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Judgment
This application has been registered to consider the compliance report filed by the Ghaziabad Development Authority (GDA), in pursuance of order of this Tribunal dated 20.08.2018 in O.A. No. 06/2018 as follows:-
“The primary grievance raised by the Applicant is that Respondents should strictly comply with the conditions of Environment Clearance Certificate dated 22nd March, 2017, which is placed on record as Annexure A/4. A bare perusal of the same in the description chart, reveals that plot area is 54630 sq. metres. There are specific conditions laid down in the said environmental clearance, wherein condition no. 10 mentions that 15 % of the total plot area shall be compulsorily made available for green belt development, including the periphery of green belt.
In the instant case, the submission of the Learned Counsel for the Applicant is that the said condition no. 10 has not been complied with as 15 % of the total plot area of 54630 sq. metres has not been kept for green belt.
Consequently, Ghaziabad Development Authority is directed to comply with the specific condition no. 10 of the Environmental Clearance. In other words, the Respondent Nos. 2, 3 and 4 are required to keep 15 % of the area as green belt out of the total plot area of 54630 sq. metres. The Development Authority shall ensure that the said requisites area is left out for the green belt. In case of noncompliance, the Development Authority would be free to take action against the Respondents, within a period of two months.
The compliance report shall be sent by Ghaziabad Development Authority to the Tribunal, which shall be listed before the Court, sooner it is received, after being registered separately.”
The Tribunal earlier dealt with the matter inter-alia on 08.07.2021, 03.02.2022 and 25.03.2022 and finding the requirement of 15% green belt in the complex had not been complied, the Tribunal issued further directions. Relevant extracts from the order are as follows:
“xxx ………………………………….xxx …………………………….. xxx
In pursuance of above, compliance report has been filed by GDA which claims partial compliance and seeking time for further action. Relevant extracts from the report are:-
“A. That the total green belt available currently in the project is 4007.55 sqm (in pocket A,B,C,D) and 7679.78 sqm (Master Green Area) which brings the total to 11687.33 which is 21.39 % of the total plot area i.e. 54630.00 which is in consonance with the EC specific condition 10 which requires 15% of the total Plot Area to be green belt.
B. That pursuant to Pocket A the major encroachments were the main entrance road whose width is more than what is approved by the authority. Also the volley ball area is developed on the green belt and toilets were also built. The authority took action on the same and destroyed both the toilets the photograph of the destruction is annexed as ANNEXURE A. The Volley Ball and Badminton Courts built on around 1364 Sqm of land was destroyed and the encroachment was removed after the destruction the said land was earth filled and plantation was done now the area is developed as Green Belt (ANNEXURE A). That in Pocket A around 355 Sqm in roads and 23.12 Sqm around the swimming Pool is still under encroachments efforts are made to remove the encroachment but the residents of the society as well as the AOA is not allowing for the same. A complaint regarding the same is also sent to SHO Kavinagar the same is annexed herein as ANNEXURE B.
The status of Pocket A as on date is herein under:-
Approved Green Belt
Green Belt as per the Re venue department and UPPCB
joint survey
Green Belt on which encroachment is removed
Green Belt available in Present
Green Belt with encroachment
2448.08
2005.81
302.17
(Badminton and Volley Ball Court)
1862
585.12
C. That pursuant to pocket B the major encroachments were the place where generators are kept and road. Both the places were covered with PCC Flooring also a panel room was built on the same. To remove the encroachment the rad was destroyed and after earth filling a beautiful green area is developed on the same the photographs are hereinafter attached as ANNEXURE C. However during this process of removal of encroachments the team faced tremendous pressure and opposition from the side of the AOA and residents (photographs of the same is hereinafter annexed as ANNEXURE D) because of the same further encroachments could not be removed. A complaint regarding the same is also sent to SHO Kavinagar (ANNEXURE B) but because of the Model Code of Conduct into effect in Uttar Pradesh we could not get the desired number of police force for the removal of the encroachments.
The status of Pocket B as on date is herein under:-
Approved Green Belt
Green Belt as per the Re venue department and UPPCB
joint survey
Green Belt on which encroachment is removed
Green Belt available in Present
Green Belt with encroachment
1017.00
182.29
72.24 (PCC road near generator)
124.07
892.93
D. That in pocket C no encroachments were done. Still a total station survey was conducted because of the shape of Pocket C was uneven and it was found that in pocket C the total approved green belt area is 1915 out of which 1924.38 was developed as green belt. The photographs of the survey of Pocket C is annexed as ANNEXURE E.
