Disposed

Pt Laxman Balyogi vs

NGT5 Jul 2024IA No. 203/2024 in Original Application No. 896/2022

Case brief

AI extract

What is this about?

In an original application concerning land development projects, the Tribunal directed the project proponents to deposit outstanding environmental compensation. Additionally, it constituted a Joint Committee to investigate allegations of public land encroachment and illegal tree cutting, directing appropriate action if violations are found.

What did the court decide?

Direction to deposit outstanding environmental compensation within three months; constitution of a Joint Committee to investigate and report on alleged encroachment and illegal tree cutting.

Pt Laxman Balyogi vs — Environment and Pollution | NGT (2024)

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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI

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ORIGINAL APPLICATION NO.896/2022 (IA NO. 203/2024)

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IN THE MATTER OF:

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1. LAXMAN BALYOGI

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Manager/Chief Executive Trustees, Shivshakti Kund Tirthsthali, 466/28, Muni Mishra Smriti Bhawan, Koneshwar Mahadeve Chowraha, Hardoi Road, Chowk, Lucknow-226003

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...Applicant(s)

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Versus

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1. STATE OF UTTAR PRADESH Through Additional Chief Secretary/Principal Secretary

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Ministry of Environment and Forest, Uttar Pradesh, Lucknow

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2. M/S. DREAM GREEN CITY (PHASE-I)

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Through its Developers-Nadim Abdul Hasan and Mohd. Nayab Khalida Ajij Village- Khasarwara, Tehsil-Sarojini Nagar, District-Lucknow, Uttar Pradesh

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3. M/S. A.K. INFRA & REALITY DEVELOPERS PVT. LTD.

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Flat No. 2, Sana Palace-2, Opposite Saharaganj Mall, Hazaratganj, Lucknow, Uttar Pradesh

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4. M/S. DREAM GREEN CITY (PHASE-II) Through its Developers-Nadim Abdul Hasan and Mohd. Nayab Khalida Ajij Village- Dhawapur, Tehsil-Sarojini Nagar, District-Lucknow, Uttar Pradesh

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5. UTTAR PRADESH POLLUTION CONTROL BOARD

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Through Member Secretary Building No. TC-12V, Vibhuti Khand, Gomti Nagar, Lucknow, Uttar Pradesh-226010

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6. DISTRICT MAGISTRATE

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Room No 49 DM Office Qaiserbagh Lucknow

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...Respondent(s)

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COUNSELS FOR APPLICANT(S):

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Mr. Mayank Kumar, Mr. Udit Kumar Thakur and Ms. Preeti Giri, Advocates

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COUNSELS FOR RESPONDENT(S):

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Mr. Deva Shukla, Advocate for Project Proponent

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CORAM:

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HON’BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER HON’BLE DR. A. SENTHIL VEL, EXPERT MEMBER

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RESERVED ON: MAY 03, 2024 PRONOUNCED ON: JULY 05, 2024

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ORDER

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BY HON’BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER

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This Original Application (hereinafter referred to as ‘OA’ ) was registered in exercise of suo-moto jurisdiction in view of the law laid down

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by Supreme Court in Municipal Corporation of Greater Mumbai vs. Ankita Sinha & Ors., (2022) 13 SCC 401 on a letter petition dated 01.08.2022 sent by Pandit Laxman Balyogi, Manager/Chief Executive Trustees, Shivshakti Kund Tirthsthali, 466/28, Muni Mishra Smriti Bhawan, Koneshwar Mahadeve Chowraha, Hardoi Road, Chowk, Lucknow.

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Complainant said that two projects namely; M/s. Dream Green City Phase-I and Phase-II are being developed by Nadim Abdul Hasan, Mohd. Nayab Khalida Ajij and M/s. A.K. Infra Reality and Developers Pvt. Ltd., Sana Palace near Saharaganj Mall, Hazratganj Road, Lucknow UP. It is a big township running over 150 acres wherein they have cut about 5000 old trees in utter violation of environmental laws without any requisite clearance etc., causing damage to environment and putting human and animal life in danger.

