National Green Tribunal
Meenava Thanthai K.R. Selvaraj Kumar ... vs The Chief Secretary Government Of Tamil ... on 9 April, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 225 of 2016 (SZ)
(Through Video Conference)
IN THE MATTER OF:
MEENAVA THANTHAI K.R. SELVARAJ KUMAR
MEENAVAR NALA SANGAM
Rep. by its President
M.R. Thiyagarajan,
S/o. Late C. Rajalingham,
Office at No.15/8, A.J. Colony, Royapuram,
Chennai - 600 013.
... Applicant(s)
Versus
The Chief Secretary,
Government of Tamil Nadu,
Secretariat,
Chennai - 600 009 and Ors.
... Respondent(s)
For Applicant(s): Mr. G. Stanley Hebzon Singh &
Mr. K. Mageshwaran.
For Respondent(s): Dr. V.R. Thirunarayanan for R1 to R5, R7.
Mr. C. Kasirajan for R6, R8.
Mr. Sathish Parasaran, Senior Adv. along with
Mr. R. Parthasarathy &
Mr. Raghul Balaji for R9 & R10.
Judgment Pronounced on: 09th April, 2021.
Page 1 of 62
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
JUDGMENT
Judgment pronounced through Video Conference. Original Application is disposed of with directions vide separate Judgment.
Sd-
....................................J.M. (Justice K. Ramakrishnan) Sd/-
...............................E.M. (Shri. Saibal Dasgupta) O.A. No.225/2016, 09th April, 2021. Mn.
Page 2 of 62 Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Original Application No. 225 of 2016 (SZ) (Through Video Conference) IN THE MATTER OF:
MEENAVA THANTHAI K.R. SELVARAJ KUMAR MEENAVAR NALA SANGAM Rep. by its President M.R. Thiyagarajan, S/o. Late C. Rajalingham, Office at No.15/8, A.J. Colony, Royapuram, Chennai - 600 013.
... Applicant(s) Versus
1) The Chief Secretary, Government of Tamil Nadu, Secretariat, Chennai - 600 009.
2) The State of Tamil Nadu Represented by its Secretary to Government, Fisheries Department, Fort St. George, Chennai - 600 009.
3) The State of Tamil Nadu, Represented by its Secretary to Government, Environment Department, Fort St. George, Chennai - 600 009.
4) The State of Tamil Nadu, Represented by its Secretary to Government, Public Works Department, Fort St. George, Chennai - 600 009.
5) The District Collector, Kanchipuram District, Kanchipuram.
6) The Chairman, Tamil Nadu Pollution Control Board, No.76, Mount Salai, Guindy, Chennai - 600 032.Page 3 of 62
7) The Tahsildar, Tahsildar Office, Thirukazhukundram - 603 109.
8) The District Environmental Engineer, Tamil Nadu Pollution Control Board, Maraimallai Adigalar Stret, Maraimallai Nagar, Kancheepuram District.
Chennai - 603 209.
9) Radisson Blu Resort Temple Bay Mamallapuram Representing by its Managing Director, No.57, Kovalam Road, Kanchipuram District, Mahabalipuram, Tamil Nadu - 603 104.
10) G.R.T. Hotels and Resorts Private Limited, Rep. by its Managing Director, No.57, Kovalam Road, Mahabalipuram, Tamil Nadu - 603 104.
(Impleaded as 10th respondent as per order
dt.12.07.2017 in M.A. No.78 of 2017)
... Respondent(s)
For Applicant(s): Mr. G. Stanley Hebzon Singh &
Mr. K. Mageshwaran.
For Respondent(s): Dr. V.R. Thirunarayanan for R1 to R5, R7.
Mr. C. Kasirajan for R6, R8.
Mr. Sathish Parasaran, Senior Adv. along with
Mr. R. Parthasarathy &
Mr. Raghul Balaji for R9 & R10.
Judgment Reserved on: 23rd March, 2021.
Judgment Pronounced on: 09th April, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER Whether the Judgement is allowed to be published on the Internet - Yes/No Whether the Judgement is to be published in the All India NGT Reporter - Yes/No Page 4 of 62 JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above application has been filed by the applicant alleging certain violations committed by the 9th respondent namely, Radisson Blu Resort Temple Bay Mamallapuram while carrying out their activities. It is alleged in the application that the applicant is an association interested in protecting environment especially Coastal and Marine Ecology. It is a registered body under Section 10 of the Tamil Nadu Societies Act, 1975 with Sl. No.205 of 2015 dated 26.06.2015. They have filed lot of applications projecting environmental issues before different Courts including this Tribunal.
2. The 9th respondent is an international hotel company and a subsidiary of the Carlson Rezidor Hotel Group operates in the brand name of Radisson Blu incorporated under the provisions of Companies Act, 1956 and dealing with hotel industry and running beach resorts under the name and style of „Radisson Blu Resort Temple Bay Mamallapuram‟, No. 57, Kovalam Road, Kanchipuram District, Mahabalipuram. It was alleged in the application that the resort of the 9th respondent is located in CRZ-I and CRZ zone and their operation has hampered fishing activities in that area affecting livelihood of the fishermen. They had encroached the beach land and constructed its resort in the restricted CRZ-I and CRZ areas in violation of CRZ Notification, 1991, which was later superseded by CRZ Notification, 2011. As per the notification, the coastal land up to 500 m from High Tide Line (HTL) and a stage of 100m along the banks of creeks, estuaries, backwater and rivers subject to tidal fluctuations called Coastal Regulation Zone (CRZ). It had four categories namely, CRZ-I, CRZ-II, CRZ-III & CRZ-IV. There were certain restrictions imposed in respect of setting up and Page 5 of 62 expansion of industries etc. in CRZ zone. Areas that are ecologically sensitive and important, such as national parks/ marine parks, sanctuaries, reserve forests, wild habitats, mangroves, corals/ coral reefs, area close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty, historical and heritage areas, areas rich in genetic biodiversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such areas as may be declared by the authorities and areas between the Low Tide Line (LTL) and High Tide Line (HTL) as classified as CRZ-I zone and certain activities are prohibited within the CRZ area and the 9th respondent had directly violated the rules framed under the Coastal Regulation Zone Notification. The increasing pollution level on account of the activities of the 9th respondent had affected the marine life, adversely affecting the livelihood of the fishing communities.
3. A show cause notice dated 17.06.2016 was issued by the Tamil Nadu Pollution Control Board under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1984 to the 9th respondent calling upon them as to why direction should not be issued for closure of the unit and stoppage of power supply etc.
4. The 9th respondent had made construction in the restricted area without any legal sanction from the Tamil Nadu Pollution Control Board. They have not obtained Environmental Clearance (EC) or CRZ Clearance as required under the notifications. They were extending their resort activities into the restricted zone beyond the permitted area without any permission and encroaching into the sea and discharging their sewage water in the beach without any treatment, thereby ground water in that area has been polluted Page 6 of 62 which place is known as „Tsunami Kudiyeruppu Mahabalipuram‟. This has affected the water quality in that area and creates scarcity of the drinking water to the people in that locality.
5. So, the applicant filed this application seeking the following Interim as well as Main reliefs:-
"Interim Relief:
i. It is also respectfully prayed that this Hon‟ble Court pleased to grand ad interim injunction pending disposal of the above main petition restraining the 9th Respondent from further constructing in the restricted CRZ zone and not to emit the sewage water in the open Beach.
ii. To direct the 9th respondent to reinstate the CRZ I area in which the 9th respondent had pulled.
iii. To direct the 5th respondent to remove the construction which was constructed by the 9th respondent around 10 acre in the CRZ and CRZ I area and maintain the Beach at the expenses of the 9th respondent.
iv. To direct the 5th respondent to inspect and file a report before this Hon‟ble Tribunal regarding the encroached government area by the 9th respondent.
v. To direct the 9th respondent to stop the unauthorised Boating and Deep Sea Diving pending disposal of the Main Application.
Main Relief:
To issue direction to the respondents 1 to 8 to initiate appropriate action against the 9th respondent adversely affecting Mahabalipuram Area and to reinstate the CRZ and CRZ-I area and to restrict the 9th respondent from further construction and to remove the unauthorized construction in the CRZ and CRZ-I area in the ends of the justice and pass such other order or orders as this Hon‟ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice."
6. The 2nd respondent filed their reply affidavit contending that the application was filed alleging certain violation of Coastal Regulation Zone (CRZ) under Page 7 of 62 the CRZ Notification alleging adverse impact on certain coastal environment and fishermen community living in that area. The scope of the activity of the 2nd respondent is very limited in this regard as they are only dealing with the upliftment of the livelihood of the fishermen community in Tamil Nadu. The 9th respondent/ Radisson Blu Resort Temple Bay Mamallapuram is situated in the sea shore approximately 500 m North of Mamallapuram Kuppam fishing hamlet and 1 Km South of Devaneri kuppam fishing hamlet. There were about 175 fishermen living in Mamallapuram Kuppam fishing hamlet and 69 registered fishing crafts are being used by the fishermen of Mamallapuram kuppan fishing hamlet to eke out their livelihood. There are 147 fishermen families living in Devaneri kuppam fishing hamlet and 97 registered fishing crafts are being used by the fishermen of Devaneri Kuppam fishing hamlet to eke out their livelihood from fishing. The department of fisheries, Government of Tamil Nadu is extending all welfare measures under various socio-economic welfare schemes implemented by the Government of Tamil Nadu to the fishermen community in that area. The 9th respondent had constructed pipe like structures underneath the beach along the compound wall by the side of the coast to protect their compound wall from sea erosion. However, neither the Commissionarate of Fisheries Department nor the District Fisheries officials of Kancheepuram District have received any complaint or any representation from the fishermen of the above said fishing hamlets in respect of any construction affecting their livelihood. The District Collector, Kancheepuram was asked to file inspection report by the Assistant Director of Fisheries, Kancheepuram and they submitted a report stating that the site was inspected on 03.02.2017 and it was found that no water was let out by Page 8 of 62 the 9th respondent as alleged by the applicant. So, they prayed for passing appropriate orders considering their contentions.
7. The 3rd respondent filed counter contending that as per CRZ Notification, 2011, all the permissible activities in Coastal Regulation Zone listed under Para 8 of the Notification requires clearance either from the Tamil Nadu State Coastal Zone Management Authority or from the National Coastal Zone Management Authority. The Ministry of Environment, Forests & Climate Change (MoEF&CC), New Delhi has approved the Coastal Zone Management Plan (CZMP) of Tamil Nadu vide proceeding No. J- 17011/16/93-IA-III dated 27.09.1996. As per the said approved plan, the coastal areas of Mamallapuram Village are failing in CRZ-III. The disposal of sewage water in beach is violation as per CRZ Notification, 2011 vide Para 3 (vi). Disposal of sewage water into the beach and any construction without the Consent/No Objection Certificate/ Clearance of competent authority in Coastal Regulation Zone will attract the penal provisions of Environment (Protection) Act, 1986. The provision of Special Building Rules, Building Development Control Regulations, Town Planning Rules are being implemented by the concerned departments and local bodies and violations, if any, under those regulations, will have to be dealt with by the concerned departments under the concerned provisions of the Acts, Rules and regulations dealing with them. The Government of Tamil Nadu has constituted District Coastal Zone Management Authority (DCZMA) for all the Coastal districts as per G.O. Ms. No.163 Environment and Forests Department dated 09.06.1998 and the said authorities are functioning under the Chairmanship of the District Collectors of respective Coastal Districts and the concerned District Environmental Engineer of the Tamil Nadu Page 9 of 62 Pollution Control Board as the convenor for these authorities. The District Coastal Zone Management Authorities are responsible for monitoring and enforcement/implementation of the provisions of the CRZ Notification and to ensure that the activities within Coastal Regulation Zone take place as per the approved Management Plan in their respective jurisdiction. In respect of Chennai Metropolitan Development Authority areas, the Chennai Metropolitan Development Authority and the Corporation of Chennai have been made responsible for the enforcement of provisions of the CRZ Notification, 2011. The Tamil Nadu State Coastal Management Authority in the 79th Meeting held on 18.08.2014, resolved to request all the Coastal District Collectors/Chairman, District Coastal Zone Management Authorities and also the Commissioner, Corporation of Chennai to identify the violations in Coastal Regulation Zone with the CRZ Notification, 2011 and take action on such violations and accordingly they have been instructed to take appropriate action. By virtue of the delegated powers granted, it is for the Tamil Nadu Pollution Control Board to take appropriate action on violations, if the violations alleged are valid and maintainable. The Tamil Nadu State Coastal Zone Management Authority has not received any application and not granted any permission to conduct boat rides and deep sea diving to the 9th respondent/Radisson Blu Resort Temple Bay Mamallapuram. So, they prayed for passing appropriate orders, after considering their contentions.
