Partly allowed

Sayyed Mohammed Sabir Usman v. Union of India through Secretary Ministry of Environment Forest & Climate Change

NGT3 Feb 2025IA No. 146/2023 in Original Application No. 49/2021

Case brief

AI extract

What is this about?

NGT Western Zone held no violation of Environmental Clearance regarding building count or built-up area. Declared non-revalidation of Consent to Establish not a violation for residential projects. Directed installation of OWC and solar system with bank guarantee and levied ₹2.02 crore EDC for operational STP delay.

What did the court decide?

Directed installation of Organic Waste Convertor and solar system within six months; levied ₹2.02 crore as EDC; treated Consent to Establish non-revalidation as no violation for residential projects.

Sayyed Mohammed Sabir Usman vs Union of India through Secretary Ministry of Environment Forest & Climate Change — NGT (2025) — LawSathi Research

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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.49/2021(WZ) I.A. No.49/2021(WZ) & I.A. No.146/2023(WZ)

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IN THE MATTER OF:

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MR. SAYYED MOHAMMED SABIR USMAN R/o: Flat No. 612, C-Wing, Mount Kailash Apt., Belasis Road, Mumbai Central, Mumbai-400 008.

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…..Applicant

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Versus

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1. UNION OF INDIA

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Through Secretary, Ministry of Environment, Forest & Climate Change, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi -110 001.

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2. THE PRINCIPAL SECRETARY, ENVIRONMENT DEPT. Government of Maharashtra, Room No. 217, 2^nd Floor, Annex Building, Mantralaya, Mumbai-400 032, Maharashtra.

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3. STATE LEVEL ENVIRONMENT IMPACT ASSESSMENT AUTHORITY- MAHARASHTRA (SEIAA) Through Member Secretary 15^th Floor, New Administrative Building, Mantralaya, Mumbai-400 032, Maharashtra

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4. MAHARASHTRA POLLUTION CONTROL BOARD

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Through Member Secretary, Kalptaru Point, 3^rd Floor, Near Sion Circle, Opp. Cine Planet Cinema, Sion (E), Mumbai-400 022.

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5. MUNICIPAL CORPORATION OF GREATER MUMBAI (MCGM) Through Municipal Commissioner Head Quarter, Near Chhatrapati Shivaji Terminus, Mumbai- 400 001.

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6. MAHARASHTRA HOUSING AND AREA DEVELOPMENT AUTHORITY-MHADA

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Through its CEO, MHADA Grihanirman Bhavan, Kalanagar, Bandra (E), Mumbai-400 051.

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7. COLLECTOR OF MUMBAI CITY

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Mumbai City Collectorates, Old Custom House, Fort, Mumbai, Maharashtra 400 001.

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8. M/s. CASTLE REALTORS PRIVATE LIMITED

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Having its registered office at: 292, Bellasis Road, Dudhwala House, 3^rd floors, A Wing, Near ST Depot, Ward E, Mumbai Central, Village- Ramwadi, District-Mumbai City, Mumbai-400 008, Maharashtra.

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Having its Business Office:

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NDW Group, One Forbes, A wing 2^nd Floor, DR. VB Gandhi Marg, Kalaghoda Fort, Mumbai: 400 001, Maharashtra.

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Through its Directors:

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8A. Mr. Nisarahmed Ibrahim Patel 8B. Mr. lshaq Valibhai Patel

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.....Respondents

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Counsel for Applicant:

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Mr. Tanaji Gambhire, Advocate along-with Mr. Vijay Mhaske, Advocate

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Counsel for Respondent(s):

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Mr. Deepak M. Gupte, Advocate for R-1/MoEF&CC Mr. Aniruddha Kulkarni, Advocate for R-2/Envt. Deptt. & R-3/SEIAA Ms. Manasi Joshi, Advocate along-with Ms. Pooja Natu, Advocate for R-4/MPCB & R-6/MHADA Mr. Manoj Wad, Advocate along-with

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Mr. Pankaj Pardeshi, and Mr. Kapil Agarwal, Advocates for R-5/MCGM Mr. Saket Mone, Advocate along-with

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Mr. Abhishek Salian and Ms. Anchita Nair, Advocates for R-8

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PRESENT:

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Hon’ble Mr. Justice Dinesh Kumar Singh (Judicial Member) Hon’ble Dr. Vijay Kulkarni (Expert Member)

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Reserved on : 03.01.2025 Pronounced on : 03.02.2025

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JUDGMENT

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This Original Application has been preferred with the prayers that a direction may be issued to the Respondents (Government Authorities) to demolish the illegal structures at City Survey (CTS) No.1/378 of Mazgaon Division, Balwant Singh Dhody Marg of Nesbit Road, Mazgaon, DistrictMumbai City, Mumbai, where respondent No.8- M/s. Castle Realtors Pvt. Ltd./Project Proponent has constructed the Project “NDW Aquagem”,

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which is a residential and commercial project, without Consent to Establish and Consent to Operate, in violation of the terms & conditions of Environmental Clearance dated 25.06.2007, which was issued by MoEF under Environment (Protection) Act-1986 read-with EIA Notification, 2006; further it is prayed that an amount of EDC may be levied from respondent No.8 based on the ‘polluter pays’ principle.

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In brief, the facts of this case are that the total project land claimed by the Project Proponents is admeasuring 4,855.93 M² with permissible Built-up Area as per FSI being 16,641.70 M² and the total constructed Built-up Area being more than 50,000.00 M² . The Project Proponent obtained prior EC dated 25.06.2007, which was valid till 24.06.2012 as per EIA Notification-2006. But the PP carried out the construction till date without getting the EC amended from the SEIAA or MoEF. The PP has not obtained prior Consent to Establish as mandated under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and under Section 21 of the Air (Prevention & Control of Pollution) Act, 1981 from the MPCB. The PP has completed part project in the year 2016-17 and started enjoying the same without obtaining prior Consent to Operate as mandated under Section 26 of the Water Act and Section 21 of the Air Act from the MPCB. The Project Proponent has obtained Consent to Establish on 05.11.2009, validity of which expired after lapse of 5 years i.e. on 05.11.2024 but the same was not got revalidated.

