National Green Tribunal
Meenava Thanthai Kr Selvaraj Kumar ... vs State Of Tamilnadu on 30 January, 2024
Author: K. Satyagopal
Bench: K. Satyagopal
Item No.1:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Dated this the 30th day of January, 2024.
(Through Video Conference)
Original Application No.224 of 2021(SZ)
IN THE MATTER OF
MeenavaThanthai K.R. Selvaraj Kumar
Meenavar Nala Sangam
(Registered under Section 10 of the Tamil Nadu
Societies Act, in SI. No. 205 of 2015 dated 26.06.2015)
Represented b its President,
M.R. Thiyagarajan,
S/o Late C. Rajalingam,
Office at No. 48, East Madha Church Street,
Royapuram, Chennai- 600 013.
...Applicant(s)
Versus
1. State of Tamil Nadu,
Through the Chief Secretary,
Government of Tamil Nadu, Secretariat,
Chennai- 600 009.
2. State Environment Impact Assessment Authority,
Through the Chairman,
3rd Floor, Pangal Maligai,
No.1, Jeenis Road, Saidapet, Chennai- 600 015.
3. Tamil Nadu State Coastal Zone Management Authority,
Through the Chairman,
Ground Floor, Panagal Maligai,
No.1, Jeenis Road, Saidapet, Chennai- 600 015.
4. Tamil Nadu Pollution Control Board,
Through the Chairman,
76, Mount Salai,
Guindy, Chennai- 600 032.
5. M.R.F. Limited
Through the Director,
Registered Office:
No. 114, Greams Road, Chennai- 600 006.
Project Site:
Survey No. 175(part) of Ernavoor Village &
Survey No. 6/1A1 of Thiruvottiyour Village in
T.S. NO. 3, 5/1A, 5/2A, Thiruvottiyur,
Ambattur -Taluk, Tiruvallur District,
Tamil Nadu- 600 019.
...Respondent(s)
Page 1 of 18
For Applicant(s): Mr. G. Stanly Hebzon Singh.
For Respondent(s): Dr. D. Shanmuganathan for R1, R3.
Mr. G.M. Syed Nurullah Sheriff for R2.
Mr. S. Sai Sathya Jith for R4.
Mr. M. Vijayan and Mr. M. Kumaresan
For M/s. King & Partridge for R5.
Judgment Reserved on: 21st December, 2023.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The applicant alleging illegal, unauthorised and unscientific manner in which tyre manufacturing unit is being run by the 5th respondent/MRF Limited without obtaining the Environmental Clearance and CRZ Clearance has filed the above application to initiate action against the 5th respondent and demolish the illegal and unauthorised structure erected without obtaining the CRZ clearance.
2. The 5th respondent, who is the MRF Limited, is a company which was set up for the manufacture and production of tyres. The said company is situated in Sy. No. 175/part of Ernavoor Village and Sy. No. 6/1A1 of Thiruvottiyur Village and Sy. Nos. 3,5/1A, 5/2A, Ambattur Taluk, Tiruvallur District. It is alleged that the company does not have prior Environmental Clearance as well as CRZ clearance from the concerned authorities. Further allegation is that manufacturing activities are being conducted in the impugned site under the guise of warehouse for availing the benefits of Gazette Notification No. S.O. 3252 (E) dated 22.12.2004 issued by the MoEF&CC.
Page 2 of 183. According to the applicant, the project proponent site is located 1.5km from the Buckingham Canal, 0.80 km from the Bay of Bengal and 3.5 km from the Coovum River. Apart from the above several red category industries are also functioning near the project site. As the impugned site falls under the CRZ-II zone as per the CZMA map, it is mandatory to obtain the CRZ clearance from the CZMA. The further allegation is that the project proponent had not obtained consent to establish/operate for the activity and the discharge of trade effluent directly into the CRZ zone without an effluent treatment plant.
4. The next ground alleged is discharge of untreated effluent directly into the CRZ zone by degrading the coastal eco system and violating the provisions of the CRZ notification. The 5th respondent also had submitted Form-I, Form-IA and a conceptual plan on 16.11.2016 for the Environmental Clearance from the SEIAA, Tamil Nadu.
