National Green Tribunal
Atana Flat Owners And Residents ... vs Tamil Nadu Pollution Control Board on 14 July, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 106 of 2020 (SZ)
IN THE MATTER OF
Atana Flat Owners and Residents Association
Regn. No.80 of 2018
Rep. by its Secretary Mrs. G. Anitha,
Vandalore - Walajabath Road,
Karanithangal Village,
Kancheepuram District 602 105.
...Applicant(s)
Versus
1. The District Environmental Engineer
Tamil Nadu Pollution Control Board,
Plot No.CP-5B, SIPCOT, Oragadam,
Sriperumbudur Taluk,
Kancheepuram District - 602 105.
2. M/s. Arun Excello Construction LLP
Rep. by its Managing Director
Bhattad Towers, II Floor,
No. 18, West Cott Road,
Royapettah, Chennai 600 014
3. The Chairperson
State Level Environment Impact Assessment Authority (SEIAA)
Govt. of Tamil Nadu
Panagal Maligai, 3rd Floor,
Saidapet, Chennai 600 015.
(R3 Impleaded as per order in I.A. No.56/2020 dated 21.07.2020)
...Respondent(s)
For Applicant(s): Mr. R. Prabhakaran
For Respondent(s): Mr. Sai Sathya Jith for R1.
Mr. AR.L. Sundaresan, Senior Advocate along
with Ms. R. Kamalarani for R2.
Mr. G.M. Syed Nurullah Sheriff for R3.
Page 1 of 44
Judgment Reserved on: 05th April 2022.
Judgment Pronounced on: 14th July 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Whether the Judgement is allowed to be published on the Internet - Yes.
Whether the Judgement is to be published in the All India NGT Reporter - Yes.
JUDGMENT
Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The grievance in this application is regarding the violations committed by the 2nd respondent builder in carrying out the residential apartment complex known as "Arun Excello Atana".
2. The applicant is an association formed in the year 2018 by the owners of the Atana Flats consisting of 198 flats which was constructed by the 2nd Respondent. The members of the applicant association had entered into Sale Agreements for the purchase of undivided share of land and also a construction agreement. The residents of the flats are Middle Class Working Community. During the year 2018, the builder faced sewage water overflow problem and sewage water from Sewage Treatment Plant ran into nearby lake. The applicant association approached the builder and sought for resolution of the problem since there was no reference in the construction Agreement for the usage of tankers for carrying the sewage generated by the applicant members. There are three other major residential complexes namely "Vasantha", "Megha" and "Madhuliga" near the applicant‟s residential flat complex which were also constructed by the same builder. The sewage water flew from applicant flat complex and other nearby flat complexes stagnated on the road. The local body Page 2 of 44 had also restricted the movement of sewage water by raising the ground level. One Mr. Saravanan who was appointed as Maintenance Contractor had discontinued the maintenance work stating that his contract was over with the builder with effect from June 2019. The sewage water started oozing out from other three complexes on the road. Though, STP was installed in the applicant residential complex, there was no passage for letting out the water. Various representations were made to the Tamil Nadu Pollution Control Board, Revenue Divisional Officer, Sriperumbudur, Tahsildar and District Collector and also the Police for taking action against the builder for the violations committed by them. In the meantime, the 1st respondent Pollution Control Board had issued a show cause notice dated 19.05.2020 signed on 27.05.2020 received by the applicant association on 09.06.2020 vide Proc. No.DEE/TNPCB/SPR/ Complaint/CR.No.5443-2020-1 stating that a complaint was received regarding illegal discharge of untreated sewerage and during inspection on 19.05.2020, the same was confirmed alleging that this was in violation of Sections 24 and 25 of the Water (Prevention and Control of Pollution Act) Act, 1974 as amended in 1988 and called upon the applicant to show cause within 15 days as to why direction should not be issued under Section 33A of the said Act for closure and stoppage of supply of power, etc.
3. The applicant submitted reply dated 17.06.2020 requesting the 1st respondent to furnish a copy of the complaint and the inspection report which were relied on by them and only on receipt of such documents, they could be able to file their detailed reply but the 1st respondent did not furnish those documents. In the show cause notice, the following things were observed:-
a. The residential apartment had provided individual STP and the same has not been operated continuously and efficiently to treat the sewage generated from the apartment.
b. The STP provided is not adequate and the actual generation of sewage is higher than the capacity of the STP provided. c. The STP had not been maintained with adequate MLSS in the aeration tank and seems to be in a septic condition. There was no dewatering system provided in the STP.Page 3 of 44
d. There was no adequate area for utilizing the treated sewage for green belt development. The residential apartments has not made any provision for utilizing the treated sewage for toilet flushing purpose.
e. The untreated sewage generated from the residential flats is pumped and discharged into public storm water drain which leads to stagnation on nearby roads, water bodies, etc. thereby polluting the soil/groundwater/surface water and also creating nuisance to the local residents.
4. The 2nd Respondent had made to believe that they had obtained necessary approval and compliance for operating the project, not only of the applicants residential complex but also the other adjacent three residential complexes, which have more than 1200 residential accommodations. Believing the assurances given by the 2 nd respondent, the members of the applicant‟s association had purchased the flats by raising the funds by taking loans and utilizing their post retirement benefits.
5. They were under the impression that the 2nd respondent had obtained necessary permissions and they had provided all necessary facilities to treat the sewage and other treatment systems but they came to understand later that they have not provided necessary pollution control mechanism to avoid the odour pollution that is being generated from the STP and its improper installation without providing necessary pollution control mechanism and treatment facilities which resulted in stagnation of sewage water in that area leading to unhygienic condition and also causing pungent and bad odour. They have not provided necessary green belt. Since, water oozing out from the STP started stagnating on the road, the officials of the Revenue Department and Pollution Control Board frequently visiting the place and issued the notice mentioned above. There was an obligation on the part of the Promoter to obtain necessary consent for establishment and consent for operation before installing the STP which they have not obtained. There was a duty cast on the Pollution Control Board to identify the STP available in the market like Sequencing Page 4 of 44 Batch Reactor (SBR), Moving Bed Bio film Reactor (MBBR), Activated Sludge Process (ASP), Membrane Bioreactor (MBR), etc. depending upon the suitability and violability of the Residential Complex. Without considering the liability of the builder, the 1st Respondent had issued show cause notice to the applicant association with a view to protect the builder. The 2nd respondent did not install safeguards prescribed by the Pollution Control Board for operating the plant by DG Set and the DG Set was also causing air and noise pollution and there was no consent obtained from the Pollution Control Board by the Promoter for this purpose.
6. Raising similar issues, another application was filed by some occupants of some other residential complex against the promoter as Original Application No.291 of 2014 and this Tribunal, by Order dated 13.01.2016 passed the following order:-
(i) We direct that the 3rd respondent if not yet Resubmitted the application for getting the consent, shall submit the application returned by the Board, duly attending to the shortcomings pointed out by the Board within a fortnight from the date of this order and the Board shall process the application and take appropriate decision on granting the consent within 4 weeks therefrom.
(ii) The record placed before us reveals that the functioning of the STP is assigned to a contractor by the 3rd respondent. The contractor shall deploy only competent technicians to operate the STP, who shall be fully conversant with the recommended operating procedure for which purpose, Operation and Maintenance Manual shall be fully conversant with the recommended operating procedure for which purpose, Operation and Maintenance Manual shall be prepared if not yet prepared. For this purpose, a details Terms of Operation of Contract shall be finalized and implemented.
(iii) Testing of samples shall be done at periodic intervals to enable proper control of the STP's performance.
(iv) Operational parameters shall be regularly analyzed in a reputed accredited lab and the data shall be utilized for performance optimization of the plant. The results of the analysis should be accessible to all the residents and shall be displayed on the notice board in the complex.
(v) Hours run meters shall be provided for all the machinery and equipment and the total hours operated shall be recorded in a log-book which should be made available to the residents' welfare association as well as the Inspecting Board Officials to satisfy that the equipments are not switched off in order to save on power bills,
(vi) Generally, it is observed that removal of sludge is the most neglected aspect of the STP operation. This should be avoided and sludge shall be removed periodically.
(vii) The STP should be kept in a tidy state by good house-keeping by cleaning and painting metal works, maintain with adequate light, etc.
(viii) Screenings should be removed as per schedule and dripped dry for subsequent disposal,
(ix) The operation and maintenance of the STP need to be streamlined and upgraded if any shortcomings are noticed in future.
(x) Sufficient spare parts for periodical maintenance as per manufacturers' recommendation shall be made available so that there is no occasion for any impediment functioning of the STP, Page 5 of 44
(xi) Standards prescribed for operating the standby DG Set shall be strictly followed so that there is no air and noise pollution and necessary consent in this regard is obtained from the Board.
7. According to the applicant, the applicant is also entitled to get similar directions to be issued to the builder to be complied with. So, they filed this application seeking the following interim as well as main reliefs:-
Interim Prayer:
(i) To stay the 1st respondent's show-cause noticed in Proc.
NO.DEE/TNPCB/SPR/Complaint/Cr. No.5443-2020-1, dated 19.05.2020, pending disposal of the Original Application,
(ii) Directing the 1st respondent or anyone claiming or deriving through them from taking any coercive action as stated in the 1st respondent's show-cause notice dated 19.05.2020 including electricity disconnections, pending disposal of the Original Application.
Main Relief:
(i) To call for the records culminated in the 1st respondent's show-cause notice in Proc. No.DEE/TNPCB/SPR/Complaint/Cr. No. 5443- 2020-1, dated 19.05.2020, and quash the same,
(ii) Directing the 2nd respondent to ensure that the STP is made to operational without causing any disturbance to the residents of the Applicant and without causing any pollution by complying with the directions issued by the Hon'ble Tribunal in the above referred order dated 13.01.2016 in Application No. 291 of 2014 (SZ)
(iii) Pass such other order or relief that may deem fit and proper in the circumstances of the case.