8. The 5th respondent filed counter affidavit contending that the 7th respondent Tahsildar, Thirukalukundram had filed counter affidavit on 18.11.2016 which this respondent adopts but reserved their right to file additional affidavit, if necessary in subsequent stage.
Page 10 of 62
9. The 7th respondent filed counter affidavit contending that the area occupied by the Radisson Blu Resort Temple Bay Mamallapuram is located in the following survey numbers.
Survey No. Extent
92 4.14.5 hec.
94-1.03.5 hec. 1.03.5 hec.
99/3A 0.22.5 hec.
99/3B1 0.11.0 hec.
99/3B2B1 0.22.5 hec.
99/3B2B2A1 5.29.0 hec.
99/3B2B2D 0.22.5 hec.
10.The waste and waste water emitted by the above concern is going to Sewage Treatment Plant and after processing the water is used for Lane and Coconut trees for cultivation and maintenance of lane and coconut trees. So there was no question of pollution being caused on account of discharge of sewage as alleged by the applicant. As regards the issue of encroachment is concerned, burial grounds were scattered around the land belonging to the above concern. The Sub Collector, Chengalpattu called for a peace committee meeting involving the officials, local people and other interested parties on 25.03.1998, wherein, it was agreed that the burial grounds would be arranged by setting aside 0.93.0 hectares for Hindus, 0.10.0 hectares for Brahmin Community, 0.10.0 hectares for Kattunaicker Community and 0.14.5 hectares for Fishermen Community along with access road having 10 meter width connecting all burial grounds to sea, common to all communities from Kovalam Road to Beach. Further, in Sy. No.100/4, an extent of 0.40.5 hectares was decided to be left for the fishermen community for dwelling purposes. Based on the peace committee meeting dated 25.03.1998, the Managing Director, India Tourism Development Page 11 of 62 Corporation represented before the then Sub Collector, Chengalpattu to arrange for shifting of two of the burial/ cremation grounds earmarked for Brahmin and Kattunaicker Community to the western side of the existing Hindu community burial ground in view of the proposal to develop the eastern side of the lands acquired by them, for which consents were obtained from the authorities and the fishermen panchayat council etc. for change of location of the burial grounds. The Sub Collector had further recorded that the concerned communities had consented to the proposal of setting up of burial grounds as proposed by the Managing Director, Indian Tourism Development Corporation and permission was granted to him to carry out the same and also build a compound wall around the area. Accordingly, the area had been rearranged and a separate access road had also been provided to the burial grounds, which is being maintained by the Town panchayat, but there was no changes carried out in the village accounts. Previously, there were burial grounds in S.F. No.99/1, 99/2 and 99/4 (Total extent of these S.F. Nos.: 0.95.5 hectares). Though the extent had been exchanged to GRT Hotel, they used only the extent of 0.26.5 hectares of land. The shifting of burial ground as mentioned above also situated in the same S.F. No.99 which is having an extent of 1.17.0 hectares with the separate road facility. Since this issue had been settled, by way of peace committee meeting and after obtaining consents from the concerned communities, there is no violation of rules and regulations in this regard. The waste and waste water were generated by the 9th respondent unit reaches the Sewage Treatment Plant and after processing the water goes to the Lane and Coconut trees and there is no question of damage to sea or causing water pollution as alleged. As regards the encroachment is concerned, the Revenue Divisional Officer, Chengalpattu had conducted peace committee meeting along with the people Page 12 of 62 of concerned communities and sorted out the issues. As regards the allegations mentioned in Para 8, the 8th respondent is the competent authority to give necessary reply. The allegations in Para 10 & 11 were denied as there was no untreated sewage water being discharged as alleged. A Writ Petition was filed before the Hon‟ble High Court as W.P. No.14976 of 2015 seeking more or less similar relief and the same was dismissed on 18.10.2016. The Coastal Zone Management Authority is necessary party to decide the relief sought for in this application but they were not made as a party to this case. So, they prayed for dismissal of the application.
11.The respondents 6 & 8 filed reply affidavit contending that M/s. Radisson Blu Resort Temple Bay located in Sy. No.9/1, 3A, 3B1, 3B2A, 3B2B1, 3B2B2A1, part 3B2B2C, 3B2BD, 4, 6, 100/3, 4 of Mamallapuram Village, Thirukazhukundram Taluk, Kancheepuram is hotel with beach resort operating since year 2002 without obtaining consent of the Board. The 9 th respondent had obtained CRZ Clearance from the Ministry of Environment and Forests vide Proceedings No.F.No.18-13/2005 - IA - III dated 26.05.2006 for expansion of GRT Temple Bay beach resort of M/s. Mamallapuram Hotels Private Limited to construct additional 22 numbers of accommodation facilities at 1500 Sq.ft. each along with one convention centre, banquet office, staff quarters, club house three new restaurants with attached kitchens and a swimming pool along the available land between 200m to 500m from High Tide Line (HTL). The unit had obtained planning permission for the proposed expansion from Member Secretary, Mamallapuram Local Planning Authority on 14.07.2009. The 9 th respondent had applied for Consent to Establish for expansion through care centre on 24.05.2013 and the same has been returned noting certain discrepancies in Page 13 of 62 the CRZ Clearance obtained and the planning permission obtained from Mamallapuram Planning permission vide letter dated 25.11.2013. In respect of accommodation facilities as per the planning permission, it was ascertained that approval had been given to construct 22 accommodation facilities - 19 Nos. at 1911.33 Sq.ft. and 3 Nos. at 1759 Sq.ft. whereas, CRZ Clearance had been granted for construction of 22 accommodation facilities at 1500 Sq.ft. each and there existed discrepancy in built up area of accommodation units between Environmental Clearance and Planning permission issued to the unit. A show cause notice was issued to the 9th respondent unit for operating the unit without obtaining consent of the Board vide Proceedings dated 17.06.2016. The unit in its reply dated 22.08.2016, has replied that no amendment is warranted in environmental clearance and however has initiated action to carry out reconciliation between CRZ clearance, planning permission and actual available and to complete the same before September 2016, but they have not furnished details so far. The 9th respondent unit was inspected by the Pollution Control Board authorities on 25.11.2016 and during inspection, it was observed that Sewage Treatment Plant provided was under operation and the treated sewage is being utilized for gardening within the premises and there is no discharge of sewage from the unit into the sea or outside of the premises. During inspection it was informed by the unit that no construction has been carried out between 0 - 200 m from the High Tide Line by the unit after acquisition in the year 2002. The 9th respondent had filed online application through OCMMS on 18.11.2016 and the unit is yet to resolve the discrepancy in the built up area of accommodation units between CRZ clearance and planning permission issued to the unit. So, they prayed for passing appropriate orders, after considering their contentions.
Page 14 of 62
12.The 9th respondent filed reply affidavit contending that the application is not maintainable and the same has to be dismissed in limine on the ground that it was filed on account of personal motive against the present respondent. The 9th respondent has been wrongly arrayed by the applicant since no such legal entity exists. However, the 9th respondent being the holding company of the Temple Bay Resort is filing the present reply which may be taken on record and may be considered as the reply on behalf of Radisson Blu Temple Bay Resort Mamallapuram. The 9th respondent is a private company duly registered under the Companies Act, 1956 and carrying on business in the field of hospitality for several years. They have established a chain of hotels in Tamil Nadu which are successfully operating till date. One of the hotels established by the respondent is the hotel currently known as "Radisson Blu Temple Bay Resort" located at Mamallapuam, which is immensely popular among international tourists. They are operating over 10 properties including the present one at Mamallapuram and they are doing this business since 1964 and with respect to the Temple Bay resort, they have entered into an operation agreement with Radisson Hotel Inc., Singapore to facilitate smooth and quality operation to ensure world class standards. The Temple Bay Resort was initially under the ownership of the India Tourism Development Corporation Ltd. (ITDC) which is a company promoted by the Government of India under the aegis of the Ministry of Tourism. On the request of ITDC around the year 1969-70, the Government of Tamil Nadu assigned lands admeasuring 10.24 acres, including some lands along with building named "Hotel Ritz" to the ITDC. On a further request made by ITDC, lands admeasuring 34.47 acres in adjacent areas were assigned to it Page 15 of 62 by the Government of Tamil Nadu for the use of ITDC for promotion of tourism in the following manner:
(i) Lands measuring 13.85 acres were acquired and handed over to the ITDC on 01.12.1981 by Tahsildar, Thirukazhankundram Taluk pursuant to Award No.3 of 1981 dated 17.11.1981.
(ii) Lands measuring 20.62 acres were acquired for additional use of ITDC pursuant to Award No.10 of 1986 dated 23.09.1986, out of which 15.97 acres were handed over on 28.09.1990 to the 1st respondent. Thereafter, ITDC had taken possession of the remaining 4.75 acres of land duly handed over by the Revenue Inspection on 11.03.2003.
