M/S Dhammanagi Developers Pvt. Ltd., Vs the Karnataka State Pollution Control Board

M/S DHAMMANAGI DEVELOPERS PVT. LTD., REPRESENTED BY ITS AUTHORIZED SIGNATORY, HAVING OFFICE AT NO.29/4, 5^TH FLOOR, TRADE CENTRE, RACECOURSE ROAD, BENGALURU 560001

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…PETITIONER

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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(BY SRI. CHELUVARAJA G V, ADVOCATE)

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AND:

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THE KARNATAKA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS DEPUTY ENVIRONMENTAL OFFICER, REGIONAL OFFICER, YELAHANKA (BYT) FIRST FLOOR, NISARGA BHAVAN, THIMMAIAH ROAD, 7^TH D CROSS, SHIVANAGARA, BENGALURU 560079

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HC-KAR

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THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT KANDAYA BHAVAN, K G ROAD, BENGALURU

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…RESPONDENTS

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(BY SRI. A MAHESH CHOWDHARY, ADVOCATE A/W MS. RASHI SINGH, ADVOCATE FOR R1 SMT. NILOUFER AKBAR, AGA FOR R2 SRI. MITHUN G A, ADVOCATE FOR IMPLEADING APPLICANT IN I.A.2/2024 SRI. KIRAN KUMAR M.L, ADVOCATE FOR IMPLEADING APPLICANT IN I.A.2/2025)

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THIS WP IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REPORT OF THE ENVIRONMENTAL COMPENSATION COMMITTEE AT ANNEXURE-A, DATED 12/08/2020 IMPOSING ENVIRONMENTAL COMPENSATION OF RS.1,71,00,000/-, AS ILLEGAL, VOID AND ULTRA VIRES OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE and HON'BLE MR. JUSTICE C.M. POONACHA

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HC-KAR

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ORAL ORDER

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(PER: HON'BLE MR. VIBHU BAKHRU, CHIEF JUSTICE)

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The petitioner has filed the present petition, inter alia, impugning a communication dated 12.08.2020 enclosing therewith a report computing the environmental compensation, which was subsequently imposed on the petitioner. The petitioner also prays that directions be issued to respondent No.1 [ KSPCB ] for grant of Consent for Operation [ CFO ] for Sewage Treatment Plant [ STP ] in residential apartments known as 'Lilium Gardenia Apartment' located in Survey Nos.98/1 and 98/3, Rachenahalli Village, K.R.Puram Hobli, Bengaluru East Taluk. Further, the petitioner prays that it be relieved from its obligation to maintain and operate the STP and the Organic Waste Converter [ OWC ] installed at the said development. Additionally, the petitioner prays that directions be issued to KSPCB to frame appropriate scientific and technical guidelines, rules and regulations, laying down the scientific specifications of an efficient STP plant model to be sold and installed by authorized vendors.

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HC-KAR

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The petitioner is a private company registered under the Companies Act, 1956 and is engaged in the business of developing Real Estate.

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The petitioner states that it undertook a project to construct residential apartments, named 'Lilium Gardenia Apartment' [hereafter ‘ the Apartments ’]. The petitioner filed an application on 30.01.2014 with KSPCB seeking Consent for Establishment [ CFE ] of an Apartment Complex. Pursuant to the said application, one of the officials of KSPCB conducted an inspection of the premises in question (the site of the Apartments) on 01.02.2014 and forwarded an inspection report. Thereafter, on 19.08.2014, KSPCB issued the CFE.

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The petitioner also secured a State Environment Impact Assessment Report on the project.

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The petitioner states that it authorized one Aerobic Biotaxy India Pvt. Ltd., to install the STP and had spent a sum of Rs.32,21,367/- for installation till 2018. The said entity had supplied and installed the STP at the Apartments.

