National Green Tribunal
Sajith vs The State Of Tamilnadu on 6 September, 2021
Bench: Adarsh Kumar Goel, K. Ramakrishnan, K. Satyagopal
Item Nos. 01 to 04 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 233/2020(SZ)
Sajith, Chennai Applicant
Versus
The State of Tamil Nadu, Rep. by its Secretary,
Municipal Administration and Water Supply
Department, Secretariat, Chennai and Ors. Respondent(s)
WITH
Original Application No. 243/2020(SZ)
Juhu Beach Residents Association,
Uthandi, Chennai Applicant
Versus
The Ministry of Environment. Forest and Climate
Change, Rep by its Addl. Principal Chief
Conservator of Forests, Chennai and Ors. Respondent(s)
WITH
Original Application No. 251/2020(SZ)
&
I.A No. 06/2021(SZ) & I.A No. 08/2021(SZ)
Singaravellar Ocean Side Residents
Welfare Association and Ors. Applicant(s)
Versus
State of Tamil Nadu, Rep., by Secretary, Municipal
Administration & Water Supply, Chennai and Ors. Respondent(s)
WITH
Original Application No. 252/2020(SZ)
&
I.A No. 07/2021(SZ) & I.A No. 09/2021(SZ)
Sri Kapaleeswarar Nagar Residents
Welfare Association Applicant
Versus
1
State of Tamil Nadu, Rep., by Secretary, Municipal
Administration & Water Supply, Chennai and Ors. Respondent(s)
Date of hearing: 06.09.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE DR. K. SATYAGOPAL, EXPERT MEMBER
Applicant: Mr T.Gowthaman Advocate in OA 233/2020 (SZ) & OA 243/2020 (SZ)
Dr V.Suresh, Advocate in OA 251/2020 (SZ) & OA 252/2020 (SZ)
Respondent(s):Mr R.Shanmuga Sundaram, Advocate General with Ms P.T Ramadevi for
R- 2 to 4 in OA 233/2020 (SZ), for R-3 to 5 in OA 243/2020 (SZ) & for R-
2 to 5 in OA 251/2020 (SZ) & OA 252/2020 (SZ)
Mr Rahul Balaji, Advocate for R-6 in OA 251/2020 (SZ) & OA 252/2020
(SZ)
Dr D. Shanmuganathan, Advocate
ORDER
1. Common issue raised in these four applications relates to viability of the project of Storm Water Drains (SWD) within M3 watershed of Kovalam Basin in Panaiyur, Chennai and its being compliant with the environmental norms. The project has been undertaken by the Greater Chennai Corporation (the project proponent - PP)
2. It will suffice to mention the averments in the lead application - O.A. No. 233/2020(SZ). Panaiyur is located on the East Coast Road and is flanked by the Bay of Bengal on the East and the East Coast Road on the West. The locality falls within the area referred to as the Kovalam basin and is part of localities located on a sandy strip of land which allows for easy percolation of rain water. Adjoining areas on ECR are classified as Aquifer Zones which are the source of fresh water not only to the local area but also to other parts of Chennai city. An aquifer is basically an underground layer of water bearing permeable sand or silt. As per the CMDA's Second Master Plan 2026, the entire stretch running several 2 kilometers on the eastern side of ECR right up to Uthandi is marked as aquifer recharge area. The soil here is very porous and consequently highly absorbent and the sandy nature of the area allows excellent penetration of rainwater. Also, the locality is not a flat terrain and the ground naturally slopes towards the sea. In fact the natural ground level from ECR on the west to the sea on the east drops by 7 mtrs (23 ft). The slope of the terrain plays a vital role in allowing the in filtered water to flow eastward inside the subsoil, without causing any stagnation on surface.
3. In view of the strategic importance of Panaiyur as water aquifer zone and as part of the continuing effort for protecting the "Aquifer Area", the Government of Tamil Nadu, vide GO (Ms) No.18 has issued Tamil Nadu Combined Development and Building Rules, 2019, for ensuring maximum percolation of rain water in the Aquifer Zone. According to the above guidelines, 8 village areas have been declared as Aquifer Recharge Area that serve as one of the major sources for city water supply.
4. Most parts of the East Coast Road that fall within the greater Chennai Corporation are not provided with metro water connection or underground sewerage system. Predominantly ground water, through private bores, is used as the source of potable water for all residents in and around ECR. Individual septic tanks are the only source of sewage water disposal in these areas. It is believed that the greater Corporation of Chennai has already planned and budgeted the laying of pipes for protected water supply in these areas and underground sewage system is expected to follow, albeit only after a couple of years. The infrastructure for sewer collection, its treatment and disposal is yet to be put in place.
5. Greater Chennai Corporation is empowered and obligated to maintain a sufficient system of public drains throughout the city. With 3 rain water stagnation on roads being a concern for the residents of Chennai, the Corporation, exercising powers under Section 176 of the Chennai City Municipal Corporation Act, 1919, decided to address the issue by providing for an effective Storm water drain system. It is relevant that the near-flat terrain covers majority of Chennai city, where the variation in average level of the land in the city is only 2 meters. Therefore, this topography, coupled with tidal effects, flooding and water stagnation compelled the Corporation to construct Storm Water Drainage (SWD) to drain off flood from low lying and flood prone areas of Chennai city. The SWD network in Chennai is created and maintained by the Storm Water Drain Department of Greater Chennai Corporation and this network is as long as 1894 km. Rain water runoff joins Storm Water Drain network & canals and connects with four waterways- Buckingham Canal, Adyar river, Cooum river and Kosathalaiyar river -- all running across the city to eventually reach the sea.