8. Since the applicant had raised the question that the projects require Environment Clearance and it was constructed in violation of the Environment laws and EIA Notification 2006, this Tribunal directed the applicant to take steps to implead the State Level Environment Impact Assessment Authority (SEIAA) Tamil Nadu as a necessary party and accordingly, the applicant filed IA 56/2020 to implead the Chairman, State Level Environment Impact Assessment Authority (SEIAA), Tamil Nadu as additional third respondent and the application was allowed and the said authority was impleaded as additional 3rd respondent to the proceedings as per order dated 21.07.2020. On that day, this Tribunal observed that the applicant was not entitled to get relief claimed as prayer No. (I) as they had to file their objection before the authority and after considering the objections, the authority had to pass appropriate orders, in accordance with law and if the applicant was aggrieved by that order, they would be getting an opportunity to file an appeal before the Appellate Authority Pollution Control Board and no injunction could be granted against the statutory authority from exercising their statutory power under the said Act and that prayer was rejected. So, this Tribunal Page 6 of 44 had admitted the matter only to the extent of the 2nd main prayer made in the application as per order dated 21.07.2020.
9. Thereafter, this Tribunal had appointed a Joint Committee consisting of
(i) a Senior Officer from Regional Office, Ministry of Environment and Forest and Climate Change, Chennai (ii) a Senior Officer from State Level Environment Impact Assessment Authority, Tamil Nadu (iii) a Senior Officer, nominated by Chairman, Tamil Nadu Pollution Control Board to inspect the unit in question and submit a factual as well as action taken report if there is any violation found.
10. The Committee was directed to ascertain
a) Whether the builder had obtained necessary environment clearance and what were the terms and conditions imposed in the environment clearance regarding the establishment of sewage treatment plant and its treatment;
b) Whether the builder had complied with the conditions of sending periodical reports of compliance of the conditions and if there was any violation found, what were the remedial measures to be taken to rectify the same.
c) Asses the Environmental Compensation payable for the damage caused to the Environment.
11. The State Level Environment Impact Assessment Authority, Tamil Nadu was designated as the nodal agency for coordination and also for providing necessary logistic for this purpose.
12. The 2nd respondent filed counter affidavit contending that the 2nd respondent is a limited liability partnership firm duly registered under the Limited Liability Partnership Act, 2008. The ground alleged by the applicant in the application were not coming within the purview of this Tribunal as most of them were violation of conditions of contract which the Civil Court alone can take cognizance. The 2 nd respondent is one of the pioneers in the field of constructions and involved in construction of dwelling houses for the affordable segment of the society. The respondent Page 7 of 44 had developed 4 different residential projects after obtaining necessary statutory approval for the respective projects from DTCP on different periods as per the details given below.
Sl. Project DTCP Local No. of Area Project Handing
No Name Body Dwell- in Completion over date to
Approval ing Sq.ft. Date Association
Date Units
1 Vasantha 10-10-2013 420 158060 12-01-2015 31-03-2017
2 Megha 14-03-2014 388 145980 29-02-2016 31-03-2018
3 Madhulika 29-01-2015 213 149635 26-08-2016 31-12-2-18
4 Atana 15-05-2015 198 134120 02-09-2016 31-07-2019
13. It is further contended that the residential units were constructed to meet the housing demand for lower income group and fulfil the objectives of the Prime Minister Mission of providing housing to all. All these projects were qualified for PMAY benefit for the customers. They required approvals and Planning permission were obtained for all the four projects separately at different points of time. The constructions were put up as per the approval granted by DTCP and the local authority strictly adhering to the stipulations made in the permissions granted. All these projects were completed within the stipulated period of time and were handed over to the respective flat owners on completion of the constructions. The flats were handed over to the respective flat owners only after obtaining the completion certificate from the local bodies.The 2nd Respondent had undertaken the maintenance of each project for a period of two years from the date of handing over of the first flat to the respective apartment owner and also undertaken to rectify any defect or carry out repairs for a period of one year i.e. defect liability period. With regard to the applicant‟s project namely "Atana", the construction of the apartments were completed in the year 2017 and the flats were also handed over to the respective flat owners. All the apartments in the said four projects inclusive the applicant project were constructed by strictly adhering to the norms and conditions prescribed in the planning permission granted without any deviation or any violation. The Sewage Treatment Plant provided was of the required capacity proportionate to the number of apartments calculated on the basis of the number of occupants in each apartment as per the standards recommended by National Building Code. The followings are the required conditions as Page 8 of 44 per the National Building Code, 2005, in respect of certain aspects which was projected in the application.
"4. Water Supply 4.1 Water Supply Requirement for Buildings 4.1.1 Water Supply for Residences A minimum of 70 to 100 litres per head per day may be considered adequate for domestic needs of urban communities, apart from non-domestic needs as flushing requirements. As a general rule the following rates per capita per day may be considered minimum for domestic and non-domestic needs:
a) For communities with population upto 20,000 and without flushing system: 1) Water supply through standpost 40lphd Min; 2) water supply through house service connection - 70 to 100 lphd
b) For communities with population 20,000 to 100,000 together with full flushing system - 100 to 150 lphd
c) For communities with population above 100,000 together with full flushing system - 150 to 200 lphd NOTE: The value of water supply given as 150 to 200 litres per head per day may be reduced to 135 litres per head per day for houses of Lower Income Groups (LIG) and Economically Weaker Sections of Society (EWS) depending on the prevailing conditions.
4.1.1.1 Out of the 150 to 200 litres per head per day, 45 litres per head per day may be taken for flushing requirements and the remaining quantity for other domestic purposes.
NBC 2005 - Occupant Load of STP Page 27 - Part - IV As per the National Building Code, 2005 in Table 20 Class 4.3 Residential Occupancy - Occupancy Load, Floor area for residential is 12.5 meter square per person as per the above referred classes, the dwelling units put up in Atlanta Project Carpet area/12.5 = 49.84/12.5 = 3.99 NOTE: five persons considered for each unit for water supply and STP design calculation."
14. The 2nd Respondent further contended that the STP in the said project was installed and commissioned as per NBC norms with recycling facilities of treated grey water and to be utilized for ablution purposes. STP provided by the respondent was designed and commissioned as per the standards as approved by the architects to the required capacity for each project. They had undertaken to maintain STP for the agreed period of time as mentioned in the agreement by entering into AMC with Vendors of the STP. Until the maintenance was with the respondent, there was no complaint of non-functioning of the STP till then. Only after handing over of the maintenance to the apartment owners after the period of two years, STP had become defunct. The same had occurred due to non operation and poor maintenance of the STP by the applicant association. One of the stipulations made in the approval granted was that any excess treated sewage has to be disposed of through tanker lorries after using the same for ablution and gardening purposes. As a goodwill measure, 2nd Respondent had purchased four numbers of new Page 9 of 44 tanker lorries at the cost of Rs.25 lakhs each and handed over three numbers to the three of the project namely "Vasantha", "Megha" and "Madhuliga" respectively to facilitate disposal of excess treated sewage water though it was not in the scope of the respondent. The applicant had refused to accept the same till date for the reasons best known to them. Further, two of the other resident association accepted the same but had sold it to third parties for gain and utilised the money for maintaining their apartments. This would go to show that they had not committed any violation or breach of conditions of contract. The maintenance of the apartment was handed over to residents association in the month of August 2019. The period of two years of maintenance by the respondent as builder was over by 31st July 2019. The applicant association is a registered association and they ought to have taken further steps to carry out the maintenance and operation of the STP by themselves. In fact, they have given training to the apartment owners for five days regarding the day to day maintenance of STP and its operational techniques. In spite of all those things, the applicant association had failed to operate the STP or carry out the proper maintenance of STP, which resulted in the current situation. None of the grounds alleged in the application were giving raise to any substantial question of environment requiring the interference of this Tribunal as provided under Sections 14 and 15 of the National Green Tribunal Act, 2010. The allegation that there was no proper treatment facility or amenities provided in the STP to maintain its standard is not correct. The STP was provided to the applicant association to the capacity required for the proportionate number of people in each dwelling unit according to its size. They maintained STP till 31st July 2019 as per the agreement entered into between the respondent and the owners of the flat and till they were maintaining the same, the inlet and outlet water quality of the STP met the standard provided by Tamil Nadu Pollution Control Board, which will be clear from the analysis report produced by them along with the counter. It is due to the non maintenance and improper user of the STP resulted in the present situation. The allegation that they have not provided the basic amenities such as electricity supply and buffer zone required for letting out the treated water were not correct and hence denied. In fact, they had Page 10 of 44 provided sufficient open space i.e. 10% of the project plan as has been provided with landscaping as per norms and the portion of which had been gifted to the local bodies as per the norms of the approval authorities. All had been in proper manner till the maintenance was with the respondent till July 31st 2019 and there had been no complaint whatsoever regarding the operation of the STP till then. It is for the associations thereafter to take proper maintenance arrangements and make the functioning of the unit proper and as such the 2nd respondent cannot be made liable for the latches on the part of the applicant association and the local bodies and statutory authorities were perfectly justified in issuing notice to the applicant for their violations. It was also revealed from the allegations in the application itself, that the 1st respondent had issued the show cause notice only after discussion with the members of the applicant association. The project did not come under the purview of Real Estate Regulating Act, which came into effect only later. Every member of the applicant association had signed the MoU accepting the completion of construction of each apartment as per the agreement entered into between the 2nd respondent and each individual owner on satisfaction of the basic amenities having been provided by the 2nd respondent along with the open space reservation provided and that of the basic infrastructures provided in the individual apartments. Since the project area is less than 20000 sq.mtrs., there is no necessity to obtain any prior environment clearance from the State Level Environment Impact Assessment Authority (SEIAA) as per EIA Notification 2006 and as amended in 2016. The DG sets installed in the applicant‟s premises is acoustic proof and was meant only for backup for common area lighting and as such there was no necessity for them to provide DG Set for providing electricity to the residential complex. The Tamil Nadu Pollution Control Board has rightly issued show cause notice to the applicant correctly. So, they prayed for accepting their contentions and passing appropriate orders and dismissal of the application.
