National Green Tribunal
Shaji A K vs Moef & Cc Rep. By Its Secretary on 29 October, 2021
Bench: K Ramakrishnan, K. Satyagopal
Item No.3:-
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 03 of 2019 (SZ)
(Through Video Conference)
IN THE MATTER OF
Shaji A.K. ....Appellant(s)
Versus
Ministry of Environment, Forests & Climate Change,
New Delhi and Ors.
... Respondent(s)
For Appellant(s): Mr. Harish Vasudevan.
For Respondent(s): Mr. M.R. Gokulkrishnan for R1.
Mr. Rahul Balaji for R2 to R5.
Judgment Pronounced on: 29th October, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. K. SATYAGOPAL, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The appeal is disposed of with directions vide separate Judgment. Pending interlocutory application, if any, shall stand disposed of.
Sd/-
........................................J.M. (Justice K. Ramakrishnan) Sd/-
................................E.M. (Dr. K. Satyagopal) Appeal No.03/2019 (SZ) 29th October, 2021. Mn.
Page 1 of 29 Item No.3:-
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 03 of 2019 (SZ) (Through Video Conference) IN THE MATTER OF Shaji A.K. Aged about 47 years, S/o. Kuryakose, Arakkal House, Perinkari P.O., Kannur District - 670 706.
....Appellant(s) Versus
1) Ministry of Environment, Forests & Climate Change, Indira Paryavaran Bhawan, Jor Bagh, Ali Ganj, New Delhi - 110 003.
2) Ranjith Thomas, M/s. Puravankara Ltd., M/s. Melmont Construction Pvt. Ltd & M/s. Purva Realities Pvt. Ltd., No.41/199A, Padivattom, NH 47 Bypass Edappally P.O., Kochi - 682 024, Kerala.
3) M/s. Puravankara Ltd., No.41/199A, Padivattom, NH - 47 Bypass, Edappally P.O., Kochi - 682 024, Kerala.
Represented by its Authorized Signatory Mr. Ranjith Thomas
4) M/s. Melmont Construction Pvt. Ltd., No.41/199A, Padivattom, NH 47 Bypass, Edappally P.O. Kochi - 682 024, Kerala.
Represented by its Authorized Signatory Mr. Ranjith Thomas
5) M/s. Purva Realities Pvt. Ltd., No.41/199A, Padivattom, NH 47 Bypass, Edappally P.O., Kochi - 682 024, Kerala.
Represented by its Authorized Signatory Mr. Ranjith Thomas ... Respondent(s) For Appellant(s): Mr. Harish Vasudevan.
For Respondent(s): Mr. M.R. Gokulkrishnan for R1.
Mr. Rahul Balaji for R2 to R5.
Page 2 of 29 Earlier Judgment Reserved on: 22nd July, 2021.
Case Reopened on: 16th September, 2021.
Judgment Reserved on: 22nd September, 2021.
Judgment Pronounced on: 29th October, 2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. K. SATYAGOPAL, 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) granted to the Respondent No.2 to 5 by the Ministry of Environment, Forests and Climate Change (MoEF&CC)/1st respondent vide their Proceedings No. F.No.21-13/2018-IA-III dated 08.03.2019 for their Residential cum Commercial Complex Project to be established in Survey Nos.156/5-3-1/2, 156/6/7, 156/2-A, 156/5-3-1, 156/6, 156/7, 156/6-1, 156/4-B, 156/7-1, 156/6-1, 156/4-B, 156/7-1 of Edappally South Village, Kochi Municipal Corporation and Survey Nos.
135/2, 3, 4, 5, 6, 7, 8, 12, 13, 15, 16, 18, 19, 20, 136/1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 137/5, 6, 8, 9, 10, 11, 13, 14, 16, 138/2, 4, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 23, 24, 25, 26, 140/2, 9, 10, 11, 13, 23, 141/3, 15 & 159/1 of Vazhakkala Village, Thrikkakara Municipality, Kanayannur Taluk, Ernakulam District, Kerala evidenced by Annexure - A1 under Section 16 of the National Green Tribunal Act, 2010.
