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

[Cites 12, Cited by 0]

National Green Tribunal

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

1. This appeal has been preferred against order of SEIAA, Maharashtra dated 31.03.2020 granting Environmental Clearance (EC) for the construction project "Ganga Altus" at Sr. No. 22/2 P. Plot B1, Kharadi, Pune, by the project proponent (PP) M/s Goel Ganga India Private Limited.

The construction project in question is on plot area 13,652.42m2 with FSI 34,804.98m2 and non-FSI 32,898.07 m2. Building configuration is as follows:-

             Building        Number of floors                     Height (Mtrs.)
             Name



                                                                                   1
                   Wing D           LG+GR+P1+P2+P3+P4+P5+24         95.7
                                   Floors
                  Wing E           LG+GR+P1+P2+P3+P4+P5+24         95.7
                                   Floors
                  Wing F           LG + GR + 4                     18.90
                  Club House       G+1                             6.45

2. Grievance in this appeal is that originally EC was granted on 19.09.2008 for office building and hotel for 40 rooms having total plot area of 20072 sq. m., total BUA of 38586 sq.m. but the PP changed the scope of the project in violation of the EC and raised construction. In the changed project, there is structure of 3 residential buildings with 232 flats and 68 shops with total BUA of 37975 sq. m., having total water requirement of 167 KLD, waste water generated from complex will be 150 KLD, solid waste generated will be 631 KGPD (Dry=263 KGPD & wet=368 KGPD), total parking 656 scooters and 528 cycles and further sought expansion by way of EC dated 31.03.2020 under challenged of Plot B1 having the structure of 3 residential buildings with 384 flats, 29 shops and 5 offices with total BUA of 67703.05 sq. m. having total water requirement of 323 KLD, waste water generated from complex will be 262 KLD, solid waste generated will be 1055 KGPD (Dry=441 KGPD & wet=614 KGPD), total parking 653 cars, 993 scooters and 64 cycles and sought ex-post facto EC.

3. It is submitted that the construction project is illegal being without the mandatory prior EC. Ex-post facto EC is not substitute for prior EC as evaluation of impact on environment cannot be fully gone into as held by the Hon'ble Supreme Court in the case of the same PP viz. Goel Ganga Developers India Pvt. Ltd. v UOI1. There are further judgements of the Hon'ble Supreme Court to the same effect in Alembic Chemicals v Rohit Prajapati2 and Keystone Realtors Private Limited v. Anil V. Tharthare & 1 (2018) 18 SCC 257 2 2020 SCC OnLine SC 347 2 Ors.3. If the construction project is without prior EC, the project has either to be demolished or if it is found that environmental damage can be restored, the project can be permitted on payment of assessed compensation on polluter pays principle which needs to be spent for restoration of the environment. The authorities have thus failed to follow the binding law.

Procedural history - independent ascertainment of facts

4. The matter was earlier considered on 24.05.2021 and the Tribunal constituted a joint Committee to furnish a factual report in the matter. The Tribunal also observed that SEIAA, Maharashtra was not taking adequate remedial action against the continuing violations in construction projects being completed and EC being granted ex-post facto, without taking action against such violations for ensuring enforcement of law.

5. The operative part of the order is reproduced below:-

"4. Since we are coming across the grievance of continuous violation of environment norms in construction projects being completed without prior EC and the SEIAA, Maharashtra is neither requiring demolition nor payment of assessed compensation to comply with the rule of law and protection of environment, it will be appropriate to require the SEIAA, Maharashtra to review its working in the light of the judgments of the Hon'ble Supreme Court and violations frequently being alleged, including the present case. A proper SOP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SOP to all SEIAAs in the country. In this regard, we may refer to the directions in the earlier order of this Tribunal dated 1.2.2021 in OA 837/2018, Sandeep Mittal vs. MoEF, wherein it was inter-alia, directed:

"MoEF&CC may give due attention for proper constitution of SEIAAs in the States to ensure the projects of category 'B' and 'B-1' are properly scrutinized."

The MoEF&CC may file its action taken report in the matter before the next date.

(2020) 2 SCC 66 3

5. We also constitute a joint Committee of MoEF&CC, CPCB, and Maharashtra State PCB to look into the present matter and suggest a remedial action plan for the present case, including the quantum of compensation to be recovered, as far as possible within three months. The CPCB and State PCB will be nodal agency for coordination and compliance. Another connected matter between same parties for a different project being Appeal No. 32/2020(WZ) is also being dealt with by a separate order today and this direction will also apply to the said case. Infact, to avoid duplication if the SEIAA, Maharashtra itself reviews all such cases, to avoid unnecessary and repeated litigation. The Committee may conduct proceedings online but if possible, visit the site. The Committee may also interact with the concerned parties. The report of the joint Committee may be filed by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF before the next date. While submitting the report to this Tribunal, a copy of the report thereof be also forwarded to the PP and the applicant who may file their comments, if any, before the next date by e-mail."

Report of the Committee dated 3.12.2021

6. In pursuance of above, a report has been filed by the joint Committee dated 03.12.2021. The Committee prepared a questionnaire for securing information from the concerned authorities and also undertook visit to the site on 12.10.2021. The Committee has found that there is violation of requirement of prior EC as the EC earlier granted for a part of the project but the PP went ahead with the project without specifying the complete details. There is further violation of project being commenced without prior CTE and CTO from the State PCB as required under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 and also extraction of the ground water without requisite permission of the CGWA. Accordingly, compensation has been suggested for restoration. For not obtaining prior CTE & CTO, suggestion is to levy compensation of Rs. 5 crores on the pattern of order of the Hon'ble Supreme Court dated 10.08.2018 in Civil Appeal No. 10854 of 2016, M/s Goel Ganga Developers India Pvt. Ltd. Vs. Union of India & Ors.

or on the pattern of the formula based on days of violation at Rs.

6,61,17,190/-. In addition, it is suggested that compensation for violation 4 of requirement of prior EC and extraction of ground water illegally may be separately assessed.

7. The relevant extracts from the report are:-

"2. OBSERVATIONS AND FINDINGS A. Plot owned by PP in Survey No. 22/2, Karadi, Pune, and its sub-divisions PMC vide letter no. ZONE 1/3422 dated 25/10/2021 informed that the PP owned 41,000 sq. m. of land out of 63,000 sq.m. under the Survey No. 22/2, Kharadi, Pune, through Director- Mr. Atul Jaiprakash Goel of M/s Goel Ganga India Pvt. Ltd.

