National Green Tribunal
National Green Tribunal Southern Zone vs Government Of Kerala Rep By Its Chief ... on 1 March, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.10:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 12 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Tribunal on its own motion Suo Motu
based on the news item in Mathrubumi,
Malayam newspaper dated 19.01.2020,
"The removal of debris in Maradu not according
to Norms - National Green Tribunal"
...Applicant(s)
With
Government of Kerala,
Rep. by its Chief Secretary, Secretariat,
Central Stadium, Mahathma Gandhi Road,
Near Junction, Palayam, Thiruvananthapuram
Kerala and Ors.
...Respondent(s)
Date of hearing: 01.03.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Suo Motu by Court.
For Respondent(s): Mr. E.K. Kumaresan for R1, R3, R5.
Ms. Niveditha S Menon represented
Mrs. V.K. Rema Smrithi for R2.
Mr. P.B. Sahasranaman for R4.
ORDER
1. As per order dated 11.08.2020, this Tribunal had considered the report submitted by the Pollution Control Board as well as the State Level Monitoring Committee and thereafter, passed the following order:-
"8. It is also seen from the report submitted through Pollution Control Board that there are certain violations and the Maradu Municipality as well as project proponent did not strictly comply with the directions issued by the monitoring committee appointed by this Tribunal and non-compliance of the Construction and Demolition Waste Management Rules, 2016 and they also submitted that there are certain remnants of the demolition waste found in the nearby Kayal and there is no methodology provided for assessing compensation and they will recover the amount, after getting necessary guidelines and also taking steps to remove remnants seen in the Kayal. It may be mentioned here that the guidelines provided by Central Pollution Control Board in violation cases for assessing Environmental compensation will be strictly applicable to those who are likely to cause pollution as well. Maradu Municipality is also duty bound to monitor the implementation of the Construction & Demolition Waste Management Rules, 2016 when they are giving 'authorization' on the basis of the Management Plan provided by the project proponent for that purpose. It is seen from the report of Chairman, State Level Monitoring Committee and also by Pollution Control Board that necessary registers were not properly maintained by the service provider who are engaged in the demolition process in removing the waste collected due to demolition. Log books were not properly maintained to ascertain how the waste has been disposed of. There is nothing to show whether the authenticity of the particulars given by the project proponent is genuine or not and whether any independent enquiry was conducted by the regulators in this regard as well.
9. So under these circumstances, we direct Pollution Control Board to apply the guidelines provided by the National Green Tribunal on the basis of the guidelines of the Central Pollution Control Board to assess compensation for the violation found by them against the Maradu Municipality as well the project proponent in accordance with law, after giving reasonable opportunity before fixing compensation.
10. Mr. Sahasranaman, learned counsel appearing for fourth respondent - Maradu Municipality submitted that they are strictly adhering to the provisions of the Construction & Demolition Waste Management Rules, 2016 in respect of the disposal of the waste collected. Even if there are any lapses regarding the disposal of debris said to have been done it was due to the shortage of time fixed by the Honourable Apex Court for carrying out the operation.
11. It may be mentioned here that the Apex Court also did not say that they are not bound to follow the rules. They are expected to follow the Rules within the time frame provided by the Apex Court for carrying out the operation especially regarding disposal of the debris collected due to demolition in an environment friendly manner, as provided in the above provisions.
12. So we direct Maradu Municipality also to produce all the necessary documents as to how they have monitored and satisfied with the compliance of the said Rules and the plan provided as required under the Rules by the project proponent. The committee is directed to file further report as per the observations made within a period of two months. Maradu Municipality is also directed to produce documents before the Pollution Control Board and before the committee. The committee can consider the question and submit a detailed report to this Tribunal on or before 28.10.2020. The Chairman State Level Monitoring Committee appointed in O.A. 606/2018 is required to monitor the same and submit an independent report regarding the same.
13. Registry is directed to communicate this order to the members of the committee and also Chairman of the State Level Monitoring Committee appointed in O.A.No.606 of 2018 immediately by e-mail so as to enable them to comply with the direction."