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2. The appellant claims to be a committed social activist on protection of environment and improvement of environment. He had filed number of Public Interest Litigations (PILs) and he is an active bird watcher and associated with the protection of Mangalavanam Bird Sanctuary at Ernakulam. Respondent No.2 to 5 submitted the application for Environmental Clearance (EC) for the above said project on 05.02.2018 with Form-I Application, Form-IA, Conceptual Plan and Draft Terms of Reference. Since the State Environment Impact Assessment Authority, Kerala was not functioning at that time, the same was submitted by the Respondent No.2 to 5 to the Ministry of Environment, Forests & Climate Change (MoEF&CC) for consideration along with Form-I Application, Form-IA, Conceptual Plan and Draft Terms of Reference accompanied by their letter dated 05.02.2018. The Form-I Application submitted by the project proponent was produced as Annexure-A2.
3. It is further alleged in the appeal memorandum that they have suppressed the material facts and given misleading/false information in their Form-I Application. Edappally Thodu, a water channel is running through the project site on the Southern and Western side of the property. A portion of the said thodu was encroached by the project proponent, which was not mentioned in the Form-I. The presence of two major multi speciality hospitals, one temple and two churches were purposefully concealed by the project proponent in the Form-I Application. The 1st respondent issued Annexure - A3, Terms of Reference (ToR) on 24.05.2018. There was a specific condition imposed in the ToR to provide a detailed report on compliance of the Energy Conservation Building Code (ECBC) norms. However, the project proponents have not submitted the plan in Page 4 of 29 accordance with the same, though they were mentioning the name Energy Conservation Building Code (ECBC) at several places in the Environment Management Plan. It was launched by the Ministry of Power, Government of India in the year 2007, as a huge step in promoting Energy Efficiency in the building sector up to 60% compared to the normal buildings. They are having a big project of built up area of 4,64,924,55 Sq.M., but they have not produced in compliance of the Energy Conservation Building Code (ECBC) norms. So, the project will cause much environmental damage.
4. It is further alleged in the appeal memorandum that the 1st Respondent/Ministry of Environment, Forests & Climate Change (MoEF&CC) ought to have rejected the application on that ground alone. As per the specific condition No.VII of Annexure - A3 mandates that a detailed traffic management and a traffic decongestion plan shall be drawn up through an organization of repute and specializing in Transport Planning to be furnished along with the EIA Report. It is further mentioned in the ToR that the plans have to be implemented to the satisfaction of the State Urban Development and Transport Department which includes Consent of all the concerned implementing agencies. They have not produced such a detailed traffic management and traffic decongestion plan as mandated above. So, they have not complied with the condition No.VII of the ToR issued. The Edappally area and the Salem
- Kochi National Highway adjacent to the project site are already heavily congested with heavy traffic even during non-peak hours. Any person who has to travel from the Northern part of Kerala to the Southern part or vice versa has to pass through the Edappally Junction through the above mentioned highway. There are two multi speciality hospitals in this area Page 5 of 29 namely, Amrita Institute of Medial Science and Ernakulam Medical Centre, where patients in critical conditions from various districts are expected to be brought through this highway. Any increase in traffic load in this area will cause unpredictable mayhem and chaos. Further, during construction stage, large number of trucks will be brought to the construction site that will also cause heavy traffic block. They have not conducted the study in a proper way. The ToR was granted on 24.05.2018 and within fifteen days, Environment Impact Assessment (EIA) Report and Environment Management Plan (EMP) were prepared by the project proponent and submitted to the 1st respondent along with the letter dated 07.06.2018. It will go to show that the EIA Report prepared was cooked up one without scientific basis or following the specific condition as laid down in the Annexure - A3. The letter sent along with the EIA Report is produced as Annexure - A4. The Expert Appraisal Committee (EAC) in their 32nd Meeting held on 2nd - 4th July, 2018 and this project was considered on 4th July, 2018 along with 22 other projects and there was no proper time for appreciation by the committee regarding this aspect. None of the important aspects including the impact of project on Mangalavanam Bird Sanctuary, Bird population, Edappally Church and many other sensitive areas have been considered by the Expert Appraisal Committee (EAC) before recommending the project. Further, as per Office Memorandum dated 01.05.2018 of Ministry of Environment, Forests & Climate Change (MoEF&CC) regarding Corporate Environment Responsibility (CER), the project proponent has to earmark at least 2% of the total project cost for Corporate Environment Responsibility (CER). But, the amount set apart for the same will be less than 1% of the total project and this has not been properly considered by the Expert Appraisal Page 6 of 29 Committee (EAC) while recommending the project in their 32nd Meeting evidenced by Annexure - A5.