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It is further mentioned in this application that the PP is extracting huge quantity of ground water from four bore wells for construction of the said project as well as for domestic use by occupants of the project, without any permission from Central Ground Water Authority for operational purpose. The PP has not provided any solid waste management system and that the waste generated is being dumped in MCGM waste

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yard, creating burden on public system and the same is also generating various greenhouse gases. There is no scientific disposal of the solid waste generated from the project in question. The other infirmities of the project are recorded as follows: the PP has not provided any energy conservation system for energy saving such as solar system; PP has not provided any rain water harvesting system for ground water recharge; PP has not preserved top layer of fertile soil and not conducted soil testing for contamination; PP has not done tree plantation as per the norms; PP has installed 4 DG sets at the project site and operation of the same is causing air pollution; the huge quantity of sewage water is generated and there is no scientific treatment of sewage water; PP has not complied with the conditions of commencement certificate relating to the installation of environment infrastructure to avoid the degradation; PP has not developed the 10% open space as per the DC Rule; PP has not provided the ramp slope in the ratio of 1:10 as mandated in DC Rules of MCGM; PP has not provided site margin as per the DC Rules of MCGM; PP has not provided fire and safety system at the site in question; PP has not prepared any environment management plan; PP has carried out substantial change in the scope of the project in violation of terms and conditions of EC dated 25.06.2007, which is annexed as Annexure- A. The EC dated 25.06.2007, which was procured by the Project Proponent, contains following conditions:-

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“2. The project proponent is proposing for construction of residential and commercial complex at C. S. No. 378 and 1/378 of Mazgaon Division, Mumbai. The project involves construction of two building comprising of 197 flats. The total plot area is 4855.93 Sq. m. The total built up area as indicated is 31,389.89 Sq. m. Total water requirement will be 137 cu. m. /day. The waste water generated from the project will be treated in a STP having capacity of I50 cu. m. par day. The total solid waste generated will be 4968 kg/day. The bio degradable waste will be composted and inert material will be disposed of for land filling.

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6. In the case of any change(s) in the scope of the project, the project would require a fresh appraisal by this Department.”

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It is further mentioned in this application that Project Proponent had obtained original sanction from MCGM on 23.03.2007 and thereafter obtained amended approvals on 23.01.2009, 30.12.2009, 15.10.2015, 07.12.2015, 04.07.2017 and 25.08.2020, which are annexed from annexures A-2 to A-6; PP had obtained part Occupancy Certificate for the completed part of building Nos.1 & 2 in the year 2017 and decided to extend the project by increasing the scope of the project, in terms of the increasing number of floors; PP has applied for Certification from Maharashtra Real Estate Regulatory Authority (RERA) vide its application and Affidavit in Form-B dated 27.07.2017, which is annexed as AnnexureA-7; the architect of PP wrote a misleading letter dated 11.03.2020 to the Executive Engineer of Building Proposal Department of MCGM Wadala Office stating therein that “This is to certify that Gross Total Construction area of buildings (No.1, 2 & 3) as per proposed amendment plan is 27,141.45 sq. mt. which is within the permissible limit of NOC from MoEF under 21-669/2006-IA.III dated 25.06.2007 for construction area 31,389.89 Sq. mtrs.”, which is annexed as Annexure A-8. Therefore, this act of PP is totally illegal and PP cannot rely on this EC; PP received RERA Certificate on 18.05.2020, which is annexed as Annexure A-9. The applicant through his advocate had issued notice dated 26.03.2021 to the Respondent Government Authorities requesting them to take appropriate legal action against the Project Proponent but they failed to do so and the Project proponent was also requested to comply with the environment norms. The said notice is annexed as Annexure- A-10.

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It is further mentioned in this application that the Project Proponent has caused substantial damage to the environment and ecology, on account of illegal construction, as it has carried out excess illegal construction of total BUA more than 50,000 Sq. Mtrs. comprising 3 Buildings by consuming huge quantity of the building material prepared from natural resources like Cement, metal/ aggregates, steel, timber, water, fuel, bricks, sand, aluminium, copper for wirings, marble, stainless steel, PCV etc. for the construction of the project without any impact assessment and hence caused irreparable damage to the environment and ecology. The Project Proponent intentionally failed to prepare such impact assessment and further neglected to implement such assessment in his project and caused huge damage to environment. PP has made excavation of two basements, which has caused one of the major damages to the environment.

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This matter was first considered by the Tribunal vide order dated 22.07.2021 and a four Members’ Joint Committee was constituted comprising CPCB; SEIAA, Maharashtra; Maharashtra State PCB; and District Magistrate, Mumbai City with a direction to submit a report within three months indicating therein whether standards to be observed by the construction projects were duly published so as to be known by the project proponents; Whether the Project Proponents were depicting or were being required to depict information on key features of the Projects, particularly information about EC, consents under the Water/Air Acts when the construction of the projects was going on; and it was also directed that based on the facts, the statutory regulators may take further remedial measures, following due process of law.

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In pursuance of the above-mentioned direction, the Joint Committee

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submitted its report dated 10.05.2022, relevant part of which is quoted

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herein below:-

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”

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Against the above-mentioned report, applicant has filed objection dated 28.07.2022, wherein it is recorded that respondent No.3-SEIAA, Maharashtra issued the paper vide letter dated 30.01.2019 for the “Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory prior EC (Violation Cases)”. This paper strictly refers to the basis for the environmental compensation, EMP, including Damage Assessment, Remediation Plan, Community Augmentation Plan with reference to EIA Notification dated 14.03.2017. Hence, it is said by the applicant that this approach paper cannot be applied to the cases filed before this Tribunal.