5. The application filed by the project proponent claimed to be for the proposed construction of warehouse to the extent of 29,676 sq.m in the above referred site. However, on 01.08.2017 the said application was withdrawn by the project proponent claiming benefit under S.O. 3252 (E) dated 22.12.2014 wherein the Ministry has exempted the industrial shed, schools, college and hostels for educational institution from obtaining prior Environmental Clearance. According to the applicant, the warehouse constructed for the purpose of housing raw materials and finished products was later converted and used for the purpose of industrial activities such as manufacture, testing and production of tyres without obtaining Environmental Clearance and CRZ clearance.
6. Besides having not applied the required clearances viz. Environmental Clearance and CRZ clearance, the project proponent also had been extracting the ground water in the CRZ zone for the purpose of industrial and other activities against the provisions of CRZ Notification which is a blatant violation of the CRZ notification leading to degradation of coastal region. On the above allegations, the applicant has sought for taking action against the 5th respondent and demolish all the illegal and Page 3 of 18 unauthorised structures and restrain it from discharging the untreated effluent directly into the CRZ zone.
7. The 2nd respondent, who is SEIAA - Tamil Nadu, had filed their counters. The project proponent, MRF Limited had applied online for Environmental Clearance on 30.1.2016 for the proposed construction of warehousing for storing raw material and finished goods with a total built up area of 29,675.94 sq.m under "B2" category of Schedule 8(a). The proposal was placed in the 92nd meeting of the SEAC on 11.07.2017. Based on the presentation the Committee inferred that the project might attract CRZ regulation and deferred the proposal and directed the project proponent to approach the Tamil Nadu Coastal Zone Management Authority (TNCZMA) for their appraisal and decision regarding the CRZ clearance. This was also communicated to the project proponent on 13.07.2017. Later on 01.08.2017 the project proponent addressed a letter to the SEIAA stating that the notification of MoEF&CC had exempted industrial shed, schools, college and hostel for educational institutions from the requirement of prior Environmental Clearance. As the word "industrial shed" implies building whether RCC or otherwise which is being used for housing plant and machinery of industrial units and shall include godowns and buildings connected with production related and other associated activities of the units in the same premises. Their project is also exempted from getting prior Environmental Clearance, therefore, the 5th respondent had withdrawn their application for obtaining Environmental Clearance. The said letter for withdrawal of Environmental Clearance application was considered by SEIAA and it was decided to direct the 5 th respondent to obtain the CRZ clearance and on receipt of the recommendation of the TNCZMA for issuance of CRZ clearance, the withdrawal application can be considered. The said decision was also communicated to the 5th respondent.
8. In the meanwhile, the above Original Application came to be filed and a joint committee was constituted for inspecting the premises and filing a report. The withdrawal of the Environmental Clearance application dated 01.08.2017 through „PARIVESH‟ website was allowed to be withdrawn on 04.01.2021.
Page 4 of 189. In the additional counter filed by the SEIAA - Tamil Nadu, it has referred to S.O 3252 dated 22.12.2014 wherein industrial shed, schools, college and hostel for educational institutions were exempted from obtaining the Environmental Clearance. However, it is stated that as per O.M. dated 04.10.2022 the MoEF&CC had stated that if the size of the industrial shed is more than 1,50,000 sq.m of built up area it shall be required to obtain prior Environmental Clearance under Item 8(b) of the EIA Notification, irrespective of type of industry/utility it houses. The SEIAA also had referred the O.M. dated 01.09.2022 issued by the MoEF&CC which reads as follows:
"2. In view of receipt of other such representations seeking clarification on applicability of EIA Notification, 2006 for undertaking various R&D activities, matter has been exempted afresh in light of the earlier recommendations of the Expert Committee as mentioned above. Accordingly, it is hereby clarified that R&D activities on laboratory scale/pilot scale carried out for the projects or activities which are listed in the schedule to the EIA Notification, 2006, as amended and where no commercial production is involved, are exempted from the requirement of prior EC, provided such activities are clearly mentioned as R&D activities in the consents obtained from the respective State Pollution Control Boards.
