Disposed

Dr. Anjoo Kumar W/O Col. Sunil Kumar (Retd) v. Ministry of Environment Forest and Climate Change

NGT6 May 2022Original Application No. 82/2021

Case brief

AI extract

What is this about?

The Tribunal disposed of two original applications challenging the legality of construction projects due to alleged invalidity of Environmental Clearance arising from rescheduling orders. After reviewing reports confirming the Environmental Clearance remained valid for the specific land parcels, the proceedings were closed without prejudice.

What did the court decide?

Close the proceedings without prejudice to any party taking remedies if aggrieved, in accordance with law.

Dr. Anjoo Kumar W/O Col. Sunil Kumar (Retd) vs Ministry of… — Writ and Judicial Review | NGT (2022)

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(Court No. 1)

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Item No. 01 & 02

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH, NEW DELHI

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(By Video Conferencing)

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Original Application No. 29/2021 (I.A. No. 10/2022 & I.A. No. 91/2022)

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(With report dated 05.05.2022)

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Col. Sunil Kumar (Retd.) & Anr. Applicant(s)

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Versus

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Union of India & Ors.

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Respondent(s)

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WITH

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Original Application No. 82/2021 (I.A. No. 11/2022, I.A. No. 72/2022 & I.A. No. 92/2022)

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Dr. Anjoo Kumar & Anr.

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Applicant(s)

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Versus

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Union of India & Ors.

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Respondent(s)

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Date of hearing: 06.05.2022

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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

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Applicant: Ms. Zeba Khair, Advocate

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Respondent: Mr. Rahul Khurana, Advocate for HSPCB

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Ms. Shruti Arora, Adv. for Ireo Hospitality Company Pvt. Ltd. & Ireo Residencies Company Pvt. Ltd.

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Mr. Prateek Gupta, Advocate for Applicant in IA No. 91 and 92/2022

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ORDER

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This common order will deal with OA Nos. 29 and 82 of 2021 as some of the issues are common and the project proponents (PP) in both

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cases are said to be sister concerns.

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O.A. No. 29/2021

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Grievance in this application is against non-compliance of environmental norms in the construction of project by Respondent No. 8, Ireo Hospitality Company, Private Limited at Sector 58, Gurgaon. According to the applicant there is no valid Environmental Clearance (EC) in terms of the Notification dated 14.09.2006 under the Environment (Protection) Act, 1986 (EP Act) or other statutory approvals.

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Vide order dated 16.02.2021, the Tribunal directed a joint Committee of MoEF&CC, CPCB, State PCB and SEIAA, Haryana to ascertain factual position and give a status report on the issue of compliance of environmental norms. It was further directed that if any deficiencies are found the statutory Authorities may require the Project Proponent (PP) to take remedial action following due process. It was also directed that a copy of the report be served on the PP for its response, if any.

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The matter was last considered on 28.09.2021 in the light of report of the joint Committee dated 26.06.2021. From the said report, the Tribunal prima facie found that the earlier EC did not remain operative in view of subsequent orders and in violation the PP had constructed 17 floors at the cost of Rs. 1400 crores. Accordingly, the Tribunal directed the joint Committee to revisit its earlier report. The Tribunal also restrained the PP from creating the third party right and also raising any further construction. Operative part of the order is reproduced below:

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“7. It is thus submitted that while the Town and Country Planning allowed rescheduling mechanically declaring earlier permissions void, SEIAA and Haryana PCB failed to implement such clause by stopping the project without fresh requisite EC/Consents. Consents are mechanically renewed without noticing absence of valid and operative EC. Extension of EC which became void is of no consequence. There is thus no

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coordination between the Town and Country Planning Department and environment departments resulting in violation of environmental norms. It is further submitted that the PP has already constructed 17 floors. Cost of the project is 1400 crores.

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8. In view of the above, we prima-facie find that conclusion of the Committee that the above order did not affect the EC granted for the project is against the record . Once there was rescheduling of the license with express declaration that all approvals stood annulled, the project in question has to be held to be without statutory approvals. The project so constructed is either liable to be demolished or applying the principle of proportionately or the PP has to be required to pay compensation as per norms laid down by the Hon’ble Supreme Court inter alia in Goel Ganga vs. UOI¹ , subject to EC being now granted. Prior EC is a mandatory requirement of law as held by the Hon’ble Supreme Court inter alia in Alembic case² and Keystone Realtors case³ .

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9. Since PP is not before the Tribunal, we issue notice to the PP which may be served by e-mail and also served by the applicant. The applicant may furnish a set of papers and the report of the joint Committee to the PP - Respondent No. 8.

