG+2 Total FSI-32710.04 sq.m.
ment sq.m. Building No. 1: LG+UG+3
Certificate Building No. 2: LG+UG+3 Total Non-FSI" - 40239.55 sq.m
CC/0027/19 Building No. 3 & 4
dated TBUA- 72949.59 sq.m.
:LG+UG+2+Mezzanine
04.04.2019 Building No. 5: LG+UG+1
Building No. 6: LG+UG+2
Building No.7:LG+UG+2
26. EC dated Engineering
59399.43 sq.m SEIAA decidedOffice:G
to grant EC for - FSI : 32710.04 sq.m., Non-FSI 62073.48 20.07.2020 sq.m. and Total BUA 94783.52 (Plan Approval no.CC/0027/19 dated granted by SEIAA, 04.04.2019) Maharashtra
27. Current Status of Total FSI-32710.04 sq.m Project as on dated 16.05.2022 Total Non-FSI#-61856.60 sq.m reported by PMC TBUA- 94568.64 sq.m.
vide letter dated 20.05.2022 Note - # Non-FSI areas include terrace slab, Podium, Parking, Building services ara such as Overhead Water Tank, Engineering Services (Plant Room) Area, Sewage Treatment Plant Area, Cooling Tower, Organic Waster Composter, MSEB Sub-Station, Diesel Storage Tank, Diesel Generator Bank, Thermal Storage Tank, Transformer and Other Services Equipment, Sewage Collection Tank, Gas Bank, Entrance Wall, Partition Wall, Underground Water Tank.
―2.1.7. MoEF granted EC to the PP on 10/4/2007 referring application seeking prior environmental clearance under the EIA notification 1994 as amended on July 07, 2004. The proposal has been appraised as per prescribed procedures and provisions under the EIA Notification 2006. The said EC was granted for Total Built up Area (TBUA) of 34170.83 sq.m.
Further, PMC has informed that Non-FSI area is not mentioned in the sanctioned plans as per then prevailing practice followed by Building Permission Department, PMC. It has been informed that Non-FSI areas include terrace slab, Podium, Parking and Building services area such as Overhead Water Tank, Engineering Services (Plant Room) Area, Sewage Treatment Plant Area, Cooling Tower, Organic [NPJ] Page 16 of 58 Waster Composter, MSEB Sub-Station, Diesel Storage Tank, Diesel Generator Bank, Thermal Storage Tank, Transformer and Other Services Equipment, Sewage Collection Tank, Gas Bank, Entrance Wall, Partition Wall, Underground Water Tank.‖ ―2.1.8 General Condition, as mentioned at Part B; Para 6 of the said EC dated 10.4.2007 stipulates that ―In case of change(s) in the scope of the project, the project would require a fresh appraisal by this Ministry.‖ Construction of a new building structure (i.e. Building No.7) was started which was not in the application/ proposal dated 15.05.2006 (Annexure-VI) submitted while grant of EC dated 10.04.2007. The Commencement Certificate (Please, refer Table-01, Sr.No.14) for Building No.7 is issued on 15.06.2010 and obtained Commencement Certificate (Please refer Table-01, Sr.No.22) on 30.09.2013.‖ ―2.1.13 PP had obtained the first EC on 10.04.2007 for total plot area of 41,806.35 sq.m. and the revised EC on 20.07.2020 for total plot area of 59,399.43 sq.m. PP had added adjoining plot of area 17,593.08 sq.m. in the EC, dated 20.07.2020. Out of the total area of the plot of 59,399.43 sq.m., construction has been carried out only on plot of 41,806.35 sq.m. However, no construction is carried out on additional adjoining plot with an area of 17,593.08 sq.m. and is still vacant.‖ 3.0 CONCLUSIONS :
The above observations reveal the following violations -
a) Initiating construction of more than TBUA of 34170.84 sq.m. (Please refer para 2.1.7)
b) Construction of a new building i.e. Building No.7 in violation of General Condition as at Part B; para 6 of the EC dated 10.04.2007 (Please refer para 2.1.8)
c) Construction even after the expiry of EC dated 10.04.2007 (Pleaase refer para 2.1.9)
4.0 RECOMMENDATIONS :
In view of the aforesaid violations as at para 3 above i.e. violations of EC dated 10/4/2007 and EIA notification 2006; Environment Department, Govt of Maharashtra may take appropriate actions as per the Standard Operating Procedure (SOP) issued by the MoEF&CC vide Office Memorandum (OM) F.No.22-21/2020-IA III dated 07/07/2021 for dealing with EC Violation cases.‖ [NPJ] Page 17 of 58
11. As per the service affidavit, service on all the respondents is sufficient.
12. From the side of respondent Nos.14 and 15, the stand taken by them by way of filing affidavit dated 09.01.2023 is as follows:
13. The application is barred by limitation. The applicant is not a victim, hence has no locus standi. In the application, he is stated to be a resident of Shukrawar Peth, which is far away from Yerwada, Pune. He has not pleaded any damage to have been caused to him. Hence, the application needs to be dismissed at the very outset on this ground. Any kind of illegal construction has been refused to have been made by the answering respondents. The name of the commercial mall, which has been constructed by the answering respondents, now named ―Creaticity‖ on the same survey number which has been alleged in the Original Application. It is admitted that the EC was granted on 10.04.2007 and the details mentioned by the applicant in Table-1, 2 and 3 are correct but it is denied that any excess construction has been made. The total area of the land, over which the project is constructed, is 41,806.35 M2 and not 59,399.43 M2. The total FSI area of construction is 34,170.83 M2.
The construction has been carried out on non-FSI area, but what is the area has not been disclosed in this reply. Further it is stated that this fact was put up for consideration while seeking EC in the year 2006. The original area, for which the PMC had granted sanction and EC was sought was 41,806.35 M2, which is the plot area. At the time of grant of EC, the total sanctioned area was 34,170.83 M2. The project was completed within the permissible time as per the Consent to Establish and completed the same. All violations, which are said to have been committed of the terms and conditions of the Consent to Operate, are false. Negligence is alleged to be there on the part of the officers of SEIAA [NPJ] Page 18 of 58 and the PMC. In the Consent to Operate and Consent to Establish granted from time to time, never ever any illegality or irregularity was observed by the MPCB.
14. From the side of respondent No.4 - SEIAA Maharashtra, following stand has been taken:
15. The EC was granted to the Project Proponent - respondent Nos.14 and 15 by MoEF&CC on 10.04.2007 for total plot area of 41,806.35 M2 for development of Shopping Mall ―Ishanya‖ at C.S. No.190 and 192, Shastri Nagar, Yerwada, Pune for a total BUA of 34,170.83 M2. The proposal was appraised as per the procedure prescribed in EIA Notification dated 14.09.2006. The Project Proponent has constructed total BUA of 94,568.64 M2, which is more than the approved BUA of 34,170.83 M2 . and therefore, is in violation of the EC and the provisions of EIA Notification, 2006. The condition in paragraph No.6 of Part B of the EC stipulated that ―in case of change (s) in the scope of the project, the project would require a fresh appraisal by this Ministry.‖ The construction of a new building structure (i.e. Building No.7) was started by the Project Proponent which was not in the application/proposal dated 15.05.2006 submitted while grant of EC dated 10.04.2007 was granted. Therefore, violation is caused by the Project Proponent of the general conditions at part B, para 6 of the said EC. The validity of the said EC was for five years i.e. 09.04.2012. However in the Commencement Certificates dated 03.09.2012 and 14.07.2014 followed by obtaining Completion Certificates dated 03.09.2013 and 03.11.2016 would reveal that the construction continued beyond validity of the said EC dated 10.04.2007 and thus clause 9 of the EIA Notification, 2006 stood violated.
16. Further it is mentioned that the Project Proponent approached MoEF&CC for re-validation of the EC dated 10.04.2007 which was [NPJ] Page 19 of 58 transferred to SEIAA (answering respondent). The Project Proponent applied for EC on 24.12.2016 to SEIAA for expansion and change in use as referred in 175th SEIAA minutes of the meeting held on 18.09.2019. With respect to the EC dated 10.04.2007 granted by MoEF&CC - respondent No.1, whether any violations thereof were committed by the Project Proponent can be commented by them only. Further it is mentioned that according to the EIA Notification, 2006, the monitoring of the project regarding compliance of the EC conditions is in the domain of MoEF&CC as the compliance report has been submitted to them. In the present Original Application, the violation or the non-compliance of the EC dated 10.04.2007 are alleged.