PP made application dated 22/03/2011 to PMC for subdivision of plot area owned by them and revised subdivision application dated 27/07/2011 to PMC wherein subdivision of their entire plot into two plots because of 30 Meter DP road were proposed under Clause No. 13.0 "Rules for Sub-division land & Layout" of the former Development Control Rules for Pune Municipal Corporation, 1987. The said proposal was sanctioned by PMC vide no. DPO/CC/468/11 dated 10/05/2011 and no. DPO/CC/2171/11 dated 21/09/2011 with Plot A-11431.54 m2, Plot B-18427.87 m2, 30 meter Development Plan (DP) road 7564.22 m2 and 45 Meter DP road 3576.37 m2. The same are also depicted in Table 1 below.

Table 1: Subdivision details of plot area of 41000 m2 owned by the PP at Survey No. 22/2, Karadi, Pune Sl. No. Name/component of Area subdivided area

1. Plot A 11431.54 m2

2. Plot B 18427.87 m2

3. 45 meter DP road 3576.37 m2

4. 30 meter DP road 7564.22 m2 Total 41000.00 m2 Subsequent to the said subdivision DPO/CC/2171/11 dated 21/09/2011, the plot B has been further subdivided into Plot B & B1 vide DPO/CC/1028/19 dated 06/08/2019 under Clause No. 15.0 "Regulation for land Sub-Division and Layout" of the Development Control And Promotion Regulations for Pune Municipal Corporation (DCPR-2017). In the said Sub-Division, Plot B divided into two plots- Plot B of 4775.45 m2 and Plot B1 of 13652.45 m2. The same are also depicted in Table 2 below.

Table 2: Subdivision details of the subdivided plot B as at Table 1 5 Sl. No. Name/component of Area subdivided area of Plot B

1. Plot B 4775.45

2. Plot B1 13652.45 Total 18427.87 Copy of PMC vide letter no. ZONE 1/3422 dated 25/10/2021 in this regard is given at Annexure II.

B. Environmental Clearance (EC) and violations thereto, if any The project proponent M/s Goel Ganga Developers (I) Pvt. Ltd. has been granted EC by MoEF&CC vide letter No.21-658/2007-IA.III dated 19.09.2008 for total plot area of 20,072.04 sq.m. for "Hotel and Office Building" at Survey No. 22/2, Kharadi, Pune, for construction of office building and a hotel (3 floors) for 40 rooms with a total built up area 38,586.0 sq.m. Copy of the EC dated 19/09/2008 given at Annexure III.

As per section 9 of the notification no S.O. 1533 (E) dated 14/9/2006 related to prior environmental clearance notified under the Environment (Protection) Act, 1986, validity of the said EC dated is 5 years i.e. 18.09.2013.

Though PP claims that the said EC of plot area 20,072.04 sq.m. pertains to Plot B portion of the total plot area of 41000 sq.m. owned by PP. However, MOEFCC, IRO Nagpur office informed vide email dated 12/11/2021 that EC dated 19.09.2008 was granted based on the conceptual plan submitted by the Project Proponent and as per the Form-1 and EIA Report available with the Ministry, the plot area was mentioned as 20072.04 sq.m. Copy of MOEF&CC, IRO Nagpur office email dated 12.11.2021 is given at Annexure IV.

The committee observes that in the said conceptual plan, Form 1 and Form 1A, location of the said 20,072.04 sq.m. in the total Plot area 41,000 sq.m. has not been specified. The EC dated 19.09.2008 has been granted on the proposal at sy. no. 22/2, village Kharadi, Taluka Haveli, district Pune as mentioned in para (2) of the said EC without specifying Part A or Part B or any other description of the 20,072.04 sq.m. within the said total Plot area 41,000 sq.m. In view of the same, the said claim of PP that the EC dated 19.09.2008 pertains to Plot B portion could not be ascertained.

The subdivision of plot area owned by PP into Plot A and Plot B was sanctioned in 2011 followed by subsequent subdivision of subdivided Plot B into Plot B and B1 in 2019, as mentioned in para 2(A) and Table 1 and Table 2 above.

Details of the building configuration and total built up area mentioned in the aforesaid EC dated 19/9/2008 and subsequent 6 Sanction/Building Permissions, construction status in Plot A, Plot B and Plot B1 and EC status are given in the subsequent paras.

(a) Plot A As per information provided by PMC vide the aforesaid letter dated 25/10/2021 given at Annexure-II:

1. First Layout Sanctioned for Plot A of 11,431.54 sq. m. plot area was granted to PP on 10/05/2011 followed by various revised Layout Sanctions and Building Permissions. Details of building configurations, Total FSI & Total Non-FSI and Total Built up Area in the said various Layout Sanctions and Building Permissions are given in Table 3 below.

2. PP informed vide letter dated 05/09/2011 to PMC that the development work of building on Survey No. 22/2, Plot-A, Kharadi, Pune, will be commenced on 26/09/2011. Copy of the said letter dated 05/09/2011 submitted by PP to PMC is given at Annexure V.

3. PP obtained Plinth Check Certificates dated 06/07/2013 and 03/09/2013 for building B and C which are as per Layout Sanctioned and Building Permission CC/0374/12 dated 07/05/2012 and CC/1388/13 dated 30/07/2013 granted by PMC having total built up area12,822.64 sq.m. and 21,407.28 sq.m. respectively.

4. PP has also obtained occupancy certificates in parts from PMC dated 21/08/2015 and 31/10/2015 for building B which are as per Layout Sanctioned and Building Permission CC/1388/13 dated 30/07/2013.

Part occupancy certificate dated 28/06/2017 has also been obtained by PP from PMC for Building C which is as per Building Permission CC/2080/15 dated 06/10/2015.

5. PP made further application vide letter 10594/17 dated 28/06/2017 to PMC for further occupancy certificate upon which PMC came to know that built-up area of the said Plot A is crossing 20,000 m2 and PMC issued refusal letter dated 21/08/2017 for the same. It was also informed by PMC that since that date the PP has stopped work on Plot A.

6. PMC has further granted full potential layout sanctions dated 22/10/2018 and 30/04/2021 to PP with a condition that PP will start work after getting EC.

7. Total built-up area constructed as on 12/10/2021 i.e. date of site visit by the committee is 23,990.38 sq.m.

Copy of the said PMC vide letter no ZONE 1/3422 dated 25/10/2021 is given at Annexure II.

Details of the above are also summarized in Table 3 below.