15. The 2nd respondent also filed an additional counter affidavit contending that the commercial establishment situated adjacent to the said project site had lodged complaint on 03.03.2020 before District Collector, Page 11 of 44 Kancheepuram with regard to letting out of untreated sewage water in the highways storm water drain and to take action against the four residential associations. The action of resident association in letting out sewage water into Highway appeared to have resulted in causing health hazard and unhygienic conditions and affecting the movement of the people working in commercial establishments. The ingress and eggress to the commercial establishments had been affected due to the inundation of sewage water on the highway. Pursuant to the complaint lodged by the adjacent commercial establishments, the District Collector had deputed officers to inspect and assess the ground reality at the project site and take suitable action. In furtherance of the same, the Block Development Officer, Kundrathur had issued warning vide notice Na.Ka. No.1581/2020/A1 dated 03.03.2020 to all the four residential associations giving warning to stop letting out the sewage water into the storm water drain and also warned that heavy penalty would be levied and appropriate action would be initiated against them, if they continue to do so. In spite of the warning given by the Block Development Officer, Kundrathur, the applicant herein had been continuously letting out the sewage water into the highway thereby aggravating the problem. The Highway Department Authorities had to interfere on 24.08.2020 directing them to stop the discharge of sewage water into the Highway by dumping mud in the storm water drain at the entrance of the approach road leading to the four residential complexes since inundation in the Highway was causing health hazard and accident to motorist and inconvenience to commercial establishments situated adjacent to it. In spite of all these things, they did not refrain from letting out the untreated sewage into the Highway throughout the approach road. So the Block Development Officer, Kundrathur was constrained to lodge a police complaint dated 09.04.2021, for which CSR was issued and on investigation by Police, the FIR was registered on 12.04.2021 on making out an offence punishable under Section 269 and 217 of the Indian Penal Code. The Revenue Divisional Officer, Sriperumbudur vide Proceedings No. Na.Ka.No.668/2021/A2 dated 17.04.2021 intimated to all the four residential association with a copy to Tahsildar, Kundrathur, Assistant Engineer, Tamil Nadu Pollution Control Board, Oragadam, Block Page 12 of 44 Development Officer, Kundrathur, Inspector of Police, Oragadam for information to the District Collector, Kancheepuram and Planning Director, Kancheepuram Planning Office, Assistant Superintendent of Police, Sriperumbudur directing the residents association to take action to rectify the defects and make the infrastructure operational within 15 days and ensure that general hygiene was maintained, failing which action would be taken under Section 133 of Code of Criminal Procedure. Subsequent to the action of Government Authorities, the applicant had given an undertaking before the Superintendent of Police, Oragadam Police Station on 18.04.2021 that they would not let out untreated sewage into the Highways the storm water drain and informed the police that they had filed an application before this Tribunal as OA No.106/2020 against the 2nd Respondent. During this period, Madhuliga association had restored the STP and made it operational and started operating the STP. All the associations have started collecting additional charges from the residents especially for operation and maintenance of STP as can be seen in the notice circulated by Vasantha Association, Rs.600/- per apartment towards drainage clearance charges. They have also started maintaining schedules for rationing of water usage to specific timings and also restricted number of occupants per flat. This fact would go to show that the STP provided by the 2nd respondent has become defunct only due to the non maintenance of the same and not due to inadequacy of the facilities provided in the STP, which has been observed in the Joint Committee as well. For all these periods, there was no change in the design or alteration of the STP and the developer had not done anything adverse after handing over the facilities to the respective association in good operational conditions and as such the developer could not be held responsible for the commissions and omissions of the residents‟ association subsequent to the handing over. The filing of the application was only to avoid action being taken by the statutory authorities against the residents association for causing nuisance to the commercial establishments and others putting the blame on the 2nd respondent. The photographs taken on 12.04.2021 and 02.07.2021 at the site will go to show that there was no sewage water being let out into the storm water drain leading to highway and there was no inundation on the highway. The Page 13 of 44 Joint Committee was not right in imposing environmental compensation on the 2nd respondent. They prayed for accepting their contentions and to pass appropriate orders and exonerating them from the liability.
16. The applicant filed rejoinder to the counter filed by the 2nd Respondent denying the allegation that the construction was made in tune with the guidelines provided under the National Building Code. The STP was not provided in proportionate to the number of apartments calculated on the basis of the number of occupants in each apartment. The capacity of STP provided by the 2nd Respondent was less in proportionate to the number of occupants in each apartment. The flat owners of the „Atana‟ are not low income group as stated by the 2nd Respondent. Considering the flat sites (from 500 sq.ft. to 850 sq.ft. and 500 to 800 UDS single the BH and WBH mix) flat cost and amenities cost paid by the owners they were medium income group. The 2nd Respondent was duty bound to offer explanation as to how they arrived the flat owners of Atana as low income group. So, the very basis of calculation made by the 2nd respondent by taking Atana flat owners as low income group is not sustainable. They fixed the criteria for STP designed on the income group basis. The 2nd respondent has not stated anything as to what was the criteria of STP for medium income group. There were 198 dwelling units at Atana alone and thereby as per the calculation of 2nd respondent each unit shall have 5 persons and thereby the total number of persons will come to 990 persons. 2nd respondent had not stated the capacity of STP and the STP capacity installed is in proportion to the need of 990 persons. There is no reference either in the construction agreement or in the manual of STP that the STP was designed for low income group and it is as per the standard prescribed under Part 9 - Class 4.1.1 and Part IV of NBC 2005. There was no whisper on the part of the 2nd respondent regarding the soil absorption capacity in both winter and summer season. The STP manual states that it is 1048 persons and 135 litre per person. In the STP manual it is not mentioned what is the maximum rate of STP treatment. The 2 nd Respondent had not stated about the STP capacity of letting out treated water per day. The STP installed was faulty in every feature like size, design, capacity, capability, etc. The 2nd respondent had reduced 20% Page 14 of 44 water consumption utility at 141 litre per day per person and after using this water, waste water flow per person is 113 litre/day/person. It is not the basis for drinking water. Since the waste water is contained and delivered to STP through pipe, there was no evaporation loss. There was an admission that only by restricting the number of occupants per flat that the other three housing association could maintain the STP plant that will impliedly showed about the inadequacy of the STP capacity. No documents had been handed over regarding the maintenance of STP to the flat owners and the standard operating procedure for maintenance of STP. They denied the allegations that only after handing over the maintenance of STP to the Petitioners Association that it has become inoperative and disfunctional. In response to the repeated enquiries, 2nd respondent had offered a compromise solution vide e-mail dated 16.12.2018 and offered to buy sewage tanker lorry of 12000 litres capacity for the purpose of disposal of grey sewage effluents from the STP. This was declined by the applicant as it was not an workable solution as experienced in the other housing association and it was only a stop gap arrangement made by the 2nd respondent to escape from their responsibility of finding permanent solutions. The 2nd Respondent also offered to build a holding tank for holding effluent for trial and error method in Vasantha Apartment and the nature of the attempt made was experimental basis but that was in vain. As per EIA Notification 2006, prior Environment clearance is a requirement for construction of projects having more than 20000 sq.mtrs. and above, but, as per notification SO No. 417(E) dated 03.03.2018, and 731(E) dated 04.04.2012, it was stipulated that this project will fall under category B depending upon the threshold of the activities and they will have to obtain Environment Clearance from State Environment Impact Assessment Authority (SEIAA). As per Clause 2 of Environment Clearance it was stated as follows:
"2.6 As majority of the buildings which will come up will be having built up area of less than 20000 sq.mtr. so as to get the full benefit of these environment norms in buildings. It is proposed to cover all buildings with built-up area of more than 5000 sq.mtr."Page 15 of 44
17. So, small buildings with more than 5000 sq.mtr. must obtain environment clearances Vasantha Project was completed on 12.01.2015. Approval for Atana Project/the applicant project was granted on 15.05.2015 and completed on 02.09.2016 after the above said notification issued by the Ministry of Environment, Forests and Climate Change (MoEF & CC). Subsequently, a further amendment was made on 16.05.2016 by Ministry of Environment, Forests and Climate Change (MoEF & CC) which reads as follows. Area less than 20000 sq.ft. will be subject to a self declaration, however, the building of size 5000 sq.mtr. to 20000 sq.mtr. will also follow environmental norms for construction and maintenance space. The qualified Building Environmental Auditor as empanelled by Ministry of Environment, Forests and Climate Change (MoEF & CC) would assess and certify the building project. But the same was not got assessed by the 2nd Respondent. The Joint Committee has observed certain things which is extracted as follows:-
a. The developer has not obtained consent for establishment and operate from the Tamil Nadu Pollution Control Board.
b. The overall built-up area is 54,607.486 sq.mtr. c. All the four individual STPs are not having sufficient adequate capacity to treat the untreated sewage and because of these committee is felt that all four STPs has to be certified/approved by the competent authority and institutions, if it is inadequate, the same may be revamped and put into operation.
d. The Joint Committee also assessed compensation and as such they cannot say that they are not liable. They prayed for accepting their contentions and passing appropriate orders.
18. The 2nd Respondent had filed reply to the rejoinder filed by the Applicant denying the allegations made in the rejoinder. They also mentioned that the National Building Code does not provide any distinct standards for low income group or middle income group, as such. There is no necessity to assess the soil absorption capacity in different seasons as it was not mandatory. It was specified in the approval that any excess treated water strictly can be disposed using tanker lorries. It is on that basis, they have provided that facility which was not accepted by the applicants. The allegations regarding the application of the notification mentioned are not applicable to the 2nd Respondent project. The Notification on 2012 1(A) mentioned about the categorization of projects and entrusted all SEIAA to consider the projects falling under category B and there was no proposal to cover buildings above 5000 sq.mtrs. under the Environmental Norms.
Page 16 of 44They prayed for accepting their contentions and passing appropriate orders.
