National Green Tribunal
Environmental Protection & Research ... vs Ministry Of Environment Forest And ... on 10 December, 2021
Bench: K Ramakrishnan, K. Satyagopal
1.
1
2.
2
3
4
S. The Issues to be addressed by Reply of the Committee
No the committee as per the
. Hon'ble Tribunal Direction on
22.09.2021
I Whether the 6th respondent is Based on verification of records, it was noted that this
having a valid Environmental Project Proponent (PP) has obtained EC only during the year Clearance and Other 2011 and the same got expired in 2016. Further, PP has not Permissions for the purpose of produced any documentary evidence to prove that further the Construction of the Project extension was obtained. In absence of any documentary evidence, the Joint Committee confirms that this project authority has not obtained EC during the construction period of 2006 to 2011 (5 years after Notification of EIA- 2006) and has not renewed / obtained any fresh EC after its expiry in 2016. Accordingly, this project does not have a valid EC as of now and prior to start of any additional work, PP is required to obtain a fresh EC from SEIAA, Kerala. The PP had reported that they had obtained NOC for the construction from the Thrikkakara Grama Panchayath and started construction after obtaining the NOC. The PP have not obtained consent to Establish/Consent to Operate for the project. The entire construction was done without KSPCB Consent to Establish and started occupancy without Consent to Operate from KSPCB.
5Ii Whether the 6th respondent Based on receipt of a complaint and as per directions of the had started their construction, Ministry, this project was inspected on 17.02.2020 by a even before obtaining Joint Committee consisting of representatives of SEIAA, environmental clearance of Kerala and Kerala SPCB and Regional Office of MoEF&CC 2011 as alleged in the application and it was noted that construction activities started during the year 2010-11 based on Google Images (i.e., before obtaining EC) and the copy of the Joint Inspection Report is enclosed as Annexure-1.
Thrikkakara Municipality had informed that the Municipality was Panchayath in the year 2006. The Grama Panchayath had issued NOC for the building for the construction of 8 towers of total built up area 1,92,634.80 Sqm. The Kerala Municipal building rules were implemented in the Panchayth on 06.11.2006. Later, the municipality regularized the NOC with the building permit in the year 2016. The Municipality also informed that MoEF clearance became mandatory in the State as per KMBR/KPBR on 05.02.2013 only. Since, the construction of M/s Tuffnel Gardens was ongoing while regularization of NOC, the construction does not fall under KMBR, hence at the time of regularization prior clearances from Fire, KSPCB and MoEF was not required. The reply submitted by Secretary, Thrikkakara Municipality is enclosed as Annexure-2. The committee directed PP to submit the proof for the date of commencement of the construction, but, they failed to submit the details called by the committee. The Copy of the communication sent by KSPCB and reply furnished by the project Authorities are enclosed as Annexure--3 and 4. Hence, the committee considered the date of construction based on the Google images. As per the Google images dated 04th January, 2011 and 24th January 2011, it is evident that the builder has started the construction activities before obtaining the EC from the MoEF&CC. The photographs of google images are enclosed as Annexure-5.
6Iii Whether any Environmental The Joint Committee noted that PP has undertaken damage has been caused, on construction of this building without obtaining account of the alleged Environmental Clearance, without KSPCB Consent, without construction in violations of NOC from Fire Department and have constructed the EIA Notification, 2006 project in Paddy Fields/ Nilam have also violated the Buffer Area norms of Edachira Canal. Even though, they had provided sewage treatment plant, the plant is not made operational. They have also started occupancy without properly functioning of Sewage Treatment Plant. The occupancy certificate has been issued by the Thrikkakkara Municipality.
Any type of construction activities invariably causes environmental damages such as land use changes, water, soil and air, noise pollution and solid wastes. In this case, the 2003 - 2006 Google images depicts that the building site was a coconut orchard dispersed with small water channels. The same was completely cleared and land filled in the 2008 images. A stream/ rivulet on the western side of the proposed site is highly infested with aquatic weeds. The conversion of agriculture lands into non-agriculture purpose may also disrupts the ecological setup of the area and affects the biological diversity of the area. Accordingly, the Joint Committee concludes that the construction of M/s Tuffnel Gardens has caused environmental damage.
Iv Whether proper conversion of The entire property of the project is included under the the permissions have been following Re-Survey numbers.
obtained for converting agricultural land for non- 1. 483/14 agricultural purposes of such a 2. 484/7 larger extent. 3. 485/1 7 Among these Re-Survey numbers in 484/7, 485/1 is included in the Data Bank created under Kerala Conservation of Wetland and Paddy Land (KCWPL) Act, 2008 as Paddy Lands. As per this act the lands included in the data bank cannot be used for non-agricultural purposes without any valid permission from relevant authorities. In this case, the land is converted and used for building construction without obtaining any permission from Local Level Monitoring Committee and Revenue Divisional Office. This is a clear violation of rules under the said Act.
The satellite images of the said plot from the year 2008 to 2015 were scrutinized in the committee meeting on 06.12.2021. It is noted that the land filling and building construction have happened only after the commencement year of this Kerala Conservation of Wetland and Paddy Land (KCWPL) Act i.e. 2008. This point out to the fact that the land was never a dry land prior to 2008 and the PP had illegally filled and converted the land for non-agricultural purposes. It can be seen from the Google images that the entire land could've been suitable for paddy cultivation if it was never converted. It is also noted that an artificial water body created in the nearby land after the construction of the building in the subject plot.
Hence, the committee found that the PP had constructed the building without obtaining prior permissions for land conversion for converting agricultural land for non- agricultural purposes.
V Whether the construction had The Builder had applied for Consent to Establish (CTE) only
involved in any other for built up area of 51,573.6 Sqm. But the actual area of the
violations of environmental project as per EC is 1,39,885.78 Sqm. The builder submitted
laws either the Water
application for CTE only on 12.09.2012 i.e, after starting the Prevention (Control of Pollution)Act, 1974 and Air construction of the project. The Board has not issued CTE Prevention (Control of since the builder failed to submit the clarification asked by Pollution)Act 1981 of any KSPCB. The builder constructed the project without CTE other environmental Laws which is a violation of Section 25 the Water Prevention (Control of Pollution) Act, 1974. Now, the builder had applied for Consent to Operate (CTO) which is pending due to non compliance conditions of their expired EC. Since, the project does not have valid EC and not obtained EC for new constructions, KSPCB cannot consider the consent application of the project. The KSPCB will consider the consent application only after the project regularizes the Environment Clearance and remit the Environment Compensation.
8Vi Is there is any damage caused The Joint Committee concludes that PP has violated several or any violation found, what is statutory requirements and had caused environmental the nature of damage caused damage for which environmental compensation needs to and the environmental be recovered from the project authorities. Accordingly, the compensation to be levied for such violations committed and assessment of Environmental damage is calculated based damage caused. on the Guidelines issued by CPCB as detailed below:
EC= PI x N x R x S x LF whereas EC= Environmental Compensation PI= Pollution Index N= No. of Days R= Rs. Factor S= Size of the Project LF= Location Factor Since, there is no exact date of start of the project provided by PP, the Joint Committee presumes the date of first Google image as starting date of the project (i.e., 01.01.2011 and the date of inspection of the Joint Committee as the last date of construction).
Accordingly Environmental Compensation (EC)= 80 (Red) x 3992 days x Rs. 250 x 1.5 (Size) x 1.25 (LF) = Rs. 14,97,00,000/- (Rs. 14.97 Crores) 9 10 11 12 13
3. 14 15
4.
5.
6.
7. 16