2. The case was posted to 28.10.2020 for consideration of further report. Thereafter, the matter has been adjourned from time to time by successive notifications and lastly, it was adjourned to today by notification dated 23.02.2021.
3. When the matter came up for hearing through Video Conference, Mr. E.K. Kumaresan represented the respondents 1, 3 & 5, Ms. Niveditha S Menon represented Mrs. V.K. Rema Smrithi, the learned counsel appearing for 2 nd respondent and Mr. P.B. Sahasranaman represented 4th respondent.
4. We have received the report dated 22.10.2020 filed by the Chairman, State Level Monitoring Committee, Kerala appointed by the Principal Bench of National Green Tribunal, New Delhi in O.A. No.606/2018 which reads as follows:-
"Additional Report Adverting to my previous report dated 27.07.2020 as well as the report submitted by the Kerala State Pollution Control Board, this Hon'ble Tribunal as per order dated 11.08.2020 has directed the Pollution Control Board to apply the guidelines provided by the NGT on the basis of the guidelines of the Central Pollution Control Board to assess the compensation for the violation found against the Maradu Municipality as well as the project proponent in accordance with law.
The Maradu Municipality was directed to produce all necessary documents to shows as to how they have monitored and complied with the Rules and plan provided as required under the rules of the project proponent.
The Joint Committee headed by the District Collector was directed to submit an independent report.
Though the Maradu Municipality was duty bound to inform me the further action taken in the matter, there was no communication whatsoever from them till date.
However, I came across with a report in Malayala Manorama daily dated 02.09.2020 stating that the portions of concrete structures fallen in the back waters during the demolition of Alfa Serin Tower - II were being removed. Annexure-I is the copy of the said report.
Immediately, I gave a message to the Member Secretary, SLMC to prevail upon the Regional Office, KSPCB, to inspect the site while the debris sweeping operations in the backwaters were going on and to submit a factual report regarding the removal of the debris along with the photographs of the different stages of operation.
On the basis of this the surveillance team of the KSPCB visited the site on 03.09.2020 and had taken Annexure-II series photographs. It was reported that during the visit the removal of debris from the back waters was being carried out using an earth remover as could be seen in Annexure-II series.
As per the report from the Chief Environmental Engineer, Regional Office, KSPCB, Erunakulam, the process of removal continued till 15.09.2020.
Annexure-III Series are the photographs of the removal process taken on different days viz., 04.09.2020, 08.09.2020 and 12.09.2020. It was also reported by the Chief Environmental Engineer, Regional Office, KSPCB, Ernakulam, that the debris removed from the back waters was remaining at the site at the time of inspection on 12.09.2020. It was also reported that the Secretary of Maradu Municipality had not submitted any action plan for the removal of debris till that day.
On 13.09.2020, the surveillance team conducted a thorough search in the back waters with the assistance one Mr. Sugunandhan, a nearby resident and certain other local fish mongers. During the inspection it was revealed that certain portions of a concrete structure fallen near a China net (Cheenavala) were not removed. It was reported that the employees under the contractor had said that three more days would be required to complete the process. Annexure-IV series are the photographs taken 13.09.2020.
Reportedly, the surveillance team inspected the site again on 18.09.2020. At that time, the temporary bund constructed into the back waters for facilitating the removal of debris was seen removed. It was also reported that the remaining portions of the concrete structures were also removed. Annexure-V series are the photographs on 18.09.2020.
On 30.09.2020 I made a local inspection of the site along with the Chief Environmental Engineer, Regional Office, KSPCB and found that the last report of the surveillance team tallied with the actual fact situation. Annexure-VI series are the photographs taken on date of my visit.
Though the reinforced particles fallen into the back waters were seen removed, the mud and clay containing small debris particles are still remaining at the site unattended. Unless, it is removed, it is likely to be washed down to the back waters during heavy rain. Therefore direction may be given to the parties concerned to remove the debris containing clay also from the site.