19. The 3rd respondent filed counter affidavit contending that as per Notification No. 5651(E) dated 05.11.2018 issued by the Ministry of Environment, Forests and Climate Change (MoEF&CC), New Delhi, the tenure of the State Level Expert Appraisal Committee and State Level Environment Impact Assessment Authority, Tamil Nadu expired on 04.11.2021 on completion of 3 years tenure and MoEF was yet to reconstitute State Level Expert Appraisal Committee/State Environment Impact Assessment Authority in Tamil Nadu as per G.O.Ms.No.260 Environment Forest [EC-3 dated 15.12.2012] the Director of Environment was nominated to do the function as a Secretariat for State Level Environment Impact Assessment Authority and State Level Expert Appraisal Committee from the date of issue of the order and the present deponent who was the Director of Department of Environment, Government of Tamil Nadu and was in charge of State Level Environment Impact Assessment Authority was filing this affidavit on behalf of State Level Environment Impact Assessment Authority (SEIAA). The Environment Impact Assessment Notification 2006 mandates prior environment clearance for new projects or activities including expansion or modernisation of the existing projects listed in the schedule. The category „A‟ projects shall obtain Environment Clearance from Central Government and category „B‟ projects from the concerned State Level Environment Impact Assessment Authority/Union Territory Environment Impact Assessment Authority. The proposal will be placed before the State Expert Appraisal Committee for screening, scoping and appraisal, based on the recommendations of State Expert Appraisal Committee proposal will be placed before the State Environment Impact Assessment Authority for the consideration of issuance of Environment Clearance. After detailed discussion and based on the documents furnished, the Environment Clearance will be issued by the Authority. Entry 8(a) of EIA Notification, 2006 deals with building projects which reads as follows:
Project or Activity Category with threshold limit Page 17 of 44 (1) (2) (3) (4) 8(a) Building and > 20000 sq.mtrs. and Construction <1,50,000 sq.mtrs. of Projects built-up area#
20. As per order dated 21.07.2020, while admitting the matter, this Tribunal had appointed a Joint Committee consisting of (i) a Senior Officer from Regional Office, Ministry of Environment, Forests and Climate Change (MoEF & CC), Chennai (ii) a Senior Officer from State Level Environment Impact Assessment Authority, Tamil Nadu, (iii) a Senior Officer nominated by the Chairman, Tamil Nadu Pollution Control Board to inspect the area in question and submit a factual as well as action taken report in case if violation was found. The committee was directed to ascertain whether the Builder had obtained Environment Clearance and what were all the terms and conditions imposed in the Environment Clearance regarding the establishment of sewage treatment plant and its treatment and whether the builder had complied with the conditions of sending periodical reports of compliance of the conditions and if there was any violation what are all the remedial measures taken to rectify the same and assess the environment compensation payable to the damage caused to the environment. The State Level Environment Impact Assessment Authority, Tamil Nadu was designated as Nodal Agency for coordination and also providing necessary logistics for this purpose.
Thereafter the matter has been adjourned from time to time either at the request of the official respondents or by the Members of the Committee.
21. The matter was taken up on 16.03.2021 and on that day, this Tribunal considered the Joint Committee Report dated nil received through email on 04.11.2020 extracted in Para (2) of the order which reads as follows:
"4. SCOPE OF THE COMMITTEE AS PER ORDER
(i) To inspect the residential apartment and ascertain whether thebuilder had obtained environmental clearance and what are all the terms and conditions imposed in the environmental clearance regarding the establishment of Sewerage Treatment Plant (STP) and its treatment.
(ii) To ascertain whether the builder had complied with the conditions of sending periodical reports of complaince of the conditions and if there is any violation what are all the remedlal measures to be taken to rectify the same.
(iii) To assess the environmental compensation payable for the damage caused to the environment and submit a factual
5. JOINT INSPECTION OF THE COMMITTEE The Joint Committee has inspected the said residential apartment on 05.10.2020. During the time inspection, the committee observed the following.Page 18 of 44
1. It is a residential apartment having 4 Nos of individual gated community with 420 dwelling units (Vasantha Appartments), 388 dwelling units (Megha Appartments), 213 dwelling units (Madhulika Appartmenrs) and 198 dwelling units (Attana Appartments-applicant) located in Karanaitankal village, Vandallur Wallajabad Road, Kundrathur Taluk, Kanchipuram District. 2. All the said 4 residential apartments have been established by the developer M/s. Arun Excello Constructions LLP in different periods and after completion of the entire work, the said apartments were handed over to the residents in different periods.
3. The developer has not obtained Environmental Clearance from the competent authority.
4. M/s Arun Excello Constructions LLP has not obtained consent for establishment / Consent to operate from the Tamil Nadu Pollution Control Board. 5. The residential apartment have provided individual STp (4 Nos) for each apartment below the ground level. 6. Observations of the individual apartments are as follows.
Madhulika Apartments:
i. It consist of 213 dwelling units with total land extent of 9388.64 sq.m with total built up area of 13901.54 sq.m, ii. The developer has obtained planning permission from DTCP during
08.t2.2074.
iii. The project has completed during 26.08.2016 and handed over to the association on 31.12.2018.
iv. Bore well has provlded for meeting the fresh water requirement, for which the residential apartment has not obtained any ground water permission from the competent authority.
v. The apartment has provided with the Sewage Treatment Plant for the treatment and disposal of sewage generated from the apartment below the ground level.
vi. It is reported by the association secretary that during march 2020 the existing STP was revamped completely for the efficient operation, based on the show cause notice issued by the TNPCB.
vii. At present, treated sewage is utilized for toilet flushing and for gardening and greenbelt development within the premises.
viii. As reported by the association secretary that the OSR area allocated for the utilization of treated sewage is not adequate and hence they restricted the quantity of water supply only t hr in morning and thr in evening. ix. There is no facility for treatment and disposal of the solid wastes generated from the residentlal apartment. It is stored ln the plastic bins and dlsposed through the local body for further disposal.
Vasantha Apartment:
i. It consist of 420 dwelling units with total land extent of 9510.4 sq.m with total built up area of 14,684.132 sq.m.
ii. The developer has obtained planning permission from DTCP during 23.05.2013.
iii. The project has completed during 12.01.2015 and handed over to the association on 31.03.2017.
iv. Bore well has provided for meeting the fresh water requirement, for which the residential apartment has not obtained any ground water permission from the competent authority. v. The apartment has provided with the Sewage Treatment Plant for the treatment and disposal of sewage generated from the apartment below the ground level. vi. Operation and maintenance of the STP is not satisfactory. vii. Treated / untreated sewage is disposed into the open well provided within the premises. viii. There is no facility for treatment and disposal of the solid wastes generated from the residential apartment. It is stored in the plastic bins and disposed through the local body for further disposal.
Megha Apartment:
i. It consist of 388 dwelling units with total land extent of 9105.36 sq.m with total built up area of 13,561.872 sq.m.Page 19 of 44
ii. The developer has obtained planning permission from DTCP during 07.02.20L4.
iii. The project has completed during 29.02.20L6 and handed over to the association on 31.03.2018.
iv. Bore well has provided for meeting the fresh water requirement, for which the residential apartment has not obtained any ground water permission from the competent authority.
v. The apartment has provided with the Sewage Treatment Plant for the treatment and disposal of sewage generated from the apartment below the ground level.
vi. Operation and maintenance of the STP is not satisfactory. vii. Treated / untreated sewage is pumped into the open area within the premises for evaporation. Also, it is disposed outside the premises through storm water drain.
viii. There is no facility for treatment and disposal of the solid wastes generated from the residential apartment. It is stored in the plastic bins and disposed through the local body for further disposal.
Atana Apartment:
1. It consist of 198 dwelling units with total land extent of s93s.3e sq.m with total built up area of 12,460.052 sq.m.
2. The developer has obtained planning permission from DTCP during 18.05.2015,
3. The project has completed during 02.09.2016 and handed over to the association on 31.07.2019.
4. Bore well has provided for meeting the fresh water requirement, for which the residential apartment has not obtained any ground water permission from the competent authority.
5. The apartment has provided with the Sewage Treatment Plant for the treatment and disposal of sewage generated from the apartment below the ground level.
6. At present, treated sewage is utilized for toilet flushing and for gardening and greenbelt development within the premises.
7. It is reported by the association secretary, the excess treated sewage is pumped into the terrace and open area within the premises for evaporation.
8. There is no facility for treatment and disposal of the solid wastes generated from the residential apartment. It is stored in the plastic bins and disposed through the local body for further disposal.
7. As per the CPCB guidelines the Environmental compensation shall be calculated as, Environmental compensation to be paid (EC) = Pl xN x Rx S x LF Where, Pl = Pollution index of industrial sector - For Orange category it is 41 to 59.
An average value of 50 taken N = Number of days of violation took place.
The developer has obtained planning permission from DTCP and handed over to the respective apartment's owners association details are as follows S.No. Apartment Name DTCP letter Handed over Violations date date days
01. Vasantha 23.05.2013 31.03.2017 1405
02. Megha 07.02.2014 31.03.2018 1514
03. Madhulika 08.12.2014 31.12.2018 1485
04. Atana 18.05.2015 31.07.2019 1536 It is seen from the above, minimum violation days of 1405 may be considered as violation period.
R = A factor in Rupees for EC is minimum of 100 and maximum of500. An average value of 25O taken for violation S = Factorforscale of operation (0.5 for small, 1,0 for medium and 1.5for large scale).
Hence 1.5 taken since it is large scale.
LF = Location factor (population from 1to 5million LF is 1.25)EC = Page 20 of 44 50x1405x250x1.5x1.25= Rs. 32929687/-
6. Recommendations
1. The developer (M/s. Arun Excello company limited) has constructed 4 indivudual block namely Vasantha (14, 684.132 sqm), Megha (13, 56L.872 sqm), Madhulika (13,901.54 sqm) and Atana (L2, 460.502 sqm) for EWS category in a different period and also completed as well as handed over in different periods. As stated by the developer during the inspection that the individual building / block's build-uparea is less than 20,000 sqm and because of this EC was not obtained. The Hon'ble court may decide about the applicability of the EC requirement in the instant case.
2. The overall buildup area of the above 4 blocks is 54,607.486 sq.m.
3. The developer has not obtained Consent for establishment / Consent to operate from the Tamil Nadu Pollution Control Board.
4. As gathered during the visit that the developer has constructed 4 individual STP in all 4 respective blocks, maintained and handed over to the residential society for further maintenance. The society except Madhulika and Atana are maintaining the sewage treatment plant properly.
5. During the visit it was observed that untreated sewage from Megha was purposefully let-out to the adjacent road which is in between 4 blocks (Photograph). In addition to this the untreated sewage was got stagnated in Megha apartment area itself. Lot of green patches (algae) was also noticed / observed. This shows that letting out of untreated sewage is not one day affair and it is for a month together. To let out this untreated sewage they have purposefully broke opened the compound wall. The residents also informed the same including bad odor problem.
