National Green Tribunal
Olympia Grande Apartment Owners ... vs M/S.Ksm Nirman Private Limited on 30 May, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 53 of 2020 (SZ)
&
I.A. No. 12 of 2021(SZ)
(Through Video Conference)
IN THE MATTER OF
Olympia Grande Apartment Owners' Welfare,
Association, Pallavaram Registration No. 569/2016,
Represented by its Secretary Mr. S. Chandrasekar,
No. 328, GST Road, Pallavaram,
Chennai- 600 043
...Applicant(s)
Versus
1. M/s. KSM Nirman Private Ltd.,
Represented by its Managing Director,
NO.1, SIDCO Industrial Estate, Guindy,
Chennai- 600 032
2. Tamil Nadu Pollution Control Board,
Represented by its Member Secretary,
NO. 76, Mount Salai, Guindy,
Chennai- 600 032.
3. State Level Environment Impact Assessment Authority, Tamil Nadu
Represneted by its Member Secretary,
3rd Floor, Panagal Maaligai,
No.1 Jeenis Raod, Saidapet,
Chennai- 600015.
...Respondent(s)
For Applicant(s): Mr. Yogeshwaran along with Mr. Hari
Radhakrishnan.
For Respondent(s): Mr. R. Saravana Kumar for R1.
Mr. S. Sai Sathya Jith for R2.
Mr. Meyappan for Mrs. Me. Sarashwathy for
R3.
Judgment Reserved on: 18th May, 2023.
Judgment Pronounced on: 30th May, 2023.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
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JUDGMENT
Delivered by Justice Smt. Pushpa Sathyanarayana, Judicial Member
1. Aggrieved by the violations of the conditions of Environmental Clearance granted to the 1st respondent unit which is a building project, the applicant has come up with the above application.
2. The applicant is apartment owner‟s welfare association. The apartment complex is a gated community where there are 745 apartments and approximately 3000 people are residing there. The 1st respondent, company, is a promoter and developer of the project.
3. An Environmental Clearance was issued in favour of the 1st respondent on 24.02.2015 by the 3rd respondent as per which the 1st respondent has to setup, operate and maintain a sewage treatment plant and require to ensure that minimum sewage generated after treatment is 414 KLD. Out of which 190 KLD is to be used for recycling and flushing, 21 KLD for gardening and 203 KLD to be disposed of to the CMWSSB sewer line. As per the Environmental Clearance granted, the organic sludge generated from STP of 60kg per day will be treated through organic waste converter of 1.5TPD capacity and the waste will have to be used as manure for gardening. The Environmental Clearance further mandated that on 1.06MT per day of non-biodegradable waste will be handed over to the authorised vendor as reported.
4. Though the 1st respondent has setup a sewage treatment plant as mandated, the applicant complains that the same is ineffective and inefficient and not meeting the norms subject to which 2 Environmental Clearance was given to the 1st respondent. In the said apartment complex the sewage treatment plant of the capacity of 165 KLD and 315 KLD to treat the sewage water for reuse are installed. While the required capacity for the above residential project is 500 KLD. The further complained of the applicant is that the design, drawing and capacity of both the plans are not meeting the standards requirements of the Municipal Administration laws as well as the stipulation of the Pollution Control Board and SEIAA.
5. The main complaint of the applicant is that both the sewage treatment plants are placed and erected below the basement where the level of oxygen is restricted which results in Aerobic and Anaerobic process failures. Besides the stench emanating from sewage treatment plant is unbearable, forcing the residents to keep the windows closed all the time. It is also pointed out that the untreated water is flowing over in the open spaces and gets stagnated all over the complex throughout the year leading to breeding of mosquitoes. The untreated water stagnation also generates harmful gases. Hence it is complaint that the 1 st respondent had violated the specific and general conditions mentioned in the Environmental Clearance granted by 3rd respondent, SEIAA dated 24.02.2015.
