National Green Tribunal
Tanaji Balasaheb Gambhiretanaji ... vs Union Of India Through Secretary Moef & ... on 24 February, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 34/2020(WZ)
Tanaji Balasaheb Gambhire Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 24.02.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Nitin Lonkar, Advocate
Respondent(s): Ms. Mansi Joshi, Advocate for MPCB
Mr. Rahul Garg, Advocate for PMC
Mr. Aniruddha Kulkarni, Advocate for SEIAA
Mr. Saurabh Kulkarni, Advocate for R - 13
ORDER
1. Grievance in this application is against setting up of construction projects by M/s Padmavati Associates, Pune without requisite Environmental Clearances (EC) and in violation of other environmental norms as per details mentioned in the application. The Tribunal sought a report from a joint Committee comprising SEIAA, State PCB and Municipal Corporation, Pune. The Committee has filed its report dated 24.08.2020 mentioning the violations found.
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2. The matter was considered earlier on 17.11.2020 and was deferred to enable the learned Counsel for the parties to address the Tribunal on the issue of limitation first. On 01.12.2021, the application was admitted and notices were issued to the contesting respondents, including SEIAA, Maharashtra, State PCB, Pune Municipal Corporation and the Project Proponent-M/s Padmavati Associates, Pune. The Project Proponent has filed reply on 12.11.2020, followed by additional affidavit filed on 03.03.2021. The applicant has filed a rejoinder on 22.10.2021.
3. We have heard learned Counsel for the parties and perused the pleadings as well as the report of the joint Committee.
4. The report of the joint Committee shows that there are two separate projects i.e. Pristine Prism & Pristine Royal (which are two projects in same complex and thus treated as one) and Pristine Privilege. In first project, there are five buildings with built up area of more than 55,000 sq. mtrs. In the second project, the built up area is 4973.74 sq. mtrs. For the first project, EC is required being more than 20000 sq mts but has not been obtained though ex-post facto EC and consent to establish and consent to operate have been sought. For the second project, EC was not required but no consent has been taken under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. The Committee has given its point-wise observations with reference to the points raised in the application as follows:-
"3. Point wise observations:-
Sr. No. Point examined Observations
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1 The project proponent has not As per the aforementioned particular
complied with environmental no.2.1, it is clear that the Project
norms by non-obtaining of Proponent has carried out construction
mandatory prior activity for TBA-55862.25 SQM for project
Environmental Clearance, Pristine Prism & Pristine Royal without
Consent to Establish, taking prior Environmental Clearance and
Consent to Operate. has also not obtained consent to establish
& consent to operate under Water (P & CP)
Act 1974 and Air (P & CP) Act, 1981.
PP has now applied forprior
Environmental Clearance to MoEFCC, New
Delhi on 09.09.2019.
Environment Department, Gov. of
Maharashtra, vide letter dated
29.08.2019 issued proposed directions to
M/s. Padmavati Associates u/s 5 of the
Environmental (P) Act 1986 r. w. EIA
Notification-2006 dated 14.09.2006 and
to the Commissioner, Pune
Municipal Corporation, Pune, on
16.11.2019. In response to this
direction, PMC has
issued notice to PP on 13.12.2019.
MPC Board has also issued proposed
directions u/s. 33 A of Water (P & CP) Act,
1974, 31 A of Air (P & CP) act, 1981 on
03.03.2020.
As per the aforementioned particular
no.2.2, it is clear that the project Pristine Prism has TBA- 4973.74 Sq.M and is below 20,000 Sq.M. Therefore, it neither attracts prior Environmental Clearance under EIA Notification 2006, nor consent to establish, consent to operate under Water (P & CP) Act 1974 and Air (P & CP) Act, 1981.
2 The part of the project is affected Both the buildings of Pristine Royal are by blue line of Mula River and within the zone of Blue and Red flood lines. Buildings A, B, C1 & C2 are PMC has informed that the practice of showing following under blue flood line of Flood Zone by Blue & Red lines on the the Mula River. Development plan started in 2017. It appears that Above said project were completed in 2015 when there was no practice of depicting the river flood zone on the building proposal drawings.
