National Green Tribunal
Sapna Rajaram Melanta vs Namrata Developers Pvt. Ltd Through Its ... on 15 September, 2022
Item No.5 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 35/2019(WZ)
Sapna Rajaram Melanta
.....Applicant(s)
Versus
Namrata Developers & Ors.
....Respondent(s)
Date of hearing: 15.09.2022
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant(s) : Mr. Harshvardhan Melanta, Advocate
Respondent : Mr. Saket Mone along-with Mr. Abhishek Salian,
Advocates for R-1
Mr. Shivshankar Swaminathan, Advocate for R-2
Ms. Manasi Joshi, Advocate for R-7(MPCB)
Mr. Aniruddha Kulkarni, Advocate for R-8
ORDER
1. This application has been moved under Section 14 and 15 read with Section 20 of the National Green Tribunal Act, 2010 with the prayer that Respondent No. 1/Namrata Developers Pvt. Ltd. be directed to stop dumping of construction debris opposite the premises of the Applicant i.e. Plot No. 23/4, House No. 1309, Brindavana situated at Varale Village, Talegaon, Dabhade, District-Pune.
2. It is further prayed that Respondent No. 1 be directed to set-up construction waste collection agencies, otherwise keep such wastes on their premises until the same is handed over to such agencies. Page 1 of 15
3. Further, it is prayed that Respondent No. 2 to 8 be directed to take strict action against Respondent No. 1 according to the law and also prayed that the said place be restituted by cleaning the dumping site.
4. In the body of the application, it is submitted that the Respondent No. 1 has been unscrupulously dumping the waste outside its premises on the neighboring land which is frequented by grazing cows and buffalos and has encroached upon the un-metalled road which links their houses to the main village road. The Respondent No. 1 is dumping its waste on a Government notified grazing land. Despite several legal Notices have been sent to the Respondents, no action has been taken. The Solid Waste Management Rules, 2016, provides a buffer zone of 500 meters from the habitable zone and 200 meters from ponds, lakes and other water bodies. But in the present case, Respondent No. 1 is dumping the debris in the midst of the habitable zone, that too on a pasture land. Rule 4 of the Construction & Demolition Waste Management Rules, 2016 provides for the duties of the waste generator about segregation, sorting and deposition of the waste which is being openly violated by the Respondent No. 1. Hence above prayers have been made.
5. After institution of this Original Application, notices were issued to the Respondents upon which reply affidavits have been filed.
6. The stand of the Respondent No. 1/Project Proponent is as follows:-
(i). The cause of action arose around in the year 2017 when Respondent No. 2 directed the developers in the vicinity of Village Varale to segregate and store their construction waste.
The Respondent No. 1 segregated and stored its construction waste within its premises as directed by the Respondent No. 2 which was utilized for the purpose of levelling the land at Page 2 of 15 Survey No. 27 in Varale Village admeasuring 18.10 Hectare, which is an open grazing land. Out of the whole land, 2.0 Hectare is proposed to be reserved for water treatment plant and solid waste treatment facility, while this application has been filed on 05.03.2019. Hence, it is time barred.
(ii). The ingredients to invoke Section 14(1) and (2) of the National Green Tribunal Act, 2010 are not there in the present case, therefore, the said Provision cannot be invoked.
(iii). It is further submitted that Respondent No. 1 is a partnership firm which purchased the land bearing Survey No. 27A/1/2B, Hissa No. 5, 6 and 7 situated at Village Varale, Taluka Maval, District- Pune, admeasuring 24000 sq. mtrs. and by other Sale- Deed, they have purchased 4,000 sq. mtrs. therefore, in all, they had acquired a total area of 28,000 sq. mtrs. for developing Eco-City from the said plot. All the necessary permissions and sanctions had been obtained and on 19.11.2016, Namrata Eco- City Co-operative Housing Society Ltd. was formed and the Builders handed over all documentation and responsibility of managing the project to the aforementioned society on 16.02.2017.
