Projects with plinth-level construction before EIA 2004/2006 amendments exempt from clearance; NGT applications time-barred beyond 6 months from knowledge; expert remediation assessments prevail over lay calculations.

JUDGMENT

1. 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 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.

2. 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.

3. 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 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.

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 proceed