Allowed

Tanaji Balasaheb Gambhire v. Union of India through Ministry of Environment and Forest

NGT23 Mar 2022IA No. 66/2021 in Original Application No. 64/2019

Case brief

AI extract

What is this about?

The Tribunal held the application maintainable within limitation, finding patent violations by the project proponent for constructing over 20,000 sq. mtrs. without prior EC. The proponent was ordered to remediate violations within three months, pay assessed compensation, obtain ex-post facto EC, and stop work order remained till compliance.

What did the court decide?

Order proponent to remedy violations within three months, pay assessed compensation, obtain ex-post facto EC and consents, and stop work order till compliance.

Tanaji Balasaheb Gambhire vs Union of India through… — Environment and Pollution | NGT (2022)

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Item No. 01

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(Pune Bench)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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Org. Application No. 64/2019(WZ) (I.A. No. 101/2019, I.A. No. 66/2021 & I.A. No. 18/2022)

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Mr. Tanaji Balasaheb Gambhire

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Applicant

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Versus

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Union of India Through Secretary & 12 Ors.

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Respondent(s)

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Date of hearing: 23.03.2022

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CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE PROF. A. SENTHIL VEL, EXPERT MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER HON’BLE DR. AFROZ AHMAD, EXPERT MEMBER

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Applicant: Mr. Nitin Lonkar, Advocate

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Respondent(s): Ms. Manasi Joshi Advocate for MPCB

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Mr. Rahul Garg, Advocate for PMC Mr. Aniruddha S Kulkarni, Advocate for SEIAA Mr. Saket Mone, Advocate for R-13

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ORDER

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Grievance in this application is against violation of environmental

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norms in the construction of the housing project “Ekta California &

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Florida” at Pune. The allegation is summed up in the application as follows:-

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“project proponent have completed the construction of total BUA 38339.6 Sq. Mtrs till today comprising of 5 residential buildings, 120 flats and further proposed expansion to increase the capacity of project from 38339.6 Sq. Mtrs to 47429.2 Sq. Mtrs. by 9089.6 Sq. Mtrs by 1 new residential building, 70 flats vide sanction no. CC/3774/16 dated 31.03.2017.

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The project proponent has not complied with environmental norms by non-obtaining of mandatory prior Environment Clearance,

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Consent to Establish, Consent to Operate, CGWA permission for ground water extraction, Non-installation of pollution control devices, Non-plantation of tree, Non-installation of STP, Non-installation of Solid waste treatment & OWCS unit, illegal ground water extraction, illegal operation of DG Sets at site, 10% recreational space of is not developed as per norms, no soil preservation, no soil and ground water test, illegal construction of basements, no use of eco-friendly building material for construction etc.”

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Vide order dated 22.10.2019, the Tribunal required a joint Committee of SEIAA and State PCB to verify facts and furnish a report. Accordingly, the said joint Committee filed its report on 07.01.2020 after site visit on 15.12.2019 in tabular forms as follows:-

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*Sr.* *No.*	*Point examined*	*Remarks*
1.	The Project proponent has not complied with environmental norms by non-obtaining of mandatory prior Environmental Clearance, Consent to Establish, Consent to Operate.	As per Architect certificate dated 19.11.2019 PP has carried out construction from 2007 for BUA- 37930.6 sqm. (FSI-18991.92 sqm. & Non FSI- 18938.68 sqm) without obtaining prior Environmental Clearance as per EIA Notification 2006, non-obtaining consent to Establish, Consent to operate under Water (P &CP) Act 1974 & Air (P & CP) Act, 1981
2.	PP has not obtained CGWA permission for ground water extraction	There is one bore well in the premises and PP has not obtained CGWA permissions for the extraction ot ground water.
3.	PP has not provided pollution control devices, Non installation of STP	PP has provided underground STP of capacity 212 KLD Of MBBR however same is unscientific and ill ventilated.
4.	PP has not provided Solid Waste treatment & OWC units.	PP provided vermicomposting pit for the treatment of organic waste. But same is not in operation.
5.	Illegal operations of DG Set at site	PP has installed one DG Set of 240 KVA capacity without obtaining consent from MPC Board.
6.	10% recreation space is not developed as per norms	PP has provided 10 % open area. However it is observed that entire reserved open space is on podium. PP has constructed club house and swimming pool in this podium area
7.	No soil preservation, no soil &ground water test, non-provision of solar energy	PP unable to give details of soil preservation for the A, B, C, D & E building.

