National Green Tribunal
Srikanth Madhyastha vs The District Collector on 29 September, 2022
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 208 of 2021 (SZ)
(Through Video Conference)
IN THE MATTER OF
Srikanth Madhyastha,
S/o Shankaranarayana madhyastha,
#1-61-(2), Srimatt Road, Balekudru Village,
Hundarcutta, Balkudru,
Udupi, Karnataka- 576 218.
...Applicant(s)
Versus
1. The District Collector,
Udupi District,
Rajathadri,
Manipa, Udupi- 576 104,
Karnataka.
2. The Member Secretary,
State Level Envrionment Assessment Authority-Karnataka,
7th Floor, 4th Gate, M.S. Building,
Bangalore- 560 001
3. The Chairman,
Karnataka State Pollution Control Board,
Parisara Bhavan, 49, IV Floor,
Chruch Street,
Bangalore- 560 001.
Karnataka.
4. The Envrionmental Officer,
Karnataka State Pollution Control Board,
Parisara Bhavana Plot No. 36C,
Shivally Industrial Area, Manipal,
Udupi- 576 104.
5. The Regional Director (Environment),
Department of Environment and Ecology,
Government of karnataka, 1st Floor,
„C‟ Block, Rajathadri,
District Adminsitrative Centre,
Manipal, Udupi- 576104.
6. The Chairman,
Karnataka State Coastal Zone Management Authority,
4th Floor, M.S. Building,
Bangalore- 560 001,
Karnataka State.
7. The Secretary to Government,
Ministry of Environment, Forests and Climate Change,
Indira Paryavaran Bhavan,
Jor Bagh Rod, Aliganj,
New Delhi- 110003.
8. The Additional Principal Chief Conservator of Forest,
Regional Office,
Ministry of Envrionment & Forest (SZ),
1
kendriya Sadan, 4th Floor, E & F wings,
17th Main Road, Koramangal II Block,
Bangalore- 560 034,
Karnataka.
9. The Director,
Directorate of Fisheries,
3rd Floor, Podium Block, V.V. Tower,
Dr. B.R. Ambedkar Veedhi,
Bangalore- 560 001.
10. The Deputy Director,
Depatment of Fisheries,
2nd Floor, Bannanje,
Udupi Old Zilla Panchayath Building Udupi,
karnataka- 576 101.
11. M/s Yashaswini Fisheries,
Unit- I & II,
Represented by its Managing Partner,
B. Keshava Kundar,
situated at Survey Nos. 71/3, 71/5, 72/3, 72/21B & 71/6,
Balkudru Village,
Hangarkatte, Udupi Taluk & District,
12. Uma Devi,
W/o. B. Keshava Kundar,
Pandeshwara Village,
Sasthana Post,
Udupi Taluk and District,
Karnataka- 576226.
13. The Panchayat Development Officer,
Irodi Grama Panchayath, Irodi Village,
Brahmavara Taluk, Udupi District- 576 226.
14. The President,
School Development Monitoring Committee (SDMC),
Government Higher Primary School,
Hangarakatte Post, Balkudru Village,
Udupi Taluk and District,
Karnataka- 576 218.
...Respondent(s)
For Applicant(s): Mr. B. Thilak Narayanan
For Respondent(s): Mr. Rajat Jonathan Shaw for Mr. Darpan for R1,
R8 to R10, R13.
Ms. ME. Saraswathy for Ms. M. Sumathi for R7
Mr. M.V.V. Ramana for R11 and R12
Mr. Nishanth for Mr. M.R. Gokul Krishnan for R3
and R4
Judgment Reserved on: 23rd August, 2022.
Judgment Pronounced on: 29th September, 2022.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
2
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The issue involved in the above application revolves around construction and establishment of fish cutting, processing and powdering activity in the coastal regulation zone by the respondents 11 and 12. The applicant, who belongs to Balkudru Village which is situated on the banks of River Sita in the coastal Udupi District of Karnataka, has filed the above application alleging that the private respondent nos. 11 and 12 are carrying on their fish processing activity in the prohibited coastal regulation zone. Though, it is stated that the said units were set up in the year 2004 by one Mr. B. Keshava Kundar in Sy. Nos. 72/3, 72/21B, 71/6 of Balkudru Village in an extent of 58 cents, fearing political influence no action was taken.