6. Greater Chennai Corporation which has an Integrated Storm Water Drain (ISWD) facility in the city of Chennai drew up a scheme of extending the same to the newly added areas of the Greater Corporation of Chennai. In and around 2011, a study was conducted by M/s. Tetra tech, a hydrology consultant for preparation master plan for storm water drain network and a master plan was prepared during 2012 for all the extended areas of the Corporation. The ISWD for the Kovalam basin is divided into 3 watersheds - MI. covering Pallikaranal marsh area, M2 covering the Buckingham Canal localities and M3- localities in the coastal areas. The entire project is funded by the German Development Bank (KfW). The estimated project cost is Rs.1243.45 Crore, covering total drain length of 360 km. This includes areas in all the 3 watersheds of Ml, M2 and M3. The KfW has appointed one M/s Kocks Consultants for revising the Detailed 4 Project Report for the M3 component of Kovalam Basin and is said to have submitted a final revised report. The house in 33 layouts between Kotivakkam and Muthukadu (on the sea side of EAST COAST ROAD) falls within M3 Watershed of the Kovalam Basin and there is a proposal for laying SWDs in this area also. Tenders have been floated and bids have been called for. However, the Applicant is not aware if the bids have been finalized and work commenced thereon.
7. Grievance of the applicant is that the proposed drain will be a hazard to environment and is futile exercise. Though the object is to prevent water stagnation, there is no possibility of same happening having regard to the flat terrain areas of the city. Further rain water harvesting systems are in place. Thus, SWD will serve no purpose.
8. In tropical places having a long dry season, such as Chennai, where the rain is restricted to the month of November/December, small discharges getting into SWD, such as a drain/leakage from a single tap, may increase the risk of infestation, because protozoan or other parasites may breed in shallow pools or waterlogged patches. Where a channel or drain may remain virtually dry for perhaps months at a time, small discharges may cause considerable nuisance, especially if they contain deleterious matter such as human waste, urine, oil or grease.
9. The dispersal of drainage water at the sea side is to be facilitated by way of providing 'link gabion' stone array of sufficient surface area. However, when it comes to practical execution, such link gabions have not been provided anywhere. Instead, the water which also contains other harmful effluents is let out into a low lying area near the seashore, thereby ignoring basic norms of hygiene. This is based on past experiences in some colonies situated between ECR and seashore. 5
10. This project, which was conceived in 2011 and with a report dating back to 2014, does not take into consideration the further developmental works in the locality that are on the anvil. The Greater Chennai Corporation has subsequently sanctioned Protected Water Supply Schemes, to be followed by Underground Sewerage Schemes. With these new developments of underground installations for water and sewer, there will be heavy interference between various underground installations of old and new Schemes. It is therefore necessary to plan an Integrated Project, which would viably provide for all kinds of pipes and underground installations, in such a way that the flow takes place without obstruction or bottleneck and that no contamination of drinking water with sewage occurs accidentally. The proposed storm water drain would reduce the locality to a breeding ground of various ailments and Illness.
11. The applicant further stated that discussion with a renowned academic expert reveals that there was no need to construct SWDs. If there were small pockets of clayey soil or low-lying areas where rain water wasn't percolating easily or being recharged, other natural remedies such as recharge wells could be dug to fix the issues. Clayey pockets form the top two metres and the best way to get around this is through augmented groundwater recharge. Recharge wells bypass the clayey soils into the sandy segment.
12. Coastal communities did not need any kind of concrete SWDs. Approaches to manage surface water that take account of water quantity (flooding), water quality (pollution), biodiversity (wildlife and plants) and amenity are collectively referred to as Sustainable Drainage Systems (SDS) which is what the world at large is moving towards. The coastal 6 communities along ECR would, at best, only need open storm water drains, if at all.
13. Greater Chennai Corporation had failed to inform the residents of such an expansive project that was going to affect the existing and perfectly working natural system which has ensured that there has been no flooding in the past 50 years and not even during the deluge of 2015. Not a single community's association or resident was consulted before such an important decision to build these SWDs was taken. The project ought to have been finalised in consultation with the communities.
14. The application was filed on 05.10.2020. On 27.10.2020, the Tribunal constituted a five-Member joint Committee comprising MoEF&CC, Tamil Nadu Coastal Zone Management Authority (TNCZMA), PWD&WRO, Chennai Metro Water Supply & Sewage Board (CMWSSB) and the National Institute of Ocean Technology (NIOT), Chennai to assess the impact of concrete SWD through water aquifer recharge area at ECR and the coastline. Thereafter, notice was issued on 04.12.2020 to seek response from the parties - the State of Tamil Nadu and the Greater Chennai Corporation.
15. Accordingly, the contesting parties have filed their response. The PP in its response has stated that project is necessary to regulate rain water harvesting system, prevent water stagnation and spread of diseases which is constant problem in Chennai. The relevant parts of the reply of the PP are follows:-
"3. I respectfully submit that, the land area between the Bay of Bengal and the 'B' Canal which is about 1000 meters distance from the seashore is considered as a aquifer recharge as per CMDA, where water table will normally be very high and in some places water table is 2 to 3 feet below the ground level. In the year 2011, the Panchayat areas starting from Kottivakkam to Uthandi has been added to Greater Chennai Corporation. This area due to rapid urbanization 7 have grown with multifold developmental activities and further it has become one of the most fastest growing residential colonies in South Chennai. When this areas was undeveloped, the rain water was spreading everywhere even in the vacant plots and rainwater got absorbed over a period of time. It is not absorbed instantly into the sand. During the monsoon period, the ground water table is 1 to 2 feet below the ground level and it takes longer days for the rain water to percolate and rain water stagnates, which leads to mosquito breeding. This type of rain water stagnation has been witnessed in the Marina Beach area during every monsoon and rain water stagnates for weeks which has been published in Newspapers and is a clear example of stagnation of rain water in sandy area.