17. The stand taken by MoEF&CC - respondent No.1 is as follows:
18. It is submitted that the Project Proponent had submitted their proposal on 29.05.2006 for construction of Shopping Mall ―Ishanya‖ at Shastri Nagar, Yerwada, Pune. The project involved development of Shopping Mall comprising of Amphitheatre, Art Galleries and Computer simulation area in total plot area of 41,806.35 M2. The total BUA as indicated is 34,170.83 M2. It is submitted that the answering respondent issued an Environmental Impact Assessment Notification Number S.O. 1533 E dated 14.09.2006 superseding the Environmental Impact Assessment Notification 1994. The EIA Notification, 2006 regulates developmental projects in different parts of the country. It is further submitted that under the provisions of the EIA Notification, 2006, Environmental Clearance for Building and Construction Projects & Township and Area Development Projects are covered under entry 8(a) &
(b) of the Schedule to the EIA Notification, 2006. The entries under item 8(a) and 8(b) are qualified as category `B' projects under the EIA Notification, 2006 and require appraisal by the SEACs and approval by the SEIAAs. Further it is submitted that as per the EIA Notification, [NPJ] Page 20 of 58 2006, in the absence of a duly constituted SEIAA/SEAC, a category `B' project shall be considered at the Central Level as category `B' project. It is submitted that the proposal was received prior to EIA Notification of 14.09.2006 and was processed for consideration for grant of Environmental Clearance as per procedure in EIA Notification 1994 in terms of provision of para 12 of EIA Notification, 2006 dated 14.09.2006 read with para 2.1.1 (i) of the Circular dated 13.10.2006. The proposal is of B2 category and has been considered by the Expert Appraisal Committee at Central Level as then the SEAC had not been constituted for the State. It is also submitted that public hearing in the instant case was conducted on 22.02.2006. During the public hearing, issues were raised and after detailed discussion the following was resolved:
―(i) The Project Proponent will build and maintain the Shopping Mall as promised and eco-friendly atmosphere will be maintained.
(ii) Rain Water harvesting shall be followed wholeheartedly.
(iii) As promised, the River Osmosis system shall be installed and implemented accordingly.
(iv) Solar energy system shall be implemented.
(v) The green belt shall be developed while constructing the project as assured in the public hearing.
19. It is further submitted by respondent No.1 that the project proposal was submitted to the Additional Expert Committee constituted for considering Environmental Clearance for new construction projects. The Committee discussed the proposal in the eight meeting held on 15-16 December, 2006 and recommended that Environmental Clearance may be accorded to the project proposal for construction of Shopping Mall. It is submitted that, however, with respect to the allegation made by the applicant in the application, the SEIAA, Maharashtra and the Regional Office, Nagpur have been requested to undertake inspection of the [NPJ] Page 21 of 58 aforesaid unit in question alongwith the EC for submitting the report before the Tribunal. Lastly, it is submitted by the answering respondent that appropriate order be passed.
20. We find that in the present Original Application, after receipt of the complaint made by the applicant, an inspection was directed by the MoEF&CC to the Member, Secretary, SEIAA, but it appears that SEIAA did not conduct the said inspection and the same was conducted by the MoEF&CC itself, report of which is annexed at pages 360 to 370, the relevant portion of which is reproduced hereinunder:
S.No. Allegation Observations
1. Para 8 of Page 22: Construction PP submitted application under EIA
being carried out in violation of Notification 1994 (as amended on July 7
terms and conditions of 2004) to MoEF for environmental clearance
environmental clearance, for construction of shopping mall. Ministry
consent to establish and consent appraised the application under EIA
to operate. Notification 2006 and granted environmental
clearance for the project vide letter dated
1. Plot area increased from 10.04.2007.
41806.35 sq.m. to 59399.43 sq.m. As per the clearance, total plot area was
2. Built up area increased 41806.35 sq.m. The total built up area from 34170.83 sq.m. to approved was 34170.83 sq.m. 94568.64 sq.m.
Increase in plot area:
PP during the site inspection submitted that area of 17,593.08 sq.m. is vacant. PMC representatives also agreed with the statement of the project proponent. The vacant area was also shown during the site inspection. No development was observed in the plot area of 17,593.08 sq.m.
Increase in built up area:
PP during the site inspection submitted that the built up area mentioned in the clearance letter was FSI area and non-FSI [NPJ] Page 22 of 58 area was not included in the clearance letter. As per the EIA report submitted to Ministry, PP mentioned built up area as 34170.83 sq.m.
and non built up spaces as 19575.73 sq.m.
As per the information provided, the total built up area constructed as on date is 94.568.64 sq.m.
In Civil Appeal no. 10854 of 2016 in the matter of M/s. Goel Ganga Developers India Pvt. Ltd.
vs. Union of India through Secretary MoEF& Others, Hon'ble Supreme Court opined that "In view of the above, we are clearly of the view that the EC granted to the project proponent on 04.04.2008 was for constructing a total built up area of 57,658.42 sq.mtrs. and this would include all covered construction not open to sky.
No artificial division on the basis of FSI and Non-FSI area can be made. Therefore, the NGT was fully justified in coming to the conclusion that the construction raised by the project proponent was in total violation of the EC granted to it."
In view of the above opinion of Hon'ble Supreme Court, construction of built up area of 94,568.64 sq.m. against the approved built up area of 34170.83 sq.m. is violation of environmental clearance and provisions of EIA Notification 2006.
Co ns en t to es ta b l is h a nd c o ns en t to operates were granted by MPCB for built up area of 34170.83 sq.m.
2. Illegal extraction of ground During the site inspection, no borewells water & no testing of were observed. As informed PMC is ground water supplying water for the project. PP did not monitor the ground water level and quality.
PP informed that the monitoring is not carried out as there is no source of ground water. Information provided by PP is [NPJ] Page 23 of 58 enclosed as Annexure-5.
3. Dumping of solid waste to PMC During the site inspection, it was waste yard.
observed that one OWC was provided for
the treatment of wet waste. An
agreement was made with Sant Gadge
Baba Savyamrojgar Seva Sahkari
Maryadit, Pune for the disposal of dry
waste.
4. No energy conservation system During the site inspection it was
such as solar system observed that solar PV panels were
installed on roof tops of some of the
buildings.
5. No rain water harvesting During the site inspection, it was
system for ground water observed that one collection tank (of
recharge against required 21 capacity 5, 00,000 liters) was provided for
number of recharge pit. collection of rain water. No recharge pits
were provided.
6. No mandatory 10% open During the site inspection tree plantation
space for recreational purpose was observed within the project area. As per
and not made tree plantation as the information provided byPP, green belt
per norms. was developed over an area of 8759.79
sq.m.
7. Traffic congestion causing air During the site inspection, it was
pollution observed that security deployed at the
project site controls flow of traffic coming into and going out of the mall. Internal parking was provided for the project.
8. Installation of 8 DG sets and During the site inspection, it was operation causing air pollution. informed that DG sets were operated only during power failure/shut down. PP informed that continuous power supply is available.
9. Huge quantity of sewage water During the site inspection it was and STP was not installed. observed that STP was installed for the treatment of sewage. A STP of 255 CMD (working on MBBR technology) was installed and the same was in operation.
10. PP has not provided fire During the site inspection, PMC officials and safety system at site and informed that Fire NOC was granted for the there is no approach road for fire project.
engine.
11. Ramp slope not in the ratio of During the site inspection, PMC officials and 1:10, site margin not as per DC projectproponent informed that ramp slope rules. and site margin were as per prevailing rules.
12. PP did not submit any During the site inspection, PP submitted application for the revalidation of environmental clearance that entire construction was completed within the validity period of EC i.e. before 09.04.2012. Hence EC was not revalidated. However, PMC granted occupancy certificate for [NPJ] Page 24 of 58 Building no. 7 and Building no.2 vide letters dated 12.02.2013, 30.09.2013 and 03.11.2016.