2. It is alleged that 11th respondent, industry right from the beginning has been causing pollution in all forms, air, sound and water. The industry is situated in a densely populated area having around 100 families living very close to the industry. There is also a Government school, which is separated only by a wall from the industry. This school has been in existence from the year 1924 having primary and middle school. There is also an Anganwadi, where children below 05 are accommodated. Besides the above there are also various religious institutions like Baikadthiamma Temple, Sri Durga Parameshwari Temple, Kambikara Bobbu Swami Temple, Raktheshwari Temple, Balkudru Sri Mutt and Jamia Masjid Mosque etc around the industry. The industry is only 24 meters away from River Sita and 383 meters from Arabian Sea.
3. While so, all the trade effluents accumulating from unit-I of 11th respondent are being discharged into the River Sita polluting the said water body affecting the aquatic life of the said river as well as the Sea. Further, the activity of fish cutting and processing generates solid wastes from the fish which could not be used to further use by cutting and processing and are dumped in various places of the village including the river banks. The bad odour and smell and the accumulation of flies and insects would lead to infectious diseases. The above issue of foul smell makes it unpleasant for children to attend school.
4. The 11th respondent unit is also causing noise pollution due to operation of machines used for cutting and processing of the fish which distracts the school children and students are unable to follow their class. To be 3 noted also is that the Ministry of Environment and life Sciences, Government of India issued a notification as per Coastal Regulation Zone dated 15.09.2010 in the S.O No. 2291 declaring (1) the land area from High Tide Line to 500m on the landward side along the sea front and (2) the area between HTL to 100m or width of the creek whichever is less on the landward side along the tidal influence to water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance up to which the tidal effects are experienced as coastal regulation zones with the explanations.
5. The 11th respondent unit which is situated in Sy. Nos. 72/3, 72/21B and 71/6 fall within the Coastal Regulation Zone of Udupi District. The Department of Environment also has classified these survey numbers as falling within the CRZ zone. The Government of India also had notified on 06.01.2011 certain activities as prohibited in the Coastal Regulation Zone viz. setting up of new industries and expanding existing industries, manufacture or handling oil storage or disposal of hazardous substances, discharge of untreated waste and effluents from industries, cities, towns and other human settlements etc. The above notification is self- explanatory and has clearly set out the prohibited activities along the coast line. As per the above statutory notification, the 11th respondent, industry ought not to have been allowed to establish and continue its operations and should have closed its unit. On the contrary, the 11th respondent is continuing to run till today and has increased its capacity. Originally there were 20 employees and now increased to 50 employees as apparently the industry has increased its capacity.
6. While so, in the year 2012, the 12th respondent, Smt. Uma Devi, who is the wife of Mr. B. Keshava Kundar has purchased lands in Sy Nos. 71/3, 71/5 in Balkudru Village which are lands adjacent to the 11th respondent fish cutting and processing unit. Though, the immovable property in Sy. No. 71/3 was originally classified as „Agricultural land‟, the 12th respondent managed to get the conversion of the said land for the purpose of establishing an ice plant industry. In view of the CRZ Notifications, the re-classification of the lands ought not to have been granted. Later the said conversion report was forwarded to the Tahsildar, Bharmavara Village by the said authority for necessary orders. On the strength of the order issued by the Tahsildar, the 12th respondent applied for approval of the construction in SY. No. 71/3 for constructing a fish 4 powdering unit, which is the 2nd unit. However, 12th respondent obtained approval for construction much against the rules and statutory notifications governing the CRZ zone. The respondent nos. 11 and 12 also seem to have obtained permission and licenses from the Pollution Control Board as well. The unit-II, which is the fish powdering unit is subsidiary to the fish cutting and processing unit.
