National Green Tribunal
Thomas Lawrence vs State Environment Impact Assessment ... on 30 May, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Appeal No.54 of 2021(SZ)
&
I.A. No.207 of 2021 (SZ)
IN THE MATTER OF:
Thomas Lawrence
GV 79, Divisional Office Road,
Near PMG Junction,
Thiruvananthapuram
Kerala - 695033
...Appellant(s)
With
1. State Environment Impact Assessment Authority, Kerala
Through its Chairman
KSRTC Bus Terminal Complex
4th Floor, Thampanoor,
Thiruvananthapuram - 695001
2. Union Of India
Through the Secretary, MOEF&CC
Ministry of Environment and Forests &
Climate Change,
Jor Bagh Road, Ali Ganj,
Lodi Colony,
New Delhi - 110003
3. State Of Kerala
Through its Chief Secretary
Kerala Government Secretariat
Central Stadium, MG Road,
Near Junction Palayam,
Thiruvananthapuram - 695001.
4. Dragonstone Realty Pvt. Ltd.
Through its Chief Executive Officer
5A3, Artech City Kalyani
Vazhuthacaud, Thycaud
Thiruvananthapuram - 695014
5. Winterfell Realty Pvt. Ltd.
Through its Authorised Signatory
Bhub, Cardinal Cleemis Centre
for Innovations
TC No. 11/2402-3,
Mar Ivanos Vidya Nagar,
Nalanchira
Thiruvananthapuram - 695015.
Page 1 of 30
6. Dorne Realty Pvt. LTD.
5A3, Artech City Kalyani Vazhuthacaud,
Thycaud
Thiruvananthapuram - 695014.
7. M/S Technopark
Through its Chief Executive
Officer,
Park Centre
Technopark Campus Thiruvananthapuram - 695581.
8. DISTRICT COLLECTOR
Civil Station
Kudappanakunnu
Thiruvananthapuram - 695043
9. REVENUE DIVISIONAL OFFICER
1st floor,
Kudappanakunnu,
Thiruvananthapuram - 695043
10. MINOR IRRIGATION DIVISION
Through the Executive Engineer
Jalavinjanabhavan,
Samithy Nagar,
Ambalamukku,
Thiruvananthapuram - 695044
11. DEPARTMENT OF INFORMATION TECHNOLOGY
Through its Secretary
Government of Kerala,
Central Stadium
Mahatma Gandhi Road,
Near Junction Palayam,
Thiruvanathapuram - 695001.
...Respondent(s)
For Applicant(s): Mr. Ritwick Dutta along with
Mr. G. Stanly Hebzon Singh.
For Respondent(s): Mr. S. Saravanan represented
Mrs. Vidyalakshmi Vipin for R1.
Mrs. Me. Sarashwathy for R2.
Mr. G. Vignesh represented
Mr. E.K. Kumaresan for R3 & R8 to R10.
Mr. P.B. Sahasranaman along with
Mr. S. Sai Sathya Jith for R4 to R6.
M/s. Rashmi K.V. for R7 & R11.
Judgment Reserved on: 28th November 2022.
Judgment Pronounced on: 30th May, 2023.
Page 2 of 30
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Justice Pushpa Sathyanarayana, Judicial Member
1. This appeal is directed against the issuance of the Environmental Clearance dated 06.03.2021 issued by the 1st respondent, SEIAA, Kerala in favour of the 4th respondent for their proposed expansion of mixed land use project at Technopark phase-3, Campus, Attipra Village, Thiruvananthapuram Taluk. The mixed land used building construction project is on 3.937 ha., with 2,71,164.4 sq.m of built up area. The approved built up area is 1,33,491 sq.m with additional built up area of 1,37,673.4 sq.m.
2. According to the appellant, the impugned Environmental Clearance has been obtained by (i) suppression of material facts in Form-I and IA and with the faculty EIA report which has various deficiencies as there is no cumulative impact assessment, despite an undertaking before this Tribunal given in an earlier proceedings.
3. Secondly, the proposed expansion is on the Veli-Akkulam wetlands resulting in the reclamation and large scale destruction of a 10 acres pond and a wetland system associated with it.
4. Thirdly, it is alleged that SEAC as well as SEIAA have not independently applied their mind before issuance of the Environmental Clearance as wetlands cannot be used for construction project.
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5. The appellant, who claims to be an active environmentalist concerned with the deteriorating conditions of wetlands in Thiruvananthapuram, particularly, Veli-Akkulam wetlands has alleged that the impugned Environmental Clearance has been granted in violation of the EIA Notification, 2006. The present phase of the project is concerned with the expansion of Technopark Phase- 3 Campus in Thiruvananthapuram. The total proposed expansion is 3.93 ha., in various survey numbers in Attipra Village and taluk.
6. It is stated that the lands in question are not only wetlands but they are covered under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 and the Wetlands(Conservation and Management) Rules, 2017. According to the appellant, the Veli- Akkulam wetland system on which the project site is located has been identified and categorised as wetland in the National Wetland Atlas and he has also marked the wetland atlas in support of his allegations. He also draws support from the letter dated 26.12.2017 written by the CEO of the Technopark to the Local Level Monitoring Committee of Trivandrum Corporation stating that the land at the Phase -3 site was to be utilized for a public purpose and that the lands in question are classified as 'Nilam' or wetlands. The said letter is also filed by the appellants.
