National Green Tribunal
Maj Gen Harpreet Singh Bedi (Retd) vs Shri Vijay Singh on 14 February, 2023
Item No. 04
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 61/2020 (CZ)
Maj. Gen. Harpreet Singh Bedi (Retd.) & Ors. Applicant(s)
Versus
Shri. Vijay Singh, Dwarkadheesh
Haveli Builders & Ors. Respondent(s)
Date of hearing: 14.02.2023
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
For Applicant(s): Mr. Maj. Gen. Harpreet Singh Bedi
For Respondent(s) : Mr. Deepesh Joshi, Adv.
Mr. Om Shankar Shrivastav, Adv.
Ms. Parul Bhadoria, Adv.
ORDER
1. For the negligence of those to whom public duties have been entrusted can never be allowed to cause public mischief.
2. Article 39 E, 47 and 48 A of the Constitution of India cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment. It was by reasoned of the lack of effort on the part of the enforcement agencies, notwithstanding adequate laws being in placed, there are air pollution, water pollution and noise pollution in the city. One of the basic principle underlying environmental law is that of sustainable development. This principle requires such development to take place which is ecologically sustainable and the essential features of 1 sustainable development are:-
i. the Precautionary Principle (ii) the Polluter Pays Principle and the authorities are duty bound to take necessary action on the point.
3. A strong ammonia smell had been noticed by a resident in the water being supplied from a bore-well next to block 4A and 4B, multistory apartments of the colony and when the matter was brought to the notice of the authority concerned, it was ignored and not taken care of. Untreated sewage from one half of the Dwarka Dham Colony is being released in the open place. The Sewage Treatment Plan next to the exit of this sewage is defunct and not connected to the sewage outlet and does not appear to have been activated ever. The sewage is further being flown towards the bore-well and it is evident that seepage of sewage is contaminating the ground water and there is no provisional treatment plant there. The fundamental right guaranteed under Article 21 of the Constitution of India provides that none shall be deprived of his life without due process of law but by supplying the polluted water for drinking purposes and discharge of sewage and untreated water in open land or the river/water bodies are causing health hazard and it is indirectly depriving good health and life of the citizens residing there. The issue raised in this application is very serious in nature whereby the applicant has raised the issue that the sewage/untreated water is being discharged in open place or in the water bodies in Dhwarka Dham Colony of Karond Bypass Road, Badwai Colony, Bhopal and polluted water is being supplied for the drinking purposes causing serious diseases to the citizens.
4. The matter was taken up on 17.08.2020 and a committee 2 headed by Collector Bhopal was constituted to submit a report on the points. It was further directed that the authorities must ensure the directions and guidelines issued in Original Application No. 673/2018 vide order dated 06.12.2019 ensuring that 100% treatment of sewage may be done and in case of default, environmental compensation at the rate of Rs. 5,00,000/- (Rupees five lakh) per month per drain must be paid and realized according to law. The Joint Committee visited the spot and submitted the factual report which is contained and discussed in the order dated 21.09.2020 which is as follows :
"Before visit to the site the committee discussed the details of the order and the responsibility entrusted to the committee by Honourable National Green Tribunal the contents of the order. As per para 11 of the order dated 17/08/2020 "The Committee is directed to visit the place and submit the action taken report within four weeks. The State PCB will be the nodal agency for coordination and logistic support." Further the Hon'ble NGT in para 14 directed the committee "We also direct the committee to submit a report on the following points:-
(i) The total no of drains were untreated/Sewage water is being discharged in the lake or river bodies in Bhopal.
(ii) Total no of STPs installed there.
(iii) Quantity of water being used by the residents in the city of Bhopal.
(iv) Total capacity to treated the water.
(v) The gape between the used and capacity to treat.
(vi) Future planning of Municipality to meet out the gape and make proper arrangements for treatment of the water.
(vii) Action taken against the polluters who are discharging the water, sewage & untreated water in to 3 the river bodies & causing water pollution & contaminating the underground water.
(viii) It is directed that Municipal authorities to ensure that no solid waste be thrown in to the open space and there should be no discharge of untreated/sewage water in to the water bodies or in the open space & any one violating the norms and any violation of this order should be taken seriously in accordance with the order passed by the principal bench of this tribunal in O.A. No. 148/2016: Mahesh Chandra Saxena v. South Delhi Municipal Corporation & Ors. Vide order dated 21.05.2020. "
Applicant Shri. Major General H.S. Bedi & Ors. Office bearer of Dwarkadham Resident Welfare Society, Bhopal explained the matter to the committee members and informed that STP of Township is not commissioned till date even after the handing over of apartments to the residents welfare society. Shri Bedi informed the steps taken by him to raise the issue before the developer and various government organizations. The committee took the bird eye view of the area from top of the one of the tower in the colony and observed that STP is totally defunct and lots of bushes/grass was grown around it. The committee also observed that stinking untreated sewage was found in stagnant condition near STP and in open land besides the applicants residence block. Shri Bedi also informed that due to stagnation of untreated sewage nearby the tube well supplying water to their building is contaminated it is verified from water analysis report obtained from Local Laboratory.
Further, PCB Officials, informed that the developer has not obtained consent to establish from MPPCB and EC from SEIAA hence its application was rejected. In response to the complaint dated 20.05.2020 made by the applicant in the Board, the Officers from Regional Office, MPPCB Bhopal inspected site on 23.05.2020 and found that the complaint is right & based on the 4 observations, M.P. Pollution Control Board issued show cause notice dated 22.07.2020 to the developer (Annexure-III) under section 15 of Environment Protection Act, 1986 & under section 33-A of Water (Prevention and Control) Act, 1974 & 31A of Air (Prevention and Control) Act, 1981 and due to inaction by developer, a criminal case is filed against the developer in the court of Judicial Magistrate (I), Bhopal, on 31/08/2020 under section 15 of Environment Protection Act, 1986 & under section 25 & 44 of Water (Prevention and Control) Act, 1974 & 37 & 39 of Air (Prevention and Control) Act, 1981. (Annexure-IV) Recommendations: After detailed site visit and discussions, following are the recommendations: --
1. Project Proponent shall immediately stop the water supply from the polluted bore well and seal the same.
2. Project proponent to make alternate safe water supply arrangements for affected residents.
3. Project Proponent shall obtain environmental clearance from SEIAA MP under EIA Notification, 2006.
4. Project Proponent shall obtain consent to establish and consent to operate from State Pollution Control Board under section 25 of Water (Prevention and Control) Act, 1974 & 21 of Air (Prevention and Control) Act, 1981.
5. The projection proponent shall rectify the STP on priority and make it functional at the earliest.
6. Project Proponent shall immediately clear the blockage of drain/nallah for free flow of water.
Action Taken Report:
1. Project proponent has not obtained consent to establish and consent to operate from State Pollution Control Board under section 25 of Water (Prevention and Control) Act, 1974 & 21 of Air (Prevention and Control) Act, 1981 hence Board has filed criminal case against the Project Proponent for violation of Environmental Laws (Annexure-IV).5
2. District Administration has initiated action against Project Proponent under section 133 of CRPC 1973.
3. Details of the drains and future plan of the Municipal Corporation is as per Annexure-V."
5. The Tribunal observed as follows :
"3. It is surprising that the Project Proponent completed the building without any order of Competent Authority and without an environmental clearance within the capital of the State and the public functionaries to whom duties to control the illegal construction and illegal discharge of contaminated untreated sewage water are entrusted failed to monitor and check it. The Regional Officer of State Pollution Control Board also failed to exercise his duty to take immediate action and also failed to calculate the environmental compensation which was to be realised by the Board according to law. It reflects that the authorities are indirectly permitting the illegal construction, illegal extraction of groundwater without the valid permission of Central Ground Water Authority and it is complete negation of rule of law. "
"4. When the law protector becomes the law violators, how law will be protected. The basic principle of rule of law is to follow rule/ law and not to break or violate it. For the negligence of those to whom public duties have been entrusted can never be allowed to cause public mischief."