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10. We also direct the joint Committee to revisit its report in the light of the above observations and give a fresh report within one month by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The Committee may also recommend measures for ensuring compliance of norms in situations when rescheduling is done declaring EC/consents invalid and the environment regulators fail to act on such condition. The composition of Committee is directed to be changed so that the nominee of MoEF&CC should be of the rank of Director and SEIAA may be represented by Member Secretary.

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11. Pending further consideration, we direct that the PP may not create any third party right in the building henceforth and may also not raise any further construction. On the next date, if the matter is not finalized, we may consider the prayer of the applicant for interim compensation.”

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In pursuance of above, the State PCB has filed its report dated 05.05.2022 to the effect that EC for the project is still operative which has not in any manner been affected by subsequent orders in question. Relevant extracts from the report are reproduced below:

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“3. Observations:

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1 ( 2018) 18 SCC 257

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2 (2020) SCC online 347

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3 (2020) 2 SCC 66

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1. The Committee observed that the issues raised in grievance are about the commercial complex comprising of Retail, Office space, Hotels and Commercial complex on a land admeasuring 13.95 acres falls in Sector 58 village Ghata, Gurugram being developed by IREO Hospitality Company Pvt. Ltd. alongwith other land-owning companies. The details of ownership of land alongwith licences in the said 13.95 acres of land, are enclosed as Annexure S-2.

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2. It was observed that Environmental Clearance was granted by SEIAA, Haryana vide letter No. SEIAA/HR/2013/619 dated 04.09.2013 for total land area of 13.95 acres (56453.35 sqm) and built-up area of 239,802.723 sqm, which was valid upto 04.09.2020 (Annexure S-3). Latest six monthly compliance report of Environmental Clearance submitted by the project proponent is enclosed as Annexure S-4.

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3. The applicant in his complaint has alleged that in compliance of order dated 09.12.2015, 10.05.2016 and 16.06.2017 of Director Town and Country Planning, Haryana, all sanctions and approvals granted to the aforementioned licenses including approvals of building plans, were cancelled and hence the Environment Clearance dated 04.09.2013 stands cancelled.

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4. The Joint Committee observed that the grievance about revised schedule of lands which falls under the jurisdiction of the Town and Country Planning Department, Haryana and the order dated 09.12.2015 (Annexure S-5) is regarding rescheduling of land measuring 17.55 acre in the revenue estate of village Behrampur District Gurgaon and not regarding village Ghata where the project measuring 13.95 acre is located.

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5. It was further observed that the CWP no. 747/2021 (Annexure S-6 (a)) is pending before Hon’ble Punjab & Haryana High Court, Chandigarh and as per the reply submitted by Chief Town planner, Haryana, Department of Town and Country Planning to Hon’ble Punjab & Haryana High Court, Chandigarh on behalf of the Town and Country Planning Department, Haryana (Annexure S-6 (b)) the zoning/building plans approved by them stood annulled with effect from 09.12.2015, only with respect to the land which was subject to revision and the land parcels which were affected by such revision which fall in sector 59, Gurugram. In their reply the site affected vide exchange order dated 09.12.2015 has been superimposed in the layout plan which is shown in blue hatching. This indicates that the commercial project admeasuring 13.95 acre is not affected by this exchange.

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6. The Joint Committee observed that no rescheduling of land was done in the project admeasuring 13.95 acres after obtaining Environmental Clearance dated 04.09.2013.

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7. Project proponent has obtained CTE from Haryana State Pollution Control Board vide letter No. 2821215GUNOCTE2297575 dated 16.11.2015 which was extended vide letter No. HEPC/2017/509 dated 29.08.2017(Annexure S-7 Colly). Thereafter, the project proponent obtained corrigendum letter from SEIAA vide letter No. SEIAA/HR/2016/644 dated 04.08.2016 (Annexure S-8) for transfer of name of companies.

