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Judgment
A joint report was sought from the MoEF&CC and the Haryana State PCB with reference to the allegation that housing project 'Vesta Heights', Village Baselwa, Sector-86, Faridabad, Haryana operated by respondent no-5 was in violation of conditions of Environmental Clearance and the Water (Prevention and Control of Pollution) Act, 1974. According to the applicant, the project is a category-A project. Consent to Operate under the Water (Prevention and Control of Pollution) Act, 1974 expired in March 2018. STP was not adequate and overflow was being discharged into the Agra Canal.
The matter was thereafter considered on 21.11.2019 in light of joint inspection report dated 01.07.2019 acknowledging serious violation of environmental norms. The Tribunal after noting such violations observed as follows:-
"3. It is, thus, clear that there is blatant violation of conditions of EC, including absence of requisite number of STPs and Consent conditions under the Water and the Air Act, apart from non-compliance by way of disposal of sewage through tankers at unauthorized locations, not having permission for drawl of ground water, not operating DG sets as per norms/guidelines and improper disposal of municipal solid waste.
An action taken report dated 20.11.2019 has also been filed by the State PCB which confirms that the water discharge from the STP was not as per norms and DG sets were sealed. It is further stated that for the defaults in the year 2017, environment compensation was recovered, and prosecution was initiated in the year 2017.
With regard to the action on observations in the joint report mentioned above, it is stated that DG sets have been sealed /resealed, Police Department has been asked to lodge FIR for tampering of earlier seal, common building is still sealed, further compensation has been assessed at Rs. 46 Lakhs for the defaults noticed in the joint report. Directions have been issued to the project proponent and the welfare association to ensure proper functioning of STP, compliance of Solid Waste Management Rules, 2016 and providing a copy of permission for extraction of ground water.
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.
Action taken by the State PCB is not adequate. It is pointed out on behalf of the applicant that the State PCB could have sealed the available public utility spaces and taken other coercive measures against the project proponent. Compensation should be realistic to recover the cost of restoration of the environment. As per judgment of the Hon'ble Supreme (2018)18 SCC 257, M/s Goel Ganga Developers India Pvt. Ltd. v. Union of India, normally environmental compensation in such cases should be 5% of the project cost. The project cost is said to be about Rs. 300 Crores. The project proponent could also have been black listed. Occupancy certificate should not have been given by the authorities of the State of Haryana.
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
As regards adequacy of compensation, we find merit that compensation in the present case in inadequate. It has neither taken into account the cost of the project nor the cost of restoration nor the repeated and continuing defaults, adversely affecting the environment and public health with impunity.
Legal position in this regard is well settled. In Vellore Citizens Welfare Forum vs. Union of India (UOI) and Ors. (1996) 5 SCC 647, the Hon'ble Supreme Court interpreted "Polluter Pays" principle by stating that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. It was further observed on the basis of principle laid down in M.C. Mehta and Anr. vs. Union of India and Ors., (1987) 1 SCC 395 that a person undertaking an activity involving hazardous or risky exposure to human life is strictly liable for injury suffered by another person, irrespective of any negligence or carelessness on part of the managers of such undertaking. Pollution cannot be allowed to be profitable activity. The environment is priceless. Intentional violations have to be visited with more stringent damages than accidental or unintended.
Principles for determining quantum of damages laid down, inter-alia, in Sterlite Industries (India) Ltd. v. Union of India (2013) 4 SCC 575 : ¶ 47, T.N. Godavarman Thirumulpad v. UOI & Ors. (2006) 1 SCC 1 : ¶ 1, Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors. (1996) 3 SCC 212 : ¶ 67, Vellore Citizens Welfare Forum v. UOI , (1996) 5 SCC 647 : ¶ 11 to 13, M.C. Mehta v. Kamal Nath (1997) 1 SCC 388 : ¶ 10, Public Trust Doctrine, ¶ 24, M.C. Mehta v. UOI & Ors., W.P (C) No. 13029/1985 order dated 24.10.2017, MCD v. Uphaar Tragedy Victims Association (2011) 14 SCC 481 : ¶ 99, 100, Vadodra Municipal Corporation v. Purshottam v. Murjani & Ors. (2014) 16 SCC 14 : ¶ 17 and M. C. Mehta & Anr. v. Union of India (1987) 1 SCC 395 : ¶ 32. These above principles have also been referred to in order of this Tribunal dated 13.09.2019 in OA No. 661/2018.
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."