And further directions were issued as follows : 6
i. The Municipal Commissioner is directed to immediately monitor and ensure the supply of pure water to the residents and in case it is not being supplied by the Project Proponent, the Municipal Commissioner to ensure the supply of water subject to the cost to be recovered from the Project Proponent.
ii. We constitute a Committee consisting
one representative from the Central
Pollution Control Board, one representative from State Pollution Control Board and one representative from Central Ground Water Authority to calculate the amount of environmental compensation for violation of Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention And Control Of Pollution) Act, 1981, extraction of groundwater without permission from Central Groundwater Authority.
iii. The Project Proponent to show cause as to why an amount of Rs. 50 lakhs be deposited as a performance guarantee for compliance of the requirement of the law and if no reply is submitted before the date fixed the order may be passed accordingly."
"11. Accordingly, we direct the representative of Central Pollution Control Board, State Pollution Control Board and Central Ground Water Authority to immediately calculate the environmental compensation and report within 10 days."
"12. The Respondent- Project Proponent to show cause as to why the construction which was raised without permission from the Competent Authority or without any environmental clearance, and as to why the construction be not declared as unauthorised 7 and necessary action be initiated according to law.'' "13. The Municipal Commissioner is directed to ensure that no untreated sewage water, be discharged into the open place or into the river bodies and free flow of drain / nala be immediately maintained.''
6. In compliance thereof, the Central Pollution Control Board, State Pollution Control Board, Central Ground Water Authority submitted the report which was discussed with vide order dated 15.10.2020 which is as follows :
"3. Further, (i) Central Pollution Control Board, (ii) State Pollution Control Board, and (iii) Central Ground Water Authority have submitted the Joint Report with regard to the environmental compensation regarding the project and environmental damage caused by respondent no.1 which is narrated as follows:
"3.3 Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority:
BIS 15-1172:1993 suggests that for communities with population above 100,000, minimum of 150 to 200 lpcd of water demand is to be supplied. Further, 85% of return rate (CPHEEO Manual on Sewerage and Sewage Treatment Systems, 2013}, may be considered for calculation of total sewage generation in a city. CPCB Report on "Performance evaluation of sewage treatment plants under NRCD, 2013", describes that the capital cost for 1 MLD STP ranges from 0.63 Cr. to 3 Cr. And O&M cost is around Rs. 30,000 per month. After detail deliberations, the Committee suggested to assume capital cost for STPs as Rs. 1.75 Cr/MLD (marginal average cost). Further, expected cost for conveyance system is assumed as Rs. 5.55 Cr./MLD (marginal average cost) and annual O&M cost as 10% of the combined capital cost. Population of the city may be taken as per the latest Census of India. Based on these assumptions, Environmental Compensation to be levied on concerned ULB may be calculated with the following formula:8
EC= Capital Cost Factor x [Marginal Average Capital Cost for Treatment Facility x (Total Generation-Installed Capacity) + Marginal Average Capital Cost for Conveyance Facility x (Total Generation -Operational Capacity)]+ O&M Cost Factor x Marginal Average O&M Cost x (Total Generation- Operational Capacity) x No. of Days for which facility was not available + Environmental Externality x No. of Days for which facility was not available Alternatively;
EC (Lacs Rs.)= [17.5{Total Sewage Generation - Installed Treatment Capacity)+ 55.5{Total Sewage Generation- Operational Capacity)] + 0.2(Sewage Generation-Operational Capacity) xN + Marginal Cost of Environmental Externality x (Total Sewage Generation-Operational Capacity) X N Where; N= Number of days from the date of direction of CPCB/SPCB/PCC till the required capacity systems are provided by the concerned authority.
Quantity of Sewage is in MLD"
Environmental Compensation Rate (ECRGw) for illegal use of Ground Water:
The committee decided that the Environmental Compensation Rate (ECRGw) for illegal extraction of ground water should increase with increase in water consumption as well as water scarcity in the area. Further, ECRGw are kept relaxed for drinking and domestic use as compared to other uses, considering the basic need of human being. As per CGWB, safe, semi-critical, critical and overexploited areas are categorized from the ground water resources point of view (CGWB, 2017). List of safe, semi-critical, critical and over-exploited areas are available on the website of CGWB and can be accessed from http://cgwanoc.gov.in/LandingPage/NotifiedAreas/C ategorization0f Assessment Units. pdf#ZOOM=150. Environmental Compensation Rates (ECRGw) for illegal use of ground water (ECRGw) for various purposes such as drinking/domestic use, packaging units, mining and industrial sectors as finalized by the committee are given in tables below:
ECRGw for Drinking and Domestic use:9
Drinking and Domestic use means uses of ground water in households, institutional activity, hospitals, commercial complexes, townships etc. Sr. Area category Water consumption (m3/day) No <2 2 to <5 5 to >25 25 & abov e Environmental Compensation Rate (ECRGw) in Rs./m 3 1 Safe 4 6 8 10 2 Semi critical 12 14 16 20 3 Critical 22 24 26 30 4 Over-exploited 32 34 36 40 Minimum ECgw=Rs. 10,000/- (for households)and Rs. 50,000 (for institutional activity, commercial complexes, townships etc) The committee also gone through the guidelines prepared by CPCB (Annexure-V) for assessment of environment compensation and also the guidelines published by CGWA vide GoI notification dated 24/09/2020. The formula for "Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority" is well suited above for the concerned project as CPCB guidelines and as narrated above in the order but for assessment of environment compensation for ground water abstraction for drinking purposes is not given in the CGWA guidelines hence the methodology given in the order by the Hon'ble NGT is adopted for assessment.
The committee after study of the guidelines and order draw out the following parameters for assessment of the environment compensation:
1. Water consumption per day
2. Total Sewage Generation
3. Installed Treatment Capacity
4. Operational Capacity of STP 10
5. N= Number of days from the date of direction of CPCB/SPCB/PCC
6. Marginal Cost of Environmental Externality
7. Area Category for ground water abstraction as CGWA Since the Dwarkadheesh Haveli Builders (Dwarkadham) did not obtained consent from MPPCB and permission for ground water abstraction from CGWA hence the requisite data/documents or the information for assessment of the environment compensation based on above parameters are not available. Therefore the committee decided to visit the site and interact with the applicant and respondent at site itself. The committee visited the project on 29/09/2020. During visit to the project, apart from committee members' applicant Major General H.S. Bedi (Retd.) and respondent Shri Vijay Singh were present.
The committee after discussion with the office bearers of the Dwardham Residents Welfare Society and the developer along with study of the guidelines on NBC, CGWA, CPCB in view of the order dated 21/09/2020, draw out the following parameters for assessment of the environment compensation:
1. Water consumption per day: The developer has 07 bore wells out of which 04 (01 No. 8HP-6stage and 03 Nos. 6HP-4stage) are being used rest are standby in case of any eventuality or failure of pumps of operating bore wells. These bore wells are not fitted with water meters. The developer has one 50 KL capacity storage tank which is being filled five times a day hence total water used per day for domestic and parks etc is 250 KL/day.
2. Total Sewage Generation: as per discussion 11 with the developer and the society members' alongwith applicant about 252 Families (Annexure-VI) are occupying the houses and average 5 persons/family are considered residing presently. Considering National Building Code for domestic water supply about 150 LPCD water is being required, totaling about 190 KLD. As per CPHEEO manual out of domestic consumption about 80% generates as sewage. Hence total Sewage generation would be 0.152 MLD.
