National Green Tribunal
Sunitha vs Union Of India Ministry Of Environment ... on 7 December, 2022
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
Item No. 08 & 09:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 105 of 2022 (SZ)&
I.A. No. 176/2022(SZ)
&
Original Application No. 122 of 2022 (SZ)
(Through Video Conference)
IN THE MATTER OF
Sunitha, Kerala
...Applicant(s)
Versus
Union of India & ors.
...Respondent(s)
And
Ajitha, Alappuzha District
...Applicant(s)
Versus
Union of India & ors.
...Respondent(s)
Date of hearing: 07.12.2022.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
O.A. Nos. 105/2022(SZ)
For Applicant(s): Mr. Harish Vasudevan
For Respondent(s): Mr. G. Vignesh for Mr. E.K. Kumaresan for R2 to
R4, R6.
Ms. Rema Smrithi for R8
Mr. S. Sarvanan for Ms. Vidyalakshmi Vipin for R7.
O.A. Nos. 122/2022(SZ)
For Applicant(s): Mr. Sai Sathya Jith.
1
For Respondent(s): None
ORDER
1. On the last occasion on 18.11.2022 when the matter was posted this Tribunal had specifically stated as follows:
5. Be that as it may, the entire process had commenced after the Judgment of the Hon'ble Supreme Court passed in the month of January 2020 which had placed reliance on its earlier Judgment passed In Re: Vaamika Island case. The said copy of the order is also not placed before us.
6. Therefore, we direct the State of Kerala to produce (i) the Environmental Management Plan (EMP) and Environmental Impact Assessment (EIA) Report if approved by the appropriate authorities with the approval, (ii) the action plan proposed by the Public Works Department which is said to be in place but not produced before us and (iii) the Judgment passed in Vaamika Island's case.
7. The learned counsel appearing for the State Pollution Control Board also is directed to examine whether all the mandatory requirements under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 have been complied with by the Public Works Department prior to undertaking the demolition work.
2. Today, the Kerala State Pollution Control Board has filed its report dated 06.12.2022. In Para-2 it is stated that the demolition of Kapico resort commenced on 15.09.2022 in the presence of District Collector, Tahsildar, Panchayath Secretary and other officials and the time limit given for completion is 06 months. As per the order of this Tribunal, the Pollution Control Board was directed to verify the compliance with the mandatory requirements under Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 from the first day of demolition. The report states that the ambient air quality and the analysis report of the water are all within the permitted parameters. 2
3. The report further states regarding the noise monitoring, "Guidelines on Environment Management of Construction and Demolition waste, 2017" of the CPCB stipulate as C&D waste management demonstrates nature of industrial activity and noise limits in the range applicable to industry area zone, 75 dB(A) under the Noise (Regulation and Control) Rules, 2000.
4. The objection of Mr. Harish, Learned Counsel for the applicant in O.A. 105 of 2022 and also Mr. Sai Sathya Jith, Learned Counsel for the applicant in O.A. No. 122 of 2022 are that the demolition cannot happen without the Environment Management Plan and the CRZ clearance. The report of the Pollution Control Board is not clear whether the demolition is taking place with the required statutory provisions. However, it is stated that the air and water quality in the demolition site is within the permitted norms. If the demolition is happening without the EMP/EIA report and also without the necessary approvals of the other authorities, the Pollution Control Board should have filed such a report. Above all, it is the PWD Department and the State Government of Kerala who should take initiative in this process and get the EMP/EIA report ready before commencing the demolition. To be noted is that the State of Kerala has been given sufficient opportunities to produce the above referred EMP and EIA report with approval but they are unable to produce the same before us.
5. Similarly, the action plan report of the PWD which was directed to be produced also has not come on our way. It should not be very difficult for 3 the State of Kerala to follow the procedure, as while dismissing the SLP, the Hon'ble Supreme Court has directed that the directions issued in Vaamika Island's case have to be followed in this case also.
6. Today, the Learned Counsel appearing for the State of Kerala would submit that papers related to Vaamika Island's case are misplaced and they are unable to trace them. Independent of the action plan in Vaamika's case, EMP and EIA report should have been prepared for Kapico Resort, if not prepared already by the State Government. Since, it was submitted earlier that these plans were ready with them, it was adjourned to this date only for production of those plans but unfortunately, the status quo continues.
7. The report on the demolition of Kapico Kerala Resort was filed by the Biodiversity Board on 02.12.2022. The said report states that the demolition requires prior clearance by MoEF&CC as per CRZ notification 4(ii)(i) and demolition without such a study will be ecologically disastrous. It is also stated by the Biodiversity Board that the High Level Committee (constituted as per the directions of the Hon'ble High Court of Kerala) has observed that EIA/ EMP and Demolition plan of PWD were submitted to them, which were also examined by them while making recommendations. It is stated by the High Level Committee that the master plan for demolition is proposed to be submitted to the MoEF&CC, Kerala State Pollution Control Board and Kerala Coastal Zone Management Authority for approval. The action plan can be executed with the approval and supervision of Kerala State Pollution 4 Control Board and Kerala Coastal Zone Management Authority. From the above report it appears that demolition plan was only at the stage of proposal and PWD has to get the approvals from the respective authorities.