5. Further, it is alleged in the appeal memorandum that the Ministry of Environment, Forests & Climate Change (MoEF&CC) without proper appreciation, blindly accepted the recommendations of the Expert Appraisal Committee (EAC) and granted the Environmental Clearance (EC) evidenced by Annexure - A1. This was under challenge by the appellant on the following grounds:-
a) There was material suppression of facts regarding the existence of major hospitals, schools and place of worship in the Form-I Application.
b) The Terms of Reference (ToR) conditions were not completely fulfilled including the Energy Conservation Building Code (ECBC) terms and Corporate Environment Responsibility (CER) terms.
c) The traffic management plan as required in the ToR has not been furnished.
d) The impact of the project on environment including the Mangalavanam Bird Sanctuary has not been properly appreciated.
e) The encroachment into Edappally canal by the project proponent has not been mentioned.
f) Necessary precautionary principles for consideration of traffic congestion, environment degradation due to non observing Energy Conservation Building Code (ECBC) instructions have not been considered.
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g) The project was mechanically assessed without proper application of mind within a short time provided for considering the project.
h) The Precautionary Principles to be applied for such a huge project taking into its impact were not properly applied.
i) The EIA Report was prepared within a short time of 14 days of issuance of ToR which itself will go to show that it was mechanically prepared without proper scientific approach.
6. On those grounds, according to the appellant, the Environmental Clearance (EC) granted is liable to be set aside.
7. The 1st Respondent/Ministry of Environment, Forests & Climate Change (MoEF&CC) filed their reply affidavit reiterating the provisions regarding appraisal of such building projects as per EIA Notification vide S.O. 1533(E) dated 14.09.2006, and accordingly such a project has to be considered by the SEIAA, Kerala and since SEIAA, Kerala was not functioning at that time, it was happened to be considered by the Ministry of Environment, Forests & Climate Change (MoEF&CC). The project proponents namely, M/s. Purvankara Ltd, M/s. Melmont Construction Pvt. Ltd. and M/s. Purva Realities Pvt. Ltd had applied through online for Terms of Reference to the 1st respondent vide proposal No. IA/KL/NCP/72708/2018 dated 05.02.2018 for development of Township and Area Development project for an area of 4,64,924.55 Sq. Mtrs at Edappally South and Vazhakala Village, Thrikkakara Municipality, Kanayannur Taluk, District Ernakulum, Kerala. The Expert Appraisal Committee (EAC) (Infrastructure - 2) in its meeting held on 18th - 20th April, 2018 appraised the project and recommended Terms of Reference (TOR) for preparation of EIA/EMP report as per the Page 8 of 29 provisions of EIA Notification, 2006, evidenced by Annexure - R1. The 1st respondent on the basis of the recommendation of the Expert Appraisal Committee issued ToR vide letter dated 24.05.2018 to the project proponents evidenced by Annexure - R2. The project proponent vide online proposal No. IA/KL/NCP/72708/2018 had applied for grant of Environmental Clearance (EC) to the 1st respondent and the same was discussed and appraised by the Expert Appraisal Committee (Infrastructure - 2) in its 32nd Meeting held on 2nd - 4th July, 2018 and the project was recommended for grant of Environmental Clearance (EC) with adequate environmental safeguards, evidenced by Annexure - R3, Minutes of the Expert Appraisal Committee. After consideration of the same, the 1st respondent had granted the Environmental Clearance (EC) vide letter dated 08.03.2019 evidenced by Annexure - R4. They have considered all the aspects and rightly granted the Environmental Clearance (EC) and there is no illegality committed and the grounds raised are not sufficient to set aside the Environmental Clearance (EC) granted and they prayed for dismissal of the appeal.
