National Green Tribunal
A. Jaya Ghosh vs State Environment Impact Assessment ... on 20 November, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 93 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF
Ajayaghosh, aged 59 years,
S/o Balan, Koottangal House,
Feroke P.O., Kozhikode - 673 631, Kerala.
...Appellant(s)
Versus
1. State Environment Impact Assessment Authority,
Devi Kripa, Pallimukku, Pettah PO,
Trivandrum, Kerala - 695 024.
2. State Expert Appraisal Committee,
Pallimukku, Pettah P.O.,
Trivandrum, Kerala - 695 024.
Represented by its Member Secretary
3. District Collector, Kozhikode,
Collectorate, Civil Station,
Kozhikode, Kerala - 673 020.
4. M/s. Sobha Developers Limited
Sobha, Sarjapur - Marthahalli Outer Road (ORR)
Devarabisanahalli, Bellandur Post, Bangalore,
Karnataka - 560 103.
Represented by its Managing Director.
5. M/s. Sobha Ltd, Regional Office, Empor Gemz,
Thondayad Junction,
NH Bypass, Nellikode P.O.,
Kozhikode - 673 016, Kerala
Represented by its Vice President Anil Kumar
...Respondent(s)
For Appellant(s): Sri. Harish Vasudevan.
For Respondent(s): M/s. Vidyalakshmi Vipin for R1, R2.
Sri. E.K. Kumaresan for R3.
Sri. P.B. Sahasranaman along with
Sri. S. Kamalesh Kannan &
Sri. S. Sai Sathya Jith for R4, R5.
Judgment Reserved on: 27th October, 2020.
Judgment Pronounced on: 20th November, 2020.
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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
JUDGMENT
Delivered by Justice K. Ramakrishnan, Judicial Member.
1. The above appeal has been filed by the appellant challenging the Environmental Clearance (EC) dated 20.03.2017 issued by the 1strespondent to the 4th respondent by their proceeding No.371/SEIAA/KL/2611/2014 dated 20.03.2017 produced as Annexure-
1. According to the appellant, the grant of Environmental Clearance (EC) in favour of the 4th respondent by State Environmental Impact Assessment Authority (SEIAA) is without application of their mind. The project of the 4th respondent is proposed to be constructed near to the property of the appellant. The 4th respondent, project proponent had suppressed material facts in their Form-1A Application regarding the existence of Kadalundi Community Reserve, which is part of the bird sanctuary which is declared as a protected area as per Wildlife Protection Act, 1972 and this is situated within 4 Kms aerial distance from the project area. Further, the project area is situated on the banks of famous Chaliyar River and a portion of which is falling under CRZ Zone and without getting CRZ clearance, construction activities could not be possible there. This aspect has not been mentioned in that application. Further, they have applied for building permit for an area of 59,528.41 Sq.m. in Sy. No.159/2B (part) but they have applied for Environmental Clearance (EC) showing only an area of 58,542.09 Sq.m., as per their application dated 09.06.2014. This was considered by the 2nd [2] respondent/SEAC in their 23rd Meeting held on 02nd & 03rd September, 2014 and they have observed that the cadastral map provided by the 4th respondent was not a original since the markings on the same are not seen made by the concerned authority and so they directed them to produce original of the map. Further, they had also observed that as per the bore hole data the nature of soil is clayey and the N values being greater than 20 shows that tendency for high liquefaction. According to them, since the area being prone to earthquake with earlier precedence of the same, only two floors is permissible with respect to the topography and ground regime of the project site and taking into account of the possibility of deficiency of oxygen in the basement floors in the absence of proper mechanical ventilation. It is also noticed in the minutes that the structural engineer of the project informed that they were providing sufficient supporting structure and mechanical ventilation to address the concerns pointed above. So, the committee directed the project proponent to provide a details of the same with proper drawings incorporated in the plan. They have also observed that the project site falling within the CRZ-III area and hence, recommendations from Kerala State Coastal Zone Management Authority (KSCZMA) is required. They have also sought a detailed plan regarding fire fighting facility proposed to be installed as a part of the project since the height of the building exceeds 60 meters. So, they deferred the decision to be taken as they proposed to visit the site for getting clarification on the following aspects:-
(i) Copy of the joint venture agreement between M/s.
Shoba Developers Ltd. and the land owner of the present project site.
(ii) Original cadastral map of the project site.
(iii) Revised plan showing the provisions made for mechanical ventilation and for supporting the structure of basement floors. In the said plan, set [3] back stipulated as per Rule 37 (5) of the KPBR and the minimum width of 7 meter for the drive way should also be demarcated.
(iv) Details regarding the quantity of removal of ordinary earth and its utilization.
(v) Details on the provisions made for ultra filtration and additional aeration of treated sewage water.
(vi) KCZMA recommendations.
(vii) Detailed plan regarding the fire fighting facilities proposed to be installed as part of the present project."
2. This was evidenced by annexure-2, Minutes. Thereafter, the sub- committee of the State Expert Appraisal Committee (SEAC) conducted the field visit on 11.10.2014 including Dr. P.S. Harikumar and Sri. John Mathai, member of the State Expert Appraisal Committee (SEAC).
3. It was observed by the members that the water table in the plot varied from about 8 meters below ground level in the upper crystal portion to about 5 meters below ground level in the lower flanks. They also noted that the river adjacent to the road and also presence of certain mangroves and came to the conclusion that it is part of CRZ Zone. So, the statutory clearance from Kerala State Coastal Zone Management Authority (KSCZMA) was required. They have noted the following things as a part of their opinion derived on the basis of the field visit which reads as follows:-
"Considering the location and other aspects following points may be considered:-
1) On the southern side near to the elevated part a cutting of about 12m is proposed to facilitate vehicle parking in the different levels of basement. On analysing the bore logs it is seen that soft water saturated clayey strata with low N values is seen at depth. This need to be supported mechanically so as to prevent slope failures and a safe design must be provided. A safe buffer distance must be provided from the boundary.[4]
2) The quantity earth to be removed and transported out of the site must be provided.
3) Dependable yield of wells must be provided. Bore wells are not advised in the area due to presence of saline water bodies in the vicinity.
4) Ventilation with mechanical exhaust system must be provided in the vehicle parking area
5) Internal width of drive way to be at least 7m with at least 3 m distance between drive away and proposed building. The gradient of the drive way must facilitate smooth movement of vehicles especially fire fighting equipments.
6) A barrier to be provided to a depth of at least 4m from ground level by the site of RWH facility to isolate it from STP/fuelling station on the eastern side. Considering the fresh water scarcity the RWH must have a capacity to store at least one month fresh water need of the project."
4. The same was taken up in the 36th Meeting of the State Expert Appraisal Committee (SEAC) held on 31.10.2014 and they sought following clarification from the project proponent which reads as follows:-
1. Safe design for mechanical support to prevent slope failure must be provided.
2. The quantity of earth to be removed and transported out of the site must be provided.
3. Dependable yield of wells must be provided. Bore wells are not advised in the area due to presence of saline water bodies in the vicinity.
4. Ventilation with mechanical exhaust system must be provided in the vehicle parking area
5. Maintain the internal width of drive way to be at least 7m with at least 3 m distance between drive away and proposed building. The gradient of the drive way must facilitate smooth movement of vehicles especially fire fighting equipments.
6. A barrier to be provided to a depth of at least 4m from ground level by the site of RWH facility to isolate it from STP/fuelling station on the eastern side. Considering the fresh water scarcity the RWH must have a capacity to store at least one month fresh water need of the project."
