Aditya Jakhar vs State of Haryana

The issue for consideration is the remedial action against unscientific disposal of sewage by Sare Homes Society at Gurgaon, Haryana, causing health hazard in the area. A report was sought from the District Magistrate, Gurgaon and the State Pollution Control Board (SPCB) and thereafter the matter was considered on 14.02.2020 in light of reports dated 27.11.2019 and 13.02.2020 finding serious violation of environmental norms. The Tribunal accordingly directed remedial action. Operative part of the discussion and order is as follows:-

"5. It has been seen in the recent past that allegations of non-compliance of environmental norms as well as conditions of grant of Occupancy Certificates are being flagrantly violated by project proponents of group housing projects in the State of Haryana. Action is initiated only after directions of this Tribunal, on receiving complaints. It is not clear as to what are the safeguards incorporated by the Town & Country Planning Department, SEIAA and PCB to prevent or remedy such situation at the ground level. Effectiveness of monitoring mechanism post clearance as well as examination pre-clearance appear to be open to question.

1 Vide order dated 23.10.2019 in O.A No. 764/2018, Kissan Udey Samiti v. State of Haryana & Ors., this Tribunal, while dealing with serious violations of environmental norms by TDI Infrastructure etc at Kudli, Sonepat and inadequate action by the authorities in the matter, inter-alia, observed:

"9. In the light of above settled principles, the action taken by the SPCB does not match the facts found in the inspection report dated 16.07.2019 filed by a joint Committee comprising of officers of the State Government. The violations, noted above, are of very serious nature and possibility of collusion of the officers of the State is not ruled out in permitting such violations and in failing to take requisite actions. The compensation assessed being grossly inadequate and disproportionate and the action of the SPCB being too slow shows the SPCB lacks necessary sensitivity for enforcing the rule of law or there is collusion at some level to cover up the illegality.

We accordingly direct the Chief Secretary, Haryana to consider referring the matter to vigilance or otherwise to ascertain intentional and collusive violation of law. The Chief Secretary may also oversee remedial action for speedy enforcement of environmental norms in the interest of health of the inhabitants."

Vide order dated 21.11.2019 in O.A No. 506/2019, Mukund Dhote v. Union of India & Ors., while dealing with serious violations of environmental norms by Vista Heights, Sector 86, Faridabad and inadequate action by the authorities in the matter, this Tribunal inter-alia, observed:

"5. The above shows serious and consistent defaults in compliance of EC conditions and complete disregard for environmental norms. As against requirement of two STPs, only one has been installed, creating environmental hazard. Water discharged from the STP is not as per norms. Treated water was to be used for flushing and unused water is to be sent to public sewer, which was not being done. Ground water is being illegally extracted. There is no provision of segregation of solid waste. Parking and green belt have not been provided and solid waste is not being properly handled. Noise level monitoring data is not being maintained. STP waste water is being discharged into unknown land. Water harvesting pits are not clean. Consent to Operate has not been renewed, apart from other defaults as noted in the above report.

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We find merit in the submissions made on behalf of the applicant. There are other instances of non-compliance in the construction projects in Haryana dealt with by this Tribunal (Vide order dated 23.10.2019 in Kissan Udey Samiti Vs. State of Haryana & Ors.- O.A. No. 764/2018 , the Tribunal observed: "5. From the above report, violations of Environment laws by the units in question can be briefly summed up as follows: a) No prior Environmental Clearance & CTE was obtained b) The projects have been constructed without obtaining Environmental Clearance and without CTE/CTO from HSPCB. c) In terms of STP, the deficiencies observed during sampling relates to absence of flow meter at the inlet of STPs, non-maintenance of log book, the outlet of STPs are exceeding the prescribed limits of board, etc. d) Untreated effluents from STPs are being discharged either through tanker or on open land near village Nagal for percolation. e) The units are non-complying with SWM Rules and no facility for collection segregation and disposal of solid waste exists. Vide order dated 13.09.2019 in OA 661 of 2018, the Tribunal noted serious violation of environmental norms by Ansal Properties, Sushant Lok Phase - I, Gurgaon, and directions for remedial action were issued.). In view of such defaults, having potential for damage to environment and public health, the State needs to focus on remedial steps against such violations by the housing projects after evolving an appropriate monitoring mechanism. In this regard, SEIAA and State PCB may conduct a survey of such projects in the State and furnish a status report.