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Taking cognizance of the complaint and being prima-facie satisfied that a substantial question relating to environment due to implementation of Scheduled Enactments under National Green Tribunal Act, 2010 (hereinafter referred to as ‘NGT Act 2010’ ) has arisen, Tribunal found it appropriate to obtain a factual Report and for this purpose, constituted a Joint Committee comprising Uttar Pradesh Pollution Control Board (hereinafter referred to as ‘UPPCB’ ), District Forest Officer, Lucknow and District Magistrate, Lucknow.

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Joint Committee Report dated 20.02.2023 filed on 24.04.2023:

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Pursuant to the aforesaid order dated 20.02.2023, a joint inspection Report by Joint Committee was submitted through District Magistrate, Lucknow vide letter 24.04.2023. Report said that M/s. Dream Green City (Phase-I) is situated at Gata Number-88, 89, 94, 97, 98, 99, 104/2, 106, 109a, and 110 in Village-Khasanvara, Tehsil-Sarojini Nagar, DistrictLucknow and its total area is 5.391 Hectares. Similarly, M/s. Dream Green City (Phase-II) is situated at Gata Number-1/1,2,3, 5sa, 1sa, 93, 73, 117/2, 117/3, 128, 132, 133, 139mi, 139sa, 168, 173, 175 192, 199, 200sa, 201, 202, 200sa, 304, 209a, 209sa, 232ka, 238, 242kha, 244ka,

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232kha, 234, 237sa, 235sa, 237ka, 242ka, 1312 and 1905mi in VillageDhawapur, Tehsil- Sarojini Nagar, District-Lucknow and spread in a total area of 9.6092 Hectares. Two projects are being developed by M/s. A.K. Infra & Realty Developers Pvt. Ltd. The land for Phase-I was purchased in 2012 and developed in year 2019. Earlier it was agriculture land which has been obtained by project proponent for development of residential colony by selling plots. At the time of purchase, there were no trees on the said land. However, at the time of inspection, 230 Ashoka trees and other mixed fruit trees in phase-I and about 100 mix trees in phase-II were standing. In phase-I, there were 231 residential plots whereon about 70 houses were built on 70 plots and therein people were residing. In phaseII, there are 400 residential plots and houses on about 300 plots were found built wherein people were residing. Domestic effluent generated was being disposed of through septic tank/soak pit whereof overflow joins nearby drain which ultimately joins River Sai which is approximately at 4.0 kms distance from phase-I and 5 kms distance from phase-II. At the time of inspection, a pond in Phase-II was also found, wherein rain water was collected. Project proponent has not laid down any sewer line and Sewage Treatment Plant (hereinafter referred to as ‘STP’ ) for treatment of Domestic effluent. Initially, the land in question was not within jurisdiction of Lucknow Development Authority but subsequently, it came within purview of Lucknow Industrial Development Authority but project proponent has not obtained any approval from the said authority. No consent under Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as ‘Water Act 1974’ ) and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as ‘Air Act 1981’ ) has been taken by proponent. Report says that show cause notice has

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been issued for imposition of environmental compensation upon project proponents on 24.04.2023 by UPPCB for non-compliance of Water Act 1974 and Air Act 1981. The observations made by Joint Committee in its report dated 24.04.2023 read as under:

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“ Observation found during Joint Inspection on dated 11-042023

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1. M/s Dream Green City (Phase-I) is situated at Gata Number88,89,94,97,98,99,104/2,106,109a&110 Village-Khasarwara, Tehsil-Sarojini Nagar, District-Lucknow, which Total Area of 5.391 Hectare.

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2. The M/s Dream Green City (Phase-II) is situated at Gata Number1/1,2,3, 5sa,1sa,93, 73, 117/2, 117/3, 128, 132, 133, 139mi, 139sa, 168, 173, 175 192, 199, 200sa, 201, 202, 200sa, 304, 209a, 209sa, 232ka, 238 ,242kha, 244ka, 232kha, 234, 237sa, 235sa, 237ka, 242ka, 1312 & 1905mi,Village- Dhawapur, Tehsil- Sarojini Nagar, District-Lucknow, which Total Area of 9.6092 Hectare.