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It is further mentioned in this objection by the applicant that as per the Notification dated 24.09.2020, issued by the Ministry of Jal Shakti, Department of Central Ground Water Authority, in its Para no.4.3 Infrastructure Projects states “New infrastructure projects/ residential buildings may require dewatering during construction activity and/ or use - ground water for construction. In both cases, applicants shall seek ‘No Objection Certificate’ from CGWA before commencement of work as per the Indicative list of Infrastructure projects, which is given in Annexure- VI, which includes “Residential townships including commercial buildings”. Further the clause 4.3 (iv) states “All infrastructure projects drawing ground water in safe, semi-critical and critical assessment: units shall be required to pay ground water abstraction charges as applicable as per Table 5.3 A”. Therefore, it is urged by the applicant that the calculation of damage, which needs to be imposed on the Project Proponent, has to be done in accordance with this table.

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It is further mentioned in this objection by the applicant that Joint Committee being the regulatory authority and well conversant with the ill

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practices failed to file the said report within time i.e. within period of three months, might be because of the deal with the PP. The reason for delay can be seen from the filing of Civil Appeal Nos.7773/2021 & 7779/2021 before the Hon'ble Supreme Court by PP against the Order dated 22.07.2021, which was dismissed by the Hon'ble Supreme Court, because of which the Joint Committee filed its report online on 09.05.2022. The principal contention of Original Applicant is that PP ought to have sought amendment in the Environment Clearance dated 25.06.2007, Consent to Establish dated 05.11.2009 and that there was no prior Consent to Operate obtained by the Project Proponent. It is also recorded by the Joint Committee that even after expiry of the EC dated 25.06.2007 and also lapse of CTE dated 05.11.2009, the Project Proponent did not obtain amendment in CTE dated 05.11.2009, which expired on 05.11.2014. The Joint Committee has further admitted the other ancillary violations though in casual, cursory, unscientific manner on account of ground water extraction from one bore well, ground water quality, no solar panels for energy conservation, inadequate tree plantation, transplantation, compensatory plantation, 10% of RG Area, installation of DG set of 620 KVA, and change in scope of the project.

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It is further mentioned in this objection by the applicant that Joint Committee has misled on account of OWC, RWH, STP, basements, tree plantation, burden on environment, 10% RG Area, site margin, 1:10 ramp slope, traffic management, principles of sustainable development, EMP etc. The Joint Committee has provided computation of environmental damages only for not obtaining CTO and conveniently avoided to give details on account of environmental damages due to absence of valid EC, CTE & NOC from CGWA. The Joint Committee has recommended MCGM to look into the

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issue of RG Area & Traffic Management Plan before issuing full occupancy Certificate and in case of violation/non-compliance, MCGM was to take necessary action. The Joint Committee has further recommended that it is the SEIAA Maharashtra to take necessary steps under Section 15 read-with Section 19 of Environment (Protection) Act, 1986 or may proceed for appraisal of the project in question including Damage Assessment, Remediation Plan, Community Augmentation Plan in accordance with the MoEF&CC's OM dated 28.01.2022 with implementing Environmental Management Plan (EMP) cost as environmental compensation amount, following approach paper adopted by DoE and SEIAA, Maharashtra vide SEIAA letter dated 30.01.2019 for the “Assessment for Environmental Damage And Estimation of Remediation Costs For Building Construction Projects initiated without obtaining mandatory prior Environmental Clearance”.

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It is further mentioned in this objection by the applicant that the Joint Committee has further recorded that, in addition to the above Rs.05 Crore OR Rs.8,73,60,000/- (Rupees Eight Crore Seventy-Three Lakhs and Sixty Thousand Only) as derived under para 6.0 of this report, as deemed fit by this Tribunal, may also be added in addition to the penalty to be calculated by the SEIAA as per the approach paper mentioned above. Important relevant dates and events are also mentioned by the applicant in para no.10 of this objection, which are as follows:-

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“

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”

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It is further mentioned in this objection by the applicant that the

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Joint Committee has admitted that the PP has obtained total Eight (8)

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number of sanctions from the MCGM, as follow:-

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“

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Sr.	Sanction Date	TBA of Sanction(M²)
1.	23.03.2007	20774.22
2.	23.01.2009	20012.98
3.	30.12.2009	22500.45
4.	15.10.2015	27460.66
5.	22.02.2017	27472.38
6.	07.08.2018	29742.53
7.	27.11.2019	29742.53
8.	28.08.2020	31742.15

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”

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”

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It is further mentioned in this objection by the applicant that the Joint Committee has admitted that the PP has obtained total three (3)

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number of Plinth Check Certificate from MCGM, as follow:-

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Sr.	Building No.	Plinth Check Certificate Date
1.	BuildingNo.1	28.01.2008
2.	BuildingNo. 2	31.01. 2009
3.	BuildingNo. 3	11.02. 2019

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It is further mentioned in this objection by the applicant that the Joint Committee has admitted that the Project Proponent has obtained total Two (2) number of Occupancy Certificate from MCGM, as follow:-

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“

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It is further mentioned in this objection by the applicant that Joint

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Committee has admitted that there is change in scope of the project due to additional Building No.3 and that the PP has not made any application for amendment in the EC dated 25.06.2007. Further, the Joint Committee has admitted that there is substantial change in the configuration of the project from Original Sanction dated 23.03.2007 up to 28.08.2020, by obtaining 8 number of revised sanction, which are cited above by us in tabular form. Further, the Joint Committee has admitted that the EC dated 25.06.2007 was obtained under EIA Notification, 1994 read-with amendment dated 07.07.2004. The Joint Committee has further admitted that the Building No.3 is under construction and Plinth Check Certificate was obtained on 11.02.2019. The Joint Committee has further admitted that the EC dated 25.06.2007 was obtained for “The Project (which) involved construction of two building comprising of 197 flats. The total Plot Area is 4855.93 M² . The total built up area as indicated is 31389.89 M² . Total water requirement will

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be 137 cu. m/day. The waste water generation from the complex will be 110 cu. m/day. The total solid waste generated will be 4968 kg/day. The bio degradable waste will be composted and inert material will be disposed of for land filing.”

