Disposed

Prakash Agrawal v. Nahar Builders Limited through Sukhraj Babulal Nahar Director

NGT4 Dec 2024Original Application No. 104/2016

Case brief

AI extract

What is this about?

The Tribunal disposed of an application challenging construction violations, environmental clearance, and claiming damage compensation. It held that the Environmental Clearance had been granted and remediation measures completed, rendering no further relief needed. Expert assessments superseded applicant's self-calculated damages.

What the court decided

AI extract

Prakash Agrawal vs Nahar Builders Limited through Sukhraj… — Environment and Pollution | NGT (2024)

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(Pune Bench)

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BEFORE THE NATIONAL GREEN TRIBUNAL WESTERN ZONE BENCH, PUNE

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[Through Physical Hearing (with Hybrid Option)]

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ORIGINAL APPLICATION NO. 104 OF 2016 (WZ) WITH M.A.NOS.334/2016, 317/2017, 318/2017 AND 02/2018 ALL IN

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ORIGINAL APPLICATION NO.104 OF 2016 (WZ)

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Prakash Agrawal, PO4 Mirabilis, Nahar Amrit Shakti Sector R12, Chanivali Farm Road, Andheri East, Mumbai – 400 072

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…. Applicant

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Versus

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Nahar Builders Limited, B-1, Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai 400 026 Through Sukhraj Babulal Nahar, Director

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Maharashtra Pollution Control Board, Kalptaru Point, 3^rd Floor, Sion East, Mumbai – 400 002 Through the Member Secretary

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Environment Department, Government of Maharashtra, Room No.217, Mantralay Annex,

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Mumbai – 400 032

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Municipal Corporation of Greater Mumbai, Mahapalika Marg, Esplanade Road, GPO, Mumbai – 400 001 Through the Commissioner,

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Chairman – SEIAA Maharashtra, C/o Environment Department, Government of Maharashtra, 15^th Floor, New Administrative Building, Mantralaya, Mumbai – 400 032

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Rajesh Sharma, 2102, Mimosa Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Binod B. Bhagat 1003, Jamaica, Jonquille – Jamaica CHS, Nahar Amrit Shakti Complex,

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O.A. No.174 OF 2024(WZ)

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Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Shuchil Pathak,

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802, Ivy Ivy-Iris Co-operative Society Ltd., Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Ritu Singh, 1003, Iris, Ivy-Iris Co-operative Society Ltd., Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E),

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Mumbai – 400 072

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Mrs. Ranu Roy [email protected]

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Ms. Ria Roy, 2007, Jonquille Building, Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Mr. Ashish Chandra Roy, [email protected]

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Mr. Arito Roy, 2006, Jonquille – Jamaica CHS, Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Saloni Tandon, 107 Yvonne, Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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Kanchan Prakash Bohra, 1806, Jonquille, Jonquille – Jamaica CHS, Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E),

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Mumbai 400 072

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Prakash Bohra, 1806, Jonquille, Jonquille – Jamaica CHS, Nahar Amrit Shakti Complex, Chandivali Farm Road,

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O.A. No.174 OF 2024(WZ)

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Chandivali, Andheri (E), Mumbai – 400 072

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Mr. Arvind Shah, [email protected]

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Mrs. Lalita Shah, 1002, Jamaica Building, Nahar Amrit Shakti Complex, Chandivali Farm Road, Chandivali, Andheri (E), Mumbai – 400 072

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.… Respondents

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APPEARANCE :

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Applicant : Mr. Tanaji Gambhire, Advocate along with Mr. Vijay Mhaske and Mr. Ratan Bhingardive, Advocates

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Respondents : Mr. T.N. Subramanian, Senior Advocate along with Mr. Rubin Vakil, Mr. Kalpesh Shah, Mr. Mohnish Bhasin, Mr. Amit Mishra and Mr. Jagdish R. Patil, Advocates, representing M/s Dhaval Vussonji & Associates, for R-1/PP Ms. Manasi Joshi, Advocate for R-2/MPCB Mr. Aniruddha S. Kulkarni, Advocate for R-3/Evnt. Deptt and R-5/SEIAA Maharashtra Mr. Manoj Wad, Advocate along with Mr. Kapil Agarwal, Advocate, representing M/s J.S. Wad & Co. for R-4 Mr. Saket Mone, Advocate along with Mr. Abhishek Salian, Advocate for R-7 to R-10

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CORAM : HON’BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER HON’BLE DR. VIJAY KULKARNI, EXPERT MEMBER