We have also found inadequacy in monitoring mechanism of compliance of EC conditions and directed the MoEF&CC to monitor such projects with regard to compliance of conditions of EC effectively and furnish a compliance report. Monitoring is being done after years while violations are rampant (O.A. NO. 837/2018, Sandeep Mittal v. MoEF&CC).

Accordingly, we direct the Chief Secretary, Haryana to urgently review the mechanism with the heads of the State PCB, Town and Country Planning and the SEIAA to enforce the rights of citizens to clean environment. Safeguards need to be incorporated and mechanism for monitoring compliances of environmental norms by all the group housing complexes needs to be strengthened on urgent basis. Safeguards may include requirement to furnish guarantees, including personal guarantees by the Directors of the project proponents, so that the State machinery is not helpless to remedy the situation after the project is complete and the project proponent has left, leaving the authorities and the inhabitants without any adequate safeguards. The remedial action may include a seizing of properties of the project proponent who are violating the law and black listing them to avoid repeated harassment to the citizens.

Accordingly, we direct State of Haryana and the State PCB to take further remedial action by way of appropriate coercive measures including black listing of the project proponent from undertaking such projects in future till environmental norms are fully carried out, sealing and taking possession of public utility spaces in the project, sealing and taking over of vacant flats if any, requiring compliance of other remedial steps. A representative of Town and Country Planning, Haryana may also be associated. Revised compensation may be assessed and recovered on the pattern of earlier orders of this Tribunal noted above by a joint Committee MoEF&CC, CPCB and State PCB. State PCB will be the nodal agency. We determine interim compensation of Rs. 10 Crores to be deposited by the project proponent with the CPCB within one month subject to final assessment of such compensation by the Committee after giving due opportunity to the project proponent. Interim compensation is determined on the basis of size of the project, financial capacity of the project proponent and magnitude of the violations. A further action taken report may be furnished before the next date by e-mail at [email protected] by the State PCB."

Vide order dated 05.02.2020 in O.A No. 661/2018, Praveen Kakar & Ors. v. Ministry of Environment& Forests & Ors., this Tribunal, while dealing with serious violations of environmental norms by Ansal Properties and Infrastructure Limited at Gurgaon and inadequate action by the authorities in the matter, inter-alia, observed:

"8. In view of the above serious violation of law, including non-payment of assessed compensation of Rs. 16.729 crore (as per report of CPCB quoted above) for discharge of untreated sewage water, apart from compensation for illegal extraction of ground water required to be paid at the rate of Rs. 40,44,000.00 per annum (as per report of CPCB quoted above), we require the Chief Secretary, Haryana to suggest the mechanism for enforcement of Rule of Law and also to prevent such illegalities in the State. The Chief Secretary may explore action against the collusion by the concerned officers of the State PCB, the Town and Country Planning Department or other State authorities for their failures mentioned above including the officers who agreed for insignificant compensation of one lac by way of plea bargaining in spite of conviction for serious offence. In this regard, action of black listing, attaching available assets of the defaulting builder may also be considered, apart from other coercive measures. Such a report be furnished by e-mail at [email protected] within one month.

It will be open to the State of Haryana to bring to the notice of any Authority where proceedings involving the said party may be pending the above defaults. The Chief Secretary may also explore whether the matter needs to be entrusted to CBI.