8. Respondents 3 to 5 filed their counter affidavit contending that the appeal is not maintainable, as the appellant cannot be treated as a person aggrieved within the meaning of Section 16 of the National Green Tribunal Act, 2010. The survey numbers are part of the project covered under the Town Planning Scheme. The area covered under the Cochin Corporation is in the Mixed Zone (residential/commercial) and the area covered falls in the Thrikkakara Municipality which is a residential zone. They denied the allegation that the appellant is involved in activities for protection of environment and he was also associated with the protection of Mangalavanam Bird Sanctuary. They have not violated any of the Page 9 of 29 provisions in submitting the Form-I Application and preparing the EIA Report. They have specifically mentioned all necessary things in Form-I Application. They denied the allegation that they have encroached Edappally Thodu and the survey sketch produced along with their counter would show that the boundaries of Edappally Thodu are clearly demarcated and on comparison of the same with the application, it would be clear that there was no encroachment made by them. They have clearly mentioned in their application regarding the crossing of the Thodu and also mentioned that it divides the Thodu into two portions by a small drain flowing in the west direction. The presence of hospitals, temples etc. were clearly mentioned in the application at Chapter III - Environmental Sensitivity and even on that count, there is no concealment as alleged by the appellant. The presence of Edappally Thodu and Mangalavanam Bird Sanctuary were mentioned in the application. They denied the allegation that they have not made any reference regarding the compliance of Energy Conservation Building Code (ECBC) norms, which is a condition prescribed under the ToR approved by the 1st respondent dated 24.05.2018. The study was conducted by the Ministry of Environment, Forests & Climate Change (MoEF&CC) accredited consultant namely, M/s. Environmental Engineers & Consultants Private Limited. The Energy conservation measures proposed for the project are part of the Energy Conservation Building Code (ECBC) requirements which is described at Chapter 6 (Additional Studies) Pages No. 6.7 and 6.8 of EIA report. The proposed project is primarily residential complex (about 89% of the total built-up area) and the Commercial part is only about 11% of the total built- up area. The Energy Conservation Building Code (ECBC) compliance for building construction project as per Bureau of Energy Efficiency (BEE) is Page 10 of 29 mandatory for commercial building construction projects only. A detailed description on the energy conservation measures and compliance to the Energy Conservation Building Code (ECBC) norms is provided in the power point presentation made during appraisal of the project before the 32nd Meeting of the Expert Appraisal Committee (EAC) held on 02nd - 4th July, 2018 evidenced by Annexure - R5 (3) and this was properly appreciated by the committee members and then only, they approved the same. They have conducted an independent traffic study through M/s. HAbOG Consultants Pvt. Ltd., Bangalore and the same was submitted along with the EIA report as Annexure No. 3.5 containing about 25 pages, evidenced by Annexure - R5 (4) and the same was appraised by the Expert Appraisal Committee (EAC) and recommended for grant of Environment Clearance (EC) and the same was accepted by the 1st respondent and issued the same. As per the notification of the Ministry of Environment, Forests & Climate Change (MoEF&CC) dated 10.04.2015 [S.O. 996 (E)], on the expiry of Thirty days from the date of submission of application, the draft ToR will be deemed to be considered as approved ToR provided the State Expert Appraisal Committee (SEAC) / Expert Appraisal Committee (EAC) has not commented anything contrary to it. As regards the timeline and submission of data prior to the ToR, according to the respondents, it is a permissible for the project proponent to submit which is within 3 years