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Reserved on : 12.11.2024

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Pronounced on : 04.12.2024

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JUDGMENT

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This Original Application has been filed with the main prayers that a direction may be issued to respondent No.1 – Nahar Builders Limited to obtain Environmental Clearance (EC) and Consent to Operate (CTO) for all the activities being done by it in accordance with the EIA Notification, 2006 and the provisions of the Water (Prevention and Control of Pollution) Act, 1974; direction may be issued to respondent No.5 – SEIAA, Maharashtra to take note of violation of EC Notification and take action against respondent No.1; a direction may be issued to respondent No.1 – Project Proponent to

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process for setting up of STP and handling of its exhaust in a proper manner so as to avoid the stench and odour which is troubling the tenants and direction may be issued to assess the Environment Damage Compensation (EDC) for the violations to be levied from respondent No.1.

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In the body of the application, it is submitted that respondent No.1, which is a construction company, has constructed 14 buildings in Sector R12 at Chandivali Farm Road, Mumbai. The applicant is one of the residents of the township built by the said company for last four years. The applicant is now disturbed by high level of noise pollution in the area because of heavy construction work being carried out by respondent No.1. This noise pollution is occurring due to stone crushing quarry which is being operated by respondent No.1 in the area near the residential premises which also includes lot of dust leading to air pollution and noise pollution. The flora and fauna has already suffered apart from the human life being adversely affected. When the applicant enquired about EC and Consent to Establish (CTE) for the project under construction and CTO for the project already completed, respondent No.1 has taken recourse to some letter obtained in 2005 purportedly granting exemption from obtaining EC and hence, was proceeding without EC for the projects which had been completed upto the plinth level. The Notification of 2004 exempted from obtaining EC only for those buildings which were under construction and which were constructed upto plinth level till the notification came into effect. A copy of it is annexed as Exhibit-A.

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It is further stated in the application that till the time of filing this application, only plinth of two buildings was completed and rest of the buildings have been started after that and for that, the Project Proponent ought to have obtained EC as per the Amendment dated 07.07.2004 and thereafter, EIA Notification dated 14.06.2006, which have not been obtained. As such, entire project, which is being constructed, has been

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executed with blatant violation of the EC not having been obtained. The total area of separate buildings constructed subsequently after 2004 and 2006 including FSI and non-FSI is much higher than 20,000 sq.mtrs and hence, needed prior EC.

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4 The applicant made a complaint about this fact to the MPCB and SEIAA, but the cognizance of the same has not been taken. Respondent No.1 has malafidely shown a letter of their Architect M/s Kapadia Consultants stating therein that “ ….. environmental & forest clearance should not be made applicable to the above project since the project has already commenced much prior to date of notification….. ”. The project had got underway about a decade ago, hence 14 towers, which were not even in the planning/design stage by the time the permission was granted. However, respondent No.1 proceeded for all the towers, which were constructed even after 2005 without any prior EC. As a result of this, residents suffered adversely as stated above. The letter of the Architect in in this regard to forego any requirement of EC is annexed as Exhibit-B at pages 28 and 29 of the paper-book.

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It is further mentioned in the application that there is only one STP for the entire project consisting about 2500 tenements, which is at the second level basement and the outlet is on the ground floor. The stench and odour spreads into atmosphere which causes nuisance to the residents. The stench of Hydrogen Sulphide (H2S) and Methane has caused severe problems like headache, lack of concentration, irritation, watering of eyes, epilepsy, etc. to the people living in the vicinity. Further it is mentioned that there is a common car parking provided for all the towers for around 5000 cars at the second level basement parking where there is inadequate ventilation. The buildings are provided with only fire hydrants while there is no provision for sprinklers till almost 15^th floor in some buildings. This puts the rest of the tenants of the buildings to a great risk

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to their life, although the Project Proponent agreed to all requirements as per the fire department to obtain the NOC.

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Further it is mentioned that respondent No.1 had sold dreams to the tenants in the form of club house and swimming pools, etc. However, in reality, they were not in place. Respondent No.1 has started the construction of the Recreation Ground and Club House in the year 2008, but the same is still not completed. The Project Proponent had promised a road of width 18.3 mtrs throughout the project, but the same has not been maintained. Only the road which leads to the project, is a two-way road and cars are parked on both the sides. Due to this, there are about 500 cars parked on both sides of the road, which is leading to traffic problems, congestion and honking. Respondent No.1 has not made any provision for rain water harvesting, adequate fire safety, sewage & effluent treatment and solar heating and has been using ordinary lighting and halogen lamps, thereby leading to a rise in high temperature in the entire area.