3. Installed Treatment Capacity: During visit the sewage treatment plant (STP) created by developer was found defunct and even connections were not made for sewage to enter in the treatment system. As per discussion and information given, the capacity of STP is 200 KLD however no technical design and sizes are provided.
4. Operational Capacity of STP: During visit, the STP was found defunct and even connections were not made for sewage to enter in the treatment system. Hence for environmental compensation calculation point of view operational capacity was considered as nil.
5. N= Number of days from the date of direction of CPCB/SPCB/PCC: After receipt of complaint and visit of the site by M.P. Pollution control Board issued show cause notice on 10th June, 2020 (Annexure-VII) hence as per guidelines and the directions number of days calculated from 10th June, 2020 for estimation of environmental compensation. Hence up to 30th September, 2020 number days are - 113 days.
6. Marginal Cost of Environmental Externality :12
As per the guidelines CPCB for calculation of environmental compensation for "Discharge of Untreated/Partially Treated Sewage by Concerned Individual/ Authority" and the order dated 21/09/2020 the Marginal Cost of Environmental Externality is taken as minimum 0.05 and maximum 0.10 for sewage up to 200 MLD. Hence for calculation of the environmental compensation Marginal Cost of Environmental Externality is taken as maximum Rs. 0.1 Lacs/day.
7. Area Category for ground water abstraction as CGWA : As per the CGWA guidelines and categorisation done, this area falls under -
Semi-critical category.
EC calculations:
The committee discussed the matter of air pollution from the township, there is no specific source of air pollution in the township however the member from MPPCB informed that the Board has filed prosecution against the builder under Water Act 1974, Air Act 1981 and Environment (Protection) Act 1986. Hence the committee decided to calculate EC for Sewage disposal and ground water abstraction. The details are as follows:
1. EC for sewage treatment -
EC (Lacs Rs.)= [17.5{Total Sewage Generation - Installed Treatment Capacity)+ 55.5{Total Sewage Generation-Operational Capacity)] + 0.2(Sewage Generation Operational Capacity) x N + Marginal Cost of Environmental Externality x (Total Sewage Generation-Operational Capacity) X N EC (Lacs Rs.)=[17.5(0.152-0)+55.5(0.152-
0)]+0.2(0.152-0)X113+0.1X(0.152-0)X113 EC(LacsRs.)=[2.66+8.436+3.435+1.1725] EC (Lacs Rs.)=15.7035 Lacs.
13 Note: Since the STP of the township is not functional hence the EC shall be continued till developer reports the same to the Hon'ble NGT.
2. EC for Ground water abstraction Total ground water abstraction by the builder for the project is about 190 KLD. Area Category for ground water abstraction as CGWA guidelines falls under - Semi-critical category. The rate for this category is Rs. 20lm3. EC rate:190X 20 Rs./KL:3800 Rs./day.
As per order of Hon'ble NGT in the matter of OA No. 17612015 dated lIl09l20l9 para- "21. The Committee has given following recommendations:
1. In case of fixation of liability, it always lies with curent owner of the premises where illegal extraction of groundwater is taking place.
2. Violation duration may be assumed as at least one year in case where no evidence for period of installation of borewell could be established."
The committee during visit and discussion with developer could not get the exact date of establishment of bore wells hence the period of EC for ground water abstraction has been considered from the date of above order i,e. 11.09.2019 to 30.09.2020. The calculations are as follows:-
Total EC GWA = EC rate X days Total EC GWA = Rs. 3800/day X 384 days = Rs. 14.592 Lacs.
Recommendations:14
Environmental compensation calculated based on the order of Hon'ble National Green Tribunal and the guidelines of CGWA & CPCB the details are as follows:
1. Environment Compensation for Discharge of Untreated/Partially Treated Sewage by Concerned Individual Authority- Rs. I 5.7035 Lacs
2. ECGWA for Drinking and Domestic use: Rs. 14.592 Lacs. Total Environmental compensation is Rs. 30.2055 Lacs."
"4. Respondent no. 1 has submitted the reply that construction was without EC and the reason as stated by the respondents are that initially there was a proposed construction of 600 units and out of which approximately 300 units are already constructed. M/s Ashram Homes and Colonizer (P) Ltd. is a company incorporated under the provisions of Companies Act and carrying out the business of construction of residential area. It is further submitted that the township is developed on 54.20 acres of land and total built up areas as stated is less than 1,50,000 sqmtr. It is further submitted that including cultural hall, health centre, school, multiplex, services for area for public and places of worship i.e. totalling 1,27739.45 sqmtr.
The reply submitted by the respondent is to the effect that he was advised that the EC is not required and thus the EC was not obtained. Further, establishment of Sewage Treatment Plant (STP) to treat 400 KLD of waste water was submitted before the Madhya Pradesh State Pollution Control Board 15 (MPPCB) but it was not allowed and the version of the respondent is that the permission should be deemed to be permitted in accordance with the provisions contained in Section 25 of the relevant Act. For the extraction of the ground water, it is stated that the borewell was existing prior to 1990 and thus it was not deemed to take permission from the Central Ground Water Authority (CGWA). The version as stated by the respondent is not tenable.
Ignorance of law is no excuse. The advice against the provision of law cannot be made ground in defence."
"5. Applicant has not taken any permission under Water (Prevention & Control of Pollution) Act, 1974 Air (Prevention & Control of Pollution) Act, 1981, permission from Central Ground Water Authority as deemed permission and proceeded according to his wishes without taking care of all rules, provisions and environmental laws and permission from the competent authority. The action as stated was being done as there is no authority to control the respondent for his activities.
The dumping of the solid waste and the discharge of untreated water into the premises which was reported by the joint committee has been replied that these are from the neighbouring or the residential colony adjacent to the place under question. It is further submitted that the respondent reserves his right to further reply and also made a request to direct the committee to further visit and report. The conduct of the respondent no.1 shows that he want that the matter should be kept pending. The 16 pendency of the application cannot be indirect permission to the respondent for continuing him his activities or continuing the pollution."
"6. The action and construction is not only disregard to the law but it is negation of the authority of the State by the public official doing the act and expending the budget in accordance with their wishes. An action specifically punitive action does lie for doing what the legislature has authorized if it is done negligently carelessly and in violation of the law.
Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. Any act by any officer in violation of the rules is abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury. The servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides 17 protection against it. He who is responsible for it must suffer it. Compensation or damage as explained earlier may arise even when the officer discharges his duty mala-
fidely and not in accordance with the guidelines, when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.
Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the outlook."
9. Learned Counsel for the MoEF&CC had submitted that since occupancy and residential accommodation have been started to allot for residential purposes from 2012 and it continued upto 2015 and thus, the compensation under The Environment (Protection) Act, 1986 for violation of Rules should be counted from 2012 onward. The direction was issued to the Statutory Authorities to recover the compensation according to law.
10.Learned Counsel appearing for the Central Pollution Control Board (CPCB) has submitted that vide letter/correspondence 18 dated 23.10.2020 an information was given to the project proponent /Respondent no.1 for deposition of Environmental Compensation with details of the account but the same has not been deposited till date. In response to the letter, an information has also been submitted to the Registry of this Tribunal that the two banking accounts which were in operation by the respondent no. 1 was in demitted to have been seized by the Income Tax Department and the project proponent has expressed inability to deposit the environment compensation on account of the fact that the accounts of the project proponent have been attached. The accounts are not sufficient, the CPCB is directed to proceed with the recovery of the environmental compensation according to law.