The proponent was addressed for compliance of the above decision vide letter No.371/SEIAA/EC4/2611/2014 dated 19.10.2015. The proponent did not responded to above said letter."
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5. Further, this was communicated to the 4th respondent vide letter dated 19.10.2015 of the 2nd respondent but the project proponent did not respond to the said letter. In the 36th Meeting of the State Expert Appraisal Committee (SEAC), this project was not considered which is evidenced by annexure-3, Minutes. Thereafter, it was again taken up in the 53rd Meeting on 25th & 26th February, 2016 after sixteen long months and they decided to delist the project evidenced by anenxure-4 as the project proponent did not respond to the directions given by them. Thereafter, it was further considered in the 55th Meeting of the State Expert Appraisal Committee (SEAC) held on 10.05.2016 as Item No.55.01 and they came to the conclusion that this can be considered only after decision of State Environmental Impact Assessment Authority (SEIAA) on the earlier recommendations made on 25th & 26th February, 2016 evidenced by Annexure-5. According to the EIA Notification, 2006, if the State Expert Appraisal Committee (SEAC) recommends the project either for granting or rejection of Environmental Clearance (EC), the decision has to be taken by the 1st respondent within 45 days of such recommendation and if such decision was not taken and not communicated to the project proponent within time stipulated, then the final recommendation of the State Expert Appraisal Committee (SEAC) shall be deemed to be final.
6. The 1st respondent has neither taken any decision nor communicated contra decision pursuant to Annexure-4, within the stipulated time and hence, the 4th respondent was bound to proceed as if the project of the 4th respondent was delisted. But contrary to law, the same was again taken up in its 54th Meeting held on 21.06.2016 and came to the conclusion that since the project proponent had replied to the letter of the State Expert Appraisal Committee (SEAC), delisting of the project is not warranted. They have also noted that as per the guidelines given by the Ministry of Environment, Forests & Climate Change (MoEF&CC) vide O.M. No.22-154/2015 - IA/III dated 10.11.2015,the State Expert [6] Appraisal Committee (SEAC) need to consider only a set of 15 specific environmental parameters and the Minutes of the 54th meeting of the 1st respondent was produced as Annexure-6. Annexure-7 is the guideline issued by the Ministry of Environment, Forests & Climate Change (MoEF&CC) vide their Office Memorandum dated 10.11.2015 referred to above. Even as per the guideline given, the points raised by the State Expert Appraisal Committee (SEAC) in their earlier proceedings are very relevant as far as the project in questions is concerned and the State Environmental Impact Assessment Authority (SEIAA) as well as the State Expert Appraisal Committee (SEAC) has to consider the same.
7. Thereafter, it was taken up on the 68th Meeting of the State Expert Appraisal Committee (SEAC) held on 28th& 29th July, 2016 and with the presence of five members, 18 big projects were considered and this project was considered as Item 60.08 and the project was recommended evidenced by Annexure-6. None of the earlier recommendations and opinion formed by the Committee Members were considered or even discussed before making the recommendation. It is thereafter on the basis of the recommendations of the State Expert Appraisal Committee (SEAC), the 1st respondent in their 59th Meeting dated 27.09.2016, directed the project proponent to produce certain documents and furnish certain information and rectify the certain discrepancies and deferred the item for furnishing these details evidenced by Annexure-9, Minutes. Thereafter, it was taken up in their 62nd Meeting held on 23.12.2016 and as per the Annexure-10, Minutes, the decision to grant Environment Clearance (EC) was taken by the 1st respondent. There is no proper application of mind and the necessary precautions and considerations were not considered by the committee before recommending the project. Annexure-11 is the Office Memorandum dated 24.06.2013, issued by the Ministry of Environment, Forests & Climate Change (MoEF&CC) regarding mining of ordinary earth where the borrowing or excavation activity shall be restricted to 2 meters above the ground water level at the [7] site and the minimum distance of 15 m from any civil structure should be kept from the periphery of any execution area. Contrary to the same, large scale excavation was done. Since there is suppression of material facts regarding the CRZ zone, the existence of protected community reserve declared under the Wildlife Protection Act, 1972 within 4 Kms and non-appraisal of the environmental impact of the local area by the committee granting of Environmental Clearance (EC) to the 4th respondent was bad in law.
8. The appellant had filed W.P. (C) No.33556 of 2017 before the Hon'ble High Court of Kerala, challenging the Environmental Clearance (EC) granted along with inter-alia alleging certain violations of CRZ Notification and conditions of the Environmental Clearance (EC). The 5th respondent filed counter affidavit before the Hon'ble High Court in that Writ Petition stating that the 4th respondent company had changed its name and they were duly authorized by the 4th respondent company to conduct case on behalf of the company and after hearing both sides, the Hon'ble High Court vide order dated 06.12.2017, permitted the appellant to approach the National Green Tribunal to challenge the Environmental Clearance (EC) granted on merit, without any delay condonation process and directed that if the appeal is filed within 2 weeks from the date of this order, then the National Green Tribunal shall accept the appeal as one presented within time, taking note of the period spent by the appellant before the High Court in this writ petition and proceed to hear and dispose the appeal on merit and the said order was produced as Annexure-14.
9. Accordingly, the present appeal was preferred and filed on 17.12.2017 and it was returned for certain defects and represented on 22.12.2017. So according to the appellant, the appeal is within time as permitted by the Hon'ble High Court of Kerala and the Environmental Clearance (EC)granted has to be set aside for the reasons mentioned above. [8]
10. Respondents 1 & 2 filed counter contending that the appeal is barred by limitation as it was filed beyond 90 days. The Environmental Clearance (EC) was granted on 20.03.2017 and it was uploaded in their website on 18.05.2017. Knowing that the appeal was time barred approached the Hon'ble High Court by filing writ petition and obtained an order and filed this appeal beyond the time permitted under the statute knowing that it is filed beyond time. The appeal ought to have been filed on or before 20.12.2017 even as per the directions of the Hon'ble High Court of Kerala but it was filed only on 22.12.2017 and as such it cannot be said to be filed within time. Further, even by the time writ petition was filed before the Hon'ble High Court, time for filing appeal before this Tribunal had expired. So according to them, the appeal is barred by limitation.
11. They have further contended that all the procedures were properly complied with and this project was discussed in several meetings of the State Expert Appraisal Committee (SEAC) and in order to clarify their doubts, they have even conducted the site inspection and obtained clarification from the Kerala State Coastal Management Authority (KSCZMA) as to whether the CRZ Clearance is required for this purpose and only after satisfaction that it is not required, they proceeded further. They have reiterated all the things mentioned by the appellant in the appeal memorandum regarding the steps taken by the State Expert Appraisal Committee (SEAC) till the project was recommended and on the basis of the recommendations, State Environmental Impact Assessment Authority (SEIAA) had after obtaining certain clarifications also granted the Environmental Clearance (EC). All necessary environmental issues have been addressed and the necessary precautions were taken while imposing conditions as well. According to them, Environmental Clearance (EC) granted is perfectly legal and the appeal is liable to be dismissed.
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12. The 3rd respondent filed reply statement contending as follows:-
"It is humbly submits that the reply on behalf of the 3rd respondent sincerely state as follows:
1) It is submits that the 3rd respondent herein functioning as the District Collector of Kozhikode and fully conversant with the facts of the case and filing the reply.
2) It is submit that the averments made by the appellant against the 3rd respondent, except those that are specifically accepted as true, are vehemently denied.
