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Judgment
The applicants Prasoon Pant and Pradeep Kumar have filed the present application under sections 14, 15, 18 (1) and Section 20 of the National Green Tribunal Act, 2010 seeking following reliefs:-
“1. Direct the respondent authorities to take action including stoppage of all construction against the project proponent Durga Enterprises Pvt Ltd for starting construction and selling industrial plots without NOC
Direct the respondent authorities to cancel the environmental clearance granted to the industrial park in violation of the EC condition of getting an NOC prior to starting construction.
Pass any other orders/directions the Hon’ble Tribunal deems fit and proper in the interest of justice and in the facts and circumstances of the case.”
The grievances of the applicants in the present original application are that respondent no. 8- M/s Durga Enterprises Pvt. Ltd. is building an industrial park called “Durga Industrial Park” for allocating 366 industrial plots in Rajendra Nagar, a critically polluted area in Shahibabad of District-Ghaziabad, which has been notified as non-attainment city. The industrial park is being carved out from a bigger plot after its sub-division which requires that the nature of industries coming up after sub-division should be homogenous with the original use of the undivided plot (which originally was a glass factory) but in present case the nature of factories is unknown. In OA No 1038/2018 this Tribunal directed that: "No further industrial activities or expansion be allowed with regard to 'red' and 'orange' category units till the said areas are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regard to the carrying capacity of the area and environmental norms." No assessment of the Carrying Capacity for such industrial expansion has been conducted by the respondent authorities. SEIAA, UP has granted EC in haste without following the directions and without the compliance of Terms of Reference (ToR) granted prior to EC. No new industry can be accorded NOC for groundwater abstraction in the area which is categorized by Central Ground Water Authority (CGWA) in its assessment of 2017 and 2020 as Over-Exploited block and "Notified" under the UP Ground Water (Management & Regulation) Act 2019. The Project Proponent is already extracting groundwater illegally as construction work has started and there is no alternative mode of water supply available to the Project Proponent. The said industrial park is being constructed before getting the mandatory Consent to Establish (CTE)/ NOC from Uttar Pradesh Pollution Control Board (UPCB) as mandated by environmental clearance dated 15.01.2021 given by State level Environment Impact Assessment Authority (SEIAA), Uttar Pradesh. The applicants have averred that the UPPCB has twice refused to grant NOC/CTE to the Project Proponent vide letters dated 24.03.2021 and 22.12.2021. The applicants have enclosed copy of letter dated 24.03.2021 written by the UPPCB to the Project Proponent relevant part of which is reproduced as under:-
“Sub : Consent To Establish( C.T.E ) Application under section 25/26 of Water (Prevention & Pollution ofcontrol) Act, 1974 as amended and section 21/22 of Air (Prevention & Control of Pollution) Act, 1981 as amended
Kindly refer to your application for Consent to Establish (C.T.E) dated 13/01/2021 received on 13/01/2021 for the proposed Project of M/S DURGA ENTERPRISES PRIVATE LIMITED Expansion of Existing Unit/ Modernization/diversification of existing plant at 1/2m to 468/2m, pasonda, jagola, near rajander nagar metro station, sahibabad ,GHAZIABAD,201005 under section 25/26 of Water (Prevention & Pollution of Control) Act 1974 as amended and section 2l of Air (Prevention & control of Pollution) Act, 1981 as amended.. Your Consent to Establish application is hereby Refused due to following reasons :
Reason:
Unit has not furnished appropriate information on the following points:-
1.As per project report, it is proposed to develop the area and give plots to individual units. Kindly submit details regarding nature of industries permissible in the proposed Industrial Park.
2.Since the project falls in notified Critically Polluted Area as per CEPI Index, kindly provide point wise compliance with regards to Hon’ble NGT’s directions in OA 1038/2018 dated 19.08.2019 and UPPCB’s Office Order/Memorandum dated 28.02.2020.
3.Since the proposed industrial park falls in notified Over-Exploited Block as per State of UP and CGWA’s notification, kindly furnish details of legal source of water procurement.
4.Land use certificate for industrial park. Copy of permission from GDA for discharge of 190 KLD sewerage in its sewer.
5.Copy of allotment letter from GDA along with copy of approved map/lay out showing location of proposed STP.
6.Feasibility report with technical specification of proposed STP and Proposal for treated water disposal.
7.Copy of Fire Department NOC.
8.Type of fuel and quantity are proposed in industrial park.
9.Proposal for collection, segregation and disposal facility of generated during construction and operational under SWM rules 2016 and C & D rules 2016.
10.Copy of Height clearance of proposed project by Airport authority/Delhi metro rail corporation Ltd(DMRC).
In view of above CTE cannot be granted. Hence, application is being refused.
The Consent To Establish (C.T.E) Application under section 25/26 of The Water (Prevention& Control of Pollution) Act, 1974 as amended and section 21/22 of The Air (Prevention & Control of Pollution) Act 1981 as amended, is hereby refused and you are hereby informed to comply the mandatory provisions of aforesaid acts."