6. The applicant seems to have given a complaint to the 3rd respondent on 13.09.2019. The Member Secretary of the 3 rd respondent has requested the 2nd respondent to enquire and take necessary action in this regard on 30.10.2019. the 2 nd respondent had also issued show-cause to the 1st respondent and second 3 show-cause was also issued on the same date i.e. 17.12.2019 calling upon them as to why the unit is in operation without obtaining consent of the Pollution Control Board. As the 1st respondent has not setup an effective and efficient solid waste disposal system with facility of segregation of waste it is a breach of condition mandated in the Environmental Clearance. As the water recycling is not proper the applicant, association is incurring a regular expenditure. In view of the above complaints, the applicant has sought for a direction from this Tribunal to be issued to the 2nd respondent to take action under the provisions of Environment (Protection) Act, 1986 or Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 and direct the 1st respondent to comply with the terms and conditions of the Environmental Clearance and also direct the 1st respondent to pay compensation of Rs. 82,95,000/- which was later withdrawn by the applicant.
7. In response to the above application, the 1st respondent had its reply wherein it is stated that originally the 1st respondent had issued the Environmental Clearance on 16.04.2013 which was amended on 24.02.2015 due to a revision in the plan. The 1 st respondent stated that the design and construction of the residential complex was done by engaging M/s Larsen and Toubro Limited which is one of the renowned engineering procurement and construction companies. The sewage treatment plant for 744 dwelling units was required to be provided in 2 plants of 315 KLD and 165 KLD which were designed by L&T Tech. The sewage treatment plant was tested from 11.08.2016 and the result showed that the treated water quality satisfied the norms for re-use. The 4 STPs were also commissioned on 26.08.2016 and the treated water was given for flushing purpose from 26.08.2016. Thereafter, the respondent operated them for one year, trained the operation team of applicant, Association and handed over the entire common area and equipment, maintenance including the STPs to them on 16.07.2017. Since then, the applicant, Association is collecting the maintenance charges from the members and is maintaining the common area including the two STPs. This respondent also obtained certificate of compliance on Environmental Clearance on 13.10.2017. The possession and control of the entire premises and operation of the STPs are with the applicant, Association from 16.07.2017.
8. On the above pleadings, the applicant had sought for action to be taken against the 1st respondent under the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 for non-compliance of the terms and conditions of the Environmental Clearance dated 24.02.2015.
9. The grievances of the applicant is that:
(i) The respondent failed in establishing STP in accordance with Environmental Clearance i.e. the STP location, STP design and process and STP without consent.
(ii) The applicant states that the STP plant is not operated in accordance with law as it discharged the untreated sewage into the storm water drain.
(iii) Since the STP requires electricity for the operation the consumption of electricity will be based on the design.
Therefore, the electricity reading would show that the STP was not in operation.
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(iv) There was failure to reuse the treated water as per the Environmental clearance condition.
(v) The treated water was not in the prescribed standards.
(vi) The respondent had not implemented the solar lighting and rain water harvesting in violation of the Environmental Clearance.
10. The 1st respondent contended that after the certificate of compliance on Environmental Clearance was obtained on 13.10.2017, the STPs were operated by the applicant, Association only. The cause of action first arose was only 01.07.2017 when the failure on compliance of the Environmental Clearance by the 1st respondent was 1st noted by the applicant, Association. The two STPs referred above were commissioned in August, 2016 operated by them for one year and later handed over them to the applicant, Association on 16.07.2017. The consent to operate the STPs were obtained by the 1st respondent on 07.12.2020 under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 by paying the consent fees from the period of installation of two STPs i.e. the year 2016. Merely because the consent to operate was obtained by the 1st respondent in the year 2020, it will not automatically extend the limitation for filing the application by the applicant, Association.
11. It is pointed out by the Learned Counsel for the 1 st respondent that a complaint was filed before the Tamil Nadu Real Estate Regulatory Authority (RERA) and before the Tamil Nadu Consumer Dispute Redressal Commission by the applicant. The complaint before the RERA, Tamil Nadu was registered as C.NO. 327 of 2019 which 6 included the rectification of anomalies and deviation made from CMDA and other plans like car parking, sewage treatment plant etc., within three months. The order dated 03.02.2021 by the RERA, Tamil Nadu issued direction to 1st respondent to continue to maintain the STPs as prayed by the applicant, Association. The final order passed by the RERA, Tamil Nadu is directed to be kept in a sealed cover as directed by the Hon‟ble High Court in CMSA No. 38 of 2021 dated 04.03.2021. The applicant had also filed CC SR. No. 865 of 2019 before the Tamil Nadu State Consumer Dispute Redressal Commission seeking a direction to the 1 st respondent to rectify the anomalies and deviation made from the approved CMDA and other plans and direction to the opposite party therein to pay damages of Rs. 95,00,000/-.