4. I respectfully submit that as per the CPHEEO Guidelines, in an undeveloped sandy area, during rainfall, only 10 to 25% of rain water will flow on the road. When the area has been developed as residential colonies and commercial area, with building and paved surfaces, 70 to 80% of rain water will be flowing on the road, as the infiltration of rain water will be less as minimum space only is available for infiltration, resulting in stagnation of rain water.
Further now due to rapid urbanization there is so much of water stagnation at many of the roads on the eastern side of ECR starting from Kottivakkam to Uthandi. At about 74 locations, machineries such as JCB, and pumping motors were placed by Greater Chennai Corporation during the 2015 floods and during every monsoon periods, for bailing out of rain water and also to cut open and form kutcha drains at many places for disposal of rain water.
5. I respectfully submit that, from the above it can be seen that about 71 Nos. of pumping motors has been engaged for around 10days for bailing out of rain water involving heavy expenditure to Greater Chennai Corporation. This expenditure being incurred during every monsoon period to Greater Chennai Corporation will be avoided, after construction of Integrated Storm Water Drain work in this M3 component of Kovalam Basin and moreover the damages to the infrastructures such as roads, Buildings will also be avoided. This kind of temporary arrangement involves lot of expenditure in a city of our scale and hence it becomes the responsibility of Greater Chennai Corporation to create infrastructure facilities like roads, Storm Water Drains, Parks, Play fields, Street lights, improvement to water bodies, rain water harvesting structure etc;, and Greater Chennai Corporation is accordingly carrying out these activities very vigorously in the extended areas of Greater Chennai Corporation as these areas have not got much infrastructure improvements under the erstwhile municipalities/panchayat.
6. I respectfully submit that the global warming and climate change has taken a toll on the weather pattern in India and all over the world and also resulting in heavy spell of rain with high intensity of rain fall in a very short span of time, like the one which was 8 experienced in 2015 where 320mm of rainfall was received in 24 hours period which created water stagnation in Chennai city. It is a clear example that around 518mm of rain fall has battered the Avalanchi in the State of Tamilnadu which created a havoc in the neighborhood. The rainfall that happened in the Avalanchi area is explained by the experts as cloud burst. Due to global, the clouds which carry water get burst in a place thus causing huge rainfall in one place. The same incident has happened in Vellore last year.
7. I respectfully submit that, there are occasions where there were heavy rain and cyclone, during the summer itself, in the past, during south west monsoon period resulting in flooding and rain water stagnation which created hardship to the public.
8. I respectfully submit that, the Greater Chennai Corporation has done very comprehensive flood mitigation plans and brought in so many multi-lateral agencies who have readily accepted the proposals of GCC and funding these projects for construction of ISWD network.
9. I respectfully submit that, as per IRC guidelines IRC; SP:42/2014 storm water drain has to be constructed for draining of storm water as part of the road infrastructure and based on the IRC guidelines, action is taken for construction of Integrated Storm Water Drain network in Kovalam Basin (M1, M2 and M3 Component)
10. I respectfully submit that, as per the manual of storm water drainage system, Volume-I issued by Central Public Health and Environmental Engineering Organization (CPHEEO) wing of Ministry of Housing and Urban Affairs it has been stated that the coastal areas present a unique challenge to the design of storm water drainage systems, owing to tides, high groundwater tables and relatively flat terrain. During high tides, low lying areas along the coast are prone to flooding/inundation and disposal of storm water becomes a problem. During severe storms, cyclones, the discharge of storm water through drains is often not effective and results in water logging and flooding. Backflow of sea water further exasperates the problems. Accordingly as per the section 6.3.1 of special design consideration, storm drainage outfalls in coastal areas has to be carried out.
11. I respectfully submit that, the storm water drain has to be designed for the maximum rainfall which is the order of the day. Previously some years back, the highest rainfall intensity for the city is taken as 32mm per hour for design of storm water drain. But as per the World Bank guidelines and previous experience, the intensity of rainfall is taken as 70mm/hour and considering 2 year return period and adding climate change effect. This is also approved by the technical wing of MOHUA (ministry of Housing and Urban Affairs) namely CPHEEO (Central Public Health and Environmental Engineering Organization).9
12. I respectfully submit that, the storm water drain has to be designed for the maximum rainfall which is the order of the day. Previously some years back, the highest rainfall intensity for the city is taken as 32mm per hour for design of storm water drain. But as per the World Bank guidelines and previous experience, the intensity of rainfall is taken as 70mm/hour and considering 2 year return period and adding climate change effect. This is also approved by the technical wing of MOHUA (ministry of Housing and Urban Affairs) namely CPHEEO (Central Public Health and Environmental Engineering Organization).
13. I respectfully submit that, considering the above and as per the above guidelines, M/s Kocks Consultants has prepared the DPR for construction of ISWD in M3 component of Kovalam Basin. Accordingly the tenders were called and work order issued for the construction of ISWD in M3 component for Kovalm Basin.
14. I respectfully submit that, the Greater Chennai Corporation has taken up the proposal of construction of ISWD in the expanded areas which has been added in the year 2011. During 2012, Detailed Project Report has been prepared thorough M/s Tetra Tech, an international hydrological consultant for the Construction of Integrated Storm Water Drain (ISWD) in the expanded areas of the Greater Chennai Corporation, in Adyar, Cooum, Kovalam and Kosasthalaiyar Basin at a cost of Rs. 4034 Crores. Based on that, the Hon'ble Chief Minister of Tamil Nadu during the year 2014, has announced in the floor of Assembly, under Rule 110, that Integrated Storm Water Drain Project will be implemented in the expanded areas of the Greater Chennai Corporation, at cost of Rs. 4034 Crores. Accordingly, in the first phase, construction of Integrated Storm Water Drain in Adyar and Cooum basin has been taken up under Tamil Nadu. Sustainable Urban Development Project (TNSUDP) with the financial assistance of World Bank and it is submitted that construction of ISWD has been completed to the length of 406 km. Rain Water stagnation in these two basin areas have been considerably eliminated, sue to the implementation of this ISWD project.