6. It was found by the team that all 4 individual STps are not having sufficient adequate capacity to treat the untreated sewage and because of this the committee is felt that all 4 STps has to be certified /approved by the competent authority / institutions such as Anna University / llf for its adequacy. If it is inadequate the same may be revamped and put into operation.
7. The treated sewage should be monitored and it should meet the PCB standard.
8. For this separate energy meters, flow meters (in-flow and outflow of the STP) has to be installed. A separate individual register also has to be maintained at the site.
9. The greenbelt development work is very poor and it has to bedeveloped.
10. The residential apartments shall ensure were the entire quantity of treated sewage should be utilized for toilet flushing and for greenbelt development within the premieres.
11. As per CPCB guidelines the environmental compensation of Rs.3,29,29,687 should be levied to the developer to rectified the damage cost to the environment."
22. Since the parties wanted to file objection to the Joint Committee Report, for giving opportunity to the parties to file their objections, the case was adjourned to a future date.
23. As per order dated 17.06.2021, this Tribunal directed the Pollution Control Board to file their Independent Report regarding the present status of the allegations made in the application and the Sewage Treatment Plant and whether untreated sewage was being let out on the roads causing nuisance and affecting the health of the people, if so, what was the nature of the action taken by them regarding the same on the Page 21 of 44 basis of the directions given by this Tribunal. The Pollution Control Board filed a report signed by the Officer on 28.11.2021 e-filed on 29.11.2021 extracted in Para 2 of the order dated 07.12.2021 which reads as follows.
"1. It is respectfully submitted that earlier during inspection of the residential apartment on 03.07.2020 by the DEE, TNPCB, Sriperumbudur, based on the public complaint it was observed that, residential apartments was continuing to discharge treated/untreated sewage into public storm water drain which leads to stagnation on nearby roads, water bodies, etc. thereby polluting the soil/ground water/surface water and also creating nuisance to the local residents. Hence, all the four Flat Owner's Association (Attana Apartments Madhuliga Apartments, Vasantha Apartments and Megha Apartments) were issued with directions under Section 33A of the Water P & CP) Act, 1974 as amended vide Proc. Dated 19.08.2020 to comply with the following conditions.
1) The association shall revamp the existing STP and apply for consent of the Board for the operation of the STPs.
2) No untreated sewage shall be discharged into the storm water drain.
3) The treated sewage shall be utilized for further beneficial purposes after meeting the standards prescribed.
Also, the Block Development Officer, Kundrathur Panchayat Union was issued with directions under Section 33A of the Water (P&CP) Act, 1974 as amended vide Proc. Dated 19.08.2020 to take necessary action to remove the entire stagnated water as well as the defaulting residences.
4. It is respectfully submitted that, in compliance to the Hon'ble NGT order dated 17.06.2021, the said residential apartment was inspected by the TNPCB Officials on 08.07.2021. During inspection, it was noticed that it is a residential apartment having 4 Nos. of individual gated community with 420 dwelling units (Vasantha Apartments), 388 dwelling units (Megha Apartments), 213 dwelling units (Madhulika Apartments) and 198 dwelling units (Attana Apartments-applicant) located in Karanaithangal village, Vandalur - Wallajabad Road, Kundrathur Taluk, Kanchipuram District. The status of the individual apartments are as follows:
I. Madhulika Apartment:
i) It consists of 213 dwelling units with total land extent of 9388.64 sq.m. with total built up area of 13901.54 sq.m.
ii) Sewage Treatment Plant provided to treat and dispose the sewage generated from the said apartment was in operation.
iii) Treated sewage is utilized for gardening and greenbelt development within the premises and for toilet flushing.
iv) The apartment has not provided any flow meters and has not maintaining any log books to monitor the quantity of sewage generated and disposed.
v) It is reported that the OSR area allocated for the utilization of treated sewage is not adequate and hence they have restricted the quantity of water supply only one hour in the morning and one hour in evening.
vi) There is no disposal of treated/untreated sewage let out on the road side from the said apartment.
II. Vasantha Apartment:
i) It consists of 420 dwelling units with total land extent of 9510.4 sq.m. with total built up area of 14,684.132 sq.m.
ii) Sewage Treatment Plant provided to treat and dispose the sewage generated from the said apartment was not maintained properly.
iii) Sewage generated from the apartment is collected in the collection tank and disposed through sewage tanker lorries. Untreated sewage getting over flow from the main hole and stagnated in open area within the apartment and the same is collected and disposed through sewage tanker Lorries.
iv) Part of the treated / untreated sewage is disposed into the open well provided within the premises.
v) The apartment has not provided any flow meters and has not maintaining any log books to monitor the quantity of sewage generated and disposed. III. Megha Apartment:
i) It consists of 388 dwelling units with total land extent of 9105.36 sq.m. with total built up area of 13,561.872 sq.m.Page 22 of 44
ii) Sewage Treatment Plant provided to treat and dispose the sewage generated from the said apartment was not maintained properly.
iii) Sewage generated from the apartment is collected in the collection tank and disposed through sewage tanker Lorries. Untreated sewage getting overflow from the man hole and stagnated in open area within the apartment and the same is collected and disposed through sewage tanker Lorries.
iv) Part of the treated / untreated sewage is disposed into the open well provided within the premises.
v) The apartment has not provided any flow meters and has not maintaining any log books to monitor the quantity of sewage generated and disposed.
IV. Atana Apartment:
i) It consists of 198 dwelling units with total land extent of 8935.39 sq.m with total built up area of 12,460.052 sq.m.
ii) Sewage Treatment Plant provided to treat and dispose the sewage generated from the said apartment was in operation.
iii) Treated sewage is utilized for gardening and greenbelt development within the premises and for toilet flushing.
iv) It is reported that the sewage treatment plant provided in this apartment is inadequate. Hence, part of the untreated sewage is disposed through the tanker Lorries.
v) The apartment has not provided any flow meters and has not maintaining any log books to monitor the quantity of sewage generated and disposed."
24. From the inspection report of the Joint Committee submitted to this Tribunal, the following was inferred.
"Project or Activity Category with threshold limit (1) (2) (3) (4) 8(a) Building and > 20000 sq.mtrs. and Construction <1,50,000 sq.mtrs. of built-
Projects up area# It is a residential apartment having 4 Nos. of individual gated community with 420 dwelling units (Vasantha Apartments), 388 dwelling units (Megha Apartments), 213 dwelling units (Madhulika Apartments) and 198 dwelling units (Attana Apartments) located in Karanitankal Village, Vandalur Wallajabad Road, Kundrathur Taluk, Kanchipuram District.
The residential apartments have provided individual STP (4 Nos.) for each apartment below the ground level.
The developer has obtained planning permission from DTCP for individual apartments during 2013, 2014 & 2015.
Further, "The developer (M/s. Arun Excello Company limited) has constructed 4 individual block namely Vasantha (14,684.132 sq.m) Megha (13, 561.872 sq.m.), Madhulika (13,901.54 sq.m) and Atana (12,460.502 sq.m) for EWS category in a different period and also completed as well as handed over in different periods. As stated by the developer during the inspection that the individual building / block's built up area is less than 20,000 sqm and because of this EC was not obtained."
25. It will be seen from the Joint Committee Report that it is a residential apartment having four numbers of individual gated community. The Developers had obtained individual DTCP approval for individual apartments, which was found to be less than 20000 sq.mtr. built-up area. Hence, the individual apartments do not come under the schedule of list of projects for activities requiring prior Environment Clearance under the Page 23 of 44 EIA Notification, 2006. To fix the above anomaly of building and construction projects having built-up area less than 20000 sq. mtrs. CPCB vide their Proceedings No. CPCB/IPC-IV/ROGW dated 12.01.2021 has categorized the building and construction projects with built-up area upto 20000 sq.mtrs. and waste water generation upto 50 Kld and 100 kld as orange and red categories accordingly on following criteria:
"i. Waste water is generated due to domestic use ii. Projects having overall waste water generation of 50 KLD or more are considered for categorization. However, projects having waste water generation <50 KLD are also required to treat/manage sewage with appropriate systems such as soak pit, septic tank, STP etc. or direct discharge into sewer connected with terminal STP, etc., as per the prescribed guidelines/norms.
iii. If the discharge > 100 KLD, it will have the normalized score (pollution index) of 75 and hence, be categorized as Red."
26. In view of the above, the Project Proponent/Developer/Residents Welfare Associations may be directed to approach the Tamil Nadu Pollution Control board for obtaining consent to operate under the Water (P&CP) Act, 1974 and the AIR (P&CP) Act, 1981 as amended. They prayed for accepting their findings and passing appropriate orders.
27. Heard the learned counsel for the Applicant and learned counsel for the Respondents.
28. The Learned Counsel appearing for the Applicant argued that it will be seen from the Counter Affidavit of the 2nd Respondent as well as the Report of the Joint Committee that 2nd Respondent had envisaged four different residential projects in the nearby properties adjacent to each other in such a way as to avoid obtaining prior Environment Clearance restricted the construction area less than 20,000 sq.mtrs. and it will have to be treated as a single project and if that is treated as a single project, then they will have to obtain prior Environment Clearance which they have not obtained. On account of non-obtaining of Environment Clearance, lot of impact has been caused on account of failure of providing mitigating circumstances to mitigate the impact of such construction in that area, thereby environment damage has been caused in that area.
Page 24 of 4429. The learned counsel further argued that the STP provided by the builder is not having the capacity to treat the quantity of sewage that is being generated in each complex and no sufficient pollution control mechanism had been provided in the STP to mitigate the possibility of pollution being caused on the account of the same. No proper soil test had been conducted to ascertain the possibility of absorption of excess treated water being discharged that has resulted in inundation of sewage water in that area. The Joint Committee also found that the builder has committed certain violations in respect of establishment of the STP and they are liable to pay compensation which will go to show that the STP provided is not adequate and it is not properly functioning and it is not sufficient to meet the needs of the people occupying the residents and it is the primary responsibility of the builder to provide sufficient pollution control mechanism and proper STP for treatment of the sewage generated.