7. The applicant also further alleged that the unit-I which was expanded for fish cutting and processing comes within the „Orange‟ category. As per the guidelines of the Pollution Control Board no „Orange‟ category industry having effluent discharge shall be established within 500m from the river banks/reservoirs/major tanks. One more criteria for establishing an „Orange‟ category industry is that a diameter of 500m should be maintained around the said „Orange‟ category industry. Therefore, so far as the siting criteria is concerned as well as the prohibited activities, fish processing unit cannot be set up in the coastal zone. Hence, it is alleged that even if the authorities had issued any license, permission, approval etc., to the unit-I and unit-II belonging to the 11th and 12th respondent, they are deemed to be contrary to law and illegal. Hence the application is being filed to close down the 11th respondent, running unit-I and Unit- II situate in SY. Nos. 72/3, 72/21B, 71/6, 71/3 and 71/5 in Balkudru Village, Udupi District in Karnataka and restrain them from anyway carrying on fish cutting, processing and powdering activities in the above survey numbers. The applicant has also sought for appropriate environmental compensation for all the violations.
8. The 1st respondent, who is the District Collector of Udupi District in its reply has stated that 12th respondent, Smt. Uma Devi had applied for conversion of land of 0.31 cents bearing Sy. No. 71/3 of Balkudru Village after her purchase. After the verification report from the concerned village accountant of Airody Village, who has stated that the distance from the River to the said land is 115m and from the sea the distance is 2.5km. Based on this report and other related documents given by the office of the Sub-Registrar, Brahmavara and the endorsement issued by the office of Tahsildar, Udupi dated 08.01.2014 the conversion was allowed.
9. The District Collector had further stated that since the distance of the land from the river and the sea as mentioned by the village accountant was denied by the applicant and there was also a complaint by yet 5 another person. A show-cause notice was issued to the village accountant on 29.09.2020 for which the village accountant had responded stating that he is not a technically trained surveyor and he had submitted the report based on eye sight. He also stated that the Tahsildar was also there during spot inspection. Even after the conversion which was obtained by the 12th respondent fraudulently, the conversion was sought for installing an ice plant but the construction made is for fish powdering unit. It is stated that there is also a civil suit pending in Hon‟ble Kundapur Civil Court. Pursuant to which the construction was stopped. The above facts would go to show that certainly the 12th respondent has violated the conditions and the purpose for which the land was converted. Therefore, the District Collector has stated the conversion of land was cancelled by the office of the Tahsildar in Proceedings nos. ALN/CR-238/2016-17 dated 01.02.2017.
10. Aggrieved by the cancellation of the conversion, the 12th respondent has preferred an appeal before the Assistant Commissioner, Kundapur which also met with the same fate on 24.09.2018. As against the said order, once again the 12th respondent had preferred a revision before the Deputy Commissioner, Udupi who allowed the revision and restored the conversion order.
11. The 6th respondent, who is the Karnataka State Coastal Zone Management Authority (KSCZMA) has filed its report dated 08.02.2021. In the said report, it is stated that the Regional Director (Environment), Udupi had issued NOC to Special Tahsildar, Brahmavara dated 27.07.2012 for conversion of land for establishment of ice plant in SY. No. 71/3 as it falls outside the CRZ area. However, instead of establishing an ice plant, the 12th respondent, Ms. Uma Devi has established fish processing unit without obtaining prior CRZ clearance. She has also established an Effluent Treatment Plant (ETP) in SY. No. 71/5 which falls in CRZ-I, wherein the above activity is prohibited as per the CRZ Notification, 2011. Para 3(iii) of the Notification prohibits setting up and expansion of fish processing unit including warehousing in CRZ area and breach of such conditions would be a sheer violation of CRZ, Notification. A notice was issued on 14.09.2017 by the KSCZMA for which a reply was sent by the 12th respondent contending that they had not constructed any new building and only repair works have been carried out to the old pump shed and existing well in SY. No. 71/5.
612. The Regional Director, Udupi who had taken up the inspection and found that fish meal building has been constructed and in the adjacent Sy. No. 71/5, they have constructed an ETP and they have also undertaken reconstruction of old building, well and pump shed which is located 68m from the River HTL, which falls in CRZ-I. The Regional Director has also reported that the portion of fish meal and entire ETP falls within CRZ-I zone as per the CZMP, 1996. Accordingly notice under Section was issued on 12.06.2018 to demolish the portion of the fish processing unit and the ETP. Against the said direction the 12th respondent had preferred W.P No. 27462 of 2018 before the Hon‟ble High Court of Karnataka and it is stated to be pending. Further, there was one more Writ Petition filed by School Development Committee, Balkudru Village in W.P No. 12005 of 2020 against the 11th respondent.