for the purposes of ToR. So, they claims that proper EIA Report was not prepared and it was prepared within 15 days in an unscientific manner etc. are not correct. M/s. HAbOG Consultants Pvt. Ltd. was also been engaged even by the Kerala Road Fund Board and has experience of working in and around the State of Kerala and hence, they have got expertise in preparation of traffic management plan. There was no encroachment into Page 11 of 29 the Edappally Thodu as alleged and it was left unhindered and they have constructed an over bridge to allow the free flow of waterway. As regards the Corporate Environment Responsibility (CER) of the project is concerned, as per the Office Memorandum dated 01.05.2018, evidenced by Annexure - R5 (5), the Expert Appraisal Committee (EAC) have considered all these aspects. As regards access to the service road as part of National Highway, they have obtained permission from the National Highway Authority of India evidenced by Annexure - R5(8). They also obtained necessary permission from the Airport Authority of India, Department of Fire and Rescue Services, Government of Kerala, The Headquarters, Southern Naval Command, Kochi for Height Clearance and also Consent to Establish from the Kerala State Pollution Board, evidenced by Annexure- R5 (9) Series. There were no valid grounds made out for setting aside the Environmental Clearance (EC) granted. So, they prayed for dismissal of the appeal.
9. The appellant filed rejoinder to the counter filed by the Respondents No.1, 3 to 5. He had produced certain documents to show that the appellant is the person engaged in activities of protecting environment and also interested in protecting the Mangalavanam Bird Sanctuary. He had also relied on the dictum of the Principal Bench in O.A. No.12 of 2011 and Appeal No.14 of 2014 (WZ) (Annil V Tharthare Vs. Secretary, Environment Department & Ors.) for the purpose of the locus standi of the appellant filed by the appeal. According to the appellant, in the rejoinder, the project proponents was expected to mention by name regarding the hospital namely, Al-Mekha Skin Clinic, Ernakulam Medical Center, Government Veterinary Hospital, Lisie College of Pharmacy, Saint Page 12 of 29 Mathew Church, Ernakulam Church, Saint Michaels Church and Vediyoormadom, Sri Bhadrakali Temple, Lourdes College of Nursing and Assissi Vidya Nikethan School, Pokkalath Temple, Anjumana Devi Temple and other schools which are situated within a distance of 100-500 Meters and these aspects are expected to be mentioned for the purpose of assessing the traffic congestion that is likely to be caused. The land is a Nilam as per revenue records and it is protected under the Conservation of Paddy Land and Wet Land Act, 2008. The Kerala Land Utilization Order, 1967 also prohibits a conversion of such wet lands and paddy lands without obtaining prior approval from the District Collector or Revenue Divisional Officer. No such permission was obtained for the project. The project site is a buffer zone of Edappally Canal and during rainy season, the water will spread through the property so as to avoid the flood in that area. The appellant also relied on certain feasibility study report made by Kerala Shipping and Inland and Navigation Corporation Limited (KSINC), evidenced by Annexure - A7 regarding these aspects. The appellant also relied on the Hanuman Lakshman Aroskar & Anr. Vs. Union of India and Ors.1 regarding the effect of suppression of material fact which is a ground for setting aside the Environmental Clearance (EC). He had also relied on certain publications and other articles regarding the traffic congestion that is being experienced in that area. So, the details given by the respondents are not correct and there is misrepresentation also. So, they prayed for accepting their contentions and setting aside the Environmental Clearance (EC) granted.
1 (2009) 15 SCC 401 Page 13 of 29
10. Heard the counsel for the appellant Mr. Harish Vasudevan, Mrs. Me. Saraswathy counsel for the 1st respondent/MoEF&CC and Mr. Rahul Balaji for Respondents 2 to 5/project proponents.