11. Applicant Maj. General Harpreet Singh Bedi has submitted several affidavit of the retired army personnel of the rank of Colonel and other residents with the facts that the deficiency which have been narrated by the applicant in the affidavit are correct and the project proponent has not taken any environmental clearance from the competent authority for the project and there is violation of Water (Prevention and Control of Pollution) Act, 1974 Air (Prevention and Control of Pollution) Act, 1981 and the sewage and untreated water is being discharged openly in the open ground, causing bad smell as well as health hazards to the persons residing there. They have also stated that the provisions for the drinking water has not been made.
12.Bhopal Municipal Corporation has submitted a proposed action plan for implementation of part of the direction with regard to 19 free flow of drain nallah, provision of portable water, rain water harvesting and other facilities which are required for civilians. It is for the Bhopal Municipal Corporation and Authorities concern to proceed according to law and provide the necessary facilities. So far as, this project is concern every expenditure which shall be incurred by the Bhopal Municipal Corporation for the completion of the work shall be recovered from the project proponent in addition to the environment compensation.
13.Respondent no. 1 has submitted the reply that he had applied for supply of Narmada water connection to the said township in the year 2014, but due to certain reasons or protest of the inhabitants of the said township the said connection has not been completed. It has further been submitted that the Municipal Corporation Bhopal had agreed to pay the monthly charges for such consumption and the same can be immediately resumed and water through the aforesaid pipeline and water can be restored in the residential area. It has further been submitted that four bore- wells being utilised for the supply of water can be subjected to examination by an independent government agency. The matter with regard to supply of water or utilisation of four bore-wells for extraction of ground water is for the Competent Statutory Authority to decide according to law, but if there is a extraction of ground water without the authority and permission from Central Ground Water Authority (CGWA), the same is subject to EC conditions. The contention is that the STP is not operational due to theft of machinery is not tenable and not subject matter of this Tribunal. Accordingly, the reply of the show cause notice is neither sufficient nor satisfactory.
14. Contention of the learned counsel for the respondent that no formal 20 application was submitted by the respondent before the Central Ground Water Authority on the bona-fide belief that no such permission could be required in respect of existing tube-wells, is erroneous and not tenable.
15.It is reported that 600 numbers of dwelling units have already constructed and expected number of units as stated to be increased are about 1000. The said township is surrounded by some colonies and adjoining township of the respondent was already constructed prior to the start of constructions of the township and the said colonizer is dumping the untreated sewage water inside the township of the answering respondent. The contention of the respondent no. 1 is that he will ensure the STP would be functional within four weeks or any other panel of experts may be sent to ascertain the quality of the ground water are baseless and not tenable. Accordingly, the application to recall the order dated 21.09.2020 is malafide and without any ground thus, rejected.
I.A. no. 109/2020 is disposed of accordingly.
16. Essentiality of Environmental Clearance was discussed in Civil Appeal No. 4035-4037 of 2020 by Hon'ble Supreme Court of India in the case of National Highway Authority of India vs. Pandarinathan Govindarajulu & Anr. reported LL2021 SC26 as follows :
"4. Section 3 of the Environment (Protection) Act, 1986 empowers the Central Government to take all such measures for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. One of the measures provided in Section 3 (2) (v) is restriction of areas in which any industries, operations or processes or class of industries shall not be carried out or shall be carried out subject to certain safeguards. The Environment (Protection) Rules, 1986 were made in exercise of power conferred by Sections 6 and 25 of the Environment (Protection) Act, 1986. According to Rule 5, the Central Government may prohibit or 21 restrict the location of industries and the carrying on of processes and operations in different areas.
5. In exercise of the power conferred on the Central Government by Sub-Clause (i) and Clause (v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Clause (b) of Sub rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, the Ministry of Environment and Forests, Government of India issued a Notification on 14.09.2006 directing construction of new projects or activities or the expansion or modernization of existing projects or activities listed under the Schedule to the Notification shall be undertaken only after prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority........."
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"8. A statutory rule or Notification is to be treated as a part of the statute.[1982]2scc 205. Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, are to be of the same effect as if they are contained in the Act, and are to be judicially noticed for all purposes of construction or obligation [1961] scr (2) 679. The principles of interpretation of subordinate legislation are applicable to the interpretation of statutory Notifications. [2011]6 SCC 545 If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver."
"9. It has been repeatedly held by the Court that where there is no ambiguity in the words, literal meaning has to be applied, which is the golden rule of interpretation. The words of a statute must prima facie be given their ordinary meaning.[2002] 3 SCC 722."
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"18. While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other 22 words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment [Indian council for enviro-legal action v union of India [1996]5scc 281]. The traditional concept that development and ecology are opposed to each other is no longer acceptable [Vellore citizens welfare forum v. union of India [1996]5scc 647]."
"19.Apart from providing smooth flow of public goods and services which contribute to the economic growth, highways also benefit regional development in the country. In the normal course, impediments should not be created in the matter of National Highways which provide the much-needed transportation infrastructure. At the same time, protection of environment is important."
"46. In a constitutional framework which is intended to create, foster and protect a democracy committed to liberal values, the rule of law provides the cornerstone. The rule of law is to be distinguished from rule by the law. The former comprehends the setting up of a legal regime with clearly defined rules and principles of even application, a regime of law which maintains the fundamental postulates of liberty, equality and due process. The rule of law postulates a law which is answerable to constitutional norms. The law in that sense is accountable as much as it is capable of exacting compliance. Rule by the law on the other hand can mean rule by a despotic law. It is to maintain the just quality of the law and its observance of reason that rule of law precepts in constitutional democracies rest on constitutional foundations. A rule of law framework encompasses rules of law but it does much more than that. It embodies matters of substance and process. It dwells on the institutions which provide the arc of governance. By focusing on the structural norms which guide institutional decision making, rule of law frameworks recognize the vital role played by institutions and the serious consequences of leaving undefined the norms and processes by which they are constituted, composed and governed. A modern rule of law framework is hence comprehensive in its sweep and ambit. It recognizes that liberty and equality are the focal point of a just system of governance and without which human dignity can be subverted by administrative discretion and 23 absolute power. Rule of law then dwells beyond a compendium which sanctifies rules of law. Its elements comprise of substantive principles, processual guarantees and institutional safeguards that are designed to ensure responsive, accountable and sensitive governance."
"47. The environmental rule of law, at a certain level, is a facet of the concept of the rule of law. But it includes specific features that are unique to environmental governance, features which are sui generis. The environmental rule of law seeks to create essential tools - conceptual, procedural and institutional to bring structure to the discourse on environmental protection. It does so to enhance our understanding of environmental challenges - of how they have been shaped by humanity's interface with nature in the past, how they continue to be affected by its engagement with nature in the present and the prospects for the future, if we were not to radically alter the course of destruction which humanity's actions have charted. The environmental rule of law seeks to facilitate a multi- disciplinary analysis of the nature and consequences of carbon footprints and in doing so it brings a shared understanding between science, regulatory decisions and policy perspectives in the field of environmental protection. It recognizes that the 'law' element in the environmental rule of law does not make the concept peculiarly the preserve of lawyers and judges. On the contrary, it seeks to draw within the fold all stakeholders in formulating strategies to deal with current challenges posed by environmental degradation, climate change and the destruction of habitats. The environmental rule of law seeks a unified understanding of these concepts. There are significant linkages between concepts such as sustainable development, the polluter pays principle and the trust doctrine. The universe of nature is indivisible and integrated. The state of the environment in one part of the earth affects and is fundamentally affected by what occurs in another part. Every element of the environment shares a symbiotic relationship with the others. It is this inseparable bond and connect which the environmental rule of law seeks to explore and understand in order to find solutions to the pressing problems which threaten the existence of humanity. The environmental rule of law is founded on the need to understand the consequences of our actions going beyond local, state and national boundaries. The rise in the oceans threatens not just maritime communities. The 24 rise in temperatures, dilution of glaciers and growing desertification have consequences which go beyond the communities and creatures whose habitats are threatened. They affect the future survival of the entire eco-system. The environmental rule of law attempts to weave an understanding of the connections in the natural environment which make the issue of survival a unified challenge which confronts human societies everywhere. It seeks to build on experiential learnings of the past to formulate principles which must become the building pillars of environmental regulation in the present and future. The environmental rule of law recognizes the overlap between and seeks to amalgamate scientific learning, legal principle and policy intervention. Significantly, it brings attention to the rules, processes and norms followed by institutions which provide regulatory governance on the environment. In doing so, it fosters a regime of open, accountable and transparent decision making on concerns of the environment. It fosters the importance of participatory governance - of the value in giving a voice to those who are most affected by environmental policies and public projects. The structural design of the environmental rule of law composes of substantive, procedural and institutional elements. The tools of analysis go beyond legal concepts. The result of the framework is more than just the sum total of its parts. Together, the elements which it embodies aspire to safeguard the bounties of nature against existential threats. For it is founded on the universal recognition that the future of human existence depends on how we conserve, protect and regenerate the environment today."