13. The 7th respondent had filed an affidavit stating that as per Para 3(iii) and 3(vi) of the CRZ Notification, 2011 setting up and expansion of fish cutting and discharge of untreated waste and effluents from industries etc. are prohibited activities within CRZ area but nothing is mentioned about the action taken by them.
14. A reply on behalf of the 10th respondent, which is the Fisheries Department of Karnataka has been filed, which states that the Department of Fisheries does not give any permission to anyone to establish fish cutting or fish powdering units in any area, unless the proponent applies for consideration for subsidy. In the present case, the 10th respondent has received the application based on the primary documents submitted by the applicant, respondent nos. 11 and 12 herein, and the same was forwarded to the Director of Fisheries for further verification. Other than forwarding the said application, the 10th respondent had not given any permission for renovation or construction. It is only the Village Panchayat, Airody had given permission for renovation of building and Karnataka Pollution Control Board also had given permission. The report further states that the Zonal Director (Environment) has given an opinion stating that the Sy. No. 71/3 comprising of 0.31 acres of land is on outer section of coastal regulation as per annexure R-14 and R-15.
15. The respondent nos. 11 and 12 against whom the application is filed had set out their objections in their counter statement. According to them, 7 they belong to the Fishermen community and the unit-I is in existence from 1986 onwards and there was a building in existence where the fish cutting was started with the permission of the Panchayat. It is stated that the Fish processing involves unloading of raw fish, cutting of fish and transporting of fish to fish freezing industry, which is the main activity. There are numerous similar units in operation in the locality mostly run by the fishermen community. The certificate issued by the Airody Panchayat would fortify the case of the respondents that previously one Smt. Kamala G Panikar was running the fish processing unit. The very same unit is now being run by these respondents after their purchase. It is also stated that there is an Effluent Treatment Plant to discharge the effluent and emission after conforming to the stipulated standards and hence there is no water or air pollution caused from the unit.
16. The respondents claim that the unit-I is not within the prohibited limit of CRZ as it is situate 388m away from the Arabian Sea. These respondents relied on the consent given by the Pollution Control Board on 13.08.2019. According to these respondents, the coastal regulation came into effect from 1991 prohibiting setting up of new industries and expansion of existing industries. Therefore the unit-I which was in existence even prior to 1982 which is before coming into force of CRZ Regulation cannot be disturbed. The CRZ regulation introduced by that point of time prohibited establishing even new units. The zonal regulations came into effect only in 2011 in supersession of 1991 regulation and specified areas referred to Chapter-IV provided the activities impugning on the sea and tidal influenced water bodies. There shall be no restriction on the traditional fishing and allied activities undertaken by the local fishermen community. Since, the respondents belong to the fishermen community and are in the business of running fishing cutting unit observing all the parameters of the Environment (Protection) Act, 1986 they cannot be blamed for any breach of conditions.
17. As regards the unit-II, the 12th respondent had purchased the land on 13.08.2012 for fish powdering activity, the unit-II is situate adjacent to the unit-I. There was a building already in existence along with a pump set and a shed. After the purchase the 12th respondent had applied for conversion of the land and the same was ordered by the Tahsildar which was finally upheld in revision. The Karnataka State Pollution Control Board also had issued consent to operate on 27.07.2018. The notice issued by the Member Secretary, SEIAA dated 12.06.2018 under Section 8 5 of the Environment (Protection) Act, 1986 is under challenge in Hon‟ble High Court of Karnataka in W.P. No. 27462 of 2018 which is pending consideration. The respondent have further stated that there are 50 numbers of similar units in operation in and around that area which would go to prove that there is no air or water pollution or any health hazards in the village. The increase in pollution is only subsequent to the establishment of the unit and hence it was prayed that they should be permitted to continue with their activities.
18. The 13th respondent, who is the Airody Gram Panchayat has filed its reply stating that in the year 2004-05 the Panchayat had issued license to reconstruct the building for fish processing unit and issued license no. 54/2004-05. The license has been renewed till 31.03.2016. However, as per the Government order dated 24.02.2016, the Village Panchayat has given powers only to issue permission letter for small scale industries and not to issue any trade licenses. The village panchayat has specifically stated that there is a complaint from the locals and the villagers that they face pollution problem and that the school nearby is also affected. The Panchayat claims to have issued the notice in this regard to the private respondent for which they have not received any response till date.