3 PP is extracting Huge quantity of No bore wells are observed in premises during
ground water from three borewell the visit.
and not obtained CGWA
permission for ground water
extraction, not made
test of ground water.
4 PP has not provided Solid Waste PP has installed OWC of capacity 130 KG/D
treatment & OWC units and in Pristine Prism and 75 KG/D in Pristine
waste is dumped to PMC yard. Royal. However, OWC of Pristine Royal is
not in operation.
5 PP has not provided any energy In both the projects solar heater system is
conservation system for energy provided to all the buildings.
savings.
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6 PP has not provided The committee cannot corroborate the
any rainwater harvesting claim of the provision of the rain water
system. harvesting system as the said chambers
could not be opened.
7 PP has not provided 10 % It is the opinion of the PMC that the
recreational open on virgin land recreation open spaces that are found only
on the Podium are as per their circular.
8 Not preserved top layer of fertile All buildings are already constructed; as such
soil and no soil test. the committee is unable to offer any comments
on soil preservation.
9 PP has not made tree plantation Many trees are observed in the project premises
as per the norms of required and as per the certification of the Tree Authority
trees. PMC dated 18.03.2015, 285 trees are planted.
This number appears to be adequate.
10 PP has provided swimming tank PP has provided two swimming pools in
giving additional burden on the Pristine Prism and in Pristine Royal as per
ground water. the revised plan that is approved on
03.07.2018.
11 PP has installed 6 DG set at PP has installed 160 KVA DG set in M/s.
project site causing air pollution. Pristine Prism and 125 KVA in Pristine Royal.
12 Huge quantity of sewage PP has installed 160 CMD capacities STP in water generated, and PP has not Pristine Prism; however it is not in operation provided STP. and untreated domestic waste is drained in PMC sewer line. Pristine Royal has no STP.
13 PP has not provided fire and PP has obtained final fire NOC from PMC on safety system at site and there 13.07.2015 and previously on 17.06.2009. is no approach road for fire engine. The committee has observed that the fire tender can manoeuvre in the premises so as to carry out the rescue operation.
14 PP has not provided the No ramp for inter floor vehicular ramp slope in the ration of 1:10 movement is observed in the project premises.
15 PP has not provided side As informed by the PMC, PP has margins, 15 % amenity space, as developed project as per the proposal per DC rules, not provided 10 % drawings approved by them. All open open space on virgin land, not spaces [front, rear, & side], and the provided DP road windingarea of recreation open spaces on the podium are 1270 sqm meters and not hand as per the approvals and thereby in over to PMC, not developed conformity with the DC Rules (1987) and green belt area of 3000 sqm as their own circular. 15% amenity space is shown in DP plan. not required as per provisions of DC Rules (1987) No.13.8.The PP has also developed the green area between the river and the D.P. road that passes through the plot.
5. In the reply of the Project Proponent, apart from plea of limitation it is stated that projects were set up after necessary commencement certificates and occupation certificates have also been issued which are as follows:-
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a. Commencement Certificate No. 4407/05, dated 18/03/2006 issued by PMC. (S. No. 6/2 867 at Aundh, Pune - 411007) b. Revised Commencement Certificate No. 2951/06, dated 15/11/2006 issued by PMC. (S. No. 6/2 & 7 at Aundh, Pune - 411007) c. Revised Commencement Certificate No. 1991/ 07, dated 04/10/2007 issued by PMC. (S. No. 6/2 86 7 at Aundh, Pune
- 411007) d. Revised Commencement Certificate No. 1971/ 09, dated 04/08/2019 issued by PMC. (S. No. 6/2 & 7 at Aundh, Pune
- 411007) e. Revised Commencement Certificate No. 2449/09, dated 04/11/2019 issued by PMC. (S. No. 6/2 & 7 at Aundh, Pune
- 411007) f. Revised Commencement Certificate No. 3099/10, dated 13/12/2019 issued by PMC. (S. No. 6/2 8s 7 at Aundh, Pune - 411007) g. Commencement Certificate No. 1006/12, dated 25/06/2012 issued by PMC. (S. No. 6/2 867 at Aundh, Pune - 411007) h. Revised Commencement Certificate No. 0046/15, dated 08/04/2015 issued by PMC. (S. No. 6/2 & 7 at Aundh, Pune
- 411007)"
6. Explaining the absence of requisite EC, it is stated that at the time of seeking commencement certificate/completion certificate, no such requirement was indicated to the Project Proponent. EC has now been applied on 09.09.2019 for the project where the built up area is more than 20,000 sq. mtrs. If built up area is less, no EC is required. Consideration of the matter and order
7. We first deal with the issue of limitation. The application has been filed on 29.06.2020. Even according to the Project Proponent, the projects were continuing beyond 30.06.2015 and thus, threshold bar which applies to proceedings filed five years after the accrual of cause of action is not attracted.