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It is further mentioned in this objection by the applicant that Joint Committee has further admitted that the CTE dated 05.11.2009 was for total plot area of 4,855.93 M² and total BUA of 31,389.89 M² and the same was valid till commissioning or five years, whichever is earlier. But the CTE was not renewed even after its expiry on 05.11.2014. The Joint Committee has further admitted that the PP had only submitted letter dated 09.02.2021 requesting the MPCB to consider for revalidation of Consent to Establish instead of making proper online application for revalidation of CTE after its expiry on 05.11.2014. The Joint Committee has further admitted that the PP had applied online for CTE on 10.03.2022 for total plot area of 4855.93 M² and total BUA of 31389.89 M² , which is pending before the MPCB. The Joint Committee has also admitted that the PP without obtaining Consent to Operate (CTO) from MPCB has given possession to the tenants. The Joint Committee has also admitted that there is one bore well in the premises of Project Proponent, for which permission was taken from the Dy. Insecticide Officer of E-ward of MCGM and water is being used for construction. The Joint Committee has further admitted that there was no installation of Solar Energy Conversion system as mandated in condition no. xv of the EC dated 25.06.2007; there is illegal installation & operation of DG Set having capacity of 620 KVA without obtaining requisite permission i.e. CTE & CTO from MPCB against the permission of 1 x 250 KVA DG Set.

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It is further mentioned in this objection by the applicant that Joint Committee has further admitted that there is change in scope of the project

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as there is violation of Condition No.6 of the EC dated 25.06.2007 because EC was granted only for two buildings, while PP has constructed three buildings. The Joint Committee has also admitted that the first Plinth Check Certificate was obtained on 28.01.2008, while CTE was obtained on 05.11.2009. Therefore, CTE is ex-post facto , hence it is meaningless as the same was obtained 1 year & 10 months after the Plinth Check Certificate.

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It is further mentioned in this objection by the applicant that the computation of Environmental Damage Compensation (EDC) amount is erroneous because the days for not obtaining prior amendment in EC shall be counted straight away from 25.06.2012 to 25.06.2022 i.e. 3650 days; for not obtaining prior amendment in CTE shall be counted straight away from 05.11.2014 to 25.06.2022 i.e. 2975 days; and also plus days for not obtaining prior CTO shall be counted from 27.07.2017 to 25.06.2022 i.e. 1793 Days. Therefore, total days of violation of EC, CTE and CTO are 3650 + 2975+ 1793 = 8418 days. R is factor in rupees and it shall be Rs.500 as this project is of large scale construction in the polluted city of Mumbai, therefore, compensation should be exemplary and deterrent. On this count, the amount, which has been arrived at by the applicant, is Rs.101,01,60,000/- (Rupees One Hundred One Crores One Lakh Sixty Thousands Only) for not obtaining necessary prior EC, CTE & CTO as mandated under EIA Notification, 2006, Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981. Over and above that, an amount of Rs.44,51,40,590/-(Forty Four Crores Fifty One Lakhs Forty Thousands Five Hundred Ninety Rupees) is also added for illegal construction of more than 20,476.59 M² out of 31,389 M² without obtaining the CTE and without amending the Environmental Clearance by the Project

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Proponent, on the basis of provisions laid down in Goel Ganga’s Case, [(2018) 18 SCC 257]. Hence, total amount of EDC is calculated to the tune of Rs.101,01,60,000/- + Rs.445140590/- = Rs.145,53,00,590/- (One Hundred Forty Five Crores Fifty Three Lakhs Five Hundred Ninety Rupees) to be levied from the Project Proponent.

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Respondent No.5- MCGM has filed reply affidavit dated 05.04.2023 before this Tribunal, wherein it is submitted that PP has not started construction of basement on site. However, basement is approved below building no.3 by the answering respondent as per the regulations in force, which is annexed as Exhibit ‘A’ to the affidavit. PP has submitted test result of ground water samples, which is found satisfactory and does not indicate any contamination. The PP has complied with the conditions of IOD dated 23.03.2007, before asking for commencement certificate from respondent No.5. Thereafter only commencement certificate was issued at various stages of the proposal. The Environment Clearance was issued on 25.06.2007 for total built-up area 31,389.89 sq. mtrs., which did not have validity period. However, approval of the Municipal Commissioner was obtained, wherein it was mentioned that revised Environmental Clearance would be obtained before issuing further commencement certificate if total built-up area exceeds 31,389.89 sq. mtrs. Therefore till date, Full CC is issued only to Building no.1 as per last approved plans i.e. upto 34 floors and till date, CC was issued to Building no.2 up to only 16^th floor, whereas plans are approved for total 18 floors. Till date, CC upto only basement top was issued to Building no.3, whereas plans were approved for Basement + Stilt + 3 podium levels.

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It is further submitted in this affidavit by respondent No.5 that the total Built-up Area, for which plans are approved, is 31,742.15 sq.m.

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However, Commencement Certificate was not issued for upper two floors in building no.2 and for upper floors above plinth in building no.3. The total constructed area on site as per the approved CC is 29159.58 sq. mtrs., which clearly demonstrated that the commencement certificate issued was not exceeding Total Built-up area of 31,389.89 sq. mtrs. for which Environment Clearance is already obtained.

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It is further submitted in this affidavit by respondent No.5 that as regards the issue of Consent to Establish and Consent to Operate, it is submitted that the respective consents were not insisted as IOD conditions. These consents were insisted in Environment Clearance Certificate. Therefore, the responsibility of obtaining Consent to Establish and Consent to Operate is with the project proponent. The answering respondent insisted compliance of all infrastructure as per Environment Clearance and its certification from MPCB before issuing Full Occupation Certificate to the project. As on date, the project is not completed and hence, full occupation certificate is not issued to the Project Proponent. Open spaces are provided as per approved plans on site. The developed RG as per the approved plan will be insisted before issuance of Full Occupation Certificate. PP has planted trees on site. A copy of site inspection report of Garden Department is annexed as Exhibit 'F'. Project Proponent has provided the ramp slope as per approved plans. Project Proponent has provided the site margin as per the approved plan, which was verified by the answering respondent before issuing CC to the above plinth level.

