National Green Tribunal
Tanaji Balasaheb Gambhiretanaji ... vs Union Of India Through Secretary Moef & ... on 8 May, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
(By Video Conferencing)
Original Application No. 38/2020 (WZ)
I.A. No. 48/2020(WZ)
IN THE MATTER OF :
1. Mrs. Tanaji Balasaheb Gambhire
Age: Adult, Occupation: Self Employed,
R/o- CTS-296, Shukrawar Peth, Laxmi Apartment,
White House Lane, Near Shivaji Maratha High School,
E-mail: [email protected]
.....Applicant
Versus
1. Union of India Through Secretary,
Ministry of Environment and Forest
Paryavaran Bhawan, CGO Complex,
Lodhi Road, New Delhi-110001
Email: [email protected]
2. Chief Secretary,
Government of Maharashtra,
Annex Building, Mantralaya, Fort,
Madham Kama Road, Mumbai-400032, Maharashtra
E-mail- [email protected]
3. The Principle Secretary, Environment Department,
Government of Maharashtra,
Room No. 217, 2nd Floor, Annex Building,
Mantralaya, Fort, madham Kama Road,
Mumbai-400032, Maharashtra,
Email: [email protected]
4. State Level Environment Impact Assessment Authority-
Maharashtra(SEIAA)
Through Member Secretary
15th Floor, New Administrative Building,
Mantralaya, Fort, Madham kama Road,
Mumbai-400032, Maharashtra,
E-mail: [email protected]
5. State Expert Appraisal committee (III) Maharashtra (SEAC-III)
Through Member Secretary
15th Floor, New Administrative Building,
Mantralaya, Fort, Madham Kama Road,
Mumbai-400032, Maharashtra,
Page 1 of 69
E-mail: [email protected]
6. Maharashtra Pollution Control Board,
Through Member Secretary,
Laptaru Point, 3rd Floor, Near Sion Circle,
Opp. Cine Planet Cinema, Sion (E),
Mumbai-400022, Maharashtra,
Email: [email protected]
7. Maharashtra Pollution Control Board,
Through Regional officer,
Jog Centre, 3rd Floor, Mumbai- Pune Old Highway,
Wakadewadi, Pune-411003, Maharashtra,
E-mail: [email protected]
8. M/s. Mahabal Enviro Engineers Private Limited
Having its office at: Plot No. F-7 Road No. 21, MIDC
Wagle Estate, Thane west- 400604, Maharashtra
Email: thane@mahabal. Come
9. Pune Municipal corporation
Through Municipal Commissioner,
Main Building, Shivaji Nagar, Pune-4110005
E-Mail: [email protected]
10. Mr. Prashant Waghamare- City Engineer
Pune Municipal Corporation,
Shivaji Nagar, Pune- 411005
Email: [email protected].
11. Collector Of Pune
As Collector and President of District Environment
Protection Committee- Pune, Collector Office, Bund Garden
Pune- 411001,
Email: [email protected]
12. M/s Paranjape Schemes(Construction) LTD.
A Limited Company registered under Indian Company
Act, 1956 with CIN : U70100MH1987PLC044721
Having registered office at- 1, Somnath CTS No 988,
Rammandir Road, Vile Parle East, Mumbai- 400057.
Having also office at- "PSC House", CTS No. 111+111/2,
Anand Colony, Near Suvarnrekha Dining Hall, Karnataka
High School Lane, Off Prabhat Road, Erandvane, Pune- 411004
Also Having Office At: „Magnolia‟ by Paranjape Scheme,
S. No. 136/2, Baner Pashan Link Road, Village: Pashan,
Taluka: Haveli, District: Pune- 411021,
Also Having Office At: „Paranjape Schemes (Construction) Ltd.‟ Blue
Ridge, near Cognizant, Rajiv Gandi Infotec Park- PhaseI, Hinjawadi,
Pune- 411057
E-mail: cs@pscl,inf@pscl
Through its Directors
12A. Shrikant Purushottam Paranjape Shashank,
12B. Purushottam Paranjape
12C. Subodh Govardhan Apte
12D. Pratibha Gurudatta Deshpande
12E. Padma Ganesh Gokhale
12F. Sudhir Bhimsingh Kadam
Page 2 of 69
....Respondents
Counsel for Applicants :
Applicant in- person along with Mr. Vijay Mhaske, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/MoEF&CC & R-9 & 10/PMC
Mr. Aniruddha Kulkarni, Standing Advocate for R-3/Envt. Deptt, R-4/ SEIAA & R-
5/SEAC-III
Ms. Manasi Joshi, Advocate for R-6 & 7/MPCB
Mr. R. B. Mahabal along -with Mr. Sachin S. Gore, Advocate for R-12/PP
PRESENT:
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
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Reserved on : 24.04.2023
Pronounced on : 08.05.2023
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JUDGMENT
1. This Application has been filed under Section 14,15,18 and 20 of the NGT Act, 2010 with the prayers that a direction be issued to Respondents to demolish the illegal structures at site at Survey No. 136/2, Baner-
Pashan Link Road, Village: Pashan, Taluka: Haveli, District: Pune and restore the same to its original position; direct Respondent No.12/PP to deposit heavy environmental compensation on the principle of sustainable development and „polluter pays‟; the exemplary damages be levied from the Respondent No.12/PP on account of non developing 10% landscape area as per norms, non plantation of 189 trees and also for concretization of marginal spaces, open spaces, damage to ground level; all the benefits arising out of above project including FSI & TDR etc., be forfeited by Respondent No.9/PMC; the Respondent No.4/SEIAA, Respondent No.6 & 7/MPCB be directed to initiate prosecution against the Project Proponent;
the license of the Respondent No.8/ M/S Mahabal Enviro Engineers Private Limited be cancelled permanently for misleading the SEAC-III & SEIAA; the Respondent No.9/Commissioner PMC be directed to initiate action against Page 3 of 69 Respondent No.10/Mr. Prashant Waghmare, City Engineer for allowing illegal construction and damages be recovered from salary.
2. The brief facts of this case as submitted by the Applicant, are as follows:
a) The Respondent No.l2/M/s Paranjape Schemes (Construction) Ltd.,(PP) has carried out illegal building construction by the name "Magnoli" at Survey No. 136/2, on Baner Pashan Link Road, Village-
Pashan, Taluka- Haveli, District Pune while making gross intentional violation of terms and conditions of Environment Clearances (EC) dated 25.06.2007 & 20.09.2019 as well as Consents to Establish dated 02.12.2009 & 17.12.2019 and Consents to Operate dated 02.08.2010 & 09.11.2015. The said project is residential & commercial building in area admeasuring of 17400 sq. mtrs. The details of the actual construction at the site in violation of the EC are as follows:
Description EC EC Completed On Going Total Net 25.06.2007 20.09.2019 Plot Area 17400 M2 17400 M2 11220.77 1578.519M2 12799 M2 M2 Total BUA 22592.86M2 36756 M2 44053.49M2 4722.52 M2 48776.01M2 Total Water 190 CMD 35 CMD Ground Water extraction 225 CMD Requirement from Bore well Total Waste 152 CMD 33 CMD 185 CMD Water STP 160 CMD 35 CMD No treatment 195 CMD Capacity Total Solid 540KGPD 155 KGPD 595KGPD Waste Waste is thrown to PMC Degradable Compost Compost dump yard, No Compost No Compost Waste pit for Wet Garbage pit at site.
treatment Condition of "6. In the case of any change(s) in the project, the project would require EC dated a fresh appraisal by this Ministry."
Page 4 of 6925.06.2007 PP has carried out the construction of 44053.49M2 against the total BUA of 22592.86 M2 permitted in EC dated 25.06.2007.
Condition of "XLVI. In the case of any change(s) in the scope of the project, the EC dated project would require a fresh appraisal by this Department."
20.09.2019 PP has procured the revalidation and amendment in EC on 20.09.2019 from SEIAA and suppressed the actual construction of 44053.49 M2 & proposed BUA of 4722.52 M2 having total BUA of project will be 48776.01 M2
b) The actual construction carried out at the site in violation of Consent to Establish is as follows:
Description TOTAL
CTE CTE
02.12.2009 17.12.2019
Plot Area 17400 17400 12799 M2
Total BUA 22592.86 36756 44053.49
M2
Total Water 190 35 CMD 225 CMD
Requirement
Total Waste 152 33 CMD 185 CMD
Water
STP Capacity 80% 35 CMD 195 CMD
Total Solid 540 KGPD 155 KGPD 595 KGPD
Waste
Degradable Composting OWC No Compost
Waste Pit /
OWC at site
c) The actual construction carried out at site in violation of Consent to
Operate is as follows :
C‟I'O CTO Total
Description
02.08.2010 09.11.2015
Va1idity 31.12.2011 31.12.2016 No CTO for
01.01.2012 to
08.11.2015 and
01.01.2017 to till date
Plot Area 17400 17400 Net Plot: 12799 M2
Total BUA 22592.86 22592.86 44053.49M2
Total Water 190 CMD 190 CMD Extraction of ground
Requirement water
Total Waste 152 CMD 152 CMD Waste water is
more
Water
STP 80 % 160 CMD STP is not in
Capacity operation
Page 5 of 69
Total Solid 540 KGPD 540 KGPD
Direct dumping to PMC
Waste Dump yard
Degradable Composting OWC No compost Pit/ OWC at
site
Waste
Condition in "9. Project Proponent shall install Organic Waste CTO 09.11.2015 Converter within 3 months if fails to provide the OWC within stipulated time period then this consent shall be treated as canceled". PP has not installed OWC till date.
d) Total completed BUA of project as on the date of filing of this application is more than 44053.49 Sq.mtrs. comprising of 4 residential building, 238 flats against the permissible BUA of 22592.86 Sq. Mtrs. in Environment Clearance (EC) dated 25.06.2007, which is substantial increase in the scope of the project. The Project Proponent procured the ex-post facto Environment Clearance dated 20.09.2019 for total BUA of 36756 Sq. Mtrs. for expansion of one additional commercial building and suppressing the fact that actual total completed BUA of project till that time was more than 44053.49 sq. mtrs.
e) Total BUA of the Project is more than 48776.01 Sq. Mtrs. (Existing 44053.49 M2 + Proposed- 4722.52 M2 ) and this amounts to violation of terms and conditions of Environment Clearance (EC) dated 25.06.2007 & 20.09.2019 and above mentioned Consents to Establish and Consents to Operate.
f) The Respondent No.12/PP has carried out illegal construction of more than 21460.63 Sq.Mtrs in violation of terms and conditions of Environment Clearance, Consent to Establish and Consent to Operate.
g) SEAC-III & SEIAA have not explained the revalidation of Environment Clearance (EC) dated 25.06.2007 after expiry of validity of EC on 24.06.2012. The Project Proponent has operated project without Page 6 of 69 Consent to Operate from 01.01.2012 to 08.11.2015 and 01.01.2017 till date.
h) The Respondent No.12/PP did not install OWC within three months from Consent to Operate dated 08.11.2015, as per condition No.9 of the said Consent.
i) The Respondent No.12/PP is extracting huge quantity of ground water from two bore wells without any permission from competent authority for construction of project as well as domestic use of occupied part. The composting pits shown in half yearly Compliance Report dated 10.01.2019, photographs of which are annexed, show that those are bogus. The said report also shows that there was no "Rain Water Harvesting" at the project site. The "Plantation" is also totally bogus as per the photographs.
j) The Ambient Air Quality Monitoring, Noise Level, Water Sample Analysis (Drinking & Bore Well), Stack Emission and Effluent Analysis etc. from June-2018 to September-2018 are false. No test has been conducted of underground water contamination.
k) The Respondent No.12/PP has not provided Solid Waste Management System like OWS / Compost pits and waste generated is dumped in Pune Municipal Corporation (PMC) waste yard creating burden on public systems. Solid waste is generating various greenhouse gases and there is no scientific disposal of the solid waste generated from project.
l) The Respondent No.12/PP has provided swimming tank giving additional burden on the ground water consumption. The Project Proponent has not provided fire and safety system. The Project Proponent has not provided the ramp slope in the ratio of 1:10. The Project Proponent has not provided side margin as per the DC Rules.
It has not provided mandatory 15 % amenity spaces under DC Rules.
Page 7 of 69m) The damage which has been caused to Environment and Ecology have been quantified at Rs. 200 Crores which should be levied from the Project Proponent.
n) The Environmental Clearance (EC) which has been granted to the Project Proponent mentions of grant of EC under EIA Notification 2004. But it seems that the same is erroneous as the Environment Clearance has been granted after publication of EIA Notification 2006, which came into force with effect from 14.09.2006.
o) The Project Proponent has procured prior Environment Clearance dated 25.06.2007 from MoEF showing the total built up area as 22,592.86 Sq.mtr, total water requirement will be 190 cu.m/day.
Total wastewater generation is 152 cu.m/day. The wastewater would be treated in a STP, having capacity of 160 cu.m per day. The total solid waste generated would be 540 kg/day. The bio-degradable waste would be composted and inert material would be disposed of for land filling.
p) It is further submitted that, as per the condition No. 6 of the said EC, it was mandatory for the Project Proponent to go for fresh appraisal from the Ministry as it contains change in scope of the project, which was not done.
q) The Project Proponent has filed an application on 10.07.2018 before SEIAA for expansion of project by seeking amendment in the EC dated 25.06.2007 wherein area statement disclosed is given as follow:
Details Existing as Proposed Total Unit per EC Expansion Total plot 17,400 0 17,400 M2 area Total Not 4601 4601 M2 deduction mentioned Page 8 of 69 Net Plot area Not 12799 12799 M2 mentioned FSI Not 2471 25064 M2 mentioned Non FSI Not 4116 4116 M2 mentioned Total 22,593 6587 29180 M2 Construction area
r) Referring to the above chart, it is further submitted that the said statement is totally false and baseless as compared to the sanctioned plans of PMC, SEAC-II & SEIAA minutes. It is further reiterated that the Project Proponent has carried out the construction of 44053.49 Sq.Mtrs. and has undertaken expansion of 4722.52 Sq. Mtrs, having total BUA of the Project 48776.01 Sq. Mtrs., therefore the Project Proponent has carried out the construction beyond permissible limit under EC dated 25.06.2007.
s) The expansion of the project is considered by SEAC -III in its 80th Meeting held on 15.01.2019 and 90th SEAC-III meeting held on 10.07.2019, wherein Project Proponent made false submission regarding total BUA of the project and the same were recorded in the minutes of meeting as shown below:
18(a). Proposed a. FSI area (sq.m): 25,064 m2 Built-up Area b. Non FSI area (sq.m): 11,692 m2 (FSI&Non-FSI) c. Total BUA area (sq.m): 36756 m2 18 (b). Approved Approved FSI area (sq.m):-
Built up area as per Approved Non FSI area (sq.m):-
DCR Date of Approval : 10.10.2018
43. Green Belt Total RG area: 1,461 m2
Development Number of trees to be planted: 184 Nos.