The applicants have also enclosed copy of letter dated 22.12.2021 written by the UPPCB to the Project Proponent relevant part of which is reproduced as under:-
"Sub : Consent To Establish( C.T.E ) Application under section 25/26 of Water (Prevention & Pollution of control) Act, 1974 as amended and section 21/22 of Air (Prevention & Control of Pollution) Act, 1981 as amended
Kindly refer to your application for Consent to Establish (C.T.E) dated 19/11/2021 received on 19/11/2021 for the proposed Project of M/S DURGA ENTERPRISES PRIVATE LIMITED Expansion of Existing Unit/ Modernization/diversification of existing plant at 1/2m to 468/2m,pasonda,jagola,near rajander nagar metro station, sahibabad, ghaziabad, 201005, GHAZIABAD, 201007 under section 25/26 of Water (Prevention & Pollution of Control) Act 1974 as amended and section 2l of Air (Prevention & control of Pollution) Act, 1981 as amended.. Your Consent to Establish application is hereby Refused due to following reasons :
Reason:
As per RO report dated 02.12.2021 industry is located in over exploited area as per CGWA's Resource assessment survey 2017. No ground water abstraction is permissible in over exploited area. The proposed project has not provided approved layout plan for proposed project from GDA, land use certificate for industrial purpose, information regarding establishment of nature and process of proposed industry, proposed industrial park is nearby residential development, during inspection project construction of several units was found under process without obtaining CTE, project proponent is not complying direction regarding ban on construction issued by Hon'ble Supreme Court W.P. (Civil) 1135/2020 Aditya Dubey (minor) and other Vs UOI & others, Copy of Environmental Clearance and its compliance report is not submitted. RO has recommended for imposing EC of Rs. 25,00,000/- to district administration vide letter dated 02.12.2021 in violation of Hon'ble Supreme Court order.
The Consent To Establish (C.T.E) Application under section 25/26 of The Water (Prevention& Control of Pollution) Act, 1974 as amended and section 21/22 of The Air (Prevention & Control of Pollution) Act 1981 as amended, is hereby refused and you are hereby informed to comply the mandatory provisions of aforesaid acts."
The applicants have submitted that refusal of CTE/NOC by UPPCB vide above said letters is by itself a reason sufficient enough for scrapping of EC of the project.
Vide order dated 28.04.2022, this Tribunal ordered issuance of notices of the application to the respondents and also issued ad-interim injunctive directions in the following terms:-
“XXXX In the meanwhile, the District Magistrate, Ghaziabad is directed to ensure that no further construction is raised on the land in question before grant of CTE/NOC by UPPCB and other authorities as required by environmental clearance dated 15.01.2021. Till further orders to the contrary, the Project Proponent shall also not create any further third party rights and also third party rights, if any, already created shall be subject to further orders of this Tribunal... ”
Pursuant to notice respondent no. 8 (Project Proponent) filed reply vide email dated 19.07.2022. In its reply the respondent No.8 -Project Proponent has submitted that the present Application is merely a tactic of the Applicants to arm-twist the Project Proponent into agreeing to their illegal demands and extortions. The Project Proponent, M/s. Durga Enterprises Pvt. Ltd. is developing an Industrial Park at Ghaziabad for promoting Green and White Category Industries. The present Application has become infructuous as the Project Proponent has already received Consent to Establish by Uttar Pradesh Pollution Control Board. The Project Proponent had purchased an Industrial Area in Ghaziabad. The land was allotted for the purpose of industrial usage, and the Project Proponent has never changed the original land use. The Project Proponent applied to the Ghaziabad Development Authority for development of an Industrial Park and also applied for all the related certificates, permissions and clearances which were required for such development. The Project Proponent vide Application dated 06.02.2019 addressed to the Ghaziabad Development Authority submitted the project proposal for creation of plots in the Industrial Park Layout Map No. MAP20190727165815333 in village Jhandapur, Jagola and Pasonda of District Ghaziabad. In the Layout/Landscape Plan of the Industrial Park, the Project Proponent has dedicated 10 per cent of the Project Land towards Green Belt. The Ghaziabad Development Authority vide Letter bearing No. 125/M.P./Zone/MAP 20190727165815333 dated 20.12.2019 informed that on 08.08.2019 the Vice Chairman of the Ghaziabad Development Authority has approved the Layout Plan/ Map for development of the Industrial Park. The Public Works Department, Ghaziabad, issued a No Objection Certificate dated 06.04.2019 certifying that the Department does not have any objection to the development of aforesaid Project. The Uttar Pradesh Fire Services after doing its inspection issued its No Objection Certificate dated 28.03.2019 certifying that it has no objection to the development of Project. The Paschimanchal Vidyut Vitran Nigam Ltd. issued its No Objection to the development of aforesaid Project vide its letter dated 23.04.2019 through Executive Engineer Urban Electricity Distribution Division-X, Ghaziabad. The Ghaziabad Municipal Corporation also conducted a survey of the Khasra Nos. on which the Project is proposed to be developed and gave its No Objection dated 17.10.2019 certifying that none of the Khasras forming part of the Project Land was Government Property or barren or new fallow or submerged land. The Water Department of Ghaziabad Municipal Corporation also gave its approval vide letter dated 13.03.2020 for Water and Sewer Connection to the Project Land. The Northern Railway Department of Indian Railways gave its No Objection Certificate dated 13.08.2020 for development of the aforesaid Industrial Park. The Tehsildar of Jhandapur, Jagola and Pasonda of District Ghaziabad conducted a survey of the Land and issued their Report dated 15.09.2020 thereby certifying that the Project Land was undisputed and in the ownership of Project Proponent. The Project Proponent vide letters dated 05.08.2020, 17.08.2020, 21.09.2020 and 28.09.2020 addressed to the Chairman/Secretary of the State Level Environment Impact Assessment Authority, Uttar Pradesh and the Director, Directorate of Environment, Government of Uttar Pradesh applied for Environmental Clearance (‘EC’) for the proposed development of Industrial Park at Ghaziabad. The SEIAA vide EC Letter No. 701/Parya/SEIAA/5856-5746/2019 dated 15.01.2021 considered the proposal in the meetings held on 01.10.2020 and 25.11.2020 and granted the EC for the proposed project. In compliance of the terms of Environmental Clearance, a Six Monthly EC Compliance Report (October, 2021 – March, 2022) was submitted by the Project Proponent addressed to the Regional Officer, Ministry of Environment, Forest & Climate Change, (Central Region), Kendriya Bhavan, Lucknow vide letter dated 01.06.2022 with reference to the EC Letter. During the Covid period, the Project Proponent had made applications to the Uttar Pradesh Pollution Control Board for grant of Consent to Establish but due to the restrictions of Covid-19 and Lockdown throughout the Country, the Project Proponent could not actively follow-up the applications for the grant of Consent to Establish which were rejected for want of documents and not on merits. The Project Proponent submitted a fresh Application Form No. 16234776 dated 03.05.2022 to Uttar Pradesh Pollution Control Board for grant of Consent to Establish. The UPPCB after careful examination of the application, granted CTE dated 01.06.2022 to the Project Proponent vide Letter No. 135540/ UPPCB/ Ghaziabad (UPPCBRO)/ CTE/ GHAZIABAD/ 2021. The NOC/CTE validates the development of the Industrial Park for the validity period from 01.06.2022 to 31.05.2027. Vide letter date 13.05.2022 addressed to the SDM, Ghaziabad, Uttar Pradesh the Project Proponent deposited the Environmental Compensation Mitigation charge levied against the Project Proponent. Vide letter dated 19.05.2022 addressed to the Regional Officer, UPPCB, Ghaziabad the Project Proponent informed that all the 366 Industrial Plots are non-polluting; 341 Plots fall within the Green Category and 25 Plots fall within White Category of the Revised Classification of Industrial Sectors Notification No. B-29012/ ESS(CPA)/2015-16/ dated 07.03.2016. None of the Industrial Plots fall within the Red or Orange Category of Revised Classification of Industrial Sectors. The Project Proponent had only undertaken activities which safeguard the environment from degradation such as developing Sewage Treatment Plant, Green Belts and Rain Water Harvesting Ponds for conservation of water. 03.05.2022 which was scrutinised by the UPPCB and was approved.