"48. In its decision in Hanuman Laxman Aroskar vs Union of India,[2019] 15 SCC 401 this Court, recognized the importance of protecting the environmental rule of law. The court observed:
"142. Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our ecosystem.
"143. Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many 25 instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement -- both in developed and developing countries alike ...
"156. The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution."
"49. In its first global report on environmental rule of law in January 2019, the United Nations Environment Programme ("UNEP") has presciently stated:
"If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on the books and in practice and is key to achieving the Sustainable Development Goals.
Successful implementation of environmental law depends on the ability to quickly and efficiently resolve environmental disputes and punish environmental violations. Providing environmental 26 adjudicators and enforcers with the tools that allow them to respond to environmental matters flexibly, transparently, and meaningfully is a critical building block of environmental rule of law."
"50. The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends a case-by-case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognized principles that could inform environmental adjudication in a manner that was stable, certain and predictable. In an article in the Asia-Pacific Journal of Environmental Law (2014), Bruce Pardy describes this conundrum in the following terms:
"Environmental regulations and standards typically identify specific limits or prohibitions on detrimental activities or substances. They are created to reflect the principles and prohibitions contained in the statute under which they are promulgated. However, where the contents of the statute are themselves indeterminate, there is no concrete rule or set of criteria to apply to formulate the standards. Their development can therefore be highly political and potentially arbitrary.
Instead of serving to protect citizens' environmental welfare, an indeterminate environmental law facilitates a utilitarian calculus that allows diffuse interests to be placed aside when they are judged to be less valuable than competing considerations."
"51. However, even while using the framework of an environmental rule of law, the difficulty we face is this - when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations."27
"52. In an article in the Georgetown Environmental Law Review (2020), Arnold Kreilhuber and Angela Kariuki explain the manner in which the environmental rule of law seeks to resolve this imbroglio:
"One of the main distinctions between environmental rule of law and other areas of law is the need to make decisions to protect human health and the environment in the face of uncertainty and data gaps. Instead of being paralyzed into inaction, careful documentation of the state of knowledge and uncertainties allows the regulated community, stakeholders, and other institutions to more fully understand why certain decisions were made."
The point, therefore, is simply this - the environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law."
"54. In a recent decision of the Court in Bengaluru Development Authority vs Sudhakar Hegde 2020 scc online sc 328, the Hon'ble Supreme Court held:
"107. The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade-off between the two. The protection of the environment is an inherent component of development and growth...
"108. Professor Corker draws attention to the idea that the environmental protection goes beyond lawsuits. Where the state and statutory bodies fail in their duty to comply with the regulatory framework for the protection of the environment, the courts, acting on actions brought by public spirited individuals are called to invalidate such actions...
"109. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and 28 transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place."
"55. In Lal Bahadur vs State of Uttar Pradesh [2018 ]15 SCC 407 , the Court underscored the principles that are the cornerstone of our environmental jurisprudence, as emerging from a settled line of precedent: the precautionary principle, the polluter pays principle and sustainable development. This Court further noted the importance of judicial intervention for ensuring environmental protection. In a recent decision in State of Meghalaya & others vs All Dimasa Students Union,[2019] 8 SCC177 this Court reiterated the key principles of environmental jurisprudence in India, while awarding costs of Rs. 100 crores on the State of Meghalaya for engaging in illegal coal mining.
The UNEP report (supra) also goes on to note:
"Courts and tribunals must be able to grant meaningful legal remedies in order to resolve disputes and enforce environmental laws. As shown in Figure 5.12, legal remedies are the actions, such as fines, jail time, and injunctions, that courts and tribunals are empowered to order. For environmental laws to have their desired effect and for there to be adequate incentives for compliance with environmental laws, the remedies must both redress the past environmental harm and deter future harm."
[[[[ "58. The above discussion puts into perspective our decision in the present appeals, through which we shall confirm the directions given by the NGT in its impugned judgment. The role of courts and tribunals cannot be overstated in ensuring that the 'shield' of the "rule of law" can be used as a facilitative instrument in ensuring compliance with environmental regulations." 29
"60. In Goel Ganga Developers India Pvt. Ltd. vs Union of India [2018] 18 SCC 257, the Court dealt with a situation in which the project proponent had engaged in construction that was contrary to the environmental clearance granted to it. Coming down on the project proponent, a two-judge bench, held as follows:
"64. Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law. However, in the present case we feel that damages should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and authorities. Instead of 12 buildings, he has constructed 18; from 552 flats the number of flats has gone up to 807 and now two more buildings having 454 flats are proposed. The project proponent contends that he has made smaller flats and, therefore, the number of flats has increased. He could not have done this without getting fresh EC. With the increase in the number of flats the number of persons residing therein is bound to increase. This will impact the amount of water requirement, the amount of parking space, the amount of open area, etc. Therefore, in the present case, we are clearly of the view that the project proponent should be and is directed to pay damages of Rs 100 crores or 10% of the project cost, whichever is more."
"63........... The Court in State of M.P. vs Centre for Environment Protection Research & Development, [2020] 9 SCC 781 held as follows:
"41. The Tribunal constituted under the NGT Act has jurisdiction under Section 14 of the said Act to decide all civil cases where any substantial question relating to environment including enforcement of any right relating to environment is involved and such question arises out of the implementation of the enactments specified in Schedule I to the said Act, which includes the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986.
"42. In view of the definition of "substantial question relating to environment" in Section 2(1)(m) of the NGT Act, 30 the learned Tribunal can examine and decide the question of violation of any specific statutory environmental obligation, which affects or is likely to affect a group of individuals, or the community at large.
"43. For exercise of power under Section 14 of the NGT Act, a substantial question of law should be involved including any legal right to environment and such question should arise out of implementation of the specified enactments.
"44. Violation of any specific statutory environmental obligation gives rise to a substantial question of law and not just statutory obligations under the enactments specified in Schedule I. However, the question must arise out of implementation of one or more of the enactments specified in Schedule I."
17. It cannot be disputed that no development is possible without some adverse effect on the ecology and environment, and the projects of public utility cannot be abandoned and it is necessary to adjust the interest of the people as well as the necessity to maintain the environment. A balance has to be struck between the two interests. Where the commercial venture or enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience and benefit to a larger section of the people has to get primacy over comparatively lesser hardship.
18. This indicates that while applying the concept of "sustainable development" one has to keep in mind the "principle of proportionality"
based on the concept of balance. It is an exercise in which we have to balance the priorities of development on one hand and environmental protection on the other hand.