During my visit, one Mr. Mohammed who is running a small shop near the site complained that the site has become a comfortable place for the gathering of anti-social elements as it is kept open throughout. He added that the site was under lock and key before the present cleaning operations have started. Therefore, the District Administration may directed to see that the site is kept closed to avoid any untoward incidents.
A portion of the mud bund constructed for the present clearing operation was seen protruding into the Kayal. However, without ascertaining the boundary of the site with survey records, it cannot be said whether there is encroachment into the Kayal.
Before parting with this report, it is crucial to point out that the Maradu Municipality has not submitted any details to KSPCB to complete their exercise of assessing compensation as directed by this Tribunal. On 27.09.2020, the Chief Environmental Engineer, Regional Office, KSPCB has forwarded a copy of letter dated 24.09.2020, addressed to the Secretary, Maradu Municipality seeking explanation for non- compliance. A copy of the same is marked as Annexure-VII.
On 21.10.2020, the Chief Environmental Engineer informed that the Secretary, Maradu Municipality in response to Annexure-VII, has sent a letter on 13.10.2020, intimating the completion of debris removal. The letter dated 21.10.2020 from the Chief Environmental Engineer, Regional Office, KSPCB is marked as Annexure-VIII.
It appears that the letter from the Secretary is silent regarding the material particulars asked for by the KSPCB, as directed by this Tribunal. Also, no explanation is forthcoming from the Secretary for the latches on the part of the Maradu Municipality in dealing with the issue.
Annexure-VIII reveals that the Joint Committee would be meeting at 4 P.M. on 22.10.2020 to discuss the future course of action.
Dated this the 22nd day of October, 2020."
5. We have also received the status report submitted by the Chief Environmental Engineer on behalf of the Kerala SPCB dated, 23.10.2020 received on 29.10.2020 along with certain communications as annexures which reads as follows:-
"Status report filed by the Chief Environmental Engineer as per the order dated 11.08.2020 in the above application I, Baiju M.A., 54 years S/o. M.K. Aravindakshan, the Chief Environmental Engineer, Regional Office, Ernakulam also Nodal Officer of the committee constituted by the Hon'ble National Green Tribunal as per the order dated 22.01.2020 in O.A. No.12 of 2020. I know the facts and circumstances of the case. The factual submissions made hereunder are true and corrected to the best of my knowledge, information and belief. In these circumstances it is just and necessary that the Hon'ble Tribunal may be pleased to accept the accompanying additional report on file as submitted by me and on behalf of the Board and it is on humbly prayed in the interest of justice in this case.
1. I may humbly submit that this case has been originally taken "Suo Motu" by the Hon'ble Tribunal, Southern Bench of the basis of the paper report published in Mathrubhumi Daily dated 19.01.2020 under the caption "The removal of debris in Maradu not according to Norms - National Green Tribunal" Monitoring Committee Chairman Justice A.V. Ramakrishna visits Maradu" and posted on 18.03.2020 directing that a Committee shall be constituted in which the District Magistrate, Sub Divisional Magistrate and the Secretary, Maradu Municipality were members in addition to the Chief Environmental Engineer, Regional Office, Pollution Control Board as its Nodal Officer and to file status report.
2. It is respectfully submitted that the Committee had primarily filed its report on 12.03.2020 explaining the status of removal of debris at that time. A separate report was filed by the Chairman, SLMC explaining his views on the activities on 14.05.2020 and directed that updated status report shall be filed within two months of the order and posted the case on 30.07.2020 and which was then adjourned to 11.08.2020.