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8. On merits, there are thus, violations which can been looked into by this Tribunal and have to be remedied either by compliance or by compensation on polluter pays principle. The first violation is failure to obtain prior EC for the project of more than 20,000 sq. mtrs. The Project Proponent has applied for ex-post facto EC on 09.09.2019. Explanation that the PP was not informed about the requirement of EC while issuing commencement certificate cannot be accepted as ignorance of law is no excuse. The matter is covered by Alembic 2020 SCC online 347 and Keystone vs. Anil Tharthare (2020) 2 SCC 66. This apart, there are other violations. Part of constructions is in blue and red flood lines of river Mula. According to the Committee, till 2017, this part was not being complied with. Had EC/consent been sought, this could have been got complied. The PP has benefitted itself by this violation. STP has not being provided in the project with more than 20,000 sq. mtrs for atleast some of the buildings. Further, there is no explanation about the source of water for the swimming pools, if not illegal extraction of groundwater. Oral explanation that water is brought by tankers is neither substantiated nor probable. Open areas have been provided only on podium which according to the Committee is in conformity with the DC Rules, ignoring the law laid down in Municipal Corpn. of Greater Mumbai v. Kohinoor CTNL Infrastructure Co (P) Ltd., (2014) 4 SCC 538 as follows:
"27. Having noted these submissions, it is seen that a podium is permissible only on plots admeasuring 1500 sq m or more. So this provision is not applicable to plots smaller than 1500 sq m. As can be seen from DCR 23(1)(a), it speaks of a layout or sub-division of "vacant land" and open spaces. The open spaces "shall as far as possible" be provided in one place. If a layout or sub-division is more than 5000 sq m, open space can be provided in more than one place, but at least one such place "shall be of not less than 1000 sq m". These provisions clearly show that they are mandatory. Besides, under sub-clause (f) of DCR 23 there is a requirement of keeping the recreational open space permanently open to the sky and trees are to be grown in that space as laid down i.e. five trees per hundred square metres of the recreational space within the plot. DCR 2(64) defines "open space" to mean an area forming an integral part of a site left open to the sky. A 6 "site" is defined under DCR 2(83) to mean a parcel or piece of land enclosed by definite boundaries. These DCRs when read together, very much make it clear that the recreational/amenity space has to be on the land i.e. on ground level and it has got to be 15%, 20% or 25% of the area depending upon its size.
28. As rightly pointed out by the learned Senior Counsel Mr Nariman and Mr Salve, the requirement of recreational space on the podium under DCR 38(34)(iv) is discretionary. Besides, as the abovereferred sub-clause (iii) lays down, podium shall be basically used for parking. Besides, sub-clause (iv) does not contain a non obstante clause to override the requirement under DCR 23 making it mandatory to provide recreational space on the ground floor. That being so, the provision under DCR 38(34) cannot be read in derogation of the requirement under DCR 23 or else it will result into serious erosion in the basic requirements for a good life affecting the guarantee of right to life, under Article 21 of the Constitution of India. We have therefore to read down sub- clause (iv) of DCR 38(34) as inapplicable and not excluding the mandatory provision under DCR 23.