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Despite cutting huge number of trees, respondent No.1 has failed to plant trees as required under environmental laws, which has led to loss of greenery and damage to soil and rise in temperature. Respondent No.1 has acquired various permissions from the BMC by fraud and manipulation and has obtained the O.C. for some projects, which are the buildings which were under construction. These N.O.Cs. were granted to respondent No.1 on oral submission of their Architect that all environment clearances were put in place and without verifying the same. Respondent No.1 had obtained Commencement Certificate dated 15.07.2005 for commencement upto stilt slab level, which was valid till 14.07.2006. Thereafter, respondent No.1 obtained Commencement Certificate dated 26.02.2007for commencing the work upto the plinth level and the same was gradually extended upto top of ground floor as on 04.10.2012. The draft IOD given for the R12A on plot bearing CTS No.25 (Pt), 26 (Pt), 50(A) (Pt) of villag Chandivali at Kurla

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(West) mentioned that respondent No.1 was required to obtain NOC from the Department of Environment and Forest (MoEF), but respondent No.1 proceeded without obtaining the EC for the plans/buildings constructed after 2005 on the pretext that the initial approval was in 2005. It is reiterated by the applicant that Notification of 2004 and 2006 was applicable in this case also and only for those buildings which had already been constructed till plinth level, but by submitting false information, respondent No.1 managed to acquire permission for the projects. Further it is mentioned that respondent No.1 had taken permission for only one building, but after that, had gone ahead to construct total 14 buildings without obtaining EC.

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Further it is mentioned that a complaint regarding violations was made to the MPCB on 02.07.2016 and also to the SEIAA, Maharashtra. Hence, it is being claimed that this application being filed on 29.07.2016, is within prescribed period of limitation i.e. within 30 days.

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This application was first heard on 19.08.2016 and on the said date, it was admitted and the notices were issued to the respondents.

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Respondent No.2 – MPCB has submitted its affidavit-in- reply dated 27.10.2016, wherein it is submitted that the the relief claimed in the present application pertains to damage caused by respondent No.1 to environment by causing air, noise and water pollution and failure to provide prevention mechanism at the site in question and several other grounds. A telephonic complaint was received in the month of Jun, 2016 from the applicant mainly in respect of Sewage Treatment Plant (STP) and smell nuisance caused by respondent No.1, whereon site visit was made on 23.06.2016 and it was observed that respondent No.1 had completed the work of construction and the flats were handed over to the tenants. At the time of visit, the STP was found in operation having capacity of 900 CMD. The treated effluent of STP outlet was used for gardening/plantation and

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flushing purpose as reported by the representative of respondent No.1, but Intimation of Disapproval (IOD), Commencement Certificate (CC), Occupation Certificate (OC) from Municipal Corporation of Greater Mumbai (MCGM) and CTE and CTO granted by the MPCB and the EC from the Competent Authority were not made available at the time of visit to the site. Respondent No.1 also failed to give details of garbage generation and its disposal. Later on, respondent No.1 submitted IOD dated 22.07.1993 and onwards, on the basis of these documents, prepared a table showing the date of commencement, plinth completion and occupation certificates, which are annexed as Annexure-III and IV respectively.

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Based on the above documents, it was observed that respondent No.1 had started construction work in the year 1993, which was still going on. The Project Proponent submitted the information only for upto 2005, but failed to submit the construction details after 07.07.2006 and hence the Board issued directions under Section 33A of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 31A of the Air (Prevention & Control of Pollution) Act, 1981, vide letter dated 24.10.2016, for carrying out the construction activity without Consent of the Board and failure to submit area statement of the said construction activity. The same is annexed as Annexure-V. In the meantime, the answering respondent, vide letter dated 26.10.2016, communicated the present status of the site and documents submitted by respondent No.1 to the SEIAA, Maharashtra – respondent No.5 in order to examine whether EIA Notification, 2006 is applicable to respondent No.1.