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HC-KAR

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Apparently, the STP was not functioning properly and the residents of 'C' Block of the Apartment filed complaints, which were received by KSPCB on 06.01.2019. Pursuant to the said complaints, the project site of the Apartments was inspected by one of the officials of KSPCB on 22.02.2019. It was, inter alia, observed that the STP was not functioning properly and was not maintained as required. Additionally, it was found that the generator installed at the site was generating noise beyond the prescribed standards for residential areas.

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Pursuant to the said inspection, KSPCB issued a show cause notice dated 28.02.2019. However, the petitioner did not respond to the same. Thereafter, KSPCB issued another show cause notice dated 20.05.2019 setting out the deficiencies. Admittedly, the said notice was received by the petitioner. In terms of the show cause notice, the petitioner was also afforded an opportunity to appear for a personal hearing, which was scheduled on 27.05.2019 at 04.00 p.m.

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The petitioner responded to the show cause notice by a letter dated 27.05.2019. The copy of the said letter, annexed with the

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HC-KAR

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present petition, indicates that it was received at the office of KSPCB Bangalore on 04.06.2019.

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The plain reading of the said letter indicates that the petitioner had acknowledged that there were some deficiencies and had assured the KSPCB that it would install OWC for treatment of organic waste within thirty days and would also provide for an acoustic enclosure to the DG set within 45 days. The petitioner had in unambiguous terms acknowledged that it had failed to maintain log books, install energy meter and flow meter or was maintaining monthly analysis report. Admittedly, the petitioner had not applied for CFO and undertook that it would do so immediately.

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As noted above, KSPCB had scheduled a hearing on 27.05.2019 and the petitioner's representative also attended the said hearing. The minutes of the hearing have been placed on record. The same indicate that the deficiencies as mentioned in the show cause notice were confirmed. And, in view of the same, the following directions were issued:

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The Board Officers shall process file for issue of notice to BBMP authorities for issue of occupancy certificate to this apartment without obtaining CFO of the Board and

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HC-KAR

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also issue closure directions under Sec 33(A) of Water Act, 1974 to the apartment authorities if they do not comply for CFO within one month time.

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The RO - Yelahanka to file a Criminal Case against the Builder for operating the STP without CFO of the Board and discharging sewage outside.

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To workout and implement the Environmental Compensation for discharge of sewage as per latest Hon'ble NGT directions.

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Pursuant to the above directions, the committee constituted

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for assessing the environmental compensation [ the Committee ] held a meeting and computed a sum of Rs.1,71,00,000/- for the period from 22.2.2019 to 22.05.2020 at the rate of Rs.37,500/- per day. The said report was forwarded by the Committee to the concerned Member Secretary under the cover of its letter dated 17.08.2020 (wrongly mentioned as 12.8.2020 in the prayer portion of writ petition) , which is impugned in the present petition.

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Thereafter, several communications were issued seeking recovery of the environmental compensation as computed. Although, no specific prayer has been sought for quashing the said communications, it is apparent that the petitioner is essentially aggrieved by the action of KSPCB, inter alia, imposing the environmental compensation and seeking recovery of the same.

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HC-KAR

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The learned counsel appearing for the petitioner assailed the decision to impose compensation on several fronts. First, he submitted that the petitioner is a developer and engages various experts and sub-contractors for executing the work. He contended that the petitioner had engaged an accredited agency for establishing the STP and therefore, was not responsible for any deficiencies.

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Second, he submitted that in terms of the CFE, the petitioner was required to maintain the STP for five years and it had done so. He submitted that since the period of five years had since elapsed, no further steps could be taken by the petitioner and the same were required to be now taken by the residents.

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Third, he submitted that petitioner had not received the show cause notices and therefore, could not furnish its response to those notices. He contented that the notices had been sent at the address of the Apartment and not at the office of the petitioner. Since it had already handed over the apartment to the residents, it did not receive the communications.

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HC-KAR

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Fourth, he submitted that the petitioner had five years time to comply with the norms as notified by the Central Government in terms of the Notification dated 13.10.2017. Therefore, the petitioner could not be faulted for not maintaining the requisite standards.