11. The learned counsel appearing for the appellant argued that the existence of major hospitals, schools and place of worship were not specifically mentioned in the Form-I Application, so as to properly assess the nature of impact of this project on environment. Further, this is only the buffer zone available along Edappally thodu and this is also filled, then the possibility of flood occurring in that area has not been properly considered. The traffic congestion that is likely to be caused by using service road and a small lane in the project area, especially when it consists of huge residential complexes and some commercial complexes inviting large number of vehicles has not been properly understood and considered by the Ministry of Environment, Forests & Climate Change (MoEF&CC) while granting the Environmental Clearance (EC). The Corporate Environment Responsibility (CER) provided is also not in tune with the project cost as required under the Rules and non-consideration of all these aspects will go to show that there is no proper application of mind and as such, the Environmental Clearance (EC) granted is liable to be set aside.
12. Further, he had also argued that the EIA Report was prepared within 15 days from the date of issuance of ToR which itself will go to show that it was mechanically and unscientifically prepared, without complying with the ToR provided. The learned counsel appearing for the appellant also argued that the study conducted by the accredited agency viz., Kerala Shipping and Inland Navigation Corporation (KSINC) Limited appointed by the State of Kerala was produced as Annexure - 7 along with the Page 14 of 29 rejoinder will show that it is the only marsh land available and if construction is allowed to come, it will cause flood in that area and the committee was attended by only three members and as such, that cannot be said to be properly appraised by the Expert Appraisal Committee and the Ministry of Environment, Forests & Climate Change (MoEF&CC). On that ground, the Environmental Clearance (EC) granted is bad in law and liable to be set aside.
13. On the other hand, the learned counsel appearing for the Ministry of Environment, Forests & Climate Change (MoEF&CC) argued that they have considered all the aspects and the Expert Appraisal Committee (EAC) on the basis of the EIA Notification and also on the basis of the presentation made, rightly recommended the project and necessary conditions involving "Precautionary Principle" was imposed while granting the Environmental Clearance (EC) and that does not call for any interference.
14. The learned counsel appearing for the project proponents argued that the EIA Report submitted by the project proponents is exhaustive in nature and a reading of Form -I Application and EIA Report will go to show that there is nothing suppressed and all those things were mentioned and considered by the Expert Appraisal Committee (EAC) and only thereafter, they recommended the project and accordingly, the Ministry of Environment, Forests & Climate Change (MoEF&CC) granted the Environmental Clearance (EC). They will take all necessary precautions to avoid possible traffic congestion and also never encroach into the water body and all necessary permissions were obtained.
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15. As far as the Corporate Environment Responsibility (CER) is concerned, they are prepared to enhance the same in tune with the present project cost and they filed an undertaking to that effect and the Tribunal is at liberty to direct them to strictly comply with the same as well. So according to the learned counsel for the project proponents, the Environmental Clearance (EC) granted does not call for any interference.
16. We have considered the pleadings, submissions made by the learned counsel and also the written submissions made by them.
17. The points that arise for consideration are:-
(a) Whether there is any material suppression of fact made by the project proponent in their Form-I Application, which prevented the Expert Appraisal Committee (EAC) for proper appreciation of the project?
(b) Whether the EIA Report was mechanically prepared in an unscientific manner as alleged by the appellant?
(c) Whether the Environmental Clearance (EC) granted is liable to be set aside for any of the reasons stated by the appellant?
(d) Whether any other further directions (if any) to be issued by this Tribunal applying the "Precautionary Principle" so as to protect environment?
(e) Relief and cost?