Respondent No.8 -Project Proponent filed I.A No. 186/2022 vide email dated 20.07.2022 for vacation of ex-parte stay granted vide order dated 28. 04.2022.
Respondent no. 8 filed W.P. (C) 11791/2022, CM APPL. 35135/2022 (Stay) titled as Durgaa Enterprises Pvt. Ltd. Vs. Prasoon Panth and Ors. against order dated 28.04.2022 before Hon'ble High Court of Delhi which vide order dated 18.08.2022 stayed operation of order dated 28.04.2022 passed by this Tribunal. The relevant part of order dated 18.08.2022 is reproduced as under:
“X X X X
Notice. Since respondent Nos. 1, 2, 3 and 5 are duly represented by learned counsels, let counter affidavits be filed on the writ petition within a period of eight weeks from today. Notice shall also issue to the unrepresented respondent(s). Consequently, let learned counsel for the petitioner take steps for service on the unserved respondents through all permissible modes including via approved courier service.
Prima facie, the Court finds merit in the submission addressed on behalf of the petitioner with Mr. Tripathi, learned Senior Counsel, contending that in terms of the provisions of Section 19 of the National Green Tribunal Act, 2010, it was impermissible for the Tribunal to have passed the injunction ex-parte. Learned Senior Counsel has also drawn the attention of the Court to the material placed on the record along with the writ petition as well as the supplementary affidavit filed to establish that the petitioner has duly ensured compliance with all statutory requirements as placed including the obtaining of necessary permissions from the appropriate environmental authorities. The Court also bears in mind the fact that the petitioner has been awarded a contract for executing a public works project. Matter requires consideration.
Till the next date of listing, there shall be stay of the impugned order 28.04.2022. This order, however, shall not be liable to be construed as a stay of proceedings before the Tribunal.”
While staying operation of order dated 28.04.2022 passed by this Tribunal vide order dated 18.08.2022 Hon'ble High Court of Delhi clarified that the above said order shall not be liable to be construed as stay of proceedings before this Tribunal and this Tribunal can proceed further in the matter.
Replies were filed by respondent no. 2 (SEIAA, U.P.) vide email dated 27. 07.2022, respondent No. 3 (UPPCB) vide email dated 23.08.2022, respondent No.4 (CPCB) vide email dated 02.09.2022 and respondent No.6 (GDA) vide email dated 02.09.2022.
The relevant part of reply filed by respondent No. 2 SEIAA UP is reproduced as under :-
“1. It is submitted that respondent no. 8 made an application online on 05.08.2020 for Terms of Reference (ToR)"Durga Industrial Park" at Khasra No.- 1/2m, 2 to 24,25/m, 26 m, 27 m, 28, 29, 30/m, 31/m, 37m, 38m, 39m, 40m, 41 m, Jhandapur, Ghaziabad and Khasra No.-4974/1m, Pasonda Ghaziabad &Khasra No.- 448/m, 450/m, 451, 452/1, 453/1, 454, 455/2m, 455/3m, 457, 458m, 460m, 463m, 465/1m, 466m, 467m, & 468/2m, Jagola, Ghaziabad, U.P., M/s Durga Enterprises Pvt. Ltd. Vide Proposal No. SIA/LTP/NCP/55343/2020 under 8(b) category of EIA notification 2006(as amended).The case was considered by SEAC in its 485thmeeting dated. 19.08.2020. During the meeting, the project proponent along with his consultant made presentation. The committee discussed the matter and recommended to issue the Terms of Reference (ToR) for the preparation of EIA. Copy of minutes of 485th SEAC, Meeting held on 19.08.2020 is being filed herewith and marked as Annexure - I.
Subsequently, the case was considered in 401stSEIAA meeting dated. 15.09.2020 wherein the State Level Environment Impact Assessment Authority agreed with the recommendations of the SEAC to issue the additional ToR's to proposed project for conducting EIA studies. Copy of minutes of 401th SEIAA, Meeting held on 15.09.2022 is being filed herewith and marked as Annexure - II.