3) It is most respectfully submitted that Faroke Village in Kozhikode Taluk and District is a coastal village and large number of families are residing in this area. It is true to state that the respondent 4 and 5 as already started constructing a residential cum commercial building in the survey number 153/2B (part) of faroke village.
4) It is submitted that the appellant already filed a Writ Petition on 20.10.2017 before the Hon‟ble High Court of Kerala in W.P. (C) No.33556 of 2017 against the construction and removal of earth from the construction site of the 4th and 5th respondent, which is pending till now and the appellant contending that the excavation carried out by the petitioner as caused damages to the house and property of the petitioner and also challenged the environmental clearance certificate granted by the 1st respondent and also the building permit issued by the FerokeGrama Panchayat. In the above said writ petition the petitioner moved an Interim Application before the High Court of Kerala to direct the District Collector, the 3rd respondent herein to inspect the site of 4th and 5th respondents and to file a report with regard to non transportation of mined earth outside to the property of developers.
5) It is submitted as per direction issued by the Hon‟ble High Court of Kerala in I.A. No.90/2018 in W.P. (C) No.33556/2017 for the compliance of direction the 3rd respondent herein inspected the site of the 4th respondent and report has been filed before the Hon‟ble High Court by reporting the present stage and quality of earth stacked in the project site and the quantity of earth transported outside the site with permit.
6) It is submitted that the present appeal was filed by the appellant by suppressing the facts by the same petitioner who challenges the environmental clearance granted by the respondent 1, 2 on 20.03.2017 to the 4th respondent for the construction of residential cum [10] commercial building in Survey No.159/2B (part) of Feroke Village in Kozhikode Taluk and District.
7) It is submitted that the petitioner challenged the environmental clearance certificate No.371/SEIAA/KL/2611/2014 dated 20.03.2017. It is submitted that the respondent has nothing to do with the environmental clearance certificate issued by the authority. The annexure A1 certificate issued by the Higher authority and is the Higher authority to answer the legality of the certificate.
8) It is humbly submit that the respondent reserve his right to file Additional Reply Affidavit at a later stage, if necessary.
It is therefore humbly prayed that this Hon‟ble Tribunal may be pleased to take on record the facts adduced in this Reply Statement and dismiss the petition thus render justice.
Dated this the 11th the day of July 2020."
13. Respondents 4 & 5 filed reply statement contending as follows:-
"Appeal time barred:
1) The National Green Tribunal Act, 2010, Sec. 16 (h) permits the filing of appeal against an order allowing environmental clearance (EC). The said appeal has to be filed within 30 days from the date on which the order or decision is communicating to him. In this the EC 20.03.2017. It was uploaded in the web site of the project proponent on around 30.03.2017. This fact was published in two newspapers Kerala Kaumudi (Malayalam) and the New Indian Express on 17.04.2017 making it clear that the details are available in the website of the SEIAA. [Annexure, R4 (a) 1 & R4(a) 2]. Thus, the appeal ought to have been filed within 30 days, from the date of publication at least before 17.05.2017. The present appeal was filed on 22.12.2017, 218 days after the appeal time permitted by the law.
2) The next question is whether the said delay in filing the appeal can be condoned. There is no explanation in the application or any affidavit explaining the delay. The application has been filed as it is within time. The applicant has approached the Kerala High Court by challenging the very same order on 20.10.2017. That is after five months after the prescribed time. The Hon‟ble High Court by its order dated 06.12.2017, permitted him to file an appeal within two weeks, taking note of the time spent by the petitioner spent in the writ petition. (Annexure A14). This appeal is [11] presented on 22.12.2017 as it is within the said time of two weeks.
3) The Hon‟ble High Court of Kerala has by order dated 20.10.2017 permitted him to file an appeal in two weeks lapses on 03.11.2017. The present appeal is presented on 22.12.2017. Thus, there is a clear delay on 48 days in presenting this appeal, even as directed by the High Court.
4) It is most respectfully submitted that the Hon‟ble High Court has permitted the appellant only the time that is taken before the High Court to be exempted. In this case, the appellant has filed the writ petition on 20.10.2017, that is, after 218 days from the time prescribed under the NGT Act. The High Court only wanted this Tribunal to grant exemption from the time taken in the High Court and has permitted him to file the appeal within two weeks. Even within those weeks, the appeal is not filed. There is no explanation for such long delay in filing the appeal, other than the mere statement he was permitted by the High Court.
5) The project concerned is Housing Project and the respondents 4 and 5 have stated that they have commenced the construction activities and had invested a huge amount of money on land, overheads, construction an sales & marketing and started allotting the apartment units in the project to interested clients. As per the Real Estate (Regulation and Development) Act, 2016 the project has to be completed within a time frame. If not completed within a time the project proponent is answerable. Therefore, if delayed appeals are entertained on housing projects, without any sufficient cause, it will adversely affect the execution of the project within the time frame monitored by the Real Estate Regulatory Authority. Several people who have invested their hard earned money for the purchase of these apartments and also availed home loans from financial institutions and they will be affected if appeals are entertained on such projects after a long gap. Hence, the appeal is time barred and is to be dismissed.
6) It is also to be noted that these respondents have filed W.A. No.346 of 2018 against the interim order of the learned single judge dated 06.12.2017. When the appeal came up for consideration the very same appellant has submitted that he will file an application to delete the relief sought for challenging the EC. This was recorded and the appeal was dismissed by order dated 25.11.2019. Thus, there is no writ petition in the eye of law on the EC. Thus, all the interim order [12] passed including the one dated 06.12.2017 has gone and this appeal is thus time barred.
7) There is no bona fides in filing this appeal. There no reasonable diligence in prosecuting the appeal. The appellant was going from one forum to another seeking interim order.
8) In this regard, it is respectfully submitted that as per the decision reported as Tamil Nadu Pollution Control Board Vs. Sterlite Industries (I) Ltd („Sterlite‟), AIR 2019 SC 1074, the Hon‟ble Supreme Court reminded that this Hon‟ble Tribunal has no jurisdiction other than those prescribed by the Act.
On merits:
9) No copy of the argument notes of the appellant was given to these respondents. There is no wide explanation of the points urged is not done at this stage. The points raised in the appeal is summarily answered as follows:-
10) One of the allegations is that is located within 4 Kms aerial distance from Kadalundi Community Reserve is incorrect. The Kadalundi-Vallikkunnu estuary area is declared as community reserve area by the Government of Kerala and is not either a protected wildlife sanctuary or natural park as alleged. So, it is not within the prohibited distance of any sanctuary under the Wildlife (protection) Act, 1972.
11) The proposed project is a building and construction project which falls under Category B Schedule 8 (a) of EIA Notification. Prior EC is required for projects in this category if the built up area exceeds 20,000 Sq.m. All item (8) projects are exempted from the requirement of public consultation. Our approved SBA is 43,390.27 Sq. m. and so it was mandatory for us to apply for prior EC. No material facts are concealed in the Form-1 application. Moreover, whatever clarifications sought by the SEIAA/SEAC has been submitted with due diligence in this case during the various stages of screening and scoping process. Thus, there is no suppression of any material facts as alleged by the appellant.
12) There is bona fides in filing this appeal. There no reasonable diligence in prosecuting the appeal. The appellant was going from one forum to another seeking interim order.