7. The Agricultural Officer also had submitted a report to the Revenue Divisional Office, Trivandrum on 03.01.2018 apprising him the status of the land and requesting them to immediately issue a stop work memo. No cumulative impact assessment as per the undertaking given to the National Green Tribunal by the SEIAA in Page 4 of 30 Original Application filed by one Sanjeev SJ in O.A. No. 71 of 2019. Having given a specific undertaking to have a cumulative impact assessment, the same was not conducted by the SEIAA. Apart from the standard TOR issued, the study also included the cumulative impact of the proposed project on the structures nearby, namely, the impact on the traffic, water and electricity supply and liquid and solid waste generation and its treatment and disposal.
8. Where the cumulative impact assessment was mandatory and having not done the same, the EIA report alone is not sufficient for grant of Environmental Clearance. The SEIAA failed to see that the data compiled in the EIA study is limited to very general parameters of air environment, noise environment, land environment, water ecological and socio-economic environment without any category dealing with the impact on the wetlands. The EIA report has not assessed the impact on specific water bodies in the area.
9. The next ground on which the Environmental Clearance is assailed is intriguing. The 4th respondent, project proponent has made application for the proposed expansion on 01.10.2018. This application was made at a point in time where no Environmental Clearance was granted to the project proponent and no 'consent to establish' was given by the State Pollution Control Board for the Phase-I. The Environmental Clearance for the phase-I was issued only on 07.06.2019. Even before the 1st proposed project was granted with the Environmental Clearance, an Environmental Clearance was sought for the proposed expansion in October, 2018. This amounts to a deliberate suppression of such critical information Page 5 of 30 which would vitiate the entire EIA process that has been undertaken for the project in question.
10. It is also alleged that the 4th respondent had obtained Environmental Clearance for the proposed project by misrepresenting that it is an IT company whereas it is actually a real estate developer engaged in the work of developing shopping malls. The EIA report and EMP submitted in March, 2020 by the project proponent are highly deficient and faulty in many aspects.
11. On the above grounds, the appellants have sought for quashing impugned Environmental Clearance dated 06.03.2021 granted to the 4th respondent and further sought for an direction for cumulative impact assessment to be carried out of the present project on the surrounding structures and a fresh appraisal be carried out based on the EIA report.
12. The SEIAA, who is the 1st respondent, has filed its reply stating that as per the records, the 4th respondent submitted an application for Environmental Clearance on 20.03.2020 for the proposed expansion of the mixed land use, master plan project of M/s Dragonstone Realty Pvt. Ltd. at Technopark Phase-III campus in the survey numbers mentioned therein in village Attipra, Thiruvananthapuram Taluk.
13. The TOR for the proposed project was issued in the 102 nd SEAC meeting, the proposal was placed in the 112th SEIAA meeting wherein the Committee directed the project proponent to submit the copy of the EIA report and accreditation details of the consultants Page 6 of 30 and laboratories. Till the 115th SEAC meeting which was held between 3rd and 5th November, 2020 the project proponent had not produced the reports sought for. The 116th meeting was between 2nd and 7th December, 2020, the project proponent's consultant had made a presentation thereafter a field inspection was directed to be conducted on 18.12.2020. The field inspection report was discussed in the meeting and further directed the project proponent to submit the various documents which are as follows:
a. The rerouting of Thodu to Thettiayar has permission from Water Resources Department. The proponent should give an affidavit saying that necessary permission from the Revenue Department will be obtained before proceeding with civil works for rerouting. b. A scientific write up on the environmental impact of continuous pumping on the ground water and its remedial measures should be submitted.
c. Revised storm water management plan considering very shallow water table during monsoon period.
d. Clarify whether assured 2.5ml water supply to Technopark includes 1.5 mld water demand of Technopark phase-III also.
e. Site specific disaster management plant should be submitted. f. Consent from Technopark allowing the proponent to carry out rainwater harvesting in the storm water collection pond. g. Capital cost of the waste management part seems to be inadequate and to be revised. Details of individual STP should be furnished. Reduced ground level and post monsoon reduced water level of individual STP locations have to be furnished. MBR technology should be used for liquid waste treatment. Clarification on mixing septage and sewage for treatment is required.
h. STP should be housed at the ground level.
i. Accommodating the one tree of every 80m2 may not be possible to be implemented in the lease area. So along with the green belt development, an additional area outside may be selected for raising a green belt or Miyawaki forest.
j. Details of solar power harnessing.
k. Necessary permission from KSEB regarding the Extra High-Tension Line passing near the NW corner of the lease area. l. An undertaking from Technopark allowing the proponent to use water from storm water collection pond.
m. Details of new drain to be constructed on the eastern boundary by Technopark.
14. They examined the additional documents filed by the project proponent and decided to recommend the issuance for total built up of 2,71,164.4 sq.m subject to the specific conditions:
a. Ensure uninterrupted overflow of storm water to the nearby canal.Page 7 of 30
b. Compensatory afforestation/Miyawaki forest may be developed within first two years of the project.
c. Maximum non-conventional energy resource potential must be tapped to meet the energy requirement of the project.
15. The said proposal of SEAC was placed before the SEIAA on 18 th and 19th February, 2021 and decided that the authority noted that M/s Dragonstone Realty Pvt. Ltd had obtained Environmental Clearance for 1,33,491 sq.m from MoEF&CC already as per Environmental Clearance dated 07.06.2019 Hence, out of the total area of 2,71,164.4 sq.m the authority need to issue Environmental Clearance for the balance area of 1,37,673.4 sq.m. Accordingly, the SEIAA issued the Environmental Clearance for 07 years based on the recommendations of the SEAC for the balance built up area of 1,37,673.4 sq.m subject to specific and general conditions mentioned therein.