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Respondent No.4 – MCGM has filed its reply dated 29.11.2016, wherein it is submitted that the present application is not maintainable as the same is not filed within six months from the date of cause of action first arose. It is stated that the development work and permissions for the said development work does not fall under the enactments specified in

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Schedule-I of the National Green Tribunal Act, 2010 and hence, on this ground alone, the application should be dismissed. The answering respondent has not given any permission for stone crushing quarry to respondent No.1. The applicant himself has purchased the premises in the said layout wherein the development is going on and the same is within his knowledge. The layout comprises total 20 nos. of sectors each naturally subdivided by DP roads and reservations. The construction has been carried out in phase-wise manner and the approvals for the buildings are issued from time to time. Present application is in respect of Sector R12. The condition to obtain NOC from Environment and Forest Department was imposed in intimation of disapproval (IOD) in this sector. Thereafter, M/s Kapadia Consultants Architect and Engineers for respondent No.1 submitted a representation to the then Director (E.S.&P) of the answering respondent on 29.06.2005 and it was apprised by submitting that due to large magnitude of the project, the approvals for various buildings will be taken from time to time. Since the entire project is one composite consolidated project, work of which has been commenced much before the EIA Notification of Govt. of India and various buildings in layout under reference had been completed much prior to the said notification. The infrastructural works such as construction of roads, storm water drains, laying of sewer water mains etc have been substantially completed by respondent No.1, it was requested that Environment and Forest Department Clearance should not be made applicable to the Project. The said representation was placed before the then Director (E.S.&aP), who observed that “if proposal (layout) is received prior to Notification then NOC is not necessary”.

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It is further submitted by the answering respondent that in the case in hand, since the layout was sanctioned in 1996 for the phase-wise development of sectors and some of the buildings were started and completed, NOC of Environment and Forest Department was not insisted

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for the development of remaining buildings in this layout. The development of buildings in this layout was completed as per approved plans and hence occupation certificate was granted. At the time of approval of layout in 1996, there was no condition for Sewerage Treatment Plant. However, completion for laying sewer line had been issued by the concerned Department of the answering respondent. Condition no.9(d) in NOC of Fire Department was modified on 24.12.2009 and completion certificate was issued by the Fire Department. The Superintendent of Garden of the answering respondent has issued NOC and the completion in respect of tree plantation. Further it is mentioned that various permissions were given by the answering respondent in accordance with law and D.C. Rules and Regulations. It is denied that occupation certificate has been granted, even when those buildings were under construction. It is submitted by the answering respondent that the rest of the averments made in this application are all denied by the answering respondent. Lastly, it is mentioned that the application is not moved within time i.e. within five years from the date of cause of action. The applicant failed to prefer an appeal/application within six months from the date of cause of action first arose and on this ground alone, the present application needs to be dismissed.

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From the side of respondent No.3 – Environment Department and respondent No.5 – SEIAA, an affidavit dated 13.01.2017 has been filed, wherein it is submitted that the application pertains to construction done by respondent No.1 – Nahar Builders Ltd., at of Sector R12, Chandivali Farm Road, Mumbai. As per the record available with answering respondent SEIAA and SEAC-2, these two Authorities had not received any application from respondent No.1 to obtain prior EC for the project in question, as per EIA Notification, 1994, as amended on 07.07.2004 and the existing EIA Notification dated 14.09.2006. The applicant had made a complaint on 01.07.2016 regarding violation of environmental norms by

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respondent No.1 for carrying construction without obtaining the EC, whereon the Environment Department had called a report from the Member Secretary, Maharashtra Pollution Control Board and the Commissioner, Municipal Corporation of Greater Mumbai, vide letters dated 20.07.2016 and 17.11.2016, respectively. The Environment Department, vide their letter dated 30.12.2016, sought joint inspection of the project in question to be done by the Commissioner, MCGM and Member Secretary, MPCB. The report received from these Authorities was later on forwarded to SEAC to verify the applicability of EIA Notification, 2006 to the said project. After receiving recommendation from the SEAC to SEIAA, it (SEIAA) was to take final decision for applicability of EIA Notification, 2006 to the said project.

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From the side of respondent Nos.6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, who are residents of the site in question, where the applicant resides, have filed their reply-affidavit dated 20.12.2016, wherein it is stated that they resided in the flats since 2013 till 2016 and sold the said flats in 2016. Respondent No.1 diligently disclosed all permissions obtained by it before constructing the buildings in the project in question including sanctioned plans duly approved by the Planning Authority and that they were satisfied with the permissions including the plans and thereafter, executed the Agreement for Sale for their flats. They did not face any issue regarding air pollution or noise pollution. The quality of air in and around the project was found to be of habitable quality. There was enough width of the road and there was no traffic congestion. They never experienced any problem due to vehicular emissions caused by traffic jams or congestion. They had never seen any stone crushing quarry operating around the vicinity of the project. They had never seen any heavy construction taking place within Sector R12, which was affecting the health of the residents. Sector R12 consists of 11 residential buildings which have been constructed with due permissions, as on date there is no construction activity going on in Sector R12. Adequate measures in respect of fire safety

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have been taken and necessary equipment required to tackle any fire hazard has been installed in the buildings . Apart from this, the allegations that there is no provision for rain water harvesting in the buildings within Sector R12 are said to be false and those are made only to settle personal scour by the applicant.