(iv). Respondent No. 1 purchased the land bearing Survey No. 27/A/1/2B Hissa No. 3 & 4 situated at Village Varale, Taluka. Maval, District Pune, admeasuring 16,000 Sq. Mtrs. Furthermore, the Respondent No. 1 purchased land bearing Survey No. 27/A/1/2B Hissa No. 1 & 2 admeasuring about 8,000 Sq. Mtrs. Resultantly, Respondent No. 1 acquired a total area of 24,000 Sq. Mtrs., being developed as Eco-City 2.0, on Page 3 of 15 the same plot and had taken all the necessary permissions and sanctions. The Consent to Establish was granted by the MPCB on 07.04.2016. On 12.01.2016, EC was granted by State Level Environment Impact Assessment Authority (SEIAA) and thereafter, the Consent to Operate was also granted by MPCB to the Respondent No. 1 on 06.05.2019.
(v). The construction waste generated during construction of Eco- City Phase-I was stored within the premises as stipulated in Rule 4 of the Construction and Demolition Waste Management Rules, 2016 (to be referred in short as C & D Rules of 2016) and was used to back fill the land of the same project.
(vi). The construction of Eco-City Phase-II was started around the year 2016 and its construction waste was also stored within their premises. In the year, 2017, the Respondent No. 2 informed the Respondent No. 1 that there was a resolution passed, pursuant to which direction was given to Respondent No. 1 and other developers in the vicinity to collect, segregate and store the construction waste generated by them, which would be later collected by the Respondent No. 2. Thereafter, the Respondent No. 2 collected such construction waste and dumped at land bearing Survey No. 27 in Varale Village admeasuring 18.10 Hectare, which is an open grazing land. The Respondent No. 1 followed the directions of Respondent No. 2 regarding segregation and collection of the construction waste generated during the construction activity since 2017. The Respondent No. 2 regularly used bulldozer to flatten the construction waste. Respondent No. 1 has denied any violation Page 4 of 15 of the Construction and Demolition Waste Management Rules, 2016.
7. The stand of Respondent No. 2/Gram Panchayat, Varale is as follows:-
(i). The Survey number in question is admeasuring 18.10 Hectares, out of which 2.0 Hectares is reserved for the purposed water treatment plant and solid waste treatment facility as per the Resolution dated 23.08.2017. The said piece of land is uneven, therefore, all the developers in the vicinity were directed to keep and segregate their construction debris, bricks, mortar, etcetera at their premises, etc. which was later on collected by the Answering Respondent to use the construction debris at the aforesaid land so that their expenditure towards the levelling can be minimized. The Answering Respondent has stopped any further collection of debris at the piece of land since July, 2019.
There is total 2 metric tons of waste generated daily within the area of the Panchayat/Answering Respondent and Tractor has been provided for collecting garbage from door to door and to transport the same to the MSW site at Talegaon which is a different place.
8. This Tribunal had constituted a Joint Committee vide order dated 30.07.2019 and the Joint Committee has submitted its report on 31.08.2019 which is as follows:-
" 1) The Committee was comprised of following members-
(i). Shri. Mekale- Mandal Adhikari, Talegaon Dabhade (Representative from the Tahsildar, Maval)
(ii). Shri. S. R. Panchal - Branch Engineer, Panchayat Samiti, Maval (representative of Chairman/ President, Maval Panchay at samiti).Page 5 of 15
(iii). Shri. Upendra Kulkarni - Sub-Regional Officer, MPCB Pune--II (Representative of Maharashtra Pollution Control Board).
2) At the time of the inspection Mrs. K. V. Mohmare -- Talathi, Varale, Shri. Dyaneshwar Devram Marathe, Ex- Sarpanch of village Varale, Shri. S. B. Dhende -- Gramvikas Adhikari, Varale were also present.
3) M/s. Namrata Developers Pvt. Ltd., Survey no.
27/A/1/2B, H. No. 1+2+3+4, village -- Varale, Taluka - Maval, District- Pune is a residential construction project.
4) The said project is divided into 2 phases, out of which construction of Phase-1 is complete and the process of permissions from Environment department is going on. For Phase - II, total plot area is of 20,010.61 Sq. Mtr and Total Built Up Area (BUA) is 51,825.22 Sq. Mtrs.