3. In case an R&D facility is setup within the premises of an activity/project that attracts the provisions of EIA Notification and has been granted EC, the R&D activity shall not cause any change in product mix or increase in the production capacity or the pollution load from that which is mentioned in the EC granted to the project. The consents obtained from the respective State Pollution Control Boards for the project/activity requiring prior EC shall also clearly indicate or mention the details of R&D facility in the premises where the said R&D facility is being setup."
10. The 3rd respondent, which is Tamil Nadu State Coastal Zone Management Authority, in its counter has stated that the project proponent had proposed construction of industrial shed for raw material and finished products with allied facilities in a total plot area of 48,206.59sqm and the total built up area is 29,515.80 sqm. The details furnished by the project proponent are:
(i) The project area is falling on the landward side of the existing road at Thiruvottiyur and the project site is falling in CRZ-II.Page 5 of 18
(ii) As per Para-8(i) II CRZ II (ii) of CRZ Notification, 2011 building shall be permitted on the landward side of the existing and proposed roads.
(iii) Para-4(i)(d) of the CRZ Notification says construction involving more than 20,000 sqm built up area in CRZ-II shall be considered for approval in accordance with EIA Notification, 2006. The recommendation of concerned CZMA shall be essential for considering the grant of Environmental Clearance under EIA Notification, 2006 or for approval by the relevant planning authority.
(iv) DCZMA had recommended the project for CRZ Notification, 2011 to the TNCZMA subject to the conditions mentioned therein.
11. In the meeting held on 25.01.2018, the authorities decided to clear the proposal and clearance was issued for the above proposal subject to the conditions. As the applicant applied to CMDA for reclassification from primary residential use zone to special and hazardous industrial use zone and the CMDA approved the application for reclassification and advised to obtain CRZ clearance mentioning the new scope of work. The project proponent applied for amendment in the above clearance dated 12.08.2018 to include tyre testing activity in addition to the warehousing. TNCZMA also had issued clearance for the construction of warehouse as per the Town and Country Planning regulation vide proceedings dated 12.02.2018. The project area has been changed as "Special and Hazardous Use Zone" from CMDA to facilitate setting up of tyre testing unit. The CMDA has informed that reclassification is allowed only for setting up a tyre testing unit.
12. The TNCZMA has specifically stated that setting up of new industries and expansion of existing industries are prohibited activities hence setting up of tyre testing unit may be allowed only if it is considered as R&D activity and if the said tyre testing activity is considered as part of operations, process or expansion activity, then the said unit shall not be allowed. The CZMA on 25.07.2019 had resolved to clear the proposal as the project proponent had informed that tyre testing activity is Page 6 of 18 purely meant for R&D activity and the said activity is not under the part of any process/operations/expansion activities. Accordingly, the clearance was issued under para 8(i) II, CRZII
(i), (ii) and (iii) for the above project subject to certain specific conditions.
13. There was a change in the proposed built up area from 29,515.80 sq.m to 29,542.16 sq.m. Therefore, an amendment was required for existing clearance dated 31.07.2019. As there was no change in the total project area of the project viz., 48,206.59 sq.m., the CZMA on 26.09.2019 amended the built up area of the project as 29,542.16 sq.m. instead of 29,515.80 sq.m. subject to the additional conditions. Accordingly, the project proponent had obtained the CRZ clearance.
14. The 4th respondent, Tamil Nadu Pollution Control Board, had filed its report dated 16.12.2021. The Pollution Control Board had stated that the MRF unit is in existence since 1946 and obtained consent of the Board and subsequently renewed upto 31.03.2022 for the product and disposal of sewage etc. During 2017 when the project proponent proposed to construct a warehouse obtained the planning permission from CMDA and applied for Environmental Clearance with the 2nd respondent. In view of the Notification of the MoEF&CC in S.O 3252 (E) dated 22.12.2014, the construction of the industrial shed is exempted from obtaining the Environmental Clearance. However, the project would attract CRZ regulation and hence directed the project proponent to submit an application for seeking CRZ clearance.