8. It is also to be noted that the site visit of Kapico Resort by the Committee constituted by the Hon'ble High Court of Kerala had given its recommendations which are as follows:
"5. Conclusion and Recommendations:
(i) All the movable fixtures, fittings and furnishings should be salvaged first, which includes villa furniture, wardrobes, joinery items and electrical and electric items and installations.
(ii) The hazardous materials should be removed and transported before commencement of physical demolition of structures by authorised recyclers/TSDF depending upon the waste type in compliance to HW (Management, Handling and Transboundary Movement) Rules, 2008.
(iii) Mechanical demolition will be suitable for all the 54 villas since the majority of constructions are limited to ground floor. Only the front of house is a multi-storey structure with strong concrete component. The option of controlled blasting which will have minimum impact distance in terms of noise and vibration can be considered where ever required including for the front of house if it is possible to be done without affecting the lake. The pile foundation may not be disturbed.
(iv) Total removal/demolition of 2143 numbers of 300 mm piles of 8-18 depth and 277 piles of 450-550 mm dia of 45-50 m depth is likely to cause great damage to the island and lake. Therefore, the Sub-structures may not be removed/demolished. Only the superstructure can be removed down to 1M below the ground level of island. The level of the resort after demolition can be kept at the current level without altering the contours.
(v) The removal of materials and demolition should be simultaneously carried out. The removal of materials can be carried out unit wise simultaneously after completing the removal of fittings, fixtures and the hazardous materials in a given unit. Waste concrete should be disintegrated to small size before transportation.
(vi) Reusable material should be salvaged and auctioned.
(vii) It should be ensured that there is no spillage of waste/debris on to lake water during the loading, unloading and transportation. Therefore, only suitable vessels/ containers should be used. The barge used for this purpose should be certified by the appropriate authority.
(viii) Demolition should be carried out during non-rainy season as per the suggestions made in the EIA report and restricted to day time.
(ix) The demolition site should be screened up to 3 feet above the height of the structure to avoid the spread of dust and other material into the nearby environment.5
(x) The demolition should be monitored/reviewed regularly by Collector or Sub-Collector of the District.
(xi) The State Government can explore possibilities for utilization of debris with proper environmental safeguards.
(xii) The channel made within the resort to reach the front of the house shall be blocked and the water level should be brought down prior to demolition so as to prevent entry of debris/dust to the lake through the canal.
(xiii) The action plan can be executed with the approval of the Master Plan by Kerala Coastal Zone Management Authority and Kerala State Pollution Control Board and their supervision.
(xiv) As far as possible the overnight stay of workers at the island may be kept minimal level.
(xv) Safety equipments viz., helmets, earmuffs etc shall be provided to the workers and all safety measure should be followed.
(xvi) A small capacity mobile STP for the treatment of the waste water may be provided on the island in case of the M/s. Kapico Kerala Resorts Pvt. Ltd. (xvii) Protection wall around the island to be retained and mangrove vegetation in and around the island to be promoted.
(xviii) The time frame for the demolition should be set to ensure the timely completion of the demolition.
(xix) The cost of the demolition should also be ascertained. The cost may be recovered from the owners or could be recovered by the auction of reusable material."
9. The said report also mentioned about the PWD action plan for demolition. It is stated that the master plan for demolition is proposed to be submitted to MoEF&CC, Kerala State Pollution Control Board and Kerala Coastal Zone Management Authority for approval. The plan can be executed only after such approval. The Committee constituted by the Hon'ble High Court had also stated that unless the approval of the Pollution Control Board and the Kerala CZMA are obtained for the PWD action plan, the demolition cannot be proceeded with. Therefore, we direct the Pollution Control Board to file a comprehensive report in terms of the recommendations of the site visit report by the Committee constituted by the Hon'ble High Court of Kerala and report should specifically mention whether required approvals have been obtained and whether the recommendation of the High Level 6 Committee are taken into consideration. If the State of Kerala is not coming up with the approved plans as referred above and also the action plan by the PWD, the Tribunal may be constrained to take serious view and pass strictures if need be. Let the Kerala State Coastal Management Authority also file a report as to the progress pursuant to the demolition order passed by the Hon'ble Supreme Court.
10.Post the matter on 10.01.2023.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) O.A. No. 105/2022(SZ)& I.A. NO.176/2022(SZ)& O.A. No. 122/2022(SZ) 7th November, 2022. (AM) 7