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Learned counsel appearing for KSPCB countered the said submissions. He also submitted that specific norms to be complied with are specified in the CFO. However, the petitioner had failed to obtain the CFO and therefore, was operating the plant in violation of the relevant statutes.

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Learned counsel appearing for the applicants – apartment owners – seeking impleadment in the present petition contended that the Notification dated 13.10.2017, which is relied upon by the petitioner, was quashed by the National Green Tribunal by an order dated 30.04.2019 passed in Nitin Shankar Deshpande vs. Union of India : Original Application No.1069/2018.

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We have heard the learned counsel for the parties.

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The contention that the petitioner is not required to maintain the STP or was absolved of its responsibility for ensuring proper

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HC-KAR

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maintenance of the STP, is unmerited. The fact that the petitioner may have engaged an accredited agency did not absolve the petitioner from ensuring that the anti-pollution standards were duly adhered to. As noted at the outset, there is no dispute that the petitioner had not maintained the STP as required. The petitioner’s letter dated 27.05.2019 clearly acknowledges that no log books were maintained; the energy meters and flow meters had not been installed/maintained; and there were no monthly analysis reports. It was also acknowledged that the petitioner had not provided an acoustic enclosure for the DG sets, and the allegation that the noise generated, exceeded the 75 decibels was not controverted. A plain reading of the letter also indicates that the petitioner had not installed an OWC. The petitioner had sought further time to comply with the same. The principle that a polluter pays, is now well settled.

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The contention that there are no norms for establishing and maintaining an STP is also erroneous. Further, there is no cavil that petitioner's operation of the STP is without necessary approvals. Admittedly the petitioner had not obtained the CFO.

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HC-KAR

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The contention that the petitioner was required to obtain the CFO after five years of operation is ex-facie without merit. The fact that the CFE expressly stated that the STP would be required to be maintained for five years did not grant permission to the petitioner to operate the same without a CFO. It is also relevant to refer to the last paragraph of the CFE, which is set out below:

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Please note that separate consents of the Board for discharge of liquid effluent and the emissions to the air shall have to be obtained by remitting prescribed consent fee. The application for consent has to be made 45 days in advance to the completion of construction work of Residential Apartment. Issue of consent will be considered only after completion of Water pollution control measures, solid waste management facilities and installing air pollution control measures.

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We are prima facie , unable to accept that the petitioner had laboured under a misconception that it was not required to obtain a CFO. The same is required in law and in any event, the requirement to obtain the same was made expressly clear in the CFE.

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The contention that the petitioner was required to obtain the CFO after five years as the CFE expressly required the petitioner to maintain the STP for five years is also insubstantial.

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HC-KAR

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Having stated the above, we note that the petitioner was not afforded any opportunity to contest the computation of the environmental compensation. The petitioner was also not put to notice that such a compensation was proposed to be levied.

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In view of the above, we consider it apposite to direct that the report of the Committee [the Committee for Assessment of Environmental Compensation], which is enclosed as Annexure-A to the present petition, be considered as a show cause notice. The petitioner may furnish a reply to the said notice within a period of two weeks from date. The petitioner is also at liberty to respond to any other allegations that have been raised against the petitioner within the said period. The concerned officials of the KSPCB would examine the same and pass an appropriate order after affording the petitioner an opportunity of being heard.

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It is also clarified that the present order would not prejudice the rights of any of the apartment owners to institute appropriate proceedings. Additionally, we clarify that this order will not be read as quashing the decisions taken at the meeting held on

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HC-KAR

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27.05.2019. However, all communications seeking recovery of the environmental compensation are set aside and the levy of environmental compensation and recovery of the same would be subject to further orders that may be passed by KSPCB as directed above.

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The petition is disposed of in the aforesaid terms.

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Pending applications, if any, are also disposed of.

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Sd/(VIBHU BAKHRU) CHIEF JUSTICE

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 42

M/S Dhammanagi Developers Pvt. Ltd., v. the Karnataka State Pollution Control Board

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M/S Dhammanagi Developers Pvt. Ltd., v. the Karnataka State Pollution Control Board

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