12. This Tribunal had appointed a Joint Committee comprising of a Senior Officer of the Regional Office of MoEF&CC, Officer from the 3rd respondent and an Officer from the 2nd respondent to inspect the sewage treatment plant and submit a report.
13. The report of the Joint Committee was filed on 28.09.2020 and the Joint Committee has given its observations as follows:
"5. Observation by the Committee During the time of inspection, the Committee observed the following
1. The respondent unit has completed the establishment of the said complex comprising of Block A to Block E, EWS and a club house with a total built up area of 105554.91sq.m. in a plot area of 28613.94 sq.m. as per the Environmental Clearance accorded by SEIAA TN vide Letter dated 16.04.2013 and 24.02.2015.
2. The unit has also furnished the final completion certificate from CMDA vide letter no. EC/S-1/7715/2017 dated 06.12.2017.
3. The unit has installed Sewage Treatment Plant of capacity 315, 165 & 40 KLD for handling the sewage generated in the complex and all of them were in operation.
4. 315 & 165 KLD capacity STPs are provided with Ultra filtration unit and were in operation. Due to the dispute with the Apartment Association, the same was not utilized for toilet flushing.
5. Treated sewage is totally pumped into underground sewerage system of Pallavaram Municipality.7
6. The respondent unit has provided flow meter at the inlet and the outlet of STPs.
7. The unit has provided filter press to handle the excess sludge generated from the treatment system.
8. The unit has provided mechanical ventilation system to the STP area.
9. The committee has not seen any discharge of treated/untreated sewage on the open ground into the neighbouring property owners as alleged in the application.
10. The unit has provided pumping arrangement to pump the rain water during rainy season however, it was informed by the apartment owners association that in one of the occasion, the STP area was flooded with rain water.
11. It was informed by the respondent unit that except the operation and maintenance of STP, the rest were maintained by the apartment association by collecting the maintenance charges.
12. The unit has submitted before the Committee the certified copy of the compliance report of the conditions stipulated in the Environmental Clearance accorded to the project obtained from the MoEF, GOI."
14. It was also observed by the Joint Committee that:
"Further the said complex was inspected on 04.02.2020 and calculated the environmental compensation for the damage caused to the environment on account of the violations by the unit and recommended to Board vide Lr. Dated 04/02/2020 and 14/02/2020. Board has issued show cause notice to the unit vide Proc. No. T2/TNPCB/F-094/Construction/2020 dated 19.05.2020 to levy Environmental Compensation of Rs. 7,11,60,000/- (Rupees Seven Crore Eleven Lakhs and Sixty Thousand Only) for the violation from 08/08/2013 to 04/02/2020. The unit has furnished its reply to the Board vide letter dated 21.07.2020 received on 14.09.2020 and it is under process."
15. The recommendation of the Joint Committee based on the above observations are as follows:
"7. Recommendations:
Based on the above observations, the Joint Committee submits the following recommendation before the Hon‟ble National Green Tribunal (Southern Zone).
01.STP has to be operated continuously, to verify the STP operation a separate energy meter has to be fixed in all 3 STPs. The treated sewage has to be monitored regularly and report to be submitted to TNPCB/MoEF&CC.
02. As gathered, the project was commissioned in August 2017 and during January, 2017, the Association Society had taken over the STP.
The project authority informed that they have officially handed over during 2017 and at that time 85 to 90 % occupancy was there. During heavy rain in October 2017, the STP area got filled with rain water and the Association has removed the water from the STP area and sent out. This could not be visited by the team because it happened during 2017.
03. Design capacity and adequacy aspect of the STPs were evolved and certified by M/s Indian Institute of Technology, Chennai.
04. Team could not be seen any untreated sewage pumping out of the project premises.
05. The unit shall operate the ultra filtration system and the treated sewage may be utilized for toilet flushing after meeting the required standards.
06. The unit shall utilize the treated sewage for toilet flushing, gardening and the excess to the public sewer as per Environmental Clearance stipulations.
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07. The unit shall prepare emergency preparedness plan and comply with the recommendations to mitigate the untoward situation in case of heavy rain.
08. The unit shall provide organic waste convertor to handle the biodegradable waste and to utilize the manure for gardening purposes and shall comply with all the provisions of the Solid Waste Management Rules, 2016.
