National Green Tribunal
Kissan Udey Samiti vs State Of Haryana on 1 October, 2020
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 04 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 764/2018
(M.A. No. 175/2019)
Kissan Udey Samiti Applicant
Versus
State of Haryana & Ors. Respondents
Date of hearing: 01.10.2020
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S. P. WANGDI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicant: Mr. Shiv Charan Goel, Advocate
Respondents: Mr. Anil Grover, Senior AAG and Mr. Rahul Khurana, Advocate
for State of Haryana and HSPCB
Mr. Aman Bhalla, Advocate for CPCB
ORDER
1. Remedial action for violation of environmental norms on account of not providing proper sanitation system and sewage system in buildings constructed in Sectors 58 to 64 at Kundli, District Sonepat, Haryana depicted by the photographs filed with this application is the question for consideration.
2. The matter was earlier considered in the light of the report of Chief Secretary Haryana dated 19.06.2019, 05.07.2019 and 28.08.2019 based on inspection conducted by the State PCB, District Town Planner, Haryana Sehari Vikas Pradhikaran (HSVP) and Municipal Council Sonepat finding serious violations of environmental norms in the building project in question and suggesting short term and long term 1 action plans. After considering the findings and observations in the inspection report, the Tribunal observed:-
"5. From the above report, violations of Environment laws by the units in question can be briefly summed up as follows:
a) No prior Environmental Clearance & CTE was obtained
b) The projects have been constructed without obtaining Environmental Clearance and without CTE/CTO from HSPCB.
c) In terms of STP, the deficiencies observed during sampling relates to absence of flow meter at the inlet of STPs, non-
maintenance of log book, the outlet of STPs are exceeding the prescribed limits of board, etc.
d) Untreated effluents from STPs are being discharged either through tanker or on open land near village Nagal for percolation.
e) The units are non-complying with SWM Rules and no facility for collection segregation and disposal of solid waste exists
6. Fourth report has been filed on 22.10.2019 by the State Pollution Control Board (SPCB) to the effect that total amount of Rs. 1.32 crore has been levied as environmental compensation and temporary arrangement was being made for management of sewage system. Further compensation is yet to be assessed.
7. The period of violations is 2 years or more. The turnover of the projects is in hundreds of crores. The deficiencies are in the knowledge of the project proponents who are in regular business. During inspections noted above, project proponents have become further aware of the shortcomings. Though Environment is priceless, quantum of Environment Compensation has to be adequate to restore the environment and must have deterrent aspect so that such violations are not profitable. No lenient attitude can be shown nor can such matters be unduly prolonged.
8. Legal position in this regard is settled. In Vellore Citizens Welfare Forum vs. Union of India (UOI) and Ors1, the Hon'ble Supreme Court interpreted "Polluter Pays" principle by stating that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. It was further observed on the basis of principle laid down in M.C. Mehta and Anr. vs. Union of India and Ors.,2 that a person undertaking an activity involving hazardous or risky exposure to human life is 1 (1996) 5 SCC 647 2 (1987) 1 SCC 395 :
2strictly liable for injury suffered by another person, irrespective of any negligence or carelessness on part of the managers of such undertaking. Pollution cannot be allowed to be profitable activity. The environment is priceless. Intentional violations have to be visited with more stringent damages than accidental or unintended. We have taken into account the principles for determining quantum of damages laid down, inter-alia, in Sterlite Industries (India) Ltd. v. Union of India (2013) 4 SCC 575 : ¶ 47, T.N. Godavarman Thirumulpad v. UOI & Ors. (2006) 1 SCC 1 : ¶ 1, Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors. (1996) 3 SCC 212 : ¶ 67, Vellore Citizens Welfare Forum v. UOI , (1996) 5 SCC 647 : ¶ 11 to 13, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 : ¶ 10 , Public Trust Doctrine, ¶ 24, M.C. Mehta v. UOI & Ors., W.P (C) No. 13029/1985 order dated 24.10.2017, MCD v. Uphaar Tragedy Victims Association (2011) 14 SCC 481 : ¶ 99, 100, Vadodra Municipal Corporation v. Purshottam v. Murjani & Ors. (2014) 16 SCC 14 : ¶ 17 and M. C. Mehta & Anr. v. Union of India (1987) 1 SCC 395 : ¶ 32.