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Affidavit-in-reply dated 19.01.2017 has been filed by respondent No.1 – Nahar Builders Ltd. on 24.01.2017, wherein mainly prayer in respect of interim relief is addressed, but merit has also been touched and hence, it is being considered by us. It is submitted in the said affidavit that the answering respondent No.12’s residential buildings are standing on Sector R-12, Village Chandivali, Chandivali Farm Road, Andheri (East), Mumbai, out of which 11 buildings have been fully constructed for which occupation certificates have been obtained from the MCGM. Save and except one building, the Intimation of Disapproval (IOD) and plinth level Commencement Certificates in respect of the buildings standing on Sector R-12 were obtained prior to the year 2006. The construction permissions for the said Sector were duly received and the construction work had begun much prior to coming into force of the NGT Act, which is applicable only prospectively and which came into effect in the year 2010. Any alleged dispute in respect of Sector R-12 is beyond the jurisdiction of this Tribunal.

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Further it is mentioned that the application is hopelessly time barred by limitation as per Section 14(3) of the said Act, which provides for stricter period of limitation. The subject matter of this application i.e. Sector R- 12 is a portion of the project of respondent No.1 for the development of land situated at Nahar Amrit Shakti Project, Andheri (East), Mumbai. The IOD in respect of the said Sector was issued by the MCGM on 15.04.2005 and the first CC in respect of said Sector R-12 was issued by the MCGM on 15.07.2005. Pursuant to issuance of the IOD and CC, respondent No.1 commenced construction of Sector R-12. The purported letters, which,

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according to the applicant, are giving rise to the cause of action, have not been annexed. Therefore, it is denied that any such letters were written and because of that only, respondent No.1 had moved Misc. Application No.334 of 2016, for obtaining copies of the said letters. The applicant himself had purchased a flat in 2005. Therefore, he knew well that unless it is made within a period of six months from the date on which the cause of action for such dispute first arose, the application would not be treated to be within limitation. Hence, the alleged letters are stated to have been written.

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It is further stated that the applicant is admittedly a resident of a part of Sector R-12 since 09.11.2012 with the answering respondents. Therefore, knowledge about this project would be attributed from the said date to the applicant and that should be treated to be the date for cause of action. Therefore, in view of provision under Section 14 of the NGT Act, which provides limitation of 6 months for filing an application from the date on which the cause of action arose, the present application is hopelessly time barred. It is further mentioned that prior to EIA Notification as amended on 07.07.2004, there were town planning laws which were required to be complied with. The planned roads, building set-offs, firefighting, ventilation, internal building distances, etc were very much in detail already in existence. The standard norms as required at that point of time were vividly followed and permission obtained from the appropriate Authority.

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It is further submitted by the answering respondent that the applicant had filed Criminal Complaint on 28.06.2016 against the Project Proponent, in which closure report was filed. The applicant has been harassing respondent No.1 by making false complaints before the National Consumer Redressal Forum and had reiterated the same allegations which are made in the present application.

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As regards merit, it is submitted by respondent No.1 that it was not required to obtain EC or CTO in respect of Sector R-12, which forms part of a larger layout, which was sanctioned by the MCGM in the year 1996 itself. Around 1998, the construction activities for several buildings had commenced on the larger layout and construction of various buildings over and above the plinth level was completed prior to 07.07.2004. Various infrastructure work was also carried out like roads, SWD, etc since 1998 onwards. The EC was only required for those construction projects where construction work had not come up to plinth level as per amended Notification dated 07.07.2004, which has amended earlier EIA Notification dated 27.01.1994. It is stated that if there are many buildings in the project, then plinths of all buildings are to be completed or constructions upto certain percentage of the entire project must be completed, is not the correct position of law. It is unambiguously clear that the intention of the said Notifications was that construction of any building upto the plinth level before the said Notifications would not attract the requirement of taking the EC for the project. Therefore, it is denied that respondent No. 1 had constructed the project in contravention of Notification dated 07.07.2004. Since the layout plans were sanctioned in the year 1996, the Notification dated 14.09.2006 Is not applicable to Sector R-12 and the project in question. Respondent No. 1 was not required to have any clearances and only by way of abundant precaution, the Architects of Respondent No.1 had sought clarification from the Director (E.S.&P) of MCGM that whether or not, respondent No.1 was required to obtain EC. It is further submitted that the Architect of respondent No.1, vide its letter dated 29.06.2005 addressed to the Director (E.S.&P) of MCGM, endorsed on the said letter that since the proposal was received prior to the notification, there was no need to obtain environmental clearance. Sector R-12 is purely residential project. Hence, in the light of the decision of the Hon’ble High Court of Delhi in Delhi Pollution Control Committee Vs. Splender Landbase Ltd. , Consent to Establish and Consent to Operate