(planted at site)
Timeline for completion
Page 9 of 69
Plantation: completed.
36. Solid Waste Disposal of the construction waste
Management debris: Top soil will be used for
landscaping.
Mode of Disposal of waste: Dry garbage will be segregated and will be handed over to recycler.
Wet waste will be composted and used as organic manure for landscaping.
48. Energy saving 1. Installation of Solar PV panels at 1% by non- of Demand load.
conventional method:
t) By above information, it is submitted that the Project Proponent has suppressed the information regarding existing environmental infrastructure as well as the total BUA of the construction already carried out and proposed BUA.
u) Layout and building plan are sanctioned by PMC in illegal manner to overcome the violation of Environment Clearance and consents. To clarify, the details of the same are given below :
Sr. No. Total BUA of Project as per PMC sanction Vide No. CC/0395/19 dated 17.05.2019 Particular Existing Proposed Sub-total BUA (M2) BUA (M2) Area (M2) 1 FSI 20974.93 2801.15 23776.08 2 Balcony 3173.58 420.17 3593.75 3 Passage 1894.04 0 1894.04 4 Lobby 193.95 0 193.95 5 Staircase 521.73 109.31 631.04 6 Fire 0 171.82 171.82 Staircase 7 Lift Duct 28.88 6.07 34.95 Page 10 of 69 8 Lift M. 108.72 31.50 140.22 Room 9 Terrace 4828.20 0 4828.2 10 Parking 12110.31 1182.50 13292.81 Area 11 Club House 219.15 0 219.15 12 Total BUA 44053.49 4722.52 48776.01 13. No of 4 1 5 building 14 No of Flats 238 0 238 15 No of Shops 0 22 22 16. No of Offices 0 33 33
v) The construction is recurring activity as it increases the scope of the project from excavation to the full potential construction, therefore it is apparent that the Project Proponent has committed the violation of EIA Notification-2006.
w) In the Minutes of SEIAA in its 174th meeting held on 29.08.2019 following is recorded, which amounts to suppression of actual BUA:
18(a). Proposed a. FSI area (sq.m): 25,064 m2 Built-up Area b. Non FSI area (sq.m): 11,692 m2 (FSI&Non-FSI) c. Total BUA area (sq.m): 36756 m2 18 (b). Approved Approved FSI area (sq.m):-
Built up area as per Approved Non FSI area (sq.m):-
DCR Date of Approval : 10.10.2018
43. Green Belt Total RG area: 1,461 m2
Development Number of trees to be planted: 184 Nos.
(planted at site)
Timeline for completion
Plantation: completed.
36. Solid Waste Disposal of the construction waste
Page 11 of 69
Management debris: Top soil will be used for
landscaping.
Mode of Disposal of waste: Dry garbage will be segregated and will be handed over to recycler.
Wet waste will be composted and used as organic manure for landscaping.
48. Energy saving 1. Installation of Solar PV panels at 1% by non- of Demand load.
conventional method:
x) The facts from the table make it clear that the Project Proponent has suppressed the information regarding existing environmental infrastructure as well as the total BUA. The SEIAA did not apply its mind on expiry of old EC dated 25.06.2007 after five years i.e. on 24.06.2012. The PMC has also sanctioned plan dated 12.05.2019 which shows clearly that the total BUA of the project is more than 22592.86 Sq.Mtrs. Therefore, there is intentional negligence by SEIAA members while adopting recommendation of the SEAC-III and decided to grant EC.
y) The grant of EC dated 20.09.2019, therefore, stands in the category of Ex-post facto, for which there is no provision under EIA Notification 2006.
z) Therefore, the Applicant has raised substantial question relating to environment in the present application which has been moved within five years from the date on which cause of action first arose on 17.12.2019, when the Project Proponent procured the Consent to Establish and initiated construction for expansion. The Applicant has filed application within six months from said date excluding the period from 23.03.2020 to 08.06.2020 of Lockdown due to COVID-19, exempted by the judgment of the Hon‟ble Apex Court.
Page 12 of 693. The matter was first taken up by our predecessor Bench on 06.07.2021 and only Joint Committee was directed to be constituted comprising of four members, i.e. CPCB, SEIAA Maharashtra, District Magistrate, Pune and State PCB with direction to the Committee to submit an action taken report before the next date, pursuant to which the Joint Committee submitted its report. The following is the extract of the said report which is being found relevant:
3.0 Observations and findings Based on the preliminary information received from various organisations, and followed by site inspection to assess the various violations mentioned in the aforesaid Hon‟ble NGT Order, the observations & findings of the joint committee are given as below:
A. Observations w.r.t Environmental Clearance (EC) and violations thereto, if any The project proponent i.e. M/s Paranjape Schemes (Construction) Ltd., has been granted EC by Ministry of Environment and Forests (IA Division) vide dated 25/06/2007 for the total plot area of 17,400 sq-m and total built-up area of 22,592.86 sq-m for developing housing project - "Magnolia" at Survey No. 136/2 on Baner Pashan Link Road, Village Pashan, Taluka Haveli, District Pune, Maharashtra stipulating Layout Sanction details granted by PMC vide no. DPO/2795/IV/322, dated 04/07/2006 for total plot area of 17,400 sq-m and total potential FSI with TDR of 20,101.5 sq-m wherein building no. A, B, C & D was sanctioned.
As per the information provided by PMC vide letter dated 09/02/2022 (Copy of PMC letter dated 09/02/2022 is given at Annexure-II), subsequent to the said EC, the PP has obtained first building plan sanctioned vide commencement certificate no. CC/1325/06, dated 12/07/2006 granted by PMC for FSI of 8,975.082 sq-m. However, it is inferred that the PP has not obtained any Page 13 of 69 Plinth Check Certificate based on the aforesaid building sanctioned plan dated 12/07/2006. The PP has obtained first Plinth Check Certificate (part-1) vide no. BCO/6/PC, dated 25/05/2007 for Building no. A & D and part-2 Plinth Check Certificate has obtained vide no. BCO/6/PC/10, dated 06/05/2008 for building no. B & C, which are as per the revised building plan sanctioned vide commencement certificate no. CC/4397/06, dated 16/03/2007 granted by PMC for FSI of 14,937.985 sq-m.
It is observed from the first plinth checking certificate that the PP has started the construction of the project without obtaining prior EC which is required as per S. no. 2 of the Notification no S.O. 1533 (E) dated 14/9/2006 related to the requirements of prior environmental clearance notified under the Environment (Protection) Act, 1986. (Refer s.no.2 of Table-1).
PP has obtained revised layout sanctioned by PMC vide commencement certificate no. DPO/IV/0437/08/466, dated 12/11/2008 with potential FSI of 23,034.755 Sq- m. Wherein, PP supposed to amend the earlier EC dated 25/06/2007; as the revised layout sanctioned by PMC dated 12/11/2008 with potential FSI of 23,034.755 Sq- m was exceeding the limit of total built-up area of 22,592.86 sq-m as per earlier EC dated 25/06/2007.
PP has obtained Plinth Check Certificate from PMC vide no. BPDP/Zone1/109, dated 05.11.2009 for podium of building A, B, C and D, which are as per the revised building plan sanctioned vide commencement certificate no. CC/3832/08, dated 30/03/2009 for total FSI of 21,002.28 Sq.m. Further, PP has obtained Plinth Check Certificate from PMC vide dated 15/04/2009 for club house and swimming pool in open space vide commencement certificate no. CC/3179, dated 17/01/2008 and CC/1153/09, dated 11/08/2009 for free of FSI of 209.316 sq-m.
PP has obtained part completion certificate from PMC vide no. Part-1 No.BPDP/ Zone1/72, dated 09/09/2009 for 233 flats in 4 buildings with 2 parking floors + 11 upper floors: A (64); B (64); C (41) and D (64). Similarly, Page 14 of 69 obtained completion certificate from PMC vide no. Part-2 No.BPDP/ Zone1/110, dated 05/11/2009 for remaining 05 flats. Further, PP has obtained Part 3 (Final) completion certificate from PMC vide no. BPDP/ Aundh /OC/98, dated 17/12/2009 for clubhouse & swimming pool, which are as per the aforesaid revised layout & building sanctioned plans issued by PMC.
Thereafter, PP has obtained revised layout from PMC vide commencement certificate no. CC/0320/19, dated 17/05/2019 for total FSI of 23,803.43 sq-m and revised building permission vide commencement certificate no. CC/0319/19, dated 17/05/2019. Accordingly, PP further obtained EC for the proposed expansion of the project vide letter dated 20/09/2019 from SEIAA, Maharashtra based on revised layout obtained from PMC plan approval no. CC/0319/19, dated 17/05/2019 for FSI of 24,274.35 sq-m, Non-FSI of 11,692 sq-m and Total BUA of 35,966.35 sq-m. Copy of the aforesaid EC dated 25/06/2007 and EC for the proposed expansion of the project dated 20/09/2019 is given at Annexure-III.
PMC vide letter dated 09/02/2022 provided the status of construction of completed building i.e. Wings-A, B, C, D and Club House, wherein it is mentioned that the total built-up area of the completed project i.e. aforesaid building is 45,132.831sq-m and mentioned that the said total built-up area is as per the definition, defined under Notification no. S.O. 695 (E) dated 04/04/2011 issued by MOEF&CC. Also, provided the current status of project under construction i.e. Wing-F (almost completed), wherein it is mentioned that the total built-up area of the project under construction i.e. aforesaid building is 3,936.719 sq-m and mentioned that the said total built-up area is as per the definition, defined under Notification no. S.O. 695 (E) dated 04/04/2011 issued by MOEF&CC.
From the aforesaid statement provided by PMC vide letter dated 09/02/2022 that as on dated 09/02/2022 that total built-up area in sq-m of the aforesaid project i.e. Wings-A, B, C, D, Club House and Wing-F is Page 15 of 69 49,069.55 sq-m. As per the aforesaid PMC letter dated 09/02/2022, the total built-up area of the project is observed to be more than the sanctioned total built-up area of 35,966.35 sq-m as per EC dated 20/09/2019. Further, it is observed that present total FSI area of the project i.e. 23, 803.433 sq-m (as per the PMC letter dated 09/02/2022) is within the sanctioned FSI of 24,274.35 sq-m (as per EC dated 20/09/2019) whereas it is observed that an increase in Non-FSI area of 13,574.171 sq-m was observed (25,266.171 sq-m, as per PMC letter dated 09/02/2022 Minus 11,692 sq-m, as per EC dated 20/09/2019) and apparently PP has inadvertently not disclosed/mentioned the Non-FSI area (reportedly of parking & services) of 13,574.171 sq-m while making an application to obtain the recent EC for expansion of the aforesaid project. However, parking area of 12,110.314 sq- m has been mentioned in the revised building sanctioned plan vide commencement certificate no. CC/3832/08, dated 30/03/2009 and also in the revised (latest) layout sanctioned plan vide commencement certificate no. CC/0320/19, dated 17/05/2019.
As per the information provided by PMC vide letter dated 09/02/2022, subsequent to the said EC dated 20/09/2019, the PP has obtained last Plinth Check Certificate vide no. PCC/0138/21, dated 24/06/2021, which is as per the revised layout from PMC vide commencement certificate no. CC/0320/19, dated 17/05/2019 for total FSI of 23,803.43 sq-m.
During the visit on 08/12/2021, the committee observed that the project was completed & occupied except commercial building, which is almost completed. Details of EC and current status of the project as verified and provided by PMC vide letter no. Zone-6/6775, dated 09/02/2022 is given in Table No. 1.
Table No 1: Details of EC and Current Status of the project. Total Built-up area for Environmental Clearance based on revised layout sanctioned vide CC No. 0319/19, dated 17/05/2019 I. Total Built-up Area for Existing Constructed Area Wings A, B, C, D, Club House Type of Floors Tenements FSI Non-FSI Total BUA, Grand Total, Bldg. Area, Sq-m Sq-m Sq-m Area, Sq-m Parking LP+UP − − 12110.314 12110.314 Constructed Page 16 of 69 Wing A 11 65 5623.093 2923.905 8547 Building No. A, B, C & Wing B 11 65 5507.734 2788.595 8296 D-
Wing C 11 43 4248.365 2085.365 6334 2009 Total
Existing
Wing D 11 65 5623.091 2923.906 8547 B/U Area =
45,132.831
Club G+1 − − 209.316 209.316
House
Ramp − − − 567 567
MSEB − − − 350 350
OHWT − − − 66.59 66.59
UGWT − − − 105.611 105.611
Total 238 21002.28 24130.602 45132.831
3
II. Total Built-up Area for Under Construction Area-Wing F Type of Floors Tenements FSI Non-FSI Total BUA, Grand Total, Bldg. Area, Sq-m Sq-m Sq-m Area, Sq-m Parking Lower − − 661.71 661.71 Under Constructed Building No. Wing F G+4 19 2801.15 324.794 3125.944 F-2009, Total B/U Area ꓿ STP 44 43.6 43.6 3,936.719 & OWC for comme rcial building F Ramp − − − 21.86 21.86 OHWT − − − 34.365 34.365 UGWT − − 2801.15 49.24 49.24 Total 19 2801.15 1135.569 3936.719 Total Existing +Under Constructed Built-up Area (I + II) 49,069.55 Details of sanctioned plans, plinth certificate and completion certificate of the project are given in Table No. 2 and Table No. 3 respectively.