15. Further, CMDA had revoked the planning permission on 17.11.2017 and directed the project proponent not to proceed with the construction as it has obtained prior Environmental Clearance. However, when it was informed that the project was exempted the CMDA had informed that there was no violation by the project proponent excepting non obtaining of the Environmental Clearance.
Page 7 of 1816. Based on the CRZ clearance, the project proponent had applied for consent to establish and the same was issued by the Pollution Control Board on 17.09.2019 which is valid upto 31.03.2024 for product as well as disposal. As per the inspection carried on 15.11.2021 pursuant to the direction of this Tribunal it was found that all the construction works were completed in the warehouse and the tyre testing facility. The warehouse and the tyre testing facility are located within the said premises and separated by compound wall. The tyre testing facility is in no way connected with the existing tyre manufacturing unit located at S.F. No. 171/part, 174, 175. The tyre testing facility, machinery was under erection and trial run for vibration checking is under progress. The unit has provided 12 KLD sewage treatment plant for treatment of sewage generated from the unit. However, the unit has obtained water commitment letter dated 21.04.2017 informing that the requirement of water is 06 KLD and to be supplied through mobile water lorry and the disposal of sewage is to be done by sewer lorry by making respective parent in their area office. The unit has also provided fire hydrant system, sprinkler arrangement and smoke detectors in the warehouse. The EB connection is yet to be issued. The unit also applied for CRZ clearance for further expansion of warehouse tyre testing facility, R&D for establishing aerobic chamber for testing aircraft tyres.
17. Therefore, the Pollution Control Board had reported that the project proponent‟s tyre testing facility and warehouse unit had obtained CRZ clearance, consent to establish, planning permission, completion certificate and are in the process of applying for consent to operation from the Pollution Control Board.
18. From the above pleadings, the questions that arise for consideration are:-
(i) Whether the project requires an Environmental Clearance?
(ii) Whether the project requires a CRZ clearance?
(iii) Whether the application has to be allowed on the ground raised?Page 8 of 18
19. The 5th respondent, the project proponent hereinafter will be called as „MRF‟ is established in the year 1946 which is an Indian tyre manufacturing company. The MRF in order to undertake a warehouse project adjacent to factory submitted an application to the 2nd respondent, SEIAA seeking Environmental Clearance on 16.11.2016. When the MRF was called for presentation of the proposal on 11.07.2017 it was advised to withdraw the Environmental Clearance application and was directed to submit application for CRZ approval as it falls within the CRZ-II. This fact is evident from the letter dated 21.07.2017 produced by the applicant as well as the MRF. The relevant portion of the letter is usefully extracted below:
"On initial scrutiny of the application, you were requested to submit additional details vide this office letter dated: 14.03.2017. Subsequently, the project was placed before the 92nd SEAC meeting held on 11.07.2017. Based on the presentation made by the proponent, the Committee inferred that the project might attract CRZ regulation and hence deferred the proposal. The Committee also directed the proponent to approach the Tamil Nadu Coastal Zone Management Authority for their appraisal and decision regarding the CRZ clearance.
The project proponent in your letter dated: 07.08.2017 informed that you have applied for EC for the proposed project with the intention of the EIA Notification, 2006 that all the construction projects with built up area greater than 20,000 sq.m need to obtain prior Environmental Clearance. As per MoEF Notification No. S.O. 3252 (E) dated 22nd December, 2014, the construction of industrial shed, school, college, hostel for educational institution has been exempted for obtaining EC. As per the notification "The word „industrial shed‟ implies building (whether RCC or otherwise) which is being used for housing plant and machinery of industrial units and shall include godowns and buildings connected with production related and other associate activities of the units in the same premises". Since the project is an industrial shed which involves housing of raw materials and finished products, the proposed project is exempted from getting prior Environmental Clearance."