16. Regarding the cumulative study which was not conducted as alleged by the appellant before the issuance of the Environmental Clearance, it is stated by the SEIAA that cumulative assessment has been done and the project proposal underwent the scoping exercise through SEAC, Kerala. The scope of the study was approved through the TOR and the TOR was approved by SEAC and SEIAA, Kerala. The SEIAA has specifically stated that the study included the cumulative impact of the project on the structures nearby, namely, impact on the traffic, water and electricity supply, liquid and solid waste generation and its treatment and disposal. Thus, the 1 st respondent, SEIAA, stated that the Environmental Clearance was issued only in accordance with law and there is no reason to set aside the same.
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17. The Ministry of Environment, Forests & Climate Change (MOEF&CC), who is the 2nd Respondent, stated in its reply that under the provisions of EIA Notification, 2006 Industrial Parks are covered under entry 7(c) of the Schedule to the EIA Notification, 2006. The 2nd respondent has stated that the Environmental Clearance to the project of the 4th respondent for expansion of its Mixed Land Use (Master Plan) project in Technopark Phase-3 Campus was granted by the SEIAA (Kerala) wherein the total proposed expansion of area for the project is 3.93 ha, in Village Attipra and the project in question was required to take EC from the SEIAA (Kerala) as the proposed project falls under category 'B' project. The matter was also examined by the Ministry that, whether the project in question falls under category 'A', which are appraised at the central level. It has been observed that the proposed expansion does not house any category 'A' project necessitating appraisal at Central Level as per the provisions of EIA notification 2006, as amended. It is also submitted that no such proposal has been received in the ministry for appraisal.
18. The respondent nos. 3, 7 and 11 have filed their reply statement through the Principal Secretary to Government, Electronics and Information Technology Department. It is claimed by them that the Government of Kerala with a view to expand the techno-park business activities had acquired lands including the subject lands vide notification dated 12.12.2003 u/s 17 of the Land Acquisition Act 1894 invoking urgency clause. The notification u/s 4 (1) of the Land Acquisition Act was issued on 01.10.2005 acquiring the lands for the public purpose of Phase-III expansion of techno- Page 9 of 30 park. In the said notification itself the land parcels were described as Nilam (Paddy field), Nilam Nikathu Purayidam (Reclaimed Paddy field) or Purayidam (Dry land).After acquisition of the lands as stated above and after due appraisal of the nature of the lands and the fact that the lands are not wet lands but are only paddy lands which have not been used for any paddy cultivation for long number of years and that the said lands are required for Phase-III expansion of Techno-Park, which is a public purpose, the Government of Kerala in exercise of its powers u/s 10 of the Kerala Conversion of Paddy Land and Wetland Act 2008 /(Amendment) Act of 2018, issued a notification exempting the lands in question from the operation of the said Act so as to enable construction activities to be carried on in the said land. It was further stated that the said notification has become final and has not been questioned by any one before any Court of law or authority. It is also submitted that the project site upon which the project proponent proposes to do construction is not wetland but paddy land as duly reflected in the revenue records, data Bank register notified by the Government as per EO Gazette No.3215 dated 27.12.2019 and reiterated that no wetland is involved in Phase-III of the project.
19. It is also submitted that Veli-Akkulam backwaters consists of two lakes and connected canal. The said Akkulam Lake is 3 kms away from the project site while Veli lake is another 3 kms away. In the National Wetland Atlas, Veli Akkulam wetland is confined to a small lake which is about 3 kms from the project site and the project site is not marked as a wetland as per the classification. That apart, the Government of Kerala has notified the data Bank as EO Gazette No.3215 dated 27.12.2019 wherein no land parcel coming within Page 10 of 30 techno-park Phase-III has been included in the category of wetland. In the ENVIS newsletter, Akkulam or Veliis mentioned as one of the estuaries in Kerala State. Even though in the ENVIS report, it is mentioned as an estuary, the area specified is confined only to the water spread area of Akkulam lake which is far away from the project site and the lands coming within the project area do not fall within the said alleged estuary.
20. It is also submitted that the letter dated 26.12.2017 addressed to the Chairman, Local Level Monitoring Committee of Trivandrum Corporation, recommendation to convert Nilam for public purpose was sought. The reference to Nilam was only as paddy land and not as wetland and that no permission for reclamation of any protected wetland as alleged was sought as there is no such area within the campus on land and even as per Revenue Records. It is reiterated that even in the land acquisition proceedings, the land has been referred to as nilam (paddy field), Nilam Nikathu Purayidam (Reclaimed Paddy land) and Purayidam (Dry land). No parcel of the land which was acquired and which now forms part of project Phase--III was wetland at any point of time. As per the report of the first visit of the Attipra Agricultural Officer, it was recorded that the project land had only a small canal of approx. 10 feet width and the flow in it was obstructed by waste dumped in it and there were grown up coconut trees in the area and coconut trees were headless and unproductive. The said observations clearly established that the lands in question were abandoned paddy lands and were already reclaimed by planting coconut trees and even the said coconut trees are not productive. The report does not point out any productive cultivation or pristine ecology in the project Page 11 of 30 land. There has been no cultivation whatsoever in the acquired land for the last more than 20 years. Even in and around Techno- Park Phase--III campus there are no lands which are being cultivated as paddy land. It is also claimed that the satellite imageries from 2003, 2006 & 2011 clearly shows that the project land had no water body coming within the definition of a lake.