15. I respectfully submit that in the second phase, it is proposed to take up the construction of Integrated Storm Water Drain in Kovalam Basin, area comprising of Palikaranai marsh land (M1 component), South Buckingham Canal (M2 component) and South Coast (M3 component) water sheds for a length of 360 km with the financial assistance of KfW, German Development Bank through the Government of India and Ministry of Economic Affairs. In this ISWD project provisions has been made for construction of rainwater harvesting systems, such as storage block (eco clock) imported from Germany, silt catchpit with RWH structures for harvesting of rain water.10
16. I respectfully submit, that providing above rain water harvesting structures are taken as a bench mark by all the externally aided funding agencies who are funding the major ISWD projects in Chennai and is as follows i. World Bank has founded for Adyar && Cooum Basin ISWD project ii. KfW the German Development Bank has signed loan agreement for Kovalam Basin (South Chennai) ISWD Project iii. Asian Development Bank (ADB) is funding for the Kosasthalaiyar Basin (North Chennai) ISWD Project.
17. I respectfully submit that, KfW Bank has appointed M/s Kocks Consultants for preparation of detailed project report (DPR) for construction of integrated Storm Water Drain in the M3 component area of Kovalm Basin and M/s Kocks consultants has carried out field survey and tests in the South Coast area comprising the rain fall details, water absorbing amount, quantum of runoff water, water stagnation points and the duration of stagnation, very accurately and based on those studies has revised the design for the proposed construction of storm water drains and has submitted the revised DPR for ISWD project. In this project area it is proposed to provide Eco Storage Block imported from Germany at 20 locations in the vacant lands and play grounds for storage of rain water. It is also proposed to provide Retention ponds in parks, 171 Nos of RWH Wells are to be provided along the road margins and in vacant land and 22450 Nos of silt catchpit with RWH structures are to be constructed for recharge of ground water. Through all these provisions, priority has been given for the rain water harvesting.
18. I respectfully submit that, for the construction of the underground sewerage system, Chennai Metropolitan Water Supply and Sewerage Board is the competent authority and has also taken necessary action for providing underground drainage project in the Kovalam Basin area. The sewerage lines will be laid at above 6m below the ground level and will not affect the construction of storm water drain.
19. I respectfully submit that, the storm water drain will be constructed in the project areas as per the design submitted by m/s Kocks Consultants. The storm water drains has been designed, considering the factors such as high intensity rain fall, climate change effects, the storm surge and tidal effects and the permeability of the soil etc. using Hydraulic Modelling software.
20. I respectfully submit that, the project has been approved by KfW, German Development bank, only after careful study and examination of the area and the suitability as per site condition, to their entire satisfaction. Hench, the necessity of the project of construction of storm water drain in the south coast area including the Panaiyur cannot be disputed and as per the scientific method the proposal of ISWD project has been prepared to prevent any flood 11 havoc and that may occur during extreme weather and heavy rainfall that happens everywhere in the world. This project is proposed for the benefit of the Public.
21. I respectfully submit that, the total project area of M3 component is 1137 hectares. Constructed residential buildings area is 980 hectares which is 86.20% of the total land area Road area is 149 hectares which is 13.10% of the total area. Construction of storm water drain portion will be only 7.8 hectares which is 0.70% of total area. Due to construction of this ISWD, in the M3 component area, the damages to the road infrastructure in 13.10% area are avoided due to prevention of rain water stagnation. Moreover deploying of machineries is also avoided and further people living in the 86.20% area of M3 component area in the Kovalam Basin will be benefited from the project.
22. I respectfully submit that, in the aftermath of 2015 mega floods, the A.G Audit, has suggested to Government of Tamil Nadu for construction of storm water drain for prevention of rain water stagnation as per CPHEEO standards and has suggested Greater Chennai Corporation to implement all the ISWD schemes as part of flood mitigation measures for avoiding rain water stagnation in the interest of general public."
16. The joint Committee constituted by this Tribunal gave its interim report on 06.01.2021 concluding as follows:-
" S. Terms of Reference to Observations/Action No. the Joint Committee proposed/ taken
(i). The Committee shall go The Committee confirmed the into the question as to requirement of Clearance whether the project from the Authority concerned requires any CRZ under the provisions of the Clearance. CRZ Notification. The project authority has not obtained the same prior to the commencement of the activities for construction of the Storm Water Drain.
Presently, no provision for the ex-post-facto clearance.
Hence, the Hon'ble NGT and Tamilnadu State Coastal Zone Management Authority may take appropriate view in this regard.
(ii). Whether the project will The Joint Committee
have environmental proposed to undertake site
impact on aquifer and visit of the area under
coastal area question. Based on the site
12
visit final report will be
submitted to the Hon'ble
Tribunal.
(iii). What are the alternate The joint Committee
methods by which the proposed to undertake
apprehension of the detailed site visit and to
people affecting natural analyze the hydrogeological
percolation and water data of the area under
recharge system in the question. Based on the site
aquifer area can be visit final report will be
protected, if this project submitted to the Hon'ble has to proceed with. Tribunal.
(iv) Submission of factual Tamilnadu State Coastal
as well as action taken Zone Management Authority
report, if there is any vide R.C. no.
violation found. P1/2190/2020-1 dated
23.12.2020 requested the
Commissioner, the Greater
Chennai Corporation to stop
all the activities for
construction of Strom Water
Drain along the stretch at
Sholnganallur, uthandi,
Palavakkam villages, till
further orders. "
17. On 11.01.2021, the Tribunal considered the report in the light of the submissions of the parties and found it necessary to require whether the project falls in CRZ I-A requiring permission of the Coastal Zone Management Authority and also whether construction was continuing inspite of stop order issued by the TNCZMA, without adopting necessary safety measures, which was disputed on behalf of the PP. The Tribunal also issued incidental directions. Operative part of the order is reproduced below:-
"9. The counsel for the applicants in all the cases are at liberty to serve the document if any, with them to the committee members regarding the alleged construction if any, made by the corporation after the stop memo has been served on them and the committee can consider those aspects also, while filing the further report to be submitted regarding the violations committed and to assess the environmental compensation.