19. The perusal of the Joint Committee Report and the pronouncement of the Hon'ble Supreme Court and of this Tribunal makes it clear that fundamental to the outcome of the case is a quest for environmental 31 governance within a rule of law. Environmental Governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensure the health of our eco system. The rule of law requires a regime which has effective accountable and transparent institutions. It has been held in various pronouncements that when the project proponent has violated the law with impunity, he cannot be allowed to go scot free. The calculation of environmental compensation under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention And Control Of Pollution) Act, 1981 is separate and if there is any construction without environmental clearance or in violation of the condition of environmental clearance the calculation of environmental clearance has been given to M/s Goel Ganga Developers India Pvt. Ltd. Vs. Union of India [2018] 18 SCC page 257 where it has been held that damage should be higher keeping in view the totally intransigent and unapologetic behaviour of the project proponent. He has manoeuvred and manipulated officials and Authorities. He has constructed so many flats 600 to 1000 and contented that he was in apprehension that no environmental clearance is required though he could not have done with this without getting environmental clearance. With the increase in the number of flats, the number of persons residing therein is bound to increase. This will impact the amount of water requirement the amount of parking space, the amount of open area etc. Therefore, as held in M/s Goel Ganga Developers India Pvt. Ltd. case we are of the view that the project proponents should be directed to pay damages to the tune of 10 percent (%) of the project cost. Accordingly, we direct the authorities concerned to calculate the environmental compensation at the rate of 10 percent (%) of the project cost which will be environmental compensation for violation of condition of environmental clearance or violation of Environmental Law.
20. Applicant Maj. Gen. Harpreet Singh Bedi is present and argued that the saving of hard pay and salary, which was paid to most of the retired army 32 personnel on the cost of their life, serving in the Army while posted in the remote area or sensitive area or and the border area, was spended and deposited and credited to the account of builder for their peaceful living after the retirement but the builders have illegally, fraudulently cheated them and provided the building without any living facility. He has further submitted that, on the previous occasion the respondent no. 1 has assured that within 15 days the STP will be functional but nothing has been done except white-washing of the area. There is still discharge of untreated sewage water into the open place, situation is at the same, which was at the time of filing of the application till today morning while learned counsel for the respondent no. 1 has submitted that, some improvements have been done but due to lockdown no current position can be narrated and respondent no. 1 has submitted that Municipal Corporation should be directed to examine and the report. It is further submitted by the applicant that still there is a blockage of nallah, there is false statement and affidavit by the respondent no. 1 there is a continuous supply of contaminated water to the residents causing health hazard and adversely affecting the healthy life of senior citizens, retired personnel. State Pollution Control Board has submitted that the environmental compensation has been calculated but the same has not been paid by the violator of the law. The State Pollution Control Board can proceed according to law.
21. Learned counsel appearing for the respondent no. 1 has submitted that previous order should be recalled and further stated that while maintaining the STP, some persons lodged the First Information Report (FIR), materials or some items needed for functioning of the STP were removed in which police personnel intervened.
22. The perusal of the Joint Committee report, reply and the violation of environmental law, as narrated and discussed above reveal that an Expert Committee is required to calculate and realize the environmental 33 compensation and to suggest the remedial measures. Accordingly, we constitute a committee consisting :-
i. One representative from MoEF&CC
ii. One representative from Center Pollution Control Board
iii. One representative from MP State Environmental Impact Assessment Authority (MPSEIAA) iv. One representative from Madhya Pradesh Pollution Control Board.
23. With the direction to calculate the environmental compensation of 10 percent(%) of project cost as narrated above in light of the M/s Goel Ganga Developers India Pvt. Ltd. case discussed above and also to ensure the realization of the environmental compensation under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention And Control Of Pollution) Act, 1981 as calculated by CPCB and direct that an amount of EC be deposited in the account of CPCB in accordance with the provisions contained in National Green Tribunal Act, 2010 and The Public Liability Insurance Act, 1991. The amount of environmental compensation so deposited may be used and expended for the environmental purposes within the State of Madhya Pradesh, subject to submission of plan by the State Pollution Control Board to the CPCB and its approval. Recommendation of the committee headed by the Collector Bhopal as mentioned above must be followed and action taken report be filed by the Collector, Bhopal within 15 days. Recommendation of the committee headed by CPCB above must be given effect to and implemented in accordance with law and action taken report be filed by CPCB within 15 days. Environmental compensation must be calculated with effect from the date as discussed and reported by MoEF&CC. Environmental compensation in light of Goel Ganga Case must be calculated and realized by the violator of law/ project proponent. The facility of water charges and its connection shall be dealt with in accordance with the local municipal law for which Municipal Corporation is directed to proceed in accordance with the municipal laws. 34
24. The Committee is directed to visit the place and submit the factual and action taken report within six weeks. The State PCB will be the nodal agency for coordination and logistic support.
25. The report in the matter be filed by the Committee by email at ngtczbbho- [email protected] in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.
26. In compliance thereof the Central Pollution Control Board has submitted the report on 01.07.2021 with the following facts :-
"In this regard, Central Pollution Control Board (CPCB), Regional Directorate, Bhopal vide letter no. RD/BPLINGT- 6112020 (CZ)/05-08 dated 21.06.2021 communicated the same to Respondent No. 1, but till date NO response regarding the deposition of the EC cost of Rs. 30.2055 Lakhs received from Respondent No. 1 i.e. Shri Vijay Singh, Dwarkadheesh Haveli Builders in compliance of the order of the Hon'ble NGT."
27. The Joint Committee as referred above has submitted the report which is as follows :-
"During the second visit, following were present apart from the above-mentioned Committee Members:
Col. Sanjay Pande and Col. Shashi Kumar on behalf of the petitioner.
Major General H.S. Bedi, Shri Vijay Singh, respondent and developer of the colony alongwith Shri Soni, Supervisor Shri H.S. Malviya, Superintending Engineer HO, MPPCB and Shri Adarsh Malviya, Assistant Engineer (C), RO MPPCB, Bhopal The following points were noted and discussed during the visit -
1. It was (As) informed by Shri Vijay Singh, Dwarkadheesh Haveli Builders that about 300 KLD water is being supplied at present for the domestic use of the residents of Dwarkadham Colony.
2. The civil construction works of the 250 KLD STP consisting of 08 covered tanks of different capacity, 35 01 no. Pressure Sand Filter and 0l no. Activated Carbon Filter tank were completed.
3. No section for Bar screen/Screening chamber was found installed at the STP. Instructions were given to the Supervisor to install a mechanical screening chamber.
4. 03 motors of capacity 2HP have been installed for transfer of sewage.
5. 01 compressor machine of capacity 15HP has been installed for aeration. Instructions were given to the developer to install standby compressor and pumps.
6. Sludge drying system was not found on the site.
The developer Shri Vijay Singh informed that filter press has already arrived at site and same will be installed prior to commissioning of STP.
7. Instructions were also given to lay a pipeline for re- use of treated wastewater.
Subsequent to the site visit, a meeting was held with the respondent No. 1 and the representatives of the applicant at the site of the developer. During the course of discussion, Shri Vijay Singh furnished the copy of the RERA permission & Certificate before the committee which is valid upto 31.12.2022 and the same was noted to be issued on 15.09.2017. The committee took a project profile from the RERA web site. The status of the project as per RERA site is on-going. The committee requested the respondent as well as the representatives of the petitioner to intimate the start of connections to the screen chamber and subsequent sewage feeding to the STP.