That apart, considering the seriousness of the breach of the environmental laws by the project proponent where even EC has not been obtained for such a mega project, the MoEF&CC besides taking action as provided in statute may also consider working out a mechanism for mitigation measures to offset the damages already caused to the environment and for taking precautionary measures for anticipated future damages."

We also find that huge delay is caused by the State PCB in assessing and recovering the compensation defeating the deterrence object which can be achieved by prompt penal action. The said mechanism also needs to be streamlined.

Let an action taken report be furnished by the Chief Secretary, Haryana within one month by e-mail at [email protected]."

Thereafter, the matter was considered on 01.10.2020 in the light of report of the Chief Secretary dated 30.09.2020, about the steps taken in the matter, which included revocation of Consent under the Air (Prevention & Control of Pollution) Act, 1981 and Water (Prevention & Control of Pollution) Act, 1974, compensation assessment on polluter pays principle, decision to initiate prosecution and decision to survey of similar projects in the State to initiate similar action and evolving strong monitoring mechanism. The Tribunal directed further stringent action in the matter. Operative part of the order is reproduced below:-

"3. Accordingly, a report has been filed by the Chief Secretary, Haryana on 30.09.2020 as follows:-

"In this regard, it is submitted that the matter has been reviewed at the level of undersigned through the meetings held on 17.07.2020 and 11.08.2020, with the stakeholder Departments of Town and Country Planning, Environment and Climate Change and Power and authorities / agencies of SEIAA, HSPCB, to finalize the mechanism for monitoring compliances of environmental norms by all the group housing complexes in compliance of the directions issued by Hon'ble Tribunal. Further the following actions have been taken by the HSPCB:-

Haryana State Pollution Control Board has sanctioned the prosecution against the Directors of the Project Proponent and case has already been filed in the Special Environment Court for the violations against the environmental norms. Next date of hearing is fixed on 19.10.2020.

The Board has revised its earlier environmental compensation, prepared for an amount of Rs.41.62 lakhs (as indicated in its earlier status report dated 13.02.2020), and now environmental compensation has been issued for Rs.1,69,20,000 (Rs One Crore Sixty Nine Lakh Twenty Thousand only) on the unit.

HSPCB has revoked the consent to operate under Water and Air Act vide order HSPCB/GRS-275/2020/1805 dated 27.07.2020.

HSPCB has also been directed to immediately undertake a survey of all such similar projects in the entire State and to initiate similar action against the violators.

In continuation of the meetings held at Chief Secretary level, a follow up meeting was also held at the level of Additional Chief Secretary of Environment and Climate Change Department on 14.08.2020 to finalize the draft mechanism and to strengthen the existing structure of SEIAA/SEAC in the State. Accordingly, a draft mechanism is being proposed by SEIAA the salient features of which are as below.

·         The draft mechanism is proposing to include consolidated conditions relating to different Departments/agencies/ authorities, for appropriate monitoring through proper coordination among different Departments/agencies.

·         The proposed mechanism will assess and review the progress of various mitigation measures imposed in the EC issued for Category B projects under the EIA Notification by SEIAA through the Monitoring Cell, headed by DG, Environment and Climate Change Department, who is also the Member Secretary of SEIAA. The Monitoring Cell shall include Joint Director of Environment and Technical Executive Officers supported by three Technical Officers in the rank of Scientists/ Engineers in the respective fields of expertise. Further, the Monitoring Cell will also have adequate administrative and field staff, including Sectoral Coordinators and Domain Area Experts, as determined by the Environment Department.

·         As far as imposition of conditions are concerned, it has been decided to take up the issue with HRERA and TCP Department for making provisions in its regulations for registrations of building construction and area development projects with detailed provisions for submission of arrangements and facilities to be provided to control environmental pollution and waste management including measures like greenbelts, conservation of water, ambient air quality monitoring facilities, waste recycling provisions, etc.