09. The Unit shall obtain the consent to operate from the TNPC Board under the provisions of the Water (P&PC) Act, 1974 and the Air (P&PC) Act, 1981.
10. The unit shall remit the Environmental Compensation if any levied by the Tamil Nadu Pollution Control Board for the non compliance of the provisions of the Water (P&PC) Act, 1974 and the Air (P&PC) Act, 1981."
16. The applicant, Association has objected to the installation of the STPs in the basement. In this regard, it is submitted by the 1 st respondent that the said two STPs were commissioned in August, 2016 and operated by the 1st respondent for a period of one year and only on 16.07.2017 they were handed over to the applicant, Association. Now after three and a half years, the Association is questioning the location of the STPs in the basement. When there is no specific rule or regulation prohibiting the establishment of STP in the basement, the 1st respondent had requested the M/s Larsen and Toubro Limited to design the STPs vetted by an expert authority. The Indian Institute Technology of Madras also after calculating the requirements of the dwelling units and analysing the design and capacity issued a certificate on 18.06.2020 approving the design and drawing and process description for both STPs.
17. An amended Environmental Clearance was obtained by the 1 st respondent in the year 2015 since the project was sub-divided into residential and commercial use. The development in the commercial site was provided with a separate STP of 40 KLD capacity and the residential project with 744 dwelling units was provided with 315 KLD and 165 KLD which is 10KLD more than the 9 required capacity for the residential project. The 1st respondent also had got tested the treated water from the King Institute, Guindy as per which the treated water is well within the prescribed standards. It is admitted by the respondent that at the time of establishment of the STPs the consent under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 was not obtained from the Pollution Control Board, however, the same was obtained on 07.12.2020. But it is pointed out that the consent to establish was applied for on 01.08.2013 itself by paying the consent fees by the 1 st respondent.
18. The Learned Counsel appearing for the 1st respondent placed his reliance on the decision of the Division Bench of Hon'ble Delhi High Court in LPA No. 895 of 2010 dated 23.01.2012 wherein it is held that for the residential projects consent to establish was not required and it was not insisted for the sewage treatment plants but there was an amendment to the EIA Notification dated 19.12.2016 which sought to exempt the residential projects from obtaining consent. In the State of Tamil Nadu also several project proponents established their STPs in the residential projects and the 1st respondent also proceeded with the STPs on the said basis.
19. It is further pointed out that the Central Pollution Control Board had clarified that the issuance of Environmental Clearance will be deemed as consent to establish vide letter dated 01.11.2018. The above letter is marked as Annexure -29 issued by the Chairman, Central Pollution Control Board to all the Chairman, State Pollution Control Board/Pollution Control Committee issued under Section 10 18(1)(b) of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 regarding streamlining of the concerned mechanism. In the said circular which is stated that:
"Whereas obtaining Consent to Establish (CTE) is not a pre-requisite for obtaining EC from State Level or Central Level EIA Authority, under EIA Notification, 2006.
Whereas, there may not be value addition in CTE after obtaining EC as most of the conditions laid down in EC and CTE are similar in nature; Whereas, CPCB vide letter dated 02.02.2017 issued an advisory to all tje SPCBs/PCCs to follow the modified mechanism for granting consent to various categories of industries which is given below:
"All the projects requiring Environmental Clearance may be exempted from obtaining the Consent to Establish (CTE). Such projects may be directly granted Consent to Operate subject to EC and installation of pollution control devices".
20. In view of the above circular, the 1st respondent had applied for CTO on 03.12.2019 and after obtaining certain clarification the Pollution Control Board had granted the „Consent to Operate‟ to the 1st respondent on 07.12.2020 which was valid till March, 2021. Hence, it submitted that there was no wilful omission in getting the „Consent to Establish or in obtaining „Consent to Operate‟ for STPs. As, consent is obtained by the 1st respondent in the year 2020, it is argued that the post facto consent to operate is permitted in law and relied upon M/s Pahwa Plastics Pvt. Ltd and Anr. Vs. Dastak NGO and ors. 2022 Live Law (SC) 218.