13.The ITDC had acquired the aforesaid lands together with buildings free from all encumbrances and has been the absolute owner of the said lands with clear title over the properties. While so, the Government of India took a policy decision of disinvestment of shares in ITDC and thereby transferred ownership of its properties to private entrepreneurs for enhancing tourism. Accordingly, the aforesaid properties vested in M/s. Mamallapuram Hotels Pvt. Ltd. pursuant to a scheme of demerger. The aforesaid company was running a hotel by the name and style of "Temple Bay Ashok Beach Resort"
at Mamallapuram. The Government of India had invited bids from prospective bidders to purchase shares of the said company, wherein the present respondent was the successful bidder. The parties entered into two Share Purchase Agreements dated 01.02.2002 by which the entire shares of the aforesaid company were transferred in favour of this respondent, leading to transfer of management and takeover of free hold rights in the properties and assets of the aforesaid company in favour of this respondent. Subsequently, the Chairman and Managing Director of ITDC vide letter Page 16 of 62 dated 01.02.2002, addressed to the Temple Bay Ashok Beach Resort, Mamallapuram, confirmed that the management under the auspices of Mamallapuram Hotels Pvt. Ltd. stood transferred to this respondent with effect from that date. Thereafter, by way of a scheme of amalgamation sanctioned by the Hon‟ble High Court, M/s. Mamallapuram Hotels Pvt. Ltd. amalgamated with this respondent, resulting in the transfer and vesting their undertakings, business, assets and liabilities, in this respondent. So, they hold clear title over the aforesaid properties and the applicant has not presented the true and correct facts before this Tribunal and made only bald allegations of encroachment, without adverting to the correct facts. They acquired the property belong to ITDC by an open tender process, on an „as is where is‟ basis, and has been subsequently managing the land and existing buildings. Thereafter, Patta No.1211 was issued by Tahsildar, Thirukazukundram Taluk, Kancheepuram District to this respondent. They intended to add more cottages and amenities in addition to the amenities that were acquired from ITDC and for this purpose, an application was made for the approval to the Ministry of Environment and Forests, Government of Tamil Nadu, which approved the expansion plan by way of communication dated 21.09.2005. Based on the recommendations of State Level Coastal Zone Management Authority for the State of Tamil Nadu, the MoEF, Government of India, New Delhi has granted Environmental Clearance (EC) dated 26.05.2006 under the CRZ Notification, 1991. Based on the clearance, the company has taken the approval from Mamallapuram Local Planning Authority and developed the expansion of the property during the year 2009. They complied with all the conditions set out in these approvals and has not violated any condition set out therein. As per the Environmental Clearance (EC) granted, they had been permitted to set up 22 cottages Page 17 of 62 admeasuring 33,000 Sq.ft. In total, 3 restaurants admeasuring 13,500 Sq.ft., staff quarters admeasuring 6,500 Sq.ft., convention centre admeasuring 18,750 Sq.ft., Club house admeasuring 6,000 Sq.ft., Swimming Pool admeasuring 4,00 Sq.ft. and Banquet Office admeasuring 7500 Sq.ft all totalling to an area of 89,250 Sq.ft. Based on this communication, it has received approval from the Local Planning Authority and has built as per plan approved. It has erected buildings covering an area lesser than the approval accorded by the Local Planning Authority and the Environment and Forests Department, State of Tamil Nadu. So, the discrepancy alleged in the build up area by the authorities is purely academic and has no relevance since there is no violation whatsoever. As per the conditions of the Environmental Clearance (EC) given to this respondent, a Sewage Treatment Facility has been provided and operated efficiently. The treated sewage is used within the premises for the gardening, tree plantation and landscaping and there is no discharge of any effluents or waste. The performance of the Sewage Treatment facility is periodically monitored and the same is operational. As on date, there is no discharge of effluents from this respondent‟s premises which is the fact confirmed by the authorities. The tests conducted with regard to the treated water by the treatment facility are well within the parameters prescribed by the Tamil Nadu Pollution Control Board. Other than the expansion activity mentioned above, no other expansion or construction was carried out. At present, there is no construction activity being undertaken at the respondent premises. For the purpose of activities for the guests and other international tourists, they are conducting outdoor sports activities through M/s. NRV Sports, Chennai for period of one year, from 1st April, 2016 for which an agreement has been entered into. M/s. NRV Sports have obtained NOC from Coastal Security Page 18 of 62 authorities vide their letter dated 05.09.2015. In the premises of the 9th respondent, it has been completely prohibited the use of throw away plastic materials and encouraging the use of reusable materials. The garbage generated is composted and used as manure. The application is not maintainable in view of the provisions of Sections 14, 15 & 16 of the Act as permission for expansion was granted were taken in 2005 and hence the application is barred by limitation. They denied the allegations of encroachments and affecting the livelihood of the fishermen community on account of their activities. The Hon‟ble High Court of Madras has observed that there was no encroachment by the respondent in the Writ Petition filed as No.14976 of 2015. So, the allegation in the application is not correct. The Hon‟ble High Court of Madras dealt with the alleged encroachments at lengthy and disposed of the case on 18.10.2016 observing that there was no encroachment of public lands by the this respondent. The allegations that they have violated the directions of the Hon‟ble Apex Court etc are not correct. The 9th respondent had also give para wise response as detailed below:
Para No Response
1 to 3 The contents of these paras are matters of record and merit
no specific comment.
4 The Applicant is put to strict proof of allegations contained
on this Para. The 9th Respondent denies any encroachment caused by it or at all to the premises of Temple Bay Resort. In fact, the 9th Respondent has been pro-active in securing the interest of the fishermen community in the area by allocating specific area in the area in the lands belonging to the 9th Respondent has also provided for Burial Grounds, land for extension of mosque, public convenience facilities, etc., out of the lands belonging to it in order to promote larger public interest.
5 to 6 The contents of these Paras merit no specific comment. Page 19 of 62 However, the applicant is put to strict proof of the allegations contained therein.
7 The Applicant is put to strict proof of the contents of this para. The subject Hotel is run by the 9th Respondent, and the name "Radisson" has been inserted pursuant to an agreement with Radisson Hotels Inc., Singapore. The 9th Respondent denies that it has caused any damage to the local fishermen community.
8 The contents of this para are denied and the Applicant is put to strict proof regarding the same. It is reiterated that there is no encroachment whatsoever caused by the 9th Respondent. In fact, the resort was built under the name and style of "Mamallapuram Guest House" by the Government of Tamil Nadu way back in the year 1955 and was operational since 1957. The resort was later taken over by the India Tourism Development Corporation (ITDC), which was managing the resort. There was no construction made by ITDC in the interregnum period.
While so, the Government of India took a policy decision of disinvestment of shares in ITDC, and thereby transfer ownership of its properties by way of an open tender process. At that time, the aforesaid properties vested in M/s. Mamallapuram Hotels Pvt. Ltd. Pursuant to a scheme of demerger. The aforesaid company was running a hotel by the name and style of "Temple Bay Ashok Beach Resort" at Mamallapuram. The Government of India had invited bids from prospective bidders to purchase shares of the said company, wherein the 9th Respondent‟s holding company was the successful bidder. The parties entered into two Share Purchase Agreements dated 01.02.2002 by which the entire shares of the aforesaid company were transferred in favour of this Respondent, leading to transfer of management and takeover of free hold rights in the properties and assets of the aforesaid company in favour of this respondent. Subsequently, the Chairman and Managing Director of the ITDC vide letter dated 01.02.2002, addressed to the Temple Bay Ashok Beach Resort, Mamallapuram, confirmed that the management under the auspices of Mamallapuram Hotels Pvt. Ltd. stood transferred to the 9th Respondent with effect from Page 20 of 62 that date. Thereafter, by way of a scheme of amalgamation sanctioned by this Hon‟ble Court, M/s. Mamallapuram Hotels Pvt. Ltd. amalgamated with this respondent, resulting in the transfer and vesting of their undertakings, businesses, assets and liabilities, in this respondent.
Hence, the 9th Respondent has not undertaken any construction and was only managing the property pursuant to the transfer of ownership in 2002.
Thereafter, in or about 2005, the 9th Respondent had sought an expansion of phase II of the hotel and had proceeded to do the same after obtaining all requisite permits, including clearance from CRZ authorities. Thereafter, approval was also obtained from the Ministry of Environment and Forests, Government of India.
14.So, they prayed for dismissal of the application.
15.The applicant filed rejoinder to the reply submitted by the 9 th respondent denying the allegations therein and reiterating their contentions. They denied the allegations that they developed the property only after the expansion approval by the year 2009 but in fact they have constructed 18 cottages and 1 swimming pool near the sea shore during the year 2005, which is before getting the Environmental Clearance. They have relied on certain satellite images taken during that period for that purpose. They also denying the allegations that they had made the constructions on the basis of the planning permission and clearance granted but according to the applicant, they constructed one large swimming pool approximately 27,000 Sq.ft. against 4,000 Sq.ft. which completely contradicts their statement of averments. They also constructed ten number of pool villas, each villa has individual swimming pool with approximately 400 Sq.ft. which was omitted Page 21 of 62 in their reply. The illegal construction and activities are completely against the CRZ Regulations and Rules/conditions of Environmental Clearance issued by the MoEF&CC. They have riled on satellite images for this purpose. They also mentioned that approximately 1100 KL water is required to fill all the pools for one time, which is a huge water consumption as against their attained permission and approximately 100 KL of water is drained out after recycling which has high degree of chlorine content. Continuous accumulation of chlorine waste water amongst the neighbourhood affects the soil permeability and hampers groundwater systems. This in fact leads to negative impacts on human health and livelihood. They have not obtained the permission from the Pollution Control Board until 2016 and hides their polluted activities. They submitted an application through Care Centre on 28.10.2013 and the same was returned by the concerned board seeking for certain discrepancies. They have illegally grabbing and destroying the natural wealth and playing with the human lives in the name of adventure sea rides. It will be revealed from the counter statement of 3rd respondent that they have not granted any permission to conduct Boat rides and deep sea diving by the 9th respondent which according to the applicant is being done illegally. The construction done by the 9th respondent within High Tide Line is against law. The sewage and pool water was disposed near the compound wall by which the ground water gets polluted in the "Tsunami Fishermen Colony". So according to them, they have not committed any violation etc. is not correct and they prayed for allowing the application.
16.The applicant filed M.A. No.78 of 2017 to implead GRT Hotels and Resorts Pvt. Ltd represented by its Managing Director, No.57 Kovalam Road, Page 22 of 62 Mahabalipuram, Chennai - 603 104 and also National Coastal Zone Management Authority as additional respondents 10 & 11 respectively. But this Tribunal by order dated 12.07.2017, allowed the M.A. No.78 of 2017 in part and permitted only impleadment of additional 10th respondent and accordingly, additional 10th respondent was impleaded.
17.The 10th respondent has not filed any independent counter statement in this case. But they have filed reply -cum- adoption affidavit adopting the contentions raised by the 9th respondent in their counter affidavit as part of their reply. They also further contended that the 6th respondent had granted Consent to Operate (STP) to the 10th respondent vide their order dated 30.06.2017 bearing Consent Order No.170529343829 under the Air (Prevention and Control of Pollution) Act, 1981 and order dated 30.06.2017 bearing Consent Order No.170519343829 under the Water (Prevention and Control of Pollution) Act, 1974. So, they denied the allegations that they are operating the Sewage Treatment Plant without obtaining necessary consent is not correct. So, they prayed for dismissal of the application.
18.As per order dated 24.01.2020, for the purpose of ascertaining the present status and also the genuineness of the allegations made in the application regarding violation of CRZ Notification etc., this Tribunal had appointed a Joint Committee comprising of (i) District Collector, Chengalpet and (2) Pollution Control Board to go into the question as to whether there is any violation of CRZ Regulation and construction was done in violation of the CRZ Notification issued. The District Collector being Chairman of District Level Coastal Zone Regulation Authority and District Environmental Engineer, being the Convener, who has to take action for violation, if any, this Tribunal felt that there is no necessity to include any other person and Page 23 of 62 directed the committee to conduct inspection and consider the allegations made in the application, the statement submitted by the 9th respondent and also the allegations raised in the rejoinder along with the documents produced by the parties and submit a detailed status as well as action taken report, if there is any violation found.
19.On the basis of the directions issued by this Tribunal, the Joint Committee had filed their report signed by two of the Committee Members on 12.12.2020 which reads as follows:
"INSPECTION REPORT OF THE JOINT COMMITTEE CONSTITUTED BY THE HON‟BLE NATIONAL GREEN TRIBUNAL (SOUTHERN ZONE) IN RESPECT OF O.A NO. 225 OF 2016 (SZ) IN THE MATTER OF: MEENAVA THANTHAI K.R.SELVARAJ KUMAR, MEENAVAR NALA SANGAM Vs THE CHIEF SECRETARY, GOVERNMENT OF TAMILNADU, SECRETARIAT, CHENNAI AND Ors.
It is respectfully submitted that the Hon‟ble National Green Tribunal (SZ), Chennai in its order dated 24.01.2020 in the matter of O.A.No.225 of 2016 stated that "we feel it appropriate to appoint a joint committee comprising of (1) District Collector, Chengalpet and (2) Pollution Control Board to go into the question as to whether there is any violation of CRZ Regulation and construction was done in violation of the CRZ Notification issued. District Collector being Chairman of District Level Coastal Zone Regulation Authority and District Environment Engineer, being convener, who has to take action for violation if any, we feel it is not necessary to appoint any other person for this purpose. The committee can conduct inspection and consider the allegations in the petition, the statement given by the project proponent and also the allegations raised in the rejoinder along with the documents produced by the parties and submit a detailed status as well as action taken report, if there is any violation found, within a period of two months to this Tribunal through e- mail @ [email protected].
Subsequently when the matter came up for hearing on 11/11/2020 through Video Conference, the Hon‟ble NGT in its order has stated the following:
" On 29.09.2020, the matter was taken up on and since, the committee did not submit the report, we expressed displeasure on the lethargic attitude on the part of the authorities in dealing with encroachments in CRZ zone. When this was pointed out, the learned Government Pleader submitted that they would come with a report, if some time was granted and accordingly, we granted time till today and posted the case to today for that purpose. When the matter came up for hearing today through Video Conference, the report was not filed. The learned counsel appearing for the State department Page 24 of 62 submitted that he will look into the matter and see that the report is filed, if some more time is granted. The matter is of the year 2016. The only question that has to be considered is whether there was any encroachment made by the 9th respondent in CRZ zone and if so, what is the action taken.