10. The committee is directed to submit the final report regarding the nature of all constructions in violations of the CRZ Notification in CRZ-II as well CRZ-1(A) as alleged by the applicant after verifying the same by super imposing the Coastal Regulation Zone Management 13 Plan prepared under the notification and submit a final report including these aspects and producing the plan prepared showing the nature of constructions made in the respective zones in which it has been constructed, so as to enable this Tribunal to ascertain the true facts for the purpose of effective disposal of the case.
11. The committee is directed to assess the environmental compensation caused on account of the damage to the marine ecology on account of constructions and mention the same as well in the report.
12. The committee is directed to submit the report to this Tribunal on or before 02.03.2021 by e-filing in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules.
13. In the meantime the parties are also at liberty to file their independent response regarding the allegations made in support of their case by e-filing by serving advance copy to the either side so as to avoid the delay in the applicant filing any rejoinder to the same before this Tribunal.
14. The Registry is directed to communicate this order to the members of the committee and also to the official respondents by e- mail immediately so as to enable them to comply with the direction."
18. The matter was then considered on 02.03.2021. MoEF&CC, TNCZMA were also added as parties. Earlier, the Tribunal impleaded Respondent No. 6, German Development Bank (KfW), through its Director, Paschimi Marg, Vasaant Vihar, New Delhi, financing the project, as party.
19. In pursuance of the above, the joint Committee report dated 13.04.2021 has been filed. The Committee has framed following Terms of Reference (ToR) in the light of orders of this Tribunal:-
"(i). The committee shall go in to the question as to whether the project requires any CRZ Clearance.
(ii). Whether the project will have any environmental impact on the aquifer and the coastal zone due to construction of concrete storm water drain in the aquifer region.
(iii). What are the alternate methods by which the apprehension of the people affecting natural percolation and water recharge system in the aquifer area can be protected, if this project has to proceed with.
(iv). Submission of factual as well as action taken report, if there is any violation found.14
(v). Suggest and recommend the methods by which the project can be proceeded with, without causing much environmental impact on coastal area and aquifer region, if it is legally permissible to continue.
(vi). Submit the final report regarding the nature of all constructions in violations of the CRZ Notification in CRZ-II as well CRZ-1(A) as alleged by the applicant after verifying the same by super imposing the Coastal Regulation Zone Management Plan prepared under the notification and submit a final report including these aspects and producing the plan prepared showing the nature of constructions made in the respective zones in which it has been constructed, so as to enable this Tribunal to ascertain the true facts for the purpose of effective disposal of the case.
(vii). Assessing the environmental compensation caused on account of the damage to the marine ecology on account of constructions and mention the same as well in the report.
(viii). The counsel for the applicants in all the cases are at liberty to serve the document if any, with them to the committee members regarding the alleged construction if any, made by the corporation after the stop memo has been served on them and the committee can consider those aspects also, while filing the further report to be submitted regarding the violations committed and to assess the environmental compensation."
20. The Committee has referred to the background of the project and the estimated cost thereof. The Committee noted the stand of the PP and objections of the applicant and proceeded to consider the statutory requirements. Site inspection was undertaken and views of the stake holder were compiled. Point-wise report of the Committee is reproduced below:-
"8. Observation of the Joint Committee on the TOR to the Committee:
Based on the deliberations held during the first meeting and subsequent site inspection of the Joint Committee the following observations are made on the TOR:
(i) Whether the project requires any CRZ Clearance:
(i) Though the project authority admitted the fact that the part of the project area falls in the CRZ-II and CRZ-III, so far they have not even applied for CRZ clearance for the above said project activity and claimed that the said project is not attracted under the provisions of the CRZ Notification, since the project is fully funded by International agency governing with international agreement. The Committee is completely disagreeing with the above averment made by the project authority and confirmed that the alleged project activity falls in the CRZ classified area of CRZ-IA, CRZ-II and CRZ-III.15
Further, any kind of international funding or agreement cannot override the laws / rules enacted /notified within the ambit of Constitution of India. The Committee confirmed the requirement of Clearance from the Authority concerned under the provisions of the CRZ Notification. The project authority has not obtained the same prior to the commencement of the activities for construction of the alleged Storm Water Drain.
(ii). Whether the project will have any environmental impact on the aquifer and the coastal zone due to construction of concrete storm water drain in the aquifer region:
In order to answer to this point, one must see holistically the following factual status:
(a) Tamilnadu Government vide G.O. Ms. No. 146 dated 27.09.2016 notified the beach from Kottivakkam to Kovalam as Olive Ridley Turtle nesting sites, which is CRZ-
IA as per the Coastal Zone Management Plan, wherein outfalls construction is not a permissible activity as per Para 3 (v) r/w 8 of CRZ Notification, 2011.
(b) As admitted by the project authority, there is no dispute in the fact that part of the project area falls within the CRZ- II and CRZ-III. Project authority informed that no out-fall / construction of the structures falling in the area of CRZ-IA. All the out-fall locations are left at the end of the road towards beach and thereafter natural flow will be maintained. In order to ascertain the present existing out-fall locations constructed, geo- coordinates of the present out-fall locations were measured by the Committee and the same was superimposed on the approved CZMP through Tamilnadu State Coastal Zone Management Authority and confirmed that some of the present out-fall locations constructed are falling within the area of CRZ IA having classified as ecologically sensitive area. The same is placed as Annexure-II/2-5.