5) The project proponent has obtained Consent from Maharashtra Pollution Control Board for Phase-II for total plot area of 20,010.61 Sq. Mtr and Total Built Up Area (BUA) is 51,825.22 Sq. Mtr. The Consent is valid till 31/01/2020.
6) The phase-2 contains total 560 flats out of which construction of 400 flats is complete and residents have occupied/ come to live in 85 flats.
7) Total generation of domestic effluent from the said project is 395.22 m3/day. For the treatment of the same Sewage treatment Plant of 410 m3/day capacity is provided. Organic waste Convertor is provided.
8) The open land about which the applicant has stated in the application is open grazing land located adjacent to the Namrata developer's project. There is a public road between the residential project and open grazing land.
9) On this open grazing land construction debris and domestic waste was found.
10) The committee received an information that in Village Varale, total 18.10 hector land is open grazing land. Out of this land, 2 hector land (5 acres) is reserved for water treatment plant and domestic solid waste treatment plant.
11) Mrs. K. V. Mohmare, Talathi, Varale and Panchayat Samiti Member informed that a part of this grazing land is reserved for domestic waste treatment plant and solid waste treatment facility. Levelling of this reserved land is in process. During visit dumping of construction debris was not found.
12) Varale Grampanchayat member informed that for the purpose of levelling of the said reserved land, construction debris is being dumped there.
Page 6 of 15
13) The committee has asked Grampanchayat Varale to produce a letter for reservation of land for solid waste treatment plant and a letter for dumping of debris on the reserved land for levelling purpose. Grampanchayat has submitted a letter in this regard.
14) The committee has asked the Grampanchayat to submit information about total waste dumped on the said grazing land.
15) Gramsevak, Varale informed that approximately 2 MT/day waste is generated from Varale village and it is sent to waste treatment plant run by Talegaon Municipal Council. Residents leaving in nearby habitation of the grazing land dump domestic waste on the grazing land.
16) The committee report is attached and annexed herewith as an Annexure- 1. The letter from grampanchayat is attached and annexed as an Annexure -2.
17) Maharashtra Pollution Control Board has carried out the visit on 26/08/2019 at Respondent No. 1 and observed that the total built up area of Phase-I is 43165.24 Sq Mts. The respondent no. 1 has failed to obtain Consent to Establish and Consent to Operate from MPC Board about phase - 1 project and not obtained Environment Clearance for phase -- 1; not operating secondary treatment of STP provided for phase- II; Respondent no. 1 is not operating Organic Waste Convertor of phase- I; Res. No. 1 is dumping construction debris on grazing / pasture land opposite to project.
18) M.P.C.B. has issued Proposed Direction to Respondent no. 1 for the above mentioned non-compliances on 29/08/2019. A copy of the visit report dated 26/08/2019 and Proposed Direction dated 29/08/2019 is attached and annexed herewith as an Annexure - 3."
9. For the non-compliances noted in the said joint committee's report, the MPCB had issued Notice to the Respondent No. 1 dated 29.08.2019 to show the cause as to why action be not initiated against it for the said violations.
10. Thereafter, the Tribunal passed an order dated 05.09.2019, directing the Committee to submit a report regarding action taken in respect of the violations indicated in the earlier joint committee's report, pursuant to which, the Joint Committee had submitted its report on 25.10.2019, which is as follows:-
Page 7 of 15
"
Sr. Violation Compliance Observation
No.
1. No Environmental In process Project proponent has
Clearance (EC) has been applied for
obtained with respect to Environmental
the phase -1 when the built clearance for phase-1
up area falls within under amnesty
Environmental regime. scheme as per
notification dt.
14.3.2017
MoEF&CC, Govt. of
India.
Work of preparation
of EIA is in process
as per the direction of
the TOR given by
SEAC on 29.3.2019.
The matter will come
to SEIAA for further
action.
2. C & D waste management Complied Project proponent has Rules, 2006 are not stopped dumping of complied with. Respondent debris on pastured No. 1 have been found to land/grazing land. have dumping construction debris on grazing/pasture land opposite the project.