3 Further, SEIAA, vide letter no. 374/Parya/SBIAA/5746/2020 dated: 09/10/2020 issued Terms of Reference of the proposed project. Concert9(1 copy of Terms of Reference letter dated 09.10.2022 is being filed herewith and marked as Annexure —III
After the grant of ToR, project proponent M/S DURGA ENTERPRISES PVT. LTD. C-122, Sector-19, Noida, District-GautamBuddh Nagar, Uttar Pradesh, made an online application on 21/09/2020 for Environmental Clearance for "Durga Industrial Park" at Khasra No.-1/2m, 2 to 24,25/m, 26 m, 27 m, 28, 29, 30/m, 31/m, 37m, 38m, 39m, 40m, 41 m, Jhandapur, Ghaziabad and Khasra No.-4974/1m, Pasonda Ghaziabad &Khasra No.- 448/m, 450/m, 451, 452/1, 453/1, 454, 455/2m, 455/3m, 457, 458m, 460m, 463m, 465/1m, 466m, 467m, & 468/2m, Jagola, Ghaziabad, U.P. The hard copy of the application was received on 28.09.2020. The case was considered by SEAC in its 496thmeeting dt.01.10.2020. During the meeting, the project proponent along with his consultant made presentation. The committee discussed the matter and recommended grant of Environmental Clearance for the project proposal along with general and specific conditions. Copy of minutes of 496th SEAC, Meeting held on 01.10.2020 is being filed herewith and marked as Annexure - IV.
Subsequently, the case was considered in 420thSBIAA meeting dt.25.11.2020 wherein State Level Environment Impact Assessment Authority decided to grant Environmental Clearance to the projectalong with all the general and specific conditions as suggested by SEAC and also adding following certain specific conditions along with it:-
1 If the proposed project falls in Critically Polluted Areas (CPAs), Severely Polluted Areas (SPAs) the provision of the mechanism farmed regarding compliance of Hon 'ble NGT order in OA 1038/2018 dated 19-08-2019 by MoEF& CC, Govt. Of India vide letter dated 31-10-2019 shall be followed in letter and spirit.
All the additional conditions for grant of Consent to Establish (CTE)/Consent to Operate (CTO) related to Pollution mitigation measures1 as prescribed in the office memorandum of MoEF&CC, Gol. dated 31.10.2019 and as deemed fit by UP Pollution Control Board in the consent orders shall be followed by Project Proponent.
The project proponent shall submit the details of solar power plant and solar electrification details within the project within the next 3 months.
The project proponent shall ensure to plant broad leave trees and their maintenance. The CPCB guidelines in this regard shall be followed.
The project proponent shall submit the details on quantification of year wise CER activities along with cost and other details within the next 3 months. The CER activities must not be less 2% of the project cost. The CER activities should be related to mitigation of Environmental Pollution and awareness for the same.
The project proponent shall submit the details of estimated construction waste generated during the construction period and its management plan within the next 3 months.
The project proponent shall submit the details of segregation plan of MSW within the next 3 months.
The project proponent shall ensure that waste water is properly treated in STP and maximum amount should be reused for gardening flushing system and washing etc. To reuse the water for irrigation, sprinkler and drip irrigation system shall be installed and maintained with the proper function. Part of the treated sewage, if discharged to sewer line, shall meet the prescribed standards for the discharged. Under any circumstances untreated sewage shall not be reused or discharged to the municipal sewer line.
The project proponent will ensure that a proper dust control management is practiced during the construction phase and proper display board is installed at the site to inform the public the steps taken to control air pollution as per the Construction and Demolition Waste Management Rules.
The project proponent shall install micro solar power plants, toilets in nearby villages, public place or school from CER fund of the project for which E.G is granted in addition to the water harvesting pits and carbon sequestration parks / designed ecosystems.
The project proponent shall obtain the forest clearance and permission of Central and State Government as per law under the provisions of Forest (conservation) Act, 1980 before the start of work.
In compliance to Hon 'ble Supreme Court order dated 13/01/2020 in IA no. 158128/2019 and 158129/2019 in Writ petition no. 13029/1985 (MC Mehta Vs GOI and others) anti-smog guns shall be installed to reduce dust during excavation.
If the proposed project is situated in notified area of ground water extraction, where creation of new wells for ground water extraction is not allowed, requirement of fresh water shall be met from alternate water sources other than ground water or legally valid source and permission from the competent authority shall be obtained to use it.
Individual projects shall obtain separate ECs as per EIA notification 2006 (as amended).
Copy of minutes of 420th SEIAA, Meeting held on 25.11.2020 is being filed herewith and marked asAnnexure- V.
Further, SEIAA, issued Environmental Clearance for proposed project to effective implementation of general and specific imposed vide letter no. 701/Parya/SEIAA/5856-5746/2019 dated: 15/01/2021. Copy of Environmental Clearance letter dated 15/01/2021is being filed herewith and marked as Annexure - VI.
It becomes necessary to mention here that agency responsible for monitoring of terms and conditions of environment clearance granted by answering respondents is Ministry of Environment And Forest & CC, Government of India, U.P.P.C.B and C.P.C.B.”
The relevant part of reply filed by respondent No.3 UPPCB is reproduced as under:-
“X X X X
Status Report:
In compliance of above orders, Respondent No. 8, M/s Durga Enterprises Pvt. Ltd. has re-applied for obtaining Consent to Establish for development of 'Durga Industrial Park' at 1/2m to 468/2m, Pasonda, Jagola, Sahibabad, Ghaziabad on 03.05.2022. The conditional consent to establish has been issued to the project proponent on 01.06.2022 with following specific conditions:-
1- This consent to establish is valid for the development of industrial park. The Project shall be constructed as per approved map from the competent authority. In case of any change in capacity, the project will have to intimate the Board. For any enhancement of the above, fresh Consent to Establish has to be obtained from U.P. State Pollution Control Board. PP shall strictly implement the Pollution mitigating measures issued by the Hon'ble Supreme Court/National Green Tribunal (NGT), CPCB, EPCA, UPPCB, MOEF etc. time to time besides daily water sprinklers & use of anti smog gun and PTZ cameras at the project during construction period. Unit shall comply with the conditions of Environmental Clearance issued by competent authority.