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3. M/s Dream Green City (Phase-I), Village- Khasarwara, TehsilSarojini Nagar, District-Lucknow and M/s Dream Green City (Phase-II), Village- Dhawapur, Tehsil- Sarojini Nagar, DistrictLucknow developed by M/s A.K. Infra & Realty Developers Pvt. Ltd, Flat No-2, Sana Palace-2, Opp. Saharaganj mall, hazratganj, Lucknow UP.

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4. As per Forest & Revenue Department, no trees were established on the above Gata numbers when purchase the land.

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5. Land purchase for M/s Dream Green City Phase -I, Khasanvara, Banthara, Mohanlalganj, Kanpur Road, Lucknow (UP) in year 2012 and developed in year 2019.

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6. The Project Proponent has done the work of selling plots by purchasing agricultural land, converting its land use from revenue department and planning Phase-I and Phase-2 colonies for residential houses.

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7. As per records submitted by the unit, at the time when the land was purchased for residential colony phase-I & II, the work of growing crops such as wheat, paddy, vegetables and other grains was done on that land. There were no gardens and trees

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on the above land. The fact was verified from revenue records and by Forest Department that there were no trees on the said plats. During the inspection in phase- I, approx. 230 Asoka trees &other mixed fruit trees and in phase - II, approx. 100 mix trees were found.

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8. At the time of inspection, in M/s Dream Green City (Phase-I), Village-Khasarwara, Tehsil-Sarojini Nagar, District-Lucknow, out of total 231 residential plots, houses were found built on about 70 plots in which people are living. The domestic effluent generated from the above is disposed off through septic tank/soakpit whose overflow finally joins the nearby drain. The drain ultimately join in the River Sai after approximate 4.0 KM distance.

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9. At the time of inspection, in M/s Dream Green City (Phase-II), Village- Dhawapur, Sarojini Nagar, District-Lucknow out of total 400 residential plots, houses were found built on about 300 plots in which people are living. The domestic effluent generated from the above is disposed off through septic tank/soak pit whose overflow finally joins the nearby drain. The drain ultimately join in the River Sai after approximate 5.0 KM distance.

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10. During the inspection, a pond is also located in Phase-2, in which rain water is collected.

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11. Project Proponent has not laid swear line and STP for treatment of Domestic effluent.

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12. At the time of purchasing of the land in the year 2012 the area was not covered in Lucknow Development Authority (LDA), but it was under the jurisdiction of Lucknow Industrial Development Authority (LIDA), but PP has not obtained approval from the said authority.

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13. Above unit has not obtained Consent to Establishment and Consent to Operate from the state board in compliance with the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981.”

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Tribunal’s order dated 26.04.2023:

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Tribunal considered the above Report on 26.04.2023 and observed that the project has been developed in violation of Water Act 1974 and Air Act 1981; there is no compliance of Environment Impact Assessment

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Notification dated 14.09.2006 (hereinafter referred to as ‘EIA 2006’ ). Report also does not show as to what was the source for water consumption during construction. Tribunal found it necessary to stop further activities in the project till compliances are shown and accountability is fixed upon violators hence directed that no further construction be allowed to take place and no further third-party rights shall be created till further orders.

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State Environment Impact Assessment Authority, UP, UPPCB and District Magistrate, Lucknow were required to file an Action taken Report within two months.

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Joint Committee Report dated 12.06.2023 filed on 03.08.2023:

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Pursuant to order dated 26.04.2023, Joint Committee Report was filed through Chief Environmental Officer, Circle-5, UPPCB, Lucknow, stating that the site in question was inspected by Joint Committee on 12.06.2023. In respect of phase-I, environmental compensation of Rs.17,81,250/- has been imposed and closure order was also issued under Section 33A of Water Act 1974 vide UPPCB’s letter dated 01.08.2023. Similarly, for phase-II, environmental compensation of Rs.17,81,250/- was imposed and closure order under Section 33A of Water Act 1974 was issued vide UPPCB’s letter dated 01.08.2023. For necessary action in regard to extraction of ground water, letters dated 01.08.2023 and 02.08.2023 were sent to Director, Uttar Pradesh Ground Water Department, Lucknow. A further letter dated 26.04.2023 was sent to Developer in respect of phase-I, requiring it to comply environmental laws and norms.