13) Another allegation is that respondents 4 and 5 have started heavy mining activity and removal of earth from their project site on the strength of EC. This is not a correct statement and is denied. The land is excavated for constructions. It is not a mining activity [13] as alleged. For the removal of the earth, these respondents have obtained passes from the District Geologist as required under the law. The earth is transported in accordance with the said passes and by payment of Royalty to the Government. True Photostat Copies of few samples passes dated 01.11.2017, 25.10.2017, 19.10.2017, 27.09.2017, 13.09.2017, 02.08.2017, 26.07.2017, 17.07.2017 issued by the Senior Geologist were produced as Annexure R4 (b) (1) to (8). Further, the District Geologist had reported to Hon. High Court of Kerala in his report dated 06.01.2018 in WP (C) No.33556/2017, as point No.11 that "the 8th respondent had obtained the necessary O (A) transit passes from the office of the 9 th respondent, required to remove the excess soil from the building site. It is most humbly submitted that the 9 th respondent has acted as per the provisions of the rules. Since the land is a hard lateritic terrain and precautionary measures are taken by the 8 th respondent to avoid any side slip, there is no possibility seen for the alleged damage to the petitioner‟s property. Hence it is humbly submitted that the petition may be disposed of concerning the report submitted. "The District Collector in his report dated 09.01.2018 filed in the above W.P. (C) No. (C) 33556 to Hon. High Court said as Point No.2 that "It is submitted that, during my inspection, I have noticed that the workers were engaged in the work site for construction of the basement. The depth of the excavated area in the Northern portion is approximately six meters and in the southern side is 10 meters. So, the quantity of the earth dug from the pit comes 35.872 M3. On enquiry with the Geologist, it is informed the District Collector that 10,318 M 3 soil has been transported outside the site with permission.
The District Geologist also informed me that O (A) Form has been issued to the 8th respondent after realizing required Royalty for the 10,318 M3".
14) The allegation that there is a difference in the area of the project is not correct and is a residential cum commercial project is incorrect. The applicant is made on 09.06.2014 for residential project and not for the commercial project as alleged. The averment that the build up area is 59,528.41 is incorrect and is denied. The sanctioned area is only 43,390.27 Sq.m. The parking and service area are not part of Floor Area Ratio as per the Building Rules. The breakup of the entire plinth are is clearly shown in the building permit issued on 27.01.2017 which includes the parking and [14] service area. The permit fee is calculated on such gross "floor area" inclusive of parking and service area as per Municipality Act. However, the parking and service area as well some other areas are excluded from calculating the sanctioned FAR (FSI) area in Kerala Building Rules. The exact sanctioned area is given in a tabular format in the sanction plans annexed as Annexure R4 (b) 2. The copy of the Building Permit dated 27.01.2017 and the sanctioned site plan are produced as Annexure R4 (c) will prove the said fact.
15) It is stated that there are healthy mangroves were noted which is a part of the project area and it falls in CRZ. Such an allegation is also incorrect and is denied. The areas are not included in the approved Coastal Zone Management Plan of Kerala. Thus, it is not a CRZ area. The Kerala Coastal Zone Management Authority, as per their letter 4270/A1/14/KCZMA/S&TD dated 16.02.2016, has informed this to the Feroke Grama Panchayat.
(annexure R4 (d) (1).
16) SEAC had recommended using the excavated earth within the site itself. Firstly, this is only a site related condition and not a statutory condition. The project proponent had to excavate huge quantity of earth for constructing three approved basement floors and they have to raise the land substantially if the entire excavated soil has to be reused in the site itself. This will create a lot of practical difficulties and safety issues. It will be difficult to provide clear access to the building then. Also, a portion of the land falls in the CRZ III Zone where large scale alteration of the topography is not permitted. However, the Project Proponent is using as much soil as possible within the site itself. The volume of the soil goes up by about 40% when it changes its state from compact to lose mass. This makes it impossible to manage such a huge quantity of soil in a limited land extent of 3.66 acres during the project execution time. SEIAA itself had stipulated in the EC, only the topsoil to be kept in the site and to be reused in the Specific conditions annexed with EC and numbered as the item (V). So the project proponent approached the District Geologist for shifting out some deeper soil and they issued the O(A) passes under Kerala Minor Mineral Concession Rules. Under Rule 14.2 and Rule 106 of the KMMC Rules, no mining permit is required if the soil to be removed from a residential building site having valid Building Permit. The deeper soil excavated from the site is highly clayey laterite soil which makes it unsuitable for refiling and [15] re-compaction. The reports submitted by the District Geologist and by District Collector in the Hon. High Court clearly stated that the soil has been removed with approval. The total quantity of soil to be excavated from the site is about 79,000 Cu.m. for constructing 3 basement floors, for erecting UG sumps and to have safe working space in the project. Therefore, still about 43,128 Cu.m. of soil need to be removed and shifted from the project site. The project proponent had identified some Government highway works in the vicinity and other locations for shifting the soil which is not paddy, wetland or CRZ area. It is only a vague allegations levelled against these respondent without any basis.
17) The averment in Paragraph 8 of the appeal that these respondents did not respond to the letter dated 19.10.2015 is incorrect and is denied. The 2nd respondent sent a letter on 02.04.2016 to the SEIAA incorporating all the necessary documents required by them. [annexure R4 (e)]
18) The averments made in Paragraph 9 to 17 of the appeal memorandum are only imaginations of the appellant based on his imaginations and surmises. The time limit of 45 days prescribed under the EIA notification is not mandatory and is only a guideline. The appellant is estopped from contending that all the aspects were not considered in the meeting of the SEIAA. There was proper appraisal. No time limit can be fixed for consideration of a particular project. The application made by these respondent is in the office of the SEIAA for the last 32 months. If the connection of the appellant is to be accepted then all the clearances issued so far in this country has to be set aside.
19) The averment in Paragraph 19 of the appeal memorandum that in the given case neither the 1st respondent nor the 2nd respondent has not considered Annexure A11 is incorrect and is denied. The excavation activities are carried out for making constructions. There are no "mining operations" being carried out by the 4th or 5th respondents. Thus, the provisions of Mines and Minerals (Regulation and Development) Act, 1957 are not attracted at all. The excavated earth is not intended to extract minerals. The same is given through passes issued by the Geologist for the public purpose and by payment of Royalty to Government. Since there is no winning of any minerals it cannot be termed as mining operations. It has to be treated as sustainable mining.
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20) There is no submission of any misleading or false data submission by these respondents. Whereas the appellant has filed the appeal with misleading facts and wrong interpretation of legal principles. The provisions of the Wildlife (Protection) Act, 1972 is not applicable to the facts of the case.
21) The averment in Paragraph 24 of the appeal memorandum that there is acute water shortage due to salinity intrusion in the area is incorrect and is denied. The appellant has not produced any materials to support the said contention. There is no violation of the principle of sustainable development. The SEAC has considered all the adverse effect of the project.
22) The averment in paragraph 27 of the appeal memorandum that the excavation has caused
irreparable damage to the property of the appellant is incorrect. He did not say about the injury or other details of damages furnished. The fact a multi storied residential building is constructed and in the excavated portion is being used for their needs will strengthen the fact that no adverse effect will be made on the ecology. If the appellant knows about any of the suppression of material facts he ought to have brought the said fact to the notice of the respondents. This appeal was filed only to defame the image of the 5th respondent company. It seems that the appeal is made at the instance of other rival builders who have set up this appellant. This appeal is an abuse of process of law and cannot be entertained at all.
23) The averment in Paragraph 31 of the appeal memorandum that the basic structure of the area, landscape and its ecology has been destroyed or altered by the 4th respondent is incorrect and is denied. The land is used by the 5th respondent for residential construction with the least damage to the land. When multi-storied buildings have constructed the damage to the land is minimal, unlike single storied construction which consumes more land.