19. Similarly, the 14th respondent, who is the School Development Management Committee has filed a counter specifically stating that the children who are studying in the Hungarcutta Government Higher Primary School located in the adjoining compound of the 11th respondent are affected by the activities of the offending industrial units located in the lands bearing no. 71/3 Balkudru Village. There was a Writ Petition filed by the 12th respondent in W.P. No. 53083 of 2016 claiming to be the absolute owner of the subject land questioning the order dated 24.09.2016 passed by the Executive Officer, Udupi Taluk Panchayat challenging the order in the Appeal No. 02 of 2016-2017 filed by certain individuals residing in the Balkudru Village which was allowed. The said Writ Petition was disposed of by Hon‟ble High Court observing that the respondents 11 and 12 would be disentitled to continue operations of their units until they comply with the required formalities according to law. Aggrieved by the same, a Writ Petition in W.P. No. 1570 of 2017 was filed, which was allowed by the Division Bench by remanding the same to the Learned single Judge. After the said remand, the Writ Petition was withdrawn by the 12th respondent.
920. In the meanwhile, the 14th respondent had made a complaint to the Child Welfare Committee, Udupi which conducted an enquiry and gave an opinion that the activities of the 11th respondent pose a clear and present danger to the health and lives of the local villagers and more particularly to the children who study in the school located in the adjoining compound. The said order was questioned before the Learned Principal Session Judge, Udupi which was allowed and against the same Criminal Revision Petition no. 1385 of 2018 is filed and the same is pending before the Hon‟ble High Court.
21. So far as the conversion is granted for establishing the ice plant is concerned, the conversion was granted for industrial purpose and the specific activities sited was of establishing an ice plant which is evident from the endorsement dated 01.02.2014 issued by the office of Tahsildar, Brahmavara. However, these respondents are now carrying on the fish cutting activity. This respondent has also spoken about the health hazards faced by the villagers and school children and reiterated that the said units are located well within the CRZ zone. Further it is pointed out that there are no roads to these units and the land shown as road is Government land. Hence this respondent also prayed for closing down the fish cutting and fish powdering unit.
22. Learned Counsel, Mr. M.V.V. Ramanna vehemently argued that the industry had been in existence even before it was purchased by the respondents 11 and 12. The fish cutting and processing activity was done in partnership and that the Environment (Protection) Rules, 1986 are not applicable to them. However, later he fairly admitted that 1991 rules are applicable to the respondents 11 and 12. The regulation of permissible activities as per CRZ Notification, 1991, Regulation-2 clearly defines the activities that are prohibited within the Coastal Regulation Zone, namely, setting up of new industries and expansion of existing industries with the exception. Rule 2(iii) specifically prohibits "setting up and expansion of fish processing units including warehousing excluding hatcheries and natural fish drying in permitted areas". The proviso states that "existing fish processing units for modernisation purposes may utilize 25% additional plinth area required for additional equipment and pollution control measures only subject to existing floor space index/floor area ratio norms and subject to the condition that the additional plinth area shall not be towards seaward side of existing unit and also subject to the 10 approval of State Pollution Control Board or Pollution Control Committee". The Coastal Regulation Zone, Notification, 2011 Rule 3(iii) also specifically prohibits setting up and expansion of fish processing units including warehousing. Similarly, the CRZ Notification, 2019 Rule 4(iii) also specifies setting of new fish processing unit as a prohibited activity within CRZ.
23. The respondent nos. 11 and 12 had produced certain documents which is the consent given by the Karnataka Pollution control Board, Mangalore to operate which is valid from 27.07.2019 to 13.09.2022. The perusal of the said document which is a combined consent order no. W-314247 dated 13.08.2019 has permitted fish cutting with the specific quantity and the consent is valid upto 13.09.2022. When the Pollution Control Board was confronted with the question as to how the consent to operate was issued to the 11th and 12th respondent in their reply, it is stated that they have perused the following documents submitted by the 11th and 12th respondents which are (i) Form-XIII, (ii) Sale Deed dated 14.12.1999 between the M/s India Crafts, Hungarkatta and B. Keshav Kundar for the Sy. Nos. 72/4, 72/3, 72/22B, 72/21B and 71/6, (iii) CA certificate dated 26.11.2004, (iv) License for industries and traders issued by 5th respondent, Airody Village Panchayat dated 10.06.2004,
(v) Certification letter issued by the 5th respondent dated 24.11.2004,
(vi) Certified copy of the building tax register 1989-90 issued on 26.10.2004, (vii) certified copy of survey sketch of Sy. Nos. 71/6, 72/3 and 72/21B and (viii) RTC copy of the above survey numbers.