21. Admittedly, the STPs were operated from July, 2017 by the applicant-Association, therefore, the allegation that the 1st respondent did not operate the STP as required and simply discharged the untreated sewage water into the storm water drain is not sustainable. During October, 2017 when the applicant 11 attempted to conduct the service of the STPs without removing the sewage from the collection tank it resulted to over flow from the STPs resulting in submerging all the equipments. The applicant sought for intervention from the 1st respondent and the 1st respondent also immediately extended its assistance to the maintenance team of the applicant. Despite their best efforts due to the heavy rains in October, 2019 the external municipal sewer line running from the GST road got clogged which resulted in the over flow of the GST road. The said overflowing was only due to the block in the sewer line and after inspecting the said site, the Municipal Authorities have dropped further action against the 1 st respondent. In fact the 2nd respondent had issued a notice on 21.12.2021 to the applicant stating that the occupier was in contravention of the conditions imposed in the consent order issued to the residential complex. Therefore, the 1st respondent submitted that having taken over the possession of the STPS even in the year 2017, it is for the applicant, Association to ensure that there was no discharge of untreated water into the storm water drain and it cannot blame the 1st respondent for breach of conditions of Environmental Clearance.
22. It is to be noted that the applicant has admitted that the 315 KLD STP was commissioned on 16.08.2016 and 165 KLD STP was commissioned on 24.10.2016. Therefore, the allegation that the STPs were not operated in accordance with law is not sustainable. The 1st respondent operated the two STPs for one year and the treated water was used for flushing purposes. Further, the 1st respondent trained the operational team of the applicant- association. The common area, equipment, maintenance and the 12 STPs were handed over to the applicant-association on 16.07.2017. The 1st respondent also had obtained the certificate of compliance from the MoEF&CC and the copy of the certified copy of the compliance report dated 30.10.2017 under the operation phase, it has been specifically mentioned in the certificate as below:
xix. The proponent shall install two STP units Complied each consists of bar screen chamber, The PA has installed two equalisation tank, MBBR, Secondary clarifier STP units, consisting of tank, Alum Doser, Mechanical filter press, bar screen chamber, Pressure sand filter, activated carbon filter, equalization tank, MBBR, UV disinfection system, Ultra filtration unit Secondary clarifier tank, & final holding tank as committed (capacity Alum Doser, Mechanical of 195 & 3(5KLD) and operated filter press. Pressure continuously to achieve the standards sand filter, activated prescribed by the Tamil Nadu Pollution carbon filter, UV Control Board. disinfection system, Ultra filtration unit & final holding tank, as committed (Capacity of 195 & 315 KLD) and is operated continuously.
xx. It is sole responsibility of proponent to Complied.
dispose 260 KLD of treated sewage should As informed, the PA to CMWSSB sewer line throughout the disposing 260 KLD of period of operation as committed. treated sewage to CMWSSB sewer line and has agreed to maintain the same throughout the period of operation as committed.
xxi. It is sole responsibility of proponent that Agreed to Comply.
the treated sewage water disposed for The PA informed that the Green Belt Development/ Avenue Plantation treated sewage is used should not pollute the soil/Ground for green belt water/Adjacent Canals/Lakes/Ponds, etc. development within the project area and assured that this will not pollute the soil and ground water.
23. Regarding the allegations of discharging the untreated sewerage into the storm water drain, the 1st respondent had denied the same. It has been explained that the applicant attempted to conduct the service of the STPs without removing the sewage from the collection tank which resulted in overflow from the STPs submerging all the equipments. Hence, the applicant sought for the intervention of the 1st respondent and the 1st respondent 13 extended the possible assistance to the maintenance team in good faith. In that regard, the Learned Counsel for the 1st respondent submitted that in October, 2019, there was heavy rainfall and the external municipal sewer line running through the GST road was clogged resulting in over flow in GST road. The applicant- association also gave a complaint against the 1st respondent to the municipal authorities and also to the police. When it was brought to the knowledge of the authorities after inspection that the over flow in the road was due to the block in the external sewer line, the authorities dropped further action against this respondent. Therefore, it is held that there is no discharge of sewage water into the storm water drain.