Table No. 2: Details of sanctioned plans and plinth certificate of the project.
S. No. Building Plinth As per Sanction plan no.
Checking Certificate Date
1. Buildings A & D 25-05-2007 4397/06, dated (Residential) 16/03/2007
2. Buildings B & C 06-05-2008 4397/06, dated (Residential) 16/03/2007
3. Clubhouse (For 15-04-2009 3179/07, dated A,B,C,D) 17/01/2008
4. Podium for Buildings 05-11-2009 1325/06, dated A,B,C,D 12/07/2006 & 3832/08, dated 30/03/2009
5. Building F 24-06-2021 CC/319/19, dated (Commercial) 12/06/2019 Table No. 3: Details of completion certificate of the project.
Page 17 of 69
S. Building & No. Completion Date As per
No. of Certificate Sanction
Flats No. plan no.
1. For 233 flats in 4 Part-1 No.BPDP/ 09/09/20 CC/1325/06,
buildings with 2 Zone1/72 09 dated 12/07/2006
parking floors + 11 CC/4397/06,
upper floors A (64); dated 16/03/2007
B (64); C (41); D CC/3832/08,
(64) dated
30/03/2009
2. For 5 remaining Part-2 No.BPDP/ 05/11/20 CC/1325/06,
flats in above Zone1/110 09 dated 12/07/2006
buildings CC/4397/06,
A (1); B (1); C (2); D dated 16/03/2007
(1) CC/3832/08,
dated
30/03/2009
3. For Part 3 (Final) - 17/12/20 CC/3179/07,
Clubhouse & No. BPDP/ 09 dated 17/01/2008
Swimming Aundh/OC/98 CC/1553/09,
Pool dated
11/08/2009
B. Compliance of Consent required under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 PP has applied for Consent to Establish (CTE) to MPCB on 31/07/2008 and granted vide No. BO/RO(P&P)/EIC No. PN-2504-08/E/CC-454, dated 02/12/2009, which was valid till commissioning of the project or five years (02/12/2014) whichever is earlier.
Thereafter, PP obtained Consent To Operate (CTO) from MPCB vide No. BO/RO(P&P)/EIC No. PN-5243- 10/O/CC-285, dated 02/08/2010, which was valid till 31/12/2011. Later, PP has applied for auto renewal of CTO vide application dated 16/04/2013, MPCB has informed PP about non consideration of said application on 26/07/2013 and informed to resubmit application. Accordingly, PP has applied for renewal of CTO on 11/10/2013 and granted CTO vide No. BO/RO-HQ/PN- 19584- 14/CR/CC-6844, dated 21/07/2014, which was valid till 31/12/2014.
PP has applied for renewal of CTO on 04/04/2015 and obtained CTO from MPCB vide no. Format 1.0/BO/ROHQ/PN-25079-15/CR/CC-14323, dated 09/11/2015, which was valid till 31/12/2016. Later, PP has not applied & obtained subsequent CTO from MPCB for the aforesaid residential building project till date of Hon‟ble NGT order dated, 06/07/2021 or till the date of joint committee visit dated 08/12/2021.
PP had handed over the completed portion of the project (4 Residential building A, B, C, D) to "Magnolia Apartments" by executing Deed of Declaration vide Registered Doc no. Haveli-4/9009/2009 dated Page 18 of 69 11/12/2009. After the handover of said completed project, PP has obtained consent to operate till dated 31/12/2016 as per condition no. 2 (III) of CTO granted on 02/08/2010 by MPCB i.e. "The project proponent shall operate STP for five years from the date of Occupation certificate".
Further, during the proposed expansion of project, PP has obtained CTE, vide No. Format1.0/BO/JD (WPC)/UAN-067422/CE/CC-1912000907, dated 17/12/2019 for construction of residential & commercial project of total plot area of 17,400 sq-m for total built-up area of 35,966.35 sq-m (FSI: 24,274.35 sq.m & Non-FSI:
11,692 sq.m, as per the EC dated 20/09/2019) which is valid till the commissioning of project or five years (16/12/2024) whichever is earlier.
Point-wise observation and compliance of the alleged issues as mentioned by the applicant in the Hon‟ble NGT order is depicted in the below Table-4. Some of the photographs taken during joint committee inspection dated 08/12/2021 are given at Annexure-IV.
Table-4: Point-wise compliance of the alleged issues as mentioned in the Hon'ble NGT order.
S. Allegations of the applicant as Present status as on joint
no. mentioned in the Hon'ble NGT Order, committee inspection dated
dated 06/07/2021 08/12/2021
a Total completed BUA of project till today Please refer s. no. A
(including Tables-1
is more than 44053.49 sq. Mtrs. to 3) of paragraph 3.0, as
above.
Comprising 4 residential building, 238 flats against the permissible BUA of 22592.86 sq. Mtrs. in is Environmental Clearance dated 25.06.2007. This 1s substantial increase in the scope of the project. This 1s violation of the terms and conditions of the EC dated 25.06.2007.
b PP procured the ex-post lacto Environment Clearance dated 20.09.2019 for total BUA of 36756 Sq. Mtrs. for expansion of one additional commercial building and suppressed actual total completed BUA of project till today is more than 44053.49 sq. Mtrs. comprising 4 residential building, 238 flast. This is substantial increase in the scope of the project. This is violation of the terms and conditions of the EC dated 20.09.2019.
c Total BUA of the project is more than 48776.01 Sq. Mtrs. (Existing -44053.49 M2 + Proposed-4722.52 M) and this amounts to violation of terms and conditions of Environment Clearance to Establish dated 02.12.2009 & & 17.12.2019 and Consent to Operate dated 02.08.2010 & 09.11.2015 D PP has carried out illegal construction of Page 19 of 69 more than 21460.63 Sq. Mtrs. in violation of terms and conditions of Environment Clearance, Consent to Establish and Consent to Operate.
e PP has carried out the construction of 44053.49 M2 and have undertaken expansion of 4722.52 M 2 having total BUA of the Project 48776.01 M2 therefore PP have carried out the construction beyond permissible limits of EC and Consents.
f SEAC-II & SEIAA have not explained the revalidation of EC dated 25.06.2007 after expiry of validity of EC on 24.06.2012 g PP has obtained ex-post facto EC dated 20.09.2019 by suppressing actual construction total BUA.
Page 20 of 69 h PP has obtained ex-post facto Consent PP has applied for to Establish dated 17.12.2019 by Consent to Establish suppressing actual construction total (CTE) to MPCB on BUA. 31/07/2008 and granted vide No. BO/RO(P&P)/EIC No. PN-2504-08/E/CC-454, dated 02/12/2009, which was valid till commissioning of the project or five years (02/12/2014) whichever is earlier. Thereafter, PP has obtained part completion certificate from PMC vide no. Part-1 No.BPDP/ Zone1/72, dated 09/09/2009 for 233 flats in 4 buildings with 2 parking floors + 11 upper floors: A (64); B (64); C (41) and D (64). Similarly, obtained completion certificate from PMC vide no. Part-2 No.BPDP/ Zone1/110, dated 05/11/2009 for remaining 05 flats. Further, PP has obtained Part 3 (Final) completion certificate from PMC vide no. BPDP/ Aundh/OC/98, dated 17/12/2009 for clubhouse & swimming pool, which are as per the aforesaid revised layout & building sanctioned plans issued by PMC. Based on the above completion certificates issued by PMC, it is evident that PP has completed the project before the expiry of CTE, dated 02/12/2009. Further, PP has obtained CTE, vide No.Format1.0/BO/JD ( WPC)/UAN- 067422/CE/CC- 1912000907, dated 17/12/2019 for construction of residential & commercial project of total plot area of 17,400 sq-m for total proposed built-up area of 35,966.35 sq-m (FSI: 24,274.35 sq.m & Non-FSI: 11,692 sq.m, as per EC dated Page 21 of 69 20/09/2019) which is valid till the commissioning of project or five years (16/12/2024) whichever is earlier
i PP has operated project without Consent to PP obtained Consent To Operate from 01.01.2012 to till 08.11.2015. Operate (CTO) from MPCB vide No. BO/RO(P&P)/EIC No. PN-5243-10/O/CC-
285, dated 02/08/2010,
which was valid till
31/12/2011. Later, PP has
applied for auto renewal of
CTO vide application dated
16/04/2013, MPCB has
informed PP about non
consideration of said
application on
26/07/2013 and informed
to resubmit application.
Accordingly, PP has
applied for renewal of CTO
on 11/10/2013 and
granted CTO vide No.
BO/RO-HQ/PN-
19584-14/CR/CC-
6844, dated 21/07/2014,
which was valid till
31/12/2014.
PP has applied for renewal
of CTO on 04/04/2015
and obtained CTO from
MPCB vide no. Format
1.0/BO/ROHQ/PN-25079-
15/CR/CC-14323, dated
09/11/2015, which was
valid till 31/12/2016.
Later, PP has not applied &
obtained subsequent CTO
from MPCB for the
aforesaid residential
building project till date
of Hon‟ble NGT order
dated, 06/07/2021 or till
the date of joint
committee visit dated
08/12/2021.
j PP did not installed OWC within three As per the condition under
s.no. 9 of the
months from consent to operate dated CTO, dated 08/11/2015 (expire
08.11.2015 as per condition 08/11/2016) PP has not
no. 9 installed OWC for
imposed by MPCB in CTO dated processing of organic
waste. However, as
08.11.2015. per s. no. iv of first CTO obtained by PP, dated 02/08/2010; PP has installed vermin composting for treatment of organic waste.
PP has provided 28 no. of vermicomposting pits.
Page 22 of 69k PP is extracting huge quantity of ground water The PP has not from two have wells without any permission commissioned bore well from competitive authority for construction of within the project site. Water project as well as domestic use of occupied supply during operation part and phase of the project is being met through PMC and PP has obtained NOC from PMC vide letter dated 15/10/2007 for the same.
l Half-yearly Compliance report dated Please refer s. no. j of 10.01.2019 having Photograph of "Solid the Table-4, as above. Waste Management" system at internal Page- 33 showing composting pits is totally bogus photographs and having no concern with this project site.
m Half-yearly Compliance report dated It is observed that the PP is 10.01.2019 having Photograph of "Rain submitting Half-yearly Water Harvesting" system at internal Page- environmental compliance 33 showing rain water outlets from terrace is reports to MoEF&CC. clearly showing that there is no rain water Violations/non- compliances harvesting at project site and if any; with the conditions of this photographs is misleading. EC to be dealt appropriately by MoEF&CC. Further, it is observed that the PP has installed rain water harvesting system.
n Half-yearly Compliance report dated It is observed that the PP is 10.01.2019 having Photograph of submitting Half-yearly "Plantation" system at internal Page-34 environmental compliance Showing plantation is totally bogus reports to MoEF&CC. photographs and having no concern with this Violations/non- compliances project site. if any; with the conditions of EC to be dealt appropriately by MoEF&CC. Further, it is observed that the PP has obtained NOC dated 05/10/2009 from the Tree Authority of PMC and it is mentioned that total 184 no. of trees are planted and preserved in existing site.
o Reports on Ambient Air Quality Monitoring, It is observed that the PP is Noise Level, Water Sample Analysis submitting Half-yearly (Drinking & Bore Well), Stack Emission and environmental compliance Effluent Analysis etc. from June-2018 to reports w.r.t. ambient air September -2018 are false and bogus and quality monitoring, noise prepared without collecting samples. level, water sample analysis (drinking & bore well), stack emission and effluent analysis etc. to MoEF&CC. Violations/non-
compliances if any; with the conditions of EC to be dealt appropriately by MoEF&CC.
p Half-yearly compliance report dated It is observed that the PP is 10.01.2019 is nothing but the compromised submitting Half-yearly statement to overcome the illegality & environmental compliance violations committed by PP. Therefore PP has reports to MoEF&CC. played fraud and Violations/non- compliances cheating on Authority. if any; with the conditions of EC to be dealt appropriately by MoEF&CC.
Page 23 of 69q PP has not made any test for ground water As per the Half-yearly contamination and quality of water and there environmental compliance is serious ground water contamination. report of April to September, 2021 dated 30/11/2021 the PP has carried- out ground water monitoring of surrounding area of the project site through M/s Mahabal Enviro Engineers Pvt. Ltd., - Engineers, Consultants, Environmental Monitoring Laboratory & Contractors.
r PP has not provided any solid waste Please refer s. no. j of the management system like OWS/Compost Table-4, as above. pits and waste generated is dumped to PMC waste yard creating burden on public systems and solid waste is generating various greenhouse gases and there is no scientific disposal of the solid waste generated from project.
s PP has done concretization of marginal Please refer s. no. w & of spaces, open spaces the Table-4, as below.
t PP has used traditional clay bricks and It is observed that the PP PP has not used any scientific construction has completed the project method. as per the EC dated 25/06/2007 and obtained completion certificates vide no. Part-1 No. BPDP/ Zone1/72, dated 09/09/2009; Part-2 No. BPDP/ Zone1/110, dated 05/1/2009 and Part 3 (Final) - No. BPDP/ Aundh/OC/98, dated 17/12/2009 respectively.
Since the said project is completed during 2009 as per EC dated 25/06/2007 the joint committee is unable to offer comments in this regard. However, as per the information submitted by PP, traditional clay bricks have not used in the project instead they have used fly Ash bricks.
