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NGT rejects Omaxe plea seeking recall of order finding it guilty in Chandigarh project

Omaxe's submission that there is a violation of natural justice as it was not heard during formation of the committee that found it guilty of changing river Siswan's course was rejected.

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New Delhi: The National Green Tribunal has rapped Omaxee Ltd over its project in Chandigarh while dismissing the realty developer’s plea seeking to recall the order for formation on a committee which found it guilty of changing the course of a river.

The NGT rejected Omaxe’s submission that there is violation of natural justice as it was not heard while formation of committee.

A bench headed by NGT Chairperson Justice Adarsh Kumar Goel said principles of natural justice are intended to ensure fairness in procedure and they do not have any fix content.

The NGT said that through its first order dated September 25, 2019 it noted the grievance and sought a factual and action taken report (ATR) from the statutory regulators.

According to real estate developer, report could not be called without hearing the Omaxe. We are unable to accept the submission. No prejudice is shown by merely ascertaining facts. There is no legal requirement of prior hearing before seeking a factual report, the bench said.

Through its second-order dated March 3, 2020, the NGT directed compliance of the recommendations of the statutory regulators.

If stand of Omaxe itself is to be enforced, where is the prejudice. The stand is not even now disputed. In any case, Omaxe could have moved this Tribunal, if it had grievance in that regard, the bench said.

The NGT said that through its third-order dated October 1, 2020 it found that the real estate developer failed to comply with its earlier stand and officers of the State took contrary stands one view being that there was diversion of the river while contrary view was that there was no diversion.

Thus, the Tribunal sought reconciliation of conflict from the Chief Secretary to which no objection could be raised by anyone nor any prejudice was caused.

All throughout even without formal notice, the Omaxe was duly associated in all proceedings which is clear from the appearance of Counsel for Omaxe before this Tribunal even without any notice, the bench said.

The tribunal said that it’s last order dated February 24, 2021 was passed in the presence of counsel appearing for the builder, even though formal notice was not issued. No grievance of prejudice by earlier orders was raised.

Further, no prejudice was caused by the said order as the Committee was expressly required to give opportunity to the stakeholders and such opportunity has in fact been given.

Further, the report could be accessed from website in terms of the said order and objections filed. We thus find that the prayer for recall of the said orders de hors the prejudice has no merit, the bench said.

The tribunal said the Committee headed by a former Judge of the High Court and comprising former Chief Secretary of the State and former Member Secretary of the State PCB visited the site and gave opportunity to all the Stake holders and noted the admission of Omaxe that it has to restore the diversion of the river by making necessary culverts.

Omaxe now wants to go back from its earlier stand by raising hyper technicality in the name of natural justice. Its stand is clearly unjust and unfair and not for justice, as forcefully pleaded against record the bench said.

The NGT said that the committee visited the site and considered and rejected the stand of Respondent Nos. 9 and 10 (Omaxe) that private owners had diverted the flow.

It was found that it was Respondent Nos. 9 and 10 who had disturbed the natural drainage system of the area due to which the creek water was stagnating which could be remedied by construction of a culvert.

The land is to be provided by the Department of Water Resources and construction is to be carried out by the Greater Mohali Area Development Authority at the cost of Respondent Nos. 9 and 10 for which they have already given consent, the bench said.

The tribunal said the recommendations for remedial action by builder is based on their own consent and attempt is to wriggle out form the same on the basis of hyper technicality of formal notice.

There is thus absolutely no case for recall of orders nor there is any ground to reject the report of the Committee which is hereby is dismissed.

We request the Committee to look into the issue in respect of Village Kansala and give a further supplementary report on the subject as far as possible within two months by e-mail, the bench said.

It will be open to the concerned stakeholders to put forward their respective viewpoint before the Committee by way of written representation and/or personal appearance which may be duly considered by the Committee, the NGT said.

The tribunal was hearing a plea filed by Punjab resident Harminder Singh and others alleging that Omaxe Ltd and Omaxe Chandigarh Extension Developers Pvt. Ltd had set up residential complex project called ‘The Lake’ in Mohali.

This project is obstructing the natural flow of river Sisvan by filling up and closing a part of it in village Bharoujian and diverting it to another place nearby in village Kansala, Sub Tehsil Majri, DistrictS Nagar, Mohali, the plea said.

The applicant relied upon Google image photographs showing that there was a rivulet in the year 2003 and road has been constructed without making any culvert to maintain natural flow of the river.

Also read: How do SC, NGT judgments impact the economy? NITI Aayog commissions study to find out


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