The committee was constituted in January, 2020 and we are now in November, 2020. Inspite of a lapse of ten months, no report has been filed by the committee who are none other than the authorities to implement the CRZ Notifications in their district in an effective manner.
We make it clear that if the committee members do not submit the report as directed by this Tribunal before the next hearing date, then they will have to face the consequences of non-compliance of the directions as provided under Section 25 of the National Green Tribunal, 2010.
The committee is directed to submit a report on or before 14.12.2020 to this Tribunal by e-filing along with necessary hardcopies to be produced as per Rules.
The Registry is directed to communicate this order to the members of the committee and also to the Chief Secretary, State of Tamil Nadu so as to enable him to look into the issue and give necessary directions to the authorities to comply with the direction issued by this Tribunal by e-mail immediately.
For consideration of report and for hearing, post on 14.12.2020".
INSPECTION BY THE COMMITTEE It is respectfully submitted that in due compliance of the orders of the Hon‟ble National Green Tribunal, the Joint committee as constituted by the Hon‟ble National Green Tribunal inspected the said area pertaining to the unit of M/s.GRT Hotels and resorts Private Limited, Radisson Blu, Temple Bay, S.F.No.92, 94, 99/1, 3A, 3B1, 3B2A, 3B2B1, 3B2B2A1part, 3B2B2B, 3B2B2C, 3B2D, 4, 6, 100/3, 4 part, Mamallapuram village, Tirukalukundram Taluk, Chengalpattu District on 27/11/2020 and subsequently along with Department of Town and Country planning officials the site was inspected on 05/12/2020, 07/12/2020, 08/12/2020 & 11/12/2020 and carried out the measurement of the existing structures as on ground and the details are tabulated below.
Total Built up area and Plinth area of the Existing Structures as on ground between 200m to 500m from HTL as measured during the time of inspection of the area in question:
Block Floors Plinth Area No of Total Built up Name/Numbers in Sq.m Block Area in Sq.m Entrance, restaurants Ground Floors 6935 1 6935 and Party Hall & etc.,/ 1 Conference Hall / 2 Ground Floors 556 1 556 Isle Villas - 15 Ground Floor's 268 1 448 First floor's 180 Page 25 of 62 Bodhi Spa - 17 Ground Floor's 687 1 687 Gym + Spa - 16 Ground Floor's 350 1 630 First Floor's 280 Bay Bangalow·I - 21 Ground Floor's 573.00 1 1146.2 First Floor's 573.00 Bay Bangalow·II - Ground Floor's 136 1 272 20 First Floor 136 Pool Villas - 11 to Ground Floor's 127 6 762 14 & 18,19 Meandering Pool Ground Floor's 231 8 3696 View Villas - 3 to 10 First Floor 231 11263 21 15132.2 Total
Total Built up area and Plinth area of the Existing Structures (Before CRZ Notification) as on ground between 0m to 200m from HTL as measured during the time of inspection of the area in question:
Block Name/Numbers Floors Area in No of Total Area in Sq.m Block Sq.m Restaurants, Hall & Ground Floor 1731.59 1 3463.18 etc., / 22 First Floor 1731.59 DG Room / 23 Ground Floor 282.58 1 282.58 Savannah - I Villas / Ground Floor 136.5 3 819 24,25,26 First floor 136.5 Savannah - II Villas / Ground Floor 67 4 268 27 to 30 Charles Enclave Villas Ground Floor 58.8 5 294
- 31 to 35 Palm Beach-I Villas - Ground Floor 146 5 1460 36 to 40 First Floor 146 Palm Beach-II Villas - Ground Floor 134 5 1342 41 to 45 First Floor 134 Spa - 46 Ground 450 1 450 Floor Washing Room - 47 Ground Floor 476 1 476 Admin Building - 48 Ground Floor 136.8 1 136.8 Staff Quarters & Ground Floor 277.55 3 2497.95 Canteen - 49, 50 & 51 First Floor 277.55 Second Floor 277.55 Total 6600.01 30 11489.51 The total built up area of the structures located between 0m to 200m from HTL and 200m to 500m from HTL as measured is tabulated as below: Page 26 of 62
Total built up area of the structures as measured as 15132.2 Sq.m on ground located between 200m to 500m from HTL.
Total built up area of the structures as measured as 11489.51 Sq.m on ground located between 0m to 200m from HTL.
Grand Total 26621.71 Sq.m Comparative Statement on the total built up area as per CRZ Clearance obtained from NCZMA, as approved by the Mamallapuram New Town Development Authority and the total built up area of the structures as measured on ground in the area in question:
S.No Location of the Total Built up Total Built up Total Additional
Structures area as per Area as per Built up Built up
CRZ Clearance approval of the Area as Area
accorded by Mamallapuram measured constructed
NCZMA (Sq.m) New Town (Sq.m) (Sq.m)
Development
Authority
(Sq.m)
1 200m to 500m 8291 8441.56 15132.2 6690.64
from HTL
2 0m to 200m 0 10389.14 11489.51 1100.37
from HTL
Total 8291 18830.70 26621.71 7791.01
Note: Structures in existence prior to CRZ Notification, 1991 does not require clearance under said Notification.
It is respectfully submitted that the unit of M/s. GRT Hotels and Resorts Private Limited, Radisson Blu, Temple Bay has acquired Beach Resort owned and operated by Indian Tourism Development Corporation Limited, operated the facility in the name and style of Temple Bay Ashok Beach Resort in the year 2002. The Beach Resort was then operated in the name and style Radisson Blu Resort Temple Bay by M/s. GRT Hotels and Resorts Private Limited at S.F.No. 92,94,99/1,3A,3B1,3B2A,3B2B1,3B 2B2A1 part, 3B2B2B, 3B2B2C, 3B2D,4,6,100 /3,4 part, Mamallapuram Village , Tirukazhukundram Taulk, Chengalpattu District.
It is respectfully submitted that the said unit has applied for the clearance under CRZ Notification, 1991 for its expansion activity and the project proposal was recommended by the State Coastal Zone Management Authority, Tamil Nadu to the National Coastal Zone Management Authority for the proposal of Expansion under Coastal Regulation Zone Notification, 1991 for the following activities proposed between 200 metres and 500 metres, as the existing structures are in existence prior to the year 1991(prior to Coastal Regulation Zone Notification, 1991). 1 22 Cottages 33000 Sq.ft.
2 3 Restaurants 13500 Sq.ft.
3 Staff Quarters 6500 Sq.ft.Page 27 of 62
4 Convention Centre 18750 Sq.ft.
5 Club House 6000 Sq.ft.
6 Swimming Pool 4000 Sq.ft.
7 Banquet Office 7500 Sq.ft.
89250 Sq.ft (or 8291 m2) Based on that the said unit has obtained Environmental clearance (CRZ Clearance) from MoEF, GOI vide F.No.18-13/2005-IA-III dt 26-05-2006 for expansion to construct additional 22 nos of accommodation facilities at 1500 Sq.ft each, along with one convention centre, banquet office, staff quarters, club house, three new restaurants with attached kitchens, and a swimming pool along the available land area between 200 m to 500 m from high tide line.
It is respectfully submitted that the unit has obtained planning approval from the Member Secretary, Mamallapuram New Town Development Authority in Na.Ka.No.89/2007 in approval No.02/2009 dated 14/07/2009 and has obtained building approval order No.17/09-11 dated 27/08/2009 from the Executive officer, Mamallapuram Town Panchayat vide Na.Ka.No.35/09-10 dated 27/08/2009 for the built up area of existing structures - 10389.14 Sq.m and for the proposed built up area (Expansion) - 8441.56 Sq.m. Total Built up area - 18830.70 Sq.m. The unit has also obtained completion certificate from the Executive officer, Mamallapuram Special Grade Town Panchayat, Chengalpattu District vide ROC No.A1/295/2015 dated 28/08/2015 after carrying out inspection and observation that the building has been completed and satisfies the norms for issue of completion certificate approved by the Monitoring authorities.
It is respectfully submitted that the unit then applied for consent of the Board and obtained Consent to operate vide Proc.
No.T8/TNPCB/F.1579MMN/RL/MMN/W&A/2017 dated 30/06/2017 valid up to 31/03/2019 for Hotel and Beach Resort having 156 Rooms and other amenities like Restaurants, Banquet Halls, Health Club, Swimming pools, etc. with total built up area of 18830.70 Sq.m. The unit has obtained subsequent renewal valid up to 31/03/2020.
OBSERVATIONS BY THE COMMITTEE During inspection of the said site by the committee, the following points were observed.
1. The said Hotel cum Resort was in operation.
2. Sewage treatment plant provided to treat the sewage generated from its activity was in operation and the treated sewage is utilised for gardening within the premises.
3. The total built up area of the structures pertaining to the above said unit as measured exceeds the total built up area in the clearance as accorded by the National Coastal Zone Management Authority and also as approved by Mamallapuram New Town Development Authority violating the provisions of the CRZ Notification, 2011.
4. The unit was not conducting boat rides and deep sea driving etc., as alleged in the prayer.
Page 28 of 62
5. There is no encroachment of Government land by the unit and the same has been confirmed by the order of the Hon‟ble High Court of Madras in W.P.No.14976 of 2015 dated 18/10/2016.
Based on the above observation, the Joint Committee submits the following recommendation before the Hon‟ble National Green Tribunal (Southern Zone) As the said unit of M/s.GRT Hotels and Resorts Private Limited, Radisson Blu, Temple Bay has constructed the structures in the CRZ area more than the total built up area as accorded in the Clearance by the National Coastal Zone Management Authority under CRZ Notification and more than the total built up area as accorded in the Planning permission issued by the Mamallapuram New Town Development Authority,
1. District Coastal Zone Management Authority, Chengalpattu District shall initiate necessary action for the said violation against the unit with the recommendation to the State Coastal Zone Management Authority, Tamil Nadu for taking further action under the provisions of the Environment (Protection) Act, 1986 within a month time.
2. State Coastal Zone Management Authority, Tamil Nadu shall take action on the said violation carried out by the unit based on the recommendation by the District Coastal Zone Management Authority under the provisions of the Environment (Protection) Act, 1986 within three months."
20.This report was considered by this Tribunal in the order dated 12.01.2021 and thereafter, passed the following order:-
"5. It is mentioned in the report that the District Coastal Zone Management Authority (DCZMA), Chengalpet shall initiate necessary action for the said violation against the unit with the recommendation to the Tamil Nadu State Coastal Zone Management Authority (TNSCZMA) for taking further action under the provisions of the Environment (Protection) Act, 1986 within a month‟s time.
6. It is quite unfortunate that the District Collector, Chengalpet who is himself the chairman of the District Coastal Zone Management Authority is responsible to take action against any violation of CRZ Regulation and the District Environmental Engineer of the Pollution Control Board is the convener of the committee. If that be the case, they are the persons to take action, if there is any violation found, with a copy of the action taken to be forwarded to the State Coastal Zone Management Authority for further action to be taken from their side, if any, under the Environment (Protection) Act, 1986. If that be the case, the further action has to be submitted by the District Collector, Chengalpet on the basis of the findings of the Joint committee in this regard against the 10th respondent, after giving them an opportunity of Page 29 of 62 hearing the allegations before culminating the proceedings against them in accordance with law.
7. The District Collector, Chengalpet is directed to submit the action taken report on the basis of the observations made before the next hearing date.
8. The 10th respondent is also at liberty to file their objections, if any, to the report before the next hearing date.
9. However, it is for the regulating authorities to consider the question of violation under the respective statutes and if any action has been taken, the aggrieved person will be getting a statutory remedy for an appeal against that action under the respective statutes.