24. In the meanwhile, the 2nd respondent, Pollution Control Board had issued letter to the applicant on 12.01.2021 stating that the occupier was in contravention of the conditions imposed in the consent order issued to the residential complex. As the ownership is already transferred, it is the responsibility of the applicant- association as they are the occupier of the premises. Admittedly the applicant-association had taken over the entire operation and maintenance of the premises including the collection of the maintenance charges from 16.07.2017. Therefore, it is for the applicant‟s-association to make sure that there is no discharge of untreated water into the storm water drain. The said letter refers to the occupier of the premises which mean only the residents of the applicant-association:
"Whereas during inspection of the residential complex of M/s. KSM Nirman Pvt. Ltd., (Amalgamated residential premises of Olympia Tech Park (Chennai) Pvt. Ltd., S.F. No.2 (Old No. 39/4B1 pt) etc., 14 Isa Pallavaram Village, Pallavaram Taluk, Chengalpattu District on 11.01.2021 the following observations were made:
1. The STP of capacity of 165 KLD and capacity of 315 KLD were under partial operation wherein in the components like ultra filtration press dosing system were not in operation.
2. The treated/untreated sewage from both STPs found discharged into storm water drain.
3. Organic waste converter has not been installed and the unsegregated solid waste is being disposed through Pallavaram Municipality."
25. The Learned Counsel for the applicant also relied on the TNEB meter readings which showed low levels which is as a result of not operating the STPs by the 1st respondent. The above low reading of the electricity meter is only due to the fault in the meter as reported by the Electricity Board and the same cannot be attributed to the 1st respondent. This could be further confirmed from the fact that the flow meter reading of the STPs for the 315 KLD was working and the log for the flow meter reading indicates that it was functioning throughout. So far as the 165 KLD STP is concerned, it got wet and it was repaired later and it was functioning at present. Having handed over the STPs in the year 2017, the 1st respondent cannot be faulted for the malfunction of the flow meter or the defective electricity meter. The Tamil Nadu Pollution Control Board also had issued a notice on 21.12.2020 to the Association as the operation, maintenance of the entire premises including the STPS are vested with the Association and in capacity of occupier any non-compliance, the Association is responsible.
26. The contention of the applicant is that STP requires electricity for the operation and the consumption of the electricity will be based on the design. Therefore, the reading of the electricity meter would show that the STP was not in operation. This was refuted by the 1st 15 respondent stating that each of the STPs has a flow meter reading. The flow meter reading for 315 KLD is functional and the meter recording shows that it has been in operation. The other STP of 165 KLD got wet and the same was repaired after which it is also functioning. However, it is submitted that the 1st respondent cannot be held responsible for the malfunctioning of the flow meter 5 years after they were handed over to the applicant-association.
27. The Tamil Nadu Pollution Control Board has recorded in the Joint Committee report that the STP has to be operated continuously. In this regard, the Learned Counsel appearing for the 1st respondent submitted that the applicant-association had complained before the Pollution Control Board that after heavy rains on 4th and 5th January, 2021 the STPs were submerged and sewage water was mixed with rain water. It is to be noted that during the said period there was an unprecedented heavy rains in the city of Chennai and the existing municipal storm water drain could not take the volume of the down poured. If the municipal drain is inadequate to take the load and there is water logging because of the same, the applicant has to address the same to the local authority.
28. The District Environmental Engineer of the Tamil Nadu Pollution Control Board had issued notice to the applicant-association as early as on 21.12.2020 to stop bypassing the sewage and to operate the STP continuously and efficiently so as to satisfy the standards prescribed by the Board. It is also directed compliance of treated sewerage to be utilised for toilet flushing and for gardening and green belt development and the remaining shall be disposed through Pallavaram Municipality underground sewage 16 system as per the condition of the consent order issued. The „Consent to Operate‟ was issued on 07.12.2020 which specifically directs that the occupier shall ensure that there shall not be any discharge of effluent either treated or untreated into the storm water drain at any point of time. As the STPs are vested with the association, when the same were handed over to the owners- association by the 1st respondent, only the association in the capacity of the occupier is liable for any non-compliance. At the time of handing over, the recycling and reusing of the sewage water was working properly.
29. Regarding the standard of the treated water, the applicant has contended that the water treated from the STPs was not in conformity with the prescribed standards. It is stated by the 1st respondent that samples of the treated water are sent to the laboratory for analysis. The treated water collected which was sent to the Kings institute, Guindy only prove that the treated water was within the prescribed standards meeting the stipulated norms. The other allegation that the 1st respondent violated the terms of the Environmental Clearance by not installing the solid waste convertor is also denied by the 1st respondent as the authorized vendor of the Greater Chennai Corporation collected the solid waste generated from the facility of centralized management and monitoring of the solid waste disposal. The applicant-association members suggested to segregate the waste at source and collect in the colour coded bins at one identified place within the campus for the facilitator to collect the same. Hence it is argued that the non-installation of organic waste convertor was not there cannot be sustained. The 1st respondent also had purchased one organic 17 waste convertor in March, 2020 but the applicant-association did not allow them to install the same as the association had not taken a decision to finalize the place for installation of the organic waste convertor.