24. The Pollution Control Board had further stated that in the letter issued by the Airody Village Panchayat office dated 24.11.2004, it was certified that the fish cutting industry is located at Sy. Nos. 71/6, 72/3 and 72/21B. Factory Authorities have also submitted the certified copy of the building tax register 1989-90 issued on 26.10.2004. Presuming that from the above documents the industry has been in operation much before the CRZ Notification, 1991. The 1st CFO was issued on 09.12.2004 which was valid till 30.06.2005. Based on the same the renewal was also issued. The Pollution Control Board has also further filed certain documents indicating the status of the 11th and 12th respondent, industries viz: (1) Status report of Unit-I which was inspected on 16.08.2022 and found that the same is not operating since 30.05.2022, (2) Status report of Unit-II inspected on 16.08.2022, (3) Combined 11 Consent Order issued to the 11th and 12th respondent dated 13.8.2019 and (4) Corrigendum to the above consent order dated 12.08.2021.
25. The inspection report of the Pollution Control Board for the Unit-I and II are also furnished. The Unit-I was inspected on 16.08.2022. The CFO under the Water (Prevention and Control of Pollution) Act, 1974 is valid for the period 30.09.2022 and the activity permitted is fish cutting of capacity 750 TPM. The details of the manufacturing activities consisting of procurement of raw materials (fish, cutting and packing). Regarding the pollution control management, the source of water to the unit is through open well and details are furnished. On the date of inspection, the industry was not in operation. The industry authorities informed that it is not in operation since 30.05.2022 because of this Tribunal‟s direction. The industry has provided the settling tank for the treatment of the trade effluent and trade effluent is not observed in the settling tanks. The report regarding their unit-II which is for manufacturing of fish waste powder of capacity 8TPD is not relevant in view of the fact that the unit was closed down pursuant to the order of the Hon‟ble High Court of Karnataka.
26. It would be relevant to point out that the 10th respondent has specifically stated that though the Airody Village Panchayat had given permission for renovation of the building and the Karnataka Pollution Control Board had given permission for operation and the other permissions are given by the concerned departments, the 10th respondent has not given any permission in the present case. The Regional Director, Environment, Government of Karnataka has given an opinion dated 22.07.2015 that the Sy. No. 71/3 measuring 0.31 acres of land in Balkudru Village, Udupi District is outside Coastal Regulation Zone of 2011. So opinion is given regarding commercial conversion that there is no objection. Similarly, the Mangalore Electricity supply Co. Ltd which is administered by Government of Karnataka has also given conversion of the existing LT industrial unit into HT unit on certain conditions. It would be appropriate to advert to the report of the Member Secretary, Karnataka State Coastal Zone Management Authority (KSCZMA) which reads as follows:
"It is submitted that, the subject was placed in the Karnataka State Coastal Zone Management Authority meeting held on25.07.2017 and as per the decision of the Authority, Notices of Proposed Direction (NPD) under Section 5 of Environment (Protection) Act, 1986 was issued to Smt. Uma Devi W/o Keshav Kundar on 14.09.2017 thereby to providing an opportunity to submit her replies (Annexure-1).12
Smt. Umadevi had submitted a reply to the said notice stating that they have not constructed any new building and only repair works have been carried out to old pump shed and existing well in Sy. No. 71/5.
Accordingly, the Regional Director, Udupi was asked vide letter no. FEE 186 CRZ 2017 dated 22.03.2018 to take up site inspection to verify once again and submit report. The RD has submitted a report that during inspection it was found that fish meal building had been constructed and in the adjacent Sy. No. 71/5, they have constructed an ETP and have also undertaken the reconstruction of old building, well and pump shed which is located at 68 mtr from river HTL, which falls in CRZ-I. The Regional Director has also reported that the portion of fish meal and entire ETP falls in CRZ-I as per approved CZMP 1996.