10. The Registry is directed to communicate this order to the members of the committee as well as to the District Collector, Chengalpet for complying with the direction.
11. The committee is also directed to assess the environmental compensation for the damage caused to the environment on account of the excess construction made by them in violation of the Environmental Clearance (EC) -cum- CRZ Clearance granted."
21.Thereafter, the Joint Committee had filed their action taken report dated Nil e-filed 22.02.2021 received on the even date which reads as follows:-
"Action Taken Report of the Joint Committee constituted by the Hon‟ble National Green Tribunal (Southern Zone) in respect of O.A. No.225 of 2016 (SZ) in the matter of: Meenava Thanthai K.R. Selvaraj Kumar, Meenavar Nala Sangam Vs. The Chief Secretary, Government of Tamil Nadu, Secretariat, Chennai and Ors.
It is respectfully submitted that Joint Committee submit the action taken report in continuation of the report submitted to the Hon‟ble National Green Tribunal in the matter of O.A. No.225 of 2016 against M/s. GRT Hotels and resorts Private Limited, Radisson Blu, Temple Bay, S.F. No.92, 94, 99/1, 3A, 3B1, 3B2A, 3B2B1, 3B2B2A1 part, 3B2B2B, 3B3B2C, 3B2D, 4, 6, 100/3, 4 part, Mamallapuram Village, Tirukalukundram Taluk, Chengalpattu District regarding the additional construction carried out in the CRZ area more than the total built up area as accorded in the Clearance by the National Coastal Zone Management Authority under CRZ Notification.
The Hon‟ble National Green Tribunal (SZ) in its order 12.01.2021 has directed inter-alia that:
"6. It is quite unfortunate that the District Collector, Chengalpet who is himself the chairman of the District Coastal Zone Management Authority is responsible to take action against any violation of CRZ Regulation and the District Environmental Engineer of the Pollution Control Board is the convener of the committee. If that be Page 30 of 62 the case, they are the persons to take action, if there is any violation found, with a copy of the action taken to be forwarded to the State Coastal Zone Management Authority for further action to be taken from their side, if any, under the Environment (Protection) Act, 1986. If that be the case, the further action has to be submitted by the District Collector, Chengalpet on the basis of the findings of the Joint committee in this regard against the 10th respondent, after giving them an opportunity of hearing the allegations before culminating the proceedings against them in accordance with law.
7. The District Collector, Chengalpet is directed to submit the action taken report on the basis of the observations made before the next hearing date.
8. The 10th respondent is also at liberty to file their objections, if any, to the report before the next hearing date.
9. However, it is for the regulating authorities to consider the question of violation under the respective statutes and if any action has been taken, the aggrieved person will be getting a statutory remedy for an appeal against that action under the respective statutes.
10. The Registry is directed to communicate this order to the members of the committee as well as to the District Collector, Chengalpet for complying with the direction.
11. The committee is also directed to assess the environmental compensation for the damage caused to the environment on account of the excess construction made by them in violation of the Environmental Clearance (EC) -cum- CRZ Clearance granted.
Compliance of the Directions:
It is respectfully submitted that in due compliance of the orders of the Hon‟ble National Green Tribunal (SZ) in O.A. No.225 of 2016, the unit of M/s. GRT Hotels and resorts private limited, Radisson Blu, Temple Bay, S.F. No.92, 94 etc., Mamallapuram Village, Tirukalukundram Taluk, Chengalpattu District was called for a Personal Hearing along with their technical representative before the District Collector, Chengalpattu / Chairman, DCZMA at District Collectorate, Chengalpattu on 12.02.2021. The Personal hearing was conducted by the District Environmental Engineer, Tamil Nadu Pollution Control Board, Convenor, DCZMA with the said unit representatives on 12.02.2021 under the Chairmanship of the District Collector, Chengalpattu. The Deputy Director (i/c), DTCP, Chengalpattu who is the member of the DCZMA was also present during the personal hearing.
It is respectfully submitted that subsequent to the personal hearing, the said unit in its written submission before the DCZMA dated 19.02.2021 has stated inter-alia that:
"while so, during the inspection based on the directions of the Hon‟ble NGT, the Joint Committee had visited the site and found some Page 31 of 62 additional construction as set out in its report filed before the Hon‟ble NGT. Though we humbly state that we have built as per the approved plans, we have noted that a very small portion of buildings viz., additional staff quarter within 0-200m. That apart, we have also noted that report has found certain additional construction in the 200 - 500 m area.
After considering the contents of the Report, we wish to state that without prejudice to our rights and contentions, we are willing to suggest the following action from our end, in order to rectify any such alleged defects/violations of CRZ Notification, by way abundant caution:
(i) Demolish the additional staff quarters in the 0-200 m CRZ area which would make our property free from any alleged violation under the CRZ Notification.
(ii) Apply for ratification/ revised proposal of any additional constructed area in the 200 - 500 m area as per legal procedure.
We accordingly request you to consider our proposal and accordingly permit us to take above steps, without prejudice to our right and contentions, and by way of abundant caution, so that we the issue may be resolved.
It is respectfully submitted that further in due compliance of the above Hon‟ble National Green Tribunal (SZ) order, Environmental Compensation for the damage caused to the environment on account of the excess constructions made in violation of the Environmental Clearance (EC) - cum - CRZ Clearance granted, by the unit of M/s. GRT Hotels and resorts private limited, Radisson Blu, Temple Bay, S.F. No.92, 94, etc., Mamallapuram Village, Tirukalukundram Taluk, Chengalpattu District was assessed as below CPCB Guidelines for Imposition of Environmental Compensation charges:
The Environmental Compensation shall be based on the following formula:
EC=PI x N x R x S x LF Where, EC is Environmental Compensation in Rupees.
PI - Pollution Index of industrial Sector N - Number of days of violation took place R - A factor in Rupees for EC S - Factor for scale of operation LF - Location factor The formula incorporate the anticipated severity of environmental pollution in terms of Pollution Index, duration of Page 32 of 62 violation in terms of number of days, scale of operation in terms of micro & small / medium / large industry and location in terms of proximity to the large habitants.
Note:-
a. The industrial sectors have been categorized into Red, Orange and Green, based on their Pollution Index in the range of 60 to 100, 41 to 59 and 21 to 40, respectively. It was suggested that the average pollution index of 80, 50 and 30 may be taken for calculating the Environmental Compensation for Red, Orange and Green categories of industries, respectively.
b. N, number of days for which violation took place is the period between the day of violation observed/due date of direction‟s compliance and they day of compliance verified by PCB/SPCB/PCC.
c. R is a factor in Rupees, which may be a minimum of 100 and maximum of 500. It is suggested to consider R as 250, as the Environmental Compensation in cases of violation.
d. S could be based on small/ medium/ large industry categorization, which may be 0.5 for micro or small, 1.0 for medium and 1.5 large units.
e. LF, could be based on population of the city/town and locations of the industrial unit. For the industrial unit located within municipal boundary or upto 10 KM distances from the municipal boundary of the city/town, following factors (LF) may be used.
Sl. No. Population (Million) Location Factor
(LF)
1. Less than 1 1.0
2. 1 to <5 1.25
3. 5 to <10 1.5
4. 10 and above 2.0
Population of the city/town as per the latest census of India #LF will be 1.0 in case unit is located >10 KM from municipal boundary for critically polluted areas / Ecologically sensitive areas, the scope of LF may be examined further.
f. In any case, minimum Environmental Compensation shall be Rs.5000/day.
Assessment of Environmental Compensation Environmental Compensation to the unit of M/s. GRT Hotels and resorts Private Limited, Radisson Blu, Temple Bay, S.F. No.92, 94, etc., Mamallapuram Village, Tirukalukundram Taluk, Chengalpattu District is assessed as below Date of violation observed (N): 05.12.2020 Page 33 of 62 Pollution Index for Red Category Industries as per CPCB Guidelines (PI) - 80.
Number of days - 77 (from the date of violation noticed to till the date, 19.02.2021) R as per CPCB Guidelines - 250 S as per CPCB Guidelines - 1.5 LF as per CPCB Guidelines - 1.0 Environmental Compensation (EC) = PIxNxRxSxLF = 80x77x250x1.5x1.0 = Rs.23,10,000/-
Environmental Compensation (EC) charged assessed:
Rs.23,10,000/- (Rupees Twenty Three Lakhs and Ten Thousand only) It is respectfully submitted that the above said subject including the assessment of Environmental Compensation will be paced before the ensuring DCZMA and the recommendation of the DCZMA will be submitted before the SCZMA (State Coastal Zone Management Authority) for taking necessary further action.
It is respectfully submitted that the details of the action taken on the said subject will then be submitted before the Hon‟ble National Green Tribunal (SZ)."
22.The 10th respondent had filed their objection to the Joint Committee report in the form of reply affidavit contending that the Joint Committee has not noted that the total built up area of the structures pertaining to the above said unit as measured exceeds to the total built up area in the clearance as accorded by the National Coastal Zone Management Authority and also as approved by Mamallapuram New Town Development Authority violating the provision of CRZ Notification, 2011. In fact they have not committed any violation. The resort was originally run by ITDC and the 10th respondent took over the same by virtue of tender process. There were already existing structures which were built much prior to the introduction of CRZ Notification, 1991 and they applied and obtained permission for putting up certain additional structures for providing better facilities to guests and tourists, all of which have been approved by the local authorities as well as the MoEF&CC, Govt. of India as has been stated by the 9th respondent. The additional structures Page 34 of 62 built up between the area is 0 - 200 m measuring about 1100.37 sq. m. for additional staff quarters which were built up by the unit and the said building has been existing for almost 2 decades and was built after approvals were obtained from the local authorities. Though the 10th respondent states that the same is not an unauthorized construction, in view of the report filed before the Tribunal and in order to put a quietus to the matter, they are willing to demolish the alleged additional built up area of 1100.37 Sq.m. pertaining to the additional staff quarters allegedly within the 0-200 m. Being a law abiding company with a good reputation and as a responsible company, they are willing to take the above steps by way of abundant caution, in order to ensure that there is no such allegations of violations in respect of its unit now or in future. They are willing to abide any order compensation if the Tribunal deems fit. As regards the structures in the area between 200-500 m, the area mentioned is not correct for the reason that some open areas have been taken into account while computing the same. It is pertinent to state that the resort being a sea side resort, does not have multi storeyed structures and the structures are spread out over a vast area of land. As such, there is extensive open space and it appears that some of the measurements have not taken into account these aspects. Further, all the built up structures in the 200-500 m zone are prior to coming into force of the CRZ Regulations and they have not verified the exact date of construction as per records and differentiated between the structure existing even prior to the CRZ Regulations and those that have been put up additionally thereafter. They have further stated being a construction made within the 200-500 m area, there is a permissible activity and by way of abundant caution, they are willing to represent its case before the relevant authorities and seek ratification or regularization of the same, in accordance Page 35 of 62 with legal procedure as has been submitted by them before the District Coastal Zone Management Authority vide their letter dated 19.02.2021. Further, the Official Memorandum dated 19.02.2021 issued by the MoEF&CC, GoI have given certain procedure for dealing with violation arising due to not obtaining of prior CRZ Clearance for permissible activities (i.e. within 200 - 500 m zone) has been set out and since this falls Para 4 of the O.M. prospective clearance could be permissible for which application has to be filed to the authorities as per Para 4.2 of the CRZ Notification, 2011. The environment damage has to be assessed by the competent authority and approval/ ratification has given with some recommendations. So, the post-facto clearance can be possible under the present procedure provided in the O.M. mentioned above and the 10th respondent will be taking steps in this regard in accordance with law by way of abundant caution. According to them, they are entitled to seek recourse under law for their alleged additional structures between 200-500m and seeking ratification/approval which may be left open by this Tribunal. They further contended that they will abide by any conditions imposed by this Tribunal and they do not want to violate any provisions of law as they are law abiding unit. So, they prayed for passing appropriate orders accepting their reply filed as mentioned above.