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		For proposed Bldg. No. F Excavation is carried out one year ago. The excavated material is stored on the adjacent amenity plot which is handed over to PMC. For storing excavated material on this plot. Project Proponent has not obtained any permission from local body.
		PP representative unable to produce soil & ground water test report.
		PP has not provided solar energy system for energy conservation.
8.	Illegal construction of basements	PP has not constructed any basement.

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Reply has been filed by the Project Proponent, SEIAA and State PCB. The PP has also filed I.A. No. 66/2021 seeking dismissal of the OA and compilation of judgments. Reply of SEIAA and State PCB is on the pattern of the joint Committee report already quoted above.

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According to SEIAA , prior EC was required but was not sought before commencement of the project. However, the PP applied for EC on 08.08.2018 which was found to be a case of violation. EC was sought for total plot area of 26,000 m² , FSI area of 24940.54 m² , Non FSI area of 21628.67 m² and total BUA of 46,569.21 m² . Project proponent informed that the total constructed area on site is 44841.72 m² .

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Stand of the MPCB is that in view of non-compliances noticed by the joint Committee, the State PBC issued directions to stop construction activities on 04.01.2020 till requisite consent and EC are obtained. Compensation has been assessed based on period of violation as per formula adopted by CPCB which works out to Rs. 15,99,09,375/-.

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6. The stand of Pune Municipal Corporation (PMC) is that

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commencement certificate was granted on 31.03.2017 subject to requisite

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consents/EC. Since EC was not produced, PMC issued stop work order on 11.12.2019.

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Stand of Secretary, Urban Development is also that the project is in violation of the statutory requirements.

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Stand of Project Proponent in I.A. No. 66/2021 is that the application is not maintainable and barred by limitation. Cause of action for the application arose on 17.03.2007 when the plan for construction was sanctioned. The applicant has no locus standi to file the application. There is no damage to the environment. Compilation of judgments has been filed on the point of limitation. Affidavit of the PP filed on 21.10.2020 is that the project “Ekta California” has been completed. Wing “F” known as “Florida” (“Ekta Florida”) is proposed. Fremont, Palmdale, Oakland, Santa Monica and Santa Clara are also proposed for which occupation certificates have been granted in 2015 and 2016. Club house has been completed in 2016 and commencement certificate has been obtained in 2017. The threshold of 20,000 sq. mtrs. has not been crossed so as to attract the requirement of EC. Built up area was not defined in EIA Notification of 2006 but the same was defined as per DCR. There was vagueness in the concept of built up area which was clarified by notification dated 04.04.2011 to include basement. Consents under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 are not required in view of judgement of the Delhi High Court dated 23.01.2012 in LPA No. 895 of 2010, DPCC vs. Splendor Landbase . Additional affidavit has been filed by the PP in response to the joint Committee report on 21.02.2022 denying the allegations found by the joint Committee. It is stated that built up area should be taken as equal to the FSI area only. No consent under the Water

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and Air Acts are required. The PP has complied all environmental norms. The PP has relied upon judgment of the Hon’ble Supreme Court dated 09.12.2021 in Special Leave to Appeal (C) Nos. 11226-11227/2020, Electrosteel Steels Ltd. Vs. Union of India & Ors. wherein earlier judgment in Alembic Pharmaceuticals Ltd. v Rohit Prajapati & Ors.¹ holding that prior EC is mandatory was held to be distinguishable, having regard to the policy of MoEF&CC for ex-post facto EC instead of closure of the project, to give effect to the principle of “Proportionality” laid down in Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338 . The policy in question is SOP dated 07.07.2021 issued by the MoEF&CC, permitting ex-post facto EC in violation cases, subject to payment of penalty at the rate of 1% of the total project cost, where project has not commenced and an additional of 0.25% of total turnover, where project had already commenced.

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We have heard learned Counsel for the parties, perused the record and considered rival submissions. From the resume of pleadings and submissions made, questions for consideration are whether the present petition is maintainable and within limitation, whether there is a violation of environmental norms by the PP in question and if there is such violation, the remedial action required.

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Maintainability and Limitation

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It is patent from the report of the joint Committee that the built up area of the project is more than 20,000 sq. mtrs. which calls for EC. The PP has itself applied for EC on 08.02.2018 with the SEIAA, Maharashtra. If there are violations, the petition has to be held to be maintainable.