Compliance status of conditions stipulated in environmental clearance granted for the construction of shopping mail " Ishanya" located at Shastri Nagar, Yerawada, Pune granted by MoEF vide letter no. 21-243/2006-IA-Ill dated 10.04.2007 During the site inspection, it was observed that the construction of the project completed. Compliance status pertaining to operation phase of the project is as follows:
S.No. Condition Compliance Status
i. Necessary permission of competent During the site inspection, it was
authority shall be taken to store diesel in observed that no diesel was stored at
the premises for operation of DG set.
the project site. PP submitted that
diesel is procured as per the
requirement from nearby Petrol
Stations.
ii. Diesel power generating sets proposed Partly complied.
as source of backup power for lifts and
During the site inspection, it was
common area illumination should be of
observed that enclosed type DG sets
"enclosed type" and conform to
rules made under Environment were provided. Stack of height 6
(Protection) Act 1986,
meters was provided for each DG set.
prescribed for air and
noise emission Stack emissions were monitored
standards as per CPCB guidelines.
through MoEF&CC recognised
Exhausts should be discharged by stack,
laboratory.
raised to 4 meters above the rooftop.
iii. During nighttime the noise levels Not complied.
measured at the boundary of
the building shall be PP did not submit any noise monitoring
restricted to the permissible levels to
comply with the prevalent regulations. reports to this office.
iv. Noise barriers should be provided During
at the site inspection, it was
appropriate locations so as to ensure observed that plantation was
that the noise levels do not exceed the developed in the project over an area of
prescribed standards. 8759.79 sq.m. PP did not submit any
noise monitoring reports to this office.
[NPJ] Page 25 of 58
v. Weep holes in the compound walls shall During the site inspection, it was
be provided to ensure natural
drainage of rainwater in the informed that separate drains were
catchment area.
provided for the storm water.
vi. The sewage treatment plant should Partly complied.
be certified by an independent expert for
efficiency as well as adequacy and should Sewage generated from the project is submit a report in this regard to the treated in STP of 255 CMD was and Ministry before the project is treated water is utilized for flushing and commissioned for operation. The cooling. The STP is based on MBBR wastewater should be treated to tertiary technology. PP did not submit treated level and after treatment reused for water quality monitoring reports to this flushing of toilets and gardening. office.
Discharge of treated sewage, if any, shall conform to the norms & standards prescribed by Maharashtra State Pollution Control Board.
vii. Oil & Grease trap shall be providedDuring
to the site inspection, it was
remove oil and grease from the surface observed that only one collection tank was provided for utilization run off and suspended matter shall be of rain water.
removed in a settling tank
before its utilization for
rainwater harvesting.
viii. The solid waste generated should be Complying with.
properly collected & segregated. Wet
During the site inspection, it was
garbage should be composted and
dry/inert solid waste observed that OWC was provided for
should be disposed of for land filling.
the treatment of wet waste. An
agreement was made with Sant Gadge
Baba Savyamrojgar Seva
Sahkari
Maryadit, Pune for the disposal of dry
waste.
ix. Any hazardous waste including
PP shall not generate any hazardous
biomedical waste should be
waste as per the consent granted by
disposed of as per
MPCB.
applicableRules & norms with necessary approvals of Maharashtra State Pollution Control Board approvals of Maharashtra State Pollution Control Board.
[NPJ] Page 26 of 58
x. The green belt design along the periphery Compliance status is already provided
of the plot shall achieve attenuation
factor conforming to the above.
day and night noise
standards prescribed for residential land use. The open spaces inside the plot should be suitably landscaped and covered with vegetation of indigenous variety.
xi. Incremental pollution loads on the Not complied.
ambient air quality, noise and water quality should be periodically monitored PP did not submit periodical monitoring after commissioning of the project.
reports to this office since the grant of EC.
xii. The ground water levels and its Not complied.
quality should be monitored regularly in
consultation with Central Ground Water Ground water level and quality were not
Authority. monitored.
xiii. A report on the energy Not complied.
conservation
measures should be prepared PP did not submit the reports as per
incorporating details about building
stipulation.
materials & technology, R & U factors
etc and submitted to the Ministry in
three months time.
xiv.
The values of R & U for the building
envelope should meet the
requirements of the hot & humid
climatic location. Details of the building envelope should be worked out furnished in three months time.
General Conditions:
S.No. Condition Compliance Status
i. The environmental safeguards During the site inspection, it was
contained in
the EIA Report should be implemented observed that STP of 255 CMD was in letter and spirit. provided for the treatment of sewage.
OWC was provided for the treatment of wet waste. Green belt was developed over an area of 8759.79 sq.m. Solar panels were installed at the project site.
One collection tank of capacity
[NPJ] Page 27 of 58
5,00,000 liters was provided. A
violation w.r.t. construction of built
up area was observed as per
Hon'ble Supreme Court judgement
mentioned above.
ii. Provision should be made for the supply Project is in operation phase.
of kerosene or cooking gas
and pressure cooker to the laborers
during construction phase.
iii. All the laborers to be engaged for
construction works should be screened
for construction works should be
screened for health and adequately
treated before the issue of work permits
iv. 6 monthly monitoring reports Not complied.
should be submitted to MoEF
should be forwarded to the CCF, PP did not submit the six monthly Regional office of MoEF, Bhopal.
compliance reports regularly.
5. Officials from the Regional Office of PP agreed upon.
MoEF, Bhopal who would be
monitoring the
implementation of environmental
safeguards should be given full
cooperation, facilities and documents/
data by the project proponent during their
inspection. A complete set of all the
documents submitted to MoEF should be
forwarded to the CCF,Regional
office of MoEF, Bhopal.
6. In the case of any change (s) in the A violation w.r.t. construction of
scope of the project, the project would built up area was observed as per
require a fresh appraisal by this Hon'ble Supreme Court judgement
mentioned above.
Ministry.
[NPJ] Page 28 of 58
7. The Ministry reserves the right to PP
addagreed upon.
additional safeguard measures
subsequently, if found necessary,
and to take action
including revoking of the
environment clearance
under the provisions of
the Environment (Protection)
Act,1986, to
ensure effective implementation of the
suggested safeguard measures in a time
bound and satisfactory manner.
8. All other statutory clearances such as Fire Department of PMC granted NOCs
the approvals for storage of diesel from for the buildings.
Chief Controller of Explosives,
Fire Department, Civil Aviation
Department (if required), CRZ
Regulations, State Forest Department,
Wild Life Act, 1972 Act. Shall be
obtained by project
proponents from the
competent
authorities.
9. A copy of the environmental clearance No information was provided regarding
letter would be marked to the local
submission of copy of clearance to
NGO(s), if any, from whom
NGO.
suggestion/representation were received at the time of public hearing.
[NPJ] Page 29 of 58 10 The project proponent should advertise Not complied.
in at least two local Newspapers widely PP did not publish advertisement as
circulated in the region, one of which
shall be in the vernacular language per the stipulation after obtaining
informing that the project clearance.
has been accorded
environmental clearance and copies of
clearance letters are available with
the Maharashtra State
Pollution Control Board and may
also be seen on the
websiteof the Ministry of
Environment and Forest at
http://www.envfor.nic.in. The
advertisement should be made within 7
days from the day of issue of the clearance
letter and a copy of the same should be
forwarded to the Regional office of this
Ministry at Bhopal
11 These stipulations would be enforced MPCB granted renewal of consent to
among others under the provisions of the operate vide letter dated 08.07.2020.
Water (Prevention and Control of
Pollution) Act, 1974, the
Air (Prevention and
control of Pollution) Act, 1981,
the Environment (Protection)
Act, 1986, the Public
Liability (Insurance) Act,
1991 and EIA Notification, 1994
including the amendments.
12. The project authority will enter in to MOU No information was provided by project
with all buyers of the property, proponent.
flats/shops etc. to ensure operation and
maintenance of the assets handed over
to the society formed by the
residents/owners of the buildings.
13. Under the provisions of Not complied. As per the Google
Environment (Protection) Act 1986, legal Imageries prior April 2007 show that the
action shall be initiated against the construction of the project was initiated
project proponent if it before April 2007. Details are enclosed was found that construction of the project as Annexure-6.
had started without obtaining environmental clearance.