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It is further submitted in this affidavit by respondent No.5 that there exists only one bore well on site, for which permission was obtained by the Project Proponent from Dy. Insecticide Officer 'E' Ward, competent authority of the answering respondent, on 14.09.2007, a copy of which is annexed as

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Exhibit 'G'. The PP has informed that the solar system will be fixed before applying for full occupation certificate, as construction activity is not yet completed on site. Hence, the same will be insisted before full OC. The PP has provided Rain Water Harvesting System. The construction project, undertaken by the Project Proponent, is a redevelopment project under regulation 33(7) of the DCR 1991, which specifically articulated for redevelopment of existing cess structures existing prior to the year 1969. Therefore, it is evident that the land under consideration is neither agricultural land nor virgin land. The land under consideration was containing existing building built on it. Hence, there was no top layer of fertile soil in existence. Moreover, the excavation for basement is not yet started on the site. If any fertile soil is encountered during such excavation then the PP will be instructed to preserve the fertile soil.

¶112

It is further submitted in this affidavit by respondent No.5 that the authority to assess fire safety of the project i.e. Chief Fire Officer of the answering respondent had issued NOC for the building plans, who verified the fire protection system installed by the PP before issuing NOC for part occupation purpose. The answering respondent approved the plans by considering the road width as shown in the approved Development Plan and hence, there is no obstruction for vehicular movement due to this project and no cause of traffic congestion. The PP has submitted Environment Management Plan, which is annexed as Exhibit ‘I’. Having cited abovementioned facts, it is submitted by respondent No.5 that no cause of action has arisen against the Project Proponent and that against it, application should be dismissed.

¶113

Respondent No.4- MPCB has filed reply affidavit dated 12.04.2023, wherein it is submitted that Consent to Establish was granted by the

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Respondent Board to respondent No.8-Project Proponent on 5/11/2009 for the project in question, which was valid till commissioning of the project or five years, whichever is earlier, a copy of which is annexed as Exhibit-A. It is further submitted that in view of the non-compliances observed by the Board Officials, during the visit made at the site of respondent No.8 on 11/10/2021, had issued Proposed directions on 12/11/2021 for failure to revalidate the Environmental Clearance from the Competent authority, for not revalidating Consent to Establish and for not obtaining Consent to Operate. The STP of capacity of 150 CMD was provided, however, the same was not found in operation at the time of visit nor did it provide OWC for the treatment of organic waste and also failed to obtain NOC from the Central Ground Water Authority.

¶116

It is further submitted in this affidavit by respondent No.4- MPCB that Respondent No.8-Project Proponent had applied for Consent to Establish (Revalidation) on 10/3/2022. Upon scrutinizing the said application, it was observed that Respondent No.8-Project Proponent had failed to submit compliance of the Proposed Directions dated 12/11/2021, despite that it handed over the occupancy without obtaining consent to operate, applied with increased investment as compared to earlier obtained consent to establish, not paid adequate consent fees etc. Thereafter, by issuance of Show Cause Notice for refusal of Consent to Establish (Revalidation) on 5/5/2022, the said non-compliance was brought to the notice of respondent No.8-Project Proponent. Vide letter dated 25/5/2022, respondent No.8 had submitted unsatisfactory reply and also handed over the possession without obtaining Consent to Establish (Revalidation), Consent to Operate and also failed to submit revalidated Environmental Clearance, in view of which, Consent to Establish (revalidation) was refused

¶117

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by the Respondent-Board vide letter dated 29/03/2023. Respondent No.8 also failed to submit reply to the Show Cause Notice dated 15.06.2022. Therefore, respondent No.4- MPCB refused 1^st Consent to Operate vide letter dated 28/03/2023, which is annexed as Exhibit- F.

¶119

Respondent No. 8- M/s. Castle Realtors Pvt. Ltd./Project Proponent has filed reply affidavit dated 26.06.2023, wherein it is submitted that answering respondent envisaged developing two buildings in the project in question i.e. (A) Building No.1 - All RCC work is completed including Fire Lift; all internal civil and finishing work has been completed except, part lobby finishing work from 28^th floor to Terrace, Access to 2901, 2902, 2903 and 2904, external painting on south, Staircase Painting Final coat, Swimming pool finishing work, Fire Escape staircase, 3 passenger lift extension to 28^th floor’s roof and Installation of fire lift. The answering respondent has obtained part Occupation Certificate and handed over possession to the non-cessed tenants/occupants and prospective Purchasers upto 26^th Floors; and (B) Building No.2A — casting of 17^th Floor slab (flat no.3, 4, 5 and 6) completed; Casting of Core Slab 18^th Floor completed; Columns for Core slab 19^th floor completed including staircase case upto mid landing. The answering respondent has obtained part Occupation Certificate and handed over possession to the tenants /occupants upto 12^th Floors; (C). Building No.2B — Pile caps, Tie beams for Rehab. Shop No.1 to 6 completed; Gr. Floor Slab Beams and Columns construction work of one of the shop is completed. It is informed that Building 2A and 2B are wings of the same building 2 and share the same podium.

¶120

It is further mentioned in this affidavit by respondent No.8-PP that answering respondent has obtained the permissions in furtherance of

¶121

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developing the said project, which are narrated in para no.10 from subclause A to Y. With respect to allegation of construction having been done by respondent No.8 in violation to the Environmental Clearance (EC), it is submitted that EC was granted to it under EIA Notification 1994 with subsequent amendment in July 2004. As per the then applicable EIA Notification i.e. EIA Notification 1994, conceptual plans of a real estate project was considered for the purpose of granting Environment Clearance as in contrast to the EIA Notification 2006, wherein the building plans and the built up area are considered. The said EC has been granted for 197 flats and for a total built up area of 31,389.89 sq. mtrs., Total water requirement = 137 cu. m./day, Total waste water generation to be treated in an STP = 150 cu.m/day, and total solid waste generated = 4968 MT/day and that the said EC does not stipulate any validity period.