2- This CTE shall not have any impact on prosecution proceedings for past default which are being carried on separately by UPPCB.
3- Project Proponent shall not use Ground Water.
4- Project Proponent shall use water from municipal supply only as per proposal submitted by PP.
5- Project shall use PNG as a fuel in proposed Generator set as per proposal/Affidavit submitted by PP
6- The Project Proponent shall not allowed to install any type of -boiler/Furnace/Water polluting units/Air Polluting units/Machinery/Equipment's etc .
7- The Project Proponent is liable to pay compensation for any environmental damage caused by it, as fixed by the Hon'ble Supreme Court, Hon'ble High Court, Hon'ble National Green Tribunal, Central Pollution Control Board and Uttar Pradesh Pollution Control Board
8- Project shall comply the provisions of Environment (Protection) Act 1986, Water (Prevention and Control of Pollution) Act, 1974 as amended, Air (Prevention and Control of Pollution) Act, 1981 as amended.
9- Project shall install Sewage Treated Plant of capacity 550 KLD (as per EC) & treated water shall be used in horticulture/flushing/dual plumbing etc.
10- At the project site a display board size 4x6 feet shall be installed to display the provisions of Construction and Demolition Rules 2016.
11- Project shall develop proper. green belt and rain water harvesting system as per Authority guidelines. For green belt at least 8 feet height lants should be planted which shall be properly protected and proper arrangements shall be made.
12- Unit shall ensure to development of green belt based on Miyawaki method.
13- Project shall comply the order passed passed by Honble NGT and CAQM time to time.
14- Project shall install acoustic enclosures on Generator set with adequate stack height as per CPCB norms.
15- All construction activities shall be according to authority guidelines and after approval or approved plan.
16- Project shall not use ground water in construction activities. Only STP treated water shall be used.
17- Unit will put tarpaulin scaffolding around the area of construction and the building for effective and efficient control of dust emission generated during construction of the project.
18- The construction material of any kind stored on site will be fully covered in all respect so that it does not disperse in the air in any form
19- All the construction material & debris will be carried in trucks or vehicles which are fully covered and protected so as to ensure that the construction debris or construction material does not get dispersed into the air or atmosphere in any form whatsoever.
20- The dust emission from the construction sites will be completely controlled and all precautions will be taken in that behalf
21- The transportation of construction material and debris waste to construction site, dumping site or any other place will be carried out in accordance with rules.
22- Fixing of sprinklers and creation of green air barriers will be done to control fugitive dust emission and improve environment
23- Project shall obtain NOC from fire department and Airport Authority of India, if required and submit copy of NOC to board.
24- Separate power connection with energy meter shall be provided for the Pollution Control Equipment's(STP) and record of power consumption and chemicals consumption for the operation of pollution control equipment shall be maintained separately
25- Project proponent shall' comply their affidavit dated 12.05.2022 submitted to Board.
26- Since the proposed project falls in critically polluted area(CPAs), severely polluted area (SPAs) the provision of the mechanism farmed regarding compliance of Hon'ble NGT order in OA 1038/2018 dated 23-08-2019 by MoEF&CC, Govt. of India vide letter dated 31-10-2019 shall be followed in letter and spirit and Project proponent shall comply Office Memorandum of UPPCB NoH48273/C-1/NGT-83/2020 Dated 27-02-2020 for standards for stack emission, effluent discharge and mitigation measures to control Air, Water and Land Pollution in critically and severally polluted area.
27- Unit shall establish Miyawaki forest as perthe GO no. 1011/81-7-2021-09(rit)/2016 dated 13.10.2021 of Deptt. Of Environment, forest and climate change and BG of Rs. 50,000/ be deposited within a months time along with the proposal for proposed plantation.
28- Unit shall comply with the CAQM (Commissionfor Air Quality Management in NCR and Adjoining Areas) direction no. 53 and 62and other direction issued time to time regarding use of cleaner fuel.
29- Unit shall comply with the CAQM (Commission for Air Quality Management in NCR and Adjoining Areas) direction no. 55regarding DG sets.
30- The PP shall ensure that the units which shall be established in the industrial estate have obtained prior CTE as per the laid procedure for specified permitted categories of white (No water and Air polluting) and green (No Air and water polluting and no water extensive units) only. No red and orange category industry shall be permitted.
All units which will be established in industrial estate shall comply with the Noise Pollution (Regulation and Control) Rule 2000, all project shall take adequate measures for control of noise from its own sources within the premises so as to maintain ambient air quality standards in respect of noise as the industrial estate is situated nearby residential area.
32- A Bank Guarantee of Rs. 10,00,000/- (Rs Ten lacs only) shall be submitted within 30 days including the above condition which will be valid for 05 years otherwise this consent to establish shall be deemed to be withdrawn.
Landuse change and sub divisional charges payment of GDA,CTO fees, water cess of erstwhile unit and other dues of Municipal corporation should be adhered to ,failing which this CTE will be deemded as revoked.
34.1t will be mandatory for PP to get all necessary clearances as per the private industrial Estate policy of UP Govt failing which CTE would be deemed revoked
35.NOC from fire deptt.,forest clearance is also mandatory to be obtained by PP
36.1n case of any adverse decision in appeal application in aforesaid order pertaining to SDMs order for mutation of proposed land is taken, this CTE would be automatically deemed revoked.
Copy of the said order is annexed as Annexure I. Besides this, it is pertinent to mention that the Project Proponent had earlier applied for obtaining Consent to Establish on 13.01.2021 and 19.11.2021, however the permission could not be granted as the project proponent failed to furnish relevant documents and proof of payment of environmental compensation imposed. Same was stated in rejection certificate dated 24.03.2021 and 22.12.2021. Copy of said rejection certificates is annexed as Annexue II of the report. Status of compliance with regards to clarifications raised which led to rejection of earlier applications is detailed in Table 1 below.