Table 3: Details of the building configuration and total built up area mentioned in Layout Sanctioned and Building Permissions and construction status for Plot A- 11431.54 m2 7 Sl. Particulars (↓) Building Total Built up Area No. Configuration 1 Layout Sanctioned No.  Building A- G+Stlit+6 Total FSI-5213.54 sq.m.

       CC/0468/11 dated                 Building S1- G+1        Total Non FSI-1700.03
       10/05/2011                                                sq.m. TBUA-6913.57 sq.m.
2      Layout Sanctioned No.            Building A- G+Stlit+6   Total FSI-5213.54 sq.m.
       CC/2171/11 dated                 Building S1- G+1        Total Non FSI-1700.03
       21/09/2011                                                sq.m. TBUA-6913.57 sq.m.
3     Layout Sanctioned and      Building A- Ground             Total FSI- 7965.84 sq.m.
      Building Permission        Building B- B+G+6              Total Non FSI- 4856.8
      No.CC/0374/12 dated                                        sq.m. TBUA-12822.64
      07/05/2012 granted by PMC                                  sq.m.

4       PlinthCheck   Certificate      For Building B- As per Layout Sanctioned and
              No.                      Building Permission No.CC/0374/12 dated
        PCC/0369/13 dated              07/05/2012 granted by PMC as mentioned at Sl.
        06/07/2013                     No. 3 above.
5       Layout Sanctioned and           Building B- B+G+8       Total FSI- 11759.02 sq.m.
        Building Permission             Building C- B+G+6       Total Non FSI- 9648.26
        No.CC/1388/13 dated                                      sq.m. TBUA- 21407.28
        30/07/2013 granted by                                    sq.m.
        PMC

6       Plinth Check Certificate No.   For Building C-As per Layout Sanctioned and
        PCC/0602/13 dated              Building Permission No.CC/1388/13 dated
        03/09/2013                     30/07/2013 granted by PMC as mentioned at Sl.
                                       No. 5 above.
7       Part Occupancy Certificate     For Building B- 24 Shops with Store and 84 Flats
        No.                            only. As per Layout Sanctioned and Building
        OCC/0637/15 dated              Permission No.CC/1388/13 dated 30/07/2013
        21/08/2015                     granted by PMC as mentioned at Sl. No. 5 above.
8       Building Permission        Building B- B+G+8            Total FSI- 10872.92 sq.m
                    No.CC/2080/15  Building C- B+G+4            Total Non FSI- 9280.0
        dated 06/10/2015 granted                                 sq.m. TBUA- 20152.92
        by PMC                                                   sq.m.
9       Part Occupancy Certificate     For Building B-12 Flats only. As per Layout
        No.OCC/0908/15 dated           Sanctioned and Building Permission
        31/10/2015                     No.CC/1388/13 dated 30/07/2013 granted by
                                       PMC as mentioned at Sl. No. 5

10      Part Occupancy Certificate     For Building C-28 shops. As per Building
        No.OCC/0683/17 dated           Permission No.CC/2080/15 dated
        28/06/2017                     06/10/2015 granted by PMC as mentioned at
                                       Sl. No. 8.

11      Layout Sanctioned No.           Building A- B+G+11      Total FSI- 18216.88 sq.m.
        DPO/CC/2200/18 dated            Building B- B+G+8       Total Non FSI- 19758.01
        22/10/2018 granted by           Building C- B+G+4       sq.m. TBUA- 37974.89
        PMC                                                      sq.m.
12      Layout Sanctioned No.           Building A- B+G+11      Total FSI- 21573.97 sq.m.
        DPO/CC/0206/21 dated            Building B- B+G+8       Total Non FSI- 16348.74
        30/04/2021 granted by           Building C- B+G+4       sq.m. TBUA- 37922.71
        PMC                                                      sq.m.
13      Status of construction as on    Building B- B+G+8     Total Built up Area
        12/10/2021 as informed           Floors Slab Completed Constructed
        by PMC as per                   Building C- B+G+4     = 23990.38 sq.m.
        CC/2080/15 dated                 Floor Slab Completed
        06/10/2015 Building
        Permission

MPCB has informed vide letter 10.11.2021 that PP has completed construction of work for building B & C in Plot A and handover the 8 possession to tenants. Only excavation for building A has been carried out in past. During the site visit on 12/10/2021, the committee observed flats/shops were operational in building B and C. PP has made application dated 01/9/2017 to MoEF&CC for EC for total plot area 11,431.54 sq. m. at Survey No. 22/2(P), Plot A, Kharadi, Pune, during amnesty window for such proponents who have violated the EC regulations as per notification no. SO 804(E) dated 14.3.2017 notified by MoEF&CC under the Environment (Protection) Act, 1986. A fresh application dated 11/4/2018 for EC was made by PP to SEIAA Maharashtra under extended amnesty window period. PP has also proposed ecological damage and economic benefit derived due to violation and remediation plan and natural and community resource augmentation plan as per approach adopted by Department of Environment, Govt. of Maharashtra and SEIAA Maharashtra vide SEIAA letter no. SEIAA- 2018/CR-150/SEIAA dated 30/1/2019 (please refer para 4 of this report). The SEIAA has informed vide email dated 15.11.2021 that the said EC application dated 11/4/2018 by M/s. Goel Ganga made during the amnesty period w.r.t construction on Plot A is pending with SEIAA.

(b) Plot B (of 18,427.87 m2 plot area as resulted after subdivision in 2011)

1. Upon the aforesaid subdivision in 2011 (and prior to its further sub-division in 2019), PP obtained various Layout Sanctioned and Building Permissions for subdivided Plot B of area 18,427.87 m2. Details of building configurations, FSI, Non-FSI and Total Built up Area in the said various Layout Sanctioned and Building Permissions are given in Table 4 below.

2. PP made an EC application on 01/10/2015 to SEIAA, Maharashtra for construction of residential and commercial development on Plot B (prior to its further subdivision in 2019) for a plot area of 18427.87 m2. It may be observed that the said EC application dated 01/10/2015 has been made after expiry of validity of the EC dated 19/9/2008 which was valid for 05 years (i.e. 18/9/2013) as per above mentioned section 9 of the notification no S.O. 1533 (E) dated 14/9/2006 notified under the Environment (Protection) Act, 1986.

3. The proposal was discussed in the 107th meeting of SEIAA meeting held during 19th to 21st October 2016 and it was noted that there is a Civil Suit No 170/2014 pending against the project and decided to delist the proposal till the case is finally decided.

