National Green Tribunal
M N Jayachandran vs State Of Kerala on 5 September, 2022
Item No.01 (Court No. 2)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
(By Video Conferencing)
Original Application No. 184/2022
M. N. Jayachandran Applicant
Versus
State of Kerala Respondent
Date of hearing: 05.09.2022
CORAM: HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: None.
Respondent: Mr. Jogy Scaria, Advocate for Kerala State Pollution
Control Board
Application is registered based on a letter Petition received by Post.
ORDER
1. The grievances in the present letter petition sent by Mr. M. N. Jayachandran resident of Mundamattam House, ISPCA Idukki, Thodupuzha are that Mr. Biji. P. Mathew has encroached the land of Periyar Wildlife Sanctuary and he is running various tourism activities including Elephant Ride, Musical Water Fountain using 10,000 Watts speaker system, Martial Arts Centre, Kathakali Centre, a Magic Academy and 6D Cinema Theatre and thereby causing air, noise and water pollution. Despite the ban of riding activity by the District Collector of Idukki, 3 elephant rides are functioning in 1 Km area of Periyar Wildlife Sanctuary. The organizers of such rides are having 24 domesticated elephants which are suffering from various diseases.
Waste water is also being illegally discharged in Periyar lake. One incinerator is also being illegally run in the Sanctuary area aggravating air pollution. O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -2-
2. It is now well settled that this Tribunal is empowered to take cognizance of the cases involving questions relating to environment arising out of the implementation of enactments specified in First Schedule of the National Green Tribunal Act, 2010 'Suo Moto' as held by Hon'ble Supreme Court in Municipal Corporation of Greater Mumbai V/s. Ankita Sinha and others 2021 SSC Online SC 897.This Tribunal can also take cognizance of such cases on the basis of letter petitions in accordance with settled principles of law governing the public interest litigation.
3. Vide order dated 19.04.2022, this Tribunal constituted a Joint Committee comprising of the State PCB and State Wetland Authority, Principal Chief Conservator of Forests (Wild Life), Government of Kerala, Director, Periyar Wildlife Sanctuary and District Magistrate, Idukki and directed the same to submit factual and action taken report within two months. The relevant part of the order reads as under:-
"In our view it would be appropriate to have a factual and action taken report in the matter and accordingly we constitute a Joint Committee comprising of representatives of State PCB and State Wetland Authority, Principal Chief Conservator of Forests (Wild Life), Government of Kerala, Director, Periyar Wildlife Sanctuary and District Magistrate, Idukki. The State PCB will be the Nodal agency for coordination and compliance. The Joint Committee shall meet within four weeks, undertake site visit, look into the grievances of the applicant and take such remedial action as may be required. Factual and action taken report may be furnished within two months by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF. ..."
4. In compliance thereof, the Joint Committee visited the site in question on 18.06.2022 and has submitted report vide email dated 06.08.2022. The relevant part of the report reads as under:-
"X X X X X X As per the order dated 19/04/2022 in O.A 184/2022 an online meeting of the joint committee conducted on 19/05/2022 and inspection was conducted by the committee on 18.06.2022. Based O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -3- on the site inspection, individual report has been submitted by the committee members I. The representative of the State Wet land authority reported that the site doesn't attract the provisions of the Wet lands (Conservation and Management) Rules 2017 based on which the State Wet land Authority (SWAK) is constituted. But recommended to verify the land with Data Bank of the concerned Grama Panchayat/Municipality as per the Kerala Conservation of Paddy land and wet land Act, 2008.