Rejection Certificate Dated 24.03.2021
S.No
Clarification
Status of compliance
1
As per project report, it is proposed to develop the area and give plots to individual units. Kindly submit details regarding nature of industries permissible in the
proposed Industrial Park.
Unit has submitted an undertaking vide letter dated 19.05.2022 that the said all 366 plots being developed in the- industrial park shall be for purpose of non-polluting (25 White and 341 Green) category
of units only.
2
Since the project falls in notified Critically Polluted Area as per CEPI Index, kindly provide point wise compliance with regards to Hon'ble NGT's directions in OA 1038/2018 dated 19.08.2019 and UPPCB's Office Order/Memorandum dated 28.02.2020.
Unit has submitted an undertaking vide letter dated 19.05.2022 that the said industrial park shall be for purpose of non-polluting (White and Green) category of units only.
3
Since the proposed industrial park falls in notified Over-Exploited Block as per State of UP and
CGWA's notification, kindly furnish details of legal source of water procurement.
Project Proponent has submitted an undertaking on 19.05.2022 stating that there shall be no borewell for industries and the demand for water shall be met through municipal supply.
4
Land use certificate for industrial park. Copy of permission from GDA for discharge of 190 KLD sewerage in its sewer.
Projectproponent has submitted that the said plot has been earmarked for industrial development and furnished Ghaziabad Development Authority's map approval dated 20.12.2019 in this regard, copy of same is annexed as Annexure III.
For purpose of discharge, permission has been taken from Municipal Corporation,
Ghaziabad
5
Copy of allotment letter from GDA along with copy of approved map/lay out showing location of proposed STP.
Projectproponent has submitted that the said plot has been earmarked for industrial development and furnished Ghaziabad Development Authority's map approval dated 20.12.2019 in this regard, copy of same is annexed as Annexure
6
Feasibility report with technical specification of proposed STP and Proposal for treated water disposal.
Feasibility report of STP has been submitted, copy annexed as Annexure IV
7
Copy of Fire Department NOC.
Copy of Provisional
NOC from fire department has been submitted. Copy annexed as Annexure V.
8
Type of fuel and quantity are proposed in industrial park.
Unit has submitted that only gas- based generator sets are being installed in the industrial park.
9
Proposal for collection, segregation and disposal
Unit has installed an OWC of 1000 kg/day and it has been
facility of generated during construction and operational under SWM rules 2016 and C & D rules 2016
submitted that same shall be enhanced once industries are set up. Non-recyclables are to be disposed through Municipal Corporation's agency.
10
Copy of Height clearance of proposed project by Airport authority/Delhi metro rail corporation
Ltd (DMRC).
Not applicable as only plotting is being done.
Rejection Certificate Dated 22.12.2021
SNo.
Clarification
Status of compliance
1
Industry is located in over exploited area as per CGWA's Resource assessment survey 2017. No ground water abstraction is permissible in over exploited area.
Project Proponent has submitted an undertaking on 19.05.2022 stating that there shall be no borewell for industries and the demand for water shall be met through municipal supply.
2
The proposed project has not provided approved layout plan for proposed project from GDA, land use certificate for industrial purpose
Projectproponent has submitted that the said plot has been earmarked for industrial development and
furnished Ghaziabad Development Authority's map approval dated 20.12.2019 in this regard, copy of same is annexed as Annexure III.
3
Information regarding establishment of nature and process of proposed industry
Unit has submitted an undertaking vide letter dated 19.05.2022 that the said all 366 plots being developed in the industrial park shall be for purpose of non-polluting (25 White and 341 Green) category of units only.
4
Proposed industrial park is nearby residential development, during
inspection project construction of several units was found under process without obtaining CTE, project proponent is not complying direction regarding ban on construction issued by Hon'ble Supreme Court
W.P. (Civil) 1135/2020 Aditya Dubey (minor) and other Vs U01 & others, Copy of Environmental Clearance and its compliance report is not submitted. RO has recommended for imposing EC of Rs. 25,00,000/- to district
administration vide letter dated 02.12.2021 in violation of Hon'ble Supreme Court order.
Environmental compensation of Rs. 25,00,000/-,(Twenty Five Lakhs Only) has been deposited. Copy of its receipt has been submitted and is annexed as Annexure VI.
Vide Order dated 08.09.2022 this Tribunal noticed that Completion Certificate dated 28.06.2022 had been issued by respondent no. 6 (GDA) under Section 15A (2) of the Uttar Pradesh Town Planning and Development Act, 1973 subject to the compliance with consent conditions. In view thereof Respondent no. 8 (Project Proponent) was directed to file affidavit regarding compliance by it with consent conditions imposed by respondents no. 2 and 3 and respondents no. 2 and 3 were also directed to file verification reports regarding compliance by respondent no. 8 with the consent conditions imposed by respondents no. 2 and 3 on it.
In compliance thereof Affidavit has been filed by respondent no. 8 (Project Proponent) vide emails dated 30.01.2023 and Verification Report has been filed by respondent No.3 (UPPCB) vide email dated 28.01.2023.
Response to the report of respondent No.3 (UPPCB) and Rejoinder to the reply of respondent no. 8 (Project Proponent) have been filed by the applicant vide emails dated 05.04.2023.
We have learned Counsel for the parties and have gone through the material on record.
In their respective contentions learned Counsel for the parties have reiterated their respective factual and legal submissions made in their respective pleadings.
The Project Proponent applied for Environmental Clearance (‘EC’) for the proposed development of Industrial Park at Ghaziabad. The SEIAA considered the proposal in the meetings held on 01.10.2020 and 25.11.2020 and vide Letter No. 701/Parya/SEIAA/5856-5746/2019 dated 15.01.2021 granted the EC for the proposed project.