Table 4: Details of the building configuration and total built up area mentioned in Layout Sanctioned and Building Permissions for Plot B-18427.87 m2 (obtained after subdivision in 2011 and prior to subsequent subdivision in 2019) 9 Sl. Particulars (↓) Building Configuration Total Built up No. Area 1 Layout Sanctioned  Building A & B- B+B+P+15 Total FSI- 12854.68 No. CC/2899/12  Building C & D- B+B+P+1 sq.m Total Non FSI-

     Dated 31/12/2012                                            17011.80 sq.m
     granted by PMC                                             TBUA- 29866.48 sq.m

2    Layout Sanctioned  Building A-                             Total FSI- 17174.82
     And Building        LB+UB+GR+Stilt+Podium+14 Floors         sq.m Total Non FSI-
     Permission No.      (Res. + Comm.)                          29412.94 sq.m
     CC/1464/14Dated  Building                        B-       TBUA- 46587.76 sq.m
     11/08/2014          LB+UB+GR+Stilt+Podium+2 Floor
     granted by PMC     Building                      C-
                         LB+UB+GR+Stilt+Podium+1 Floor
3    Building               Building A-                         Total FSI- 14149.56
     Permission              LB+UB+GR+Stilt+Podium+14            sq.m Total Non FSI-
     No. CC/1361/15          Floors(Res. + Comm.)                29018.20 sq.m
     Dated01/08/2015        Building                      B-   TBUA- 43167.76 sq.m
     granted by PMC          LB+UB+GR+Stilt+Podium+1 Floor
                            Building                      C-
                             LB+UB+GR+Stilt+Podium+1 Floor

4. No plinth check certificate has been obtained by PP. Report of site visit on 28/12/2017 by MoEF&CC official reveals that no construction has been initiated except site office and temporary shed for watchman. Copy of the MoEF&CC official report site visit dated 28/12/2017 is given at as Annexure VI.

1. PMC informed vide letter dated 25/10/2021 (copy given at Annexure-II) that in 2019 the Plot B of 18,427.87 m2 was further subdivided into Plot B-4,775.45 m2 and Plot B1- 13,652.45 m2.

2. PMC has issued Layout Sanctioned vide CC/1028/19 dated 06/08/2019 on the said subdivided plot B of 4775.45 m2 which comprises of FSI-12177.39 m2 while the Non-FSI in the said aforesaid sanction is not mentioned. PMC has also informed vide letter no ZONE 1/3422 dated 25/10/2021 (copy given at Annexure II) that thereafter no sanction plan for the said subdivided Plot B has been issued till date i.e. 20/10/2021.

3. During site visit of the committee on 12/10/2021, PP informed that the subdivided Plot B (4775.45 m2) has been sold to other party in 2019. The committee did not observe constructed structures in the said subdivided Plot B except for excavation carried out in the past. Records w.r.t. period when such excavation has been done is not available with PMC as informed by PMC vide email dated 24/11/2021.

(d) Plot B1 (of 13,652.45 m2 plot area as resulted after subdivision of Plot B in 2019)

1. With regard to subdivided plot as B1 of plot area 13,652.45 m2, PP applied for EC vide application dated 11/2/2020 and has been granted EC by SEIAA, Maharashtra vide letter 10 SIA/MH/MIS/142595/2020 dated 31/03/2020 for total plot area of 13652.45 sq.m. for the project - "Ganga Altus" at Survey No. 22/2 P, Plot B1, Kharadi, Pune, stipulating layout Sanction details granted by PMC, total built up area of 54,822.15 sq. m. and building configuration therein. Copy of the EC dated 31/03/2020 given at Annexure VII.

2. The EC dated 31/03/2020 has been obtained by the PP based on the Layout Sanctioned No. DPO/CC/2219/19 dated 23/12/2019 granted by PMC.

3. Subsequent to this EC, PP has obtained Plinth Check Certificate dated 21/01/2021 which is as per Building Permission No. CC/3234/19 dated 23/03/2020.

5. Further, PMC has issued Layout sanctioned dated 05/04/2021 in which the floors have been revised from 16 (as mentioned in the Layout Sanctioned dated 23/12/2019) to 24 and total built- up area from 54,822.15 m2 to 65,054.78 m2 with a condition that "Revised Environmental Clearance to be submitted before starting work above 16 Floors."

6. PMC vide letter dated 25/10/2021 has informed that the project has been constructed as per Layout Sanctioned No. DPO/CC/2219/19 dated 23/12/2019 and the said additional 8 floors (Built up-10202.63 m2) have not been constructed yet.

7. PMC has also informed that the total built up area constructed as on 12/10/2021 is 10,198.86 sq.m. against the total built up area granted vide EC dated 31/03/2020 of 54,822.15 sq.m.

8. During the visit on 12/10/2021, the committee observed that project is underconstruction and there was no occupancy.

Details of the above are also summarized in Table 5 below.

Table 5: Details of building configuration and total built up area mentioned in Layout Sanctioned and Building Permissions and EC for Plot B1-13652.45 m2 (After Sub- Division in 2019) Sl.

No. Particulars (↓) Building Configuration Total Built up Area 1 Layout Sanctioned  Building D- Total FSI- 24583.86 No. DPO/CC/2219/ LG+GR+P1+P2+P3+P4+P5 sq.m. Total Non FSI- 19 Dated (Podium)+16 Floor 30238.29 sq.m. TBUA- 23/12/2019 granted  Building E- 54822.15 sq.m.

      by PMC                  LG+GR+P1+P2+P3+P4+P5
                              (Podium)+16 Floor
                             Building F-LG+GR+4 Floor
2     EC dated 31.03.2020 As per Specific Conditions No. V of the EC stipulates that
      Granted by SEIAA,    the EC granted for - FSI: 24583.86 m2, Non-FSI: 30238.29 m2 and
      Maharashtra          Total BUA: 54822.15 m2 (Plan Approval no. DPO/CC/2219/19,
                           dated-23.12.2019)
3     Building Permission.  Building D-                           Total FSI- 11342.29
      No.       CC/3234/19   LG+GR+P1+P2+P3+P4+P5                  sq.m. Non FSI of
      Dated 23/3/2020        (Podium)+15 Floor                     Building D-1693.41
                            Building E-                           sq.m.
                             LG+GR+P1+P2+P3+P4+P5                  Total Non FSI-Not
                             (Podium)+1 Floor                      Shown in plan
4     Plinth Check          Building
                           For        F-LG+GR