21. The resolution said to have been passed by Attipra Ward Council that action should be taken for revival and restoration of wetland to its original condition is of no consequence since there is no wetland and the lands were only paddy lands, conversion of which has been permitted by the Government under the provisions of the Kerala Conservation of Paddy Land and Wetland Act 2008 (as mended by the Act of 2018). The information which was given referring to the lands as marshy wetlands is nothing but a general translation of the term 'Nilam' used in the Revenue Records. As such the contentions of the appellant by referring to the judgement of the Hon'ble Supreme Court of India in the cases referred to therein are all misconceived, untenable and deserve to be rejected by this Hon'ble Tribunal. It is also stated that even though in the Gazette notification No. 3215 dated 27.12.2019 no part of Phase-- III lands was shown as wetlands, in a notification which was published as an addendum notification No. E16/51965/2017 dated 22.01.2021 vide EO Gazette No. 342 dated 28.01.2021, land parcels which had already been exempted under G.O. (Ms.) No. 40/2018 dated 03.02.2018 by the Government were included in the category of wetland. As the same was erroneous and incorrect, this Respondent had submitted an application under the provisions of Kerala Paddy Field and Wetland Conversion Rules 2018 Page 12 of 30 for correction of the data Bank vide this Respondent's letter dated 22.04.2021. Pursuant to the same the RDO visited the lands and on inspection, being satisfied that the facts put forward by this Respondent were correct, issued appropriate proceedings dated 04.08.2021 correcting Annexure-11 to the said notification. As such, it is submitted that there is no wetland within the project Phase-III.
22. It is also submitted that as per G.O. (Ms.) No. 26/2014/ITD dated 10.10.2014 and G.O. (Ms.) No. 33/2015/ITD dated 26.08.2015 Government had accorded sanction to lease out 19.73 acres of land to one or more subsidiaries of M/s Taurus Investment Holdings LLC (TIH) or THR India Ventures LLC (THR) wherein TIH/THR separately or jointly were holding controlling shares. Accordingly a framework agreement (FWA) dated 30.09.2015 was executed amongst Techno Park, TIH and THR as stipulated in the above referred Government orders. Pursuant thereto out of 19.73 acres of land 10 acres of SEZ land and 2.12 acres of non-SEZ land had been earmarked for IT/ITES activities. 07.61 acres of land which is being developed by the 4th Respondent herein viz. M/s Dragon Stone, was earmarked for support facilities and amenities for the IT/ITES components of the project. As such the purpose for which the land has been given to the 4th Respondent herein is very much a public purpose and the contentions to the contrary as though it is to serve private interest is false, incorrect and deserves to be rejected. It is reiterated that the lands have been developed pursuant to the permission granted by the Government clearly holding that the lands are paddy lands which have not been used for paddy cultivation for several years and it was necessary in public interest to develop the same. There is Page 13 of 30 no destruction of 10 acres pond as alleged and the said issue does not remain open either as alleged by the appellant.
23. It is further submitted that Veli-Akkulam is nowhere near the project location. Techopark Phase-III site is 3.5 kms North of Veli- Akkulam Lake with several large scale developments fully developed between them. The significant distance between Technopark Phase- III site and Veli-Akkulam is substantiated beyond any doubt from the coastal zone management plan of Tiruvananthapuram District which clearly shows that the survey numbers of the lands demarcated for the SEZ site of the answering Respondent is nowhere even remotely close to Veli-Akkulam. It is also submitted that the joint verification committee with expert members of MOEF and CC, Regional Office, Bangalore and SEAC visited the site, verified the documents and arrived at a proper conclusion in their report that the area was a paddy field. The subject land was never classified as wetland and the same is further demonstrated beyond doubt by the identification of marking of areas that are wetlands, Tiruvananthapuram in the National Wetland Atlas. Perusal of the aforesaid documents would clearly show that no extent of property coming within the project site is classified as wetlands. All the lands have proper title deeds, BTR Tax paid receipts are also available for the said lands which clearly indicate that the lands are all paddy lands and the lands have been acquired by the Government under the Land Acquisition Act 1984 in which proceedings also the lands have been referred to as abandoned paddy lands or abandoned lands.
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24. The repeated attempt to stall the project somehow or other clearly shows the intention of the appellant is not genuine but smacks of ulterior motives and malafide intentions and that there is no question of mass destruction of 10 acre pond along with wetlands as alleged by the appellants. As already submitted there is no 10 acre pond in the project site. Further, the issues which were raised by the appellant and others with regard to the consideration of the application for EC earlier ultimately culminated in a direction by this Hon'ble Tribunal leaving it open to the authorities to consider the pending application and process the same. In the light of the said it was issued by this Hon'ble Tribunal in O.A. No.71/2O19, and execution application which was subsequently filed by the appellant herein in E.A. No. 39/2019, the matter was carried to the Hon'ble Supreme Court by way of Civil Appeal No. 2535/2020 and the Hon'ble Supreme Court by order dated 29.t0.2020 had observed that the execution petition itself had become infructuous since pursuant to the NGT's order dated 19.12.2018, orders were passed by the District Collector on 30.04.2019 and if at all the only avenue left for the appellant to challenge the said order dated 30.O4.2019 before the appropriate authority in accordance with law. The pendency of the revision before the Government would not come in the way of SEIAA or SEAC in processing the application for EC and granting same. As such all the contentions raised by the appellant deserve to be rejected.