23.Heard Mr. G. Stanley Hebzon Singh & Mr. K. Mageshwaran counsel appearing for the applicant, Dr. V.R. Thirunarayanan counsel appearing for respondents 1 to 5 & 7, Mr. C. Kasirajan counsel appearing for respondents 6 & 8, Mr. Sathish Parasaran, Senior Advocate along with Mr. R. Parthasarathy and Mr. Raghul Balaji counsel appearing for respondents 9 &
10. Page 36 of 62
24.The learned counsel appearing for the applicant argued that admittedly there were certain violations and there were constructions made in the No Development Zone and further constructions made within the regulated area namely, 200-500m zone and it was done beyond the permission granted and as such it cannot be said to be an authorized construction. The environmental compensation assessed is also not proper as they have taken only 77 days for assessing compensation which in fact is not correct as the violation existed since long time and if the long period of violation is taken into account, then the compensation assessed is very minimum. The learned counsel wanted this to be considered while considering the matter. According to him, construction made in the non-development zone has affected the ecology and as such the compensation calculated is not correct and this aspect has not been taken into account by the authorities as well.
25.On the other hand, the learned counsel appearing for the State departments submitted that they will take appropriate action on the basis of the directions issued by this Tribunal.
26.Mr. Sathish Prasaran, the learned Senior Advocate appearing for the 10th respondent submitted that as regards the construction in 0-100 m zone is concerned, they are prepared to demolish the same to avoid further litigation in this regard, as it is not a permissible activity within that zone within a reasonable time by appointing proper agency for the demolition of the same in an environment friendly manner. As regards the construction in 200-500 m zone, as per the present O.M. issued by the MoEF&CC, there is a provision made for regularizing the construction made without getting prior Environmental Clearance (EC) and that is the rectifiable act as such right of the 10th respondent is to approach the authorities for that purpose may be left Page 37 of 62 open. As regards the compensation is concerned, there was no environmental damage caused on account of any of the activities and as such the compensation, if any, assessed by the authorities itself is reasonable and further when the regularization application is being considered by the authorities, then also there is a provision made for assessment of environmental compensation as part of consideration of application and that aspects may be left open to be decided by the concerned authorities without prejudice to the right of the 10th respondent to utilize that opportunity which is available to them in accordance with law.
27.The points that arise for consideration are:-
(i) Whether the application is barred by limitation?
(ii) Whether the 10th respondent had committed any violation of CRZ Regulation in making their constructions?
(iii) What is the nature of direction to be given in respect of the alleged illegal constructions made?
(iv) What is the quantum of environmental compensation to be payable by the 10th respondent for the damage caused to the environment on account of their unauthorized constructions made against the provisions of the CRZ Notification?
(v) Relief and costs.
Points:-
28.The case of the applicant was that the 9th respondent had expanded their activities in the No Development Zone in the Coastal Regulation Zone area and also in the CRZ area beyond the permission granted and according to the applicant, the activities of the 9th respondent had affected the marine ecology.
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29.According to the 9th respondent, they are only part of GRT Hotels and Resorts Private Limited and they have acquired the property from ITDC and most of the structures were there in existence. For the purpose of expansion, they have obtained Environmental Clearance (EC) and they have constructed within that area only and in earlier proceedings before the High Court, the Hon‟ble High Court observed that there was no trespass committed by the 9th respondent and dismissed the writ petition. They also denied the allegations that there were any environmental damage or pollution caused on account of their activities. However, on the basis of the contention of the 9th respondent, G.R.T. Hotels and Resorts Private Limited were impleaded as additional 10th respondent.
30.Before going into the facts of the case, the precedents in this aspect can be considered. In the decision reported in Union Territory of Lakshadweep & Ors. Vs. Seashells Beach Resort & Ors.1 and in the decision reported in Anil Hoble Vs. Kashinath Jairam Shetye & Ors.2 it has been observed that the CRZ policy dated 19.02.1991 prohibits any construction upto 200 m from the High Tide Line (HTL) and it has to be treated as „No Development Zone‟, except for repairs of „existing authorized structures‟ not exceeding permissible FSI, plinth area and density and for permissible activities including facilities essential for such activity under the notification. Further, it was also held that if any unauthorized constructions have been made in the No Development Zone that cannot be used for any purpose whatsoever and the same is required to be demolished.
1 (2012) 6 SCC 136 2 (2016) 10 SCC 701 Page 39 of 62
31.Further, in the decision reported in Piedade Filomena Gonslves Vs. State of Goa & Ors.3 it has been observed that CRZ Notifications have been issued in the interest of protecting environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. That was a case where the constructions were made within 0- 200m from the High Tide Line (HTL) which was declared to be a No Development Zone without permission. The applicant in that case had a case that constructions existed prior to the notification and it is not a new structure but that was found to be incorrect and the Hon‟ble Apex Court held that such construction cannot be permitted to continue.
32.In the decision reported in The Secretary, Kerala State Coastal Zone Management Authority Vs. DLF Universal Limited & Ors. 4 it has been held that any construction made in violation of provisions of the CRZ Notification cannot be allowed to continue. That was a case where certain constructions were made in the area covered by CRZ Notification, 2011 without getting prior clearance and in that case the application for CRZ clearance was pending with the authorities. But without getting prior clearance, they have started the construction and later CRZ clearance was granted. Though the respondents therein contended that since the applications were pending for a long time, their construction cannot be said to be illegal, as they are entitled to proceed on the basis of the deemed permission, but that contention of the respondent was not accepted by the Hon‟ble Apex Court and held that any construction made without prior Clearance is illegal and that cannot be condoned. However, instead of 3 (2004) 3 SCC 445 4 (2018) 2 SCC 203 Page 40 of 62 ordering demolition of such construction, the Apex Court in that case imposed a compensation of Rs.1 Crore.
33.In the decision reported in The Kerala State Coastal Zone Management Authority Vs. The State of Kerala Maradu Municipality & Ors.5 relying on the decisions reported in Indian Council for Enviro-Legal Action Vs. Union of India 6 and Piedade Filomena Gonsalves Vs. State of Goa7, the Hon‟ble Apex Court held that the construction made in CRZ-III zone without getting prior permission from the authorities under the said notification is illegal and the same is liable to be demolished. It is further observed therein, that the notification issued under the Environment (Protection) Act, 1986 is meant to protect the environment and bring about sustainable development. It is the law of the land and it is meant to be obeyed and enforced. As held by the Apex Court, constructions in violation of the CRZ Regulations are not to be viewed lightly. In that case, construction made without permission was directed to be demolished.
34.Further, in the decision reported in Esha Ekta Apartments Co-operative Housing Society Limited & Ors. Vs. Municipal Corporation of Mumbai & Ors. 8 , it has been held that any construction made in violation of CRZ Notification is illegal, though permissions have been obtained under the Town Planning Act.
35.The Hon‟ble Apex Court, relying on the decision reported in Royal Paradise Hotel Private Hotel Limited Vs. State of Haryana 9 has held that no authority administering municipal laws and other similar laws can encourage 5 (2019) 7 SCC 248 6 (1996) 5 SCC 281 7 (2004) 3 SCC 445 8 (2013) 5 SCC 357 9 (2006) 7 SCC 597 Page 41 of 62 violation of the sanctioned plan. The Courts are also expected to refrain from exercising equitable jurisdiction for regularisation of illegal and unauthorized constructions else it would encourage violators of the planning laws and destroy the very idea and concept of planned development of urban as well as rural areas. The construction made in violation of the municipal laws and the CRZ Notifications were directed to be demolished, leaving open the remedy of the flat buyers to avail appropriate remedy against the developers namely, builders and the permission sought for regularization of the unauthorized construction was not accepted by the Hon‟ble Apex Court.
36.In the decision reported in Indian Council for Enviro-Legal Action Vs. Union of India & Ors.,10 it has been observed that enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law-abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that parliament enacted the anti-pollution laws, namely, the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued there under contains 10 (1996) 5 SCC 281 Page 42 of 62 provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibits certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse affect of which will have to be borne by the future generations.
37.Further, in the decision reported in Vaamika Island (Green Lagoon Resort) Vs. Union of India & Ors.11, the Hon‟ble Apex Court had reiterated the same principles that violation of CRZ Notification which is intended to protect vulnerable ecological areas should be implemented in its letter and spirit and no violation of such things shall be allowed to continue.
38.Further, in the decision reported in the Goel Ganga Developers India Private Limited Vs. Union of India & Ors.12, the Hon‟ble Apex Court has held that if any construction has been made in violation of the environmental laws and irrespective of the damage caused to the environment, the person who violated must pay compensation for the violation committed.
39.Keeping the above principles in mind, the case in hand has to be considered. 11 (2013) 8 SCC 760 12 (2018) 18 SCC 257 Page 43 of 62
40.Admittedly, the property under the possession of the 9th respondent who is subsidiary unit of the 10th respondent has been originally in the ownership of India Tourism Development Corporation (ITDC) which was a company promoted by the Government of India under the aegis of Ministry of Tourism. In fact, at the request of the Government, certain areas in Mamallapuram was handed over to the ITDC in 1981 and subsequently, some more extent was handed over in the year 1986, 1990 and 2003 respectively and they have made certain constructions in these areas and they were conducting resorts. Subsequently, the same was transferred to M/s. Mamallapuram Hotels Private Limited and they were conducting the hotel and later it was transferred to the 10th respondent under the name and style „Temple Bay Ashok Beach Resort‟ which they obtained as a successful bidder and executed share purchase agreements on 01.02.2002 in favour of the 10th respondent and the Managing Director of ITDC vide their letter dated 01.02.2002 had confirmed the management under the auspices of Mamallapuram Hotels Private Limited transferred to the 10th respondent with effect from that date. They obtained the land on „as is where is‟ basis.
41.It is also an admitted fact that they have applied for expansion and the same was recommended by the State Coastal Zone Management Authority, Tamil Nadu vide their Communication dated 21.09.2005 and the MoEF&CC had granted the Environmental Clearance (EC) - cum - CRZ Clearance vide their order dated 26.05.2006 and they have developed and expanded their activities during the year 2009. So, according to them, some of the areas were with constructions prior to 1991 while it was in the possession of ITDC and Mamallapuram Resorts.
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42.It is also an admitted fact that there was a writ petition filed before the Hon‟ble High Court of Madras as W.P. No.14976 of 2015 and the Hon‟ble High Court of Madras by Judgment dated 18.10.2016, observed that there was no encroachment of public lands by the 10th respondent and disposed of the writ petition accordingly. So, the contentions that there was encroachment etc. cannot be accepted but then the question is as to whether there was any violation of clearance granted and whether there was any construction made in violation of the CRZ Notification.
43.In order to ascertain the same, this Tribunal had appointed a Joint Committee comprising of District Collector, Chengalpet District and Pollution Control Board to go into the question, as the District Collector being Chairman of District Level Coastal Zone Regulation Authority and District Environmental Engineer, being the Convener of the said Authority who are vested with the power to deal with any violation of CRZ Notification in their jurisdiction. The committee had filed the report which was signed by two of the committee members on 12.12.2020 wherein, they have noted the following aspects:-
"INSPECTION BY THE COMMITTEE It is respectfully submitted that in due compliance of the orders of the Hon‟ble National Green Tribunal, the Joint committee as constituted by the Hon‟ble National Green Tribunal inspected the said area pertaining to the unit of M/s.GRT Hotels and resorts Private Limited, Radisson Blu, Temple Bay, S.F.No.92, 94, 99/1, 3A, 3B1, 3B2A, 3B2B1, 3B2B2A1part, 3B2B2B, 3B2B2C, 3B2D, 4, 6, 100/3, 4 part, Mamallapuram village, Tirukalukundram Taluk, Chengalpattu District on 27/11/2020 and subsequently along with Department of Town and Country planning officials the site was inspected on 05/12/2020, 07/12/2020, 08/12/2020 & 11/12/2020 and carried out the measurement of the existing structures as on ground and the details are tabulated below.