Whereas for the on-going commercial building project PP is using AAC cement blocks.
u PP has not installed solar system for As per the condition no. xv energy conservation system. of EC dated 25/06/2007 and s. no. 35 of EC dated 20/09/2019, PP has installed solar panels for conservation of energy.
Reportedly, about total 88 nos. of solar panels are installed on building terrace to generate approx. 28 KW of energy which is used for lighting of common utilities.
v PP has not provided any rain water Please refer s. no. m of the harvesting system for ground water Table-4, as above. recharge.
Page 24 of 69w PP has not developed 10% recreational It is observed that PP has open space as per norms and PP has not provided recreational open made tree plantation of 189 trees as per space in accordance with the the norms. PP has made illegal tree cutting. approved sanction plans. As per the information provided by PMC vide letter dated 09/02/2022, PP has obtained NOC from the Tree Authority vide no. 3160, dated 05/10/2009 wherein it is mentioned that 184 no.
of trees are planted at the project site. In addition to this, PP has planted additional 9 no. of trees as per NOC issued by Tree Authority vide no. 8344, dated 27/12/2018.
x PP has not preserved top layer of fertile soil It is observed that the PP and there is no X. soil test for has completed the project as contamination. per the EC dated 25/06/2007 and obtained completion certificate vide no.
Part-1 No. BPDP/ Zone1/72, dated 09/09/2009; Part-2 No. BPDP/ Zone1/110, dated 05/1/2009 and Part 3 (Final) - No. BPDP/ Aundh/OC/98, dated 17/12/2009 respectively.
Since the said project is completed during 2009 as per EC dated 25/06/2007 and also the construction of present project as per EC dated 20/09/2019 is in completion stage the joint committee is unable to offer comments in this regard.
y PP has provided swimming tank giving PP has provided swimming additional burden on the ground water pool as per PMC approval consumption. and obtained completion certificate vide no. Part 3 (Final) - No. BPDP/ Aundh/OC/98, dated 17/12/2009, which is as per building sanctioned plans no. CC/3179/07, dated 17/01/2008 and CC/1553/09, dated 11/08/2009.
z Huge quantity of sewage water is generated As per the EC dated and there is no scientific treatment of sewage 25/06/2007, total water in STP. It is just scrape skeleton. wastewater generation from the said project is 152 m3/day. Accordingly, PP has provided STP of reported design capacity of 160 m3/day consisting of MBBR technology and also provided tertiary treatment facility with chlorination.
During joint committee inspection, all the treatment units of STP were found in operation. As per conditions of CTO, treated wastewater Page 25 of 69 is being used for gardening and flushing purpose. As informed, M/s Magnolia Apartment Society is operating the aforesaid STP. MPCB collected JVS sample (treated effluent sample) from the final outlet of STP on 09/12/2021 and analysed for consented parameters. It is observed from the analysis results that concentration of BOD:
(44 > 30 mg/L) and COD:
(112 > 100 mg/L) is found to be exceeding the prescribed discharge standards meant for reusing.
aa PP is creating huge burden on the Please refer s. no. j of the environment due to day to day waste Table-4, as above. generation by consumption of natural resources and it is causing huge burden on the public facilities and services on account of environment damage.
bb PP has committed the illegal activities and Please refer s. no. a to z of given rise to the violation of environmental the Table-4, as above. protection enactments and further caused degradation of environment & ecology intentionally.
cc PP has not complied with the conditions of Please refer s. no. j, m, u & commencement certificate related to the z of the Table-4, as above. installation of environment infrastructure to avoid the degradation. dd PP has not provided fire and safety PP has provided fire system at site and there is no approach road hydrant system and for fire engine. also obtained NOC from fire department vide no.
FB/1063 dated 18/07/2009.
ee PP has not provided the ramp slope in the As per the information ratio of 1:10 provided by PMC vide letter dated 09/02/2022 PP has provided slope in the ratio of 1:8, is permissible for vehicles in terms of section 9.12.2 in the UDCPR 2020.
Further mentioned that all the ramps existing at project site are as per sanctioned layout plan with a minimum slope 1:10 or above.
ff PP has not provided site margin as per the As per the information DC Rules provided by PMC that site margin at project site is provided as per aforesaid sanctioned layout plans mentioned in S. No. A of Paragraph 3.0 as above.
gg. PP has not provided mandatory 15% As per the information Amenity space under DC Rules of PMC provided by PMC that the provision of amenity space is not applicable for the said project. As the said land comes under industrial (Brick Klin) zone. The provisions for residential development in such industrial zones (specifically Page 26 of 69 for brick klin zone) as per the DCR rules (Appendix R-
7 : Modifications under Government Gazette, dated 5th January, 1987) of the DC Rules, It is stated that -
Appendix R-7 Serial No.11 ( Page 246)-" In according with the sanctioned Regional Plan of Pune it has been devised as a policy to reduce industrial acreage in Pune Metropolitan Region.
In view of this owners of all the lands in industrial zone including Brick Clin zone shall be allowed to develop such lands for residential uses if they so desire. The Municipal Commissioner shall independently entertain development permission for residential use for such lands".
Accordingly, the PP has paid total amount of Rs.
43,83,300/- (Rs.300/sq-m) on 20.07.2006 in lieu of provision of amenity space.
a. Conclusions i. PP has obtained first Plinth Check Certificate (part-1) vide no. BCO/6/PC, dated 25/05/2007 for Building no. A & D and part-2 Plinth Check Certificate has obtained vide no. BCO/6/PC/10, dated 06/05/2008 for building no. B & C, which are as per the revised building plan sanctioned vide commencement certificate no. CC/4397/06, dated 16/03/2007 granted by PMC for FSI of 14,937.985 sq-m. It is observed from the aforesaid first plinth checking certificates that PP has started the construction of the project without obtaining prior EC which is required as per S. no. 2 of the Notification no S.O. 1533 (E) dated 14/9/2006 related to the requirements of prior environmental clearance notified under the Environment (Protection) Act, 1986. ii. PP has obtained revised layout sanctioned by PMC vide commencement certificate no. DPO/IV/0437/08/466, dated 12/11/2008 with potential FSI of 23,034.755 Sq-m. However, PP has not obtained amendment of earlier EC dated 25/06/2007; as the revised layout sanctioned by PMC, dated 12/11/2008 with potential FSI of 23,034.755 Sq-m was exceeding the limit of total built-up area of 22,592.86 sq-m as per the earlier EC dated 25/06/2007.
iii. As per the statement provided by PMC vide letter dated 09/02/2022 that as on dated 09/02/2022 total built-up area in sq-m of the aforesaid project i.e. Wings-A, B, C, D, Club House and Wing-F is 49,069.55 sq-m. As per the aforesaid PMC letter dated 09/02/2022, the total built- up area of the project is observed to be more than the sanctioned total built-up area of 35,966.35 sq-m as per Page 27 of 69 EC dated 20/09/2019.
Further, it is observed that present total FSI area of the project i.e. 23, 803.433 sq-m (as per the PMC letter dated 09/02/2022) is within the sanctioned FSI of 24,274.35 sq-m (as per EC dated 20/09/2019) whereas it is observed that an increase in Non-FSI area of 13,574.171 sq-m was observed (25,266.171 sq-m, as per PMC letter dated 09/02/2022 Minus 11,692 sq-m, as per EC dated 20/09/2019) and apparently PP has not disclosed/mentioned the Non-FSI area (reportedly of parking & services) of 13,574.171 sq-m while making an application to obtain the recent EC for expansion of the aforesaid project. However, parking area of 12,110.314 sq-m has been mentioned in the revised building sanctioned plan vide commencement certificate no. CC/3832/08, dated 30/03/2009 and also in the revised (latest) layout sanctioned plan vide commencement certificate no. CC/0320/19, dated 17/05/2019.
iv. PP has obtained Consent to Establish (CTE) from MPCB vide No. BO/RO(P&P)/EIC No. PN-2504-08/E/CC-454, dated 02/12/2009, which was valid till commissioning of the project or five years (02/12/2014) whichever is earlier. Thereafter, PP has obtained part completion certificate from PMC vide no. Part-1 No.BPDP/ Zone1/72, dated 09/09/2009 for 233 flats in 4 buildings with 2 parking floors + 11 upper floors: A (64); B (64); C (41) and D (64). Similarly, obtained completion certificate from PMC vide no. Part-
2 No.BPDP/ Zone1/110, dated 05/11/2009 forremaining 05 flats, which are as per the aforesaid revised layout & building sanctioned plans issued by PMC (Kindly refer s. no. A of paragraph 3, as above). Based on the above completion certificates issued by PMC, it is evident that PP has completed the project before obtaining the CTE, dated 02/12/2009 from MPCB.
v. PP obtained Consent To Operate (CTO) from MPCB vide No. BO/RO(P&P)/EIC No. PN-5243-10/O/CC-285, dated 02/08/2010, which was valid till 31/12/2011. Later, PP has applied for auto renewal of CTO vide application dated 16/04/2013, MPCB has informed PP about non consideration of said application on 26/07/2013 and informed to resubmit application. Accordingly, PP has applied for renewal of CTO on 11/10/2013 and granted CTO vide No. BO/RO- HQ/PN- 19584-14/CR/CC-6844, dated 21/07/2014, which was valid till 31/12/2014. PP has applied for renewal of CTO on 04/04/2015 and obtained CTO from MPCB vide no. Format 1.0/BO/ROHQ/PN-25079- 15/CR/CC-14323, dated 09/11/2015, which was valid till 31/12/2016. Later, PP has not applied & obtained subsequent CTO from MPCB for the aforesaid residential building project till date of Hon‟ble NGT order dated, 06/07/2021 or till the date of joint committee visit dated 08/12/2021.
Page 28 of 69Whereas, it is observed that PP had handed over the completed portion of the project (4 Residential building A, B, C, D) to "Magnolia Apartments" by executing Deed of Declaration vide Registered Doc no. Haveli-4/9009/2009 dated 11/12/2009. Further, as per the aforesaid "Deed of Declaration", page no. 11 under s. no. 1) common areas and facilities to the Magnolia apartments, it is mentioned that "The office bearers/elected committee members shall be responsible for renewal of the said No object Certificates, Licenses, certificates timely, repairs and maintenance of all common amenities...".
It is observed that after handing over of the said completed project, PP has renewed CTO from time to time (with gaps of few years) till dated 31/12/2016, as per condition no. 2 (III) of CTO granted on 02/08/2010 by MPCB i.e. "The project proponent shall operate STP for five years from the date of Occupation certificate". However, the joint committee opined that though the PP has made "Deed of Declaration" and mentioned that necessary renewals shall be done by the office bearers/elected committee members. However, the project proponent name, various licenses & clearances (viz. environmental clearance, CTO etc.) in the name of M/s Paranjape Schemes (Construction) Ltd., Pune have not yet been transferred in the name of "Magnolia Apartments". Also, presently (as per expansion EC dated 20/09/2019), the PP is utilizing additional FSI of whole plot area and for which the PP has applied for CTE to MPCB on 17/12/2019 for expansion of residential & commercial project of total plot area of 17,400 sq-m for total proposed built-up area of 35,966.35 sq-m (FSI:
24,274.35 sq.m & Non- FSI: 11,692 sq.m). Hence, the earlier project including the expanded project may be treated in a holistic manner rather treating as a separate component.
5.0 Approach for penalty and remedial measures for prior environmental clearance (EC) violation Hon'ble NGT in O.A No. 34/2020 WZ in the matter of Tanaji B. Gambhire vs. Chief Secretary, Government of Maharashtra and ors., vide order dated 24/05/2021 has directed that "...a proper SoP be laid down for grant of EC in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF may also consider circulating such SoP to all SEIAAs in the country".
In compliance to the aforesaid directions of the Hon'ble NGT, a Standard Operating Procedure (SoP) for dealing with violation cases were issued by the MoEF&CC vide Office Memorandum (OM) F. No. 22-21/2020-IA.III dated 07/07/202. As per the aforesaid SOP, it outlines the penalties including closure of operations that are Page 29 of 69 operating without prior environment clearance including demolition of projects. It also outlines a procedure for the grant of environmental clearance to projects that have come up without obtaining prior environment clearance required under the Environmental Impact Assessment (EIA) Notification, 2006. As per the aforesaid SOP, the different approaches for dealing the violation cases are summarised as follows;
i. Closure or revision a. If the project proponent has not taken prior EC, then the action shall be initiated to close the operation.
b. If the project proponent has taken prior EC for existing/old unit, then order to revert the activity/production to permissible limits. c. If the project doesn‟t require EC for earlier production level but required at present, then restricting activity/production to extent to which prior EC was not required.
ii. Action under section 15 read with section 19 of the E (P) A, 1986 shall be initiated against the violators.
iii. Appraisal under EIA Notification, 2006: The permissibility of the project shall be examined from the perspective of whether such activity/project was at all eligible for the grant of prior EC; a. If not permissible: If a project is under prohibited area notified by Central/State Govt., then the such project shall be ordered for the demolition/closure after issuing show-cause notice and providing an opportunity of hearing.
b. If permissible, then such violation projects shall be issued with directions to complete the impact assessment studies and submit EIA report & EIA report & EMP in a time bound manner. Also, such cases of violation shall be subject to appropriate:
Damage Assessment, Remediation plan and community Augmentation Plan ( to restore environmental damage caused including the social aspects) The competent authority shall issue directions u/s 5 of The Environment (Protection) Act, 1986 for mandating payment of such amount (based on polluter‟s pay principle), undertaking activities relating to aforesaid plans and its appraisal by the Central sectoral expert appraisal committee or the State/UT level expert appraisal committee, as the case may be. However, even though the project may be permissible but not environmentally sustainable in its present form/configuration/features then such projects shall be directed to be modified so that the project Page 30 of 69 would be environmentally sustainable. Further, if the project is not considered appropriate to issue EC, such project shall be directed to be demolished/closed.