25. It is also claimed that; a) there is no concealment of any material information by the project proponent as regards the existence of wetlands in project site as alleged and the grounds in that regard deserves to be rejected; b)the appeal and the contentions in the Page 15 of 30 Memorandum of Appeal proceed on the assumption that the lands in question are wetlands. The same is factually incorrect, and there is no material in support of the said contention. on the other hand the Revenue Records show that the lands are not wetlands and they are only paddy fields, which were duly permitted by the Government to be used for construction activity; c) the contentions as though there has been non-consideration of material facts, there has been non application of mind and the discretion has been improperly exercised are all false, incorrect and deserve to be rejected.
26. The main contention of the SEIAA - Kerala is that the SEIAA /SEAC
- Kerala was not functional upon the cessation period and the reconstitution of the new SEIAA was under consideration by the MoEF&CC and during that period, the Project Proponent had approached the MoEF&CC for construction of 1,13,493 Sq.m. under Schedule 8 (a) of the EIA Notification. The said proposal was recommended for consideration of the grant of EC in its meeting held between 2nd-4th July 2018 viz., the 32nd meeting of the EAC and the EC was granted vide EC Order No. F.No.21-48/2018IA-III dated 07.06.2019.
27. It is further stated that the SEIAA/SEAC - Kerala was reconstituted by the MoEF&CC on 19.09.2018 for a period of 3 years and the project proponent proposed to expand the project and made an application on 28.12.2018 for a grant of ToR for the entire built-up area of 2,71,164.4 Sq.m. under the B-Category of the EIA Notification, since the built-up area is more than 1,50,000 Sq.m. The SEAC has considered the project as Item 8 (b) - Township and Area Development Project and approved the standard ToR for the Page 16 of 30 EIA study as per the procedure for Item 8 (b) with a specific condition to conduct a study on cumulative impact on the proposed project on the structures nearby.
28. It was contended that the project was appraised by the SEAC as per the procedure stipulated under Item 8(b) following due process. It was also stated that the SEIAA had the authority to issue EC for the entire project, but they have granted the EC for the area of 1,37,673.4 Sq.m. under Item 8(b), taking into account the EC granted by the MoEF&CC for an area of 1,33,491 Sq.m. and contended that "There is no prohibition under the EIA Notification 2006, to consider the project either under Schedule 8 (a) or 8(b) of the Notification, irrespective of its size/capacity, since it is the duty of the authority to see the impact of the project. Further, at the time of application for ToR, no construction was commenced by the Project Proponent since there was only a recommendation by EAC of MoEF. Hence, the SEIAA has a power to consider the two phases of project into one by considering the proposed impact of the project on the environment. Even, the SEIAA/ SEAC had carefully considered and scrutinized the application of the project proponent and specifically directed the project proponent to conduct EIA study and study on the cumulative impact of the project."
29. The 4th Respondent - M/s. Dragonstone Realty Pvt. Ltd has stated that the main allegations levelled by the appellant pertains to the apprehension of destruction of wetlands of Kerala, especially Veli-Akkulam wetlands, the name which is the creation of the appellant. The appeal memorandum has stated distorted versions of facts and the law on the subject and the documents produced are Page 17 of 30 wrongly described. In order to understand the disputes, it is very much essential to understand the law intended for the protection of wetlands the subject prevailing in India. It seems that the appellant does not know the difference between fallow land and wetland. First of all, it is submitted that the 5th respondent is not a necessary party in this appeal. None of the land in possession of this 5th respondent are matters of concern in the said Environmental Clearance dated 06-03-2021. The 5th respondent is unnecessarily dragged by the appellant without any sufficient reasons.
30. The appellant has conducted a complete vilification of facts while filing this appeal. The 4th respondent has applied for an EC for the construction of a building having an extent of 1,33,491 Sq.m. on 21-04-2018 to the 2nd respondent for the reason that the 1 st respondent was not functioning at the relevant time. The 2nd respondent by order dated 7th June 2019 based on recommendation of EAC Meeting on 2nd - 3rd July 2018 has allowed the said application and granted clearance. Thereafter an application for expansion was made on 28-12-2018 to the 1st respondent. It was submitted to the 1st respondent for the reason that at the relevant time, the 1st respondent has come into existence at the relevant time. It is submitted that as per EIA Notification, dated 14 th September, 2006, the 1st respondent is the designated authority to consider the application for EC in respect of township and area development projects under Category B - 8(b) for Area >1,50,000 sq mts. As the Expansion Project area was 1,37,673.4 sq mts and the cumulative Area was 2,71,164.4 Sqm, the 1st Respondent has got the authority to consider the application and issued environmental clearance. These facts were deliberately mixed up in Page 18 of 30 the application to mislead this Hon'ble Tribunal. The appellant has not produced a scrap of paper to show that the lands in question are notified as Wetlands under the relevant rules or Act. The reports of the Agricultural Officer and others have only their views and not legally recognized. Unless it is approved and it is notified as Wetland under any of the above statutes, mere inclusion of the lands as wetland in the draft list of wetlands is not a bar in developing the land. It is also submitted that the land in question falls in Attipra Village, Thiruvananthapuram Taluk and Thiruvananthapuram District. These lands were acquired by the Government of Kerala for the development of Technopark- Phase-II and III. It is pertinent to note herein that as on date, development of Phase I and Phase II of the Technopark stand completed, and the same are leased out by Technopark to global IT giants like Tata Consultancy Services, Tata Elxsi, IBS, Alliance, Infosys, etc. as well as 400 other companies. The lands given to respondents Nos.5 and 6 falls between the fully functional Technopark Phase I and Technopark Phase II land. Thus, it is evident that the Project contemplated by the Project Proponents on the Technopark Phase III Site is not on Wetlands nor was there any threat to the ecosystem at the Technopark Phase III Site, which includes Project of the Project Proponents.