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Tribunal’s order dated 13.09.2023:

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Report was considered by Tribunal on 13.09.2023 and it found that nothing was stated as to whether environmental compensation has been deposited by proponent or not. Tribunal also found that with regard to discharge of domestic effluent which is meeting River Sai, nothing has been said in Action taken Report. In the circumstances, Tribunal directed that Secretary, Urban Development Department, State of UP and UPPCB will immediately take action to stop flow of domestic effluent generated from septic tanks/soak pit of phase –I and II and going to River Sai through drains with immediate effect. Tribunal also found it appropriate to issue notice to project proponent i.e., M/s. A. K. Infra & Reality Developers Pvt. Ltd. which was developing both the projects. UPPCB was directed to submit a further Action taken Report.

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Action taken Report dated 05.12.2023 by UPPCB:

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Pursuant to order dated 13.09.2023, UPPCB filed Action taken Report dated 05.12.2023, stating that for recovery of environmental compensation, letter dated 20.11.2023 has been sent to District Magistrate, Lucknow to recover the said amount. Further, prosecution has also been initiated against project proponent.

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Report was considered by Tribunal on 06.12.2023. Tribunal observed that nothing has been stated regarding stopping of construction and also discharge of domestic sewage. However, Learned Counsel appearing for UPPCB on instruction from Anuj Chobey, Legal Officer stated before Tribunal that discharge of domestic sewage has been stopped from going to main drain which was ultimately meeting River Sai. He was, therefore, directed to file affidavit to this effect and make it clear as to

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where domestic sewage has been diverted and what action has been taken in this regard.

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Project proponent also put in appearance through Shri Amit Shukla, Advocate and sought time for payment of environmental compensation, making a statement that the same shall be deposited within one month. Tribunal also permitted applicant to ascertain whether flow of domestic sewage is still towards River Sai or not.

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Affidavit dated 16.02.2024 filed by UPPCB:

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Affidavit dated 16.02.2024 has been filed by Anuj Chobey, Law Officer-I, UPPCB, Lucknow stating that the site was inspected on 13.02.2024 and no discharge of domestic effluent outside the premises of project area was found.

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Project proponent i.e., M/s. A.K. Infra & Realty Developers Pvt. Ltd. also filed its response dated 20.02.2024 stating that total area of phase-I and phase-II is less than 50 hectares, therefore, provisions of EIA 2006 are not attracted; there is zero discharge of domestic effluent and Report of Joint Committee dated 24.04.2023 has wrongly observed that over flow of domestic effluent from septic tank/soak pit is joining the nearby drain which ultimately joins River Sai; proponent has only developed plots and sold the same and itself has not undertaken any construction activity which is actually being done by individual buyers of plots; domestic sewage generated is being taken care by septic tank/soak pit constructed at the site; proponent is undertaking only construction work of STP and none other and this is also to ensure that no effluent is discharged in drain or River; proponent has deposited Rs. Six lakhs towards environmental compensation and making arrangement of funds for payment of remaining

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amount; it had also applied for a consolidated Consent to Operate (hereinafter referred to as ‘CTO’ ) and authorisation vide applications dated 02.06.2023 under Sections 25 and 26 of Water Act 1974 and Section 21 of Air Act 1981 read with Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 but the said applications were rejected by UPPCB vide letter dated 20.06.2023 in respect to both the projects on the ground that show cause notice dated 24.04.2023 has already been issued for violations and environmental compensation.

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Tribunal’s order dated 21.02.2024:

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Tribunal considered the matter on 21.02.2024 and found that there was no dispute that the project in question has operated without any CTO. 15. Further, applicant also sought time to file rejoinder to response of project proponent which was allowed.

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UPPCB was also directed to file further Action taken Report.

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Report dated 14.05.2024 filed by UPPCB:

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Pursuant to order dated 21.02.2024, Chief Environmental Officer, Circle-5, UPPCB, Lucknow has submitted Report dated 14.05.2024, stating that criminal prosecution has been initiated against developers in the Court of Special Judicial Magistrate, Ist Class, (Air and Water Pollution), Lucknow by filing complaints on 10.05.2024 and the matter is pending thereat.