[NPJ] Page 30 of 58
21. The stand taken by respondent No. 6 - Mr. Anil U. Diggikar, in his affidavit dated 22.11.2022 is that when the Department and Authority have been impleaded as the formal parties, there was no reason to implead respondent No.6 as nothing was done by him. Only bald allegations have been made against him in order to harass him. He has denied all the allegations made against him by the applicant.
22. The stand taken by respondent No.7 - MPCB is that the answering respondent has granted Consent to Establish to the Project Proponent on 29.04.2006 for Plot Area 42,000 Sq.Mtrs and first Consent to Operate on 24.11.2009 for Plot Area 41,806.35 Sq.Mtrs and Total Built Up Area 34,170.83 Sq.Mtrs and the said Consent to Operate was renewed on 08.07.2020 for Total Plot Area of 41,806.35 Sq.Mtr and Built Up Area of 34,170 Sq.Mtrs, which was valid upto 31.03.2022.
23. From the side of respondent Nos.10 to 12 - PMC, following stand is taken as per their affidavit dated 25.02.2023:
The plans are sanctioned on an application made by the Project Proponent under Section 44 of the Maharashtra Regional and Town Planning Act, 1966 (―MRTP Act, 1966‖, for short) through a licensed Architect. Thereafter, the proposals are sanctioned under Section 45 of the MRTP Act. In 2014, Environment Department, Govt. of Maharashtra made it mandatory that EC would be granted only after sanctioning of it.
Earlier the EC was granted on conceptual plans and after 2014, it is granted only after sanctioning of Plans from the Planning Authority. All the sanction/commencement certificates (CCs) granted by the answering respondents, which also find mention in the report reproduced above by us. Therefore, we are not re-producing the same here again. In paragraph No.14 of the affidavit, the details of Occupation Certificate (OC) issued by the answering respondents are given, which are as follows:[NPJ] Page 31 of 58
Sr. Building Occupation Occupation As per
No. No. Certificate Certificate Sanctioned Plan
No. Date
1 4 BCO/03/45 17/08/2007 CC No.5777 dtd.
16/03/1990 &
CC/0712/07 dtd
28/05/2007 for
21 showrooms of
Bldg No.4
2 1 BCO/03/092 18/12/2007 CC/2804/07 dtd
15/12/2007 for
20 showrooms of
Bldg No.1
3 0,2,3,4, 5 BCO/YWO/02 03/06/2008 CC/0163/08 dtd.
and 6 16/04/2008 for 7
showrooms with
entire bldg.. no.0
only, for 44
showrooms & 2
storeroom of bldg..
no.2 only., for 74
showrooms & 2
warehouse storage
of Bldg No.3 & 4
only, for 20
showrooms, 1
office, Kitchens,
communication
rooms, storeroom,
mall office,
cafeteria of Bldg.
No.5 only & for 10
showrooms, 7
offices, Kitchen of
Bldg No.6 only..
4 5 OCC/1424/12 12/02/2013 CC/1875/12 dtd
03/09/2012 for
14 showrooms, 11
showrooms with
store, office,
storeroom,
electrical room &
communication
room, parking of
Bldg No.5.
5 7 OCC/0936/13 30/09/2013 CC/1875/12 dtd
03/09/2012 for
Lobby, Panel room,
4 shops, 4 anchor
shops, A.H.U.s
Lift, Lobbies,
Electrical room
gents and ladies
toilets, corridors &
parking of Bldg.
[NPJ] Page 32 of 58
No.7.
6 2 OCC/1491/16 03/11/2016 CC/1148/14 dtd
14/07/2014 for 1
Electrical Room, 2
A.H.U., 13
Showrooms, Gents
and Ladies toilet,
Lift Lobby,
Passage and
parking of Bldg.
No.2 only.
24. It is further mentioned in the affidavit by respondent Nos.10 and 12 that there was no provision related to Environmental Clearance in DC Rules, 1987, which was only in year 2017, the concept of Environmental Clearance was inserted as Rule 13.5 of Development Control Rules, 2017, which states that Environmental Clearance certificate shall be issued for the project, which needs clearance from the said Authority as may be prescribed by the Ministry of Environment from time to time. It is further submitted that 10% open space and 15% amenity space is provided as per the provisions of D.C. Rules. The PMC has abided by the D.C. Rules, MRTP Act, 1966 and Maharashtra Provincial Municipal Corporation Act, 1949 and has also granted all the permissions accordingly.
25. We have heard the arguments of the applicant-in-person, learned counsel for the appellant and learned Senior Counsel Mr. Dhruv Mehta for respondent Nos.14 and 15 - Project Proponent.
26. Learned senior counsel Mr. Dhruv Mehta has drawn our attention to the Environmental Clearance dated 10.04.2007, which is at page 65 of the paper-book, wherein total built up area (TBUA) is recorded as 34,170.83 Sq.Mtr. As against this, the construction made by the Project Proponent is found to be 94,568.64 Sq.Mtrs, which find mention in the Joint Committee report at page 362 of the paper-book. Having pointed out that, it was stated by him that at the relevant point of time when this EC was granted, normal practice was that only FSI area should be taken [NPJ] Page 33 of 58 into consideration and accordingly, the same i.e. 34,170.83 Sq.Mtrs was mentioned in the said EC. Thus the construction of 60,397.91 Sq.Mtrs (94,568.64 - 34,170.83) should not be treated to be violation of the EC. However, an application was moved on 23.12.2016, for grant of ex post facto EC for the entire project, which is at pages 1393 to 1424of the paper-book, showing therein the Total BUA to be 95,082.28 Sq.Mtrs wherein this Built-up area has been shown for ex post facto grant of EC sought, which has been considered in the SEAC Meeting dated 15.07.2017, minutes of which are filed at pages 1425 to 1434 of the paper-book, wherein the Committee decided to defer the matter as per the order of MoEF&CC dated 07.07.2017. The said O.M. of MoEF&CC dated 07.07.2017 in paragraph No.4 lays down as follows:
―The definition provided in the Ministry's notification will have its effect from the prospective date of the notification only. The projects which are not covered in the period of above notifications should be assessed as per the definition of built up area provided in the building bye-laws or Development Control Regulation (DCR) of the local authorities in the States.‖
27. It appears that in the meeting dated 15.07.2017, SEAC has wrongly interpreted O.M. dated 07.07.2017 to mean as follows:
―Accordingly, MOEF&CC by their order dated 07/07/2017 concurred that the environmental clearance for building and construction projects up to 1.50,000 square meter stand integrated with Development Central Regulations (DCR) of all Municipal Corporations, Municipal Councils and all Special Planning Authorities in Pune and Kokan Division.‖ Because we find that such interpretation cannot be made of the stipulation made in paragraph No.4 of the O.M. dated 07.07.2017, quoted above.
28. This matter was taken up in the next meeting dated 24.08.2018, minutes of which are annexed at pages 1435 to 1444 wherein the [NPJ] Page 34 of 58 Committee decided to refer the proposal to SEIAA for further action because it was found by SEAC that the EC had lapsed and required revalidation, which could have been done only by SEIAA.
29. The matter was considered by SEIAA, in its meeting held on 18.09.2019, minutes of which are annexed at pages 1445 to 1454 of the paper-book, in which it was decided that the Project Proponent had obtained EC dated 10.04.2007 from MoEF&CC. The proposal was considered by SEAC-III in its 68th meeting, which asked the Project Proponent to revalidate EC dated 10.04.2007 and referred the proposal to SEIAA for further action. The Project Proponent stated that they have applied to MoEF&CC for revalidation of EC, but MoEF&CC transferred the proposal of revalidation to SEAC. The Project Proponent then applied through EC portal for revalidation and also stated that there is change in use in their proposal, which is not apprised by SEAC-III. Hence, SEIAA, after deliberation, decided to refer the matter back to SEAC-III for fresh appraisal.
30. Thereafter the matter was considered by SEAC in its meeting dated 11.12.2019, minutes of which are annexed at pages 1455 to 1465 of the paper-book, wherein information with regard to several points was required to be furnished by the Project Proponent, which are enumerated at page 1465 from point Nos.1 to 12, for which the Project Proponent sought time and the matter was deferred for consideration.