(c) Even if the locations of the outfalls are restricted by realignment well within the area of CRZ - II or CRZ-III, as per the present proposal the final discharge invariably be discharged into the area of CRZ-IA and notified Ridley Turtle nesting sites.
(d) As admitted by the project authority part of the project area falls within the CRZ II and III. Project authority informed that no out fall / construction of the structures falling in the area of CRZ-IA. All the out-fall locations are left at the end of the road towards beach and thereafter natural flow will be maintained. In order to ascertain the locations of the out-falls constructed, the geo coordinates of the present out-fall locations were measured by the Committee and sharing the same requested the TNSCMA to provide the classification in accordance with the approved CZMP. Based on the input furnished by the TNSCMA it has been observed that some of the outfall locations constructed are falling within the area of CRZ-IA.
16
(e) Conclusively, the alleged project activity falls within the area of CRZ - IA, CRZ- II & CRZ -III. In accordance with the provisions of the clause(xii) of Para 3 of CRZ Notification, 2011, construction activities in CRZ-I are prohibited except those specified in para 8 of this Notification. In sub clause (i) under clause 8 (I) of para 8 of CRZ Notification, 2011 stipulates that no new construction shall be permitted in CRZ-I except the activities referred therein the sub- clause. In the said proviso constructions for the storm water drain in the CRZ-I having the area of ecologically sensitive and geomorphological features are not expressly permitted.
(f) The project area is characterized by granular zones separated by clayey layer and underlain by weathered & fractures rock. The aquifer system in the above area can be considered as two aquifer system, viz, top sandy aquifer and weathered and fractures aquifer (Basement). The groundwater occurs under unconfined condition in top sandy aquifer and under semi confined condition in the underlying basement. The Coastal aquifer located in Tiruvanmiyur - Kovalam Tract is a multi-aquifer system. It is characterized by sand dunes, which also forms a part of Multi aquifer system with limited extensions.
(g) Construction of underground sewer lines in part of the project area has been completed and part of the area is not having any underground sewer lines. During the site inspection, it has been observed that in several places domestic effluents are directly discharged through open drains into the marine environment (Annexue-II/7). In such circumstances, local community expressed that the structure constructed for the Storm Water Drain may become a feeder channel for the drainage and lead to vulnerable and damage to the marine environment as well as the ground water regime of the said project area.
(h) The project area under question is having shallow water table 2 to 3.5 m bgl during post monsoon and 4 to 5 m bgl in pre-monsoon and thus if discharge is with any contamination, it will definitely have an impact on the ground water / aquifer system. Alternately, it needs to be also noted that since the present method of collection of stormwater and discharge on the beach is concentrated, it will flow into the sea without recharging the hitherto recharged coastal aquifer or local aquifers which is likely to impact groundwater resources in M3. Also, during rains, since the ground is already saturated no percolation will occur if collected immediately.
In view of the above, the environmental impact on the aquifer and the coastal zone due to construction of concrete storm water drain in the aquifer region depends on the nature, magnitude and duration of the discharge of the water.
(iii). What are the alternate methods by which the apprehension of the people affecting natural percolation and water recharge system in the aquifer area can be protected, if this project has to proceed with causing least environmental damage:
17
(a) The project can be revisited for the feasibility of collection and re-
use of the rain water.
(b) In order to ascertain the exact non committed surplus runoff, number of recharge structures constructed (as per building by law) in the residential area may be considered. This will give the exact amount of the non- committed surplus runoff so that based on this, sufficient number structures are to be formulated including the suitable location and size depending on the underground water regime monitoring.
(c) The surplus rain runoff may be directed to these proposed recharge structures through the storm drain. By this way the outfall point can be avoided.
(d) Since more than 80 % is covered by the residential plots, it seems that around 200 to 250 M liters can be harnessed by the local residence Rain Water Harvesting structures (as per the building by law). Therefore around 70 to 80 M litres can be considered for as non-committed surface surplus runoff. Therefore, plan or action may be required for the 70 to 80 m liters only.
(e) Therefore, at selected location this can be tackled, by installing the recharge structures instead of erecting the SWD in entire part of the M3 component.
(f) Further, anticipated excess quantum of water, if any, beyond the above suggested recharge / reuse methods, discharge can be made in the Buckingham Canal by reviving the same as this area is also part of the other component (M2) of the project instead of discharging into the coastal side by examining the detailed feasibility study by engaging the agency such as NIOT or any other reputed national institute as desired by the Hon'ble NGT.
(g) Even if the project is implemented only within the CRZ-II and CRZ-III, requisite clearance needs to be obtained from the CZMA by following the O.M. No. 19-27/2015.III dated 19.02.2021 of MOEF&CC issued on the subject, procedure for dealing with violations arising due clearance for permissible activities.
(iv) Submission of factual as well as action taken report, if there is any violation found:
Tamilnadu State Coastal Zone Management Authority vide R.C.No.P1 / 2190 / 2020-1 dated 23.12.2020 requested the Commissioner, the Greater Chennai Corporation to stop all the activities for construction of Storm Water Drain along the stretch at Sholinganallur, Uthandi, Palavakkam Villages, till further orders. The Counsel of the Applicants of the O.A. and residents alleged that even after the issuance of the stop order the work was continued. In this regard, Officials of the project authority informed that they continued only in the places where the safety measures are required. Subsequently, works have been halted and during the site inspection no work is in progress.
(v) The committee is also directed to suggest and recommend the methods by which the project can be proceeded with, without causing much environmental impact on coastal area and aquifer region, if it is legally permissible to continue:18
(a) The project can be revisited for the feasibility of collection and re-
use of the rain water.
(b) In order to ascertain the exact non committed surplus runoff, number of recharge structures constructed (as per building by law) in the residential area may be considered. This will give the exact amount of the non- committed surplus runoff so that based on this, sufficient number structures are to be formulated including the suitable location and size depending on the underground water regime monitoring.