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1 2020 SCC OnLine SC 347

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Starting point of limitation is not the approval of the plan, as contended by the PP but the violation in going ahead with construction beyond 20,000 sq. mtrs. without requisite EC and consents and violating environmental norms. The judgments on limitation relied upon by the PP are also not applicable in view of the undisputed factual situation of the present case. Thus, the petition is maintainable and is within limitation which is five years from the date of cause of action, under section 15(3) of the NGT Act.

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Violations and Remedial action

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The violations are patent. The project involves construction with built up area more than 20,000 sq. mtrs. As held in Goel Ganga Developers India (P) Ltd. v. Union of India, (2018) 18 SCC 257, FSI and non FSI both are part of built up area. Observations in the said judgment in para 17

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are:

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“ Therefore, the authority granting EC may lay down conditions which the project proponent must comply with. While doing so, such authority is not concerned whether the area to be constructed is FSI area or non-FSI area. Both will have an equally deleterious effect on the environment. Construction implies usage of a lot of materials like sand, gravel, steel, glass, marble, etc., all of which will impact the environment. Merely because under the municipal laws some of this construction is excluded while calculating the FSI is no ground to exclude it while granting the EC. Therefore, when EC is granted for a particular construction it includes both FSI and non-FSI areas. As far as environmental laws are concerned, all covered construction, which is not open to the sky is to be treated as built-up area in terms of the EIA Notification dated 14-9-2006.”

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The judgment of Delhi High Court is not applicable to the present fact situation which is governed by statutory notification dated 14.9.2006, which was not the situation in the case before Delhi High Court.

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Judgment in Electrosteel Steels Ltd. Vs. Union of India, supra, that ex-post facto EC can be granted does not help the PP. Even if ex post facto EC is granted, PP has to be held accountable for past violations.

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Penalty of 1% or additional penalty of 0.25% laid down by the MoEF&CC as a condition for granting ex post facto EC is different from compensation for past violations. Such compensation has to be on the principle of restoration considering nature and extent of violations and paying capacity of the PP. Several variables have to be considered as held inter alia in M.C Mehta & Anr v. Union of India² , Sterlite Industries (India) Ltd. v. Union of India³ , Goel Ganga Developers India Pvt. Ltd. v. UoI⁴ , Alembic Pharmaceuticals Ltd. v Rohit Prajapati & Ors.⁵ and Mantri Techzone Pvt. Ltd. V. Forward Foundation and Ors.⁶ . The standard formula adopted by the CPCB based on standard amount of compensation multiplied by period of violation can apply in absence of relevant data of project cost and cost of restoration. In the present case, the amount of compensation assessed appears to be roughly 10% of the project cost, though worked out by a different formula. The same can be accepted, subject to the compliance being ensured within next three months in respect of payment of compensation, obtaining requisite ex post facto EC and necessary Consents, apart from all other compliances in the light of the joint Committee report. We accept the report of the joint Committee with regard to the violations and require the Project Proponent to remedy the same within three months.

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Till compliances and payment of compensation assessed, stop work order will remain in force. The PP will not extract any further ground water without requisite consent. The DG set will also not be operated without requisite consents.

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2 (1987) 1 SCC 395

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3 (2013) 4 SCC 575

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4 (2018) 18 SCC 257

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5 2020 SCC OnLine SC 347

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6 2019 SCC online SC 322, Para 43-47

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If there is further delay, the PP will be liable to pay further compensation, as may be assessed by the PCB.

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The amount of compensation has to be utilised for restoration of environment as per action plan to be prepared by the State PCB, PMC, DM Pune, in the light of District Environment Plan.

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The application is disposed of.

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If any grievance survives, it will be open to the aggrieved party to take remedy in accordance with law.

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All pending IAs will also stand disposed of.

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Adarsh Kumar Goel, CP

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Sudhir Agarwal, JM

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Prof. A. Senthil Vel, EM

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Dr. Vijay Kulkarni, EM

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Dr. Afroz Ahmad, EM

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March 23, 2022 Org. Application No. 64/2019(WZ) (I.A. No. 101/2019, I.A. No. 66/2021 & I.A. No. 18/2022) SN

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Tanaji Balasaheb Gambhire v. Union of India through Ministry of Environment and Forest

Case brief

What is this about?

What did the court decide?

Tanaji Balasaheb Gambhire v. Union of India through Ministry of Environment and Forest

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

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Tanaji Balasaheb Gambhire vs Union of India through Ministry of Environment and Forest

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