Total Built up area and Plinth area of the Existing Structures as on ground between 200m to 500m from HTL as measured during the time of inspection of the area in question:
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Block Floors Plinth Area No of Total Built up Name/Numbers in Sq.m Block Area in Sq.m Entrance, restaurants Ground Floors 6935 1 6935 and Party Hall & etc.,/ 1 Conference Hall / 2 Ground Floors 556 1 556 Isle Villas - 15 Ground Floor's 268 1 448 First floor's 180 Bodhi Spa - 17 Ground Floor's 687 1 687 Gym + Spa - 16 Ground Floor's 350 1 630 First Floor's 280 Bay Bangalow·I - 21 Ground Floor's 573.00 1 1146.2 First Floor's 573.00 Bay Bangalow·II - Ground Floor's 136 1 272 20 First Floor 136 Pool Villas - 11 to Ground Floor's 127 6 762 14 & 18,19 Meandering Pool Ground Floor's 231 8 3696 View Villas - 3 to 10 First Floor 231 11263 21 15132.2 Total
Total Built up area and Plinth area of the Existing Structures (Before CRZ Notification) as on ground between 0m to 200m from HTL as measured during the time of inspection of the area in question:
Block Name/Numbers Floors Area in No of Total Area in Sq.m Block Sq.m Restaurants, Hall & Ground Floor 1731.59 1 3463.18 etc., / 22 First Floor 1731.59 DG Room / 23 Ground Floor 282.58 1 282.58 Savannah - I Villas / Ground Floor 136.5 3 819 24,25,26 First floor 136.5 Savannah - II Villas / Ground Floor 67 4 268 27 to 30 Charles Enclave Villas Ground Floor 58.8 5 294
- 31 to 35 Palm Beach-I Villas - Ground Floor 146 5 1460 36 to 40 First Floor 146 Palm Beach-II Villas - Ground Floor 134 5 1342 41 to 45 First Floor 134 Spa - 46 Ground 450 1 450 Floor Washing Room - 47 Ground Floor 476 1 476 Admin Building - 48 Ground Floor 136.8 1 136.8 Page 46 of 62 Staff Quarters & Ground Floor 277.55 3 2497.95 Canteen - 49, 50 & 51 First Floor 277.55 Second Floor 277.55 Total 6600.01 30 11489.51 The total built up area of the structures located between 0m to 200m from HTL and 200m to 500m from HTL as measured is tabulated as below:
Total built up area of the structures as measured as 15132.2 Sq.m on ground located between 200m to 500m from HTL.
Total built up area of the structures as measured as 11489.51 Sq.m on ground located between 0m to 200m from HTL.
Grand Total 26621.71 Sq.m Comparative Statement on the total built up area as per CRZ Clearance obtained from NCZMA, as approved by the Mamallapuram New Town Development Authority and the total built up area of the structures as measured on ground in the area in question:
S.No Location of the Total Built up Total Built up Total Additional Structures area as per Area as per Built up Built up CRZ Clearance approval of the Area as Area accorded by Mamallapuram measured constructed NCZMA (Sq.m) New Town (Sq.m) (Sq.m) Development Authority (Sq.m) 1 200m to 500m 8291 8441.56 15132.2 6690.64 from HTL 2 0m to 200m 0 10389.14 11489.51 1100.37 from HTL Total 8291 18830.70 26621.71 7791.01 Note: Structures in existence prior to CRZ Notification, 1991 does not require clearance under said Notification.
It is respectfully submitted that the unit of M/s. GRT Hotels and Resorts Private Limited, Radisson Blu, Temple Bay has acquired Beach Resort owned and operated by Indian Tourism Development Corporation Limited, operated the facility in the name and style of Temple Bay Ashok Beach Resort in the year 2002. The Beach Resort was then operated in the name and style Radisson Blu Resort Temple Bay by M/s. GRT Hotels and Resorts Private Limited at S.F.No. 92,94,99/1,3A,3B1,3B2A,3B2B1,3B 2B2A1 part, 3B2B2B, 3B2B2C, 3B2D,4,6,100 /3,4 part, Mamallapuram Village , Tirukazhukundram Taulk, Chengalpattu District.
It is respectfully submitted that the said unit has applied for the clearance under CRZ Notification, 1991 for its expansion activity and the project proposal was recommended by the State Coastal Zone Management Page 47 of 62 Authority, Tamil Nadu to the National Coastal Zone Management Authority for the proposal of Expansion under Coastal Regulation Zone Notification, 1991 for the following activities proposed between 200 metres and 500 metres, as the existing structures are in existence prior to the year 1991(prior to Coastal Regulation Zone Notification, 1991).
1 22 Cottages 33000 Sq.ft.
2 3 Restaurants 13500 Sq.ft.
3 Staff Quarters 6500 Sq.ft.
4 Convention Centre 18750 Sq.ft.
5 Club House 6000 Sq.ft.
6 Swimming Pool 4000 Sq.ft.
7 Banquet Office 7500 Sq.ft.
89250 Sq.ft (or 8291 m2) Based on that the said unit has obtained Environmental clearance (CRZ Clearance) from MoEF, GOI vide F.No.18-13/2005-IA-III dt 26-05-2006 for expansion to construct additional 22 nos of accommodation facilities at 1500 Sq.ft each, along with one convention centre, banquet office, staff quarters, club house, three new restaurants with attached kitchens, and a swimming pool along the available land area between 200 m to 500 m from high tide line.
It is respectfully submitted that the unit has obtained planning approval from the Member Secretary, Mamallapuram New Town Development Authority in Na.Ka.No.89/2007 in approval No.02/2009 dated 14/07/2009 and has obtained building approval order No.17/09-11 dated 27/08/2009 from the Executive officer, Mamallapuram Town Panchayat vide Na.Ka.No.35/09-10 dated 27/08/2009 for the built up area of existing structures - 10389.14 Sq.m and for the proposed built up area (Expansion) - 8441.56 Sq.m. Total Built up area - 18830.70 Sq.m. The unit has also obtained completion certificate from the Executive officer, Mamallapuram Special Grade Town Panchayat, Chengalpattu District vide ROC No.A1/295/2015 dated 28/08/2015 after carrying out inspection and observation that the building has been completed and satisfies the norms for issue of completion certificate approved by the Monitoring authorities.
It is respectfully submitted that the unit then applied for consent of the Board and obtained Consent to operate vide Proc.
No.T8/TNPCB/F.1579MMN/RL/MMN/W&A/2017 dated 30/06/2017 valid up to 31/03/2019 for Hotel and Beach Resort having 156 Rooms and other amenities like Restaurants, Banquet Halls, Health Club, Swimming pools, etc. with total built up area of 18830.70 Sq.m. The unit has obtained subsequent renewal valid up to 31/03/2020.
OBSERVATIONS BY THE COMMITTEE During inspection of the said site by the committee, the following points were observed.
1. The said Hotel cum Resort was in operation.
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2. Sewage treatment plant provided to treat the sewage generated from its activity was in operation and the treated sewage is utilised for gardening within the premises.
3. The total built up area of the structures pertaining to the above said unit as measured exceeds the total built up area in the clearance as accorded by the National Coastal Zone Management Authority and also as approved by Mamallapuram New Town Development Authority violating the provisions of the CRZ Notification, 2011.
4. The unit was not conducting boat rides and deep sea driving etc., as alleged in the prayer.
5. There is no encroachment of Government land by the unit and the same has been confirmed by the order of the Hon‟ble High Court of Madras in W.P.No.14976 of 2015 dated 18/10/2016."
44.It is seen from the report that there was construction made by the 10th respondent in the No Development Zone namely, 0-200 m from High Tide Line (HTL), having a built up area of 1,100.37 Sq.m. and also made an excess construction of 6,690.64 Sq.m. in the permissible area namely, 200- 500 m from HTL, over and above the permission granted under the clearance thereby, they have constructed an excess area of 7,791.01 Sq.m. which according to the committee, is an illegal construction.
45.The committee also observed that the treatment plant provided to treat the sewage generated from their activity was in operation and the treated sewage is utilized for gardening within the premises. They also observed that they were not conducting boat rides and deep sea diving as alleged in the application. They also mentioned that there was no encroachment into any Government land which has been confirmed by the Hon‟ble High Court in a Writ Petition No. 14976 of 2015 dated 18.10.2016. They have further narrated that since there was some violation found, action will have to be taken by the DCZMA and that will have to be implemented by the SCZMA, Tamil Nadu. Since committee found that there was violation of CRZ Notification, they directed the DCZMA to take appropriate action and Page 49 of 62 submit an action taken report and also assess environmental compensation for the violation committed by them.
46.The committee had submitted the further report dated Nil e-filed 22.05.2021 wherein, they have assessed the environmental compensation to the tune of Rs.23,10,000/- taking the period of violation as 77 days namely, from the date of violation noticed (05.12.2020) till the date of compensation fixed viz., 19.02.2021 which has been extracted in the earlier paragraphs. So, we are not extracting the manner in which the compensation was assessed and they have directed to demolish the constructions made in 0-200 m CRZ area. Further, they also mentioned the undertaking given by the 10th respondent that they are prepared to demolish the constructions made in the No Development Zone but they wanted to apply for ratification/revised proposal for any additional structure in the permissible area namely, 200-500 m as per legal procedure and that was directed to be considered by this Tribunal by the Committee.
47.It is admitted in the counter statement itself that the distance of 0-200 m from the High Tide Line (HTL) is No Development Zone and no construction could be permissible and even they have agreed to remove the same in accordance with law. As far as that construction is concerned, there is no other option except to direct the respondents 9 & 10 to remove the same in a scientific manner under the supervision of the DCZMA, after obtaining necessary permission and authorization from the authorities under the Construction and Demolition Waste Management Rules, 2016 either by themselves or by appointing an agency in an environment friendly manner without causing much damage to the environment. But on account of the construction made in the No Development Zone that will have to be taken as Page 50 of 62 a violation which makes the violator liable to pay environmental compensation in view of the dictum laid down by the Hon‟ble Apex Court in the decisions referred to above.
48.As regards other area is concerned, it is seen from the counter statement and other details submitted by the committee that Environmental Clearance (EC)
- cum - CRZ Clearance was granted for construction of 89,250 Sq.f. including the existing and proposed expansion as per F.No.18-13/2005-IA- III dated 26.05.2006. The planning approval was obtained from the Member Secretary, Mamallapuram New Town Development Authority as per their proceedings No. NA.KA. No. 89/207 in approval No.02/2009 dated 14.02.2009 and the building permit was obtained as per proceedings No.17/09-11 dated 27.08.2009 from the Executive Officer Mamallapuram, Town Panchayat vide NA.KA. No.35/09-10 dated 27.08.2009 for the built up area of existing structures of 10,389 Sq.m. and for the proposed built up area (expansion) of 8,441.56 Sq.m. with total built up area of 18,830.70 Sq.m. The unit had obtained completion certification from the Executive Officer, Mamallapuram Special Grade Town Panchayat, Chengalpet District vide proceedings No. ROC. No.A1/295/2015 dated 28.08.2015 after carrying out the inspection and observation that the building has been completed and satisfies the norms for issue of completion certificate approved by the monitoring authorities. The unit had obtained consent from the Board to operate vide Proceedings No. T8/TNPCB/F.1579MMN/RL/MMN/ W&A/2017 dated 30.06.2017 valid up to 31.03.2019 for Hotel and Beach Resort having 156 rooms and other amenities like restaurants, banquet hall, health club, swimming pools etc. with total built up area of 18,830.70 Sq.m. and they also obtained subsequent renewal which is valid upto 31.03.2020. So, till 2017 they were Page 51 of 62 not having the Consent to Operate as well, though they were operating the Sewage Treatment Plant (STP) etc. during that period.
49.It is also clear from the counter statement filed by the Pollution Control Board that they have also issued certain show cause notice to them in respect of this violation.