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Rejoinder by applicant to submission of M/s. AK Infra & Reality Development Pvt. Ltd.:

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Applicant has also filed its rejoinder dated 01.05.2024. It is said that actual area under phase-II is 50 acres though as per record of respondents

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phase-I is in 5.391 hectares and phase-II is in 9.60 hectares. The developers in fact has encroached upon more than 26 acres of land which comprised of land of Irrigation Department, Water Bodies (Sarovar) and land of local residents. Reference is made to letters sent by Sub-Divisional Magistrate, Sarojini Nagar, Lucknow. Copy of the letter of Sub-Divisional Magistrate, Sarojini Nagar, Lucknow dated 13.12.2022 is on record as annexure A-2 at page 135 which states that as per the enquiry made by Tehsildar, Sarojini Nagar, Lucknow, in village Dhawapur, khasra no. 144 which is recorded in revenue record as ‘ talaab’ has been partly encroached upon by developer by constructing a boundary wall. Gata no. 4, 6, 8, 9, 118, 102 and 117mi are recorded as ‘jungle dhaak’ and whereon unauthorised possession has been found and a team has been constituted to remove unauthorised possession. It is further said that in the area under encroachment of the developer, there was a 600 meter road developed by Block Development Officer, Sarojini Nagar, Lucknow in 20082009 under Rashtriya Gramin Rojgar (Guarantee Yogna) and it had trees on both the sides under MNREGA, local Government and Gram Panchayat planted about 30,000 trees since 2006 but many of such trees have been cut by developer without any permission. There is no sewer line or STP in two phases and no proper system of treatment and disposal of domestic sewage has been made.

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We find that in the reply to the response of developer i.e., rejoinder affidavit, applicant has raised a new case regarding encroachment on the public land and cutting of trees on the said land and not on the land which comprised of two project being developed by respondents-proponents. With regard to discharge of effluent in River Sai, nothing has been said by applicant. UPPCB has already submitted its report that no such discharge

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was found. With regard to other violations, we find that environmental compensation has already been imposed on project proponent and partial payment has been made by it.

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In these facts and circumstances, we find that this OA be disposed of by directing project proponent to pay entire environmental compensation, which is remaining outstanding within three months and with regard to the alleged encroachment, an enquiry be directed to be conducted by District Magistrate, Lucknow, Divisional Forest Officer, Lucknow and Member Secretary, UPPCB and if they find that there is any encroachment by the developer on the public land as stated by applicant and there is any illegal cutting of trees on such land, appropriate action shall be taken by the said Committee and compliance report be submitted with Registrar General of this Tribunal.

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In view of the above discussion, this OA is disposed of with the following directions:

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i. Respondent developer i.e., project proponent shall deposit outstanding amount of compensation in respect of phase-I and phase-II, both, with UPPCB within three months from today failing which appropriate action for recovery thereof shall be taken by UPPCB and District Magistrate, Lucknow in accordance with law and they shall ensure recovery of the said amount within a further period of two months.

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ii. With regard to the alleged encroachment on public land, Joint Committee comprising of District Magistrate, Lucknow, Divisional Forest Officer, Lucknow and Member Secretary,

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UPPCB is directed to enquire and take appropriate action if it finds any encroachment by the developer on the public land as stated by applicant and any illegal cutting of trees on such land and submit a Compliance Report with Registrar General of this Tribunal.

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If Registrar General finds it necessary, may place the matter before the Bench for further orders.

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With the above directions, this OA is disposed of. Pending IA also stands disposed of accordingly.

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PRAKASH SHRIVASTAVA, CHAIRPERSON

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SUDHIR AGARWAL, JUDICIAL MEMBER

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DR. A. SENTHIL VEL, EXPERT MEMBER

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July 05, 2024 Original Application No.896/2022 R

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Pt Laxman Balyogi vs

Case brief

What is this about?

What did the court decide?

Pt Laxman Balyogi vs

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

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