20. Accordingly, on 01.08.2017, the MRF has submitted a letter to SEIAA for withdrawing the proposed Environmental Clearance as the proposed construction by the MRF is an industrial shed which is exempted under the EIA Notification, 2006. In the meanwhile, on 03.04.2017 MRF had obtained planning permission from CMDA. However, on 17.11.2017 CMDA had revoked the planning permission granted on the ground that Environmental Clearance was not obtained from SEIAA. While so MRF submitted an application to the TNCZMA for the clearance under CRZ Notification, 2011. The TNCZMA vide letter dated 12.02.2018 granted clearance under para-8(i) II CRZ-II of CRZ Page 9 of 18 Notification, 2011. Then, the MRF submitted an application to the CMDA on 30.11.2018 for the land reclassification from primary residential zone to special hazardous zone. Subsequently, CMDA approved the land classification and approved the inclusion of tyre facility and insisted that MRF shall get the approval from TNCZMA. Further MRF submitted an application to TNCZMA on 27.06.2019 for the approval of tyre testing facility which was approved by the TNCZMA on 31.07.2019. Thus MRF had obtained the following permission or approvals:
1. Planning permit 03.04.2017 and 18.12.2019
2. CRZ approval 12.02.2018, 31.07.2019 and 03.10.2019
3. Construction completion 07.12.2021 certificate from CMDA
4. Building permission from Chennai 20.02.2022 Corporation
5. Consent to Establish from TNPCB 17.09.2019
6. CMWSSB approval 21.04.2017
7. Consent to Operate from TNPCB 03.09.2022.
21. When all the above referred approvals were obtained even before filing of the Original Application, it is alleged that the application is filed by the applicant only with an intention to harass the 5th respondent. MRF had made an application with SEIAA for Environmental Clearance as early as on 16.11.2016. It is only at the advice of the SEIAA who directed to withdraw the application and make an application to CZMA for CRZ approval, the MRF had withdrawn the application. The said withdrawal is based on the notification no. S.O 3252 (E) dated 22.12.2014 wherein construction of industrial shed has been exempted from obtaining the Environmental Clearance.
22. Since the project of the MRF is an industrial shed which involves housing of raw materials and finished products, the project is exempted from prior Environmental Clearance from SEIAA. According to the MRF the project site is meant only for tyre testing facility and warehouse operations which comes under the orange category and located in Ambattur Taluk, Tiruvallur District.Page 10 of 18
23. Admittedly, the project site falls under CRZ-II as per the CZMA map. The MRF has submitted an application for construction of industrial shed for getting clearance under CRZ Notification, 2011. The TNCZMA also approved the project and granted clearance for built up area of 29,542.16 sq.m. As the industry had already obtained the CRZ clearance the allegation that it is constructed without CRZ clearance is rejected.
24. It is only pursuant to the letter dated 21.07.2017 issued by the SEIAA, Tamil Nadu advising the MRF to withdraw the application for Environmental Clearance and get clearance from TNCZMA, MRF had withdrawn the application. In the meanwhile the TNCZMA had approved the project and granted clearance holding the project area is following on the landward side of the existing road of Thiruvottiyur and project area is falling in CRZ-II and building shall be permitted on the landward side of the existing road. MRF also submitted an application to the CMDA for the land reclassification which was also granted on 16.04.2019. Therefore, the allegation of the applicant that there was no valid Environmental Clearance, CRZ clearance and CMDA approval etc. are absolutely baseless and are liable to be rejected.
25. The allegation of the applicant that the MRF is extracting ground water from the CRZ zone is denied and it was stated that tanker water lorry is used for construction activity.
The MRF also constructed water storage capacity of 8.5 KLD at the vicinity to store the water for the human consumption which would be procured from metro water source or any other approved source. The allegation that the MRF is converting the warehouse into industrial unit is also totally denied by the MRF.
26. Even the Joint Committee which was constituted by this Tribunal also has found that it is only based on the letter dated 21.07.2017 by SEIAA, the application for Environmental Clearance was withdrawn and CRZ clearance was obtained. The Member Secretary of SEIAA had issued clarification dated 03.07.2020 regarding the S.O.3252 (E) dated 22.02.2014 which reads as follows:
Page 11 of 18"1. As per the EIA Notification, 2006 as amended, item No. 8(a) Building > 20000 sq.m. Note1. The projects or activities shall not include industrial shed, school, college, hostel for educational institution, but such building shall ensure sustainable environmental management, solid and liquid waste management, rain water harvesting and may use recycled materials such as fly ash bricks.