E. That pursuant to Pocket D the major encroachment was a temple constructed by the residents and AOA the same could not be removed because of tremendous pressure and opposition from the side of the AOA and residents.
The photographs of the temple is annexed herein as ANNEXURE F.
The status of Pocket D as on date is herein under:-
Approved Green Belt
Green Belt as per the Re venue department and UPPCB
joint survey
Green Belt on which encroachment is removed
Green Belt available in Present
Green Belt with encroachment
435.00
38.52
0.00
96.14
338.86
(Temple)
F. That the Master Plan Green which measures for 14.06 % of the total project is also now developed and around 1680 trees are now planted and it is developed into a green belt. The photographs of the same is annexed herein as ANNEXURE G.
G. That the total green belt available currently in the project is 4007.55 sqm (in pocket A,B,C,D) and 7679.78 sqm (Master Green Area) which brings the total to 11687.33 which is 21.39 % of the total plot area i.e. 54630.00 which is in consonance with the EC specific condition 10 which requires 15% of the total Plot Area to be green belt.
H. That based on the orders of the Hon’ble NGT dated 08.07.2021 the Vice President of GDA ordered on 8.10.2021 that the green area should be restored as per the Approved Map Plan by the Developer. That on 18.12.2021 notice was issued against the developer under Section 26 A of UP Urban Planning and Development Act 1973 based on the same a show cause notice was also issued to the developer that why is the encroachment in pocket A,B,C and D i.e Volleyball Court, roads, temple, generator and panel room is not removed? The developer replied to the same on 27.12.2021. That based on the reply the GDA issued another order dated 06.01.2022 to remove the encroachments and develop the Pockets as per the Master Plan. That a Departmental Letter was also issued to the developer that the encroachments has to be removed and the development is to be informed to the Hon’ble NGT.
I. That on 11.02.2022 GDA along with police officers went to remove the encroachments itself where they were successful in removal of encroachments near the generator though during this process of removal of encroachments the team faced tremendous pressure and opposition from the side of the AOA and residents and the removal/destruction was stopped by them.
J. That only partial CC was given to the developer. That there were several request by the developer regarding the Completion Certificate but because of the unavailability of the Green Belt/ Green Area the CC was not given. And the same will only be given after the leftover Green Area is developed.
K. That the total encroached green belt in pocket A, B and D is 1861.91 in which Roads, Generator and nearby PCC Flooring, passage near swimming pool developed by builder and Temple construction in Pocket D by the residents and the AOA. And the Residents and AOA are protesting and opposing any demolition of the any above mentioned structures. Hence under section 25 of the UP Apartment (Promotion of Construction Ownership and Maintenance) Act 2011 an F.I.R is already registered against the Developer, President and Secretary of the AOA. The same is hereinafter annexed as ANNEXURE H
L. That the total green belt available currently in the project is 4007.55 sqm (in pocket A,B,C,D) and 7679.78 sqm (Master Green Area) which brings the total to 11687.33 which is 21.39 % of the total plot area i.e. 54630.00 which is in consonance with the EC specific condition 10 which requires 15% of the total Plot Area to be green belt. Though the GDA is committed to remove the encroachments and hence please grant 30 days’ time to remove the other encroachments present.”
We have heard learned counsels for the applicant, State PCB and GDA. Learned Counsel for the applicants point out contradiction in the report which on the one hand seeks time for compliance, on the other falsely states that there is compliance on erroneous and repeatedly rejected basis, contrary to the stand of the PCB and earlier orders of this Tribunal. It is patent that the EC condition has still not been complied with for which GDA needs to be held accountable. Order of the State PCB for payment of compensation and taking further measures has also not been complied with. State PCB needs to take coercive measures. GDA in coordination with any other concerned authority needs to take immediate steps for compliance of mandate of law.
In view of above, we direct the State PCB and the GDA to ensure compliance of directions already issued, taking such coercive measures as necessary and compliance report filed by email at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. The Vice Chairman, GDA may remain present on the next date by video conferencing. The GDA may ensure that the builder does not to create any further third party right, till compliance. The State PCB and GDA may put the PP to notice of this proceeding for its response, if any, before this Tribunal, within one month from today.”
In the light of above, further report has been filed by GDA on 29.08.2022 which shows that even now condition of 15% of the area for green belt has not been complied. Relevant extracts from the report are reproduced below:
“2. That the total land admeasuring 54630 sq. m. was purchased by the builder i.e., M/s Mahagun Real Estate Pvt. Ltd. for the purpose of building Mahagunpuram Residential Society. It is pertinent to highlight that in the said allotted land 7679,78 sq. m, (Master Green Area) was specifically saved to ensure greenery around the proposed project.