Building D-As per Building Permission No.CC/3234/19 dated Certificate No. 23/03/2020 granted by PMC as at Sl. No. 3 above. PCC/0626/20 dated 20/01/2021 11 5 Layout Sanctioned  Building D- Total FSI- 41147.64 No. LG+GR+P1+P2+P3+P5+Stilt +24 sq.m. Total Non FSI-

    DPO/CC/0020/20           Floor                                 23907.14 sq.m. TBUA-
    21 dated                Building                         E-   65054.78 sq.m.
    05/04/2021               LG+GR+P1+P2+P3+P5+Stilt +24
                             Floor
6   Status of               Building D-                           Total Built up Area
    construction as on       LG+GR+P1+P2+P3+P4+P5 (Podium)         Constructed = 10198.86
    12.10.2021 as            +2 Floors                             sq.m.
    informed by PMC         Building E- LG Floor only             PMC also informed that
                            Building F- GR constructed on site    the project has been

(due to level difference LG Floor & constructed as per Layout Gr. Floor merge on site ) Sanctioned No. DPO/CC/2219/19 dated 23/12/2019 on which EC Compliance of Consent required under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981

(a) Plot A of plot area 11,431.54 m2 MPCB informed vide letter dated 10.11.2021 that PP has not applied for Consent to Establish/Operate under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. PP has completed construction of work for Building B & C and handover the possession to tenants. PP has also carried out excavation in the past for the construction of proposed Building A. PP has not provided any treatment for sewage generation and the same is discharged to PMC sewer line. For the treatment of solid waste, PP has provided vermicomposting pits for Building B which was found to be in operation while for Building C the pit was not found to be in operation. Water supply to the buildings is from PMC. One bore well is observed within the premises of the project from which PP has been extracting ground water without the NOC of Central Ground Water Authority (CGWA). Copy of MPCB letter dated 10.11.2021 is given at Annexure VIII.

PP has informed vide letter dated 05/09/2011 to PMC that the development work of building on Survey No. 22/2, Plot-A, Kharadi, Pune will be commenced on 26/09/2011. (Copy of letter dated 05/09/2011 submitted by PP to PMC is given at Annexure V). Further, PP obtained first Plinth Check Certificates dated 06/07/2013 on Plot A. The above reveals that the PP started development/construction and operation of the project without obtaining CTE and CTO from MPCB and violated provisions under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981 and also extracting ground water from bore well for which NOC has not been obtained from CGWA.

(b) Plot B1 of plot area 13,652.45 m2 PP made application dated 04/04/2020 for CTE to MPCB. MPCB issued CTE to the PP on 02/12/2020 for total built-up area of 67,703.05 sq.m. PP has obtained plinth check certificate dated 21/01/2021 from PMC. Amendment in CTE dated 02/12/2020 has been granted by MPCB vide amended CTE 03/11/2021 for a total built up area of 54,822.15 sq. m. against earlier granted for 67,703.05 sq.m. Copy of CTE dated 02/12/2020 and amendment CTE dated 03/11/2021 are given at Annexure IX.

Regarding the date of start of construction, PMC informed vide email dated 18/10/2021 that date of start of construction on Plot B1 is not on record. The committee observes that the 1st Plinth Check Certificate No. PCC/0626/20 has been issued on 20/01/2021 based on Building Permission No.CC/3234/19 dated 23/03/2020 and Intimation Application No. PLN/07420/20 dated 07/01/2021 from PP regarding completion of construction work for Building D up to plinth level (please refer Plinth Check Certificate dated 20.01.2021 attached along with PMC vide letter dated 25/10/2021 given at Annexure II).

3. CONCLUSIONS The observations, as given at para 2, reveal that:

(a) PP owned plot of 41,000 sq. m. at Survey No. 22/2, Karadi, Pune. The same has been subdivided in 2011 into Plot A- 11431.54 m2, Plot B-18427.87 m2, 30 meter Development Plan (DP) road- 7564.22 m2 and 45 Meter DP road- 3576.37 m2 as per Clause No. 13.0 "Rules for Sub-division land & Layout" of the former Development Control Rules for Pune Municipal Corporation, 1987 and subsequent subdivision of Plot B into two plots- Plot B of 4775.45 m2 and Plot B1 of 13652.45 m2 in 2019 as per Clause No. 15.0 "Regulation for land Sub-Division and Layout" of the Development Control And Promotion Regulations for Pune Municipal Corporation (DCPR-2017).

During site visit of the committee on 12/10/2021, PP informed during discussion that the subdivided Plot B (4775.45 m2) has been sold to other party in 2019. The committee did not observe constructed structures in the said subdivided Plot B (4775.45 m2) except for excavation carried out in the past. Records w.r.t. period when such excavation has been done is not available with PMC as informed by PMC vide email dated 24/11/2021.

(b) Prior to the aforesaid subdivisions, PP obtained EC granted by MoEF&CC vide letter No.21-658/2007-IA.III dated 19.09.2008 for total plot area of 20,072.04 sq.m. for "Hotel and Office Building" at Survey No. 22/2, Kharadi, Pune, for construction of office building and a hotel (3 floors) for 40 rooms with a total built up area 38,586 sq.m. having validity till 05 years i.e. 18/9/2013.

PP obtained first Plinth Check Certificates dated 06/07/2013 (on Plot A) which is as per Layout Sanctioned and Building 13 Permission CC/0374/12 dated 07/05/2012 granted by PMC having proposal for 2 buildings with shops of total built up area 12,822.64 sq.m. which is not in conformation to the building configuration stipulated in the said EC dated 19/9/2008. The subsequent Plinth Check Certificates dated 03/09/2013 (on Plot A) which is as per Layout Sanctioned and Building Permission CC/1388/13 dated 30/07/2013 granted by PMC having proposal of 2 buildings with shops of total built up area 21,407.28 sq.m. which is more than 20,000 sq. m. requiring prior EC.

PP has also obtained occupancy certificates in parts from PMC dated 21/08/2015 and 31/10/2015 for building B in Plot A which are as per the said Layout Sanctioned and Building Permission dated 30/07/2013. Part occupancy certificate dated 28/06/2017 has also been obtained by PP from PMC for Building C as per Building Permission CC/2080/15 dated 06/10/2015.