29. It is also relevant to note that the development schemes under DCRs 33(7), 33(9) and 33(10) provide for lesser recreational area/amenity spaces. Thus, under DCRs 33(7) and 33(10) reduction in the amenity open space is permitted to make the project viable, but still minimum 8% of the project area is required to be maintained as amenity open space. Similarly, for the schemes under DCR 33(9) minimum 10% of the plot area is required to be retained as recreational space. In other properties, where there are no such constraints to make the development schemes of rehabilitation or reconstruction of old buildings or slums viable, there is no reason why the amenity open space at the ground level should be read as permissible, to be reduced. The only ground being given is to provide more parking and more accommodation, meaning thereby more construction, concretisation and financial expediency. Such a purpose cannot be read into the provisions as they presently exist, nor is it desirable to do so from the point of view of the requirement of minimum open spaces at the ground level.
30. Besides, as pointed out by Mr Divan, the requirement of having trees and open land around them is necessary from an environmental point of view, since there is already excessive concretisation, and a very serious reduction in open spaces at the ground level. It must be noted that the right to a clean and healthy environment is within the ambit of Article 21, as has been noted in Amarnath Shrine, In re in the following words:
"12. The scheme under the Indian Constitution unambiguously enshrines in itself the right of a citizen to life under Article 21 of the Constitution. The right to life is a right to live with dignity, safety and in a clean environment."
The right to a clean and pollution free environment, is also a right under our common law jurisprudence, as has been held by this Court in Vellore Citizens' Welfare Forum v. Union of India5 where this Court held: (SCC p. 660, para 16) "16. The constitutional and statutory provisions protect a person's right to fresh air, clean water and pollution-free environment, but the source of the right is the inalienable common law right of clean environment."
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31. In the same judgment the Court emphasised the importance of sustainable development, and the need for a balance between development and ecological considerations, in the following words:
(Vellore Citizens' Welfare forum case5, SCC pp. 657-58, para 10) "10. The traditional concept that development and ecology are opposed to each other is no longer acceptable. 'Sustainable Development' is the answer ... 'Sustainable Development' as defined by the Brundtland Report means 'development that meets the needs of the present without compromising the ability of the future generations to meet their own needs'. We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalised by the international law jurists."
32. Therefore, after reflecting upon the legal position, we are clearly of the opinion that having 15%, 20% or 25% of the area (depending upon the size of the layout) as the recreational/amenity area at the ground level is a minimum requirement, and it will have to be read as such. We therefore, answer Issue (i) by holding that it is not permissible to reduce the minimum recreational area provided under DCR 23 by relying upon DCR 38(34). However, if the developers wish to provide recreational area on the podium, over and above the minimum area mandated by DCR 23 at the ground level, they can certainly provide such additional recreational area."
9. The report shows that the State PCB has issued notice under Section 31A of the Water Act but the violations alleged and further action taken is not known. The report also shows that STP was not functional and sewage was being discharged into drain. OWC was also not properly functioning. Stabilized waste for use as soil conditioner. Rejects were to be channelised through authorized agency. The report proceeds on the basis that projects not requiring EC do not require consent under the Water and the Air Acts.
10. It is observed in several matters that residential societies are facing the issue of lack of proper sewage and solid waste management system. This requires the concerned authorities to lay down standards for disposal of sewage effluent and existence of sewerage system in housing societies including those not requiring EC to enforce the water and air quality standards and clarify that even if EC is not required, consent mechanism is not dispensed with. MoEF&CC and CPCB may take necessary action in this regard within three months.
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11. With regard to the present case, in view of above discussion, we direct a joint Committee of SEIAA, Maharashtra, State PCB and Pune Municipal Corporation to take further remedial action to fix liability for the violations, including assessment and recovery of compensation. The Committee may also prepare plan for restoration out of the compensation, to be recovered from the PP. Compensation assessment and action plan preparation may be done within one month which may be executed in an appropriate manner, including with the association of the Project Proponent, if found viable.
The application is disposed of.
A copy of this order be forwarded to MoEF&CC, CPCB, SEIAA, Maharashtra, State PCB and Pune Municipal Corporation by e-mail for compliance.
Adarsh Kumar Goel, CP Brijesh Sethi, JM Dr. Nagin Nanda, EM Prof. A. Senthil Vel, EM Dr. Vijay Kulkarni, EM Dr. Afroz Ahmad, EM February 24, 2022 Original Application No. 34/2020(WZ) SN 9