(c) The surplus rain runoff may be directed to these proposed recharge structures through the storm drain. By this way the outfall point can be avoided.
(d) Since more than 80 % is covered by the residential plots, it seems that around 200 to 250 M liters can be harnessed by the local residence Rain Water Harvesting structures (as per the building by law). Therefore around 70 to 80 M litres can be considered for as non-committed surface surplus runoff. Therefore, plan or action may be required for the 70 to 80 m liters only.
(e) Therefore, at selected location this can be tackled, by installing the recharge structures instead of erecting the SWD in entire part of the M3 component.
(f) Further, anticipated excess quantum of water, if any, beyond the above suggested recharge / reuse methods, discharge can be made in the Buckingham Canal by reviving the same as this area is also part of the other component (M2) of the project instead of discharging into the coastal side by examining the detailed feasibility study by engaging the agency such as NIOT or any other reputed national institute as desired by the Hon'ble NGT.
(g) Even if the project is implemented only within the CRZ-II and CRZ-III, requisite clearance needs to be obtained from the CZMA by following the O.M. No. 19-27/2015.III dated 19.02.2021 of MOEF&CC issued on the subject, procedure for dealing with violations arising due clearance for permissible activities.
(vii). to submit the final report regarding the nature of all constructions in violations of the CRZ Notification in CRZ-II as well CRZ-1(A) as alleged by the applicant after verifying the same by super imposing the Coastal Regulation Zone Management Plan prepared under the notification and submit a final report including these aspects and producing the plan prepared showing the nature of constructions made in the respective zones in which it has been constructed, so as to enable this Tribunal to ascertain the true facts for the purpose of effective disposal of the case:
(a) Based on the site inspection, the Committee has observed that Project Authority has undertaken only construction activity such as excavation and civil construction structures for the storm water drain and the project has not been completed so far and thus the Joint Committee felt that as of now the damage caused to the marine ecology by this project activity 19 is not significant. However, project authority has committed violation as the said project activity was commenced without obtaining the requisite CRZ clearance from the authorities concerned. Further, undisputedly the construction activity was continued even after the issuance of the stop order by the Tamil Nadu State Coastal Zone Management Authority, which is evident based on the submissions made by the Officers representing the Greater Chennai Corporation during the first meeting of the Joint Committee held on28.12.2020 that they are unaware about the stop Order issued by the Tamil Nadu State Coastal Zone Management Authority.
(b) Immediately a copy of the said communication endorsed to the nodal agency has been handed over to the Officers represented from the Greater Chennai Corporation and requested to comply the directions of the Tamilnadu State Coastal Zone Management Authority. A Copy of the email communication along with the communication dated 23.12.2020 of Tamilnadu State Coastal Zone Management Authority addressed to the Greater Chennai Corporation is placed as Annexure-III. Even after the first meeting, communications were received from the local residents of the area stating that the construction activity is in progress. Nodal agency vide e-mail communication dated 06.01.2021 forwarded the same to the Tamilnadu State Coastal Zone Management Authority and the Commissioner, Greater Chennai Corporation with the request to look into the matter. The said communications are pleased as Annexure-
IV. Project authority informed during the site visit that they continued the work only for making precautionary safety measures on the project area.
(c) By considering the above facts, Hon'ble Tribunal may arrive Environmental compensation / penalty as deem fit under the circumstances of the case based on the financial penalty remaining within the brief of Section 15 of the Environment (Protection) Act, 1986 or on the basis of the percentage of the project cost as desired by the Hon'ble Tribunal. Further, in the event of restoration, if any, based on the directions of the Hon'ble Tribunal, the entire expenditure shall be met by the project authority.
(viii). The counsel for the applicants in all the cases are at liberty to serve the document if any, with them to the committee members regarding the alleged construction if any, made by the corporation after the stop memo has been served on them and the committee can consider those aspects also, while filing the further report to be submitted regarding the violations committed and to assess the environmental compensation:
The e-mail communication received from the residents of the project area stating that the construction activity is in progress even after the issuance of stop order issued by the Tamilnadu State Coastal Zone Management Authority has been forwarded vide e-mail communication dated 06.01.2021 to the Tamilnadu State Coastal Zone Management Authority and the Commissioner, Greater Chennai Corporation with the request to look into the matter.20
9. Conclusion & Recommendations:
By considering all the above facts, project authority may revisit the present proposal and come up with alternate plan of action as suggested above for the implementation by following all the statutory requirements. Hon'ble Tribunal may pass appropriate Order(s) / direction(s) as deemed fit on priority considering the safety aspects of the residents on the excavated area during the ensuing rainfall."
21. However, officers representing the PP have not agreed with the majority view and had given their separate report which is as follows:-
" S. Terms of Site observations/Action
No. Reference to the proposed/ Taken
joint Committee
(i). The Committee 1. Kovalam M3 Project Area shall go into the falls under Greater Chennai question as to Corporation (GCC) whether the project Administration area.
requires any CRZ 2. Storm Water Drain (SWD) is Clearance. an integral part of Road network for disposal of surface and subsurface water to designated locations.
3. In the Kovalam M3 Project area, roads have been built and improved in the last decades, Parks have formed and improved, Street lights and other Underground utilities are also provided by Greater Chennai Corporation and other institutions.
4. It is necessary to safeguard the roads from flooding, damages caused to the property during the flooding.
5. Construction of Storm Water Drain proposed by the Greater Chennai Corporation does not falls in CRZ-1A and CRZ-1B.
6. It is concluded that, the construction of Storm Water Drain in M3 Component of Kovalam Basin is part and parcel of the road laying work which plays a crucial role to safeguard the road users and also to protect the road and other infrastructures like EB pillar box, street light and other available utilities from possible 21 damages during monsoon.