9. In the light of above settled principles, the action taken by the SPCB does not match the facts found in the inspection report dated 16.07.2019 filed by a joint Committee comprising of officers of the State Government. The violations, noted above, are of very serious nature and possibility of collusion of the officers of the State is not ruled out in permitting such violations and in failing to take requisite actions. The compensation assessed being grossly inadequate and disproportionate and the action of the SPCB being too slow shows the SPCB lacks necessary sensitivity for enforcing the rule of law or there is collusion at some level to cover up the illegality.
10. We accordingly direct the Chief Secretary, Haryana to consider referring the matter to vigilance or otherwise to ascertain intentional and collusive violation of law. The Chief Secretary may also oversee remedial action for speedy enforcement of environmental norms in the interest of health of the inhabitants.
11. Further, we find it necessary to constitute a joint Committee comprising representatives of CPCB, MoEF&CC and IIT Delhi to suggest realistic compensation to be recovered, apart from other actions to be taken. The Committee will be assisted by the SPCB Haryana. The CPCB will be the nodal agency.
12. Pending further consideration, in the light of above findings in the inspection report, we are prima facie of the opinion that interim compensation as follows needs to be recovered:
Sl. Name of the Units Interim No. Compensation
1. M/s TDI Infrastructure Ltd, (For TDI Rs. 10 Crores Kingsburry Apartments), G.T. Road, Sonipat-
2. M/s TDI Infrastructure Ltd, My Floor 2, Rs. 2.5 Crores Sector-60, Sonipat.
3. M/s TDI Infrastructure Ltd, Tuscan City, Rs. 2.5 Crores 3 Sector-58, Sonipat-
4. M/s CMD Built-Tech Pvt. Ltd. (Ushay Rs. 2.5 Crores Towers), Sector-61, Kundli, Sonipat-
5. M/s Parker Estate Development Pvt. Ltd., Rs. 2.5 Crores Sector-61, Kundli, Sonipat.
6. M/s Narang Constructions & Financiers Rs. 2.5 Crores Pvt. Ltd. (Max Height), Sector-62, Kundli, Sonipat.
13. The amount may be recovered by the State PCB and spent for restoration of the environment. The interim compensation will abide by final determination of compensation by the SPCB after following due procedure, including hearing the affected parties, in the light of the report of the joint Committee constituted as above. The Committee may give its report within three months by e-mail at [email protected] and a copy thereof may also be provided to the State PCB and the Project Proponents so the Project Proponents will have the opportunity to contest the same before the State PCB or in any other proceedings. We have not considered necessary to hear the Project Proponents at this stage in view of patent violations at this stage shown by an independent inspection report and also in view of the fact that they will have sufficient opportunity after an expert report is available. We find adequate material for forming prima facie opinion about the quantum of Interim Compensation to be recovered."
3. Accordingly, the joint Committee has filed its report on 21.02.2020 determining the relevant extract from the said report as follows:-
"Based on calculation made in table 2 and 3, total EC estimated is mentioned in table - 4 S. Name of No. of Days EC for Solid Waste Total No. Banquet violation (in non- Environmental Rs.) compliance Compensation EC (in Rs.) (in Rs.)