The Project Proponent submitted application for grant of NOC/CTE addressed to the UPPCB, on 13.01.2021 and 19.11.2021 which were refused vide orders dated 24.03.2021 and 22.12.2021. The Project Proponent submitted fresh Application Form No. 16234776 dated 03.05.2022. The UPPCB after careful examination of the application, granted CTE to the Project Proponent vide Letter No. 135540/ UPPCB/ Ghaziabad (UPPCBRO)/ CTE/ GHAZIABAD/ 2021 dated 01.06.2022 validating the development of the Industrial Park for the validity period from 01.06.2022 to 31.05.2027. The fact that rejection of earlier applications of respondent no.8- Project Proponent was not on merits is fortified by subsequent grant of CTE by UPPCB itself.
Vide letter dated 19.05.2022 addressed to the Regional Officer, UPPCB, Ghaziabad the Project Proponent informed that all the 366 Industrial Plots are non-polluting; 341 Plots fall within the Green Category and 25 Plots fall within White Category of the Revised Classification of Industrial Sectors Notification No. B-29012/ ESS(CPA)/2015-16/ dated 07.03.2016.
No Objection Certificate (CTE) has also been granted by Uttar Pradesh Pollution Control Board vide reference no. 56044/UPPCB/Ghaziabad (UPPCBRO)/CTE/Ghaziabad/2022, dated 01.06.2022 with specific conditions of area being used by non-polluting units (White and Green Category as per CPCB Criteria).
This Tribunal had vide order dated 14.11.2019 passed in OA No 1038/2018 directed that no further industrial activities or expansion be allowed with regard to 'red' and 'orange' category units in non-attainment cities including Ghaziabad till the said areas are brought within the prescribed parameters or till carrying capacity of area is assessed and new units or expansion is found viable having regard to the carrying capacity of the area and environmental norms.
Since all the 366 Industrial Plots are stated to be non-polluting as 341 Plots fall within the Green Category and 25 Plots fall within White Category of the Revised Classification of Industrial Sectors Notification No. B-29012/ ESS(CPA)/2015-16/ dated 07.03.2016 and none of the Industrial Plots falls within the Red or Orange Category of Revised Classification of Industrial Sectors, the development of such industries does not involve any violation of orders passed by this Tribunal in OA No 1038/2018.
The applicants have sought the relief of issuance of directions to the respondent authorities to take action including stoppage of all construction against the Project Proponent Durga Enterprises Pvt Ltd for starting construction and selling industrial plots without NOC from UPPCB and to cancel the EC granted to the industrial park in view of violation of EC condition of getting of NoC prior to starting construction. During pendency of the application, CTE to the Project Proponent has been granted by respondent No.3-UPPCB on 01.06.2022 and Completion certificate dated 28.06.2022 has been issued by respondent No.6-GDA under Section 15A (2) of the Uttar Pradesh Town Planning and Development Act, 1973 subject to the compliance with consent conditions.
Vide Order dated 08.09.2022 this Tribunal directed Respondent no. 8 - Project Proponent to file affidavit regarding compliance by it with consent conditions imposed by respondents no. 2 and 3 and Respondents no. 2 and 3 were also directed to file verification reports regarding compliance by respondent no. 8 with the consent conditions imposed by respondents no. 2 and 3 on it.
In compliance thereof Affidavit has been filed by respondent no. 8-Project Proponent vide email dated 30.01.2023. Relevant part of the compliance affidavit is reproduced as under:-
"…..4. Vide the reply dated 19.07.2022, the Project Proponent has informed this Hon’ble Tribunal about all the permissions which have been duly taken from various authorities, such as, Map Sanction Letter by Ghaziabad Development Authority, No Objection Certificate from Public Works Department, No Objection Certificate from Uttar Pradesh Fire Services, No Objection Certificate from Paschimanchal Vidyut Vitran Nigam Ltd., No Objection by Ghaziabad Municipal Corporation for development of Industrial Park on the proposed Khasras, Connection Letter by Water Department of Ghaziabad Municipal Corporation granting Water and Sewer Connection, No Objection Certificate from Northern Railway Department of Indian Railways, Tehsildar Report by the Tehsildars of Jhandapur, Jagola and Pasonda who conducted a survey and certified that the Project Land was undisputed and in ownership of the Project Proponent.
In addition to the above, the Project Proponent has also received Environmental Clearance from U.P. SEIAA (Respondent No. 2) and Consent to Establish from the Uttar Pradesh Pollution Control Board (Respondent No. 3). That this Hon'ble Tribunal vide its Order dated 08.09.2022 had directed the Project Proponent to file an Affidavit regarding compliance of conditions imposed by Respondent No. 2 and 3.
That in compliance of the aforesaid directions, the Project Proponent is hereby filing the present Affidavit specifically undertaking that it has complied with all the necessary conditions imposed by Respondent No. 2 while grant of Environmental Clearance and that it has complied with all the necessary conditions imposed by Respondent No. 3 while grant of Consent to Establish which were applicable on the Project Proponent.
The Project Proponent undertakes that all the compliances as applicable to the Project Proponent have been duly complied with for the purpose of present Project. That it was subsequent to such compliances that the Uttar Pradesh Pollution Control Board has also issued Consent to Operate dated 10.08.2022 under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 and Section 21 of Air (Prevention & Control of pollution) Act, 1981, These permissions/No Objections/Clearances/Report clearly show that the Project Proponent has legally developed this Industrial Park for Green and White category Industries which are non-polluting. Various Micro, Small and Medium Scale Enterprises (MSME) have invested in the Industrial Park for setting up White/Green Industries.
That the scope of Project Proponent's work was limited to preparing and plotting the land, and the Project Proponent is not establishing any Industry whatsoever inside the Industrial Park. Therefore, the contention of Applicants that the Project Proponent had started construction of Industries is completely misplaced and erroneous. The scope of Project Proponent's work was limited to plotting and development of basic infrastructure, such as, roads, sewage treatment plants, boundary wall, water/electricity connections, developing green belt, developing rain water harvesting ponds, etc. All such work has already been duly completed by the Project Proponent. After completion of such development, the Project Proponent has been awarded with Completion Certificate dated 28.06.2022 by the Ghaziabad Development Authority….."