24) It is respectfully submitted that the construction is carried out in accordance with the clearance and building permits issued by the authorities. There is no damage to the ecology as alleged. The principle upheld by the Hon‟ble Supreme Court that development and the protection of the environment are not enemies. [M.C. Mehta Vs. Union of India AIR 2004 SC 4016.] The principal of sustainable development squarely building in the same area cannot restrain the others making constructions for their residential buildings. [17]
25) It is reiterated that there building constructed is not a commercial building and is a residential building as alleged. The restriction imposed on the wildlife protection Act, 1972 does not apply to community reserve as alleged. No mining operations are being carried out by this respondent. The construction is being carried out after obtaining all the necessary permits and clearances. The appeal is filed based on imaginations and surmises and not based on facts.
26) None of the grounds is valid and sustainable. There is no illegality, impropriety and lack of jurisdiction as alleged. There is no damage to the ecology on account of the proposed construction. The right of the appellant is no adversely affected by the proposed constructions. There are no mangroves near the project site as alleged. All the materials facts have been considered by the authorities before the granting of clearance. There is a clear application of mind by SEAC. There are approvals received from KCZMA and State Archaeological Department. The procedure prescribed by law is being followed. The appraisal done is after verification of the records properly. There is no violation of any of the dictum laid down by any of the Supreme Court Judgment.
27) The appellant is not entitled to any of the reliefs as prayed for on the facts and circumstances of the case. On the other hand, the appellant has damaged the name of the respondents 4 and 5 and therefore it is proper that the appeal is dismissed with exemplary damages to these respondents.
28) It is most respectfully submitted that these respondents have not received any argument notes made by the appellant. They may be permitted to explain any arguments if any not answered above by filing an additional argument note.
Dated this the 3rd day of August 2020."
14. The appellant filed common rejoinder to the reply statement of the respondents 1, 2, 4 & 5 denying the allegations and reiterating their contentions in the appeal memorandum, justifying the grounds taken by them in the appeal memorandum. They have further stated that though they came to the conclusion that CRZ Clearance is not required, only on the basis of the recommendations of the Kerala State Coastal Zone Management Authority (KSCZMA) without making any impact [18] assessment of the project on coastal zone, granted the Environmental Clearance (EC). They have not considered the specific effect of such project in that area considering the nature of the soil as observed by the State Expert Appraisal Committee (SEAC) in one of their meetings. They have also not considered the impact of the project on the bird sanctuary abetting the community reserve area which has been declared as protected area notified by the Government of Kerala under the Wildlife Protection Act, 1972 and he prayed for allowing the appeal.
15. Heard both sides.
16. The learned counsel appearing for the appellant argued that as per the directions of the Hon'ble High Court of Kerala, the appeal was filed within time as directed by the Hon'ble High Court and the Writ Appeal filed by the respondent was disposed of by the Divisional Bench of the Hon'ble High Court without interfering with the directions given by the Single Bench. So, they are estopped from raising the contentions of the limitation.
17. The learned counsel also argued that there were suppression of material facts such as the CRZ zone, the existence of community reserve, a protected area as notified by the Government of Kerala under the Wildlife Protection Act, 1972 and there was no opportunity for the State Expert Appraisal Committee (SEAC) to go into these aspects for the purpose of considering the impact of the project on environment. Further, it will be seen from the proceedings of the State Environmental Impact Assessment Authority (SEIAA) that when they came to understand that this property falls in part under the CRZ zone, they deferred the decision and decided to inspect the area and after inspection, they came to the conclusion that clarification from the Coastal Zone Management Authority has to be obtained and it is thereafter, that they have proceeded with the matter. In fact, this is nothing but a suppression of material fact which came to the knowledge of the authority and as per EIA Notification, the authority should have [19] rejected the application instead of proceeding with the matter. He had further argued that the State Expert Appraisal Committee (SEAC) had directed the project proponent to furnish certain details regarding the nature of soil and the proposed mechanism to be provided to avoid earthquake etc. and since those things were not furnished, they have decided to delist the same but thereafter, after a long time it was taken up and without proper application of mind regarding the observations made by the same committee members earlier, recommended the project. So, there is no proper application of mind. Further, non-mentioning of the community reserve declared under the Wildlife Protection Act, 1972 which is situated about 4 Km from the project area had prevented the authorities from considering the impact of the project on wildlife as the community reserve was intended for the purpose of providing additional buffer zone for the Kadalundi Wildlife Sanctuary so as to enable and facilitate the welfare of migrating birds that are coming to that sanctuary. He had relied on the decision in Hanuman Laxman Aroskar & Anr. Vs. Union of India & Ors. reported in 2019 (15) SCC 401 = 2019 (5) Scale 484 and M.C. Mehta Vs. Union of India reported in 1987 (4) SCC 463, Research Foundation for Science and Technology and Natural Resource Policy Vs. Union of India & Ors. reported in AIR 2007 SC (Supp.) 852, Research Foundation for Science and Technology and Natural Resource Policy Vs. Union of India 2005 (10) SCC 510 and Utkarsh Mandal Vs. Union of India of Delhi High Court in W.P.C. No. 9340 of 2009 in support of his case.
18. On the other hand, the learned counsel appearing for the State Environmental Impact Assessment Authority (SEIAA) submitted that the appeal is barred by limitation. The Environmental Clearance (EC) under challenge was issued on 20.03.2017 by the 1st respondent and it was uploaded in the website on 18.05.2017 and the Writ Petition was filed before the Hon'ble High Court, only after the lapse of time provided for filing the appeal including the extended time. The learned counsel also [20] argued that the Hon'ble High Court while passing an interim order dated, 06.12.2017 in W.P. No.33556 of 2017 directed the National Green Tribunal to entertain the appeal, if it was filed within two weeks taking into consideration the time spent in the High Court as though it was filed in time and directed the appeal to be considered on merit. So, the Hon'ble High Court had only exempted the time spent in the High Court from the date of filing of Writ Petition till 06.12.2017 when order was passed and not the time prior to that. Further, the appeal was filed only on 22.12.2017 as the appeal ought to have been filed on or before 20.12.2017. So according to the learned counsel, it was barred by limitation. The learned counsel also argued that the authority had considered all the aspects and only after appraising the pros and cons of the project and getting necessary details from the project proponent, decided to grant the Environmental Clearance (EC). The community reserve is not a protected area like a national park or wildlife sanctuary as declared under the Wildlife Protection Act, 1972 and as such non- mentioning of the same will not be said to be a suppression of material fact. They have obtained clarification from the Coastal Zone Management Authority that the project area does not fall within the prohibited distance of 100 m from the HTL of Chaliyar River and as such no prior clearance from that authority is required. Even if there is any violation, this Tribunal need not go into those aspects at present as there is a matter pending before the Hon'ble High Court of Kerala on that issue and the same will have to be considered by that Court. According to the learned counsel, the issuance of Environmental Clearance (EC) is proper and does not call for any interference.
19. The learned counsel appearing for the project proponent also argued supporting the contentions raised by the learned counsel appearing for the State Environmental Impact Assessment Authority (SEIAA). They have also submitted that they have made the publication in the newspaper on 17.04.2017 and the writ petition was filed only on [21] 20.10.2017 and the order was obtained on 06.12.2017 and as such the writ petition itself was filed after the expiry of period provided for filing the appeal and as such the same cannot be extended further by this Tribunal. Further, even in the writ appeal filed by the project proponent against the Single Bench interim order, the undertaking given by the counsel for the appellant that he is withdrawing the prayer for challenging the Environmental Clearance (EC) was recorded and as such he is not entitled to challenge the same by filing an independent appeal. They also contended that all necessary particulars were provided. There was no suppression of any material facts and as such there is no necessity to interfere with the Environmental Clearance (EC) granted. If at all there is any violation, it is for the Hon'ble High Court to consider where the matter is pending in respect of the same and it is for the authorities to decide as to whether there was any violation and nature of appropriate action, to be taken if there is any violation found. He had also obtained necessary permissions from the authorities for removing the earth excavated after utilizing the maximum possible for that project as contemplated in the Environmental Clearance (EC). So, he prayed for dismissal of the appeal.
