National Green Tribunal
Ankur vs The State Of West Bengal Represented By ... on 21 December, 2021
Item No. 05 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 32/2021/EZ
(I.A. No.40/2021/EZ, I.A. No.63/2021/EZ & I.A. No.86/2021/EZ)
Ankur Sharma Applicant(s)
Versus
State of West Bengal & Ors. Respondent(s)
Date of hearing: 21.12.2021
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Ankur Sharma, in person
For Respondent(s) : Mr. Rajib Ray, Advocate for R-1,3,5 & 6,
Mr. Surendra Kumar, Advocate for R-2,
Mr. Pritwish Basu, Advocate for R-4,
Mr. Kallol Basu, Advocate a/w Mr. Debnath Ghosh,
Advocate, Ms. Sushovit Dutt Majumder, Advocate, Mr.
Nilanjan Pal, Advocate and Mr. Bhavesh Garodia, Advocate
for R-7 to 11,
Mr. Gora Chand Roy Choudhury, Advocate for R-12
ORDER
1. Mr. Ankur Sharma, applicant is present in person.
2. One Vakalatnama has been filed by Mr. Rajib Ray, learned Counsel on behalf of the Respondent Nos. 1, 3, 5 & 6, State Respondents, Govt. of West Bengal; same is taken on record.
3. The West Bengal Pollution Control Board was directed to file Committee Report which has not been filed till date, however, the Committee Report has been brought on record on affidavit by the private respondents. This however, will not obviate the requirement of filling of the Committee Report by the West Bengal Pollution Control Board on affidavit.
4. An objection has been filed by the Respondent Nos.7 to 11 to the Committee Report constituted by the Tribunal; same is taken on record.
5. One affidavit dated 19.08.2021 has been filed by Respondent No.12; same is taken on record.
6. Two affidavits dated 28.10.2021 has been filed by the Applicant which are taken on record.
1
7. One rejoinder affidavit dated 28.10.2021 has been filed by the applicant;
same is taken on record.
8. One supplementary affidavit dated 28.10.2021 has been filed by Respondent Nos. 7 to 1; same is taken on record.
9. One para wise reply dated 17.12.2021 has been filed by the Respondent No.2; same is taken on record.
10. List on 14.02.2022.
I.A. No. 40/2021/EZ:-
1. This IA has been filed by the Respondent Nos.7 to 11 seeking recall of the Tribunal's order dated 10.06.2021 along with this IA, which is in the nature of an objection of the Respondent Nos.7 to 11 to the report submitted by the Committee constituted by the Tribunal, the report of the Committee has also been filed as Annexure-J, page no. 230 of this IA. The observations, conclusions and recommendations of the Committee Report read as under:
"B. Observation of the Committee during visit of project site on 13.07.2021
1. The applicant mentioned that there were some waterbodies within the project site, but during site visit he was unable to identify the exact locations of the waterbodies.
2. The Committee observed that the building blocks are in various stages of completion. However, no construction activity was goin on during site visit.
3. The Block Land and Land Reforms Officer, Bishnupur-I at Bhasa, South 24 Parganas provided the information of Land Classification of the L.R. plots situated under the area of Swayam City Project as per Present L.R. ROR vide Memo no. Miscellaneous/377/BL&LRO/Bish-1/21 dated 13.07.2021. Conversion certificates were issued from 'Shali' to 'Housing Complex' (Bahutal Abasan) during the year 2015 to 2018.
4. The Enquiry Report provided by the Assistant Director of Fisheries vide Memo No. 352 dated 14.07.2021 mentions that no waterbody was found during inspection and the complainant was unable to provide any such plot no., Khatian no. The report also reveals that the alleged areas does not retain water for more than six months.
5. On examining the four sanctioned building plans it was revealed that the same "KEY PLAN" area for the entire project was shown in each of the four plans and has obtained separate phase wise sanction of building plans in contiguous plots within the said demarcated "KEY PLAN" area.2
6. In this regard, the Committee sough clarification from Zila Parishad, South 24 Parganas vide memo No. 1286-3L/WPB- C(III)/2021 dated 13.07.2021. The response from the ADM & AEO, South 24 Parganas Zila Parishad vide letter no. 493/ZP/BP/21 dated 14.07.2021 is enclosed.
7. The entire 'Swayam City' project site covering all the four phases of development has a single access road from the main abutting road (i.e. Diamond Harbour Road), opposite to Swami Narayan Temple. There is only one entrance gate on the access road for all the four phases. This is also indicated in the sanctioned plans.
8. The representatives of the Respondent No. 7 to 11 present failed to show necessary documentary evidence before the Committee regarding separate Service Plans for Sewage Treatment and Solid Waste Treatment for each of the four phases. They could not produce document regarding permission for water supply/groundwater extraction from the competent authority for the project.