31. Heard the learned counsels Mr. Ritwick Dutta for the appellant, Mr. S. Saravanan for the 1st respondent, Mrs. Me. Sarashwathy for the 2nd respondent, Mr. G. Vignesh for Respondents Nos.3, 8 to 10, Mr. P.B. Sahasranaman for Respondents Nos.4 to 6 and Ms. Rashmi for Respondents Nos.7 and 11 and also perused the documents available on record.
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32. The main contention of the learned counsel for the appellant Mr. Ritwick Dutta is that the EC granted is vitiated due to false and incomplete information furnished by the Project Proponent and the project is permitted in Nilam/Wet land without adequate environmental impact assessment.Moreover, Dragonstone made its application for the proposed expansion on 01.10.2018. This application was made at a point in time where no EC was granted to the Project Proponent and no Consent to Establish was given by the State Pollution Control Board. The EC for the proposed project was only granted on 07.06.2019. No proposed expansion could have been sought in October 2018 for a project on which the EC was not granted until June 2019.Therefore the impugned EC granted considering the application as an application for expansion is illegal. The blatant, willful and deliberate concealment of critical information clearly vitiates the entire EIA process.
33. The counsel for the project proponent Mr. P.B. Sahasranaman contends that the competent authorities have permitted conversion of Nilam lands as per rules in force and that there was no suppression of information and the appellant mistakenly considers the project area as wet land and that the said Veli-Akkulam wet land is at a distance of more than 3 kms from the project site. It was also claimed that; a) there is no concealment of any material information by the project proponent as regards the existence of wetlands in project site as alleged and the grounds in that regard deserves to be rejected; b) the appeal and the contentions in the Memorandum of Appeal proceed on the assumption that the lands in question are wetlands. The same is factually incorrect, and there is no material in support of the said contention. on the other hand the Page 20 of 30 Revenue Records show that the lands are not wetlands and they are only paddy fields, which were duly permitted by the Government to be used for construction activity; c) the contentions as though there has been non-consideration of material facts, there has been non application of mind and the discretion has been improperly exercised are all false, incorrect and deserve to be rejected. It is also claimed that there is no infirmity in the EC granted.
34. The main contention of the learned counsel for SEIAA - Kerala Mr. S. Saravanan is that the SEIAA / SEAC - Kerala was not functional upon the cessation period and the reconstitution of the new SEIAA was under consideration by the MoEF&CC, and during that period, the Project Proponent had approached the MoEF&CC for construction of 1,13,493 Sq.m. under Schedule - 8 (a) of the EIA Notification. The said proposal was recommended for consideration of the grant of EC in its meeting held between 2 nd-4th July 2018 viz., the 32nd meeting of the EAC and the EC was granted vide EC Order No. F.No.21-48/2018IA-III dated 07.06.2019.
35. It was also contended that the project was appraised by the SEAC as per the procedure stipulated under Item 8(b) following due process and that the SEIAA had the authority to issue EC for the entire project, but they have granted the EC for the area of 1,37,673.4 Sq.m. under Item 8(b), taking into account the EC granted by the MoEF&CC for an area of 1,33,491 Sq.m. and contended that "There is no prohibition under the EIA Notification 2006, to consider the project either under Schedule 8 (a) or 8(b) of the Notification, irrespective of its size/capacity, since it is the duty of the authority to see the impact of the project. Further, at the Page 21 of 30 time of application for ToR, no construction was commenced by the Project Proponent since there was only a recommendation by EAC of MoEF. Hence, the SEIAA has a power to consider the two phases of project into one by considering the proposed impact of the project on the environment. Even, the SEIAA/ SEAC had carefully considered and scrutinized the application of the project proponent and specifically directed the project proponent to conduct EIA study and study on the cumulative impact of the project."
36. Issues for consideration:
Whether the EC granted for expansion is vitiated by False and incomplete information provided in the Form-1 Grant of EC for Expansion Project (1,37,673.4 Sq.M. built up area) of Phase - 3 for an application filed even before the EC was granted for the Main Project (1,33,491 Sq.M. built up area) of Phase - 3.
Grant of EC for Main Project (1,33,491 Sq.M. built up area) of Phase - 3 by MOEF & CC and EC for Expansion Project (1,37,673.4 Sq.M. built up area) of Phase - 3 by SEIAA - Kerala.
