National Green Tribunal
S John Fernandez vs The Chairman Tamil Nadu Pollution ... on 18 August, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.07:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 278 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
S. John Fernandez,
Kanyakumari District. ... Applicant(s)
WITH
The Member Secretary,
Tamil Nadu Pollution Control Board,
Chennai and Ors.
...Respondent(s)
Date of hearing: 18.08.2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): M/s. C.K.M. Appaji.
For Respondent(s): M/s. C. Kasirajan through
M/s. Meena for R1, R3.
M/s. Kamalesh Kannan for R7, R9, R10.
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ORDER
1. As per order dated 11.12.2019, this Tribunal had considered the pleadings in the matter and also the nature of violation alleged to have been committed by the eleventh respondent unit and appointed a Joint Committee to assess environment damage and disposed of the matter and posted the case to 18.02.2020 for consideration of report.
2. On 18.02.2020, the matter was adjourned to 04.03.2020, after directing the Pollution Control Board to submit the report and also considered the submission made by the applicant that unit was still functioning. On 04.03.2020, it was adjourned to 30.04.2020 for submission of report as directed and on 14.04.2020, it was adjourned to 30.06.2020 and on 30.06.2020, it was adjourned to 03.07.2020 and on 03.07.2020, it was adjourned to today by successive notifications.
3. When the matter came up for hearing today through Video Conference, Sri. C.K.M. Appaji represented the applicant. Sri. Kasirajan through M/s. Meena represented respondents 1, 3 and Sri. Kamalesh Kannan represented respondents 7, 9 & 10.
4. We have received a report filed by the Joint Committee which reads as follows:-
"REPORT OF THE JOINT COMMITTEE ON THE STATUS OF THE UNIT AND ENVIRONMENTAL 2 COMPENSATION CALCULATION WITH RESPECT TO THE UNIT OF M/S. NANJIL SEA FOODS, D. NO. 24/251, MULLUTHURAI, ARAIYANTHOPPU, VILAVANCODE TALUK, KANYAKUMARI DISTRICTAS PER THE DIRECTIONS OF HON'BLE NATIONAL GREEN TRIBUNAL(SZ), CHENNAI VIDE THEIR ORDER DATED 18.02.20 IN O.A. NO. 278 OF 2017
1. Back Ground The O.A No. 278 of 2017 filed before the Hon'ble National Green Tribunal (SZ), Chennai against the establishment and operation of the unit of M/s. Nanjil Sea Foods located at D. No. 24/251, Mullurthurai, Araiyanthoppu, Vilavancode Taluk, Kanyakumari District.
In the Application filed before the Hon'ble National Green Tribunal (SZ) Chennai, the Applicant has made the following statements:
1. The unit of M/s. Nanjil Sea Foods located at D. No. 24/251, Mullurthurai, Araiyanthoppu, Vilavancode Taluk, Kanyakumari District in a three storied building which is located at a distance of 4meters from the seashore. The applicant has stated that the unit has not obtained any permission from the Local Authority and has obtained electricity connection unauthorized meant for dwelling unit and carrying out fish processing activities.
2. The unit has dug an underground pipeline for the flow of waste streams into the sea.
3. The unit is located amidst residences. The applicant has also stated that at the rear side of the unit, a school namely Al-Aamin Matriculation School is functioning with more than 600 students. And due to the regular fish processing by the unit, unbearable odour emanates from the unit and thereby polluting the entire village. It is also stated that the wastewater generated 3 from the unit is discharged in to the sea and thereby pollute the water causing health hazard to the people.
Hence for the above said reasons, the Applicant has prayed before the Hon'ble National Green Tribunal (SZ), Chennai to issue the following:
a) To issue an interim Injunction restraining the 11 th respondent (The Proprietor of the unit of M/s.Nanjil sea food, Thiru.G.Antony Kenselin, S/o. Gabriel, No 24/251, Mulluthurai Village, Vilavancode Taluk, Kanyakumari District) from establishing and operating the unit of M/s.Nanjil Sea Food at No. 24/251, Mulluthurai Village, Vilavancode Taluk, Kanyakumari District and any such orders as the Hon'ble Tribunal may deem fit and proper.
b) To grant Permanent injunction restraining the 11threspondent from operating the unit of M/s.Nanjil sea foods, located at No.24/251, Mulluthurai Village, Vilavancode Taluk, Kanyakumari District.
c) To direct the respondents (1) to (10) (officials) to initiate action against the 11th respondents (Proprietor of the unit of M/s.Nanjil sea foods) for violating the Provisions of the Environmental Protection Act, the Water (Prevention &Control of Pollution) Act, 1974 as amended and the Air (Prevention &Control of Pollution) Act, 1981 as amended and the CRZ Notification1991 and Tamil Nadu Panchayat Act.