The PP will be required to submit a bank guarantee equivalent to the amount of Remediation Plan and Natural and Community Resource Augmentation Plan with Central/State Pollution Control Board (depending on whether the project under reference is appraised at MoEF&CC or by SEIAA) prior to the grant of EC. The quantification of such liability will be recommended by EAC and finalized by the Regulatory Authority and the bank guarantee will be released after successful implementation of the Remediation Plan & Natural and Community Resource Augmentation Plan.
iv. Penalty provisions for violation cases and applications a. For new projects:
Where operation has not commenced: 1% of the total project cost incurred up to date of filing of application along with EIA/EMP report.
When operations have commenced without EC:
1% of the total cost incurred up to the date of filing application along with EIA/EMP report PLUS 0.25% of the total turnover during period of violation.
b. For expansion projects:
When operation/production with expanded capacity has not commenced: 1% of the project cost, (attributable to the expansion activity), incurred up to date of filing application along with EIA/ EMP report PLUS 0.25% of the total turnover (attributable to the expanded activity/ capacity) involved during the period of violation.
Approach for damages (in addition to the environmental compensation as given at para 5) for contravening mandatory provisions of environmental laws MPCB has issued Circular vide letter no. BO/MPCB/AS(T)/Circular/B- 220712FTS0047 dated 12/07/2022 to discourage the defaulting industries by adopting "Polluter Pays" principal by imposing appropriate cost of violation of provision of Environment enactments for violation as below: -
a) To take effective steps towards establishment of project/unit without Page 31 of 69 obtaining Consent to Establish from the Board.
b) To take effective steps without revalidating Consent to Establish from the Board.
c) To start Commercial production/to hand over occupancy without obtaining Consent to Operate from the Board.
d) To carry out expansion activity and applying directly for Consent to Operate without obtaining Consent to Establish of the Board.
e) To operate the activity without valid consent to operate of the Board and applying after lapse of validity period.
Cost of Violation:-
Red Category- 5 times of one term consent fee X no. of years of violation* Orange Category- 3 times of one term consent fee X no. of years of violation* Green Category- 1 times of one term consent fee X no. of years of violation* * Calculations of number of years shall be calculated on the basis of number of days of non- compliance. Copy of the said circular is attached as Annexure- V. Considering the period when PP has started construction activities without obtaining CTE from MPCB i.e. as it is evident from the 1 st plinth checking certificate was issued vide, dated 25/05/2007 by PMC as per the first Layout Sanctioned vide no. DPO/2795/IV/322, dated 04/07/2006 for total potential FSI with TDR of 20,101.5 sq- m, which is beyond 20,000 sq-m issued by PMC till the date of obtaining CTE from MPCB i.e. till 02/12/2009. Besides considering the aforesaid period of violation for starting the construction activities without obtaining CTE from MPCB, the joint committee recommends considering the period of violation for not obtaining valid CTO i.e. when PP has not applied and obtained renewal of CTO from time to time from MPCB. Accordingly, the total period of violation is tabulated as below:
S. Period of violation No. of Remarks Capital Penal fees Penal fees no days of investmen calculatio . violatio t (CI) in n n Crore & consent fees 1 25/05/2007 31/07/200 433 Starting CI- 38 Orange 1,77,945.2 (date of 8 constructio crore category = 0 1st plinth (till date of n activities Consen 3 times of checking application without t Fees- one term certificate for CTE). obtaining 50000/ consent PCC Whereas CTE from - fee X no.
obtained CTE was MPCB. of years of
from PMC) granted on violation
02/12/2009 =3 X50000
. X433/365
Page 32 of 69
2 01-01-2012 11/10/201 649 Operation of CI- 38.19 Orange 4,00,068.4
3 9
(starting (till date of the crore category =
date of application residential consent 3 times of
lapse of for renewal building Fees- one term
CTO, of CTO). project 75000/- consent
which was Whereas without valid fee X no.
valid till renewal of CTO from Of years of
31/12/2011 CTO was MPCB. violation
) granted on =3 X75000
21/07/201 X649/365
4
and valid
up to
31/12/201
4
.
3 01-01-2015 04/04/201 93 Operation of CI- 61.22 Orange 76,438.35
5
(starting (till date of the crore category =
date of application residential Fees- 3 times of
lapse of for renewal building 100000/- one term
CTO, of CTO). project consent
which was Whereas without valid fee X no.
valid till renewal of CTO from Of years of
31/12/2014 CTO was MPCB. violation
) granted on =3
09/11/201 X100000
5
and valid X93/365
up to
31/12/201
6
.
Total no. of days of violation: 1,175 Total 6,54,452.04
Penal fees
4 01-01-2017 06/07/202 1,647 Operation of CI- 61.22 Red 22,56,164.3
1
(starting (till date of the crore category = 8
date of Hon‟ble residential Fees- 5 times of
lapse of NGT building 100000/- one term
CTO, order project consent
which was dated, without valid fee X no.
valid till 06/07/202 CTO from Of years of
1
31/12/2016 ) MPCB. violation
) =5
X100000
X1647/365
Total no. of days of violation: 1,647 Grand 29,10,616.4
Total 2
Penal fees
Thus, the total Penal charges as above as per provisions of penal fees for occupiers violating consent regime prescribed under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 i.e. without obtaining CTE & CTO from MPCB works out to be Rs.
29,10,616/- (Rupees Twenty-nine lakh- Ten Thousand Six Hundred Sixteen Only).
7. Recommendations
(a) For violation of EIA Notification dated 14/09/2006 (Kindly refer s. no. i, ii & iii of section 4.0 of the report, as above) In view of the aforesaid violations of:
(i) Starting construction of the residential Page 33 of 69 building project "Magnolia" by M/s Paranjape Schemes (Construction) Ltd., Baner Pashan Link Road, Village Pashan, Taluka Haveli, District Pune, Maharashtra as per the Layout Sanctioned no. DPO/2795/IV/322, dated 04/07/2006 for total plot area of 17,400 sq-m and total potential FSI with TDR of 20,101.5 sq-m for building no. A, B, C & D without obtaining prior EC from SEIAA;
(ii) Revising the earlier layout sanctioned
plan vide no. DPO/2795/IV/322,
dated 04/07/2006, wherein PP has
increased the total built-up area of 22,592.86 sq-m to potential FSI of 23,034.755 sq-m without obtaining amendment of earlier EC dated 25/06/2007;
(iii) Not disclosing/mentioning the Non-FSI area (reportedly of parking & services) of 13,574.171 sq-m while making an application to SEIAA to obtain the recent EC dated 20/09/2019 for expansion of the aforesaid project;
(iv) Action may be taken against M/s Paranjape Schemes (Construction) Ltd., Pune by the respective State or State Pollution Control Board under the provisions of section 19 of the Environment (Protection) Act, 1986;
(v) Appraisal of the project under EIA Notification, 2006 as outlined under s.
no. iii (as above, given at paragraph 5.0) ALONG WITH penalty for new project (when operations have commenced without EC) i.e. 1% of the total project cost incurred up to the date of filing application along with EIA/EMP report PLUS 0.25% of the total turnover during period of violation, involved during the period of violation may be levied by SEIAA, Maharashtra and be deposited by the PP with the respective State Pollution Control Board.
(b) For contravening provisions under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 (Kindly refer s. no. iv & v of section 4.0 of the report, as above) In view of the aforesaid violations of:
(vi) Starting construction for the built up area for more than 20,000 sq-m., as at (a) above, completing the project "Magnolia" M/s Page 34 of 69 Paranjape Schemes (Construction) Ltd., Pune and obtaining completion certificate from PMC vide dated 09/09/2009 & 05/11/2009 before obtaining CTE from MPCB as required under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981;
(vii) Not possessing CTE, renewal/valid CTO from
MPCB and not making CTO renewal
application also in this regard during the period 25/05/2007 to 31/07/2008; 01/01/2012 to 11/10/2013; and 01/01/2015 to 04/04/2015 and 01/01/2017 to 06/07/2021;
Rs. 29,10,616/- (Rupees Twenty-nine Lakhs Ten Thousand Six Hundred Sixteen Only) as derived under para 6.0 of this report, as deemed fit by the Hon'ble NGT, may also be added in addition to the penalty to be derived by SEIAA, Maharashtra as outlined under para 5.0 of this report as damages for contravening provisions under the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and prior EC requirement notified under the Environment (protection) Act, 1986.
c. PP may be directed to expedite to obtain renewal of CTO (expired/valid till 31.12.2016) from the MPCB and also to install OWC for processing of organic waste in compliance to the condition issued under S. NO. 9 of the earlier CTO, dated 09.11.2015 or as per the conditions to be imposed in the fresh CTO by MPCB.
4. The stand of Respondent No. 12/M/s Paranjape Schemes( Construction) Ltd. is as follow:
a) This Application is hopelessly barred by limitation as the cause of action for the alleged violation first arose in the year 2006 when the construction of parking was started.
b) The Joint Committee was formed for fact finding only.
Committee went beyond its jurisdiction. It was not qualified as an „Expert‟.
c) The first Environmental Clearance (EC) was granted by MoEFCC to Answering Respondent on 25.06.2007. The construction was completed as per the sanctioned plans, including the parking floors, in the year 2009, which included Page 35 of 69 basement parking floors of an area of 12,110 M2 .
d) The cause of action first arose on 09.09.2009 i.e. when first completion certificate was issued by PMC. Therefore, the filing present OA is delayed by 10 years and 6 days, as it has been filed on 06.07.2020 by showing wrongly the cause of action to have arisen on 17.12.2019, which fact has already been submitted by it before the Joint Committee.
e) The present residential project was already completed as per the EC issued by the MoEF&CC on 25.06.2007, in the year 2009 and the same was handed over to the concerned buyers.
EC dated 20.09.2019 has been granted for one additional commercial building only. After the completion of building the deed of declaration was executed on 11.12.2009 between PP and flat owners, who have not been made parties in the present OA.
These buildings A, B, C, and D had been completed as per the PMC completion certificate.
f) The Applicant has sought relief against various causes like the violation of the EC conditions, non performance of the statutory duty of the government employee, forfeiting the benefits of FSI and non-FSI, violation of the consent conditions etc., whereas Tribunal can only entertain a single cause of the action in one application or appeal as per Rule 14 of the National Green Tribunal Rules 2011.
g) There is no substantial question involved related to the environment in terms of definition of substantial question under Section 2 (m) of NGT Act which is quoted hereinbelow:
2(m) " Substantial question relating to environment" shall include an instance where:
i. There is a direct violation of a specific statutory environment obligation by a person by which. A. The community at large other than an individual or group of individuals is affected or likely to be Page 36 of 69 affected by the environmental consequence; or B. The gravity of damage to the environment or property is substantial; or C. The damage to public health is broadly measurable;
ii. The environment consequences relate to a specific activity or a point source of pollution."
h) It is further submitted that the non -FSI areas of parking, balconies & services were not separately mentioned in the application as per the prevailing rules. The detailed plans pertaining to them which were submitted with the application were appraised by the EAC while granting the EC dated 25.06.2007. Hence, there is no violation in the old project.
i) Subsequently, all permissions from Corporation, under MRTP/DC Rules and Consent from the MPCB were obtained.
The construction was done exactly as per the details and drawings and the corporation gave them a Completion Certificate and Occupancy Certificate on that basis on 17.12.2009. However, while applying for the expansion on 30.07.2018, Project Proponent erroneously forgot to separately mention the non-FSI area of 13,904 sq.m. towards the parking, services & balconies of the residential buildings, which was already completed as per the earlier sanctioned plans, EC and Consent in the year 2009. It is further mentioned that the FSI area of the residential buildings has been shown to be 22,593 sq. m. in place of actual FSI area of the residential buildings being 21002 sq. m. which is clearly establishing that it was in excess by 1591 sq. m. The details of this errors are projected in table given in Para-45 of the reply affidavit as given below:
13904 sq. (non-FSI of parking, services and balconies m. not included in the BUA of our application) Page 37 of 69
-1591 sq.m. (Excess FSI of residential buildings mentioned in our application) = 12313 sq. Net Different of BUA which was not m. separately mentioned in our application & subsequent EC.
j) The parking, services & balcony area is for the purpose specified, as provided in the DC Rules under MRTP Act.
This non-FSI area was not mentioned in the earlier ECs separately because they were not counted in FSI and hence it was not reproduced in the EC letter also.
k) This area has already been appraised in the first EC dated 25.06.2007 through the conceptual plan, which was mentioned as an "existing" parking area in the PMC Sanctioned Plan dated 17.05.2019, which was submitted and produced before the SEIAA in its meeting dated 29.08.2019. The reference number of the sanctioned plan dated 17.05.2019 is mentioned in the minutes of the SEIAA meeting dated 29.08.2019 as well as the EC letter dated 20.09.2019. After considering all the information only and based on these submissions, the SEIAA granted the second EC dated 20.09.2019, which makes it clear that the Project Proponent did not suppress any information from the authorities while obtaining the EC.
l) The Project Proponent has pointed out this error simultaneously with the submission to SEIAA-
Maharashtra, for correction of EC with the inclusion of the non- FSI Area, which was not stated separately in their application for EC expansion. There is not going to be any Expansion or Modernization due to this correction, Page 38 of 69 as it was already covered, considered and granted in the first EC of 2007 itself.
5. The stand of Respondent No. 6 & 7/Maharashtra Pollution Control Board is as follow:
a) The answering Respondent has filed their reply on 11.01.2023. According to them, the Respondent No.12/PP obtained Environment Clearance (EC) from the Competent Authority i. e. MoEF on 25.06.2007 for construction of Residential Complex having total BUA-
22,592.86 Sq. M. and Project Proponent further obtained EC for expansion of the said project from the SEIAA on 20.09.2019 for total BUA35,966 Sq. Mtr.
b) The Respondent No.12/PP had obtained Consent to Establish from the answering Respondent on 02.12.2009 for the said project for total BUA 22,592.86 Sq. Mtrs, which was valid upto five years and commissioning of the project, whichever is earlier.
c) The details of the Consent to Operate by Respondent No.12 are as follows:
Consent Granted on Valid Till Area Type 1st 02.08.2010 31.12.2011 TPA- 17,400 Consent Sq.Mtrs.
to BUA- 22,592.86
Operate Sq. mtrs.