20. The points that arises for consideration are :-
i. Whether the appeal is liable to dismissed on the ground of limitation as contended by both the counsel for respondents?
ii. Whether the Environmental Clearance (EC) under challenge is liable to set aside for any of the reasons stated and canvassed on behalf of the appellant?
iii. If this Tribunal feels that the Environmental Clearance (EC) will have to be sustained, though there are certain short coming what are all the necessary conditions or directions to be issued by the Tribunal in this regard?
iv. Relief and costs?[22]
Point (i):
21. Since the facts of the case have been narrated earlier, we are not repeating the same while considering this point for privity sake. Admittedly, the Environmental Clearance (EC) in this case was granted by the 1st respondent to the 4th respondent on 20.03.2017 and it was uploaded on 18.05.2017 by the authorities and it was published on 17.04.2017 by the project proponent and these facts are not in dispute. If that be the case, the appeal ought to have been filed on or before 17.06.2017 and if two months time is allowed, then it ought to have been filed on or before 17.08.2017. Admittedly, the fact that writ petition W.P.(C) No. 33556 of 2017 challenging the Annexure-1, Environmental Clearance (EC) and also alleging certain violations was filed by the appellant only on 20.10.2017. It is also an admitted fact that as per interim order dated 06.12.2017, the Hon'ble High Court of Kerala passed the following order:-
"I further make it clear that, if the petitioner prefers an appeal against Ex. P6, Environmental Clearance (EC) Certificate before the National Green Tribunal, within two weeks from today, then the National Green Tribunal, shall accept the appeal as one presented within time, taking note of the period spent by the petitioner before this Court in this writ petition, and proceed to hear and dispose the appeal on merits."
22. It is also an admitted fact that the project proponent filed a Writ Appeal before the Division Bench of Hon'ble High Court of Kerala against the interim order dated, 06.12.2017 as W.A. No.346 of 2018 and the Hon'ble High Court of Kerala by annexure-16, Judgment dated 25.11.2019 disposed of the appeal observing that since the appellant had undertaken to withdraw the prayer for challenging the Environmental Clearance (EC) before the Hon'ble High Court, there is no basis for the appellant to apprehend that there is a possibility of conflicting decisions being passed by the Hon'ble High Court as well as the National Green Tribunal as it is without any merit and dismissed the writ appeal stating [23] that there is no reason to interfere with the interim order passed by the Single Judge, permitting the appellant to file appeal within a time provided therein.
23. Though, a contention was raised by the project proponent in that writ appeal that the Single Judge has not considered the fact that the writ petition itself was filed beyond the time provided for filing the appeal under the National Green Tribunal Act, 2010 and if that was considered, the same could not have been granted and was not accepted by the Division Bench. Once, the constitutional Court has directed the Tribunal to treat the appeal filed within the time specified by the Constitutional Court as if it was filed within limitation, then the Tribunal had to consider the same as if it was filed within time and dispose the case on merit.
24. In this case, the interim order was passed on 06.12.2017 directing the appellant to file the appeal before the National Green Tribunal within two weeks from thereon and if it is filed within two weeks, then this Tribunal was directed to consider and dispose the matter on merits. It is seen from the records that the appeal was presented before this Tribunal on 19.12.2017 within time but it was returned for some defect and the same was represented on 22.12.2017. It is the date of presentation that has to be considered by this Tribunal for the purpose of ascertaining as to whether the appeal was filed within the time as directed by the Hon'ble High Court. Since, the appeal was presented on 19.12.2017, it was filed within the time allowed by the Hon'ble High Court vide interim order dated 16.12.2017 as mentioned above and as such the contentions raised by the respondents that the appeal is filed out of time and the same has to be dismissed on the ground of limitation cannot be accepted. The point is answered against the respondents and in favour of the appellant.
[24] Points (ii) to (iv):-
25. The issuance of the Environmental Clearance (EC) was challenged on the following grounds:-
a. Suppression of material fact namely, i. That part of the project falls within the CRZ - III zone was not mentioned.
ii. The existence of community reserve declared by the State of Kerala under Section 36 (C) of Wildlife Protection Act, 1972 which is situated within 4 Kms from the project site has not been mentioned so as to enable the authorities to consider the impact of the project on that protected area.
b. The directions issued by the State Expert Appraisal Committee (SEAC) directing the project proponent to produce certain documents to clarify their doubts have not been complied with by the project proponent and they have delisted the same and the State Environmental Impact Assessment Authority (SEIAA) has not communicated this decision of the State Expert Appraisal Committee(SEAC) within 30 days as contemplated in EIA Notification, 2006 to the project proponent and it has become final and thereafter, they have no authority to reconsider the same after the lapse of time provided therein.
c. When it was brought to the notice of the authorities while considering the project there was suppression of fact and they ought to have rejected the application instead of proceeding with the matter and collecting materials by themselves. d. The authorities have not considered the social impact of the project on the locality and as such there was no application of mind and even in the last meeting in which it was granted, large number of items were considered providing only minimum time for [25] considering each project and as such it cannot be said that there was proper application of mind.
26. Before going into the above aspects, let us consider the statutory provisions and EIA Notification on this aspect. Sub Clause 6 of Clause 8 of EIA Notification under Part IV (Stage 4 Appraisal) reads as follows:-
"Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the appellant, and following the principles of natural justice."
27. It is true that the State Expert Appraisal Committee (SEAC) considered this project earlier in their meeting held on 2nd & 3rd September, 2014 and this project was considered as Item No. 33.03 wherein it had observed as follows:-
"Item No.33.03:
Environmental Clearance for Housing project (Sobha Rio Vista) in Sy. Nos. 159/28B (p) at Calicut, Ferokepetta (Chandhakadavu), Feroke Village and Panchayath, Kozhikode Taluk, Kozhikode District, Kerala by M/s. Sobha Developers Ltd. (File No.371/SEIAA/KL/2611/2014) The project proponent attended the meeting and the consultant made a brief presentation of the project. The committee asked the proponent as to whey there is a correction in the name of the applicant in the CRZ status report. To this end the proponent stated that the project is a joint venture between M/s. Sobha Developers Ltd. And the land owner who is UK based. The name of the owner has been changed to M/s. Sobha Developers Ltd. On execution of the joint venture agreement and hence the correction in the name of the applicant, which is made by the concerned authority. The proponent is directed to provide a copy of the joint venture agreement. The committee further observed that the cadastral map provided by the proponent is not original since the makings on the same are not seen made by the concerned for the proposal of three basement floors below the ground level. The committee opined that as per the bore hold data the [26] nature of soil is clayey and the N values being greater than 20 shows the tendency for high liquefication. The committee reiterated that the area being prone to earthquake with earlier precedence of the same, the construction of only two basement floors is permissible with respect to the topography and ground regime of the project site and taking into account of the possibility of deficiency of oxygen in the basement floors in the absence of proper mechanical ventilation. To this end, the structural engineer of the project informed that they are providing sufficient supporting structures and mechanical ventilation to address the concerns as pointed above. The committee directed the project proponent to provide the details of the same with proper drawings incorporated in the plan.