Based on his report, KSCZMA i its meeting held on 27.04.2018 has taken a decision to confirm direction issued under Environment (Protection) Act, 1986. Accordingly, section 5 direction has been issued on 12.06.2018 to demolish the portion of the said fish processing unit in SY. No. 71/3 and Effluent Treatment Plant in Sy. No. 71/5 of Balkudru Village, which had been constructed in violation of CRZ Notification (Annexure-II). Against the said direction of KSCZMA, Smt. Umadevi W.o. Keshav Kundar has filed a W.P. No. 27462 of 2018 before the Hon‟ble High Court of Karnataka at Bengaluru for which statement of objections have been submitted to the Hon‟ble High Court on 26.10.2021 (Annexure-III) and the case is pending. Further, one more Writ Petition has been filed before the Hon‟ble High Court by the school Development Committee, Balkudru vide W.P. No.12005 of 2020 against M/s Yashaswini Fish Meal and Oil Company on the grounds that a conversion order was given in Sy. No. 71/3 for „industrial purpose‟ specifically for the purpose of establishment of an Ice plant, however despite such order of conversion, the concerned respondent have misused the same for the purposes of establishing a "FISH CUTTING AND FISH WASTE POWDER UNIT"
which is clearly in contravention of the conversion order. It is submitted that as per para 3 of CRZ Notification 2011 certain activities are prohibited in CRZ area. Smt. Umadevi has established an Effluent Treatment Plant (ETP) in SY. No. 71/5, which falls in CRZ-I wherein the above activity is prohibited as per para 8 I CRZ-I (i) of CRZ Notification, 2011. Action is being taken to appoint Government advocate for the above said case and preparation of parawise remarks is under process."
27. From the above report of the CZMA, excepting the said authority the rest of the authorities whoever had authorised/permitted/issued license/approval in favour of the 11th and 12th respondents have done it without application of mind and not taking note of the Coastal Regulation Zone. From the CZMA report, it is clear that the W.P. No. 27462 of 2018 filed by the 12th respondent is pending before the Hon‟ble High Court of Karnataka challenging the directions of the KSCZMA. However, it is clearly and categorically mentioned that the expansion activity of the 11th and 12th respondents is within the prohibited CRZ area and they cannot be permitted to continue their activity. As stated earlier, the unit- II which is fish powdering unit is closed down by virtue of the order by the Hon‟ble Karnataka High Court and unit-I, which is fish processing unit is also not in operation from 30.05.2022.
28. It‟s also to be seen that the 14th respondent also had filed W.P. No. 12005 of 2020 against the 11th and 12th respondent on the grounds that 13 a conversion order was given in Sy. No. 71/3 for „industrial purpose‟ specifically for the purpose of establishment of „ice plant‟. However, despite the order of such conversion the respondent nos. 11 and 12 have misused the same for the purpose of FISH CUTTING and FISH POWDER UNIT which is clearly in contravention of the conversion order.
29. The Pollution Control Board, which is the regulating authority with respect to air, water and noise pollution ought not to have issued the CFO when the operation is within is prohibited CRZ area. The cursory reading of the CFO goes to show that the same has been issued in a mechanical manner without application of mind. When conversion of the land was sought for by the respondents 11 and 12 only for setting up of ice plant and when they had changed the purpose, the Pollution Control Board ought to have looked into the same and rejected the application for consent to operate in view of the fact that fish cutting is specifically prohibited in the CRZ.
30. It is relevant now to consider the report of the 1st respondent, District Commissioner, Udupi District. He has categorically stated that originally the 0.31 acres land was classified as „Agricultural land‟ which was sought to be converted into an industrial one by the private respondents. The village accountant had furnished a verification report in which he has stated that the distance from the river to the said land is 115m and from the sea the distance is 2.5km. In the show-cause notice issued for such report issued by the village accountant, he has stated that the report was based on his eye-sight approximately. It is surprising that the village accountant has an eagle‟s eye to see a distance of 2.5 km and measure it with his mere eye-sight and issue a report/recommendation for conversion which he very well knows that would be part a of revenue records. Though, it is stated that a show-cause notice has been issued to the said village accountant who had issued the irresponsible recommendation further action taken against him is not known.