3. Consent to Establish and Complied Project proponent has Consent to Operate for obtained Consent to phase-II has not been Establish on dt.
obtained 7.4.2016 and
Consent to Operate
on 6.5.2019 which is
valid till 31.1.2020.
4. There is gross non- Complied Secondary treatment
compliance in the operation of STP is found in
of secondary treatment of operation.
the STP provided for
Phase-II
5. Organic Waste Convertor of Requireme For phase-II, two Phase-II is not being nt of OWC are installed, operated. Phase-I one is in operation and and it is taking care Phase-II is of current complied. requirement. OWC provided at Phase-I is fully operational.
6. The action taken by MPCB In process MPCB has already regarding aforesaid filed the case in violation is found to be Hon'ble CJM, Pune grossly inadequate and vide No. 1947/15 of unsatisfactory 2015 for phase-I. MPCB has also issued Proposed Direction to the Project Proponent, on 29.8.2019 and Show Cause notice to Grampanchayat Varale, on 4.9.2019.
MPCB is continuously Page 8 of 15 "
monitoring the compliance of above matter.
11. Thereafter, the Tribunal passed an order dated 07.11.2019 observing that the Joint committee's report is silent on the assessment of environmental compensation against the infractions made by the Project Proponent and also with regard to the violation of Construction and Demolition Waste Management Rules, 2016 for both Phase -I and Phase - II of the project, therefore, it was directed that report regarding assessment of compensation be filed by the Committee. In pursuance of this Tribunal's order, a report dated 03.03.2020 was filed by the Joint Committee, which is as follows:-
" 1) It is submitted that in compliance of order dated 07.11.2019, Maharashtra Pollution Control Board (MPCB) and State Environment Impact Assessment Authority (SEIAA) assessed the environmental compensation.
2) The M.P.C. Board has issued direction to Respondent no. 1 to deposit amount of Rs. 2,20,00,000/- (Rs. Two Crore Twenty Lacs/ Two Hundred Twenty Lacs) towards Environment Compensation. The copy of direction is attached herewith as an Annexure- 1.
3) The details of calculations of assessment of environmental compensation is attached and annexed as an Annexure-2.
4) The Maharashtra Pollution Control Board has issued Prosecution Notice to Grampanchayat Varale for allowing developers/builders from Varale Village to dispose construction waste / debris at pasture land located in Varale Village without obtaining authorization from the M.P.C. Board. The Prosecution Notice dated 20/01/2020 is attached and annexed herewith as an Annexure-3.
5) The respondent Board submits that the Respondent no. 1 has made compliance of the Proposed Direction issued by the MPC Board 29/08/2019 and submitted the report with MPCB. The said direction dated 29/08/2019 is already submitted before Hon'ble NGT through report dated 31/08/2019 (Annexure-3 to the said report)."
12. The Respondent No. 1/Project Proponent has submitted additional affidavit dated 01.09.2020, where-in following has been submitted:- Page 9 of 15
"3.4 On 3rd March 2020, the MPCB, in pursuance of the order of this Hon'ble Tribunal dated 7th November 2011, submitted a report to this Hon'ble Tribunal. In the said report, the MPCB has, at Annexure 1, attached the directions issued by it under sections 33A of the Water (Prevention and Control of Pollution) Act, 1974, wherein the MPCB has directed the Respondent No.1 to deposit an amount of Rs 2.20 Cr towards damage caused to the environment. Hereto marked and annexed as Annexure D is a copy of the directions issued by it under sections 33A of the Water (Prevention and Control of Pollution) Act, 1974 dated 3rd March, 2020.
3.5 It is pertinent to note that the quantum of Rs 2.20 Cr. arrived at by the SEAC in its 100th meeting is based on the calculation arrived at and submitted by the Maharashtra Pollution Control Board ("MPCB"). The same is evident on perusal of the report submitted by the MPCB to this Hon'ble Tribunal dated 3rd March 2020, more specifically Annexure 2 to the said report. Hereto marked and annexed as Annexure E is a copy of the Annexure 2 of the report submitted by the MPCB to this Hon'ble Tribunal dated 3rd March 2020, giving details of the calculation of Rs 2.20 Cr. required to carry out remediation and natural and community resource augmentation Plan.