II. The Deputy Director of Periyar Tiger Reserve reported that;
a) Elephant Safari Park run by Mr. Biji P Mathew at Anavachal is situated at the North Western Boundary of the Periyar Tiger Reserve. It is situated in Kumily village of Peermade Taluk.
b) The Elephant Safari Park is a not having permission from Animal Welfare Board or District Monitoring Committee of the District Collector, Idukki. Nine elephants having micro chips are being used for Safari activities at the center. The elephant except one owned by Mr. Biji Mathew are belonging to other owners in various Districts of the State of Kerala.
c) The musical Fountain and 6D Cinema Theater is situated at a distance of 30 meter from the boundary of the Tiger Reserve.
d) GPS survey reveals that the elephant Safari Park is situated outside the boundary of the Tiger Reserve and no encroachment into the Tiger Reserve are by the proprietor of elephant Safari Park. Detailed and more accurate survey using revenue map as per village records is recommended for finding out marginal encroachment if any into the Tiger Reserve area. The assessment of noise pollution as well as pollution caused by discharge of solid waste into the Tiger reserve may kindly be done by Pollution Control Board and consequent action if any required will be taken as per section 29 of Wild Life Protection Act 1972.
e) The sound produced from Musical fountain and 6D Cinema Theater even if audible to certain distance from the boundary of Tiger Reserve, visible environmental and other disturbance is not observed so far. The level of noise pollution and disturbance to the wild animals of the Tiger Reserve can be ascertained only with assessment of noise pollution by the Environmental Engineer of the Pollution Control Board.
f) The Elephant Safari Parks adjacent to Periyar Tiger Reserve are functioning without the permission from Animal Welfare Board and District Monitoring committee of Idukki District Administration. So the functioning of these Elephant Safari Park may be regulated through District Monitoring Committee in which District Collector O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -4- Idukki and Assistant Conservator of Forests, Social Forestry Division, Idukki are members.
g) There is an incinerator being functioned at the Elephant Safari Park and is situated at a distance of 15 meters from the boundary of Tiger Reserve. It is observed that the incinerator was not put into function for the last five days. The smoke produced from incinerator will spread to adjoining areas including Tiger Reserve areas.
h) Waste water including Solid Waste generated from Elephant Safari Park and a cattle shed is found to be flowing into the Tiger Reserve forming a narrow canal. The Parading of elephant including Safari activities are being monitored by the Social forestry wing of Kerala Forest Department. Violation if any identified, action may be taken by District Monitoring Committee of Idukki District Administration.
III. The Environmental engineer, Kerala State Pollution Control Board reported that;
a) Based on the order dated 19/04/2022 in O.A 184/2022, an inspection was conducted by the joint committee officials. During the inspection it was found that the safari park is situated in around 6 acres of land. Apart from Elephant Park, spices such as cardamom, pepper and coffee is cultivated. A cattle farm having 8 numbers is running in the area without the consent of Board. Direction was issued by the Board on 01.02.2022 to the unit to obtain consent to operate of the Board, however they have not replied. Since the unit did not applied for consent to operate of the Board for the cow farm, and discharge of waste water from the unit is noticed, show cause notice dated 30.06.2022 has been issued to show cause within 15 days of receipt of the notice. On receiving the reply further necessary actions will be initiated against the unit.
b) The farm is equipped with a bio gas plant for waste disposal. The slurry generated from the bio gas plant is used as manure. The unit shares its boundary with the grass lands of Periyar Tiger Reserve. The excretory waste of elephant and waste water generated are also used as manure. Solid waste left out after feeding elephant is disposed through a conventional incinerator. The conventional incinerator functioning in the premises is having no air pollution control measures and without the permission of the Board. The chimney height of the incinerator is 60 feet from ground level and the incinerator is at a distance of 15 meters from the Periyar Tiger Reserve. Hence direction has been issued on 30.06.2022 to the unit for stopping the operation of the incinerator. O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -5-
c) During inspection it was reported by the unit owner that the safari park has a water consumption of 5000 LPD for domestic and elephant related purposes. Their water source is a bore well within the premises. Four numbers of speakers of 100 watts capacity for each are used for the music fountain. In accordance with the decision of joint committee, inspection has been conducted on 22.06.2022. Noise monitoring has been conducted at the boundary of the unit that share with Periyar Tiger Reserve. The sound level monitored during the functioning of the unit. Base sound when the noise generating activities not working also monitored. Based on the standard operating Procedure of the Board for noise monitoring, the noise level due to the working of the unit alone was found to be 41 dBA(leq). This noise level is within the limit as per the Noise Rules 2000 applicable to the day time (6.00 AM to 10.00 PM) ie; 50 dBA(leq) for silent zone.