Thereafter, the matter was last considered on 01.10.2020 in the light of status report filed by the State PCB dated 30.09.2020 and the report of the joint Committee comprising the MoEF&CC, the CPCB and the HSPCB on the issue of compensation. The Tribunal noted that compensation had not been recovered and even order of blacklisting had not been passed by Director, Town & Country Planning Department, though, State PCB approached the Town & Country Planning Department for the purpose. The Tribunal accordingly directed the Chief Secretary, Haryana to ensure follow-up action and file a report. The operative part of the order is reproduced below:-
"3. Accordingly, the State PCB has filed a status report on 30.09.2020 as follows:-
"1. That in compliance of order dated 21.11.2019 passed by this Hon'ble Tribunal, a meeting was conducted on 12.02.2020 and decided to calculate the Environmental Compensation of above mentioned violations on the basis of "Report of the CPCB In-house Committee on Methodology for Assessing Environmental Compensation and Action plan to utilize the fund". Detailed report of Joint Committee is enclosed as Annexure-R/1.
That vide letter dated 07.12.2019, the unit was asked to deposit the interim compensation of Rs.10 Crores in compliance of order dated as directed by the Hon'ble Tribunal. Copy of letter dated 07.12.2019 issued to unit by the HSPCB is enclosed herewith as Annexure-R/2. It is further submitted that 11.03.2020, answering Board asked from the CPCB about the status of Environment Compensation. No reply to said letter has been received from CPCB in response to letter dated 11.03.2020. Copy of letter dated 11.03.2020 addressed to the Member Secretary; CPCB is enclosed herewith as Annexure-R/3. Since no information received from the CPCB about deposit of interim Environment Compensation, as abundant caution, the answering Board vide letter dated 05.08.2020 again directed the unit to deposit the interim compensation as directed by the Hon'ble Tribunal. Copy of letter dated 5. 08.2020 issued to unit by the answering Board is enclosed herewith as Annexure-R/4.
That Further, vide letter dated 28.01.2020, the Board through Regional Officer, Faridabad requested to the Director, Town & Country Planning Department, Chandigarh & the Senior Town Planner, Town and Country Planning, Faridabad for initiating action including taking over of vacant flats, if any. Copy of letter dated 28.01.2020 is annexed herewith as Annexure-R/5. It is further submitted that the Board vide letter dated 10.06.2020 requested the Director, T&CP Dept., Haryana to take action regarding black listing to project proponent as directed by the Hon'ble Tribunal. Copy of letter dated 10.06.2020 is annexed herewith as Annexure-R/6.
That vide letter dated 09.07.2020, the District Town Planner, Faridabad has informed that details of unsold/unallotted vacant property had been sought from the colonizer and the same has not been received as yet. Copy of letter dated 09.07.2020 is enclosed herewith as Annexure-R/7."
The report of the joint Committee comprising the MoEF&CC, the CPCB and the HSPCB assessed compensation of Rs. 12,02,80,310 (Twelve Crore Two Lakhs Eighty Thousand Three Hundred Ten Rupees Only) and concluded as follows:-
"In addition to the assessment of EC carried out by Joint Committee, following observations were made:
i. Basic infrastructure or common facilities i.e. Sewage management/Solid waste management (collection, processing and disposal) at specified area should be planned/developed by the concerned local authorities i.e. Haryana Shahari Vikas Pradhikaran, (HSVP) formerly Haryana Urban Development Authority (HUDA) before issuing license by concerned authorities i.e.. Town & Country Planning Haryana to builders for development of individual housing society.
ii. In the present case, Town & Country Planning Haryana has issued occupancy licence vide letter no. ZP-212/JD(DK)/20122737 dated 28.12.2012 subject to comply various conditions. However, there is still shortage of common facilities/basic infrastructure even after more than 07 years of the issue of occupancy licence.
iii. In absence of sewerage system treated/untreated sewage of the housing society disposed off through tanker. However, as per the operation phase condition no. (iii) of Environment Clearance, housing societies have to treat sewage up to tertiary level and utilize in landscaping, gardening, toilet flushing, cooling tower etc. and remaining treated wastewater may discharge to final disposal system.
iv. All the Housing Societies shall ensure reuse of treated sewage as per CPHEEO guidelines for point use. Standards is attached at Annexure-A. Excess treated sewage shall discharge to HSVP sewerage network
In view of the above, Joint Committee has opined that responsibilities of discharge of sewage/solid waste shall also be vested with the following authorities:
i. Town and Country Planning Haryana for granting license to builders prior to development of infrastructure related to sewerage system.
ii. HSVP for development of basic infrastructure for sewage and solid waste management of the area."
The above report does not show adequate action for compliance of environmental norms. The amount of compensation has not yet been recovered nor coercive measures taken - not even order of blacklisting, even though the State PCB had written to Director, Town and Country Planning Department, Haryana. We express our disappointment for such failure and hope the State authorities will now take requisite steps expeditiously.
To uphold the Rule of Law and for protection of environment and public health, the State Authorities must take further appropriate action which may be monitored by the Chief Secretary, Haryana by calling the meeting of concerned statutory authorities within one month. This step has become necessary in view of repeated serious violations of the environmental norms by the Housing Projects in the State of Haryana, as noticed not only in this matter but also in 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 No. 688/2019, Aditya Jakhar v. State of Haryana and OA 155/2020, Dr. Manorama v. TDI. All the five matters may be discussed in the same meeting. The report be filed before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. A copy thereof be simultaneously given to the project proponent for response, if any."