3.6 That in pursuance of the recommendation of the SEAC in its 100th meeting, the State Level Environment Impact Assessment Authority ('SEIAA) was pleased to consider the proposal for grant of EC in respect of the said project in its 190th meeting dated 5th March 2020 and grant Environment Clearance to the said project of the Respondent No.1 in terms of the Notification issued by the MoEF dated 14th March 2017 read with the OM dated 8th March 2020. Such EC was granted on the condition that the Respondent No.1 submits a Bank Guarantee to the tune of Rs. 2.20 Cr., in order to secure the amounts tabulated for Environment Compensation. Accordingly, the Respondent No.1 was granted EC on 13th March 2020. Hereto marked and annexed as Annexure F is a copy of the EC received by the Respondent No.1 dated 13th March 2020.
3.7 That in compliance with the condition stipulated by SEIAA in its 190th meeting, the Respondent No.1, on 13 th March 2020, promptly submitted Bank Guarantee to the tune of Rs 2.20 Cr. in vide Guarantee bearing No. 0506820BG0000341 in the name of the Regional Officer of MPCB. It is pertinent to note that such Bank Guarantee is valid and subsisting till 13th March 2024.Hereto marked and annexed as Annexure G is a copy of the Bank Guarantee submitted by the Respondent No.1 in the name of the Regional Officer of MPCB, dated 13th March, 2020."
13. After having heard the arguments of the Learned Counsel who are present today, we find that though the prayer was limited to the stopping Page 10 of 15 of dumping of construction debris and also related to the compliance of Solid Waste Management Rules and C & D Rules of 2016 but on the basis of joint committee's report, the Tribunal expanded the zone of consideration, directing the Respondent No. 1 to specify as to whether Respondent No. 1 had taken EC and relevant Consent to Establish and Consent to Operate with respect to the said project, out of which the debris is said to have been dumped illegally on area adjacent to the plot of the Applicant. We observe that the record shows that Respondent No. 1 did not have Consent to Establish and Consent to Operate nor EC at the time of beginning the construction of Eco-city Phase I and the EC has been obtained subsequently by it under violation window. From the additional affidavit dated 01.09.2020, it is made clear that the BG of 2.20 crores has been furnished by the Respondent No. 1 in the name of Regional Officer, MPCB, as per the EC conditions. Therefore, we are not looking into any further violations with respect to the Consent to Establish, Consent to Operate and EC as that matter appears to have been settled.
14. It has also come on record that the Respondent No. 1 has stopped dumping the construction waste since July, 2019 as it is reported in the 2nd Joint Committee's report which made inspection of the site on 25.10.2019 and reported that Project Proponent has stopped dumping of debris in the land in question.
15. We find that Rule 4 of the C & D Rules of 2016 placed on the duties of the waste generator which are quoted here-in below:-
"4. Duties of the waste generator -(1) Every waste generator shall prima facie responsible for collection, segregation of concrete, soil and others and storage of construction and demolition waste generated, as directed or notified by the concerned local authority in consonance with these rules.Page 11 of 15
(2) The generator shall ensure that other waste (such as solid waste) does not get mixed with this waste and is stored and disposed separately.
(3) Waste generators who generate more than 20 tons or more in one day or 300 tons per project in a month shall segregate the waste into four streams such as concrete, soil, steel wood and plastics, bricks and mortar and shall submit waste management plan and get appropriate approvals from the local authority before starting construction or demolition or remodeling work and keep the concerned authorities informed regarding the relevant activities from the planning stage to the implementation stage and this should be on project to project basis.
(4) Every waste generator shall keep the construction and demolition waste within the premise or get the waste deposited at collection center so made by the local body or handover it to the authorized processing facilities of construction and demolition waste; and ensure that there is no littering or deposition of construction and demolition waste so as to prevent obstruction to the traffic or the public or drains.
(5) Every waste generator shall pay relevant charges for collection, transportation, processing and disposal as notified by the concerned authorities; waste generators who generate more than 20 tons or more in one day or 300 tons per project in a month shall have to pay for the processing and disposal of construction and demolition waste generated by them, apart from the payment for storage, collection and transportation.