31. SEAC-III again considered the matter in its meeting dated 10.06.2020, minutes of which are annexed at pages 1475 to 1485, wherein it recommended the proposal for prior Environmental Clearance to SEIAA subject to three conditions which are contained therein at page 1485 from Sr. No.1 to 3.
32. The SEIAA, thereafter, considered the recommendations made by the SEAC in its meeting dated 23.06.2020, minutes of which are annexed [NPJ] Page 35 of 58 at pages 1486 to 1497, wherein it decided to grant EC for FSI 32,710.04 Sq.Mtrs, non-FSI 62,073.48 Sq.Mtrs and total BUA of 94,783.52 Sq.Mtrs., subject to the conditions that the Project Proponent shall ensure that CER plan gets approved from the Municipal Commissioner and the Project Proponent shall comply with Standard EC conditions mentioned in the Office Memorandum issued by MoEF&CC dated 04.01.2019, as well as few specific conditions as well which are enumerated therein at Sr. No.1 to 3
33. The SEIAA considered the recommendations made by the SEAC in its meeting dated 23.06.2020, minutes of which are annexed at pages 1486 to 1497, wherein it decided to grant EC for FSI 32710.04 sq.mtr, Non-FSI 62073.48 sq.mtr and total BUA 94,783.52 sq.mtr, subject to the conditions that Project Proponent shall ensure that CER plan gets approved from Municipal Commissioner and it shall comply with standard EC conditions mentioned in the Office Memorandum issued by MoEF&CC vide F.No.22-34/2018-IA.III dt. 04.01.2019 as well as on few specific conditions as well, which are enumerated therein at Sr.No.1 to 3, which are at page 1497 and SEIAA has decided to grant the proposal for prior Environmental Clearance, pursuant to to the recommendations of SEAC, EC dated 20.07.2020 has been granted to the Project Proponent, which is annexed at pages 1498 to 1511.
34. On the basis of the above details, it is argued by the learned counsel for the Project Proponent that there is no violation committed on their part because whatever construction was found to be in excess, for that, they have already taken ex post facto EC.
35. Next, to the argument on behalf of respondent Nos.14 and 15 -
Project Proponent that the Original Application is time barred, it was vehemently argued by the learned counsel for the applicant that the application is not time barred as it was filed on recurring cause of action. [NPJ] Page 36 of 58
36. On the basis of pleadings of respective parties as well as arguments advanced before us on their behalf, we are of the view that the following issues need to be framed for being decided by us while disposing of the Original Application as well as Appeal:
(i) Whether the Original Application is barred by limitation ?
(ii) Whether there was violation of EIA Notification, 2006 ?, If yes, its effect ?
(iii) Whether, in case it is found that there was violation of Environmental Clearance dated 10.04.2007, what will be the amount of Environmental Damage Compensation (EDC), to be levied from respondent Nos.14 and 15 - Project Proponent ?
(iv) Whether the ex post facto Environmental Clearance (EC) dated 20.07.2020 is liable to be set aside ?
Issue No. (i) :
37. On this issue namely, ―whether the Original Application is barred by limitation?‖, the submission made from the side of respondent Nos.14 and 15 - Project Proponent is that Section 15 of the National Green Tribunal Act, 2010 provides limitation period of five years since the cause of action first arose, which means that the action should be brought within five years from the date of commencement of the action being reported. The answering respondents commenced construction of the project on 28.05.2007. Hence the cause of action first arose would reckon from the said date and this Original Application should be treated to have been filed 13 years after the said date. The construction was completed by them on 30.09.2013 as is noted by the Joint Committee in its report at paragraph 2.8.8. Therefore, even if that date i.e. 30.09.2013 is taken to be starting point of limitation, this Original Application has been filed seven years thereafter. As against this, the applicant is seeking reckoning [NPJ] Page 37 of 58 of the limitation from the date 20.07.2020 when the second Environmental Clearance (EC) was obtained by the Project Proponent.
38. We find from pages 41 and 42 of the Original Application that the Project Proponent has made changes in the project layout by carrying out subsequent amendment in sanction plan of PMC till 04.04.2019 and thereafter SEIAA decided to grant EC to the Project Proponent in its meeting held on 23.06.2020, which gave rise to cause of action which first arose. Further it is mentioned by the applicant that the Project Proponent has carried out illegal construction from 0 sq.mtr to 94,568.64 sq.mtr and this construction activity is a recurring cause, which is in violation of the terms and conditions of the EC dated 10.04.2007 and Consent to Establish dated 29.04.2006. The cause of action should, therefore, be treated to have arisen on 23.06.2020 when SEIAA had decided to grant EC to the Project Proponent.
39. We may rely on the judgment dated 07.05.2015 passed by the Principal Bench of this Tribunal in Original Application No.222 of 2014 in the matter of The Forward Foundation & Ors. Vs. State of Karnataka & Ors , which was also relied upon by us in Original Application No.28 of 2019, decided on 22.03.2023. In the case of the Forward Foundation (supra), following was observed:
―24. The expression ‗cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to the provisions of the NGT Act. Such ‗cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of the NGT Act. A ‗cause of action' might arise during the chain of events, in establishment of a project but would not be construed as a ‗cause of action' under the provisions of the Section 14 of the NGT Act, 2010 unless it has a direct nexus to environment or it gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of the NGT Act, ‗being cause of action first arose'. A dispute giving rise to a ‗cause of action' must essentially be an environmental dispute and should relate to either one or more of the Acts stated in [NPJ] Page 38 of 58 Schedule I to the NGT Act, 2010. If such dispute leading to ‗cause of action' is alien to the question of environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr., (2004) 9 SCC 512, J. Mehta v. Union of India, 2013 ALL (I) NGT REPORTER (2) Delhi, 106, Kehar Singh v. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556, Goa Foundation v. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234].
Furthermore, the ‗cause of action' has to be complete. For a dispute to culminate into a cause of action, actionable under Section 14 of the NGT Act, 2010, it has to be a ‗composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of the NGT Act, 2010. It must satisfy all the legal requirements i.e. there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before the Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of ‗cause of action' as afore-stated would have to be considered as to when it first arose.
25. In contradistinction to ‗cause of action first arose', there could be ‗continuing cause of action', ‗recurring cause of action' or ‗successive cause of action'. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, ‗Cause of action first arose' would refer to a definite point of time when requisite ingredients constituting that ‗cause of action' were complete, providing applicant right to invoke the jurisdiction of the Court or the Tribunal. The ‗Right to Sue' or ‗right to take action' would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by the Hon'ble Supreme Court in the case of Bal Krishna Savalram Pujari & Ors. v. Sh. Dayaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798.
26. In the case of State of Bihar v. Deokaran Nenshi and Anr., (1972) 2 SCC 890, Hon'ble Supreme Court was dealing with the provisions of Section 66 and 79 of the Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no Court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. The Hon'ble Supreme Court held as under:
―5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is [NPJ] Page 39 of 58 committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.‖
27. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of ‗continuing wrong or offence'. For instance, using the factory without registration and licence was an offence committed every time the premises were used as a factory. The Hon'ble Supreme Court in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi, (1986) 1 SCC 445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, the Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesse does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. Hon'ble High Court of Delhi in the case of Mahavir Spinning Mills Ltd. v. Hb Leasing And Finances Co. Ltd., 199 (2013) DLT 227, while explaining Section 22 of the Limitation Act took the view that in the case of a continuing breach, or of a continuing tort, a fresh period of limitation begins to run at every moment of time during which the breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the ‗continuing cause of action' once all the ingredients are satisfied. Continuing cause of action thus, becomes relevant for even the determination of period of limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law.
Thus, the expressions ‗cause of action first arose', ‗continuing cause of action' and ‗recurring cause of action' are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainty or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given case. These are generic concepts of civil law which are to be applied with acceptable variations in law. In light of the above discussed position of law, we may revert to the facts of the case in hand.
28. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful act causes the injury which is complete, there [NPJ] Page 40 of 58 is no continuing wrong even though the damage resulting from the act may continue. In other words distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period of limitation will began to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. [Ref: Khatri Hotels Private Limited and Anr. v. Union of India (UOI) and Anr., (2011) 9 SCC 126, Bal Krishna Savalram Pujari & Ors. v. Sh.Dayaneshwar Maharaj Sansthan & Ors, AIR 1959 SC 798, G.C. Sharma v. Municipal Corporation of Delhi, (1979) ILR 2 Delhi 771, Kuchibotha Kanakamma and Anr. v Tadepalli Ptanga Rao and Ors., AIR 1957 AP 419].
29. A cause of action which is complete in all respects gives the applicant a right to sue. An applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of the National Green Tribunal (Practise and Procedure) Rules, 2011, shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and therefore, there is exclusion of the concept of the ‗joinder of causes of action' under the Rules of 2011. The multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In latter, it may give rise to cause of action or if the statutes so provide when the ‗cause of action first arose' even if the wrong was repeated. Where the injury or wrong is complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may gives rise to a fresh cause of action. To this general rule, there could be exceptions. In particular such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like ‗cause of action first arose' in contradistinction to ‗cause of action' simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions ‗when right to sue first arose' or ‗cause of action first arose' connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of the Limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing Environmental Clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting Environmental Clearance, however, if on subsequent event there is a breach or non-implementation of the terms and conditions of the Environmental Clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal of the consent. Such an [NPJ] Page 41 of 58 event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period of limitation computed from the date when the cause of action ‗first arose', it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
30. Now, we would deal with the concept of recurring cause of action. The word ‗recurring' means, something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when ‗cause of action first arose'. It could even have the same features but its reoccurrence is complete and composite. The recurring cause of action would not stand excluded by the expression ‗cause of action first arose'. In some situation, it could even be a complete, distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression ‗cause of action first arose'. The Supreme Court clarified the distinction between continuing and recurring cause of action with some finesse in the case of M. R. Gupta v. Union of India and others, (1995) 5 SCC 628, the Court held that:
―The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant's claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each [NPJ] Page 42 of 58 payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Ors. v. Mattapalli, Raju and Ors. AIR (1950) F C1.‖
31. The Continuing cause of action would refer to the same act or transaction or series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide the applicant the right to sue. It may have even be de hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. [Ref: Ex. Sep. Roop Singh v. Union of India and Ors., 2006 (91) DRJ 324, M/s. Bengal Waterproof Limited v. M/s. Bombay Waterproof Manufacturing Company and Another, (1997) 1 SCC 99].
32. The principle that emerges from the above discussion is that the ‗cause of action' satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression ‗cause of action first arose' as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a reference to an event which had occurred earlier and was a complete cause of action in itself. In that sense, recurring cause of action which is complete in itself and satisfies the requisite ingredients would trigger a fresh period of limitation To such composite and complete cause of action that has arisen subsequently, the phraseology of the ‗cause of action first arose' would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. To put it simply, it would be act or series of acts which arise from the same event, may be at different stages. This expression would not de bar a composite and complete cause of action that has arisen subsequently. To illustratively demonstrate, we may refer to the challenge to the grant of Environmental Clearance. When an appellant challenges the grant of Environmental Clearance, it cannot challenge its legality at one stage and its impacts at a subsequent stage. But, if the order granting Environmental Clearance is amended at a subsequent stage, then the appellant can challenge the subsequent [NPJ] Page 43 of 58 amendments at a later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the concept of cause of action first arose.‖
40. In view of above position of law, if we scrutinize the present matter, we find that for construction of the project in the present case, the first Commencement Certificate was issued by PMC on 19.12.2003 for total FSI area of 27,561.02 sq.mtrs, Non-FSI area of 28,091.31 sq.mtrs and total BUA of 55,652 sq.mtrs. This certificate was for 4 show rooms with G+2 configuration, entrance lobby at ground level, multiplex hall at ground level and 4 stalls with G+1 configuration. First plinth check certificate for 2 buildings was issued on 09.11.2005. This makes it clear that construction had started even before issuance of EC dated 10.04.2007.
41. As per Commencement Certificate dated 27.02.2006 project scope changed to 6 buildings with Total FSI area 28,719.25 sq.m., Non-FSI area 38,014.91 sq.m. and Total BUA 65,734 sq.m. However, we are puzzled to know that application for EC dated 10.04.2007 submitted on 29.05.2006, i.e. after CC dated 27.02.2006 and EC was obtained for only Total BUA 34,170.83 sq.m. It is not clear what project configuration was submitted by the PP and appraised by EAC while granting the said EC.
42. There was change in the project configuration time and again as is evident from CCs issued on 28.05.2007 (TBUA 70,903.9 sq.m.), 15.12.2007 (TBUA 70,903.9 sq.m. but FSI/Non-FSI area changed), 16.04.2008 (TBUA 70,903.9 sq.m. but FSI/Non-FSI area changed again), 15.06.2010 (TBUA 73,652.94 sq.m.), 30.09.2010 (TBUA 74,378.64 sq.m.), 15.03.2011 (TBUA 78,721.36 sq.m.), 15.03.2011 (TBUA 78,521.36 sq.m.), 03.09.2012 (TBUA 80,626.58 sq.m.), 14.07.2014 (TBUA 80,626.58 sq.m.), 04.04.2019 (TBUA 72,949.59 sq.m.). [NPJ] Page 44 of 58
43. The last CC was granted in 04.04.2019 for building configuration which was changed as compared to CC dated 14.07.2014 (building 3 & 4 configuration changed from LG+UG+4 to LG+UG+2+Mezanine and Building for engineering added).
44. Environmental impact of building construction project in construction phase includes air pollution due to transport/storage/handling of construction material and construction/demolition waste, increase in noise levels in surrounding areas due to operation of plant/machinery/vehicles, liquid/solid waste due to sanitation facilities for construction workers, change in hydrology that may affect run-off from the area, safety risk due to increase in traffic, water/power requirement for construction purpose, excavation/filling of land for land preparation / foundation/basements, and tree cutting. So long as construction continues, these impacts are recurring cause of action.
45. In view of above facts and the position of law, we are of the view that the present case would be covered under the category of `recurring cause of action', which is held to be complete in itself and satisfies the requisite ingredients. The phraseology ―cause of action first arose‖ would not affect in computing the period of limitation. The concept of ―cause of action first arose‖ must essentially relate to the same event or series of events which have a direct linkage and arise from the same event. If the order granting EC is amended at subsequent stage, then the appellant/applicant can challenge the subsequent amendments at the later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the concept of ―cause of actin first arose‖. In the case in hand, the first EC was granted on 10.04.2007 and the Project Proponent has obtained Commencement [NPJ] Page 45 of 58 Certificates on different dates, which have been mentioned by us, in the course of construction which has been completed in phases. But the Project Proponent has further taken Commencement Certificate even after 2019, which shows that the version of the Project Proponent that he had concluded the construction by the year 2013 seems to be erroneous. During argument, it was also stated by the learned counsel for the Project Proponent that one multiplex he intended to build but the same has yet not been started to be built and probably, this is the reason why he has gone for ex post facto EC, but it is not made clear by him as to whether the said multiplex would be covered within the total BUA, which has been approved in ex post facto EC dated 20.07.2020 or multiplex would require additional area for its being constructed, for which he would again have to seek modification of the EC. He kept this matter very vague during the argument. In this view of the matter, it is quite apparent that the first EC was granted in 2007 and the amended EC which has been granted in the year 2020 also shows the same area to have been included in that, would indicate that it is one single project which has been challenged by the applicant. Therefore, this would be a case for being covered in the `recurring cause of action' and the date which has been taken by the applicant as the date for reckoning of the period of computation of limitation, does not appear to be wrong to us. The Original Application does not appear to be barred by limitation. Issue No.
(i) is decided accordingly.
Issue No. (ii) :
46. As per this issue, we have to decide as to ―whether there was violation of EIA Notification, 2006 ?, If yes, its effect ?‖. In this regard, we would like to take into consideration the role of EC for ensuring environmentally sound building construction. We wish to refer Report of [NPJ] Page 46 of 58 the Committee constituted under the Chairmanship of Shri J.M. Mauskar, Additional Secretary, MoEF&CC to examine the comments / suggestions on the Draft Amendments to EIA Notification, 2006 submitted to MoEF&CC un October, 2009 which is available at http://moef.gov.in/wp-content/uploads/2017/09/FinalReport_EIA.pdf.