30. The next allegation of not providing facility for rain water harvesting is also not correct as all roof run-off water are connected to the tank which is in-turn connected to the storm water drain. There are recharge pits provided with the desilting chambers with screens before inlet to arrest any waste particles entering into the chambers and chocking the recharge pits. Similarly, even at the time of handing over the entire common area, the STPs and other equipments, the provision for solar lighting were made and the lights were installed as directed in the Environmental Clearance dated 24.02.2015. Even otherwise, it is not possible for the association to raise such an objection after handing over of the entire premises as early as on 17.08.2017.
31. Admittedly, the 1st respondent had not obtained „Consent to Operate‟ it is only „Consent to Establish‟ which is exempted when the Environmental Clearance was granted. As the 1st respondent had not obtained consent to operate STPs, the Pollution Control Board, who is the 3rd respondent, has levied a fine of Rs. 7,11,60,000/- (Seven Crore Eleven Lakhs and Sixty thousand) from 08.08.2013 to 04.02.2020. Against the said levy of compensation, it is stated that an Appeal has been preferred before the Appellate Authority, Tamil Nadu Pollution Control Board in CA. No. 01 of 2021, which is said to be pending. 18
32. The applicant has also approached the Tamil Nadu Real Estate Regulatory Authority (TN RERA) seeking a number of reliefs including handing over of corpus fund with accrued interest etc. The TN RERA after considering the factual details held that all the 16 residential towers have been completed and handover the possession in the year 2015 itself and completion certificates of these residential towers were also obtained prior to coming into force of the Act. Hence, the Act is not applicable to the project under challenge. However, an appeal is preferred against the order and the same is pending before the Hon‟ble High Court of Madras.
33. The applicant also had moved the Consumer Redressal Dispute Forum against the 1st respondent for the deficiencies in service claiming compensation of 32,30,000/- (Thirty Two Lakhs Thirty Thousand) which is numbered as CC No. 166 of 2022 and is also said to be pending. In view of the said complaint filed before the Consumer Redressal Dispute Forum, the applicant had withdrawn the prayer claiming compensation of Rs. 82,95,000/- for the violations of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and the rules made there under and for violations of the Environmental Clearance conditions.
34. Now the prayer before this Tribunal is to take action for the violations under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and violations of the Environmental Clearance conditions. The application was filed on 07.02.2020 stating that a show cause notice was issued by the 2nd respondent, Tamil Nadu Pollution 19 Control Board, to the 1st respondent for not obtaining „Consent to Operate‟ the STPs. This will no way give rise to cause of action to the applicant as the cause of action for the allegations made had arose as early as in the year 2017 when the constructions were complete, completion certificate obtained and the project was handed over to the applicant- association.
35. The application is filed under Section 14 and the same should have been filed within the period of 06 months the date on which the first cause of action for such dispute arose. From the above facts, it is clear that the project was completed and handed over to the association in the year 2017. The STPs installed were operated for one year by the 1st respondent and handed over to the applicant- association in the year 2017 in a good working condition. The issuance of the show cause notice by the Environmental Engineer to the 1st respondent levying penalty for not operating „consent to operate‟ is for the fault of the 1st respondent for not having obtained consent from prior to the installation. The 1st respondent has also filed an appeal against the same. The applicant wants to take advantage of the same. So having filed the application beyond the period of limitation and having not mentioned in the application as to when the cause of action arose for filing this application, we hold that the application itself is barred by limitation.
36. Regarding the relief, compensation and restitution which is provided under Section 15 of the National Green Tribunal Act, 2010 a claim can be made within 05 years from the date on which the cause for such compensation or relief first arose. However, the 20 said relief of compensation was given up by the applicant by withdrawing the said prayer on 04.03.2020 as it had moved the consumer forum for the said relief.