2. As per the EIA Notification, 2006 as amended item No. 7
(c). Note-2.If the area is less than 500 ha. But contains building and construction projects 20,000 sqm and or development area more than 50 ha it will be treated as activity listed at serial no.
Ar 8(b) in the Schedule, as the case may be.
3. The same has been reiterated through GO vide SO 3252 (E) dated 22.12.2014 and subsequent OM vide F. No. 19-2/2014- 1A-III dated 06.03.2015 which states that "The word „industrial shed‟ implies building (Whether RCC or otherwise) which is being used for Housing Plant and Machinery of industrial units and shall include Godowns and Buildings connected with production related and other associated activities of the unit in the same premises.
4. The project proponent also informed that the proposed industrial shed for Light Engineering, Assembling Industrial Storage and Logistics Park with Two (2) Nos of Industrial shed along with amenity structures 5. The project proponent also stated that the total built up area will be less than 1,50,000 sq.m and shall not house any industry attracting Category „A‟ and „B‟ of EIA Notification, 2006 under any circumstances.
5. Considering the above facts, it is informed the proposed activities does not require prior environmental clearance and no industry/activity covered under the schedule of EIA Notification, 2006 and its subsequent amendment attracting prior environmental Clearance shall be carried out with the total built up area not exceeding 1,50,000 sq.m"
27. In view of the above clarification, the Joint Committee members concluded that in view of the letter of the SEIAA, Tamil Nadu dated 21.07.2017, the proposed project is exempted from obtaining prior Environmental Clearance and directed the unit to obtain CRZ clearance after which the withdrawal application will be considered. One of the members of the Joint Committee Thiru D. Velalagan, Expert Member, SEAC, Tamil Nadu has expressed dissenting views on the applicability/obtaining of Environmental Clearance regarding industrial shed for MRF. He has opined that MRF has to obtain the Environmental Clearance because that land survey number cannot be used for industrial activity since it falls within the CRZ zone. As per the SEIAA letter dated 21.07.2017, MRF was directed to obtain CRZ zone clearance and then only withdrawal of the Environmental Clearance will be considered. It was stated that as on date Environmental Clearance application is pending with the SEIAA.Page 12 of 18
28. Regarding any construction that was made without obtaining permission, the Joint Committee had found that CMDA had issued the building permit dated 03.04.2017 for establishment of warehouse with a condition that the construction shall be commenced only after obtaining Environmental Clearance from SEIAA. Based on the same, the MRF has applied for the Environmental Clearance wherein, it was clarified that Environmental Clearance was not required for such project. However directed them to get CRZ clearance. Thereafter, the project proponent applied for CRZ clearance from the TNCZMA and obtained the same on 12.02.2018.
29. To be noted in this regard is that the CMDA had issued the planning permission on 03.04.2017 before the MRF obtained the CRZ clearance. Later CMDA revoked the planning permission on 17.11.2017 and requested the MRF not to proceed with the construction without obtaining the Environmental Clearance and CRZ clearance. However, the MRF had pointed out the notification S.O 3252 (E) dated 22.12.2014 wherein industrial shed including godowns are exempted from obtaining Environmental Clearance and they commenced the construction and informed the DCZMA and TNCZMA accordingly. The CMDA also had informed construction is in various stages and had not indicated any violation by the MRF in respect of the construction excepting obtaining the Environmental Clearance which is not required under S.O 3252 (E).
30. In view of the above, the CMDA had revoked the planning permission on receipt of the letter from the TNCZMA. Therefore, it is clear that MRF had commenced the activity after obtaining the CMDA approval and thereafter stopped the construction upon the revocation order. Further the MRF had obtained the amendment to CRZ clearance on 31.07.2019 for including the tyre testing facility. Again the 2nd amendment was obtained on 03.10.2019 to make construction for a built up area of 29,542.16 sq.m. Hence no discrepancy was found in the method of procedure by MRF by the Joint Committee.