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are not required for purely residential project, which now stands endorsed by the Ministry of Environment and Forest by issuing a Notification dated 09.12.2016.

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With respect to Sewage Treatment Plant (STP), it is denied that stench and odour spread through the air into the atmosphere. The capacity of the STP is 9 lakh liters per day, which is as per the relevant norms. It is submitted that no activity is carried on in Sector R-12, which has any emission of Hydrogen Sulphide or methane, as alleged. The car parking space sanctioned by MCGM is for 3220 cars spread over the stilt floor, the first podium level parking and the second podium level parking. With respect to fire safety, it is submitted that the Deputy Chief Fire Officer, Mumbai Fire Brigade has issued NOC dated 11.04.2016 to occupy and use the basement, stilt, 2 level podium car parking area. The parking and fire safety fall within the purview of planning laws which are under the MRTP Act, 1966 and the Development Control Regulations 1991, which are not within the purview of this Tribunal. A club house namely “Bloomingdale” is in existence, which is in use of the flat purchasers and another larger club house is being constructed by respondent No.1 within sector R-12 and the same will be completed and made available to the residents of Sector R-12 as well. It is also an admitted position that another club house in the same project is already available, which is in use and accessible by the members of Sector R-12. The members of Sector R- 12 have been given membership to the use and access of the said club house from many years. The applicant is trying to bring issues arising out of alleged non-implementation of contractual obligation of respondent No.1, which is impermissible. He is seeking specific performance of contractual obligations. Noise of any kind due to traffic is denied. It is denied that respondent No.1 has not made provisions regarding rain water harvesting, fire safety and sewage and effluent treatment.

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The applicant has filed computation of the damages to the environment and ecology by filing an affidavit dated 23.05.2022, wherein it is submitted that the project in question by name “Amirt Shakti” is under challenge, which includes CTS Nos. 30A/1-14, 30A/1-16, 30A/2, r6a/8, 36-B, 50-B, 52-B, 53-B & 29V, 28A/3, 28-B, 29/L, 30-A/1-15, 30-A/3, 50-C, 53-A/1D, 53-C, 53-A/1-B, 1-C, 44-C, 1-D, 44-A, 45, 45/1 to 45/29(P), 50-A (P), 51-A (P), 52-A(P), 48-F(P), , 49, 50-A (P), 40(P), 4/2 to 4/59, 4/60, 4/61, 4- E, 20-B, 25/B/1, 26A, 27, 28A/1, 29N, 50A/6, 38 (P), 50A/7, 52A/9, 42-D, 43C/A(P), 43C/9 to 43C/13, 43C/32 to 43C/37, 39-A, 14(P), 36A/4, 50A/11, 52A/3, 36A/9, 50A(P), 52/A(P), 50A/9, 52A/6, 36A (P), 36A/10, 50A(P), 52/A(P) and 26-C. The construction comprises 22 sectors as per the approved layout. However, petty damage has been calculated by SEIAA only for 11 sectors viz. Sectors R-2, R-3, R-4, R-5, R-6, R-12, R-14, R-18, R-19, R-20 and R-21. This shows misconduct of SEIAA, SEAC-II and DoE members. The total project land under the EC application is admeasuring 485232.67 sq.mtrs. The details of the actual construction carried out at the site have been shown by the applicant in paragraph No.5 in tabular form as follows:

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The applicant, in the aforesaid affidavit, has shown in paragraph No.6, sub-cause (v) in tabular form the assessment of environmental damages and calculation of cost of remediation plan and natural & community resource augmentation plan, done by the SEIAA, which is as follows:

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It is stated by the applicant that the above computation is a petty amount, hence he has made his own calculations based on carbon foot print and the amount assessed is to the tune of Rs.25936.76 Crores, details of which are calculated by him as follows :

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From the side of respondent No.1, the above calculations have been rebutted by filing an affidavit dated 02.05.2023, wherein it is recorded that the applicant is neither qualified nor does he so claim to have any expertise in the field of environment. The assessment of damage, which is made by him, is not corroborated by any report of any individual/body/institute/organization having the necessary qualifications or expertise. Hence whatever calculations made by him, which are cited by us above, ought to be discarded. Further it is submitted in this affidavit that the EC has been granted to respondent No.1 on 25.09.2019, which is annexed at pages 1811 to 1824 of the paper-book, wherein the damage assessment is done to the tune of Rs.13,48,00,000/- and that respondent No.1 was directed to carry out the environment restoration programme by utilizing remediation costs to the extent of the said amount. It is further mentioned that respondent No.1 has complied with the obligations to the extent of the said amount of damage assessment, which is confirmed by the MoEF&CC in its letter dated 13.06.2022 to SEIAA, inter alia recording that

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O.A. No.174 OF 2024(WZ) Page 21 of 25

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respondent No.1 has carried out works for development of Miyawaki plantation and that the aforesaid works were duly completed. It is further recorded in the said affidavit that respondent No.1 has incurred an expenditure of Rs.13,62,70,880/- towards the aforesaid works. It is stated that respondent No.1 has made an additional expenditure of Rs.2,15,00,000/- for providing additional amenities. Along with the said letter, MoEF&CC forwarded a detailed report prepared by the Scientist-E of MoEF&CC, which records the aforesaid conclusions. It is also recorded that MCGM has also issued a final utilization certificate dated 10.04.2023 to respondent No.1 certifying that an amount of Rs.17,32,96,996.87 has been utilized by respondent No.1 for successfully completing “Miyawaki Forest and SWD/Nalla Works” under the EMP activity under remediation and natural and community resource augmentation plan as recommended in the said Environmental Clearance Certificate. Further it is mentioned that respondent No.1 has informed the public at large that SEIAA had issued the said Environment Clearance Certificate and further that copies of the said Certificate were available with the Maharashtra Pollution Control Board and may be accessed on the website, whose URL was set out in the said notices. The said EC has not been challenged. Therefore, there is no dispute on either the damage assessment value or the value of the remediation measures carried out by respondent No.1. Therefore, the claim for or any computation of purported damages by the applicant is misconceived, baseless and untenable in law. Hence, the affidavit filed by the applicant in respect of computation of damages deserves to be discarded.

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We have heard the learned counsel for the parties on 12.11.204 and the order passed by us on that date contains the arguments of the respective parties, which shall form part of the present judgment. However, for the sake of convenience, we reproduce that order herein below:

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“1. Heard the argument of learned counsel for applicant, who has mainly emphasized the main relief, which remains to be considered by this Tribunal, pertains only to the amount of EDC to be levied from the

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respondent No.1-Project Proponent and some remaining infrastructural facilities, which were to be set up, could not be set up so far. Thereafter, he has shown number of documents, in which he has relied upon the document, which begins from page no.2586 of the paper book, which is an EDC calculation made by the Consultant approved by the SEIAA, wherein the rate of water is quoted Rs.60 per KL, which is said to have been applied here arbitrarily and it is alleged that there is no source disclosed as to how this rate has been applied in the case in hand. Thereafter, he has drawn our attention to page no.1733 of the paper book, wherein he has disputed the calculation approved by the SEIAA and has given his own calculation of amount of EDC to the tune of Rs.25936.76 Crores, based on the principle applicable in Carbon Footprint.

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2. On the other hand, from the side of respondent No.1- Project Proponent, learned senior counsel Shri T.N. Subramanian has appeared before us, who has disputed the amendment, which has been sought by the applicant and the same was declined by this Tribunal, against which applicant had approached the Hon'ble Supreme Court, from there also, the same has been declined. Therefore, only Sector regarding which relief can be considered by this Tribunal, is Sector R-12 because of the amendment having been rejected. Regarding this Sector, there is no specific details given by the applicant.