No verification report has been filed by respondent No.2-SEIAA, UP but detailed Verification Report in tabular format has been filed by respondent No.3 (UPPCB) vide email dated 28.01.2023. In the Verification Report Respondent No.3 -UPPCB has mentioned in detail the aspects regarding which compliance has been made while highlighting the aspects regarding which compliance has not been made.
Response to the report of respondent No.3 (UPPCB) and Rejoinder to the reply of respondent no. 8 (Project Proponent) have been filed by the applicants vide emails dated 05.04.2023 pointing out in detail the aspects of non-compliance with EC and CTE/CTO consent Conditions. The applicants have submitted that setting up of 366 industries by respondent no. 8 in critical area of Ghaziabad is detrimental to the environment and in complete disregard to the carrying capacity. The applicant has pointed out the deficiencies on the matter of obtaining necessary clearances for the abstraction and use of ground water, on the matter of building/parking space within the Project boundary, on the matter of development of green area in 15 % of the total plot area and on the matter of establishing white and green industries. The applicants have submitted that respondent no. 8 the Project Proponent deliberately plotted and sold the plot to individual owners even before obtaining CTE from the UPPCB which resulted in the start of construction activities by the individual plot owners and thereby violated the EC conditions. In rejoinder to the reply filed by the Project Proponent, applicants have submitted that the present application has not become infructuous. The respondent no. 8-the Project Proponent is trying to avoid liability for gross violations by claiming that respondent no. 8-the Project Proponent undertook activities to safe guard environment and has already paid environmental compensation. The environmental compensation imposed on respondents no. 8-the Project Proponent was grossly inadequate and was not as per financial capacity of the respondent no. 8-the Project Proponent.
It may be observed here that the Plot on which the Industrial Park has been set up was originally allocated for industrial usage and by development of industrial park on the same the respondent no. 8-the Project Proponent cannot be said to have altered the nature of use of the land and to have violated any environmental norms. The requisite NoCs/Permissions for setting up the industrial park have been obtained by respondent no. 8-the Project Proponent. The applicant did not file any appeal challenging grant of environmental clearance on the ground of being violative of the orders passed by this Tribunal or any environmental norms. The applicants are now seeking cancellation of EC on the ground of violation of EC condition of seeking NoC before starting construction and also on the ground of other alleged violations.
The Project Proponent has given a specific undertaking dated 19. 05.2022 that only Green and White category industries shall be set up in the said Industrial Park. At this stage, there is no cogent material to doubt the correctness of the undertaking of respondent no. 8-the Project Proponent so as to hold that Red or Orange category industry is likely to be set up in the said industrial park. It is not disputed that the plots have been/are being transferred for the individual industrial units by registered sale deeds. Nature of industries setup/being set up by the individual plot holders can be verified by the UPPCB by carrying out the requisite inspections or seeking the requisite information by issuing notices to the individual plot holders. In case any Red or Orange category industry is illegally set up, UPPCB will be entitled to take remedial action including issuance of direction for closure. Setting up of White and Green Industries does not involve any violation of order passed by this Tribunal in O.A No. 1038/2018 and environmental norms. The Project Proponent has taken a water and sewer connection from the Water Department of Ghaziabad Municipal Corporation vide letter dated 13.03.2020 and has also undertaken not to use the ground water. In case any individual plot holder has dug any borewell or extracts ground water illegally without permission from the concerned Authorities, remedial action for sealing the borewell and imposition of environmental compensation can be taken by the concerned Authorities.
Allegations have been made by the applicants regarding alleged non-compliance with some of the EC/CTE/CTO conditions which are vehemently disputed/denied by respondent no. 8-the Project Proponent. Distinction has to be made regarding conditions required to be complied with by the respondent no.8-Project Proponent and conditions required to be complied with by the individual plot holders and regarding the stage when conditions are required to be complied with before start of execution, during execution and completion of the project of Industrial Park and individual plot holders and liability of respondent no. 8-Project Proponent has to be determined on due consideration of the relevant aspects and responsible factors. The status of compliance with EC/CTE/CTO conditions including conditions regarding STP, green-belt, parking etc. can be determined by respondent No.3-UPPCB which has ample powers under the Environment (Protection) Act, 1986 and the Water (Prevention and Control of Pollution Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 for taking of remedial action including passing order for closure and/or imposition and recovery of environmental compensation and prosecution of the defaulters for ensuring due compliance with EC/CTE/CTO conditions.
Admittedly, environmental compensation imposed on the respondent no. 8-the Project Proponent earlier has already been deposited for alleged past violations. The respondent no. 3- UPPCB will be entitled to initiate/continue with proceedings for imposition of environmental compensation/prosecution of the respondent no. 8-the Project Proponent for the past violations. In the eventuality of the applicants or the respondent No.8-Project Proponent having any grievance, they shall be entitled to avail appropriate remedy in accordance with law.
The relief of issuance of directions to the respondent authorities to take action including stoppage of all construction against the Project Proponent Durga Enterprises Pvt Ltd for starting construction and selling industrial plots without NOC from UPPCB and to cancel the EC granted to the industrial park in view of violation of EC condition of getting of NoC prior to starting construction have become infructuous after grant of CTE/CTO by UPPCB and issuance of completion certificate by respondent No.6-GDA and the environmental clearance dated 15.01.2021 granted to the respondent No.8– the Project Proponent for setting up of Durga Industrial Park cannot be cancelled at this stage as prayed for on the ground of starting of construction before obtaining NoC from the UPPCB.
In view of the above discussed facts and circumstances, the present original application and I.A No. 186/2022 are disposed of as having become infructuous and ad-interim order dated 28.04.2022 stands vacated. The parities are left to bear their own costs of the proceedings.
A copy of this order be supplied to the applicants and respondents by email for information/compliance.