Renewal 21.07.2014 31.12.2014 TPA-17,400 Sq.
of C to O mtrs.
BUA- 22,592.86
Sq. mtrs.
Renewal 09.11.2015 31.12.2016 TPA-17,400 Sq.
Page 39 of 69
of C to O mtrs
BUA: 22,592.86
Sq. mtrs.
Neither Respondent No.12 nor the Society Committee Members have got the Consent to Operate renewed after last Consent to Operate dated 09.11.2015 till date.
d) The Respondent No.12/PP obtained Consent to Establish for expansion from the MPCB on 17.12.2019 for construction of Residential and Commercial project with total BUA 36,756.00 sq. mtrs which was valid till 16.12.2024.
e) Architect Certificate dated 17.01.2022 and letter submitted by Pune Municipal Corporation dated 09.02.2022 show that the Project Proponent has completed construction beyond 36,756.00 Sq. Mtrs.
f) The Answering Respondent has assessed penal charges of Rs. 29,10,616.42/- against the Respondent No.12 calculating the gaps in period of Consents, the details of which have been given in the Joint Committee Report.
6. The Applicant has filed rejoinder affidavit dated 23.02.2023 wherein same facts have been reiterated which we have already produced while dealing with the main application.
7. The Respondent No.12/PP has submitted additional documents on 21.04.2023 wherewith the inspection report of the inspection conducted by the MoEF&CC has been submitted, which has been communicated to the Project Proponent by the Scientist-E of MoEF&CC, vide letter dated 20.03.2020. The said inspection report Page 40 of 69 shows the compliance which has been made by the Project Proponent of all the EC terms and conditions which have been stipulated EC dated 25.06.2007 and the same are reproduced hereinbelow:
Inspection Report :
F. No. EC- 1994/RON/2022-NGP:
1 Name of the project Residential & Commercial
and location project „Magnolia‟ at S. No.
136/2 at Village Baner-
Pashan Link Road, Banker,
Taluka Haveli, District- Pune,
Maharashtra by M/s
Paranjape Schemes
(Construction) Limited.
2 Address for Name: Apoorve Ranade.
correspondence Designation: Environment
Manager.
Address : Paranjape Schemes
(Construction) Limited, PSC
House, CTS 111+111/2,
Anand Colony, Off Prabhat
Road, Dr. Ketkar Marg,
Erandawane, Pune 411004
3 Clearance letter No. 1st EC letter No. 21-670/2006-
& date IA.III dated 25.06.2007
2nd EC letter No. SEIAA- EC-
0000002017 dated
20.09.2019
4 Date of site visit The Project was inspected on
09.02.2023 during the visit.
Shri. Apoorv Ranade,
Environment Manager were
present.
5. Date of previous visit(s) -
& observation if any
6. One-page brief 1st EC was granted by MoEF
summary of the on 25.06.2007 for construction
project- along with of 4 residential buildings with
project details, date parking & clubhouse in plot
of commencement of area of 17,400 sqm. With total
Page 41 of 69
construction built up area of 22,592.86
activities, present sqm(FSI). The said
status etc. construction was completed
and completion certificates
granted on 09.09.2009,
05.11.2009 and 17.12.2009
respectively.
2nd EC was granted by SEIAA
on 20.09.2019 for construction
of 1 additional commercial
building (F) for total BUA
36,756 sqm (25,064 sqm FSI
& 11,692 sqm Non FSI)
The total project consists of 4
Existing Residential Buildings
with parking & clubhouse,
constructed and handed over
to society as per 1st EC, and
one ongoing commercial
building as per 2nd EC is
currently under construction.
Construction activity
commenced in May 2020.The
project is under construction
phase, About 80% of work
have been completed.
7. Consent from MPCB. PP has obtained CTE vide
number Format 1.0/BO/JD
(WPC)/UAN-
067422/CE/CC1912000907
dated 17.12.2019 which is
valid till 16.12.2024 copy of
the consent order is enclosed
at Annexure-I
8. Details on sanitation Adequate drinking water
facilities provided at temporary sanitation facilities
labour camp, if are provided.
provided within the The waste generated from the
site: labour is collected and handed
Page 42 of 69
1. Sewage over to Pune Municipal
treatment and Corporation.
disposal.
2. Solid waste Provisions have been made for
collection and the solid waste generated to
disposal. be properly collected and
segregated. Wet garbage will
be treated in OWC provided
onsite and Dry/inert solid
waste will be handed over to
SWACH.
9. Water usage, source The water requirement for the
and quantity. construction activity is about
10 KLD and it is met through
tanker water supply.
PP has obtained Water NOC
dated 10.06.2019 from Pune
Municipal Corporation for the
operation phase. Copy of the
permission is submitted.
10. Permission to draw According to the PP, there are
ground water if any no bore wells and PP is
shall be obtained meeting the water for
from competent construction through water
authority prior to tanker.
construction/
operation of the
project.
11. Water conservations Water demand during
measures- construction is reduced by use
Water demand of pre- mixed concrete, curing
during construction agents and other best
should be reduced by practices.
use of pre-mixed
concrete, curing
agents and other
best practices
referred.
Dual plumbing line PP has provided separate
for separation of gray lines form storm water and
Page 43 of 69
and black water. sewage water, as well as
Low flow Fixtures for separate water supply for
showers, toilet fresh water treated water from
flushing and STP, PP has also provided low
drinking. flow fixtures in toilets.
The Sewage treatment plant of
Recycling of treated 35 KLD is provided for the
sewage. treatment of sewage expected
from Operation phase. The
treated sewage is proposed to
be reused for flushing,
gardening etc.
12. Energy conservation PP informed that project is
as per Energy designed as per the ECBC
Conservation norms and following energy
building Code. conservation measures will be
implemented:
LED Lighting
Occupancy Sensors& Controls
Solar PV
13. Usage of Fly ash in -
the construction
14. Topsoil Management Reported that excavated soil is
used for backfilling and
leveling of the plot and
remaining shall be used
within site for landscaping.
15. Details of DG set 1 x 62.5KVA DG set is used
(numbers and for construction phase and 1 x
Capacity) 500k VA DG set is installed at
site for operation phase. The
height of the DG set is
installed as per the Central
Pollution Control Board (CPCB)
16. Pollution abatement PP informed that vehicles with
measures: PUC only are hiered for
Vehicular Pollution bringing construction material
to the site. Copy of the PUC
certificates verified during the inspection.Page 44 of 69
Dust control PP informed that water sprinkling is being carried out to suppression of dust.
Noise Control PP informed that construction
activity is restricted to day
time only, tall barricades have
been provided on all sides, DG
is provided with acoustic
enclosure.
17. Latest Monitoring The environment monitoring is
reports on Ambient regularly carried out for
air, Soil, Ground various parameters by
water, Noise, DG set approved MoEF&CC lab and
etc., copy of the latest monitoring
reports are enclosed at
Annexure-II
Ground water quality not
monitored within the site as
there is no bore well. Ground
water from surrounding area
is monitored to ensure there is
no contamination.
18. Construction Spoils, All construction waste gets
muck, including collected and segregated
bituminous material properly. Most of that is
and other hazardous reused for the construction
materials activity.
management. There is no bituminous waste.
Used oil would be generated
from the site, will be disposed
through Authorized vendor of
MPCB.
19. Amount earmarked for PP informed that Rs. 74 Lakhs
Environment
Management has been allocated for EMP
and assured that the same
will be utilized only for EMP.
20. Green Belt PP has submitted green belt
development plan. According
to Plan, proposed to carry out
Page 45 of 69
plantation in an area of 1461
sqm. 184 trees have been
planted previously in
residential portion whereas 9
additional trees are to be
planted commercial building.
PP should ensure plantation
as per the green belt
development plan submitted.
21. CER/EMP PP informed that according to
the OM dated 25.02.2021 of
the Ministry, the building
projects to carry out all
activities proposed under EMP
as well any additional
activities that may either be
committed by them or
prescribed by SEAC.
Accordingly, Rs. 131 lakhs /
year has been earmarked for
EMP during construction
phase for EMP activities as
STP, OWC, Rain Water
harvesting, plantation etc.,
22. Details of Details of Environment
Environment Management Cell viz.
Management Cell organization Chart,
Qualification & Salary of
personnel provided by PP.
23. Submission of six PP has submitted six monthly
monthly reports on report.
the status of
compliance.
24. Submission of the PP has submitted the copy of
environmental the statement.
statement.
25. Uploading of the EC, PP has uploaded copy of EC,
compliance report, compliance report,
Environmental environmental statement on
statement on the the company website
Page 46 of 69
Company Website. At http: / www.pscl.in / pro-
psclin / wp- content / uploads
/ 2020/ 07/ Magnolia - EC-
Compliance report . pdf.
26. Advertisement about Not complied
the grant of EC PP has not submitted the copy
of advertisements.
27. Details of areas like There is no forest area near to
Forest, Eco-Sensitive the project site.
Zone, wildlife
sanctuary etc. and
the distance from the
project.
28. Details of Show NI.
Cause Notice/
direction issued, if
any by the State PCB
and details of
remedial action take/
proposed.
29. Details of Show NIL
Cause Notice/
direction issued, if
any from the
department of Mines
and Geology and
details of remedial
action/ taken
proposed.
30. Details of pending Original Application No.
Court Cases (if any) 38/2020 (WZ) in National
Green Tribunal (Pune Bench)
Applicant has alleged that the
Respondent No.12 (Project
Proponent-Paranjape Schemes
(Construction) Ltd has violated
EC dated 25.06.2017 which
was granted for built-up area
22,593 sq.m.
Applicant has alleged that the
Page 47 of 69
additional BUA over and
above the 22,593 sq. m has
been granted with post fcto EC
by respondent No.45 (SEIAA
Maharashtra) vide letter dated
20.09.2019.
PP informed that the first EC
dated 25.06.2007 was
granted for the entire project
but the built up area
mentioned on the EC letter is
on the basis of „FSI area‟ as
per the prevailing practice. As
per PP, the FSI area
constructed in the project was
21003 sq. m. as per the EC.
PP has completed the
construction of the said scope
of the project within the
validity period of the said EC
and also obtained occupancy
Certificate from Municipal
Corporation as well as
Consent to Operate from
MPCB. There was no change
in the scope of the project
beyond the limits prescribed in
the said EC i.e. 4 Residential
Buildings with 22592.86 sq.
m. „FSI area‟. PP stated that
the clarification regarding FSI
area & built-up area was
given by the MoEF vide the
Notification 04.04.2011, the
said project was already
completed and granted with
occupancy Certificate, Consent
to Operate before the said
notification was issued.
Further, PP informed that in
Page 48 of 69
the year 2019 due to recent
revision of PMC Development
Control Rules, additional FSI
was allotted by the municipal
corporation. Therefore, PP
proposed an additional
commercial building in the
project and obtained EC dated
20.09.2019 for the additional
building only, which is still
under construction as per the
said EC.
Matter was heard by NGT on
12.01.2023 Advocate for
Respondent No.12(PP) pressed
that the issue of limitation is to
be decided as a preliminary
issue. Adv for respondent
No.4 & 5 (SEAC & SEIAA as
well as Original Applicant
asked additional time for
submission. Accordingly,
additional time was granted.
Matter was then heard on
23.02.2023 on the preliminary
issue of limitation only.
Matter is now listed for next
hearing on 24.04.2023.
Copy of the NGT order is
placed as Annexure. III
31. Proposal PP has submitted a proposal
for Corrigendum of EC for
correction of BUA mentioned
on the EC letter dated
20.09.2019. Hence, PP
requested for CCR.
Conclusion: After the site visit and review of additional documents submitted, the implementation environmental safeguards status in the project is prepared. Following Non-compliance observed during the site visit.
Page 49 of 69Condition No. (26) PP has not submitted the copy of advertisement. Course Case: Original Application No. 38/2020 (WZ) in National Green Tribunal (Pune Bench). Matter was heard on 23.02.2023 on the Preliminary issue of limitation only. Matter is now listed for next hearing on 24.04.2023. PP should ensure the implementation of Green belt development plan and CSR/CER/EMP activities 30% funds should be earmarked for Water Conservation and seedling plantation/ distribution related works."
8. The stand of Respondent No. 4/SEIAA is as follow:
a) The Respondent No.4/SEIAA has filed their reply on 21.04.2023. The first EC was granted to Respondent No.12 by MoEF&CC on 25.06.2007, therefore, if the PP has exceeded the construction limit, and if it has resulted into any change in the project, the PP ought to have communicated about the change to MoEF&CC and should have got fresh appraisal done from the MoEF&CC.
Therefore, whether the exercise has been done or not can be apprised only by the MoEF&CC. But we find that in the compliance report which Project Proponent has submitted with its paper, it was submitted by the MoEF&CC, that no averment is made with respect to this aspect of the matter.
b) On 10.07.2018, the Project Proponent applied to SEAC for expansion of their residential and commercial Project which was for modernization of earlier Environment Clearance showing FSI area of 25064.00 Sq. Mtrs., non FSI area of 11692.00 Sq. Mtrs and total BUA of 36756.00 Sq. Mtrs.
c) It was considered in 80th Meeting of SEAC on 15th January, 2019 and the PP was asked to submit Page 50 of 69 information about the points mentioned at Serial No. 1) to
6) in paragraph five(5) of the said affidavit.
d) SEAC considered proposal of the Project Proponent on 10th July, 2019 and decided to recommend the project for Environment Clearance, to SEIAA. Thereafter, answering Respondent considered the proposal of the Project Proponent in its meeting dated 29th August, 2019 and decided to grant EC to Project Proponent subject to two conditions which are mentioned in paragraph seven(7) of the said affidavit.
e) The Project Proponent submitted an application for corrigendum in EC dated 20.09.2019 which was considered by SEAC in its meeting dated 12th January, 2023. In the said meeting, the SEAC has made observation under 8 sub heads out of which we find sub head No. II and III to be relevant, which are quoted hereinbelow:
"II. PP further stated that, while applying expansion of EC on the EC MPCB Portal vide application No. UAN No. SEIAASTEMENT-0000001583 dated 30.07.2018, they had erred to separately mention the built-up area of the older residential buildings, which were already.