PP made further application vide letter 10594/17 dated 28/06/2017 to PMC for further occupancy certificate upon which PMC came to know that built-up area of the said Plot A is crossing 20,000 m2 and PMC issued refusal letter dated 21/08/2017 for the same. It was also informed by PMC that since that date the PP has stopped work on Plot A. MPCB has informed vide letter 10.11.2021 that PP has completed construction of work for building B & C in Plot A and handover the possession to tenants. During the site visit on 12/10/2021, the committee observed flats/shops were operational in building B and C. Total built-up area constructed as on 12/10/2021, i.e. date of site visit by the committee, is 23,990.38 sq.m. as informed by PMC. Only excavation for building A has been carried out in past.

PP has made application dated 01/9/2017 to MoEF&CC for EC for total plot area 11,431.54 sq. m. at Survey No. 22/2(P), Plot A, Kharadi, Pune, during amnesty window for such proponents who have violated the EC regulations as per notification no. SO 804(E) dated 14.3.2017 notified by MoEF&CC under the Environment (Protection) Act, 1986. A fresh application dated 11/4/2018 for EC was made by PP to SEIAA Maharashtra under extended amnesty window period. PP has also presented ecological damage and economic benefit derived due to violation and remediation plan and natural and community resource augmentation plan as per approach adopted by Department of Environment, Govt. of Maharashtra and SEIAA Maharashtra vide SEIAA letter no. SEIAA-2018/CR- 150/SEIAA dated 30/1/2019 (please refer para 4 of this report). The SEIAA has informed vide email dated 15.11.2021 that the said EC application dated 11/4/2018 by M/s. Goel 14 Ganga made during the amnesty period w.r.t construction on Plot A is pending with SEIAA.

(c) With regard to subdivided plot as B1 of plot area 13,652.45 m2, PP applied for EC vide application dated 11/2/2020 (which is after 05 years validity period of the EC dated 19/9/2008 granted by MoEF&CC) and has been granted EC by SEIAA, Maharashtra vide letter SIA/MH/MIS/142595/2020 dated 31/03/2020 for total plot area of 13,652.45 sq.m. for the project - "Ganga Altus" at Survey No. 22/2 P, Plot B1, Kharadi, Pune, for total built up area of 54,822.15 sq. m. and building configuration therein. Copy of the EC dated 31/03/2020 given at Annexure VII. The EC dated 31/03/2020 has been granted as per the Layout Sanctioned No. DPO/CC/2219/19 dated 23/12/2019 granted by PMC. Subsequent to this EC, PP has obtained Plinth Check Certificate dated 21/01/2021.

During the visit on 12/10/2021, the committee observed that project is under construction and there was no occupancy. PMC vide letter dated 25/10/2021 (copy given at Annexure II) has informed that the project has been constructed as per the Layout Sanctioned No. DPO/CC/2219/19 dated 23/12/2019. PMC has also informed that the total built up area constructed as on 12/10/2021 is 10,198.86 sq.m. against the total built up area granted vide EC dated 31/03/2020 of 54,822.15 sq.m.

PP has obtained amendment in Consent to Establish (CTE) dated 03/11/2021 under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981, for a total built up area of 54,822.15 sq. m. from MPCB against earlier CTE dated 02/12/2020 granted for 67,703.05 sq.m.

(d) PP claims that the said EC dated 19/9/2008 in plot area 20,072.04 sq.m. of Sy. no. 22/2, village Kharadi, Taluka Haveli, District Pune pertains to Plot B portion of the total plot area of 41000 sq.m. owned by PP in the said survey number plot. However, the committee observes that as per information (copy of email dated 12.11.2021 is given at Annexure IV) provided by MoEF&CC, IRO Nagpur office and examining the conceptual plan, Form 1 and Form 1A, location of the said 20,072.04 sq.m. in the total Plot area 41,000 sq.m. has not been specified in the said Forms. Further, the EC dated 19.09.2008 has been granted on the proposal at sy. no. 22/2, village Kharadi, Taluka Haveli, district Pune as mentioned in para (2) of the said EC without specifying Part A or Part B or any other description of the 20,072.04 sq.m. within the said total plot area 41,000 sq.m. In view of the same, the said claim of PP that the EC dated 19.09.2008 pertains to Plot B portion could not be ascertained.

Therefore, starting construction in Sy. no. 22/2, village Kharadi, Taluka Haveli, district Pune, not conforming to building configuration stipulated in the EC dated 19/9/2008 may have violated the said EC dated 19/9/2008 as item 5 under Part-B as General Conditions of the said EC dated 19/9/2008 stipulates that "In the case of any change(s) in the scope of the project, the project would require a fresh appraisal by this Ministry" and in case full or part of the said 20,072.04 sq.m., for which EC has been granted, pertains in Plot A. The non-conforming construction has started within validity period of the said EC dated 19/9/2008 which was valid for 05 years as per section 9 of the notification no S.O. 1533 (E) dated 14/9/2006 related to prior environmental clearance notified under the Environment (Protection) Act, 1986. The same is evident from first Plinth Check Certificates dated 06/07/2013 obtained by PP on Plot A which is as per Layout Sanctioned and Building Permission CC/0374/12 dated 07/05/2012 though PP has also informed to PMC vide letter (copy given at Annexure V) dated 05/9/2011 that the development work of building in Plot A falling under the survey no 22/2, Kharadi, Pune will be commenced on 26/9/2011. Further, configuration of the building under the said Layout Sanctioned and Building Permission CC/0374/12 dated 07/05/2012 is not in conformation to that of granted in EC dated 19/9/2008 (please refer para 2(B) and Table 3.above).

However, violation of the prior EC requirement provisions of the notification no S.O. 1533 (E) dated 14/9/2006 has occurred by PP by initiating construction for built up area of more than 20,000 sq. m. as is evident from Plinth Check Certificates dated 03/09/2013 (on Plot A) which is as per Layout Sanctioned and Building Permission CC/1388/13 dated 30/07/2013 granted by PMC having proposal of total built up area 21,407.28 sq.m.

PP has though made application to SEIAA for EC for total plot area 11,431.54 sq. m. at Survey No. 22/2(P), Plot A, Kharadi, Pune, during amnesty window for such proponents who have violated the EC regulations as per notification no. SO 804(E) dated 14.3.2017 notified by MoEF&CC under the Environment (Protection) Act, 1986, with proposal of ecological damage and economic benefit derived due to violation and remediation plan and natural and community resource augmentation plan as per approach adopted by Department of Environment, Govt. of Maharashtra and SEIAA Maharashtra vide SEIAA letter no. SEIAA-2018/CR-150/SEIAA dated 30/1/2019 (please refer para 4 of this report) which is pending with SEIAA, as stated at para (b) above.