9. During site visit, it was observed that there is no physical demarcation/boundary for the four phases within the project site.
10. No screen cover could be found in any of the building blocks during site visit.
11. Stockpiles of construction materials (sand and stone chips) were found to be lying on ground in uncovered condition.
12. No water sprinkling arrangement could be observed to arrest fugitive dust emission.
13. The project proponent also did not comply the direction of the WBPCB to submit an Environmental Compensation (EC) of Rs.10,00,000/- (Rupees Ten Lakhs) only within 15 days from the date of issue of the direction by the WBPCB.
C. Conclusion and Recommendations After careful consideration of the available records and site inspection, the Committee concludes that the project should be considered as a single development project, being developed in four phases in contiguous plots without any separate boundary and having single access to the abutting road (i.e. Diamond Harbour Road), with cumulative total built up area of 47,741.81 sq.m. which is far above the threshold area (i.e. 20,000 sq.m.) for obtaining necessary Environment Clearance from the State Environment Impact Assessment Authority (SEIAA) and Consent to Establish from the WBPCB.
The construction activities conducted till the date of site visit without obtaining prior Environmental Clearance and Consent to Establish is a serious non-compliance to the EIA Notification vide S.O. No. 1533 (E) dated 14.09.2006 issued by the MoEF&CC, Govt. of India and the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981.
The Committee also assessed the Environmental Compensation for the above non-compliance and damage caused to the 3 environment, without taking prior environmental clearance, as Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only). The detailed assessment of Environmental Compensation, as per the "Report of the CPCB in-house Committee on Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund" in response to order of the Hon'ble NGT dated 03.08.2018 in OA No. 593/2017(PB).
Therefore, the Committee makes the following recommendations:
1. All construction and development activities inside the entire 'Swayam City' project area at Mouza Bhasa, Touzi No.14, Opposite Swaminarayan Temple, P.S. Bishnupur, South 24 Parganas, PIN-743503 should remain completely suspended till they obtain Environmental Clearance and Consent to Establish.
2. The project proponent should also submit an Environmental Compensation of Rs. 4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) for causing damage to the environment."
2. The Committee has computed Environmental Compensation of Rs.4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only).
3. Mr. Kallol Basu, learned Counsel has objected to the methodology of computation of this amount of Rs.4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) on the ground that the total period of construction has been counted from 04.07.2017 up to 13.07.2021 i.e. 1469 days.
4. The learned Counsel submits that the date of the building plan and its issuance is different for different projects as would be clear from the letter of the West Bengal Pollution Control Board dated 13.07.2021 addressed to the Additional District Magistrate & District Land & Land Reforms Officer, page no. 228 of the paper book.
5. The Committee Report also shows land in question is shaili water body in the strict sense of the term and that it is covered by water only for six months of year and this land has already been converted from shaili to Bastu.
6. He further submits that the formula for computing Environmental Compensation has been applied blindly presuming 100% occupancy of 4 the tower even though on ground level there is no occupancy because the project is not complete.
7. Mr. Kallol Basu further submitted that the environmental clearance has not been taken by the Respondent Nos.7 to 11 and that he shall be applying for the same.
8. The amount of Rs. 10,00,000/- (Rupees Ten Lakhs only) as imposed by the Committee has not been deposited for which Mr. Kallol Basu submits that the same shall be deposited by tomorrow on the instructions of his client who is present in court.
9. We direct the West Bengal Pollution Control Board to re-examine the issue of calculating the Environmental Compensation in a scientific and practical manner.
10. Considering the above facts, we do not find any good ground for allowing the I.A. No.40/2021/EZ filed by the Respondent No.7 to 11 for recall of the Tribunal's order dated 10.06.2021.
11. However, considering the fact that we have directed the West Bengal Pollution Control Board to revise the computation of Environmental Compensation, we direct that the payment of the sum of Rs.4,13,15,625/- (Rupees Four Crore Thirteen Lakhs Fifteen Thousand Six Hundred Twenty Five only) by way of Environmental Compensation shall remain in abeyance till a decision is taken by the West Bengal Pollution Control Board in this regard.
12. I.A. No.40/2021/EZ is accordingly rejected. I.A. No.63/2021/EZ:-
1. This application will be considered at the time of final hearing.
I.A. No. 86/2021/EZ:-
1. I.A. No. 86/2021/EZ has been filed by the Applicant praying therein that contempt proceedings be initiated against the private builders for proceeding with making of construction in violation of the interim order of this court of status quo.
5
2. We direct the West Bengal Pollution Control Board to file a reply to this I.A. No. 86/2021/EZ within four weeks.
3. The Respondents Nos.7 to 11 shall also his reply to the I.A. within four weeks.
..................................... B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM December 21, 2021 Original Application No. 32/2021/EZ (I.A. No.40/2021/EZ, I.A. No.63/2021/EZ & I.A. No.86/2021/EZ) MN 6