3. It is respectfully submitted that a report was filed by the Committee on 24.07.2020 explaining the decisions taken during the meeting convened by the committee on 18.06.2020. At this juncture, the Chairman, SLCM had instructed the Chief Environmental Engineer, Nodal Officer of the committee to enquire about a complaint raised by some local public who belong to fisherman community that the Municipality had failed to completely remove the debris from the Kayal. Though the Chairman was intimated about the completion report submitted by the Secretary with respect to removal of debris from all the four sites, he insisted to carry out further enquiry on the specific point raised by the complainant that the debris remains were still there in the backwater and confirmed during the inspection conducted along with the Nodal Officer on 26.07.2020 that the complete removal was not effected. Hence the Nodal Officer himself individually intimated the Hon'ble Tribunal through a report dated 28.07.2020 about the actual situation experienced there during the inspection conducted along with the Chairman, SLMC mentioned above. It may humbly be noted that this report was filed individually by me since the Hon'ble Tribunal specifically allowed through the order dated 14.05.2020 that "Pollution Control Board is also at liberty to file independent report as well so as to enable us to assess the present status." It may also imported to note that the Chairman, SLMC also submitted his findings vide the report dated 27.07.2020.
4. It is respectfully submitted that the Hon'ble Tribunal during hearing convened on 11.08.2020 stated and directed as follows:
"It is also seen from the report submitted through Pollution Control Board that there are certain violations and the Maradu Municipality as well as project proponent did not strictly comply with the directions issued by the monitoring committee appointed by this Tribunal and non-compliance of the Construction and Demolition Waste Management Rules, 2016 and they also submitted that there are certain remnants of the demolition waste found in the nearby Kayal and there is no methodology provided for assessing compensation and they will recover the amount, after getting necessary guidelines and also taking steps to remove remnants seen in the Kayal. It may be mentioned here that the guidelines provided by Central Pollution Control Board in violation cases for assessing Environmental compensation will be strictly applicable to those who are likely to cause pollution as well. Maradu Municipality is also duty bound to monitor the implementation of the Construction & Demolition Waste Management Rules, 2016 when they are giving 'authorization' on the basis of the Management Plan provided by the project proponent for that purpose. It is seen from the report of Chairman, State Level Monitoring Committee and also by Pollution Control Board that necessary registers were not properly maintained by the service provider who are engaged in the demolition process in removing the waste collected due to demolition. Log books were not properly maintained to ascertain how the waste has been disposed of. There is nothing to show whether the authenticity of the particulars given by the project proponent is genuine or not and whether any independent enquiry was conducted by the regulators in this regard as well.
So under these circumstances, we direct Pollution Control Board to apply the guidelines provided by the National Green Tribunal on the basis of the guidelines of the Central Pollution Control Board to assess compensation for the violation found by them against the Maradu Municipality as well the project proponent in accordance with law, after giving reasonable opportunity before fixing compensation.
Mr. Sahasranaman, learned counsel appearing for fourth respondent - Maradu Municipality submitted that they are strictly adhering to the provisions of the Construction & Demolition Waste Management Rules, 2016 in respect of the disposal of the waste collected. Even if there are any lapses regarding the disposal of debris said to have been done it was due to the shortage of time fixed by the Honourable Apex Court for carrying out the operation.
It may be mentioned here that the Apex Court also did not say that they are not bound to follow the rules. They are expected to follow the Rules within the time frame provided by the Apex Court for carrying out the operation especially regarding disposal of the debris collected due to demolition in an environment friendly manner, as provided in the above provisions.
So we direct Maradu Municipality also to produce all the necessary documents as to how they have monitored and satisfied with the compliance of the said Rules and the plan provided as required under the Rules by the project proponent. The committee is directed to file further report as per the observations made within a period of two months. Maradu Municipality is also directed to produce documents before the Pollution Control Board and before the committee. The committee can consider the question and submit a detailed report to this Tribunal on or before 28.10.2020. The Chairman State Level Monitoring Committee appointed in OA606/2018 is required to monitor the same and submit an independent report regarding the same.
The Registry is directed to communicate this order to the members of the committee and also Chairman of the State Level Monitoring Committee appointed in O.A.No.606 of 2018 immediately by e-mail so as to enable them to comply with the direction."