(e) Besides, PP has also violated provisions under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981 by not making application and obtaining Consent to 16 Establish (CTE) and Consent to Operate (CTO) for constructing Building B & C in Plot A and handing over the possession to tenants.

(f) One bore well in plot A has also been reported by MPCB vide letter (copy given at Annexure- VIII) dated 10.11.2021 from which PP has been extracting ground water without the NOC of Central Ground Water Authority (CGWA).

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

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

In view of the above notifications, a committee was constituted (constituting Ex. Expert Member, NGT; members of SEIAA and SEAC for Maharashtra and advocate) in Maharashtra for evaluation process 17 to evolve uniform guidelines to deal with the cases of violations under the chairmanship of Chairman, SEIAA, Maharashtra and submitted its report to the Department of Environment, Govt. of Maharashtra. After due consultation with stakeholders in a round table workshop, the Department of Environment (DoE) and SEIAA Maharashtra decided to follow the provisions of MoEF&CC notification dated 14.03.2017 as per the report submitted by the committee. Copy of the "Approach for the said Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory Environmental clearance (Violation Cases)" decided to be followed by the DoE and SEIAA Maharashtra vide SEIAA letter no. SEIAA-2018/CR-150/SEIAA dated 30/1/2019 is available at https://www.ecmpcb.in/login/download_ec_document/QjAwN0E4N kZDM0I2NDY4Mzk3QzUxOE VCQURGNzlGOTcucGRm The aforesaid notification of MoEF&CC was, however, applicable for six months from the date of publication i.e. 14.03.2017 to 13.09.2017 and further based on Hon'ble court direction from 14.03.2018 to 13.04.2018.

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

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

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

However, in the matter of Fatima vs The UOI, WP(MD) No.11757 of 2021, Hon'ble Madurai Bench of Madras High Court (Special 18 Original Jurisdiction) vide order dated 15/07/2021 has ordered an interim stay on the said SOP.

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

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

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

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

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

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

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

Sr Description Activity % Implementi Remarks No Allocation ng Agency 1 Afforestation (can include 25 Social The afforestation Plantation garden Forestry & Can be either development) Local Body Through social Forestry or the Local body.

Preferablywithin 50 km from project site 2 Water conservation 25 Preferably within Program (Jalyukt shivar, etc.) 50 km radius of project site 3 Urban environment and 20 Local body Sanitation (can include Swatccha Bharat, Playground development, Urban ground-water recharge schemes etc) 4 Sewerage lines and STP, 20 Local Body solid waste Management 5 Urban air/noise pollution 10 Local Body control initiatives

(v) The assessment of above mentioned environmental damage cost and economic benefits and preparation of remediation plan and natural and community resource augmentation plan as environmental management plan (EMP) to be prepared as an independent chapter in the environment impact assessment report by the consultants duly recognised by NABET (National Accreditation Board for Education and Training) while seeking grant of environmental clearance. The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and natural and community resource augmentation plan shall be done by an environmental laboratory duly notified under Environment (Protection) Act, 1986, or an environmental laboratory accredited by National Accreditation Board for Testing and Calibration Laboratories or a laboratory of a Council of Scientific and Industrial Research institution working in the field of environment.

The SEAC will prescribe a specific Terms of Reference for the project on assessment of the above plans.

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

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

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

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

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

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

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

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

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

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

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

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

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

Though such listed instances may not be directly applicable in the current matter for arriving at the damages amount (in addition to the environmental compensation as given at para 4) for contravening mandatory provisions of environmental laws (w.r.t. EC violations, starting construction and operation of the project without CTE/CTO as given at paras 3(d) and (e) above), an attempt is being made by this committee to assess the environmental compensation using the formula prescribed in the said CPCB report which may be taken as damages amount for contravening mandatory provisions of environmental laws. The formula takes into account of number of days violation took place, pollution index of unit, scale of operation, location factor based on population and an amount factor in Rupees.

Environmental Compensation (EC) in Rupees as mentioned in the aforesaid CPCB report for Construction on Plot A = PI x N x R x S x LF Where, PI = Pollution index of the project. Considering the project under Orange category as per CPCB's modified directions no. B-29012/ESS/(CPA)/2015-16 dated 07/3/2016, PI = 50 N = Number of days violation took place.

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

S = Factor for the scale of operation. As per data given in minutes of 85th meeting of SEAC-III dated 12/4/2019, estimated cost of project is Rs. 97.44 crores which is large scale industry (LSI) as per criteria being followed by MPCB. The unit being LSI, S=1.5 22 LF = Location factor, since the population of Pune is more than 1 Million but less than 5 Million, LF=1.25 As violation of EC dated 19/9/2008 couldn't be ascertained (w.r.t. construction in Plot A within validity period of the said EC dated 19/9/2008) based on available information with the committee, the violation start days may be considered as 03/9/2013 when Plinth Check Certificates dated 03/09/2013 (on Plot A) was obtained which was as per Layout Sanctioned and Building Permission CC/1388/13 dated 30/07/2013 having proposal of total built up area 21,407.28 sq.m. and the same is more than 20,000 sq.m. and thus resulted violations of prior EC requirement provisions of the notification no S.O. 1533 (E) dated 14/9/2006 (please refer para 3(d) above). Thereafter, violations also continued under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and section 21 of the Air (Prevention and Control of Pollution) Act, 1981 for not making application and obtaining Consent to Establish (CTE) and Consent to Operate (CTO) for constructing Building B & C in Plot A and handing over the possession to tenants.

Considering the aforesaid violations till date of the Hon'ble NGT order dated 24/5/2021, N - the number of days violation took place comes out to be 2821 days.