¶123

It is further mentioned in this affidavit by respondent No.8-PP that as per the construction carried out on the land in question, in line with the approved plan dated 28.08.2020, the total number of flats are 195 and the total built-up area is 28,719.55 sq. mtrs., which are well within the EC granted. A copy of the approved plan dated 28.08.2020 and the architects’ certificate of the same is annexed as Exhibit-X. It is further submitted that the judgment passed in Goel Ganga and/or the concept of change in the scope of the project, as defined under EIA Notification 2006, is not applicable to the said project because the EIA Notification 2006, at the time of grant of environment clearance, examines FSI, non-FSI, built up area and the actual plans of a project, while in the case in hand, environment clearance is granted under EIA notification 1994 read-with subsequent amendment. As per EIA Notification 1994, conceptional plans were examined and factors such as consumption of water, solid waste

¶124

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management, wastewater generation etc. were considered and thereafter, EC was granted on the basis of number of homes and total area which can be constructed. In the case in hand, admittedly, the EC is granted for 197 flats and for a total built up area 31,389.89 sq. mtrs., while respondent No.8 has constructed only 195 flats having built up area of 28,719.55 sq. mtrs. Therefore, concept of change of the scope as stipulated under EIA Notification, 2006 would not be applicable to the said project.

¶126

It is further mentioned in this affidavit by respondent No.8-PP that the EC dated 25^th June, 2007 would show that it does not have an expiry of validity period. Hence, it is well settled principle of law that once construction commences in furtherance of a valid environment clearance granted under the EIA Notification 1994 read-with the amendment effected in July 2004, the same remained valid till the completion of the construction. With this view, EC is valid and subsisting even as on date. It is further submitted by respondent No.8 that in the cases in which EC was obtained under the EIA Notification 1994, amended in July 2004, for real estate project, there was no requirement of revalidation when construction had commenced. As per MoEF Notification dated 21.08.2013, it is clarified that in cases where EC was issued by MoEF under EIA Notification, 1994 amended in July 2004 for development of Residential-cum-commercial project and the project proponent had commenced construction activity, there would be no requirement of applying for revalidation of the Environment Clearance. A copy of the MoEF Notification dated 21.08.2013 is annexed as Exhibit X-1.

¶127

At this stage, we have gone through the above-mentioned Notification dated 21.08.2013, which is annexed at page nos.741 to 743 of the paper book, wherein following is recorded:-

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“9. Now, therefore, in exercise of the powers conferred under subsection (1) and clause (xiv) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986, read with sub-rule (4) of Rule 5 of the Environment (Protection) Rules, 1986 the Central Government hereby clarifies that in the notification of the Government of India in the Ministry of Environment and Forests, vide number S.O. 356 (E), dated the 4^th May, 1994, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii), dated the 4^th May, 1994 the expression "for a period of five years", shall mean "for a period of five years for commencement of the construction or operation and not five years from commencement of the construction or operation”.”

¶130

Now, at this very stage, we would like to note the argument made by learned counsel for the applicant. During argument, he has submitted before us that respondent No.8-Project Proponent has built 3 buildings in place of 2 buildings, EC sanction of which has been obtained by it under EIA Notification 1994, therefore, that would amount to change in scope of the project. In this regard, our view is that EC has been clearly granted under EIA Notification, 1994 read-with amendment dated 07.07.2004. The original EC shows that EC was granted for the construction of 197 flats with total built up area 31,389.89 M² , as against that evidence has come on record by way of the Joint Committee Report as well as admission of the applicant that so far total BUA permitted has not been exceeded, as the total construction till now, done by respondent No.8- Project Proponent is only to the extent of 28,719.55 sq. mtrs. only. However, in respect of 2 buildings, now the number of buildings has gone up by one, as the 3^rd building has also been constructed. But we find mentioned in the Joint Committee Report that the Plans, which were sanctioned by respondent No.5- MCGM dated 23.03.2007, indicates configuration of 3 buildings i.e. Bldg. No.1-Stilt + 1^st to 3^rd (Podium) + 4^th to 21^st upper floors; Bldg. No.2Stilt + 1^st to 3^rd (Podium) + 4^th to 16^th upper floors; and Bldg. No.3- Ground Floor. Therefore, after this sanction made on 23.03.2007, Environmental Clearance (EC) has been issued on 25.06.2007, which is apparently the

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date subsequent in point of time. This is discrepant because once the sanction was made by respondent No.5- MCGM for 3 buildings, how the number of buildings came to be reduced in EC to that of 2, is not comprehendable. It might be a clerical error, which should have been explained by the Ministry of Environment, Forest & Climate Change (MoEF&CC). But we do not have reply from the said Authority in this case despite having been given an opportunity. Therefore, we deem the number of buildings, given in the sanctioned plan, to be correct and as per that, there does not appear to be any violation on the part of respondent No.8 and hence no change of scope has been done by it.

¶133

From the angle of total number of flats, we find that instead of 197 flats, which were sanctioned to be constructed, only 195 flats are constructed. Therefore, we do not find any violation simply because some flats might have been enhanced in a particular building and reduced to the other so that the total BUA does not exceed the permissible limit. Therefore, in this case, we do not find that limit to have been crossed/violated. Because of this region, we do not find any EC violation to have been done by respondent No.8- Project Proponent.

¶134

Regarding rest of the violations with respect to allegation for noninstallation of Waste Management System, it is further submitted in the reply affidavit of respondent No.8-PP that it has installed and operated STP having capacity of 150 CMD.

¶135

In regard to the above, we are of the view that the setting up of STP falls under Consent Regime and before obtaining the Occupation Certificate from the MCGM, respondent No.8-PP should have obtained Consent to Operate from the MPCB because once people start living in the flats in

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question, certainly pollution would happen and for remedying the pollution likely to happen from such occupation, STP was required to be made operational, which is possible only after obtaining CTO.