The MPSEIAA representative, Shri J.P. Namdev informed that this is a case of violation under EIA notification and it was delisted due to lack of details in application. Status of application as per MPSEIAA website is "Case delisted vide letter no.1673-74/SEIAA/15 date 06-06-15. Case relisted vide letter no. 3401-02/SEIAA/15 date 10-07-15, SEAC make a site visit and established whether the case falls in the violation category or not, decided in 271st SEIAA meeting dated l5-12-15. File return to SEIAA for further action in 278 SEAC meeting dated 14.06.2016. Case was in abeyance in 346 SEIAA meeting dated 27-06- 36
16. It was decided in the 352 SEIAA meeting dated 08-07- 16, that till date the final notification has been issued by MoEF&CC and therefore case will continue to be kept in abeyance. Case closed in 417 SEIAA meeting dated 20-03- 17, Case closed vide letter no. 5771-72/SEIAA/17 dated 31-03-17."
The representative of the applicant and the supervisor of the developer informed on 17.07.2021 that screen chamber is made and sewage line is connected with STP.
The committee deliberated various directions of Hon'ble NGT in the order dated l6/06/2021 during the site visit and made the following observations and recommendations:
1. The committee based on the documents and records of MPSEIAA & MPPCB, project requires Environment Clearance which project proponent has not obtained till date.
2. The committee deliberated on the parameters to be considered for assessment environment compensation as per the Apex Court Order dated 10th August, 2018 in the matter of the M/s Goel Ganga Developers India Pvt. Ltd., as directed in order dated 16/061202l in the matter of OA 61/2020 by Hon'ble National Green Tribunal, M.P. and finalized to take into account the construction costs and the land costs available on the RERA website for arriving at the project cost. During the course of discussion, time period to be counted for arriving at environment compensation was also discussed but the committee opined that the compensation evaluation from 2012 is redundant as the same is to be evaluated on the basis of project cost in light of the Apex Court's verdict in the matter of M/s Goel Ganga Developers India Pvt. Ltd. As per the documents available on RERA website and duly certified records of by RERA, the estimated cost of construction is Rs.16625.23 Lacs and cost of land is Rs. 539.0 Lacs. Thus, the total cost of project is Rs. 17164.23 Lacs. As per the M/s Goel Ganga Developers India Pvt. Ltd., Case referred in the order dated 16.06.2021, environment compensation at the rate of 10% of project cost has to be paid for violation of environment clearance or violation of environmental law. Accordingly, an amount of Rs. 1716.423 Lacs has been assessed as the environment 37 compensation to be paid by the project authorities in the present case and the same has been directed to be deposited in the account of Central Pollution Control Board in accordance with the provisions contained in National Green Tribunal Act, 2010 and 35 the Public Liability Insurance Act, 1991.
3. It was noted that the environment compensation levied by previous committee and accepted by Hon'ble NGT is not realized or deposited to CPCB even after reminder dated 02/07/2021. During the site visit, Shri Vijay Singh the project developer informed the committee that their accounts are still sealed and conveyed their helplessness to deposit the environment compensation levied.
4. As the bank account of the project proponent are ceased and in the absence of other alternatives to recover the environment compensation already levied, the committee opined that in such condition the environment compensation may be recovered under the provisions of Revenue Recovery Act, 1890.
Action Taken Report:
1. After due persuasion with the developer, the STP was made functional partially to ensure treatment of sewage bereft of sludge dewatering system.
2. Further, the developer has been asked to install filter press for STP sludge dewatering and use the same as manure in the premises. In addition to the above, a final collection tank with disinfection system shall also be erected before the water can be recycled/reused for greenbelt development. A dedicated pipeline network shall be laid for recycle/reuse of treated sewage for the greenbelt development.
3. A three-tier thick peripheral greenbelt shall be created around the STP to promote cleaner environment and promote noise cancellation from the noise generated due to operation of compressors and pumps. The entire STP area shall be paved/created to prevent any accidental spillages from seeping into ground due to failure of pumps etc. A compound wall shall also be erected all around the STP area.
4. MPPCB shall monitor the performance of STP.38
5. The treated effluent from the STP shall be monitored through an MOEF approved/NABL accredited laboratory on a monthly basis by the project proponent and the copy of the test reports shall be furnished to MoEFCC IRO Bhopal, MPSEIAA, CPCB, RD Bhopal and MPPCB.
28. The matter was taken up on 03.08.2021, and Tribunal observed as follows:
The applicant present personally submitted that some steps have been taken for the functioning of STP and also to ensure for providing the water from the Narmada Scheme, the Project Proponent is trying to request and moving an application for providing the water to the residents from the Narmada Scheme. It has further been submitted by the learned counsel for the project proponent that the respondent no.
1 is trying to carry out the direction issued by the Tribunal and also expressed ensurance that no untreated water shall be discharge in the open place. Accordingly, the remedial measures which have been suggested by the Joint Committee must be taken and carried out within a time frame. Learned counsel for the respondent (Project Proponent) has sought four weeks time to carry out the directions and compliance of the report submitted by the Joint Committee. The same may be executed within fortnight.
29. The SPCB has submitted the Action Taken Report as follows:
i. The STP of capacity 250 KLD was found in operation and all units of the STP were found functional at the time of inspection.
ii. It is observed that the sewer line is connected with the STP and sewage is reaching though sewer line to STP.
iii. As informed by the supervisor of the developer, the wastewater generated from 128 household units of the society is being brought to the STP for its treatment.
iv. The STP unit constructed at site includes Bar screen, homogenization tank (2 nos.), bio reactor tank (2 nos.), holding 39 cum settling tank, filter press for sludge removal, activated carbon filter (ACF) and pressure sand filter (PSF).
v. The developer has completed the construction of an inlet chamber of dimensions approx. 6 x 6 (ft.). Plumbing connections are yet to be made to connect the inlet chamber to the STP.
vi. One coarse mesh screen of approx. size 4 x 3 (ft.) of mesh spacing approx. 1 inch has been installed at the pre-existing inlet chamber unit which is cleaned manually.
vii. Disinfection of the treated wastewater with the help of Sodium Hypochlorite is being done manually.
viii. The colony area is comparatively larger and therefore treated wastewater will be reused in the plantation and washing of roads through pipe network. Transportation of treated wastewater with the help of tankers for the purpose of gardening and other uses of the society is proposed as an interim arrangement.
ix. The stagnation of untreated sewage in the area near to the tube well mentioned in the petition is not observed during inspection.
30. The applicant in person argued that the direction has been issued by the authority for use of treated waste water for plantation and transportation with the help of tankers for the purpose of gardening and other uses of society but action is required to be taken by the project proponent or the authorities concerned. It is further argued that during rainy season there are collection of water and no provision has been made for draining the rainy water through pipeline or any means connecting any drainage system.
31. The matter of storage of potable water and blockage of Nallah, causing disturbance in free flow of natural water was referred to the PCB for taking necessary action.
32. The members of the PCB visited the site on 30.03.2022 and submitted the report as follows:40
"The observations noted by the team during the inspection dated 30.03.2022 are stated as follows:
1. The STP of capacity 250KLD based on MBBR technology was found in operation. The mechanical, electrical and plumbing connections of all the units of STP have been completed and labeling of all the units of the STP has been furnished by the builder. Kaccha approach road is also constructed to reach the STP.
2. RCC work of inlet chamber is found completed and two coarse bar screens have been installed at the inlet chamber of size 6x6ft. The sewage line is connected with the chamber and flow is observed in the chamber.