31. Further, regarding the illegal extraction of water by drilling bore wells, the Joint Committee observed that the MRF is Page 13 of 18 outsourcing the water through CMWSSB and also produced the letter dated 21.04.2017 in this regard. The Joint Committee though held that there is no definitive methodology for assessing Environmental Compensation for the violations under CRZ notification and calculated the same as per Section 15 of the Environment (Protection) Act, 1986. The number of days of violation is taken from the date of issuance of planning permission i.e. 03.04.2017 by CMDA till the revocation of same by 20.11.2017 for 232 days and levied a compensation of Rs.12,60,000/- (Rupees Twelve Lakh Sixty Thousand only).
32. The 5th respondent/MRF has objected to the report of the Joint Committee and the dissenting note by one of the members of the Committee. In the dissenting note, Mr. D. Velazhagan, Member, SEAC, Tamil Nadu has stated that the MRF should obtain the Environmental Clearance because the land survey cannot be used for industrial activity since the same falls on CRZ zone area. So that construction activity should be considered as separate warehousing, testing and office purpose operation hence opined that MRF should obtain Environmental Clearance. However in its letter dated 21.07.2017, the SEIAA has only directed the MRF to obtain CRZ clearance before withdrawing the Environmental Clearance application.
33. The 5th respondent in his objection has stated that the dissenting member had made the observation regarding obtaining of Environmental Clearance because the land survey numbers cannot be used for industrial activity as it falls on CRZ zone area, it is factually incorrect. According to the MRF there are no industrial production activity being carried out in the area and since the objection is with regard to survey numbers falling in the CRZ zone that objection is also cleared as the TNCZMA had granted the CRZ clearance.
34. Regarding the construction alleged to have been made without obtaining necessary permission, it is to be seen that MRF had obtained the CMDA permission as early as on 03.04.2017 with the condition that construction shall be subject to approval of SEIAA. Though there was no requirement for obtaining Environmental Clearance for the type of construction of Page 14 of 18 industrial shed category and godown, the MRF in compliance of CMDA approval approached the SEIAA and applied for Environmental Clearance. The SEIAA itself has pointed out that industrial shed including godown is exempted from obtaining clearance under EIA Notification, hence MRF commenced its activity. Thereafter when the revocation order from the CMDA was received the construction activity was stopped. Once the CRZ clearance was granted and CMDA had restored the approval ratifying the construction carried out in the said premises, the MRF cannot be alleged for any violation. Whatever construction made by the MRF is in compliance with the CZMA and CMDA approvals and hence cannot be held to be illegal.
35. If the CRZ Clearance is mandatory for getting the approval from the CMDA, the CMDA ought to have got the same clarified before issuing the approval. However, it is only at the instance of the SCZMA - Tamil Nadu, the building permit was revoked for want of CRZ Clearance. The Project Proponent being aware that the proposed construction falls within the CRZ - II area ought to have approached the SCZMA - Tamil Nadu for securing necessary approvals prior to obtaining building plan approvals and commencement of the work. It is also the responsibility of the CMDA and other Planning and Development Authorities to insist on clearance from the SCZMA - Tamil Nadu prior to according required permissions. We warn the concerned officials to be more vigilant in ensuring that the permissions are not granted in CRZ areas without clearance from the SEIAA or MoEF&CC, as the case may be.