37. After the matter was re-opened of 18.11.2022, a fresh report was sought for from the Pollution Control Board regarding the location of the STPs and whether there were any violations qua the CMDA approval. In this regard, the Pollution Control Board had filed an affidavit on 17.05.2023 through its Additional Environmental Engineer which reads as follows:
"2)with regard to the location of STPs and whether they are according to the CMDA approval, it is respectfully submitted that the CMDA has approved the Building plan vide letter No. C/PP/MSB/34/(BID)/2017 dated 09.08.2017. In the said plan, STP location was not clearly mentioned. Subsequently, the CMDA has also approved the Building plan vide letter No. c/PP/MSB/34/(AID)/2017 dated 09.08.2017."
38. The report further stated that the requirement of the Pollution Control Board is provision for STP and there is no specific location prescribed by the Pollution Control Board. So far as CMDA approval plan is concerned, it was intended under the driveway only and as on date the STPs are located as under:
Plant-I- 315 KLD- located in building block of F1 tower underground. Plant-II- 165 KLD- located in building block of A9 tower underground. Plant-III- 33 KLD- located in building block of C9 tower underground.
39. After the show-cause notice was issued by the Pollution Control Board, the 1st respondent had applied for „Consent to Operate‟ on 12.1.2019 and the same was issued on 04.02.2020. It is also stated that after the period of „Consent to Operate‟ expired, there was no renewal as on date and notice is also being issued by the Pollution Control Board to the association. The Tamil Nadu Pollution Control Board had also recorded that the STPs should be 21 in continuous operation otherwise the operation and maintenance would be difficult.
40. The Pollution Control Board had issued a letter on 21.12.2020 to take action to use the treated sewage for toilet flushing and for gardening and greenbelt development and the remaining to be disposed of through Pallavaram Municipality Underground Sewerage System as per consent order. Even when the Pollution Control Board caused an inspection on 09.12.2020, the STP was not in operation. The 1st respondent also had given a reply to the said notice on 25.01.2021 stating that the operation, maintenance of the entire premises including the STPs are vested with the association and they are duty bound to maintain the same in the capacity of the occupier. To be noted is that the applicant- association is also collecting the maintenance charges from the apartment owners but has failed in its duty to maintain the STPs.
41. Regarding the organic waste converter of 1.5 TPD capacity, the 1 st respondent should have provided and installed the same. As the authorised vendor of the Greater Chennai Corporation (GCC) collected the solid waste generated from the facility of centralised management and monitoring of solid waste disposal and there was source segregation suggested to all the flat owners and the wastes were disposed through garbage bags, the organic waste convertor was not required and it was not installed.
42. The 1st respondent had stated that non-installation of the organic waste convertor is not intentional but it was only due to the viable alternative suggested by the GCC. However, the respondent has 22 purchased the organic waste convertor in March, 2020 and permission was sought for from the applicant-association for installing the same. As they wanted to set up the same in a different location, the organic waste convertor is yet to be installed.
43. From the above discussions, it is clear that the complaint of the applicant is only about the location of the STPs and non- functioning of the same. The above discussions clearly reveal that the 1st respondent had not obtained either consent to establish or consent to operate before installation of the STPs and not installed the organic waste convertor. As prayed for by the applicant, the 2nd respondent had already taken action under the provisions of the Environment (Protection) Act, 1986, Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 for not obtaining the consent to establish and consent to operate.
44. In this regard, the Pollution Control Board also had levied a compensation which is now under challenge before the Appellate Authority. Regarding the location of the STPs, if there is any violation, the applicant should have approached the appropriate authority complaining of the same. For the deviations made from the approved CMDA and other plans, already the applicant had approached the consumer forum and the case is still pending. For the identical prayer of deviation made from CMDA and other approved plans, the applicant had also approached the TN, RERA which is also pending before the Hon‟ble High Court. Above all, as discussed earlier, the application itself is filed much later when the 23 date of cause of action arose which is well beyond the period prescribed under Section 14 of the National Green Tribunal Act, 2010.
45. In view of the discussion supra, we feel that the applicant is not entitled to any relief in this regard.
46. In view of the above, the original application is dismissed. Consequently, the I.A. No.12 of 2021 is also dismissed.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No. 53/2020(SZ)& I.A. No.12/2021(SZ) 30th May, 2023. (AM) 24 Before the National Green Tribunal Southern Zone (Chennai) O.A. No. 53 of 2020 Olympia Grande Apartment Owner‟s Welfare Vs. M/s KSM Nirman Private Ltd.
and Ors.
O.A. No. 53/2020(SZ) 30th May, 2023. (AM) 25