¶138

The Joint Committee has also noted in its report that the Project Proponent without obtaining CTO from MPCB had given possession to the tenants of building Nos.1 & 2 and also obtained part Occupancy Certificate for the said building on 27.04.2017, hence the same was treated to be a violation and the violation period was counted from 27.04.2017 when the Completion Certificate was issued up to the Order passed by NGT dated 22.07.2021. We find that the Joint Committee has committed an error in taking the period of default up to 22.07.2021, because as per affidavit of R- 8-PP, page 805, STP of capacity 150 KLD was commissioned on 11-11-2021 and as per the Joint Committee Report, page 133, STP was found operational on 1.12.2021.Hence, the days of default will be from 27.04.2017 to 11.11.2021. Thus, the period of violation which resulted in damage to environment will be 1659 days. During this period the STP was not operational and untreated sewage was discharged. Based on this, as per “Report of the CPCB In-house Committee on Methodology for Assessing Environmental Compensation and Action Plan to Utilize the Fund” which outlines a formula for imposing environmental compensation on industrial units for violation of directions issued by regulatory bodies listing the instances for taking cognizance of cases fit for violation and levy environmental compensation. The same has also been referred by this Tribunal in its order (para 14 to 16) dated 28/8/2019 in the matter of Original Application No. 593/2017 titled Paryavaran Suraksha Samiti & Anr. Versus Union of India &Ors. EDC will work out as – 80 x 1659 x 250 x 1.5 x 2 = Rs. 9,95,40,000/- instead of Rs.8,73,60,000 worked out by the

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Joint Committee. At this point, we feel that would also be appropriate to consider doctrine of proportionality. It is on records that R-8-PP has installed and commissioned STP of capacity 150 KLD which was found operational by the Joint Committee. No other significant violations are found. As per the application for CTO submitted by R-8-PP to MPCB dated 29-03-2022 on page 705, cost of project is stated as Rs. 4032.70 lakh. Hence, EDC Rs.145,53,00,590/- as proposed by the Applicant or EDC Rs.9,95,40,000/- worked out as per CPCB methodology, in our opinion, is violative of doctrine of proportionality. As per the Supreme Court order in Goel Ganga, CIVIL APPEAL NO.10854 of 2016-

¶141

“57.Having held so we are definitely of the view that the project proponent who has violated law with impunity cannot be allowed to go scot-free. This Court has in a number of cases awarded 5% of the project cost as damages. This is the general law……”

¶142

Hence, applying the doctrine of proportionality, we have worked out EDC as (5/100) x 40.32 = Rs. 2.02 crore. 38. As regards allegations with respect to non-installation of rain water harvesting system; ground water extraction; plantation; preservation of top soil; and installation of DG sets, respondent No.8-PP has already submitted that all these facilities have been provided and the same has also been conceded by the MCGM in their reply, which is cited by us above. Therefore, we do not find any violation to have been committed on account of these issues by respondent No.8-PP. In the reply affidavit of respondent No.8, we find that it has also mentioned objections against the Joint Committee Report stating therein that the Joint Committee has confused between the two Wings of Building No.2 to be independent building, which are two Wings i.e. 2A and 2B of Building No.2. In fact, there are nothing but one and the same building sharing the same podium.

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¶144

Apprehension is expressed by respondent No.8-Project Proponent that the Joint Committee has come to the conclusion that there are three buildings. But the building No.3 as referred to in the building sanction plan is nothing but the rehab component comprising of merely a basement and a shop for rehabilitation.

¶145

With respect to Consent to Establish and Consent to Operate, it is submitted in the affidavit of respondent No.8 in para no.37 that as on date, development with respect to the said project is purely residential, except a non-residential unit for the Rehabilitation Component. It is well settled principle of law that the provisions relating to obtaining Consent to Establish and Consent to Operate under the Water (Prevention and Control of Pollution) Act, 1975 and the Air (Prevention and Control of Pollution) Act, 1981 is not attracted with respect to a residential project, as the same is not an industry operation and/or process within the meaning of the aforesaid two Acts. The said position has been confirmed by the Hon’ble Delhi High Court in Spelndor Landbase Ltd. vs. Delhi Pollution Control Committee & Ors. dated 30.09.2010. Therefore, there is no requirement of obtaining Consent to Establish and/or Consent to Operate with respect to purely residential projects. It is further submitted in this affidavit by respondent No.8 that the Joint Committee has further calculated an amount of Rs.8,73,60,000/- by way of environmental compensation for not obtaining Consent to Operate without even giving an opportunity of hearing to respondent No.8, which amounts to gross violation of principle of natural justice.

¶146

We find that rest of the facts, which are stated in the reply affidavit of respondent No.8, are nothing but repetition of earlier facts.

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¶148

The main emphasis laid by learned counsel for the applicant is that the Organic Waste Convertor (OWC) has not been installed of appropriate capacity by the Project Proponent. The OWC of only 300 kg. has been installed by the Project Proponent, while in the EC, solid waste generated is recorded to be 4968 kg/day. Therefore, it is urged by learned counsel for the applicant that the plant with the capacity to deal with 300 kg. per day solid waste would be smaller plant to deal with such huge solid waste being generated, for which OWC of higher capacity was required to be put in place, which has not been done by the Project Proponent. In this regard, our view is that the MPCB shall be the appropriate authority to assess as to of what capacity Organic Waste Convertor (OWC) Plant is required to be installed to take care of the solid waste of 4,968 kg/day comprising of biodegradable components of the waste. Whatever direction is issued in this regard by the MPCB will have to be followed by respondent No.8- Project Proponent, for which we direct respondent No.8 to submit a Bank Guarantee (BG) to the MPCB for installation of the same and in case the same is not set up within the time provided, Bank Guarantee (BG) would be forfeited.

¶149

As per the Joint Committee Report, solar system panels have not been installed by respondent No.8- Project Proponent. For this also, we will issue a direction for its installation.

¶150

The main emphasis laid by learned counsel for the applicant is that the Organic Waste Convertor (OWC) has not been installed at appropriate capacity by the Project Proponent. The OWC of only 300 kg. has been installed by the Project Proponent, while in the EC, solid waste generated is recorded to be 4968 kg/day. Therefore, it is urged by learned counsel for the applicant that the plant with the capacity to deal with 300 kg. per day

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solid waste would be smaller plant to deal with such huge solid waste being generated, for which OWC of higher capacity was required to put in place, which has not been done by the Project Proponent.