Under such circumstances, the construction of Storm Water Drain does not requires CRZ Clearance.
(ii) Whether the project 1. The area of 7.8 hectares will have any covered under the Storm Water environmental Drain (SWD) in M3 component is impact on the less than 1% i.e. 0.70% of total aquifer and the area of 1137 hectares only.
coastal zone due to 2. In the construction of Storm construction of Water Drain in the M3 concrete storm Component of Kovalam Basin, water drain in the exhaustive Rain Water aquifer region. Harvesting activities are being carried out by providing Eco Storage Block, Sunken Wells and Rain water harvesting structure.
Because of this extensive
implementation of rain water
harvesting structures, sustained
recharge of Ground water is
ensured in this Coastal Sandy
Aquifer Region. Thereby, positive
Environmental Impact could be
witnessed.
3. With regard to the turtle
activities, the hatching activities
by the turtle would only during
summer period, i.e. only after
monsoon period and also
hatching activities are well away
from storm water drain. Hence,
the constructed storm water
drain would not affect the Turtle
activities in any aspect.
4. So it is concluded that M3
component will not have any
environmental impact on the
aquifer and coastal zone.
(iii). What are the In the Construction of Storm
alternate methods Water Drain in the M3
by which the component of Kovalam Basin,
apprehension of
exhaustive Rain Water
the people affecting
natural percolation Harvesting activities are being
and water carried out by providing Eco
recharged system Storage Block, Sunken Wells and
in the aquifer area Rain Water Harvesting
can be protected, if Structures and it is summarized this project has to items are listed below.
proceed with?
Storage ECO Blocks in Open are and Parks will be provided in 20 Locations with total capacity of 22 22,450 cubic meter (22.45 Million Liters).
Total Number of Sunken Wells: 168.
Total Number of Catch Pit with Rain water Harvesting Structures: 1932.
Rain Water Harvesting Structural Pit is constructed inside the Storm Water Drain with diameter of 0.60 m at 10m interval for the entire SWD stretch of 52.47 Km by constructing Sunken Wells, Rain Water Harvesting Structures, natural percolation of rain water and water recharge system in aquifer area can be protected.
(iv) Submission off 1. No construction Activities actual as well as was carried out in CRZ IA and Action taken CRZ IB Area.
report, if there is 2. Construction of Storm any violation water Drain of Kovalam M3 found. Project Area falls under Greater Chennai Corporation (GCC) Administration Area.
3. Storm Water Drain is being constructed on the shoulder of the existing road as part of the road infrastructure.
So, there is no violation found during the site inspection along with NGT Joint Committee on 07 "
Jan. 2021.
22. The PP has filed additional papers on 02.09.2021 annexing copy of the letter dated 25.02.2021 addressed to the TNCZMA for CRZ Clearance.
23. We have heard learned counsel representing the applicants and learned Advocate General appearing for the PP.
24. Learned Counsel for the applicants submitted that having regard to Precautionary principle of environmental law, the joint Committee report may be accepted and the project be required to be revisited in the light of the said report. The PP has to obtain CRZ clearance before proceeding 23 further. The PP should be made accountable for the violation in starting the project without requisite CRZ clearance and in violation of stop work order.
25. The stand of the PP is that though CRZ Clearance is not required, it has been sought. The State of TN has sought opinion of IIT on the subject of revisiting the project. There is interim order of Madurai Bench of Madras High Court on the issue of ex-post-facto EIA/CRZ Clearance.
26. Learned Counsel for the German Development Bank has submitted that the Bank is only a financier and is not a necessary party. It will finance the project if the project is legal and viable.
27. We have carefully considered the matter in the light of rival submissions and the material on record.
28. The principle of 'sustainable development' requires that all development activities must be undertaken consistent with the environmental concerns. We are in agreement with the expert Committee view that the project needs to be revisited and can proceed only after requisite CRZ clearance. The stand of the officers of the PP that the project is part and parcel of road laying work and the drain does not fall in CRZ I- A and I-B cannot be accepted. The project admittedly falls in CRZ-II and CRZ-III and its outfall is also in CRZ-IA which is ecologically sensitive area being notified as Ridley Turtle nesting site. Activities in CRZ-I are prohibited except those permitted in para 8. Construction of SWD in CRZ- I which is ecologically sensitive area is not permitted. The project needs to be revisited for feasibility of collection and re-use of rain water.
29. Accordingly, we direct the State of Tamil Nadu and the PP to revisit the project in the light of observations of the expert Committee. They are 24 free to consider the views of IIT, Chennai and other expert Institutions like the Indian Institute of Sciences, Bangalore. In case it is decided to go ahead with the project with suitable changes, the PP may proceed further only after statutory CRZ clearance granted. Before granting CRZ Clearance, CZMA may issue appropriate ToRs to enable Environment Management Plan to be prepared to mitigate the adverse consequences of damage to the environment. Such plan may be duly appraised while granting the CRZ Clearance. In view of statement of learned Advocate General that there is an interim order on the issue of CRZ clearance, this order will be subject to any such order. Further work of the project may be undertaken only after decision on re-visiting the project is finalised and CRZ clearance is granted as above.
30. We record our displeasure against the officers of the PP for undertaking the work in violations of the stop work order and without requisite CRZ clearance. We also give liberty to the concerned authorities including MoEF&CC to take action for the violations in undertaking work as above. However, since it has been found that no substantial work has been executed in violation of the stop work order, we are not inclined to award compensation.
The applications will stand disposed of accordingly. A copy of this order be forwarded to the Chief Secretary, Tamil Nadu by e-mail for compliance.
Adarsh Kumar Goel, CP K. Ramakrishnan, JM 25 Sudhir Agarwal, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM Dr. K. Satyagopal, EM September 06, 2021 Original Application No. 233/2020(SZ) A 26