In para 3.7.17 & 18 under clause (vii), the Committee observed that -
―vii. Each of the State Governments is launching major construction projects and development of townships as well as multi-storeyed constructions going up to 30 floors and above as prestigious land marks. In this context the provisions of the item 8a and 8b are to be considered. 20,000 sq.mts. itself is a fairly large area in the Indian conditions and it almost amounts to 200 apartments in a composite apartment building and the project population would be 1000 which would require 140000 ltrs. /day of water supply and in-turn sewage treatment requirement of 112000 ltrs. /day of sewage....‖ Further in clause (xi), the Committee recorded how EC process will help environmentally sound development and observed -
―xi. Our track record in managing urban areas has been quite poor. Not even one-third of wastewater from our cities is treated to acceptable levels. The energy and water efficiencies of our buildings are very poor. Our cities are choking with pollution and congestion. If we want to make our urban areas habitable, then we will have to ensure that our new building, construction, township and area development projects are designed in an environmentally-sound manner. Currently, environmental clearance is the only process in which the regulator can put conditions on water and energy efficiency, water harvesting, waste management, wastewater treatment etc. on new projects. The municipal authorities/town planning departments in most cities are ignoring these issues while granting the building/site clearance......‖ Hence, change in the project scope may result in requirement of fresh water, generation of sewage/effluent, generation of solid waste, parking space, internal traffic movement, open area, tree plantation space, in- adequacy of environmental infrastructure (wastewater treatment, OWC, renewable energy) planned earlier. Hence, MoEF&CC has wisely directed [NPJ] Page 47 of 58 reappraisal in the case project scope changes. If these precautions are not taken, project will result in recurring cause of action during entire project life.
47. EC dated 10.04.2007 directs in General Condition No 6 that ―In the case of any change(s) in scope of the project the project would require a fresh appraisal by the Ministry. PP did not approach MoEF&CC/SEIAA for change in the scope as directed.
48. The learned counsel for the Project Proponent has vehemently argued that the concept of TBUA did not include non-FSI area at the time of grant of EC in the year 2007. We have dealt with this issue at length in our order dated 22.03.2023 in OA-28-2019. We had recorded as follows:-
―42. ....By amendment dated 04.04.2011, the EIA Notification 2006 was amended, according to which the built-up area for the purpose of EC included the FSI and non-FSI area. Prior to the said amendment, the custom and common practice was only to take into consideration the FSI area for the purposes of EC and in the case in hand, the FSI of the project was below threshold limit of 20,000 sq.mtrs. Hence, there was no requirement to obtain EC. Around the year 2018, the Hon'ble Supreme Court of India in Goel Ganga Developers Vs. Union of India; 2018 SCC OnLine SC 930, while interpreting the term `BUA', has held that the same would include FSI as well as non-FSI area. However, the Hon'ble Apex Court, while passing the said judgment, did not consider the prior judgment passed by the Bench of three Hon'ble Judges in the matter of Re:Construction of Park at Noida near Okhla Bird Sanctuary, T.N. Godavarman Thirumulpad Vs. Union of India & Ors.; (2011)1 SCC 744, wherein the Hon'ble Apex Court had categorically opined that the concept of BUA under the EIA Notification 2006 was vague and ambiguous. The MoEF&CC taking note of the judgment in Okhla Bird Sanctuary (supra) for the first time decided to define BUA by Notification dated 04.04.2011 providing completely different regime of calculation of BUA in building construction. The necessary consequence was that residential/commercial building projects which were earlier outside the purview of the EIA Notification 2006, would get covered by such requirement if the amendment brought about by the Notification dated 04.04.2011was applied retrospectively. A plain reading of the said amendment would make it indubitably clear that the amendment is prospective in nature and would not affect the projects which were sanctioned between the period 2006 and 2011.
43. The Builders Association of India (BAI) had filed Special Leave Petition No.10078 of 2019 challenging the order dated 29.03.2018 passed by the Hon'ble High Court of Bombay in Writ Petition (L) No.954 of 2019. BAI had initially filed Writ Petition No.24 of 2019 [NPJ] Page 48 of 58 under Article 32 of the Constitution of India before the Hon'ble Supreme Court, taking up the issue of BUA and the amendment dated 04.04.2011 and its applicability. By the order dated 12.02.2019, the Hon'ble Apex Court granted liberty to BAI to approach the High Court and consequently, Writ Petition No.24 of 2019 came to be withdrawn. Thereafter Writ Petition (L) No.954 of 2019 was filed before the Hon'ble High Court of Bombay, which was decided on 29.03.2019 whereby the Hon'ble High Court dismissed the Writ Petition. Feeling aggrieved by the said order, BIA preferred Special Leave Petition No.10078 of 2019, wherein the Hon'ble Apex Court, by order dated 03.05.2019, issued notice and further directed that in the meantime, no coercive steps shall be taken against the members of BAI. The said Special Leave Petition is still pending. Further it is submitted that similar Special Leave Petition was filed by another representative Association - CREDAI, Pune Metro bearing SLP No.23143 of 2019 raising identical issue before the Hon'ble Supreme Court, wherein also, the Hon'ble Apex Court passed order dated 20.09.2019, issuing notice and directing that in the meantime, no coercive action shall be taken against the members of CREDAI - Pune Metro. The said Special Leave Petition is still pending.‖
49. From the Joint Committee Report, based on various commencement certificates issued by PMC, it is clear that PP and PMC were aware of the concept of FSI area, non-FSI area and TBUA all along. There is unacceptable inconsistency in FSI, Non-FSI and TBUA mentioned in various CCs. Project scope kept of changing. In spite of this PP did not approach MoEF&CC/SEIAA for EC amendment till the year 2016. Amended EC was issued on 20.07.2020. The last commencement certificate was issued on 04.04.2019 when application for EC was pending with SEIAA. As per Joint Committee Report as on 16.05.2022 total construction carried out was FSI area 32,710.04 sq.m., non-FSI area 61,856.60 sq.m. and TBUA 94,568.64 sq.m. We hold that construction carried out beyond TBUA 34,170.83 sq.m. i.e. 94568.64- 34170.83=60,397.81 sq.m. is in violation of EIA Notification 2006. Issue No. (ii) is decided accordingly.
Issue No. (iii) :
50. According to this issue, we have to decide as to ―Whether, in case there was violation of Environmental Clearance dated 10.04.2007, what will be the amount of Environmental Damage Compensation (EDC), to be [NPJ] Page 49 of 58 levied from respondent Nos.14 and 15 - Project Proponent ?‖ We have worked out the amount as follows:
(a) Total Project Cost ÷ Total Built-up Area (TBUA) × Excess Constructed Area i.e. 285.35 ÷ 95,082.28 × 60,397.81 = Rs. 181.22 Crores
(b) 5% of Rs.181.25 Crores works out to be Rs.09.06 Crores Considering the above facts, there is violation of Environmental Clearance dated 10.04.2007 on the part of the Project Proponent. Therefore, we deem it proper to levy this amount of Rs.09.06 Crores from the Project Proponent - respondent Nos.14 and 15 towards Environmental Damage Compensation. The issue No. (iii) is decided accordingly.
Issue No. (iv) :
51. As per this issue, we have to decide as to "whether the ex post facto Environmental Clearance (EC) dated 20.07.2020 is liable to be set aside ? It is apparent the project in question has been constructed which involves various violations, which we have already noted and also Environmental Damage Compensation (EDC) has been calculated and quantified by us to be levied from the Project Proponent. In ordinary case, if any project is constructed without prior EC, the same would need to be demolished, but in the case in hand, we find that the project is stated to have been completed as far back as in 2013 and that the Project Proponent has obtained ex post facto EC on 20.07.2020. In this regard, we may refer to and rely upon the judgments of the Hon'ble Apex Court in the following cases:
(i) Electrosteel steels Limited Vs. Union of India;
(2021 SCC OnLine SC 1247)
(ii) D. Swamy Vs. Karnataka State Pollution Control Board & Ors.
(2022 SCC OnLine SC 1278)
(iii) M/s Pahwa Plastics Pvt.Ltd. & Anr. V. Dastak Ngo & Ors.