31. Even today, we are unable to understand how the Deputy Commissioner has allowed the revision against the Assistant Commissioner‟s order upholding the conversion which is much after the CRZ Notifications have come into force. Even presuming that the lands sought to be converted are no more put to any agricultural use and the conversion sought for is for an industrial purpose, the authorities should have been doubly cautious when the same is located on the coastal zone. For the sake of 14 asking such type of conversions cannot be granted unmindful of the statutory regulations prevalent.
32. The Pollution Control Board, who is the regulatory authority, should keep a vigil over any kind of pollution but has acted in an irresponsible manner in this case. In the memo filed by them dated 21.08.2022, it is stated that before granting the CFO, they have perused the documents submitted by the 11th and 12th respondents as applicants. None of these documents are prior to 2005. No doubt they had a CFO issued in 2004 which was valid till 2005 and thereafter they are renewing the same. Every time there is a renewal, the authorities are expected to consider the change in circumstances, any new statutory regulations etc., before considering and granting CFO. The process of renewal after a limited time is to monitor the licensee whose unit is involved in fish cutting having repercussions on the humanitarian and social activities. Any license or approval or consent is an official permission or permit to do, use or own something. A license is granted by a Government body by applying for it. In other words a license is a promise not to sue because license/approval permits the licensed party to engage in an activity without which it would be illegal. A license or approval issued by different authorities to allow an activity that would otherwise be forbidden. The requirement is only to serve the authorities be informed on a type of activity and give them the opportunity to set conditions and limitations. Many approvals are time bound as it protects the authority to value the market conditions and any other subsequent development by any other authority, particularly, when it infringes the nature. The Consent for Operation was issued in this case for a period from 20.07.2019 to 30.09.2022 and the order is dated 13.08.2019. There is no record to show that the Pollution Control Board had considered any document subsequent to 2004 till the date of issuance of the CFO. In fact, there are Writ Petition filed against the 11th and 12th respondent and there was serious objection for the conversion orders all of which were not considered by the Pollution Control Board before issuing CFO.
33. The 11th and 12th respondents have produced two sale deeds dated 19.10.2011 and 13.08.2012 from M/s Indcrafts, Hungarcutta and Vasudha Murthy and Sudha Kamath respectively. From the sale deeds also it is not clear as to whether the properties purchased were used for fish cutting process before the sale. However, it is submitted that consent was obtained under the Water (Prevention and Control of Pollution) Act, 1974 in the year 2004 and was extended periodically. The 15 Learned Counsel has submitted that 11th respondent started the unit in the year 2019. There is absolutely lack of clarity as to when the unit was set up.
34. In such circumstances, the 11th and 12th respondent cannot be permitted to carry on their prohibited activity within the CRZ area, though they might have obtained the CFO which is valid till 30.09.2022. We regret to state that the authorities, who are responsible for the protection of environment, have exhibited their ignorance and inefficiency at each level and caused unnecessary confusion. In the light of the above discussion, we issue the following directions:
i. The 1st respondent, Deputy Commissioner is directed to revisit his order in RAP SR 67/2018, considering the outcome of Civil Suit OS. No. 350/2015 referred in his order and also the Writ Petitions that are pending before the Hon‟ble High Court.
ii. The Pollution Control Board is directed to consider the orders of CZMA and consider the fact that the fish cutting activity is a prohibited one and take appropriate decision in this regard and pass suitable order with respect to CFO.
iii. The Pollution Control Board is advised to be cautious before issuing any CFO particularly on the CRZ zone.
iv. The 10th respondent is also directed to take action for proceeding with fish cutting processing by the 11th and 12th respondent when they have specifically stated that they have not given any permission for establishment of fish cutting shed or fish powder unit or for renovation.
35. With the above direction, the Original Application is disposed of.
36. In view of the disposal of the Original Application, I.A. No. 111 of 2022 also stands disposed of.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.208/2021(SZ) 29th September, 2022. (AM) 16 Before the National Green Tribunal Southern Zone (Chennai) O.A. No. 208 of 2021(SZ) Srikanth Madhyastha Vs. The District Collector and Ors.
O.A. No. 208/2021(SZ) 29th September, 2022. (AM) 17