The rate shall be fixed by the concerned local authority or any other authority designated by the State Government.
16. We also find that Rule 6 of the C & D Rules of 2016 provides for the duties of the local authority which are as follows:-
"6. Duties of local authority.- The local authority shall, -
1) issue detailed directions with regard to proper management of construction and demolition waste within its jurisdiction in accordance with the provisions of these rules and the local authority shall seek detailed plan or undertaking as applicable, from generator of construction and demolition waste;
2) chalk out stages, methodology and equipment, material involved in the overall activity and final clean up after completion of the construction and demolition;
3) seek assistance from concerned authorities for safe disposal of construction and demolition waste contaminated with industrial hazardous or toxic material or nuclear waste if any;Page 12 of 15
4) shall make arrangements and place appropriate containers for collection of waste and shall remove at regular intervals or when they are filled, either through own resources or by appointing private operators;
5) shall get the collected waste transported to appropriate sites for processing and disposal either through own resources or by appointing private operators;
6) shall give appropriate incentives to generator for salvaging, processing and or recycling preferably in-situ;
7) shall examine and sanction the waste management plan of generators within a period of one month or from the date of approval of building plan, whichever is earlier from the date submission;
8) shall keep track of the generation of construction and demolition waste within its jurisdiction and establish a data base and update once in a year;
9) shall device appropriate measures in consultation with expert institutions for management of construction and demolition waste generated including processing facility and for using the recycled products in the best possible manner;
10) shall create a sustained system of information, education and communication for construction and demolition waste through collaboration with expert institutions and civil societies and also disseminate through their own website;
11) shall make provision for giving incentives for use of material made out of construction and demolition waste in the construction activity including in non-structural concrete, paving blocks, lower layers of road pavements, colony and rural roads."
Schedule- (III) of the said Rules read with Rule 13 lays down the time frame for implementation of the provisions of the Rules. According to which in the present case, the population being less than 0.5 million, 36 months' time period is provided for implementation of these Rules from the date of its Notification dated 27th April, 2016 and therefore, the period for implementing these Rules, would end on 26th March, 2019 in the present case.
17. In this regard, the Learned Counsel for Respondent No. 2/Gram Panchayat, Varale has drawn attention to the affidavit dated 07.11.2019 wherein it is stated by it that MSW site at Talegaon is being used as the Page 13 of 15 Collection Centre for the construction waste as of now, because they have developed understanding with Talegaon Municipal Council. However, there is no proof even there-of that there is any written permission from the Talegaon Municipal Council, permitting the Respondent No. 2 to use that place for dumping the construction debris.
18. It is stated by the Learned Counsel for the Applicant also that there is no proof that the said MSW site at Talegaon is established as a Collection Centre as stipulated by Rules 4, 6 and Schedule-III read with Rule 13 of the C & D Rules of 2016.
19. As per Schedule-III read with Rule 13 of the C & D Rules of 2016, the Respondent No. 2 was supposed to establish the Collection Centre facility within 36 months from 27.04.2016 i.e. by 26.04.2019 which has now expired long back but it appears that no steps have been taken by it so far. In this regard, Show Cause Notice dated 20.01.2020 was issued by the Maharashtra Pollution Control Board (MPCB) to Respondent No. 2 but what happened thereafter, has not been indicated by the Learned Counsel for the MPCB.
20. We direct the MPCB to take appropriate action against the Respondent No. 2 in respect of ensuring that the Collection Centre is established and other mandates as stipulated in Rules 4, 6 and Schedule-III read with Rule 13 of the C & D Rules of 2016 are also complied with.
21. MPCB shall ensure that the place where the debris was being dumped earlier, is restored to its original position as grazing land and whatever expenditure is incurred in that, will be charged from the Project Proponent/Respondent No. 1.
Page 14 of 15
22. If any party feels aggrieved pursuant to the action taken by the Maharashtra Pollution Control Board (MPCB), we leave it open that the same may approach us for redressal of the grievance.
Accordingly, we dispose of this application.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM September 15, 2022 Original Application No. 35/2019(WZ) P.Kr Page 15 of 15