It is respectfully submitted that the Nodal Officer has issued a letter to the Secretary, Maradu Municipality on 24.09.2020 pointing out the non-compliance of the direction of the Hon'ble Tribunal regarding the submission of the action plan/action taken report about the removal and transfer of debris from Kayal and reminding to submit the consolidated report on the actions completed. In response to the letter, the Secretary, Maradu Municipality had submitted a letter dated 13.10.2020 intimating the completion of the removal of debris, the main content of which is as follows:
"The measures to redress the environmental issue and related matters in connection with the demolition of flats-apartments had been adopted within the purview of Maradu Municipality itself. At present, the works in connection with the removal of debris has been completed. It is also hereby reported that, the service providers have completed the removal of debris as per the agreement entered with maraud municipality and the municipality has given completion certificate to them in this regard.
A copy of the letter submitted by the Secretary, Maradu Municipality is produced within and marked as Annexure A.
5. It is respectfully submitted that though the committee members were intimated regarding the importance of convening a meeting of the committee to discuss about the actions already completed to remove all the debris from the demolition sites especially from the Kayal, the restrictions imposed due to lockdown and the widespread of COVID-19 during the last couple of months restricted the committee in convening meeting before the allowed time of two months from the date of the order i.e., 11.10.2020 by the Hon'ble Tribunal. However, the following specific points are identified after visiting the site on 03.09.2020 and 12.09.2020 by the Surveillance team of the Pollution Control Board and on 30.09.2020 along with the Chairman, SLMC.
i) Though the Secretary, Maradu Municipality was asked to submit action plan for the removal of debris remains after this has been identified by the Chairman, SLMC during his visit on 30.09.2020, this has not been submitted prior to removal of debris from Kayal and hence the disposal sites could not be identified in advance.
ii) Total quantity of debris removed from the Kayal after 18.06.2020 could not be verified as no logbook were kept there or not produced before the Pollution Control Board or before the Committee as directed by the Hon'ble Tribunal.
iii) Though the Secretary, Municipality was specifically asked to report about the disposal of dredged debris and mud as seen during the visit of the Chairman, SLMC, no such details are submitted till date before the Pollution Control Board. It is also important to note that the committee was convened on 22.10.2020 to discuss the future course of action to be initiated in this case and to finalize the report of the committee. Since some more corrections are suggested by the Secretary, the report should be finalized after redrafting it and getting it approved by each member of the Committee.
Copy of the letter dated 12.09.2020, report dated 02.10.2020 submitted by the Chief Environmental Engineer, Kerala State Pollution Control Board (Nodal Officer) before the Chairman, SLMC and attendance sheet of the meeting convened on 22.10.2020 are produced herewith and marked as Annexure B, C & D respectively.
6. I may humbly submit that though the Board had instigated action to obtain specific advice/guardian from CPCB on imposing environmental compensation for the violations committed by the Secretary, Maradu Municipality if any by way of not submitting periodical reports viz., Action Plans, Data on removal and disposal of steel as well as concrete debris, replies to the queries raised by the Board etc., no such specific guidelines or model calculations are obtained or available for the same and is not found to be practiced anywhere. On receiving such a document the shortfalls/violations committed the Maradu Municipality if any on complying with specific provisions of the said Rules i.e., the C&D Waste Management Rules 2016 will be addressed accordingly.
7. It is also respectfully submitted that, as the Chief Environmental Engineer on behalf of the Board and as the Nodal Officer of the committee I have carried out the duties assigned delegently to ensure all the provisions of the Constructions & Demolition Waste Management Rules, 2016 to the maximum extent possible and the shortfalls if any will be addressed after discussed in detail during next State Level Monitoring Committee forum.
Dated this the 23rd October, 2020."
6. We have also received another report dated 27.10.2020 received on 31.10.2020 filed by the Joint Committee which reads as follows:-
"Status Report filed by the Committee as per the Order dated 11.08.2020 in the above application We, the committee constituted by the Hon'ble National Green Tribunal as per the order dated 22.01.2020 in O.A. 12 of 2020. We know the facts and circumstances of the case. The factual submission made hereunder are true and correct to the best of our knowledge, information and belief. In these circumstances, it is just and necessary that the Hon'ble Tribunal may be pleased to accept the accompanying additional report on file as submitted by the committee and it is so humbly prayed in the interest justice in this case.