30. In a similar matter, this Tribunal in O.A. No. 291/2014 [Sandeep Raghurajan Vs. Tamil Nadu Pollution Control Board & Ors.] directed the Builder VGN Developers Pvt. Ltd. to carry out the necessary pollution control mechanism in the STP provided having adequate capacity and this Tribunal rejecting the contentions of the Builder and directed the Builder namely VGN Developers Pvt. Ltd. to carry out the revamping and regular maintenance of the STP and the facts of that case are similar to the facts of this case and the same directions will have to be issued in this case, as well. Further, in that case, it was held that they will have to obtain consent for operation which they have not obtained, as well. In this case also no consent to operate was obtained and they will have to take steps for obtaining consent after providing necessary pollution control mechanism.
31. On the other hand, the Learned Counsel appearing for SEIAA submitted that since the projects were constructed in different plots on the basis of different planning permissions obtained from DTCP having built up area of less than 20,000 sq.mtrs. of each project, they will not fall under the regime of obtaining prior Environment Clearance. Further, till 2021, there Page 25 of 44 was no criteria for obtaining consent for STP‟s and the building complex when the construction area is less than 20000 sq.mtrs. Only in 2021, the CPCB has given a criteria categorizing the building project having less than 20,000 sq.mtrs. into two categories Orange and Red depending upon the capacity of Sewage Generation of 50 MLD and 100 MLD respectively. Further, at present there was no discharge of treated sewage into the roads from the applicant unit. However, the recommendations will have to be carried out by the persons who are responsible to carry out as found by the Tribunal.
32. The learned counsel for the Pollution Control Board also more or less reiterated the submissions made by the Counsel for the SEIAA regarding the consent mechanism etc., and it is for the Tribunal to evolve the policy as to whether the National Building Code will be strictly applicable and whether any restriction of occupation of members can be made for the purpose of designing the STP for treatment of sewage generated in the particular complex and if the project proponent had designed the project in such a way to carry out the project in different dates by obtaining different planning permissions making the built up area less than 20,000 sq.mtr. can be accepted and whether they can be exonerated from obtaining prior Environment Clearance by designing the project and splitting up the project in such a way to bring outside the purview of Environment Clearance by reducing the construction area wilfully and also the impact of such constructions coming up. As regards the consent mechanism is concerned, since it is not falling within the regime of Environment Clearance under EIA Notification and since there is no criteria issued by Central Pollution Control Board in this regard till 2021, the same will not come under the regime of consent mechanism. From the date of issuance of notification by the Central Pollution Control Board, the project proponent has to obtain consent from the authorities if they are falling under the category mentioned therein. This aspect also will have to be considered by the Tribunal while giving directions applying precautionary principles.
Page 26 of 4433. On the other hand, the Learned Senior Counsel appearing for the Project Proponent argued that admittedly these are four independent building projects started at different times on the basis of different Planning Permissions obtained having a built up area of less than 20000 sq.mtr. So there is no legal obligation to obtain Environment Clearance or Consent to Establish or Operate from the SEIAA or Pollution Control Board respectively. Further, it will be seen from the averments in the application itself that the project was completed and buildings were handed over to the owners and they occupied the same and as per the Agreement they will have to maintain the STP for two years and accordingly they have maintained the STP and handed over the maintenance of STP to the Association and during that period, there was no complaint of any illegal discharge of excess sewage from the STP into the road causing inconvenience to others. Further, once the building was entrusted to the owners it is for the flat owners association to maintain the amenities provided. Further when certain demands were made by the flat owners of the four projects, there was an understanding arrived at between the builders and the apartment association that they will provide tanker lorries for the purpose of collection of excess sewage generated to be discharged into the common STPs provided on the basis of the conditions/permissions granted in the Planning Permission. The other three apartment associations have agreed for the same and they have issued notice to the individual owners to provide an additional amount of Rs.600/- for common expenses to meet the maintenance of Tanker Lorries and other purposes. But the reasons best known to the Members of the applicant Association, they did not agree for the same. Further, it was due to mismanagement of the STP provided that the nuisance alleged has caused for which the 2nd respondent cannot be made responsible. Further, there was no violation committed by them and as such they are not liable to pay Environment Compensation, as well. The dictum laid down in O.A. No.291/2014 relied on by the counsel for the Applicant and also the Notifications relied on by the Counsel for the Applicant in the Rejoinder are not applicable to the facts of the case and there was no mandate for obtaining prior Environment Clearance, if the construction area is less than 20,000 sq.mtr. even as per the Notifications relied on by the Counsel Page 27 of 44 for the applicant. The Pollution Control Board was perfectly justified in issuing a show cause notice to the applicant since they were responsible for not maintaining the STP properly. So, according to them, even if there is any violation of contract in providing the amenities, the Tribunal cannot entertain the application and the remedy of the applicant is before the Civil Court or as per the terms of the agreement entered into between them and not filing an application of this nature before the Tribunal. The Learned Senior Counsel prayed for dismissal of the application.
34. Considered the pleadings, documents produced and the report of the Joint Committee and the Pollution Control Board and submissions made by the Counsel for the parties including the written submissions filed.
35. The points that arose for consideration are:
a. Whether the 2nd Respondent is liable to obtain Environmental Clearance (EC) and consent for the projects? b. Whether the 2nd respondent had committed any violation of environment laws in establishing the STP and whether the STP provided is adequate to meet the requirements of the residential complex developed by them?
c. Whether the 2nd respondent is liable to make any rectification of the defects, if any in the STP, and if so, what is the nature of the directions to be issued to be carried out by the 2nd Respondent?
d. Whether the 2nd respondent is liable to pay any environmental compensation for the violations, if any committed by them and if so, what is the quantum of compensation payable by them?
e. What are all the directions (if any) to be issued applying the "Precautionary Principle" to be carried out by the parties who are responsible to carry out the same in order to protect the environment?
f. Relief and cost.
Page 28 of 44POINTS:-
36. The grievance of the applicant association was that the 2nd respondent had launched the housing project by name "Atana Flats" consisting 198 Flats, of which, the applicant is a member in the owners‟ association without following the environmental laws and without obtaining necessary permissions required under environmental laws.
37. It is also alleged in the application that apart from this residential complex, they had undertaken three other residential complexes by name Vasantha, Megha and Mathulika which are situated adjacent to each other with that of the applicant‟s residential complex. They have established the Sewage Treatment Plant for treating the sewage generated in the residential complex but that was not in tune with the capacity for treating the sewage generated in the housing complex. Further, due to the defect inthe STP, the sewage generation was not properly happening and untreated sewage was being let into the road causing hardship to others. They received a show cause notice from the 1st respondent dated 19.05.2020 showing cause as to why action under Section 33A of the Water (Prevention and Control of Pollution), 1974 should not be effected against them. According to the applicant, the defect in the STP was due to the negligence on the part of the 2nd respondent without providing necessary pollution control mechanism and system for properly treating the same. Though they sought for prayer to restrain the 1st respondent from further proceeding with the show cause notice, this Tribunal had rejected the prayer at the time of admission and restricted the application for second relief alone.
38. The applicant was also relying on the decision of this Tribunal in OA No.291/2014 (Sandeep Raghurajan Vs Tamil Nadu Pollution Control Board & Ors.) where the STP provided by the VGN Developers Pvt. Ltd. was under consideration, on the basis of the allegations made in the counter, the STP was under the maintenance of the builder and the area was in their possession. It is not known as to whether the facts in OA No.294/2014 and the present case are same or not. It is seen from the Page 29 of 44 facts in that case that an STP was under the management of the 2nd respondent themselves and they did not obtain necessary consent for establishment or operation.
39. It is seen that the capacity of the STP was 500 KLD and number of flats in the complex was 672 residential units. It is not known what is the total construction area whether they were coming under the regime of Environment Clearance etc. If it is coming under the regime of Environment Clearance then automatically the Consent to Establish and Consent to Operate are mandatory.
40. So, under such circumstances it cannot be said that the facts of that case are applicable to the facts of this case and the same directions given in that case can be given in this case as well as prayed for by the applicant in the application, but this Tribunal can consider the question as to whether the STP at the time of establishment was in tune with the capacity required and whether there is any defect even at the time of establishing the same and by virtue of the existing norms, as on the date of commencement of the work whether it requires any consent or clearance and if there is any violation, what is the nature of action to be taken etc. can be considered by this Tribunal under Section 14 and 15 of the National Green Tribunal Act, 2010.
41. As regards the violation of contract between the Developer and the Owner of Flats is concerned, this Tribunal cannot go into that question and that will have to be independently agitated by the applicant before the appropriate forum. The provisions of the RERA Act will not be applicable as even according to the applicant, the construction was prior to the coming into force of that Act. As per EIA Notification, 2006 dated 14.09.2006 issued by the MoEF&CC, under Item 8(a) of Schedule-1 those projects which are having more than 20,000 Sq.M. will come within the purview of obtaining Environmental Clearance(EC) before starting construction which includes expansion as well. The same was reiterated in EIA Notification 2016 dated 15.01.2016, as well.
Page 30 of 4442. It is seen from the Counter Statement of the 2nd Respondent that for Atana Building Complex of which the members of the applicant association are owners, they obtained DTCP local body approval on 15.05.2015 and project completion date was 02.09.2016 and it was handed over on 31.07.2019.
43. It is an admitted fact that all the projects viz., Vasantha, Megha, Madhulika and Atana were constructed by the same builder namely, the 2nd Respondent in the property belonging to them, though it was acquired on different dates, but within a short gap and one after the other.