III. PP further stated that, an area of 13,904 m2 excess area of 1,591 M2 of FSI was included in the overall built- up area mentioned in the consolidated statement. Thus, resulting in a net difference of 12,313 M2 in the overall built-up area in their application."
f) Thereafter, the SEAC directed the Project Proponent to submit compliance along with three(3) points which are quoted a) to c) under head IX.
g) Thereafter, the SEAC decided to recommend the proposal for Corrigendum in EC to SEIAA, where-after SEAC Page 51 of 69 Meeting was held on 10th to 12th January, 2023 and took following decisions:
10. SEIAA considered the proposal of the PP in their 257th Meeting held on 10th March, 2023. It was informed to the PP, whether they are in receipt of Certified Compliance Report (CCR) as mandated by MoEF&CC OM dated 26.09.2022. PP submitted that site visit was held on 09.02.2023 and report is not received. SEIAA asked PP to submit CCR.
Accordingly they have obtained it on 20.03.2023. SEIAA noted the same and asked PP to strictly comply with points raised in the Certified Compliance Report (CCR) dated 20.03.2023. SEIAA noted the same asked PP to strictly comply with the points raised in the CCR dated 20.03.2023.
11. PP submitted that while applying for revised EC for the said commercial building on 30.07.2018, inadvertently forgot to separately mention the non- FSI area of 19,904 M2 towards the parking, services & balconies of the residential buildings, whereas the FSI area of the existing residential buildings was mentioned higher than the actual FSI area by 1591 M2
12. The BUA which was not mentioned in the application was already appraised in the first EC dated 25.06.2007 as it pertains to the residential buildings, which were already constructed as per the earlier sanctioned plans, EC and granted with completion certificates in the year 2009.
13. Further these areas were also not mentioned in the PMC Sanctioned plan No. CC/319/19 dated 17.05.2019 under Existing areas . The said sanction plan was submitted to SEIAA during the 174th Meeting dated 29.08.2019. The reference of the sanction plan is reflected in the minutes of the said meeting as well as the final EC letter dated 20.09.2019. SEIAA asked PP to submit undertaking to that effect. PP submitted the same on 20.03.2023.
14. SEIAA noted that the FSI, Non- FSI and total BUA mentioned in the EC letter dated 20.09.2019 need to Page 52 of 69 be corrected as below:
Sr. Details As per As per As per plan Correction No. Applicati EC approved no. required.
on dated
1. Total Plot 17,400 17,400 17,400 M2 17,400 M2
area M2 M2
2. FSI area 25,0644 24,274. 21,002.29 M2 23,803.44
M2 35 M2 (Existing M2
buildings) +
2,801.15 M2
(Proposed
building F)=
23,803.44 M2
(Total
3. Non FSI 11,692 11,692 24130.60 M2 25,266.17
area M2 M2 (Existing M2
building
including
parking)+
1135.57 M2
(Proposed
building F)=
25,266.17 M2
(Total)
4. Total BUA 36,756 35,966 49,069.61 M2 49,069.61
M2 M2 M2
15. SEIAA observed that earlier EC issued for FSI of 24,274.35 M2, Non- FSI of 11,692.00 M2 and total BUA of 35,966.35 M2 as per plan approval No. CC/0319/19 dated 17.05.2019 and same plan approval also mentioned the existing parking which need to be incorporated in EC. SEIAA after deliberation decided to correct the FSI area as 23,803.44 M2 , Non- FSI area as 22,266.17 M2 and total BUA as 49,069.61 M2 in Environmental Clearance vide letter No. SEIAA - EC 0000002017 dated 20.09.2017.
16. SEIAA after deliberation decided to grant corrigendum.
9. Through email dated 24th April, 2023, copy of which has been endorsed to the other parties as well as, the Respondent No.12/PP has made submissions that the circular issued by MoEF&CC dated 13th October 2006 directs as follows:
"1.2 New applications (under EIA 1994) for EIA appraisal received on or after 14th September, 2006 and up to 30th June, 2007: All such complete applications with Page 53 of 69 Public hearing proceedings where it was necessary under EIA, 1994 and provided the activity is included in Schedule of EIA Notification 2006, will continue to attract action under the relevant provisions of the Environment Protection Act, 1986. Otherwise, they would undergo EIA Appraisal by Central Government as per the procedure of EIA (1994)"
10. The Project Proponent had applied for EC vide letter dated 30.11.2006 as per the requirements of EIA Notification dated 07.07.2004 proposing to construct 270 tenements thereby exceeding 1000 person criteria as also it was estimating sewage generation 160 cu.m/day thereby exceeding criteria of 50 cu.m/day.
11. The Respondent No.12/PP could locate from its record documents submitted along with their application dated 30.11.2006 Questionnaire and Schedule-II (Application), as also layout plan. The questionnaire did not mention any non-FSI area in it. It is clear that the BUA was not a concept/requirement of EC granted under EIA Notification 2004, therefore there was no query regarding BUA either in the questionnaire or in Schedule -II -
Application.
12. The EC issued by MoEF on 25.06.2007 clearly states that:
"I am directed to refer to your application seeking prior environmental clearance for the above project under the EIA Notification 2004 including amendment."
(EIA Notification 2006 was brought in suppression of the notification number S. O. 60 (E) dated the 27th January, 1994, except in respect of things done or omitted to be done before such suppression. Hence, it was not an amendment to 2004 Notification) " The above proposal has been appraised as per prescribed procedure on the basis of the mandatory documents enclosed with the application viz. the Questionnaire, EIA, EMP and the additional clarifications Page 54 of 69 furnished in response to the observations of the Expert Appraisal Committee(EAC) constituted by the competent authority in its 14th meeting held on April 27-29, 2009."
"2. The Project Proponent is proposing for Construction for residential complex at Plot bearing S. NO. 136/2, Baner Pashan Link Road, Pune. The Project involves construction of one building for residential purpose. The total plot & area is 17,400 sq. m. The total built up area as indicated is 22,592.86 sq. m. Total water requirement will be 190 cu.m./day (including recycled water). Total wastewater generation from the complex will be 152 cu.m/day. The wastewater generated from the project will be treated in STP having capacity of 160 cu.m.per day. The total solid waste generated will be 540 kg/day. The biodegradable waste will be composted and inert material will be disposed of for landfilling."
"6. It is further submitted that the Project proponent submitted six monthly compliance reports, which are available on http: //environmentclearance.nic.in /writereaddata / Compliance /44 16-112-2007-I-DC-
08.pdf. It is clear from these reports, as also MoEF&CC inspection report dated 20.03.2023, that the project was in complete compliance with EC conditions stipulated in EC dated 25.06.2007. PSCL wish to confirm that as per EC Compliance Report, an advertisement in newspapers was given, but we could not locate a copy of the same at the time of inspection by MoEF&CC RO Nagpur Officer on 09.02.2023."
"7. Hence, there is no violation in the terms of EC dated 25.06.2007, either in the terms of BUA or in the terms of EC conditions."
"8. As regards Consent, we wish to state that EC dated 25.06.2007 did not direct obtain consent from the SPCB. Till 2016, there was no specific regulatory requirement for obtaining „Consent to Operate‟ for residential projects. We applied for and got the same as a matter of responsible developer as an abundant precaution. Hence, there is no question of penalty on account of consents."
13. On the basis of the above pleadings and arguments made Page 55 of 69 before us by the learned counsel for the parties, following issues are framed for being decided by us in this Original Application.
i. Whether the provisions of the EIA Notification 2006 would be treated to have come into force with effect from its publication i.e. on 14th September, 2006 or could the Project Proponent be allowed to take benefit of circular dated 13th October, 2006 issued by the MoEF&CC to extend benefit to the Project Proponent of not having got his project appraised under the provisions of EIA Notification 2006.?
ii. Whether the Project Proponent not having obtained prior EC even under the earlier EIA Notification 1994 had started raising construction in violation of the then existing provision ? If yes, its effect ?
iii. Whether the violations which have been alleged by the Applicant in this O.A. of the terms and conditions stipulated in the EC dated 25.06.2007 are found to be correct ? If yes, its effect?
iv. Whether the project of Respondent No.12/PP which was earlier housing project and was later on got expanded by adding one commercial building to it would be treated to be one project or two separate projects?
v. Whether the Project Proponent has violated any of the Consent Conditions? if yes, its effect ?
vi. Whether the present O.A. is barred by limitation?
vii. Whether the O.A. suffers from plural causes to have been raised in single application which is prohibited under Rule 14 of the NGT Rules?
viii. What Relief ?
Page 56 of 69FINDINGS
14. As to Issue Nos. I & II :
As per these issues, we have to decide as to whether the provisions of the EIA Notification 2006 would be treated to have come into force with effect from its publication i.e. on 14th September, 2006 or could the Project Proponent be allowed to take benefit of circular dated 13th October, 2006 issued by the MoEF&CC to extend benefit to the Project Proponent of not having got his project appraised under the provision of EIA Notification 2006? and Whether the Project Proponent not having obtained prior EC even under the earlier EIA Notification 1994 had started raising construction in violation of the then existing provision ? If yes, its effect ?.
In this regard, we are of the view that after the EIA Notification 2006 came into effect on 14th September, 2006 there is no justifiable reason why the provision of the same would not be enforced in the present project. We find that the Circular of MoEF&CC dated 13th October, 2006, which has been relied upon by the Project Proponent, no-where states clearly that all the pending matters which had applied for EC under EIA Notification 1994 would continue to be dealt with by the provision of the earlier Notification and not by the provision of the new Notification. In our estimation even if any such provision is sought to be created by the MoEF& CC, that does not stand to reason because that amounts to violating the provision of EIA Notification 2006, which cannot be permitted by us. Moreover, it is very clear that the EC was granted on 25.06. 2007 which is much after coming into force of EIA Notification 2006.
We also find that even if the matter was considered in the light of the earlier provision of EIA Notification 1994, it was Page 57 of 69 absolutely the bounden duty on the part of the Project Proponent not to initiate any construction before obtaining EC, but in the present case, it has distinctly come on record that construction had been started by the Project Proponent prior to obtaining EC in the year 2007, as the first Plinth Certificate was issued to it 25.05.2007, which is indicative of the fact that construction had already begun.
15. As to Issue No. III :
As per this issue, we have to decide as to whether the violations which have been alleged by the Applicant in his O.A. of the terms and conditions stipulated in the EC dated 25.06.2007 are found to be correct ? If yes, its effect?. In this regard, we find after having taken note of the compliance report submitted by the MoEF&CC which has been cited by us above as well as by the Joint Committee Report that there is no major violation of EC conditions on the part of Project Proponent.
Therefore, we are of the view that to accept this report to be correct as regards the violations and find that in the light of this report there is no violation of the EC conditions on the part of the Project Proponent. This issue is decided accordingly.
16. As to Issue No. V :
As per this issue, we have to decide as to whether the Project Proponent has violated any of the Consent Conditions? if yes, its effect ?. In this regard, we are of the view that there was no violation of the consent conditions except the fact that Project Proponent did not obtain any Consent to Operate for period from 01.01.2012 to 08.11.2015. For these violations, the MPCB shall make calculations of Environmental Compensation in accordance with the CPCB guidelines laid down pursuant to the order/ judgment passed by this tribunal in paryavaran suraksha case, within one month from today and the same shall Page 58 of 69 be levied within next one month. This issue is decided accordingly.
17. As to Issue No. VI & IV :
As per issues No.VI, we have to decide as to whether the Present O.A. is barred by limitation ? and as per issue No. IV, we have to decide whether the project of Respondent No.12/PP which was earlier housing project and was later on got expanded by adding one commercial building to it would be treated to be one project or two separate projects ?. In this regard, the learned counsel for the Respondent No.12/PP has alleged that cause of action had arisen for the first time on 09.09.2009, when first Completion Certificate was issued by the Pune Municipal Corporation (PMC) and from that date allegedly found the limitation, the delay would stand at of 3953 days i.e. 10 years and 6 days because the present O. A. has been filed on 06.07.2020. We are not in agreement with this argument of the learned counsel for the Respondent No.12/PP because we find from the evidence which has come on record that the Project Proponent has sought EC for expansion of the present project which was granted on 20.09.2019, which included the area which was already covered under prior EC dated 25.06.2007 and the Joint Committee also has considered both the constructions i.e. 4 residential buildings as well as that of commercial buildings to be under the one project. Therefore, the argument made from the side of the Applicant that cause of action should be treated to have arisen on 07.12.2019 when the Project Proponent procured the Consent to Establish and initiated construction project should be treated to be relevant date for reckoning the limitation period, appears to be correct, in view of the law laid down in O.A. No. 222/2014, The Forward Foundation & others Vs. State of Karnataka & others, where-in Page 59 of 69 following has been held, wherein we find that there is approval of concept of recurring cause of action, relevant portion of which has been quoted as follows:
"24........ For a dispute to culminate into a cause of action, actionable under Section 14 of the NGT Act, 2010, it has to be a „composite cause of action‟ meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of the NGT Act, 2010. It must satisfy all the legal requirements i.e. there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of implementation of the enactments specified in Schedule I. Action before the Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of „cause of action‟ as afore-stated would have to be considered as to when it first arose."