The committee observed that the project site falls within the CRZ-III area and hence, recommendations from KSCZMA is required. Further, the committee sought detailed plan regarding fire fighting facilities proposed to be installed as part of the present project, since the height of the building exceeds 60 m.
Considering the above and further to the information provided by the proponent on the queries raised by the committee, the item is DEFERRED FOR SITE VISIT and seeking the following additional clarifications/documents from the proponent for further consideration of the proposal:
(i) Copy of the joint venture agreement between M/s.
Shoba Developers Ltd. and the land owner of the present project site.
(ii) Original cadastral map of the project site.
(iii) Revised plan showing the provisions made for mechanical ventilation and for supporting the structure of basement floors. In the said plan, set back stipulated as per Rule 37 (5) of the KPBR and the minimum width of 7 m for the drive way should also be demarcated.
(iv) Details regarding the quantity of removal of ordinary earth and its utilization.
(v) Details on the provisions made for ultra filtration and additional aeration of treated sewage water.
(vi) KCZMA recommendations.
(vii) Detailed plan regarding the fire fighting facilities proposed to be installed as part of the present project."
[27]
28. Thereafter, this project was again considered by the State Expert Appraisal Committee (SEAC) in their 36th Meeting held on 31.10.2014 as Item 53.04 and took the following decision:-
"Item No.53.04:
Environmental Clearance for Housing project (Sobha Rio Vista) in Sy. Nos. 159/28B (p) at Calicut, Ferokepetta (Chandhakadavu), Feroke Village and Panchayath, Kozhikode Taluk, Kozhikode District, Kerala by M/s. Sobha Developers Ltd. (File No.371/SEIAA/KL/2611/2014) Project Proponent: Mr. Ramakrishnan Prabhakaran, M/s. Sobha Developers Ltd.
The proposal was considered by SEAC in its 36 th meeting and proponent was required to furnish import details such as safe design for mechanical support to prevent slope failure, ventilation with mechanical exhaust system, isolation RWH from STP and so on. The proponent was addressed from the secretariat to furnish the said details, for which the proponent has failed to respond. Hence, the committee decided to RECOMMEND TO DELIST the proposal."
29. Thereafter, it was again taken up in the 55th Meeting of State Expert Appraisal Committee (SEAC) held on 10th, 11th & 20th May, 2016 as Item No. 55.01 and taken the following decision:-
"Item No.55.01:
Environmental Clearance for Housing project (Sobha Rio Vista) in Sy. Nos. 159/28B (p) at Calicut, Ferokepetta (Chandhakadavu), Feroke Village and Panchayath, Kozhikode Taluk, Kozhikode District, Kerala by M/s. Sobha Developers Ltd. (File No.371/SEIAA/KL/2611/2014) Project Proponent: Mr. Ramakrishnan Prabhakaran, M/s. Sobha Developers Ltd.
The committee observed that the proposal was Recommended to delist in the 53rd meeting of SEAC held on 25/26, February, 2016. Hence, the item can be considered only after a decision of SEIAA on the above recommendation."
30. Thereafter, it was considered by the State Environmental Impact Assessment Authority (SEIAA) in their 54th Meeting dated 21.06.2016 as Item No.54.16 and taken the following decision:- [28]
"Item No.54.16:
Environmental Clearance for Housing project (Sobha Rio Vista) in Sy. Nos. 159/28B (p) at Calicut, Ferokepetta (Chandhakadavu), Feroke Village and Panchayath, Kozhikode Taluk, Kozhikode District, Kerala by M/s. Sobha Developers Ltd. (File No.371/SEIAA/KL/2611/2014) The 53rd meeting of SEAC held on 25/26-2-2016 had recommended to delist the case as the proponent has not yet responded to letter No.371/SEIAA/EC4/2611/2014 dated 19.01.2015 in which the additional details called for by SEAC in its 33rd and 36th meetings. Before the recommendation to delist could be placed before SEIAA for decision, the proponent on 22.04.2016 submitted the clarifications sought by 33rd and 36th SEAC. The proposal was therefore placed in the 55th meeting of SEAC held on 10 th, 11th and 20th May, 2016. The committee observed that the proposal was recommended to be delisted in the 53rd meeting of SEAC held on 25/26-2-2016 itself and the item can be considered only after a decision of SEIAA on the recommendation.
The recommendation of SEAC for delisting the proposal was on the ground that the proponent failed to respond to the decision of SEAC in its 33rd and 36th meeting for additional details. It is seen that the decision to delist was on default of the proponent, which has since been cured. As of now the reason for the recommendation is non existent as the replay has been obtained, which SEAC has not taken into consideration. The queries were mainly on land and design/site plan related matters. Recommendation of KCZMA has also been received (not required). As per O/M No.22-154/2015 - IA/III dated 10.11.2015, of MOEF, SEAC need consider only a set of 15 specific environmental parameters. The O.M. also states that the SEIAA/SEAC need not focus on the other issues which are normally looked after by concerned local bodies/ State Government Department/ State Pollution Control Board.
Authority decided to bring the above O.M. to the notice of SEAC for appraisal of the case, if there are no other grounds to sustain the earlier decision."
31. It is on that basis of that decision they came to the conclusion that as per the O.M. No. 22-154/2015-1A/III dated 10.11.2015 of MoEF&CC, the State Expert Appraisal Committee (SEAC) need consider only the set [29] of 15 specific environmental parameters provided therein and not in respect of other aspects and the question as to whether the project requires prior clearance under CRZ Notification, 2011 or not is a matter to be considered by the Kerala State Coastal Zone Management Authority (KSCZMA) and not within the purview of the State Expert Appraisal Committee (SEAC) and in view of the fact that the documents required by the State Expert Appraisal Committee (SEAC) having been produced from the project proponent, the State Expert Appraisal Committee(SEAC) was directed to reconsider the issue and take appropriate decision in accordance with law.
32. It is on that basis that the State Expert Appraisal Committee (SEAC) had considered this project in its 60th Meeting held on 28th & 29th July, 2016 as Item No.60.08 and recommend the project as follows:-
"Item No.60.08:
Environmental Clearance for Housing project (Sobha Rio Vista) in Sy. Nos. 159/28B (p) at Calicut, Ferokepetta (Chandhakadavu), Feroke Village and Panchayath, Kozhikode Taluk, Kozhikode District, Kerala by M/s. Sobha Developers Ltd. (File No.371/SEIAA/KL/2611/2014) Project Proponent: Mr. Ramakrishnan Prabhakaran, M/s. Sobha Developers The proposal was appraised by SEAC considering Form I, Form IA, Conceptual plan and the other documents and details provided by the proponent. The proposal was RECOMMENDED for issuance of EC subject to general condition in addition to specific conditions as follows:
1) Dependable yield of well must be reported to SEIAA
2) Mechanism must be installed at the site to prevent the mixing of harvested rain water and waste water.
3) Excavated earth from the site shall be completely used internally. No part of it shall be taken out of the project site.
4) Proper ventilation shall be provided in the vehicle parking area."