50.The learned Senior Advocate appearing for the respondents 9 & 10 have taken up a contention that the application is barred by limitation, as they have started their operation from 2002 onwards and the Environmental Clearance (EC) was obtained in 2006 and even prior to that, their predecessors were conducting the restaurant. But it may be mentioned here that the question of construction in the No Development Zone and excess construction arose only after the respondents 9 & 10 have completed their construction and obtained their completion certificate which is only on 28.08.2015. The prayer in the application is for removal of excess constructions made in the prohibited area and the construction made against the permission granted and restore the area to its original position.
51.Section 14 of the National Green Tribunal Act, 2010 describes the period of limitation of 6 (Six) months from the date on which the cause of action for such dispute first arose with an extended period not exceeding 60 days as per the proviso to Section 14 (3) of the Act. Section 15 of the National Green Tribunal Act, 2010 deals with relief of compensation and restitution which reads as follows:
"15. Relief, compensation and restitution: -
1. The Tribunal may, by an order, provide,-
a. relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including Page 52 of 62 accident occurring while handling any hazardous substance);
b. for restitution of property damaged;
c. for restitution of the environment for such area or areas, as the Tribunal may think fit.
2. The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub- section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
3. No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
4. The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
5. Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority."
52.So, it is clear from Section 15 (3) of the Act that application for relief under Section 15 can be made within a period of 5 (Five) years from the date on which the cause of action for such compensation of relief first arose with an extended period of not exceeding 60 days under the proviso to that section. In this case, the main prayer is to remove the unauthorized construction made and restore the area to its original position. Further, the entire construction was completed and completion certificate had obtained only on 28.08.2015 and the application was filed by the applicant on 29.09.2016. Page 53 of 62 So, it cannot be said that it is filed beyond limitation. So, the contention raised by the Senior Advocate appearing for the respondents 9 & 10 raised in their counter statement that the application is barred by limitation is not sustainable and the same is liable to be rejected and the application is filed within limitation.
53.Even though there is no prayer for compensation, the Tribunal has power to assess environmental compensation, if there is any damage caused to environment or any violation of environmental laws has been committed. The period of violation was taken as 77 days from the date of violation observed, till the date on which the compensation was calculated. The date of violation was observed only from the date of inspection which cannot be accepted, as the violation started from the day on which the expansion was completed and they occupied and started using it. So, at the most the period of violation ought to have been taken from 28.08.2015 and not as the date of inspection as done by the Committee. Since the violation still continues, this Tribunal can take that into account while fixing the amount of compensation when an ecologically sensitive area was occupied and construction made, and it can only be presumed that that may result in damage to environment for which the violator has to compensate. If the period of five years is taken from 28.05.2015, then the amount of compensation payable on the basis of the principle applied by the committee will come to Rs.5,47,50,000/- (80 x 250 x 1.5 x 1 x 365 x 5 = Rs.5,47,50,000/-). Further, this being a profit making unit run by a company having foreign origin and the profit that is being earned by them when compared to other institution will be high, then that also will have to be taken into consideration for the purpose of fixing the quantum of compensation payable by the violator. Page 54 of 62
54.Further, on account of demolition and restoration of area where such activities were not permissible namely, No Development Zone and the time required for replenishment and restoration process also will have to be taken into consideration for the purpose of fixing the quantum of compensation payable. Further, they have made excess construction in the permitted area than the permission granted and using the same since long time making profit.
55.Considering these aspects, this Tribunal feels that the amount of compensation fixed by the Committee as Rs.23,10,000/- (Rupees Twenty Three Lakhs and Ten Thousand only) appears to be very meagre and considering the overall circumstances and also the eco-sensitive zone where the construction was made and also considering the fact that swimming pools were also constructed in certain areas and there is nothing mentioned about the source of water for the swimming pool and also the manner in which the water collected in the swimming pool is being disposed of by the respondents 9 & 10 and the manner in which it is likely to cause any damage to environment has not been considered by the committee. Further, the 10th respondent had not obtained consent from the Pollution Control Board and a show cause notice was issued earlier and only thereafter, they applied and obtained the same later as admitted by them on their counter statement itself. This also will have to be considered while fixing the quantum of compensation payable.
56.We feel that those aspects will have to be taken into consideration while fixing the quantum of compensation. Taking into all these aspects and also considering the fact that the violation still continues and till it is removed they are liable to pay the compensation, we feel it appropriate to fix an Page 55 of 62 amount of Rs.10 Crore as environmental compensation which will be just and reasonable, considering the impact of constructions on the eco-sensitive zone in the coastal region and the subsequent damage caused to the environment.
57.So, the respondents 9 & 10 are liable to pay the environmental compensation of Rs.10 Crore which they will have to deposit with the State Coastal Zone Management Authority within a period of 2 (Two) months and if they did not pay the amount within that time, then they will have to pay the amount with interest at a rate of 12% from the date of Judgment till its recovery and the State Coastal Zone Management Authority is directed to take steps to recovery the amount from them in accordance with law.
58.As regards the area where the activities which are permissible is concerned, they have constructed beyond the permission granted, since an opportunity has been given by the MoEF&CC to deal with such matters by issuing Office Memorandum No. F.No.19-27/2015-IA.III dated 19.02.2021, whereby the MoEF&CC has given some procedure for dealing with violation arising due to not obtaining prior CRZ Clearance for permissible activities, we feel that an opportunity can be given to the respondents 9 & 10 to apply to the authorities within a reasonable time and obtain either permission or ratification as violation case, till then direction to demolish that portion can be kept in abeyance.
59.As regards the No Development Zone portion is concerned, they are directed to demolish and remove the structures and restore the area to its original position in accordance with law within a period of 2 (Two) months. They are also restrained from using the constructions made in the No Development Zone area and the excess construction made till ratification is Page 56 of 62 obtained from the authorities. So, we feel that the application can be disposed of with the following directions:-
(i) The respondents 9 & 10 are directed to remove the constructions having a built up area of 1,100.37 Sq.m. in No Development Zone i.e. 0-200 m from the HTL within a period of 2 (Two) months, after obtaining necessary permissions/authorization from the authorities under the Construction and Demolition Waste Management Rules, 2016 by appointing an agency who are having expertise of doing the same in an environment friendly manner without causing much damage to the marine ecology, failing which, the State Coastal Zone Management Authority is directed to take steps to remove the unauthorized constructions made in the No Development Zone in an eco-friendly manner and recover the cost incurred from the respondents 9 & 10.
(ii) The respondents 9 & 10 are directed to pay an environmental compensation of Rs.10,00,00,000/- (Rupees Ten Crore only) to the State Coastal Zone Management Authority within a period of 2 (Two) months and if they did not pay the amount within that time, then they are liable to pay the amount with 12% interest from the date of Judgment till payment and if the amount is not paid within that time, then the State Coastal Zone Management Authority is directed to take appropriate steps to recover the amount from the respondents 9 & 10 in accordance with law.
(iii) As regards the excess construction made in the permissible area viz., 200-500 m from the High Tide Line (HTL) is concerned, Page 57 of 62 the respondents 9 & 10 are given liberty to approach the authorities for ratification as violation case, as provided in the Office Memorandum issued by the MoEF&CC in this regard vide their proceedings No.F.19-27/2015-IA.III dated 19.02.2021 within a period of 3 (Three) months and if such an application is filed, then the authorities are directed to consider and pass appropriate orders in accordance with law.
(iv) As regards the compensation mentioned in the Office Memorandum is concerned, the authorities are at liberty to consider any further amount which will have to be recovered than the amount fixed by this Tribunal but they cannot reduce the amount fixed by this Tribunal at any rate.
(v) If no application is filed within that time, then the State Coastal Zone Management Authority is directed to demolish the excess construction made over and above the permission granted under the Environmental Clearance (EC) - cum- CRZ Clearance in the permissible area of 200-500 m from the High Tide Line (HTL) in accordance with law.
(vi) Considering the efforts taken by the applicant to bring this violation before this Tribunal, the respondents 9 & 10 are directed to pay a consolidated cost of Rs.50,000/- (Rupees Fifty Thousand only) to the applicant within a period of 2 (Two) months.
(vii) The respondents 9 & 10 are restrained from using the construction made in the No Development Zone area and they are also restrained from using the excess area that has been constructed by them till it is ratified by the authorities. Page 58 of 62
(viii) The State Coastal Zone Management Authority as well as the Tamil Nadu Pollution Control Board are also directed to inspect the area in question periodically and find out whether any of the directions issued by this Tribunal are violated by them and if so, take appropriate action against the respondents 9 & 10 in accordance with law.
60.Thus the points are answered accordingly.
61.In the result, the application is allowed in part and disposed of as follows:-
(i) The respondents 9 & 10 are directed to remove the constructions having a built up area of 1,100.37 Sq.m. in No Development Zone i.e. 0-200 m from the High Tide Line (HTL) within a period of 2 (Two) months, after obtaining necessary permissions/authorization from the authorities under the Construction and Demolition Waste Management Rules, 2016 by appointing an agency who are having expertise of doing the same in an environment friendly manner without causing much damage to the marine ecology, failing which, the State Coastal Zone Management Authority is directed to take steps to remove the unauthorized constructions made in the No Development Zone in an eco-friendly manner and recover the cost incurred from the respondents 9 & 10.
(ii) The respondents 9 & 10 are directed to pay an environmental compensation of Rs.10,00,00,000/-
(Rupees Ten Crore only) to the State Coastal Zone Page 59 of 62 Management Authority within a period of 2 (Two) months and if they did not pay the amount within that time, then they are liable to pay the amount with 12% interest from the date of Judgment till payment and if the amount is not paid within that time, then the State Coastal Zone Management Authority is directed to take appropriate steps to recover the amount from the respondents 9 & 10 in accordance with law.
(iii) As regards the excess construction made in the permissible area viz., 200-500 m from the High Tide Line (HTL) is concerned, the respondents 9 & 10 are given liberty to approach the authorities for ratification as violation case, as provided in the Office Memorandum issued by the MoEF&CC in this regard vide their proceedings No.F.19-27/2015-IA.III dated 19.02.2021 within a period of 3 (Three) months and if such an application is filed, then the authorities are directed to consider and pass appropriate orders in accordance with law.
(iv) As regards the compensation mentioned in the Office Memorandum is concerned, the authorities are at liberty to consider any further amount which will have to be recovered than the amount fixed by this Tribunal but they cannot reduce the amount fixed by this Tribunal at any rate.
(v) If no application is filed within that time, then the State Coastal Zone Management Authority is directed to Page 60 of 62 demolish the excess construction made over and above the permission granted under the Environmental Clearance (EC) - cum- CRZ Clearance in the permissible area of 200-500 m from the High Tide Line (HTL) in accordance with law.
(vi) Considering the efforts taken by the applicant to bring this violation before this Tribunal, the respondents 9 & 10 are directed to pay a consolidated cost of Rs.50,000/- (Rupees Fifty Thousand only) to the applicant within a period of 2 (Two) months.
(vii) The respondents 9 & 10 are restrained from using the construction made in the No Development Zone area and they are also restrained from using the excess area that has been constructed by them till it is ratified by the authorities.
(viii) The State Coastal Zone Management Authority as well as the Tamil Nadu Pollution Control Board are also directed to inspect the area in question periodically and find out whether any of the directions issued by this Tribunal are violated by them and if so, take appropriate action against the respondents 9 & 10 in accordance with law.
(ix) The Registry is directed to communicate this order to the Integrated Regional Office Chennai, Ministry of Environment, Forests & Climate Change (MoEF&CC) as well as to the State Coastal Zone Management Authority (SCZMA) and District Coastal Zone Page 61 of 62 Management Authority (DCZMA) and Tamil Nadu Pollution Control Board (TNPCB) by e-mail immediately for their information and compliance.
62.With the above observations and directions, this application is disposed of.
Sd/-
...................................J.M. (Justice K. Ramakrishnan) Sd/-
..............................E.M. (Shri. Saibal Dasgupta) O.A. No.225/2016, 09th April, 2021. Mn.
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