51. This Tribunal in Forward Foundation (Supra) further considered the term‟ continuing cause of action‟, „recurring cause of action‟ or „successive cause of action‟ and in para 25 to 32, said:
"25. In contradistinction to „cause of action first arose‟, there could be „continuing cause of action‟, recurring cause of action‟ or „ successive cause of action‟. These diverse connotations with reference to cause of action are not synonymous. They certainly have a distinct and different meaning in law, „cause of action first arose‟ would refer to a definite point of time when requisite ingredients constituting that „cause of action‟ were complete, providing applicant right to invoke the jurisdiction of the court or the Tribunal. The „Right to sue‟ or „ right to take action‟ would be subsequent to an accrual of such right. The concept of continuing wrong which would be the foundation of continuous cause of action has been accepted by the Hon‟ble Supreme Court in the case of Bal Krishna Savalram Pujari & ors. Vs. Sh. Dayaneshwar Maharaj Sansthan & Ors. MANU/SC/0174/1959: AIR 1959 SC 798."
26. In the case of State of Bhiar Vs. Deokaran Nenshi and Anr., MANU/SC/0469/1972: (1972) 2 SCC Page 60 of 69 890, Hon‟ble Supreme Court was dealing with the provisions of Section 66 and 79 of the Mines Act, 1952. These provisions prescribed for a penalty to be imposed upon guilty, but provided that no court shall take cognizance of an offence under Act unless a complaint thereof has been made within six months from the date on which the offence is alleged to have been committed or within six months from the date on which the alleged commission of the offence came to the knowledge of the Inspector, whichever is later. The Explanation to the provision specifically provided that if the offence in question is a continuing offence, the period of limitation shall be computed with reference to every point of time during which the said offence continues. The Hon‟ble Supre Court held has under:
"5. A continuing offence is one which is susceptible of continuance and distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all."
27. Whenever a wrong or offence is committed and ingredients are satisfied and repeated, it evidently would be a case of 'continuing wrong or offence'. For instance, using the factory without registration and licence was an offence committed every time the premises were used as a factory. The Hon'ble Page 61 of 69 Supreme Court in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi, MANU/SC/0082/1985 : (1986) 1 SCC 445, was considering, if not filing return within prescribed time and without reasonable cause, was a continuing wrong or not, the Court held that continued default is obviously on the footing that non-compliance with the obligation of making a return is an infraction as continues and as long as the default continued. The penalty is imposable as long as the default continues and as long as the assesses does not comply with the requirements of law he continues to be guilty of the infraction and exposes himself to the penalty provided by law. Hon‟ble High Court of Delhi in the case of Mahavir Spinning Mills Ltd. V. Hb. Leasing and Finances Co. Ltd., MANU/DE/5386/2012:
199(2013) DLT 227, while explaining Section 22 of the Limitation Act took the view that in the case of continuing breach, or of a continuing tort, a fresh breach or the tort, as the case may be, continues. Therefore, continuing the breach, act or wrong would culminate into the „continuing cause of action‟ thus, becomes relevant for even the determination of period limitation with reference to the facts and circumstances of a given case. The very essence of continuous cause of action is continuing source of injury which renders the doer of the act responsible and liable for consequence in law.
Thus, the expressions „ cause of action first arose‟, „continuing cause of action‟ and „recurring cause of action‟ are well accepted cannons of civil jurisprudence but they have to be understood and applied with reference to the facts and circumstances of a given case. It is not possible to lay down with absolute certainly or exactitude, their definitions or limitations. They would have to be construed with reference to the facts and circumstances of a given case. These are generic concepts of civil law which are to be applied with acceptable variations in law. In the light of the above Page 62 of 69 discussed position of law, we may revert to the facts of the case in hand.
28. The settled position of law is that in law of limitation, it is only the injury alone that is relevant and not the consequences of the injury. If the wrongful acts causes the injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. In other words distinction must be made between continuance of legal injury and the continuance of its injurious effects. Where a wrongful act produces a state of affairs, every moment continuance of which is a new tort, a fresh cause of action for continuance lies. Wherever a suit is based on multiple cause of action, period limitation will began to run from the date when the right to sue first accrues and successive violation of the right may not give rise to a fresh cause of action. (Ref: Khatri Hotels Private Limited and Anr.
Vs. Union of India (UOI) and Anr.
MANU/SC/1054/20112011) 9 SCC 126, Bal Krishna Savalram Pujari & Ors. V. Sh. Dayaneshwar Maharaj Sansthan & Ors, MANU/SC/0174/1959: AIR 1959 SC 798, G. C. Sharma Vs. Municipal Corporation of Delhi, MANU/De/0179/1979: (1979) ILR 2 Delhi 771, Kuchibotha Kanakamma and Anr. V. Tadepalli Ptanga Rao and Ors., MANU/AP/0194/1956: AIR 1957 AP 419).
29. A cause of action which is complete in all respects gives the applicant a right to sue. An Applicant has a right to bring an action upon a single cause of action while claiming different reliefs. Rule 14 of the National Green Tribunal (Practice and Procedure) Rules, 2011 shows the clear intent of the framers of the Rules that multiple reliefs can be claimed in an application provided they are consequential to one another and are based upon a single cause of action. Different causes of action, thus, may result in institution of different applications and therefore, there is exclusion of the concept of the „joinder of causes of action‟ under the Rules of 2011. The multiple cause of action again would be of two kinds. One, which arise simultaneously and other, which arise at a different or successive point of time. In first kind, cause of action accrues at the time of completion of the wrong or injury. In latter, it may give rise to cause of action or if the statutes so provide when the „cause of action first arose‟ even if the wrong was repeated. Where the injury or wrong is Page 63 of 69 complete at different times and may be of similar and different nature, then every subsequent wrong depending upon the facts of the case may gives rise to a fresh cause of action.
To this general rule, there could be exceptions. In particular such exceptions could be carved out by the legislature itself. In a statute, where framers of law use the phraseology like „cause of action first arose‟ in contradistinction to cause of action‟ simplicitor. Accrual of right to sue means accrual of cause of action for suit. The expressions „when right to sue first arose‟ or „cause of action first arose‟ connotes date when right to sue first accrued, although cause of action may have arisen even on subsequent occasions. Such expressions are noticed in Articles 58 of the limitation Act, 1963. We may illustrate this by giving an example with regard to the laws that we are dealing here. When an order granting or refusing Environmental Clearance is passed, right to bring an action accrues in favour of an aggrieved person. An aggrieved person may not challenge the order granting Environmental Clearance, however if on subsequent event there is a breach or non-implementation of the terms and conditions of the Environmental Clearance order, it would give right to bring a fresh action and would be a complete and composite recurring cause of action providing a fresh period of limitation. It is also for the reason that the cause of action accruing from the breach of the conditions of the consent order is no way dependent upon the initial grant or refusal of the consent. Such an event would be a complete cause of action in itself giving rise to fresh right to sue. Thus, where the legislature specifically requires the action to be brought within the prescribed period limitation computed from the date when the cause of action „first arose‟, it would by necessary implication exclude the extension of limitation or fresh limitation being counted from every continuing wrong, so far, it relates to the same wrong or breach and necessarily not a recurring cause of action.
30. Now, we would deal with the concept of recurring cause of action. The word „recurring‟ means something happening again and again and not that which occurs only once. Such reoccurrence could be frequent or periodical. The recurring wrong could have new elements in addition to or in substitution of the first wrong or when „ cause of action first arose‟. It could even have the same features but its reoccurrence is complete and composite. The recurring cause Page 64 of 69 of action would not stand excluded by the expression „cause of action first arose‟. In some situation, it could even be a complete distinct cause of action hardly having nexus to the first breach or wrong, thus, not inviting the implicit consequences of the expression „cause of action first arose‟. The Supreme Court clarified the distinction between continuing and recurring cause of action with some fitness in the case of M. R. Gupta V. Union of India and others, MANU/SC/0172/1996: (1995) 5 SCC 628, the court held that:
"The appellant‟s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that it the appellant‟s claim is found correct on merits. He would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant‟s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defense of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.08.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.
The Tribunal misdirected itself when it treated the appellant‟s claim as „one time action‟ meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be Page 65 of 69 exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government Servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (see Thota China Subba Roa and Ors. V. Mattapali, Raju and Ors. MANU/FE/022/1949: (1950) F. C1".
31. The continuing cause of action would refer to the same act or transaction of series of such acts or transactions. The recurring cause of action would have an element of fresh cause which by itself would provide the applicant the right to sue. It may have even be do hors the first cause of action or the first wrong by which the right to sue accrues. Commission of breach or infringement may give recurring and fresh cause of action with each of such infringement may give recurring and fresh cause of action with each of such infringement like infringement of a trademark. Every rejection of a right in law could be termed as a recurring cause of action. (Ref: Ex. Sep. Roop Singh Vs. Union of India and Ors., MANU/DE/9120/2006: (91)DRJ 324, M/s Bengal Waterproof Limited Vs. M/s Bombay Waterproof Manufacturing Company and Another, MANU/SC/0327/1997: (1997) 1 SCC 99)
32. The principle that emerges from the above discussion is that the „cause of action‟ satisfying the ingredients for an action which might arise subsequently to an earlier event give result in accrual of fresh right to sue and hence reckoning of fresh period of limitation. A recurring or continuous cause of action may give rise to a fresh cause of action resulting in fresh accrual of right to sue. In such cases, a subsequent wrong or injury would be independent of the first wrong or injury and a subsequent, composite and complete cause of action would not be hit by the expression „cause of action first arose‟ as it is independent accrual of right to sue. In other words, a recurring cause of action is a distinct and completed occurrence made of a fact or blend of composite facts giving rise to a fresh legal injury, fresh right to sue and triggering a fresh lease of limitation. It would not materially alter the character of the preposition that it has a Page 66 of 69 reference to an event which had occurred earlier and was complete cause of action in itself. In that sense, recurring cause of action which is completed in itself and satisfies the requisite ingredients would trigger a fresh period of limitation. To such composite and complete cause of action that has arisen subsequently, the phraseology of the „cause of action first arose‟ would not effect in computing the period of limitation. The concept of cause of action first arose must essentially relate to the same event or series of events which have direct linkage and arise from the same event or series of events which be act or series of acts which arise from the same event, may be at different stage. This expression would not de bar a composite and complete cause of action that has arisen subsequently. To illustratively demonstrate, we may refer to the challenge to the grant of Environmental Clearance. When an appellant challenges the grant of Environmental Clearance, it cannot challenge its legality at one stage and its impacts at subsequent stage, then the appellant can challenge the subsequent amendments at a later stage, it being a complete and composite cause of action that has subsequently arisen and would not be hit by the concept of cause of action first arose." Therefore, the Issue No. VI is decided in negative, holding that O.A. is not time barred. Issue No. IV is decided to the effect that both the projects will be treated to be one project.
18. As to Issue No. VII As per this issue, we have to decide as to whether the O.A. suffers from plural causes to have been raised in single application which is prohibited under Rule 14 of the NGT Rules?. In this regard, we are of the view that it does not suffer from the said defect because the main relief prayed is with respect to the violations made by the Project Proponent in the project in question of the terms and conditions of the EC and that of the Consent to Establish and Consent to Operate which we do not find to be multiple causes of action requiring separate cases to be filed. This issue is decided accordingly.
19. As to Issue No. VIII :
Page 67 of 69As per this issue, we have to decide as to what relief the applicant is entitled to. In this regard, we are of the view that the Respondent No.12/PP had obtained EC dated 25.06.2007 for area 22,592.86 sq.m. which did not include Non-FSI area and actually had constructed Total BUA 45,133 sq.m. before applying for the EC for expansion of the project. The cost of the project regarding earlier buildings which were constructed i.e. building A, B, C & D is shown to be Rs. 61.22 crores in Consent to Operate dated 09.11.2015 while in subsequent EC which is for the commercial building project cost is Rs. 19.75 crores. We make it clear here that construction of this subsequent project after expansion has been done/ is being done after obtaining valid EC and valid Consent to Establish. Therefore, we should confine ourselves only to earlier phase of the project which was allowed to be constructed under EC dated 25.06.2007. We find that instead of permitted level of construction i.e. 22,592.86 sq.m., the Project Proponent had already constructed on 45,133 sq. m. therefore, for the balance area i.e. 45,133 sq.m. - 22,592 sq. m. = 22,541 sq.m., we find that there was no EC. We have tried to calculate proportionate project cost of this area by following calculation:
61.22 𝑐𝑟𝑜𝑟𝑒𝑠 𝑥 22,541 𝑠𝑞 .𝑚 .
= 30.57 𝑐𝑟𝑜𝑒𝑠 45,133 𝑠𝑞 .𝑚 .
20. We are of the view that on this amount of Rs.30.57 croes we have to calculate Environmental Compensation by charging 10% (Construction carried out was almost double the area for which EC was granted, hence we can not show any leniency) of that amount in terms of the law laid down by this Tribunal in Goel Ganga Developers India Pvt. Ltd vs Union of India which Page 68 of 69 would come to Rs. 3.06 crore. We direct the Respondent No.12/PP to deposit this amount with Maharashtra Pollution Control Board (MPCB) within three months from the date of judgment.
21. Apart from that, we have already held above that the State Pollution Control Board shall calculate the Environmental Damage Compensation with respect to non-compliance in the terms of Consent to Operate for period indicated above.
22. We also find that the Joint Committee Report has indicated that an amount of Rs. 29.1 lakh is required to be paid by Project Proponent to the MPCB by way of penalty (this will be in addition to EDC) for not moving timely for obtaining the Consent to Operate, hence we direct that this amount shall be paid within two months of this judgment.
23. We direct that all the above amounts, which shall be levied from the Project Proponent, shall be utilized for restitution of environment in the project affected area within next six months of its being realized. A report in this regard shall be sent to the Registry of this Tribunal within a week thereafter and also posted on MPCB website under Section EDC Utilization.
24. With the above directions, we dispose off this Original Application. Pending I. A. , if any stands disposed of.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM April 28, 2023.
Original Application No. 06/2021 Sachin J.
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