33. The dictum laid down in the decision reported in Hanuman Laxman Aroskar & Anr. Vs. Union of India & Ors. reported in 2019 (15) SCC 401 cited supra is not applicable to the facts of this case as [30] that was a case where existence of the reserved forest and the eco- sensitive zone within a distance of 15 Kms was not mentioned in Form - 1A and there was no opportunity for the Expert Appraisal Committee (EAC) to consider the impact of the project namely, establishment of an airport and it is on that basis, the Environmental Clearance (EC) granted was set aside and directed the issuing authority to reconsider the same and pass appropriate fresh orders. But in this case, it will be seen from the discussions of the State Environmental Impact Assessment Authority while granting the Environmental Clearance (EC) it was specifically mentioned that the State Expert Appraisal Committee (SEAC) doubted as to whether this will fall under the CRZ zone and it is on that basis in order to ascertain the same, they inspected the area and came to the conclusion that they want a clarification from the Coastal Zone Management Authority (CZMA) and thereafter, obtained the clarification from the CZMA that the project area is situated beyond 100m from the high tide level of Chaliyar River namely, the non-development zone and as such clearance is not required. So, it cannot be said that the authority had not got an opportunity to consider this aspect. Only after getting the clarification from the CZMA, that the project area where the building is to be constructed will not fall within the prohibited distance, then only they decided to proceed with the same.
34. As regards the other aspect is concerned, it is for the State Environmental Impact Assessment Authority (SEIAA) to consider whether the recommendations issued by the State Expert Appraisal Committee (SEAC) has to be accepted or not even as per the notification. Since, State Environmental Impact Assessment Authority (SEIAA) had decided that the reasons for recommending delisting of the project by the State Expert Appraisal Committee(SEAC) is beyond the scope of the same in view of the guidelines issued by the Ministry of Environment, Forests & Climate Change (MoEF&CC) in this regard they have decided to reject the recommendation and directed the State Expert Appraisal [31] Committee(SEAC) to consider the same and pass appropriate orders and it is on that basis, the State Expert Appraisal Committee(SEAC) had reconsidered the same and recommended the project.
35. The time line provided does not appear to be mandatory in nature and they were intended only for the purpose of quick appraisal of the projects within the time framed and if there is any delay on the part of the authority themselves in implementing the time line that should not affect the interest of the project proponent. Further, even as per the relevant provision extracted above, State Environmental Impact Assessment Authority (SEIAA) can reject the application only after getting explanation from the project proponent and since such an opportunity has been given and having satisfied with the explanation, State Environmental Impact Assessment Authority (SEIAA) had rejected the recommendations of delisting the project and directed the State Expert Appraisal Committee (SEAC) to revisit the same and pass appropriate orders in accordance with law.
36. It is an admitted fact that the State Government had declared certain area as Kadalundi community reserve which according to the learned counsel for the appellant is a protected area and non-mention of the same will have to be taken as a ground for rejection of the same. He had relied on the report submitted by the Divisional Forest Officer, Calicut as Annexure- 17 filed before the Hon'ble High Court of Kerala in that Writ Petition where according to the authorities, since it is falling within 15 Kms from the community reserve as per the EIA Notification, 2006, permission will have to be obtained from the Ministry of Environment, Forests & Climate Change (MoEF&CC).
37. Section 2 (24-A) of Wildlife Protection, Act 1972 defines protected area as follows:-
"Protected area" means a National park, a sanctuary, a conservation reserve or a community reserve notified under Section 18, 35, 36-A, 36-C of the Act."[32]
38. Section 36-C of the Wildlife Protection Act, 1972 deals with declaration and management of community reserve which reads as follows:-
"(1) The State Government may, where the community or an individual has volunteered to conserve wild life and its habitat, declare any private or community land not comprised within a National Park, sanctuary or a conservation reserve, as a community reserve, for protecting fauna, flora and traditional or cultural conservation values and practices.
(2) The provisions of sub-section (2) of section 18, sub-sections (2), (3) and (4) of section 27, sections 30, 32 and clauses (b) and (c) of section 33 shall, as far as may be, apply in relation to a community reserve as they apply in relation to a sanctuary.
(3) After the issue of notification under sub-section (1), no change in the land use pattern shall be made within the community reserve, except in accordance with a resolution passed by the Management Committee and approval of the same by the State Government."
39. It may be mentioned here that a perusal of this provision will go to show that it will act as a buffer zone for the national park or birds sanctuary declared under the Act and it will be treated as a non- development zone.
40. A reading of the notification issued by the State Government in this regard evidenced by Annexure - 13 as the estuary of Kadalundi River consist of mangroves, plants and habitat of migratory birds this was required to be declared as Kadalundi Vallikunnu community reserve for the protection of wildlife and habitat protection.
41. There is no case for the appellant that it is an eco-sensitive zone declared by the authorities. The appellant had also not produced the documents to show that the sanctuary for which this has been provided as a buffer zone as community reserve was a declared wildlife sanctuary under the Wildlife Protection Act, 1972. Only if the national park or the wildlife sanctuary has been declared under the Wildlife Protection Act, 1972, then only the question of appraisal of impact of the project on these areas will arise and in absence of the same non mentioning of the Kadalundi Vallikunnu Community Reserve declared by the Kerala State [33] Government as mentioned above which is situated within 4 Kms of aerial distance and 8 Kms by the road need not have been mentioned by the project proponent in the Form-1 A application. So under such circumstances, non-mention of this in the Form-1 A, application cannot be said to be a suppression of material fact disabling the issuing authority to consider the impact of the project on any eco-sensitive zone or declared national park or wildlife bird sanctuary under the Act.
42. As regards, the existence of mangroves in that area, it is not clear from the observation about the extent of the mangrove and there is no document produced by the appellant to prove that this mangrove area has been shown in the Coastal Zone Management plan for Kerala. Existence of some stray mangroves near the river will not made it as a prohibited zone under the CRZ Notification, 2011 or 2019. Though, it is not included in the Coastal Zone Management Plan as mangroves area since development of mangroves is required as part of marine eco-system and as such the project proponent is directed not to disturb any mangroves seen in that area while proceeding with their construction.
43. As regards the removal of the earth and other aspects are concerned, it will be seen from the documents produced by the project proponent that necessary permissions have been obtained from the Geologist and Mining authorities and revenue authorities for this purpose. As regards the violation of any conditions imposed or CRZ violation etc. the matter is pending before the Hon'ble High Court and this Tribunal need not go into those aspects at this stage while considering the legality of the Environmental Clearance (EC) granted which is under challenge.
44. Even otherwise, if there is any violation, the regulating authorities are at liberty to consider the same independently and if there is any violation found, then they are at liberty to take appropriate action against the project proponent including the revocation of the clearance granted under EIA Notification, 2006. The N value of the area in question [34] and the mechanism to be provided to protect that aspect etc. were considered by the authorities on the basis of the documentary evidence produced as directed by the State Expert Appraisal Committee (SEAC) which were produced by the State Environmental Impact Assessment Authority (SEIAA) before this Tribunal as directed by this Tribunal and also the explanation given by the project proponent regarding the mechanism that is being provided to overcome that aspect so as to enable them to proceed with the project of 87 Mts. height of more than two stories and only thereafter, that recommendations have been made by the State Expert Appraisal Committee (SEAC) and relying on the recommendations, the State Environmental Impact Assessment Authority (SEIAA) has granted the Environmental Clearance (EC).
45. So, there is no need for this Tribunal to interfere with the decision taken by the issuing authority in granting the Environmental Clearance (EC) and the appeal lacks merits and the Environmental Clearance (EC) need not be set aside for the reasons stated by the appellant. The points are answered accordingly.
46. In view of the above findings, there is no merit in the appeal and the appeal fails and the same is liable to be dismissed.
47. In the result, the appeal fails and the same is hereby dismissed. Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
...................................J.M. (Justice K. Ramakrishnan) ...............................E.M. (Shri. Saibal Dasgupta) Appeal No.93/2017, 20th November, 2020. Mn.
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