3. The connection of filter press unit for handling of STP sludge is completed and filter press is now operative.
4. The photographs taken during the inspection are attached as per Annexure - 1.
As per above the status of sewage treatment plant and the units of STP observed during inspection dated 30/03/2022, the action taken by the Builder is presented in the form of a table. In this table the works which were found incomplete during the inspection dated 10.01.2022 and for which as per the order of Hon'ble NGT an action plan is required to be prepare and the status observed during the inspection dated 30.03.2022 are give as under:
Sr. no Recommendations in reference to Remedial measures observed inspection dated 10.01.2022 during inspection dated 30.03.2022 1 Dedicated tanker and pipeline should be Tanker is arranged and pipe line arranged in time bound manner to is laid down for the utilization of completely utilize treated wastewater in treated waste water of STP in gardening. the garden of the society. A pipeline of diameter 2.5 inches and approx. length 900ft. has been laid down from STP to 41 garden area 2 Remaining work of inlet chamber of 6x6 Construction work of inlet feet should be completed at the earliest to chamber of size 6x6 ft has been avoid any situation of overflow of completed and no sewage sewage. overflow like situation was observed. The sewage pipe line is connected with the chamber.
3 Disinfection system should be installed at Disinfection unit was found
the earliest. installed and operative at
treated waste water tank unit in
the STP, Regulated dosage of
Sodium Hypochloride as
disinfectant is added in the
treated wastewater storage tank
through this arrangement.
4 Regular cleaning and maintenance of STP For regular operation and
should be done by the builder. Connection maintenance of STP a team of 03
of filter press should be done at the employees are deputed by the
earliest. builder. The team consists of
STP Operator & Supervisor, Site
Engineer and Site Supervisor.
The letter submitted by builder is
attached as Annexure-II. Filter
press is found connecetd and
operative.
5 Proper gradient of nearby nallah should At the time of inspection, all the
be maintained and it should be cleaned in units of STP were found
regular intervals to ensure the free-flow of functional and no overflow of
surface run-off. untreated sewage was found in
the surrounding area. Nearby
nallah was found dry and no
accumulation of sewage was
found in the nallah.
6 Time-bound proposal is required to be As per the inspection dated
submitted by the builder to resolve the 30.03.2022, the shortcomings
shortcomings found during inspection. have been completed by the
builder in due course of time.
42
In view of above, all the work mentioned in the report is completed by the builder and it is found satisfactory. The sewage treatment plant is operational and the treated waste water is being used for gardening purposes. A Legal sample of treated wastewater were collected by officials of RO MPPCB, Bhopal on 24.03.2022 from the STP outlet and as per the analysis report the parameters were found under the limits which indicates that the STP is functioning properly."
33. The applicant in person filed the status with the objection that:
(a) The construction of the sump to store, pre-treat and further Supply potable water to residents was carried out after repeated delays and the same was reported to the Hon'ble Tribunal during the hearing on 12 Oct 2022 by the Applicant, Maj Gen Harpreet Singh Bedi (Retd), appearing in person.
(b) Current State. The sump however, has collapsed even\ before it could be filled fully apparently because of faulty design and construction. The photographs of the collapsed wall of the sump are at Annexure A15.
(c) The Learned Counsel for the Respondent No 1, Shri Manav 'Tanwani had stated during the hearing on 12 Oct 2022 that an Action Taken Report has been filed the previous day. However, no report is found filed in the case till date.
(d)The Applicant has also earlier prayed for the Bhopal Municipal Corporation (BMC) to help resolve the issue in the Proposed Action Plan for Implementation of Part of the Directions of the Hon'ble NGT forwarded to the Commissioner BMC on 21.10.2020 and uploaded on the NGT website.
34. In response to the objections raised by the applicant the learned counsel for the Respondent/Project Proponent has submitted that to ensure proper supply of portable water, the Respondent No.1 has 43 constructed a waterproof tank having a capacity of two lakh litres. To ensure that the water is supplied to the residents residing in multi storied buildings, a water pump of 5 horse power has been installed. In addition to the above, the tank has been covered by way of fabricated sheets so that the water inside the tank does not get contaminated. In addition to the above, the Respondent No.1 has also installed a stair inside the tank to ensure timely cleaning of the same. The above mentioned compliance has also been communicated to the Applicant in the instant case and the Applicant has shown his complete satisfaction to the work done. Thus, the Respondent No.1 has complied with the order passed by the Hon'ble Tribunal to the best of its capabilities and to the satisfaction of the residents of the society.
35. The Municipal Corporation was directed to visit the site and submit the report and the Municipal Corporation argued that the sump well was constructed around 5.5 feet from the ground whereof, eastern wall of the sum well was found reconstructed in recent times. The sump well is being filled up through ground water. At the time of inspection aprox one fifth of the sump well was filled with water. The debris of the earlier fallen wall is required to be utilized properly which was left abandoned besides the wall and the respondent has also proceeded to observe the functioning of the STP installed nearby to cater the treatment of domestic sewage/waste water generated by the society. The STP was found operating at the time of visit. However, regular maintenance of in situ pipelines and cleanliness of tanks are required to improve the efficiency of the treatment plant.
36. During the course of hearing today, the applicant in person has submitted that the Municipal Corporation or the Project Proponent should ensure the sump to store the water and not to be damaged due to weak quality if any and it should be ensured that in case of any damage, it should be repaired. Learned counsel for the project proponent and the 44 Municipal Corporation has submitted that the necessary action shall be taken in accordance with the rules by the person concerned.
37. On the point of availability of the drinking water, Learned counsel for the Project Proponent has submitted that an amount of approximately more than two lakhs rupees had been deposited to the BMC for the connectivity of Narmada water supply and the connection of pipe has been constructed up to the colony. For further needful to supply Narmada water to the apartments, the residents are required to move an application to the BMC with requisite fees for supply of water.
38. Learned Counsel Sh. Om Shankar Shrivastava appearing for the Municipal Corporation has submitted that the arrangement for supply of water in all the areas of Bhopal through Narmada Water Supply System has been made and it is for the residents to apply for the connection after payment of requisite fees. The applicant raised the issue of technical defect of the sump where the water is to be collected for supply to the upper floors. All these matters are internal matters which can be sorted out by the BMC, Resident Association and the Project Proponent. The requisite application with fees as required by the BMC rules be deposited to the office of the BMC and the authorities are expected to proceed in accordance with rules.
39. As of now, nothing survives accept the contention of the Applicant in person that the STP should be ensured to be functional according to rules and potable water should be supplied to the residents of the colonies, so that they should not feel any difficulty in residing not only due to the reason that they have been allotted the flat but also on humanitarian ground and since they are the citizens of the city thus municipal corporation is also bound to supply the water in accordance with rules, and after payment of some connection issues which are in the domain of the municipal corporation which can be resolve by the negotiations or by filing the application by the applicants. 45
40. Bhopal Municipal Corporation may timely visit the site and see the sumps which have been prepared and after refilling also ensures that there should not be any technical defect. Learned counsel for the project proponent had submitted that the matter of imposition of environmental compensation by the State Pollution Control Board should be reconsidered by recalling the order, but during the course of argument it was further argued that since the aggrieved person has right to appeal against the order passed by the authorities of SPCB, thus, we direct the State Pollution Control Board to see the matter and consider the application filed by the project proponent on the issue and pass an appropriate order after giving an opportunity of hearing. Anyone aggrieved by the order passed by the State Pollution Control Board have a statutory remedy by filing the application or appeal in accordance with rules.
41. In view of the above observations, we direct the Municipal Corporation and State Pollution Control Board to strictly follow the rules and to ensure that no untreated water should be discharged into the open land or in water bodies and in case there is any violation of environmental rules, proper necessary legal action must be initiated in accordance with rules.
42. With these observations, the original application No. 61/2020 is finally disposed of.
Sheo Kumar Singh, JM Dr. A Senthil Vel, EM 14th February, 2023 O.A. No. 61/2020(CZ) PU 46