We may humbly submit that this case has been originally taken "Suo Motu" by the Hon'ble Tribunal, Southern Bench on the basis of the paper report published in Mathrubumi Daily dated 19.01.2020 under the caption "The removal of debris in Maradu not according to Norms -
National Green Caluclations are obtained or available for the same and is not found to be practiced anywhere. On receiving such a document the shortfalls/ violations committed the Maradu Municipality if any on complying with specific provisions of the Said Rules i.e, in the C&D Waste Management Rules 2016 will be addressed accordingly.
9. It is also respectfully submitted that we the committee had carried out the duties against dilegently to ensure all the provisions of the Construction & Demolition Waste Management Rules, 2016 to the miximum extent possible and the shortfalls if any will be addressed after discussed in detailed during Hon'ble State Level Monitoring Committee forum.
Dated this the 27th October, 2020."
7. It is seen from the reports that necessary details which were called for have not been furnished by the Maradu Municipality to the Pollution Control Board.
8. Further, as per order dated 11.08.2020, this Tribunal had directed the committee to assess the environmental compensation for violation, if any, committed in respect of Construction and Demolition Waste Management Rules,2016. But the report of the Joint Committee shows that there was no guideline given by the CPCB to whom the SPCB had addressed.
9. However, this Tribunal had reiterated in the order dated 11.08.2020, that guidelines provided as per the directions of the Tribunal for violations committed can be considered for the purpose of assessment of compensation in this case also, but no such exercise was seen done by the committee.
10. Further, it is seen from the report of the State Level Monitoring Committee that certain bunds have been constructed and there are certain protrusion existing there. But without conducting a proper survey, it may not be possible to ascertain as to whether there was any encroachment in the Koyal. Inspite of that, the committee comprising of the District Collector, has not taken any steps to consider this aspect and file a detailed report as the survey etc. will have to be conducted by the Revenue Department to ascertain this aspect.
11. It is also seen from the records that the Municipal Secretary, Maradu Municipality has filed the report before the office of the Advocate General which was produced by the standing counsel for the State of Kerala which reads as follows:-
12. So considering the circumstances, we feel that the committee as well as the KSPCB are directed to file further reports regarding the things mentioned above and the Maradu Municipality is directed to co-operate with the committee and KSPCB by furnishing the details which they sought for and also for compliance of the Construction and Demolition Waste Management Rules,2016 by the service provider and if not, what is the action taken by them in this regard.
13. When this pointed out, the learned counsel appearing for the Maradu Municipality submitted that they will instruct the municipal authorities to abide by the direction issued by this Tribunal and co-operate with the KSPCB as well as the committee to file their report as directed by this Tribunal.
14. However, the KSPCB as well as the committee are directed to consider these aspects and file a further status report as to whether everything that has been directed by the State Level Monitoring Committee and also by this Tribunal has been complied with and anything survives in the matter so as to culminate the proceedings by this Tribunal by a proper direction.
15. The State Level Monitoring Committee is also directed to consider this aspect and submit a further report to this Tribunal as to whether any further action needs be taken in this regard.
16. The Joint Committee, Maradu Municipality, State Level Monitoring Committee and Kerala State Pollution Control Board are directed to file their independent reports as directed by this Tribunal on or before 12.04.2021 by e-filing in the form of Image PDF along with necessary hardcopies to be produced as per Rules.
17. The Registry is directed to communicate this order to the members of the Joint Committee, Maradu Municipality, the Chairman, Kerala State Level Monitoring Committee and the Kerala State Pollution Control Board by e-mail immediately so as to enable them to comply with the direction.
18. For consideration of further report, post on 12.04.2021.
Sd/-
.............................................J.M. (Justice K. Ramakrishnan) Sd/-
....................................E.M. (Shri. Saibal Dasgupta) O.A. No.12/2020 01st March, 2021. Mn.