·The TCP Department shall also include conditions, seeking NOC from Power Department before granting OC to the developers and TCP Department shall also earmark requisite land for sub-stations at the time of approving the layout plan for the projects. TCP Department has also been directed to explore and impose conditions, as indicated by Hon'ble Tribunal for regulating the environmental norms in the projects.

·         This mechanism will be finalized by Department of Environment and Climate Change and will be adopted in the State after due approval of the competent authority, including MoEF & CC. We expect the same to be in place within next three months, i.e., by November 2020.

Therefore, as indicated in the above paras, the State is finalizing its mechanism for monitoring the conditions and environmental norms imposed by various authorities and agencies, which is likely to be in place soon. The above interim report may kindly be taken on record and an additional period of two months time may kindly be granted for filing of the final report as directed by the Hon'ble NGT vide its order dated 14.02.2020."

We have already noticed unsatisfactory state of affairs of compliance of environmental norms in the State of Haryana in the context of fragrant violation in process of building projects and several matters including OA No. 661/2018, Praveen Kakar & Ors. v. Ministry of Environment & Forests & Ors., OA No. 764/2018, Kissan Udey Samiti v. State of Haryana & Ors., OA 155/2020, Manorama v. TDI and OA No. 506/2019, Mukund Dhote v. Union of India & Ors. listed today.

The action taken so far is inadequate. Further stringent compliance regime has to be applied for protection of environment and public health and for upholding the Rule of Law. Consistent with the directions issued in the said cases, we issue similar direction in the present matter requiring the Chief Secretary, Haryana to coordinate with all concerned Departments and adopt further suitable action plan which may include remedial action for the present matter."

In pursuance of above, in his composite report filed in O.A. No. 661/2018, Praveen Kakar & Ors. v. Ministry of Environment & Forests & Ors., the Chief Secretary, Haryana has, apart from mentioning the monitoring mechanism, stated as follows with regard to the present project:-

"c. In OA No. 688/2019 (Aditya Jhakhar V/s State of Haryana)

·         HSPCB has revoked the consent to operate granted to o the unit under Water and Air Act vide its order HSPCB/GRS-275/ 2020/1805 dated 27.07.2020.

·         HSPCB has filed the prosecution for the violations against the Directors of the project in Special Environment Court, Faridabad.

·         The Board has imposed Environmental Compensation of Rs. 1.69 Cr vide order no. HSPCB/GRS275/2020/1807-1809 dated 27.07.2020 on the unit for the violations committed as per Environmental Compensation Policy framed by Board vide order dated 29.04.2019 as amended on 20.12.2019 and notice has been issued to the unit in this regard. Further it is for appraisals of Hon'ble Tribunal that against the Developer of M/s. Ramprastha Saare Township (Group Housing Complex) Saare Gurugram Private Limited, Village-Wazirpur, Meoka, Sector-92 Gurugram. The case for Insolvency and Bankruptcy Code has been accepted by National Law Tribunal (NCLT), Principal Bench New Delhi and NCLT has already vide it's order dated 01.03.2021 delivered on 09.03.2021 appointed Interim Resolution Professional. A letter dated 10.08.2021 by Regional Officer Gurugram has been already been issued to Interim Resolution Professional with request to release the payment of Rs. 1.69 Cr. In favor of Haryana State Pollution Control Board .The copies of aforementioned order dated 27.07.2020 and letter dated 10.08.2021 is hereby annexed as Annexure R/4 and R/5 respectively."

In view of above, while some steps have been taken, there is need to take further remedial action for recovery of the assessed compensation, pursuing the proceedings for prosecution of the violators and proving remedy to citizens against the violation of norms. Since none appears for the applicant to suggest what further specific orders can be passed, the application is disposed of without prejudice to the remedy of the aggrieved parties in the matter, as per law.

A copy of this order be forwarded to the Chief Secretary, Haryana, State PCB, SEIAA, Haryana and Director, Town & Country Planning Department, Haryana by e-mail for compliance.