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3. Thereafter, learned senior counsel for respondent No.1 has also drawn our attention to page no.1811 of the paper book, wherein at serial no.8, all the Sectors are shown, which includes the Section R-12 also and therefore, EC was considered for all the Sectors. Thereafter, he has drawn our attention to page no.1820 of the paper book, wherein at serial no.3 Sub-clause (III), it is recorded “As agreed, PP to provide STP for waste water treatment for R-2 & R-18 in addition to STP for sector R- 12, PP to upload undertaking regarding this”. Thereafter, he has also drawn our attention to page no.1825 of the paper book, which is a letter dated 13.08.2022 written by the Scientist – „E‟, Ministry of Environment, Forests & Climate Change, Integrated Regional Office, Nagpur, wherein it is made clear that the Project Proponent has submitted “Damage Control Plan, Remediation Plan and Natural & Community Resource Augmentation Plan” for obtaining environmental clearance under MoEF&CC Notification dated 14.03.2017, with financial outlay of Rs.13.48 Crores for carrying out the works such as development of Miyawaki plantation over an area of 3.3 ha., laying of sewer lines along municipal roads, laying/augmentation of storm water drainage network

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along the roads in consultation with municipal corporation. It is also recorded in it that PP during the site inspection made a presentation on the works carried out w.r.t. Miyawaki plantation and Augmentation of Nallah/Storm Water Drainage network and submitted documents in support of expenditure made for the plantation. During the site inspection, it was observed that both works Miyawaki plantation and Augmentation of Nallah/Storm Water Drainage network were completed. As per the documents provided, an expenditure of Rs.13,62,70,880/was made on both works.

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4. Thereafter, learned senior counsel for respondent No.1 has also drawn our attention to page no.1827 of the paper book, which is a letter dated 10.04.2023 on the subject “Completion and Utilization Certificate for development of Miyawaki Urban Forest and S.W.D./Nalla works under EMP activity…” issued by the Brihanmumbai Municipal Corporation to the Project Proponent.

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5. Thereafter, learned senior counsel for respondent No.1 has argued before us that the amount of EDC has been calculated by the applicant on the basis of Carbon Footprint, which cannot be done because in the matter of Goel Ganga‟s case, in para nos.59 to 63, it has been laid down that without empirical data and also for want of an evidence in this regard, no such procedure can be adopted. The next point, which has been emphasized by him, is that the present application is highly time barred, for which Misc. Application No.334/2016(WZ) was also moved by the applicant. He further submits that applicant had purchased flat in Sector R-12 in November 2012 and therefore, he had full knowledge at that point of time that the present Original Application has been filed on 29.07.2016. Therefore, it is highly time barred in view of the provisions under Section 14 of the National Green Tribunal Act, 2010.

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6. From the side of respondent Nos.7 to 10, learned counsel Mr. Saket Mone has appeared before us. He has supported the argument made by the learned senior counsel for respondent No.1 .”

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We are totally convinced with the argument of learned counsel for respondent No.1, which is mainly to the effect that main relief, which was prayed by the applicant, was contained in prayer clause (F) of the relief clauses, wherein a direction was prayed to be issued to respondent No.1 to

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obtain Environmental Clearance and Consent to Operate and that now since the EC has been granted vide order dated 25.09.2019, which is main relief, appears to have been satisfied and hence, we are of the view that nothing remains to be decided in this Original Application regarding this aspect of the issue involved. As regards the compensation, which is next important issue in the case in hand, we find that while calculating the EDC, the amount of compensation under the relevant law, including the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 and remediation plan, etc., the same, in our opinion, would be treated to have been calculated by the expert body, instead of the calculations made by the applicant, who is not an expert in this field.

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We have also found from the evidence on record that all the measures, which were required to be taken by respondent No.1, have also been taken by it and the amount which was to be deposited by it was deposited and also spent in accordance with remediation plan. Therefore, we are totally convinced with the argument of the learned counsel for respondent No.1 that nothing remains to be decided in the case in hand and the matter deserves to be disposed of. We are also convinced that if the impugned EC was to be assailed, for that, an appeal was required to be filed, for which time has already elapsed.

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With above observations, we dispose of this Original Application.

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In view of disposal of the Original Application, all the pending applications shall stand disposed of.

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No order as to costs.

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Dinesh Kumar Singh, JM

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Dr. Vijay Kulkarni, EM

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December 04, 2024 O.A. No.104 OF 2016(WZ) npj

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O.A. No.174 OF 2024(WZ)

Prakash Agrawal v. Nahar Builders Limited through Sukhraj Babulal Nahar Director

Case brief

What is this about?

What the court decided

Prakash Agrawal v. Nahar Builders Limited through Sukhraj Babulal Nahar Director

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

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