Based on the complaint petition filed by Thiru.John Fernandes, S/o.Susai, Inayam Village & Post, Kanyakumari District, the unit was inspected on 16.03.2017 by the officials of TNPC Board. During inspection the following observations were made:
1. The unit was not in operation.
2. No Ice Plant / Fish Processing activities were noticed inside the unit's premises.4
3. It was reported that earlier an ice plant was established and operated in the said premises, however during inspection it was observed that the machineries were found to be dismantled and corroded.
The fact was informed to the Petitioner vide Letter No. DEE/ TNPCB/ NGL/F.Tech. 06 (145)/16 dt.17.03.2017.
Topographical features in the vicinity of the unit of M/s.Nanjil sea foods Residential houses are located in the vicinity of the unit and sea shore is located in the western side. There is a commuting road facilitating bus transports between the unit and seashore.
Status of CRZ Clearance under CRZ Notification 2011.
The unit's location at S.F. No. 478 / 4C Pt., Thengapattinam Village (Old village - Painkulam Village), Killiyoor Taluk (Old Taluk - Vilavancode Taluk), Kanyakumari District falls under CRZ III as per the approved Map No. 4. However, the unit has not obtained any CRZ Clearance under CRZ Notification 2011.
Note: CRZ Clearance under CRZ Notification, 2011 is read by most and perceived as misnomer to Environmental Clearance under EIA Notification,2006. The activity of the unit is not the purview of EIA Notification; whereas its location is attracted under CRZ Notification,2011 and mandates the Unit to obtain CRZ Clearance.
Status of consent of TNPCB The unit has not filed any application seeking consent of the TNPC Board under the Water (Prevention and Control of Pollution) Act, 1974 as amended and under the Air (Prevention and control of pollution) Act, 1981 as amended.
5It is submitted that the Hon'ble NGT vide their order dated 11.12.19 in Application No. 278 of 2017 filed before the Hon'ble National Green Tribunal (SZ), Chennai against the unit, has directed "to appoint a joint committee consists of District Collector, Kanyakumari District, Tamil Nadu Coastal Zone Management Authority and the Tamil Nadu Pollution Control Board to inspect the area in question and ascertain as to whether the construction if any, is in violation of CRZ Regulations and if any action is required and what action is taken in this regard, if the unit was functioning earlier without getting any environmental clearance and other requisite clearance from authorities..."
In this regard, the Joint Committee consisting of the following members inspected the unit's premises on 17.03.2020.
i) Sub Collector, Padmanabhapuram (on behalf of the District Collector, Kanyakumari District)
ii) Dr. Nehru Kumar Vaithilingam, (Expert Member -
TNSCZMA), Director, Centre for Environment, Health & Safety, Annamalai University, Chidambaram (on behalf of Tamil Nadu Coastal Zone Management Authority) and
iii) The District Environmental Engineer, Tamilnadu Pollution Control Board, Nagercoil.
During the time of inspection, the following observations were made.
1. The unit was not in operation.
2. The unit has established cold storage plant along with the permissible limit of Ammonia storage facility, fish receiving / dispatch hall, office, parking shed etc.
3. The unit is located in Coastal Regulation Zone III as per the approved Map No. 4. However, the unit has not 6 obtained any CRZ Clearance under CRZ Notification 2011.
4. The unit's representative informed that the unit has obtained only 7.63 KW power load under the commercial tariff no. V. The unit has also informed that the cold storage cannot be operated with the sanctioned power load of 7.63 KW.
5. The TNEB's power load is effected on 16.05.11.
FINDINGS
1. The unit is established with cold storage plant along with permissible limits of Ammonia storage facility, fish receiving / dispatch hall, office, parking shed etc. and the same are found in operational condition.
2. The unit has not obtained any CRZ Clearance under CRZ Notification 2011.
3. The unit has not obtained any consent under Water (Prevention and Control of Pollution) Act, 1974 as amended and Air (Prevention and Control of Pollution) Act, 1981 as amended.
I. RECOMMENDATIONS FOR CLOSURE DIRECTIONS:
As the unit is constructed and found in operational condition (although not being operated) without CRZ Clearance under CRZ Notification 2011 and consent under Water (Prevention and Control of Pollution) Act, 1974 as amended and Air (Prevention and Control of Pollution) Act, 1981 as amended, the unit cannot be permitted at the said site and so, the unit shall be issued with closure direction by the Tamilnadu Pollution Control Board.