(2022 SCC OnLine SC 362) [NPJ] Page 50 of 58
52. In Electrosteel Steels Limited (supra), the Hon'ble Apex Court held as follows:
―82. The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance, without opportunity to the establishment to regularize its operation by obtaining the requisite clearances and permissions, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer has to be in the negative.‖ ―83. The Central Government is well within the scope of its powers under Section 3 of the 1986 Act to issue directions to control and/or prevent pollution including directions for prior Environmental Clearance before a project is commenced. Such prior Environmental Clearance is necessarily granted upon examining the impact of the project on the environment. Ex- Post facto Environmental Clearance should not ordinarily be granted, and certainly not for the asking. At the same time Ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of Notifications under the 1986 Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of a running steel plant.
84. The 1986 Act does not prohibit Ex post facto Environmental Clearance. Some relaxations and even grant of Ex post facto EC in accordance with law, in strict compliance with Rules, Regulations Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.‖
53. In the matter of D. Swamy (supra), the Hon'ble Apex Court held as under:
―40. As held by this Court in Electrosteel Steels Limited (supra) ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a Notification under the EP Act cannot be declined with pedantic rigidity, oblivious of the consequences of stopping the operation of mines, running factories and plants.
41. The EP Act does not prohibit ex post facto Environmental Clearance. Grant of ex-post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our [NPJ] Page 51 of 58 view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.
42. In Lafarge Umiam Mining Private Limited v. Union of India , a three-Judge Bench of this Court held:--
―119. The time has come for us to apply the constitutional ―doctrine of proportionality‖ to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilisation of natural resources have to be tested on the anvil of the well-recognized principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of ―margin of appreciation‖ in favour of the decision-maker would come into play.‖
43. In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, 2020 SCC OnLine SC 347, this Court observed:--
―27. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial [NPJ] Page 52 of 58 activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.‖
44. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:--
―However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court.‖
45. The Notification being SO. 804(E) dated 14 March 2017 was not in issue in Alembic Pharmaceuticals Ltd. (supra). In Alembic Pharmaceuticals Ltd. (supra) this Court was examining the propriety and/or legality of a 2002 circular which was inconsistent with the EIA Notification dated 27 January 1994, which was statutory. The EIA Notification dated 27 January 1994 has, as stated above, been superseded by the Notification dated 14 September 2006.
46. There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment.
47. Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable [NPJ] Page 53 of 58 Rules, Regulations and/or Notifications. In a given case, the deviant industry may be penalised by an imposition of heavy penalty on the principle of ‗polluter pays' and the cost of restoration of environment may be recovered from it.
48. It is reiterated that the EP Act does not prohibit ex post facto EC.
Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units for their survival.
49. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.
54. In M/s Pahwa Plastics Pvt.Ltd. & Anr. (supra), the Hon'ble Apex Court held as follows :
―63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of ‗polluter pays' and the cost of restoration of environment may be recovered from it.
64. The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to [NPJ] Page 54 of 58 those units, by the concerned authorities on the misconception that no EC was required.
65. It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units in their survival.
66. Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.‖
55. In above cases, it has been held that ex post facto EC may be granted in exceptional cases. Therefore, we are of the view that it would not be just in the present case to order demolition of the construction, which has been completed or setting aside of the ex post facto EC. The issue (iv) is decided accordingly.
56. Before parting with this judgment, we would like to observe that it is clear from chronology of the events that SEAC and SEIAA were well aware that Project Proponent did not have valid EC extension, yet, it went ahead with the construction; SEAC and SEIAA also were well aware that the Hon'ble Apex Court had quashed O.M. dated 07.07.2017, which stipulated that the notification dated 04.04.2011 would be applicable prospectively. It would be pertinent to refer here that the notification dated 04.04.2011 had defined that the built-up area for the purpose of EIA Notification 2006 would include ―the built-up area or covered area on all the floors put together including its basement and other service areas, which are proposed in the building or construction project‖, which means that the built-up area would include both FSI area and non-FSI. The quashing of O.M. dated 07.07.2017 would mean that the FSI area and [NPJ] Page 55 of 58 non-FSI area were to be counted towards total built-up area from 14.09.2006. Despite above specific position of law being in the knowledge of both the authorities i.e. SEAC and SEIAA, they proceeded to grant the EC as if it was a new proposal, which is a serious dereliction of duty on the part of all concerned. Such lackadaisical working encourages violation of regulations.
57. We are aware that as per EIA Notification Section 3 clause 7, Para substituted vide S.O. 3067(E), dated the 1st December, 2009- ―3. State Level Environment Impact Assessment Authority: -
(1) A State Level Environment Impact Assessment Authority hereinafter referred to as the SEIAA shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of three Members including a Chairman and a Member - Secretary to be nominated by the State Government or the Union Territory Administration concerned.
(2) The Member-Secretary shall be a serving officer of the concerned State Government or Union Territory administration familiar with environmental laws.
(3) The Chairman shall be an expert in terms of eligibility criteria given in APPENDIX VI in one of the specified fields, with sufficient experience in environmental policy or management.
(4) The other member shall be an expert fulfilling the eligibility criteria given in APPENDIX VI in one of the specified fields.
(5) The State Government or Union Territory Administration shall forward the names of the Members and the Chairman referred in sub- paragraph 3 to 4 above to the Central Government and the Central Government shall constitute the SEIAA as an authority for the purposes of this notification within thirty days of the date of receipt of the names.
(6) The non-official Member and the Chairman shall have a fixed term of three years (from the date of the publication of the notification by the Central Government constituting the authority). Provided that wherever considered necessary and expedient, the Central Government may extend the term for a further period not exceeding twelve months.
(7) All decisions of the SEIAA shall be taken in a meeting and shall ordinarily be unanimous;[NPJ] Page 56 of 58
Provided that, in case a decision is taken by majority, the details of views, for and against it, shall be clearly recorded in the minutes and a copy thereof sent to MoEF."
Hence, Chairman, Member Secretary and Members of SEIAA are all equally responsible for decisions of SEIAA. In the present application the Applicant has prayed for action against then Member Secretary SEIAA. We can not hold him alone responsible for decision of SEIAA. Moreover, our observation is, benefit of doubt can be extended to both SEAC and SEIAA as nature of environmental legislation is dynamic, there are many grey areas even today and clarity on the same is evolving with intervention of judiciary.
58. In view of above we direct Secretary MoEF&CC to personally look into working of all SEIAAs and issue appropriate directions to ensure that requirements of EIA Notification 2006 as amended from time to time as also directions of this tribunal are brought to the notice of members of SEIAA/SEACs/EACs as first item in Agenda for the meeting of these authorities by the Member Secretary of these authorities, within 2 weeks of this order.
59. In the result, we dispose of the Original Application with following directions:
(a) Respondent Nos.14 and 15 - Project Proponent are directed to deposit an amount of Rs.09.06 Crores, towards Environmental Damage Compensation (EDC), as assessed above, with the Maharashtra Pollution Control Board (MPCB) within a period of two months from the date of uploading of this order.
(b) The MPCB is directed to calculate the amount of Environmental Compensation with respect to the violation of Consent to Establish [NPJ] Page 57 of 58 and Consent to Operate for the aforesaid period and realize the same from respondent Nos.14 and 15 - Project Proponent, within a period of two months from the date of uploading of this order.
MPCB shall also take action against the Project Proponent under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 as recommended by Joint Committee for violations and submit its report to the Registrar of this Tribunal within three months.
(c) The amount of compensation so realized shall be utilized for remediation of environmental damage caused by the project and improving / restitution of the environment in the area in question within a period of next six months and report of the same shall be posted on MPCB website.
(d) In case of default on the part of Project Proponent in depositing the amount towards Environmental Damage Compensation (EDC), as directed above, 12% interest shall be payable by the Project Proponent on the unpaid amount till its realization.
60. For the reasons stated hereinabove, the Appeal is dismissed.
61. In view of dismissal of Appeal No.42/2020, I.A. No.85/2020 filed therein is rejected.
62. No order as to costs.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM AUGUST 10, 2023 OA NO.48/2020(WZ)-APPEAL NO.42/2020 (WZ) npj [NPJ] Page 58 of 58