Therefore, Environmental Compensation (EC) in Rupees = 50 x 2821 x 250 x 1.5 x 1.25 = Rs. 6,61,17,190/- (Rupees Six Crores Sixty One Lakhs Seventeen Thousands One Hundred Ninety Only) Per day Environmental Compensation (EC) comes out to be Rs. 23,437.5/- (Rupees Twenty Three Thousand Four Hundred Thirty Seven and Five Paise)

6. RECOMMENDATIONS

(a) In view of the:

(i) aforesaid violations of prior EC requirement related notification no S.O. 1533 (E) dated 14/9/2006 in plot A (please refer para 3(d) above);

(ii) approach for environmental compensation and remedial measures for prior EC violations as discussed under para 4 above, and;

(iii) PP's application made for grant of EC during amnesty window for such proponents who have violated the EC regulations as per notification no. SO 804(E) dated 14.3.2017 notified by MoEF&CC under the Environment (Protection) Act, 1986, with proposal of assessed ecological damage and economic benefit derived due to violation and remediation plan and natural and community resource augmentation plan as per approach 23 adopted by Department of Environment, Govt. of Maharashtra and SEIAA Maharashtra vide SEIAA letter no. SEIAA-

2018/CR-150/SEIAA dated 30/1/2019 (please refer para 4 of this report) which is pending with SEIAA (please refer para 3 (b) and 2 above) The committee recommends that SEIAA Maharashtra may appraise the aforesaid application of PP including the proposed Environmental Management Plan (EMP) cost as environmental compensation amount and proceed implementation following the approach paper adopted by DoE and SEIAA Maharashtra vide SEIAA letter SEIAA-2018/CR- 150/SEIAA dated 30/1/2019 for the "Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory prior EC". The said approach paper also outlines preparation of remediation plan and natural and community resource augmentation plan equivalent to the said EMP cost taking into account of ecological damage and economic benefit derived due to violation. Areas identified for resource allocation through such EMP cost in the said approach paper are Afforestation; Water conservation program; Urban environment and sanitation; Sewerage lines and STP, solid waste management, and; Urban air/noise pollution control. Details of the same including estimation and implementation procedures thereto are given under para 4 of this report.

(b) In addition to the above, Rs. 05 crores or Rs 6,61,17,190/-

(Rupees Six Crores Sixty One Lakhs Seventeen Thousands One Hundred Ninety Only), as derived under para 5 of this report, as deemed fit by the Hon'ble NGT, may also be added in the said environmental compensation or EMP cost as damages for contravening aforesaid provisions under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, violations of EC dated 19/9/2008 granted by MoEF&CC and prior EC requirement violations of the notification no S.O. 1533 (E) dated 14/9/2006 in plot A.

(c) With regard to the noticed one bore well in plot A extracting ground water without the NOC of Central Ground Water Authority (CGWA), the same may be examined by CGWA and initiate necessary action including deposition of environmental compensation in accordance with the law."

Consideration of the mater, finding and final order

8. We have heard learned Counsel for the appearing parties, perused the records and considered the matter. None appears for the PP even though according to learned counsel for the appellant, complete set of 24 papers have been served on the PP and there was a direction of this Tribunal to provide a copy of the report by the Committee to enable the PP to respond. The Appellant has filed a written statement as follows:-

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

9. Further, the report shows that "the committee carried out site visit of the construction project- "Ganga Atlus" by M/s Goel Ganga Developers (I) Pvt. Ltd. at S. No. 22/2 P, Plot B1, Kharadi, Pune on 12/10/2021. Shri. Ajit Surve, Executive Engineer, Pune Municipal Corporation (PMC) and Shri Atul Jayprakash Goyal, Managing Director, along with his representatives from M/s Goel Ganga India Pvt. Ltd., were also present during the site visit."

10. Accordingly, learned Counsel for the official respondents have rightly suggested that as per principles of natural justice required to be followed, the PP has adequate opportunity. If it has chosen not to appear, the Tribunal may proceed against the PP ex-parte and proceed to take further decision in the matter on merits as per law.

11. From the report of the joint Committee, it is seen that the PP has misrepresented to the SEIAA and SEAC and obtained EC without complete disclosure. The PP also failed to obtain CTE from State PCB before commencing the project, as required in terms of EC conditions. Show-

cause notice was given to the PP by the PCB and CTE was refused. The conclusions of the Committee with regard to these violations are based on record and we see no reason not to accept the same and proceed on that basis. We thus hold that the PP has proceeded to construct the project without valid EC and in terms of judgements of the Hon'ble Supreme Court inter-alia in Alembic Chemicals v Rohit Prajapati and Keystone developers 25 v. Anil Tharthare, in place of directing demolition of the project, the PP has to be required to pay compensation for restoration of the environment.

There is also violation of norms for extracting groundwater.

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

The approach paper of SEIAA is also referred to suggesting that 10% of the project cost be recovered in case the project is completed and 5% where the project is not completed in case there is violation of prior EC.

13. In respect of violation of taking CTE, the Committee has referred to order of the Hon'ble Supreme Court approving damages of Rs. 5 Crore and also referred to a formula of CPCB for calculation of compensation based on the number of days of violation.

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

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

It has been clearly found in the present case that EC was obtained after part construction of the project, there was misrepresentation by the PP 26 and construction of the project was without requisite CTE. In respect of violation in proceeding without CTE, compensation has been assessed at Rs. 5 crores or Rs. 2,91,09,375/- and for the remaining, the assessment of cost has been left to SEIAA or this Tribunal. The project cost has not been specified but according to counsel for the appellant it is not less than Rs.400 crore.

15. Having regard to the entirety of facts and circumstances pointed out above, we determine the total compensation payable by the PP at Rs. 15 crores which may be spent on restoration of environment by preparing an appropriate Environmental Restoration Plan by joint Committee comprising of CPCB, State PCB, SEIAA Maharashtra, and District Magistrate, Pune. The Environment Restoration Plan may be prepared within one month and executed within six months in the manner which may be determined by the joint Committee. The State PCB will be the nodal agency for coordination and compliance. The compensation may be paid by the PP within one month and deposited with the State PCB to be kept in a separate account for restoration of environment as directed above.

16. As regards the directions to conduct functional audit of the SEIAA, Maharashtra, we find that the scope of the audit was modified vide order 08.06.2021 in O.A. No. 13/2021(WZ), Shashikant Vithal Kamble vs. M/s Key Stone Properties & Ors. Accordingly, this aspect will now be examined in the said matter. The said matter is now listed for hearing on 18.07.2022.

17. In view of above discussion, the impugned EC being ex post facto, granting on misrepresentations and conditions of EC having been breached, the same has to be made subject to payment of compensation for restoration of environment as above. The appeal is allowed to that extent.

A copy of this order be forwarded to MoEF&CC, CPCB, SEIAA Maharashtra and Maharashtra State PCB by e-mail.

In view of the order passed above in the main appeal, I.A. No. 56/2021 stands disposed of accordingly.

Adarsh Kumar Goel, CP Sudhir Agarwal, JM Dinesh Kumar Singh, JM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM May 04, 2022 Appeal No. 34/2020(WZ) (I.A. No. 56/2021) SN 28

Unlock Advanced Research with PRISMAI

National Green Tribunal