44. It will be seen from the reply submitted by the 2nd Respondent dated 08.06.2020 to the show cause notice issued by the District Environmental Engineer - Tamil Nadu Pollution Control Board which was produced along with the counter as typeset, he had mentioned the details of permissions obtained for each project which reads as follows:-
Project Approvals Name DTCP Chennai Letter No.4519/2013/BA2 & 23.05.2013 DTCP Chengalpet Letter No.715/2013/CM3 & 28.06.2013 Vasantha Local Body Approval Letter No.715/2013/CM3 & 10.10.2013 DTCP Chennai Letter No.20695/2013/BA2 & 07.02.2014 DTCP Chengalpet Letter No.2304/2013/CM3 & Megah 06.03.2014 Local Body Approval Letter No.16/2013-14 & 14.03.2013 DTCP Chennai Letter No.20212/2014/BA2 & 08.12.2014 DTCP Chengalpet Letter No.2172/2014/CM3 & Madhulika 21.01.2015 Local Body Approval Letter No.11/2014-2015 & 29.01.2015 DTCP Chennai Letter No.6616/2015/BA2 & 18.05.2015 Atana DTCP Chengalpet Letter No.156/2015/CM3 & 12.06.2015 Local Body Approval Letter No.6/2015-2016 & 15.07.2015
45. It is also seen from the counter affidavit filed by the 2nd Respondent regarding the date of completion of each project which was extracted in the counter in a tabular form that the first project approval was obtained on 10.10.2013 and the project completed on 12.01.2015. As regards other three projects viz., Megha, Madhulika and Atana are concerned, Page 31 of 44 approvals were obtained on 14.03.2014, 29.01.2015 and 15.05.2015 respectively and construction completed on 29.02.2016, 26.08.2016 and 02.09.2016 respectively. So, it is clear from this that during the project of „Vasantha‟ was in progress, he had obtained the subsequent plots though by different separate documents and simultaneously applied for building permit and obtained approvals and started the construction also simultaneously. So, when the construction of one project was in progress, other projects were also started and constructions were simultaneously going on during certain period and then it can only be stated as an expansion of the earlier project.
46. In the decision reported in Deepak Kumar Vs. State of Haryana (2012) 4 SCC 629, though it was related to sand mining of smaller extent, the Hon‟ble Apex Court deprecated the practice of dividing the plots either by the Mining Department or by the owners of the land for the purpose of avoiding obtaining Environmental Clearance (EC) as on that date, making it less than 5 Hectare. The Hon‟ble Apex Court, later came to the conclusion that irrespective of the extent of the land, Environmental Clearance (EC) will have to be obtained and even if the smaller extents, on exceptional circumstances, mining activity will have to be permitted, then there must be a cluster environment impact assessment study to be conducted and environment management plan will have to be prepared and only thereafter, the mining license can be granted after insisting for Environmental Clearance (EC).
47. Further, in the decision reported in Key Stone Realtors Private Limited Vs. Anil V Tharthare & Ors. reported in (2020) 2 SCC 66, the Hon‟ble Apex Court had deprecated the practice of amending the Environmental Clearance (EC) without conducting further environment impact assessment and without following the procedure for obtaining Environmental Clearance (EC) for expansion on the ground that if such a practice is allowed, the possibility of impact on environment could not be assessed holistically and the mitigation measures could not be possible.Page 32 of 44
48. It was further observed in the same decision by the Hon‟ble Apex Court "In a case where the text of the provisions requires interpretation, this Court must adopt an interpretation which is in consonance with the object and purpose of the legislation or delegated legislation as a whole. The EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It cannot be disputed that as the size of the project increases, so does the magnitude of the project's environmental impact. This Court cannot adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee or the SEAC, as applicable."
49. If the 2nd Respondent claim is accepted, then there is a possibility of misuse by the builders who can reduce the extent of construction to less than 20,000 Sq.M. for each block, though the blocks are adjacent to each other to escape the need for applying for Environmental Clearance (EC) for commencement of the new blocks along with the first block as part of the expansion, without any environmental impact assessment of such construction which cannot be permitted. Since the Hon‟ble Apex Court had even set aside the amendment of Environmental Clearance (EC) granted for the expansion and insisted for fresh study to be conducted, even though the upper limit in the slab of 20,000 Sq.M. to 1,50,000 Sq.M. was not breached. Since the environment impact of construction of 1,50,000 Sq.M. Project will be drastically more than the construction of 20,000 Sq.M. The above orders were intended for the purpose of protecting the environment against the exploitation of environment by project proponents and it was held that splitting of projects to 20,000 Sq.M. and increasing the project area in piecemeal by obtaining amendment of Environmental Clearance instead of subjecting them to holistic environment impact assessment is not valid.
50. The Joint Committee has not come to any conclusion as to whether it requires Environmental Clearance (EC) or not and it was left to the discretion of the Tribunal to consider the question as to whether in such cases, Environmental Clearance (EC) will have to be insisted or not.Page 33 of 44
51. It will be seen from the documents produced by the Project Proponent themselves that permissions were obtained consecutively but constructions of two or more projects were undertaken simultaneously and the area under construction at a given point of time was more than 20,000 Sq.M. during the period of 2014 (later half), 2015 and greater part of 2016 as can be made out from the date of approvals and date of completion of the projects as reported by the 2nd respondent himself and all the projects were completed within a period of two years from the date of obtaining approval of the first project.
52. Further, if these Blocks (Vasantha, Megha, Madhulika and Atana) together are treated either as a single project or as expansion from second project onwards, then they will have to go for Environmental Clearance (EC) and there is a possibility of conducting proper environment impact assessment and imposing strict conditions like providing greenbelt, ensuring proper Solid Waste Management& Liquid Waste Management, adequacy of the STP and regulation of groundwater extraction besides stipulation of use of non-renewable source of energy etc. and construction may also come under the consent mechanism of the State Pollution Control Board.
53. Even assuming that it is being constructed by different parties, probably if it is less than 20,000 Sq.M., they may not come under the regime of obtaining prior Environmental Clearance (EC), as they cannot be said to be a single project or the project envisaged by a single person or same project proponent. But even at that time, it is for the licensing authorities like DTCP, CMDA and the Greater Chennai Corporation to ascertain the location and whether there are residential complexes available in that area and what would be the impact of construction of such flats by different persons in different plots adjacent to each other on environment and they will have to provide necessary environmental protective mechanism so as to avoid damage being caused to the environment by imposing certain conditions like providing waste management, water usage and liquid waste management and the capacity and adequacy of Page 34 of 44 the STP that is being provided applying the principles of "Precautionary Principle" along with "Sustainable Development".
54. It is well settled law that avoidance of legal provisions by lawful method though permissible to some extent, but if it is evasion of law detrimental to environment cannot be permitted. If splitting of projects is being adopted by the Project Proponent to avoid obtaining Environmental Clearance (EC), then it amounts to evasion. Further, the Hon‟ble Apex Court in Keystone Realtors Private Limited Vs. Anil V. Tharthare & Ors.reported in (2020) 2 SCC 66 has clearly held that the provisions of law should be interpreted in a manner which is in consonance with the object and the purpose of the legislation or delegated legislation as a whole. The Tribunal applying the principles of "Precautionary Principle"
and "Sustainable Development" has got power to expand the jurisdiction to consider the question of impact of such construction as carried out by the 2nd Respondent on the environment and whether that can be brought within the purview of the Environmental Clearance (EC) to ensure that builders do not misuse the provisions by dividing the projects in such a way to avoid getting Environmental Clearance (EC).
55. So, in view of the discussions made above, we are unable to accept the contentions raised by the learned counsel appearing for the 2nd Respondent that since it is independent projects constructed in different plots and at different times with less than 20,000 Sq.M., they will be outside the purview of obtaining prior Environmental Clearance (EC) for the project. It can only be treated as expansion of the project by the same builder after acquiring the lands within short period of time simultaneously and undertaking constructions simultaneously and completing the projects within a shorter time line of two years and handing over the same to the purchasers and he ought to have applied for Environmental Clearance (EC) before starting atleast the subsequent projects in the adjacent lands.Page 35 of 44
56. The attempt of the builder is to evade from obtaining Environmental Clearance (EC) in an illegal manner and divided the project in such a way to make it appear that they are independent project, though the same Project Proponent had envisaged all these projects to be implemented in his mind at the time of starting the first project i.e. Vasantha Project and other three projects can only be treated as expansion of the earlier project. Merely because, he has provided independent compound walls will not in our opinion be sufficient to make it an independent projects by which he can avoid obtaining Environmental Clearance (EC).
57. So under such circumstances, in matters like this, the project proponent has to obtain Environmental Clearance (EC) for the further projects which he had started after starting the first project treating this as an expansion and apply for Environmental Clearance (EC) and constructing such projects without Environmental Clearance (EC) will amount to unauthorized construction against the environmental laws, for which, he is liable to pay environmental compensation. So, we accept the compensation assessed by the Joint Committee viz., Rs.3,29,29,687/- as environmental compensation for proceeding with the construction of the projects including Atana without obtaining Environmental Clearance (EC) and the 2nd Respondent is liable to pay that amount as instead of ordering demolition but applying the "Doctrine of Proportionality" and hardship to be caused to the buyer of the flats as observed by the Hon‟ble Apex Court in Alembic Pharmaceutical Limited Vs. Rohit Prajapati & Ors. reported in 2020 SCC Online SC 347.
58. It is also seen from the counter statement of the 2 nd respondent that as per National Building Code, 2005, the value of the Water supply given as 150 to 200 litres per day may be reduced to 135 litres per head per day for houses of lower income groups and economically weaker sections of society depending upon the prevailing condition. Further, as per the Code the occupant land floor area for residential is 12.5 Sq.M. per person and as per the above classes, the dwelling units put up in Atana Project carpet area/12.5 = 49.84/12.5 = 3.99. The note provides five persons considered for each unit for water supply and STP design calculation. It Page 36 of 44 was not mentioned in the counter statement what was the capacity of the STP that was provided for the purpose of meeting the treatment of sewage generation.If the water supply has to be taken as 150 to 200 litres per head, for a normal building complex which are not coming under the low income groups and economically weaker section of the society, then the capacity of the sewage generation plant must be more than 150 KLD per day.
59. If the water supply capacity is taken as 150 to 200 per head, then the generation on waste water will be much more and the same will not be what was anticipated by the 2nd respondent and capacity of the STP provided will not be sufficient to treat the sewage generated. Further, normally some excess capacity must be provided while designing an STP for meeting contingencies and one is not expected to reduce the capacity even if the quantity of water supply is less taking into account the possibility of number of the occupants in a house being increased.
60. Further, the fact that there is a possibility of overflow and that was discussed among the builder and the owners and the developer had decided to provide tanker lorries for collecting the excess water in the facility for decanting itself shows that STP capacity was not sufficient to meet the requirements even at the time of establishment. It is true that the test report showed that the result is within the norms, which was produced by the 2nd Respondent for the period from 2017-19, but even as per the counter statement that they had undertaken the maintenance work for two years from the date of completion but it is seen from their own statement that the handing over had taken place as regards Atana is concerned was only in 31.03.2017 but there is nothing on record to show that this was handed over to the association as early as on 02.09.2016 and the STP was handed over to them on 31.03.2017. Even according to them, they had undertaken the maintenance for a period of two years and that period expired in June 2019.Page 37 of 44
61. It was seen from the recommendations of the Joint Committee that the STPs were not adequate to treat the sewage generated and these STPs will have to be certified or approved by the competent institutions such as Anna University or IIT for its adequacy, if it is inadequate, then the same will have to be revamped and put into operation. The energy metres, flow metres, etc. will have to be provided to the STP and registers will have to be maintained. There is nothing on record to show that during the period it was maintained by the Developer, those things were maintained by them.