1. M/s TDI 2826 15,63,13,125 2,85,95,040 18,49,08,165 Infrastructure Ltd. (For TDI Kingsburry Apartment), G.T. Road, Sonipat
2. M/s TDI 815 4,50,79,687.5 11,77,104 4,62,56,792 Infrastructure Ltd., My Floor 2, Sector - 60, Sonipat
3. M/s TDI 2022 11,18,41,875 23,60,966.4 11,42,02,841 Infrastructure Ltd. Tuscan City, Sector -
58, Sonipat
4. M/s CMD 658 3,63,95,625 1,77,120 3,65,72,745 Built-Tech Pvt. Ltd.4
(Ushay Towers), Sector - 61, Kundli, Sonipat
5. M/s Parker 830 4,59,09,375 11,79,360 4,70,88,735 Estate Development Pvt. Ltd., Sector - 61 Kundli, Sonipat
6. M/s Narang 966 5,34,31, 875 16,06,656 5,50,38,531 Construction & Financiers Pvt. Ltd. (Max Height), Sector - 62, Kundli, Sonipat CONCLUSION In addition to the assessment carried out by Joint Committee, EC on 06 Housing Societies as listed in table 4 above, following observations were made:
i. Basic infrastructure for common facilities including Sewage management (collection, treatment and disposal of sewage) and solid waste management ( collection, processing and Disposal), for the specified area should be planned / developed by the concerned local authorities (in this case Haryana Shahari Vikas Pradhikaran, (HSVP) formerly Haryana Urban Development Authority(HUDA) before awarding license to builders for development of individual housing societies in the area by the concerned authorities (in this case Town and Country Planning, Haryana).
ii. However, in present case, Town and Country Planning Haryana has approved Change of Land Use and awarded license for development of individual housing societies to builders before planning & development of basic infrastructure for common facilities including Sewage and solid waste management by HSVP. Adequate infrastructure required for common facilities for sewage and solid waste for the area is yet to be developed for the area.
iii. It was also noted that it is difficult to develop these common facilities once the housing societies come up as the land required for development of these facilities has not been earmarked/procured 5 iv. In absence of sewerage system, both treated / untreated sewage from housing societies is being discharged in adjoining areas.
v. As per conditions of Environment Clearance, housing societies have to treat sewage up to tertiary level and utilize in landscaping, gardening, toilet flushing, cooling tower etc. and remaining treated wastewater may discharge to final disposal system.
vi. CTO issued by SPCB has stipulated compliance of all EC Conditions, however specific conditions regarding the level of treatment, extent of reuse of treated water, discharge standards and mode of disposal of treated water is to be included vii. Town and Country Planning Haryana has granted Occupancy Certificate (OC) prior to issuance of Consent to Operate (CTO) by the SPCB.
viii. All the Housing Societies shall ensure reuse of treated sewage as per CPHEEO guidelines for point use. Standards is attached at Annexure-III. Excess treated sewage shall discharge to HSVP sewerage network In view of the above, Committee has opined that responsibilities of discharge of untreated sewage and improper Solid Waste management shall also be vested with the following authorities:
i. Town and Country Planning Haryana for granting license to builders prior to development of infrastructure related to sewerage system and granting OC before issuance of CTO;
ii. HSVP for development of basic infrastructure for sewage and solid waste management of the area."
4. The status report has been filed on 13.09.2020 by the State PCB which refers to an order of the Hon'ble Supreme Court dated 11.09.2020 in Civil Appeal No. 003177/2020, Diary No. 17702/2020, M/s Parker Estate Developers Pvt. Ltd. v. Kissan Udey Samiti & Ors. as follows:-
"While finding certain violations that were committed by the appellant, Haryana State Pollution Control Board imposed interim environmental compensation of Rs.27,37,500 on the appellant in C.A. Diary No.17702/2020.
It is submitted by Mr. Sumeer Sodhi that the appellant in C.A. Diary No.18310/2020 has deposited the interim compensation amount of Rs.6,37,500/- imposed by the Haryana State Pollution Control Board.6
In O.A.No.764 of 2018, Kissan Udey Samiti sought for remedial action for violation of environmental norms from the defaulters for not providing proper sanitisation and sewage system in constructing buildings in Sectors 58-64 at Kundli District, Sonepat. The National Green Tribunal ('the Tribunal') sought a report from the Chief Secretary of Haryana. The recommendations made by the Committee constituted by the State of Haryana was placed before the Tribunal. After perusing the report, the Tribunal imposed 2.5 crores as interim compensation.