II. IMPOSING ENVIRONMENTAL COMPENSATION:7
The Hon'ble National Green Tribunal (SZ), Chennai vide their order dated 11.12.19 in Application No. 278 of 2017, has directed "to appoint a joint committee consists of District Collector, Kanyakumari District, Tamil Nadu Coastal Zone Management Authority and the Tamil Nadu Pollution Control Board to inspect the area in question and ascertain as to whether the construction if any, is in violation of CRZ Regulations and if any action is required and what action is taken in this regard, if the unit was functioning earlier without getting any environmental clearance and other requisite clearance from authorities, then apply the Polluters Pay Principle and assess the environmental compensation as directed by the Principal Bench of National Green Tribunal, New Delhi in similar case."
In this regard, it is submitted that Hon'ble NGT, Principal Bench, New Delhi, vide its order dated 19/02/2019 in O.A. No.593/2017 (W.P)(Civil) No.375 /2012 filed by Parayavaran Samiti &Anr. Against Union of India has discussed on the levy of Environmental Compensation based on the formula:
EC= PI x N x R x S x LF Where EC is Environmental Compensation in INR.
PI = Pollution Index of industrial sector N= Number of days violation took place R = A factor in Rupees for EC S = factor of scale of operation LF = Location factor CASE A:
Environmental Compensation was calculated as above which amounts to 8 PI - 30 (This unit falls under Green category 3013-Chilling plant, cold storage and ice making).
N - 3229 days (date of commissioning 16.05.2011 as
per TNEB's additional power load
effected to upto the date of inspection made by the Joint Committee on 17.03.2020) R - 250 (It is suggested to consider R as 250 as EC in case of violation) S - 0.5 (for micro or small) LF - 1 (LF will be 1.0 in case population is less than 1 million) Mullurthurai EC= PI x N x R x S x LF EC = 30 x 3229 x 250 x 0.5 x 1 = Rs. 1, 21, 08,750/-
CASE B:
Considering the small scale nature of the unit, the Environmental Compensation on the unit may be revised considering the no. of days from the application dated 02.05.2017 made by the unit for CRZ Clearance under CRZ Notification 2011.
Accordingly, Environmental Compensation is reworked as below.
PI - 30 (This unit falls under Green 3013
- Chilling plant, cold storage and ice making).
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N - 1052 days (from the date of application for
Environmental Clearance under
CRZ Notification 2011 on
02.05.2017 to upto the date of
inspection made by the Joint
Committee on 17.03.2020))
R - 250 (It is suggested to consider R as
250 as EC in case of violation)
S - 0.5 (for micro or small)
LF - 1 (LF will be 1.0 in case population
is less than 1 million)
Mullurthurai
EC= PI x N x R x S x LF
EC = 30 x 1052 x 250 x 0.5 x 1 = Rs. 39, 45, 000/-
Hence an amount of Rs. 1, 21, 08,750/- as per CASE A or Rs. 39, 45, 000 as per CASE B may be claimed from the unit after giving the Respondent (M/s. Nanjil Sea Foods located at D. No. 24/251, Mullurthurai, Araiyanthoppu, Vilavancode Taluk, Kanyakumari District) an opportunity of being heard on the question of compensation to be imposed in accordance with law within one month.
Necessary approval may be issued by the Board to recover the amount of Rs. 1, 21, 08,750/- as per CASE A or Rs. 39, 45, 000 as per CASE B from the unit after being heard as directed by the Hon'ble NGT."
5. It is mentioned in the report that calculation has been made based on two methods, viz., Case A and Case B and assessed the environment compensation in Case A to the tune of 10 Rs.1,21,08,750/- (Rupees One Crore Twenty one Lakh Eight Thousand Seven Hundred and Fifty only) and in Case B to the tune of Rs.39,45,000/-(Rupees Thirty Nine Lakh Forty Five Thousand only).
6. It is not known which method of calculation the Board is going to adopt before issuing show cause notice to the 11th respondent before giving Environment Clearance.
7. When this was pointed out, the learned counsel appearing for the Pollution Control Board submitted that they have issued show cause notice and date was fixed for hearing but she had not received any instruction regarding the same from the authority, except the report alone and she wants some time to file a report regarding further action to be taken.
8. It is for the regulating authorities to assess environmental compensation on the basis of the nature of violation and number of days violation on the basis of the formula evolved by the CPCB in this regard and not for the National Green Tribunal to suggest which method of calculation has to be adopted and proceedings will have to be initiated.
9. Pollution Control Board is directed to assess environment compensation as directed by this Tribunal against the 11 th respondent unit in accordance with law and submit a further action taken report to this Tribunal within a period of one month.
1110. For consideration of further action taken report, post on 30.09.2020.
.....................................J.M. (Justice K. Ramakrishnan) .................................E.M. (Shri. Saibal Dasgupta) O.A. No.278/2017, 18th August, 2020. Mn.
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