Committee's findings and action taken thereon
1. An order has been issued from the office of the District Collector, Iudkki on 27/07/2019 to stop elephant riding activities for 9 elephant riding centers including Elephant Camp, owned by Mr. Biji P Mathew. Based on the order, the Tahsildar Peerumedu and ACF Idukki has been directed to take steps to ensure that illegal activities are not carried out using elephants at the above centre.
2. GPS survey reveals that the elephant Safari Park is situated outside the boundary of the Tiger Reserve and no encroachment into the Tiger Reserve are by the elephant Safari Park.
3. Noise monitoring has been conducted at the boundary of the unit that share with Periyar Tiger Reserve. The sound level was monitored during the functioning of the unit. Base sound when the noise generating activities not working also monitored, based on the standard operating Procedure of the Board for noise monitoring. The noise level due to the working of the unit alone was found to be 41 dBA(leq). This noise level is within the limit as per the Noise Rules 2000 applicable to the day time (6.00 AM to 10.00 PM) ie 50 dBA(leq) for silent zone.
4. Solid waste left out after feeding elephant is disposed through a conventional incinerator. The chimney height is 60 feet from ground level and the incinerator is at a distance of 15 meters from the Periyar Tiger Reserve. The conventional incinerator functioning in the premises is having no air pollution control measures and without the permission of the Board. Hence direction has been issued on 30.06.2022 to the unit for stopping the operation of the incinerator. O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -6-
5. A cattle farm having 8 numbers of cattle is running in the area without the consent of Board. Direction was issued by the Board on 01.02.2022 to the unit to obtain consent to operate from the Board, however they have not replied. Since the unit did not applied for consent to operate of the Board for the cow farm, and discharge of waste water from the unit is noticed, show cause notice dated 30.06.2022 has been issued to show cause within 15 days of receipt of the notice. On receiving the reply further necessary actions will be initiated against the unit.
6. The representative of the State Wet land authority reported that the site doesn't attract the provisions of the Wet lands (Conservation and Management) Rules 2017 based on which the State Wet land Authority (SWAK) is constituted. Village officer, Kumily also reported that the land in question is not included in the data bank."
5. Mr. M. N. Jayachandran has also sent letter dated 22.08.2022 inter alia stating that he did not address any grievance seeking intervention of the NGT at any point of time and that he had filed W.P (C) No. 13275/19 before the Hon'ble High Court of Kerala in which interim prohibitory order was passed by Hon'ble High Court of Kerala. Mr. M.N. Jayachandran has also submitted in the letter that Mr. Biji P. Mathew is carrying out his illegal activity in blatant violation of laws, rules and court orders under the active aid and support of the state machinery under extraneous influences.
6. In view of the above, we consider it appropriate to issue notice to the State of Kerala through Chief Secretary, Government of Kerala, Principal Chief Conservator of Forests (Wild Life), Government of Kerala and District Magistrate, Idukki through E-mail requiring them to file their response/reply to the allegations made in the application and observations/recommendations made in the report of the Joint Committee within two months at judicial-
[email protected] in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
O. A. No. 184/2022 M. N. Jayachandran Vs. State of Kerala -7-
7. Reply/response on behalf of Kerala State PCB be also filed to the allegations made in the application and observations/recommendations of the report of the Joint Committee within two months by e-mail at judicial-
[email protected] preferably in the form of searchable PDF/OCR Supported PDF and not in the form of Image PDF.
8. List the matter for further consideration on 21.11.2022.
9. The Registry is directed to send the VC link to the applicant so that he can participate in the proceedings on the date of hearing fixed through video conference facility.
Arun Kumar Tyagi, JM Dr. Afroz Ahmad, EM September 05, 2022 MK & AG