2025 Supreme(Online)(NGT) 749

NATIONAL GREEN TRIBUNAL PUNE (WESTERN ZONE BENCH)
Dinesh Kumar Singh, Judicial Member, Vijay Kulkarni, Expert Member
SAYYED MOHAMMED SABIR USMAN – Appellant
Versus
UNION OF INDIA – Respondent
Original Application No.49/2021(WZ)|I.A. No.49/2021(WZ)|I.A. No.146/2023(WZ)

EC under EIA 1994 valid sans revalidation if BUA/flats not exceeded; EDC for STP violation proportional to 5% project cost; residential projects exempt pollution consents; compliance via BG for waste/solar systems.

Headnote:(A) Environment (Protection) Act, 1986 read-with EIA Notification, 2006 & 1994; Water (Prevention & Control of Pollution) Act, 1974 - Sections 25, 26; Air (Prevention & Control of Pollution) Act, 1981 - Section 21 - Environmental Clearance (EC) granted under EIA Notification 1994 for two buildings, 197 flats, total built-up area 31,389.89 M2 without validity period - Construction of three buildings (rehab component as third) with total 195 flats, 28,719.55 M2 held not to violate EC as BUA not exceeded and sanctioned plans showed three buildings - No change in scope requiring fresh EC - Notification dated 21.08.2013 clarifies no revalidation needed if construction commenced - CPCB Notification G.S.R. 703(R) dated 12.11.2024 exempts revalidation of consents if prior EC obtained. (Paras 32, 33, 50)

(B) Environmental Compensation - Non-operation of STP from date of part occupancy certificate (27.04.2017) to commissioning (11.11.2021) = 1659 days violation - EDC calculated as per CPCB formula: 80 x 1659 x 250 x 1.5 x 2 = Rs.9,95,40,000/- but reduced applying doctrine of proportionality and Supreme Court precedent (5% of project cost Rs.40.32 crore) to Rs.2.02 crore for environmental improvement. (Paras 36, 37)

(C) Residential projects - No requirement for Consent to Establish/Operate under pollution laws as not 'industry, operation or process' - Confirmed by High Court precedent - Non-revalidation of CTE excused due to CPCB exemption. (Paras 40, 50)

(D) Ongoing violations - Inadequate Organic Waste Convertor (OWC) capacity and non-installation of solar panels - Directions issued for installation within 6 months backed by Rs.50 lakhs Bank Guarantee to regulatory board, forfeitable on non-compliance - Full occupancy certificate withheld till compliance. (Paras 42, 47, 53)

Facts of the case:
Applicant sought demolition of illegal structures and levy of EDC against project proponent for constructing residential-commercial complex without amended EC, consents, groundwater permission, waste management, rainwater harvesting, solar systems etc., in violation of EC dated 25.06.2007. Joint Committee found partial violations including non-operational STP, inadequate OWC, no solar panels. Proponent claimed compliance within EC limits under 1994 Notification.

Findings of Court:
No EC violation as BUA not exceeded; STP non-operation caused pollution warranting EDC of Rs.2.02 crore; direct installation of adequate OWC, solar panels within 6 months with Rs.50 lakhs BG; future excess construction requires fresh EC.

Issues: Whether construction violated EC scope; quantum of EDC for STP violation; requirement of pollution consents for residential projects; remediation of waste/solar deficiencies.

Ratio Decidendi: EC under 1994 Notification valid without revalidation if construction commenced and parameters (BUA, flats) not exceeded - Doctrine of proportionality limits EDC to 5% project cost - Residential projects exempt from pollution consents - Regulatory directions with BG ensure compliance.

Result: Application partly allowed - Rs.2.02 crore EDC + Rs.50 lakhs BG directed; pending I.As. disposed.

Table of Content
1. project violations of ec, consents, environmental norms (Para 1 , 2 , 3 , 4 , 5)
2. joint committee investigation and findings (Para 6 , 7)
3. applicant's objections to committee report (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19)
4. mcgm defends project compliance (Para 20 , 21 , 22 , 23 , 24)
5. mpcb actions on consents refusal (Para 25 , 26)
6. project proponent justifies ec validity (Para 27 , 28 , 29 , 30 , 39 , 40)
7. no ec violation; stp non-operation penalty (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38)
8. directions for owc and solar installation (Para 42 , 43 , 44 , 45 , 46 , 47)
9. proportional edc and compliance orders (Para 49 , 50 , 51 , 52 , 53 , 54)

JUDGMENT

1. 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, District- Mumbai City, Mumbai, where respondent No.8- M/s. Castle Realtors Pvt. Ltd./Project Proponent has constructed the Project “NDW Aquagem”, 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.

2. 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.

3. 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 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 dev

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