37. From the submissions of the SEIAA - Kerala, the appellant and other respondents, it is evident that The Project Proponent submitted an application on 21.04.2018 for Phase - 3 project with a built up area of 1,33,491 Sq.M for which, EC was granted under Item 8 (a) of the EIA Notification by MoEF&CC on 07.06.2019. Again, within six months filed another application for expansion of the Phase - 3 project under Item 8 (b) of the EIA Notification with total built up area of 2,71,164.4 Sq.M. including the built up area of 1,33,491 Sq.M., pending consideration of the first application dated 21.04.2018. Page 22 of 30 Though the SEIAA and SEAC - Kerala were reconstituted on 19.09.2018, the project proposal pending with the MoEF&CC was not transferred to the SEIAA/SEAC - Kerala and instead the EC was granted on 07.06.2019 by MoEF&CC for Phase -3 with a built up area of 1,33,491 Sq.M. The project proponent submitted an application on 01.10.2018 to the SEIAA - Kerala for a grant of EC for the expansion of Phase - 3 project with a total built up area of 2,49,786 Sq.M. (Approved built up area of 1,33,491 Sq.M. + Additional built up area of 1,16,295 Sq.M.) under Item 8
(b) which for the reason best known to them was withdrawn and they again submitted another application on 28.12.2018 for grant of EC for expansion of Phase - 3 project with a total built up area of 2,71,164.4 Sq.M. (Approved built up area of 1,33,491 Sq.M. + Additional built up area of 1,37,673.4 Sq.M.) under Item 8 (b). However, on both dates i.e. 01.10.2018 & 28.12.2018, though the project proponent claimed that the EC was granted for a built up area of 1,33,491 Sq.M., no EC was granted for Phase - 3 project by the MoEF&CC which actually was granted only on 07.06.2019. The recommendation of the EAC to the MoEF&CC cannot be construed as sanction of EC. The project proponent has not withdrawn its earlier application pending with the MoEF&CC, though on 01.10.2018, an application was made for expansion but withdrawn and resubmitted the application for expansion on 28.12.2018 for a total built up area of 2,71,164.4 Sq.m. under Item 8(b) of the notification.
The SEIAA - Kerala knowing pretty well that the earlier application filed on 21-4-2018 was pending with the MoEF&CC, neither forwarded the application made on 01.10.2018/28.12.2018 by the project proponent to the MoEF&CC nor requested the MoEF&CC to transfer the proposals pending with them for considering the proposal holistically.
Failure of the project proponent in submitting the project in its entirety i.e. both [Main Project (1,33,491 Sq.M. built up area) of Phase - 3] and [Expansion Project (1,37,673.4 Page 23 of 30 Sq.M. built up area) of Phase - 3], has resulted in a situation where the project was split into two and for Main Project (1,33,491 Sq.M. built up area) of Phase - 3, the EC was accorded by MoEF&CC under Item 8 (a) based on the submission of Form - I, Form - IA and conceptual plan without EIA and another EC for Expansion Project (1,37,673.4 Sq.M. built up area) of Phase - 3 as expansion by SEIAA under Item 8 (b) even though at the time of application for expansion the earlier proposal was still under consideration of MOEF&CC.
38. In its written submission, though the SEIAA - Kerala has emphatically stated that "Assuming that the project proponent splits the project, which require prior EC on the whole, into bits and pieces to avoid EIA, whether it is permissible under the Notification. The answer is „No‟.", but held that the proposal was not split and there is no infirmity in granting two different ECs. One for the main project and the other for the expansion project. However, this contention of the SEIAA is untenable as stated supra.
39. The Hon'ble Supreme Court in Keystone Realtors Private Limited Vs. Anil V. Tharthare and Ors. (2020) 2 SCC 66, held that even in the case of projects which seek amendment for expansions, the project proponent shall submit the entire project for appraisal rather than seeking amendment by splitting the projects into different phases. The Hon'ble Supreme Court observed that "In a case where the text of the provisions requires interpretation, this Court must adopt an interpretation which is in consonance with the object and purpose of the legislation or delegated legislation as a whole. The EIA Notification was adopted with the intention of restricting new projects and the expansion of new projects until their environmental impact could be evaluated and understood. It could not be disputed that as the size of the project increases, so does the magnitude of the project's environmental impact. This Court could not adopt an interpretation of the EIA Notification which would permit, incrementally or otherwise, project proponents to increase the construction area of a project without any oversight Page 24 of 30 from the Expert Appraisal Committee or the SEAC, as applicable.
It was true that there may exist certain situations where the expansion sought by a project proponent is truly marginal or the environmental impact of such expansion was non-existent. However, it was not for this Court to lay down a bright-line test as to what constitutes a "marginal" increase and what constitutes a material increase warranting a fresh Form 1 and scrutiny by the Expert Appraisal Committee. If the government in its wisdom were to prescribe that a one-time "marginal‟ increase in project size, within the threshold limit stipulated in the Schedule, could be subject to a lower standard of scrutiny without diluting the urgent need for environmental protection, conceivably this Court may give effect to such a provision. This would be subject to any challenge on the ground of their being a violation of the precautionary principle.
However, as the EIA Notification currently stands, an expansion within the limits prescribed by the Schedules would be subject to the procedure set out in the notification. A core tenet underlying the entire scheme of the EIA Notification was that construction should not be executed until ample scientific evidence had been compiled so as to understand the true environmental impact of a project. By completing the construction of the project, the appellant denied the third and fourth respondents the ability to evaluate the environmental impact and suggest methods to mitigate any environmental damage."
40. Further, the same view has been reiterated by this Tribunal in Original Application No.149 of 2016 (SZ) [V. Ramasubbu Vs. Union of India and Ors.] by Judgment dated 01.08.2022.