The interim compensation was made subject to final determination of the compensation to be fixed by the State Pollution Control Board after hearing the Project Proponents. It is clear from the order passed by the Tribunal that appellants were not heard. Issue notice returnable after eight weeks on the condition that the appellant(s) shall deposit 50% of the interim compensation imposed on them before the Tribunal, with the Registry of this Court within a period of eight weeks.
However, the appellants shall appear before the State Pollution Control Board as directed by the Tribunal. The State Pollution Control Board shall give an opportunity to the appellants before passing a final order without being influenced by the interim compensation imposed by the Tribunal.
The recovery proceedings are stayed for a period of 8 weeks within which the amount of 50% of the interim compensation shall be deposited. In default, the recovery proceedings shall revive."
5. In the said report it is further mentioned as follows:-
"3. That prosecution action against all the Builders as mentioned in above table has been taken by filing complaint in Special Environment Court, Kurukshetra.
4. That no occupation/ completion certificate and fresh CTO is being issued in sector 58 to 64 by Town Country Planning Department and HSPCB.
5. That Haryana Shahari Vikas Pradhikaran (HSVP) submitted the time bound action plan for laying of sewer line to the existing 7.5 MLD STP at village RGC, Pattla. The work of laying of sewage line has been completed as informed vide letter dated 19.06.2020. The HSVP has issued letter to each colonizer operating in sector 58 to 64 for connection of sewage pipe line laid down by HSVP. Copy of letter dated 16.06.2020 issued by the HSVP is annexed herewith as Annexure-R/1. Sanction to 6 projects for sewer connection 1 we been issued by HSVP as per report submitted dated 30.09.2020. The report is annexed herewith as Annexure- R/2.
6. That Town Country Planning, Department has floated 1)Nlf for installation of new STP with capacity 15 MLD. The Construction of 15 MLD STP (Phase-I) near village Aterna for sector 58 to 04 Urban Estate Sonipat amounting to Rs. 32 Crore 7 has been started and the work would likely to be completed by 31.12.2020 as informed by HSVP vide letter dated 19.06.2020.
7. That these Protect proponents have not submitted Environment Compensation as imposed by Hon'ble NGT therefore letter dated 20.03.2020 has been send to Deputy Commissioner, Sonipat for recovery of Environment Compensation. Accordingly, Summon were issued by Tehsildar, Rai asking to deposit the Environment Compensation on 31.08.2020 as imposed by Hon'ble NGT.
8. That 02 projects i.e. M/s Parker Estate Developers Pvt. Ltd. and M/s Pardeshi Developers Pvt. Ltd. (M/s CMK M/s CMD Built-Tech Pvt. Ltd) tiled Civil Appeal before Hon'ble Supreme Court of India. The order dated 11.09.2020 passed by Hon'ble Supreme Court is annexed herewith as Annexure-R/3. One Project M/s TDI Infrastructure Ltd. approached the High Court of Delhi by way of Writ Petition (Civil). Copy of order dated 22.09.2020 is annexed herewith as Annexure-R/4.
9. The projects as mentioned in above said table has submitted representation for the Compensation as imposed by Joint Committee constituted by Hon'ble NGT. The project proponents have been directed to submit interim compensation as imposed by Hon'ble NGT."
6. In view of the above, we defer the proceeding to await further action in the matter in pursuance of the order of the Hon'ble Supreme Court.
M.A. No. 175/2019 has been filed by the applicant for stopping illegal construction and launching prosecution. The applicant may serve a copy of the application on the concerned authorities. The said application may be first considered by the State PCB in coordination with other concerned Authorities of the State of Haryana and a factual and action taken report filed before the next date by e-mail at judicial-
[email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
List for further consideration on 20.01.2021.
Adarsh Kumar Goel, CP 8 S. P. Wangdi, JM Dr. Nagin Nanda, EM October 01, 2020 Original Application No. 764/2018 A 9