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8. As per order dated 10.05.2016 (Annexure S-9) area measuring 0.50 acre (Khasra no. 9//24/2 area 4 canal of village Ullawas) which was a part of license 107 of 2010 is de-licensed. It is already clarified by the Corrigendum dated 10.01.2022 (Annexure S-10) of the Directorate of Town and Country Planning, Haryana in a similar matter of de-licensing that all the approvals granted by the department are to be considered for the remaining area. Since the de-licensing has taken place in village Ullawas and the project in question is located in village Ghata, the commercial project is not affected by these de-licensing orders, the Committee opined

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9. Further, as per orders dated 16.06.2017 (Annexure S-11) of DTCP delicensing of an area measuring 1.43125 acre in license no. 107 of 2010 is allowed. As per Annexure R-3 of the reply submitted by Chief Town planner, Haryana, Department of Town and Country planning on behalf of the Town and Country Planning Department, Haryana the site affected by this de-licensing is shown in black hatching which again clarifies that the commercial project admeasuring 13.95 acre is not affected by this delicensing order also

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10. The Joint Committee noted that the Project Proponent has obtained part Occupancy Certificate (OC) vide letter No. ZP474/JD (RD)/2019/26079 dated. 23.10.2019 (Annexure S-12) from DTCP, Haryana, following which Consent to Operate from Haryana State Pollution Control Board vide letter No. HSPCB/Consent/: 329962321GUNOCTO15703190 Dated: 08/11/2021 (Annexure S-13) was obtained. Project Proponent had obtained extension of validity of EC from SEIAA vide letter No. SEIAA/HR/2020/438 dated 16.10.2020 (Annexure S- 14).

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4. Other Observations:

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1. A Sewage Treatment Plant (STP) of 940 KLD capacity with MBR technology has been installed at site to treat the sewage and the PP has informed the Committee that the treated water will be used for flushing and gardening purposes, in compliance of the EC condition

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2. Project was completed in 2019 and a part occupancy certificate has been obtained from the DTCP, Haryana. However, project was not yet operation as during the visit of the Joint Committee.

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3. Rain Water Harvesting System has been developed within the project premises. Roof run-off and surface runoff collection system and 16 Nos. recharge pits have been provided for rainwater harvesting purpose

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4. The Fire hydrants were found in two designated green spaces. However, these were not found in working condition.

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5. PP has submitted that the project is GRIHA 5 star rating certificate. However, Solar panels have not been installed at site for energy conservation purposes.

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6. Proper system for solid waste collection and storage was noticed during the visit. Organic waste converter machine of 400 kg per day capacity has been installed at site

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7. Committee has observed that the PP has done its efforts for the plantation within the project premises as well as at the entrance/exit and around the periphery

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4. Conclusion

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The petitioner has raised the issue of illegal construction after rescheduling and de-licensing of certain parts of land of licenses and has stated statutory clearance obtained by project proponent should become invalid after rescheduling of license. The Committee after detailed site inspection and detailed deliberations has inferred that:-

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1. The project proponent has obtained Environmental Clearance from SEIAA, Haryana, Consent to Establish and Consent to Operate under Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention &Control of Pollution) Act, 1981 from HSPCB.

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2. Rescheduling of license was done in sector 59 while the project is located in sector 58. Khasra no of commercial project in 13.95 acres land are different from Khasra no. of land rescheduled in the year 2015.

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3. On the basis of document of DTP submitted in Hon'ble High Court, it is concluded that the rescheduling order dated 09.12.2015, the de-licensing order date 10.05.2016 and de-licensing order dated 16.06.2017 has not affected the area for Commercial Complex project measuring 13.95 acres. ”

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O.A. No. 82/2021

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Grievance in this application is against illegality in setting up of construction projects by Respondents Nos. 9 to 20, Ireo Residencies Company Private Limited, Adson Software Pvt. Ltd., Ornamental Realtors Pvt. Ltd., Aspirant Builders Pvt. Ltd., Hard Core Realtors Pvt. Ltd., Golden View Builders Pvt. Ltd., High Star Builder Pvt. Ltd., Commander Realtors Pvt. Ltd., Lalit Goyal, VC & MD of Ireo Group, Anupam Nagalia, Director, Jai Bharat Aggarwal, and Pankaj Dugar, CEO, Ireo Residencies Company Pvt. Ltd. in revenue estate of village Ghata, Tehsil Sohna, Sector-58, Gurgaon, Haryana. Issue raised in this application is same as has been considered above in OA 29/2021. Last order for both matters is common and though Report filed in this matter is different but its content is almost same. PP is same and common argument is whether requirement of prior EC has been complied with.

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IA Nos. 91 and 92/2022 have been filed for withdrawal of the application through a Counsel, different from the Counsel who filed the original application but the original Counsel still claims instructions to represent the applicant and to proceed with the matter.

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We have considered the matter in the light of above reports of the Committee. Without going into the issue as to which of the Counsel has locus to proceed in view of conflicting stand of two counsel, in absence of any objection to the report or material to question the same, we have no option to but to close the proceedings at this stage, without prejudice to any party taking remedies, if aggrieved, in accordance with law.

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The applications are disposed of.

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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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