That the Master Green Area admeasuring 7679.78 sq. m. measures 14.06 % of the total project admeasuring 54630 sq. m, is also now developed and around 1680 trees have been planted and it is developed into a lush green belt.
That in the total allotted area (54630 sq. m.), 38767.22 sq. m, was approved for the purpose of building of the society. It is pertinent to mention that the total green belt currently available (free from all encroachments) in the project in the form of pocket A, B, C, D is 5285.77 sq. m.
Approved green pocket
Approved green area
(Sq. M.)
Encroached green area (Sq. M.)
Area on which encroachment is removed
Currently available green area
Area with encroachment
A
2448.08
887.29
887.29
2448.08
0.00
B
1017.00
967.17
767.17
817.17
200.00
C
1915.00
--
--
1924.38
0.00
D
435.00
338.86
--
96.14
338.86
Total
5815.08
2193.32
1654.46
5285.77
538.86
The areas admeasuring 200 sq.m. and 338.86 sq. m. of Pocket B&D respectively is still not been converted into a green area due to following reasons:
a. In Pocket B, 200 sq. m, area is still under encroachment as a generator, electric cable, cable trench, electric meter room, required utility circulation mom is present. The Respondent has already written letters dated 16,07.2022, 23.07.2022, 28.07.2022 and 05.08.2022 addressing the builder, asking them to shift the DG set to some other place. The copy of all the letters are collectively annexed as Annexure-A. Thereafter, pursuant to the same the builder has already sought approval from the Executive Engineer, Sub-Station Udyog Kunj, Ghaziabad. The copy of letter dated 06.08.2022 is hereby annexed as Annexure-B. Additionally, due to the ongoing monsoon season the shifting of all these electrical appliances is very dangerous and may cause severe harm. Thus, the Respondent is seeking 7 week time to rectify this issue with the help of electric substation.
b. In Pocket D, 338.86 sq. m. area is still under encroachment as there is a temple constructed by the Apartment Owners Association of the society and there are total 8000 residents in the society. When the residents shifted to the society, there were no temples present in the locality. It is matter of religious sentiment of people residing in the society as well as for a positive environment a place of worship is needed in the society and subsequently a temple was built at the behest of the Apartment Owners Association.
c. The temple is now an object of faith and religious belief. Any attempt to remove the temple may create a severe law and order concern. Removal of the temple could lead to hurting the religious sentiments of the residents and the public in general and has a requisite propensity to disturb public tranquility. Therefore, the removal of the temple is not feasible.
d. Moreover, the Vice Chairman of Ghaziabad Development Authority is the District Magistrate of Ghaziabad and he was also occupied in closely monitoring of law and order during "Kanwar Yatra". Subsequently, he was also occupied due to "Har Ghar Tiranga Campaign" during the Independence Week i.e., 1 -17th August.
That currently the total green area available is 5285.77 sq. m. (current available green area of Pockets A, B, C, D) which is 13.64% of the area wherein the society has been developed.”
The State PCB has also filed its report dated 14.07.2022 that the builder filed Writ Petition No. 2139 of 2022 in Hon’ble High Court of Judicature at Allahabad, Lucknow Bench against coercive measure by way of levy of compensation to the extent of about 13 crore rupees in which following order has been passed on 13.04.2022:
“… Put up this case on 19.04.2022 as fresh. In the meantime, it is directed that till the next date of listing, no coercive measures shall be taken against the petitioner/firm.”
We have heard learned Counsel for the parties. It is seen that non compliance is continuing. One of the points raised during the hearing is that amended EC has been issued on 19.05.2022 to the effect that instead of 15% of the total plot area, green belt may be maintained on 15% of the net plot area. This is rather intriguing and difficult to understand how such corrigendum/amended EC can be issued after the project has been developed and 12 years after the original EC dated 12.02.2010. Being after final adjudication and orders of this Tribunal which are being enforced, we are of the view that the same cannot be considered. While taking such decision, binding orders of this Tribunal have been ignored illegally. Under section 33 of the NGT Act, orders of this Tribunal will override the said SEIAA decision.
In view of above, we direct the project proponent to restore the original area for green belt in terms of EC conditions dated 12.02.2010, ignoring the corrigendum. However, any coercive action may be consistent with the orders of the High Court in the pending Writ Petition against levy of environmental compensation of about Rs. 13 crores.
The application is disposed of