62. So under such circumstances, it is necessary to direct the developer, 2nd respondent to get the STPs examined by an agency certified/approved by the competent authority or institution such as Anna University or IIT, for its adequacy and if it is inadequate the same will have to be revamped and put into operation by them after obtaining necessary consents as per law. Such a responsibility cannot be shirked by the 2nd respondent as there was nothing on record to show that any authorized agency had certified regarding the adequacy of the same before it is being said to have been handed over to the association and the members of the association cannot be held responsible for verifying those technical aspects which ought to have been satisfied by the developer.
63. So, under such circumstances, the 2nd respondent has to engage either Anna University or IIT for the purpose of assessing the adequacy and sufficiency for the STPs provided for Atana of which the applicants members are owners and other complexes and if it is found that it is not adequate then the 2nd respondent is directed to revamp the same and obtain certificate of adequacy and sufficiency meeting the design and Pollution control mechanism to be provided as suggested by the agency appointed by them for this purpose and obtain necessary consent from the Pollution Control Board.
64. As regards the Development of Green Belt and further maintenance etc. after revamping the same will have to be undertaken by the respective association.Page 38 of 44
65. So under such circumstances, we feel that the application can be disposed of with the following directions:-
a. The contention of the 2nd Respondent that they did not require any prior Environmental Clearance (EC), as it is an independent project, is rejected and we hold that it will have to be treated as expansion of the earlier project undertaken by the same builder in the land belonging to them adjacent to each other and designed in such a way to avoid Environmental Clearance (EC) and as such, this will come under the regime of Environmental Clearance (EC) as the expanded capacity will go beyond 20,000 Sq.M. and each project will have to be taken as expansion, as part of the earlier project and they will come under the regime of Environmental Clearance (EC) and the construction made by them without obtaining Environmental Clearance (EC) will be illegal and they are liable to pay environmental compensation for such construction.
b. We accept the amount of Rs.3,29,29,687/- (Rupees Three Crore Twenty Nine Lakhs Twenty Nine Thousand Six Hundred and Eighty Seven only) assessed by the Joint Committee as environmental compensation payable by the 2nd Respondent to the State Pollution Control Board for carrying out the constructions without obtaining Environmental Clearance (EC), as even though the same was assessed on different heads, applying the principles laid down by the Hon‟ble Apex Court in Goel Ganga Developers India Private Limited Vs. Union of India & Ors. reported in (2019) 9 SCC 288.
c. As regards making the construction without obtaining Consent and violation of other environmental laws are concerned, the State Pollution Control Board is directed to assess the compensation independently by giving an opportunity to the 2nd Respondent and then pass appropriate orders and take steps to recover the amount from them in accordance with law.
d. The State Pollution Control Board and the SEIAA -Tamil Nadu are directed to ascertain as to whether any further mitigation measures have to be carried out by the 2nd Respondent in the building complexes, as no environmental impact assessment was Page 39 of 44 done before constructing the projects and if any further steps will have to be taken and if it is suggested by them, then the 2 nd Respondent is directed to implement the same in its letter and spirit and if there is any violation committed by the 2nd Respondent, then that also can be independently dealt with by the SEIAA - Tamil Nadu and the State Pollution Control Board in accordance with law.
e. Whenever independent building projects are envisaged by independent builders adjacent to the existing building complex, then the licensing authority like DTCP/CMDA/Greater Chennai Corporation/Planning Authority/local bodies has to consider the impact of that project though Environmental Clearance (EC) may not be required for independent project by such independent builder, if it is less than 20,000 Sq.M., but they must consider the impact of such project on environment and impose additional conditions to be carried out by the builder in respect of establishment of STP, adequacy of STP, Solid Waste Management, providing greenbelt, usage of groundwater in that area, rainwater harvesting, usage of renewable energy for providing electricity to minimize the usage of fossil fuel based electrical power in the building complex and make each complex, environment friendly complex.
f. The STP provided in Atana and other building complexes namely Vasantha, Megha, Madhulika which were developed by the 2nd respondent are directed to be examined by an institution like Anna University or IIT to be engaged by the developer and examine the adequacy and sufficiency of the capacity of the STP and if it is not adequate to meet the requirement, then the 2nd respondent is directed to revamp the same as suggested by agency appointed by them as directed by this Tribunal and seek consent to operate from Tamil Nadu Pollution Control Board and this will have to be further examined by the Pollution Control Board for grant of Consent to Operate as well, as to whether it meets the environmental norms before fastening the liability on the residents association to maintain it in future.Page 40 of 44
g. The 2nd respondent is also directed to provide the energy meter, flow meter, (inflow and outflow of STP), other facilities required and necessary pollution control mechanism for the D.G. sets provided as it is the responsibility of the developer to install the same before the STPS is handed over to the Association. Once these things are done by the 2nd respondent, the same will have to be verified by the Pollution Control Board regarding its efficacy and sufficiency for granting necessary consent to operate and thereafter, further responsibility to maintain the STP& DG sets is that of the Residents Association. Further, the greenbelt development has to be carried out by the residents association so as to control the pollution that is likely to be caused.
66. The points are answered accordingly.
67. In the result, this Original Application is allowed in part and disposed of with following directions:-
(i) The contention of the 2nd Respondent that they did not require any prior Environmental Clearance (EC), as it is an independent project, is rejected and we hold that it will have to be treated as expansion of the earlier project undertaken by the same builder in the land belonging to them adjacent to each other and designed in such a way to avoid Environmental Clearance (EC) and as such, this will come under the regime of Environmental Clearance (EC) as the expanded capacity will go beyond 20,000 Sq.M. and each project will have to be taken as expansion, as part of the earlier project and they will come under the regime of Environmental Clearance (EC) and the construction made by them without obtaining Environmental Clearance (EC) will be illegal and they are liable to pay environmental compensation for such construction.
(ii) We accept the amount of Rs.3,29,29,687/- (Rupees Three Crore Twenty Nine Lakhs Twenty Nine Thousand Six Hundred and Eighty Seven only) assessed by the Joint Committee as Page 41 of 44 environmental compensation payable by the 2nd Respondent to the State Pollution Control Board for carrying out the constructions without obtaining Environmental Clearance (EC), as even though the same was assessed on different heads, applying the principles laid down by the Hon‟ble Apex Court in Goel Ganga Developers India Private Limited Vs. Union of India & Ors. reported in (2019) 9 SCC 288.
(iii) As regards making the construction without obtaining Consent and violation of other environmental laws are concerned, the State Pollution Control Board is directed to assess the compensation independently by giving an opportunity to the 2nd Respondent and then pass appropriate orders and take steps to recover the amount from them in accordance with law.
(iv) The State Pollution Control Board and the SEIAA -Tamil Nadu are directed to ascertain as to whether any further mitigation measures have to be carried out by the 2nd Respondent in the building complexes, as no environmental impact assessment was done before constructing the projects and if any further steps will have to be taken and if it is suggested by them, then the 2nd Respondent is directed to implement the same in its letter and spirit and if there is any violation committed by the 2nd Respondent, then that also can be independently dealt with by the SEIAA - Tamil Nadu and the State Pollution Control Board in accordance with law.
(v) Whenever independent building projects are envisaged by independent builders adjacent to the existing building complex, then the licensing authority like DTCP/CMDA/Greater Chennai Corporation/Planning Authority/local bodies has to consider the impact of that project though Environmental Clearance (EC) may not be required for independent project by such independent builder, if it is less than 20,000 Sq.M., but they must consider the impact of such project on environment Page 42 of 44 and impose additional conditions to be carried out by the builder in respect of establishment of STP, adequacy of STP, Solid Waste Management, providing greenbelt, usage of groundwater in that area, rainwater harvesting, usage of renewable energy for providing electricity to minimize the usage of fossil fuel based electrical power in the building complex and make each complex, environment friendly complex.
(vi) The STP provided in Atana and other building complexes namely Vasantha, Megha, Madhulika which were developed by the 2nd respondent are directed to be examined by an institution like Anna University or IIT to be engaged by the developer and examine the adequacy and sufficiency of the capacity of the STP and if it is not adequate to meet the requirement, then the 2nd respondent is directed to revamp the same as suggested by agency appointed by them as directed by this Tribunal and seek consent to operate from Tamil Nadu Pollution Control Board and this will have to be further examined by the Pollution Control Board for grant of Consent to Operate as well, as to whether it meets the environmental norms before fastening the liability on the residents association to maintain it in future.
(vii) The 2nd respondent is also directed to provide the energy meter, flow meter, (inflow and outflow of STP), other facilities required and necessary pollution control mechanism for the D.G. sets provided as it is the responsibility of the developer to install the same before the STPS is handed over to the Association. Once these things are done by the 2nd respondent, the same will have to be verified by the Pollution Control Board regarding its efficacy and sufficiency for granting necessary consent to operate and thereafter, further responsibility to maintain the STP& DG sets is that of the Residents Association.
Further, the greenbelt development has to be carried out by the residents association so as to control the pollution that is likely to be caused.
Page 43 of 44(viii) Considering the circumstances, parties are directed to bear their respective costs in the application.
(ix) The Registry is directed to communicate this order to the official respondents, SEIAA - Tamil Nadu, MoEF&CC, State Pollution Control Board, Director - DTCP, CMDA, Greater Chennai Corporation, Additional Chief Secretary to Government, Department of Municipal Administration and Water Supply, Additional Chief Secretary to Government, Environment, Climate Change and Forests and Principal Secretary to Government, Department of Housing and Urban Development for their information and compliance of directions.
68. With the above directions and observations, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, J.M. Sd/-
Dr. Satyagopal Korlapati, E.M. O.A. No.106/2020 (SZ) 14th July 2022. SE & Mn.
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