¶153

At this stage we tried to calculate per flat solid waste generation which works out as 4968/195 =25.5 kg/flat/day which looks absurd. MPCB CTE dated 05-11-2009 on page 164 state biodegradable waste as 476.0 kg/day which works out as 476/195=2.4 kg/flat/day which is more objective assessment. Quantity 4968 kg/day stated in EC letter seems to be clerical error and it should have been, at the most, 496.8 kg/day.

¶154

In view of above, our view is that the MPCB shall be the appropriate authority to assess as to what capacity of Organic Waste Convertor (OWC) Plant is required to be installed to take care of the biodegradable solid waste and whether additional OWC plant is required. Whatever direction is issued in this regard by the MPCB will have to be followed by respondent No.8Project Proponent, for which we direct respondent No.8 to submit a Bank Guarantee (BG) to the MPCB for installation of the same and in case the same is not set up within the time provided, Bank Guarantee (BG) would be forfeited.

¶155

As per the Joint Committee Report, solar system panels have not been installed by respondent No.8- Project Proponent. For this also, we issue a direction for its installation before issue of final Occupation Certificate.

¶156

Much emphasis is laid by learned counsel for respondent No.8 on that there is no actual pollution caused by respondent No.8, which might have been assessed by the Joint Committee and therefore, whatever amount is being proposed to be levied from respondent No.8 in its report, is

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erroneous and the same should be set aside. In fact, no amount is required to be levied from the Project Proponent and that the present application should be dismissed.

¶159

Learned counsel for the applicant has argued that Consent to Establish was not revalidated after expiry of 5 years by respondent No.8. However, we find that Ministry of Environment and Forest has come out with the Notification dated 12.11.2024 bearing No.G.S.R. 703(R), which says that the Central Pollution Control Board (CPCB) exempts the following categories of industrial plants from the application of the provisions of the said sub-section, namely………“(b) all industrial plants which have obtained prior environmental clearance as per the notification of the Government of India in the erstwhile Ministry of Environment and Forests number S.O. 1533(E) dated the 14^th September, 2006 issued under the Environment (Protection) Act, 1986 (29 of 1986), in respect of previous consent to establish such plant”. The Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 provides as under:-

¶160

“ 25.RESTRICTIONS ON NEW OUTLETS AND NEW DISCHARGES. - [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,-a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

¶161

b) bring into use any new or altered outlets for the discharge of sewage; or

¶162

c) begin to make any new discharge of sewage;

¶163

Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has

¶164

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made an application for such consent, within the said period of three months, till the disposal of such application.”

¶166

In view of above, we are of the view that since the construction is covered under ‘CPCB categorization of industries’ in Orange Category in the year 2016, this Notification will be applicable to the present project, hence we consider that non-revalidating Consent to Establish may not be considered non-compliance.

¶167

After having heard the arguments of learned counsel for all the parties and having perused the entire record, which we have already noted above, we are of the view that we have already noted above that there is no violation of the EC conditions, as the project in question is an ongoing project, wherein the total Built-Up Area (BUA) of 31,389.89 sq. mtrs. has not been exceeded so far and as regards the number of buildings, explanation has already come above and also, we find that there is no exceeding the number of permissible flats i.e. 197 because so far only 195 flats have been completed, hence we have already held that there is no violation as per the EC condition is concerned, which has been granted under the EIA Notification 1994. But with respect to other violations, which are cited above, out of them only two violations are found to be there, mainly with respect to non-setting up of OWC of adequate capacity and non-installation of the solar system. For these facilities to be installed, we direct respondent No.8- Project Proponent to install the same within a period of 6(six) months from the date of uploading of this Judgment, subject to submitting a Bank Guarantee to the tune of Rs.50 lakhs, which would stand forfeited, in case these facilities are not put in place within the time period. The said Bank Guarantee shall be deposited with the MPCB within one month of uploading of this Judgment.

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¶169

With respect to the STP having been not operated despite the possession having been given to the flat owners, it is apparent that pollution certainly must have happened. It has come on record in evidence that no Consent to Operate was obtained by the Project Proponent before giving the possession to the flat owners and obtaining the Occupancy Certificate. Therefore, from the date of Occupancy Certificate having been issued i.e. on 27.04.2017 to till the date of application applying for Consent to Operate i.e. 29.03.2022 would be treated to be the period of violation and for this, adequate compensation is required to be levied from the Project Proponent.

¶170

In view of above, we dispose of this application with the following directions:-

¶171

(i). Respondent No.8- M/s. Castle Realtors Pvt. Ltd./Project Proponent shall deposit a Bank Guarantee of Rs.50 lakhs for installation of Organic Waste Convertor (OWC) with appropriate capacity and solar system within a period of six months from the date of uploading of this Judgment. The said Bank Guarantee shall be deposited with the MPCB within one month from the date of uploading of this Judgment.

¶172

(ii). An amount of Rs.2.02 crore shall be deposited by respondent No.8 with the MPCB, which shall be utilized for improvement of the environment in the area in question within one month.

¶173

(iii). Since we find that the project is ongoing, in case at any point of time, Respondent No.8M/s. Castle Realtors Pvt. Ltd./Project Proponent exceeds the permissible area of

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31,389.89 sq. mtrs., it will be incumbent upon it to seek fresh EC under the EIA Notification, 2006.

¶176

Pending I.A.s also stand disposed of.

¶177

Dinesh Kumar Singh, JM

¶178

Dr. Vijay Kulkarni, EM

¶179

February 03, 2025 Original Application No.49/2021(WZ) I.A. No.49/2021(WZ) & I.A. No.146/2023(WZ) P.Kr.

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Sayyed Mohammed Sabir Usman v. Union of India through Secretary Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

Sayyed Mohammed Sabir Usman v. Union of India through Secretary Ministry of Environment Forest & Climate Change

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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