36. The Rules and Regulations framed and Notifications issued under the enactment prohibiting or regulating certain activities are only with a view to preserve and protect the environment. When the enactment contains certain provisions which prohibit certain type of activities, the legal provisions are to be effectively enforced. In this case, MRF/5th Respondent has obtained necessary clearances under the rules and notification only after being directed to do so. Therefore, it has to be held that the environmental compensation recommended by the Joint Committee is relevant and is sustained. However, the CMDA which has contributed to the negligence by not asking for the Page 15 of 18 CRZ Clearance and acting only at the instance of SCZMA - Tamil Nadu is equally liable to pay the environmental compensation. Hence, the CMDA is also equally liable for the damages caused to the environment and pay the environmental compensation. When the proposed construction is within the CRZ, the CMDA ought to have insisted on the CRZ Clearance from the SCZMA - Tamil Nadu before approving the building permit. Having failed to follow the procedure, for the ignorance and negligence of the CMDA, it is liable to pay a sum of not less than Rs.1,00,000/- (Rupees One Lakh only) as environmental compensation. As the CMDA is not a party respondent before us, they should be heard before the imposition of environmental compensation as mentioned above. Therefore, we direct the SEIAA - Tamil Nadu (Respondent No.2) to conduct an enquiry in this regard after affording an appropriate opportunity of a personal hearing to the CMDA and arrive at the environmental compensation payable for their negligent act which should be not less than Rs.1,00,000/- (Rupees One Lakh only).
37. It is also noted that the approval has been accorded by the SCZMA - Tamil Nadu to the Project Proponent invoking powers under Clause 8 - "Norms for regulation of activities permissible under this notification", interpreting that the power to regulate the construction activities in different categories of CRZ in accordance with the norms laid empowers them to grant approval under the Notification. However, the procedure for clearance of permissible activities has been clearly laid down in Clause 4.2 of the Notification, according to which, all projects attracting the Notification shall be considered for CRZ Clearance as per the prescribed procedure. Further, Clause 4.2 (i) (h) and Clause 4.2 (ii) clearly stipulates the SCZMA is empowered to make recommendations within a period of 60 days from the date of receipt of complete application either to the MoEF&CC or SEIAA as the case may be who are empowered to accord clearance for the permissible activities. Therefore, the present proposal is referred to the SEIAA for examination and for according formal clearance by imposing additional conditions, if any. However, the Project Proponent alone cannot be penalized for the acts of the SCZMA - Tamil Nadu in having granted the clearance at their level without referring to the SEIAA. It is Page 16 of 18 made very clear to the SCZMA - Tamil Nadu that henceforth they shall examine the proposals submitted to them and make necessary recommendations either to the SEIAA or to the MoEF&CC for CRZ Clearance instead of granting the clearance at their level.
38. In view of the above, the allegations set out in the application are not established by the applicant. Hence, the applicant fails. However, we direct the TNCZMA to follow the rules, notifications and adopt the same in the strict sense. The clearance accorded by the TNCZMA is referred to examine the proposal and impose additional conditions, if any and accord clearance under the CRZ Notification on merits of the proposal. Any conditions imposed by the regulatory bodies are also to be obeyed and obliged by the MRF/5th Respondent without infringing the same.
39. In order to ensure that the procedure prescribed for clearance is strictly followed by the SCZMAs, the MoEF&CC may issue necessary directions to all the SCZMAs to follow the procedure prescribed under the Notification and reiterate that clearances under the CRZ Notification are granted only by the SEIAA or MoEF&CC as stipulated by the Notification.
40. In the result,
(i) The Original Application [O.A. No.224 of 2021 (SZ)] is dismissed.
(ii) The 5th Respondent (MRF Limited) is directed to pay the environmental compensation of Rs.12,60,000/- (Rupees Twelve Lakh Sixty Thousand only) to the Tamil Nadu Pollution Control Board within a period of 4 (Four) weeks.
(iii) Having failed to follow the procedure, for the ignorance and negligence of the CMDA, it is liable to pay the environmental compensation.
As the CMDA is not a party respondent before Page 17 of 18 us, they should be heard before the imposition as mentioned above. The SEIAA - Tamil Nadu (Respondent No.2) is directed to conduct an enquiry as directed in Para 36 after affording an appropriate opportunity of a personal hearing to the CMDA and arrive at the environmental compensation payable for their negligent act which should be not less than Rs.1,00,000/- (Rupees One Lakh only).
Sd/-
....................................................J.M. (Smt. Justice PushpaSathyanarayana) Sd/-
.................................E.M. (Dr.SatyagopalKorlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.224/2021(SZ) 30th January, 2024.
AM & Mn.
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