Report dated 10.09.2021 has been filed on behalf of the Chief Secretary, Haryana, covering the present matter also along with other matters in O.A. No. 661/2018, Praveen Kakar & Ors. v. Ministry of Environment & Forests & Ors. With regard to the present matter, the report states as follows:-
"c. In OA No. 506/2019 (Mukund Dhote V/s Union of India & Ors.)
In the said matter, Environmental Compensation has been calculated 12,02,80,310 (Rs. Twelve Crore Two lakh Eighty Thousand Three Hundred Ten Only) in compliance of NGT order dated 21,.11'.20-l'9 by the MoEF and HSPCB. Further, Joint Committee has opined that responsibilities of discharge of sewage/solid waste shall also be vested with the following authorities:
i. Town and Country Planning Haryana for granting license to builders prior to development of infrastructure related to sewerage system.
ii. HSVP for development of basic infrastructure for sewage and solid waste management of the area.
· The M/s Smart Housing Pvt. Ltd., (Project- Summer Palm), Sector-86, Greater Faridabad has been directed to deposit Environmental Compensation vide office letter no. HSPCB/FR/ 2020/5145 dated 19.02.2020 and HSPCB/FR/2020/2488 dated 20.10.2020 and HSPCB/FR/2020/2998-99 dated 02.12.2020. Further, Environmental Compensation through land revenue arrears recovery method vide RO Faridabad letter no. 3251-52 date 14.12.2020.
· Recovery certificate has been issued by District Collector vide No. 2966 dated 22.12.2020.
· With reference to black listing of project proponent The District Town Planner dated 18.01.2021 has debarred the Directors of the companies namely Smart Housing Pvt. Ltd and Umang Real Tec. Pvt. Ltd. and action has been taken as the Licensee companies has 506/2019 nor fulfilled the terms and conditions of the license.
· With reference to sealing and taking possession of public utility spaces in the project, sealing and taking over of vacant flats, if any, A committee has been constituted by Senior Town Planner to identify the a allotted/ unsold flats, community site, commercial component and utility sites vide it memo no. 60-62 dated 08.01.2021. Vide memo no. FD-DTP(E)/2097 dated 13.04.2021 the office of District Town Planner, Faridabad. Submitted the report of Committee to Senior Town Planner where in it is mention that the inspection Committee had a meeting with building manager of maintenance of secretary of resident welfare the Group Housing Project and it was informed by RWA representative that out of 776 flats in the society, 720 flats were occupied and further no flat under the ownership of developer/licensee (as on 27.01.2021) the inspection committee also inspected the club building and it was found that the building had already sealed jointly by Pollution Control Board and DTP(E) Faridabad. The representatives of RWA also informed the inspection team that the community sites have already been sold by the licensee and it was also informed that the society is yet to be handed over to RWA and therefore RWA has no locus-standi on any assets of builder except maintenance thereof on behalf of residents. Further, it was informed by RWA members that the project has been taken over by the NCLT u/s 14 of Insolvency and Bankruptcy Code (IBC-2016) & hence NCLT shall take further necessary action against Licensee. Further, the same report forwarded by Senior Town Planner Faridabad to Director, Town and Country Planning Haryana vide memo no.888 dated 13.04.2021.Copy of inspection report dated 13.04.2021 by District Town Planner Faridabad and Memo no. 888 dated 13.04.2021 are here by annexes as Annexure R/6 and R/7 respectively.
· With reference to Steps taken by the State in view of report of joint Committee filed in OA No 506/2019 and conclusion made in this report along-with recommendations, HSVP Executive Engineer No.2 Faridabad has intimated that master sewerage line has been laid in front of M/s Smart Housing Pvt. Ltd. (Summer palm) Sector-86, Faridabad and the society has to deposit sewerage connection fees in HSVP and thereafter sewerage connection shall be accorded accordingly. Vide memo no. 3827 dated 09.08.2021 the office of district town planner has directed M/s Smart Housing Pvt. Ltd, to deposit the sewerage connection fee to the concerned authority and to obtain regular sewerage and water disposal connection. Copy of Memo dated 09.08.2021 is hereby annexes as Annexure R/8."
In view of above, while the failure of the statutory Authorities has resulted in serious violation and remedial action is inadequate, only further order which can now be passed is that remedial action for recovery of the assessed compensation and for prosecution of the project proponent and its concerned functionaries be taken by the concerned authorities in accordance with law and preventive steps be taken to ensure that such situations do not arise in future.
The application is disposed of.
A copy of this order be forwarded to the Chief Secretary, Haryana, State PCB, SEIAA, Haryana and Director, Town & Country Planning Department, Haryana by email for compliance.