41. The contention of the SEIAA that they have examined the environmental impact for 2,71,164.4 Sq.M. cannot be sustained, since even before the EIA/EMP report was submitted to the SEIAA / SEAC on 20.03.2020, the EC was sanctioned by MOEF & CC for part of the project i.e. Phase - 3 for a built up area of 1,33,491 Sq.M. on 07.06.2019 itself, for which no EIA report was submitted to the MOEF & CC since it was considered under 8(a) . Therefore, it is evident that the project was split and Phase - 3 project has not been subject to detailed EIA study holistically which is in violation of the principles of the EIA Notification.
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42. We also do not find any merit in the argument of the SEIAA that the EC was granted by them is for expansion since the question of expansion of any project normally arises only when the initial project or the main project or earlier phase of the project has been completed and not contemplated initially when the project was launched. By no stretch of imagination an application can be filed for expansion when EC was not even granted for the earlier Phase. In the instant case, the application for Main Project (1,33,491 Sq.M. built up area) of Phase - 3 was filed on 21.04.2018 and the expansion of the Mixed Land Use (Master Plan) project by M/s Dragon Stone Realty Pvt. Ltd. at Technopark Phase-3 campus was filed on 01.10-2018 / 28.12.2018 within a matter of six to eight months and that too much before the EC was granted by MOEF & CC on 07.6.2019. The application filed for expansion of the project even before grant of EC for main project and commencement of the project is violative of the provisions of the EIA Notification, 2006.
43. The project proponent certainly would have had plans for ultimate built up area of 2,71,164.4 Sq.M. even at the time of their application filed on 21.04.2018, which can be unequivocally inferred by the fact that the project proponent has filed an application on 01.10.2018 (withdrawn and resubmitted on 28.12.2018) for the so called expansion. Be that as it may, the Project Proponent ought to have withdrawn their pending application with the MoEF&CC and requested for consideration of the application resubmitted on 28.12.2018 or the SEIAA - Kerala should have sought withdrawal of the pending proposal with the MoEF&CC and considered the application holistically under Item 8 (b) and granted EC for the entire built up area of 2,71,164.4 Sq.M. which could have averted Page 26 of 30 splitting of the project and avoided grant of EC for the so called main project of Phase - 3 for 1,33,491 Sq.M. by the MoEF&CC without EIA study under Item 8 (a) and grant of EC for the so called expansion for 1,37,673.4 Sq.M. under Item 8(b) by the SIEAA - Kerala.
44. In view of the observations and discussions made above, we allow the appeal and the following directions and orders are issued:-
I. The impugned Environmental Clearance (EC) granted by the SEIAA - Kerala is set aside, as grant of EC by the MoEF&CC for Main Phase - 3 Project (1,33,491 Sq.M. built up area) and grant of EC by the SEIAA - Kerala for Expansion of Phase - 3 Project (1,37,673.4 Sq.M. built up area) amounts to splitting of project and such splitting is violative of the dictum of the Hon'ble Supreme Court in Keystone Realtors Private Limited Vs. Anil V. Tharthare and Ors.
(2020) 2 SCC 66.
II. A penalty of Rs. 15,00,00,000/-(Fifteen crores) is imposed on the Project Proponent for their failure to submit the Phase-3 project and for having split the project as Main Project of Phase - 3 and Expansion Project of Phase-3. The penalty levied will be paid to the Integrated Regional Office, MoEF&CC within 3 (Three) months, which will be utilized for improvements of the wetlands in the district.
III. The project proponent is directed not to undertake any further work under the expansion project of Phase-3 without obtaining Environmental Clearance.
Page 27 of 30 IV. We direct the SEIAA - Kerala to examine the proposal afresh and ensure that the PP conducts a cumulative impact study for the entire Phase-3 with a built up area of 2,71,164.4 Sq.M. i.e. a cumulative impact assessment for the entire project and also identify the mitigation measures that may have to be in place in Phase - 3 project area where construction is already completed to ensure that adverse environmental impacts, if any, due to construction of main project of Phase - 3 are remediated.
V. The Integrated Regional Office, MoEF&CC is directed to file a compliance report regarding the penalty collected within 4 (Four) months and thereafter, once in 3 (Three) months to update about progress of the works undertaken.
VI. The SEIAA, Kerala, which should have considered the project comprehensively and having treated the phase-3 as an expansion without application of mind is also liable for its conduct. We recommend to the MoEF&CC to take appropriate action against the authorities who were responsible in granting the Environmental Clearance for the Phase-3 project.
45. Considering the circumstances, parties are directed to bear their respective costs in the appeal.
I.A. No. 207/2021
46. M/s Winterfell reality Pvt. Ltd., M/s Dragonstone Reality Pvt. Ltd., and M/s Dorne Reality Pvt. Ltd., are all subsidiaries of Taurus Investment Holdings. Hence, the appellants have added them as party respondents. As the Environmental Clearance which is Page 28 of 30 challenged is only in the name of 4th respondent, M/s Dragonstone Reality Pvt. Ltd., the other respondent nos. 5 and 6 are unnecessary parties and the appellant need not have arrayed them as party respondents.
47. In view of the above, I.A. No. 207 of 2021 is allowed and respondent nos. 5 and 6 are deleted from the array of parties.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No Appeal No.54/2021 (SZ) I.A. No.207/2021 (SZ) 30th May, 2023. (AM & MN).
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Before the National Green Tribunal Southern Zone (Chennai) Appeal No. 54 of 2021 Thomas Larence Vs. SEIAA, Kerala & Ors.
Appeal No. 54/2021(SZ)& I.A. No. 207/2021(SZ) 30th May, 2023. (AM) Page 30 of 30