Points:-
18. It is an admitted fact that the respondents 2 to 5 had applied for Environmental Clearance (EC) for their Residential cum Commercial project covering built up area of 4,64,924,55 Sq.M. in Survey Nos.156/5-3- Page 16 of 29 1/2, 156/6/7, 156/2-A, 156/5-3-1, 156/6, 156/7, 156/6-1, 156/4-B, 156/7-1, 156/6-1, 156/4-B, 156/7-1 of Edappally South Village, Kochi Municipal Corporation and Survey Nos. 135/2, 3, 4, 5, 6, 7, 8, 12, 13, 15, 16, 18, 19, 20, 136/1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 137/5, 6, 8, 9, 10, 11, 13, 14, 16, 138/2, 4, 8, 9, 10, 11, 12, 13, 14, 15, 20, 21, 23, 24, 25, 26, 140/2, 9, 10, 11, 13, 23, 141/3, 15 & 159/1 of Vazhakkala Village, Thrikkakara Municipality, Kanayannur Taluk, Ernakulam District, Kerala.
19. It is also an admitted fact that in normal course, the project ought to have been considered by the SEIAA, Kerala as per EIA Notification, 2006 under Item No.8 (b) of the said notification. Since the SEIAA, Kerala was not functioning at that time, the project proponent had to approach the Ministry of Environment, Forests & Climate Change (MoEF&CC) for this purpose as provided under the EIA Notification, 2006 and that is how, the Ministry of Environment, Forests & Climate Change (MoEF&CC) had to consider this project and issued the impugned Environmental Clearance (EC).
20. As regards the suppression of material fact is concerned, the suppression must be of such a nature which ought to have escaped the attention of Expert Appraisal Committee (EAC) for consideration, which may have some impact on environment and then only, it can be a ground for setting aside the Environmental Clearance (EC) as has been observed by the Hon'ble Apex Court in Hanuman Lakshman Aroskar & Anr. Vs. Union of India & Ors. 2 . A reading of Form-I Application submitted by the project proponents will go to show that they have specifically mentioned about the existence of schools, hospitals, place of worship etc. and also 2 (2009) 15 SCC 401 Page 17 of 29 mentioned about the location of the project abetting the Salem - Kochi National Highway as well. They also mentioned about the existence of Mangalavanam Bird Sanctuary and also mentioned that they have applied to the National Wildlife Board for management plan. It is true that they have not mentioned the name of schools, medical institutions and the place of worship, but that was not a ground to come to the conclusion that there were material suppression of fact as alleged by the counsel for the appellant.
21. Further, a reading of the EIA Report submitted by the project proponent for consideration of the Expert Appraisal Committee (EAC) also will go to show that they were aware of the nature of congestion that is likely to be caused considering the location of the area where the project is expected to come up and it cannot be said that there was no possibility for the Expert Appraisal Committee (EAC) to consider these aspects before recommending the project so as to vitiate the recommendation on the ground of non - application of mind by the Expert Appraisal Committee (EAC).
22. As regards the time slot available, it may be mentioned here that normally necessary documents will be supplied to the members of the Expert Appraisal Committee (EAC) well in advance before fixing the date for meeting and as such, being experts in the field, they may be going through the records before considering the project and they may be able to identify the lapses and if any further clarification required, they are competent to make such directions as well.
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23. Further, it is also seen from the documents produced by the project proponent that at the time of consideration of project by the Expert Appraisal Committee (EAC), a power-point presentation was also made and after consideration of those aspects, the Expert Appraisal Committee (EAC) had recommended the project. Further, the manner in which the building projects will have to be considered by the Expert Appraisal Committee (EAC) and the regulating authority was considered by the Hon'ble Apex Court in Rajeev Suri Vs. Delhi Development Authority & Ors. 3 commonly known as "Central Vista Project" (Demolition and Construction of new Parliament complex). So, if that principle is applied, it cannot be said that the Expert Appraisal Committee (EAC) as well as the Ministry of Environment, Forests & Climate Change (MoEF&CC) have not considered these aspects in its right perspective.
24. The decisions relied on by the appellant namely, Sriranganathan Vs. Union of India & Ors. in Appeal 172 of 2013 (SZ) of National Green Tribunal is not applicable to the facts of this case. That was a case where the Tribunal came to the conclusion that since the EIA Report was prepared prior to ToR issued is bad in law, on the basis of the law existing then. It is thereafter, in 2015, the Ministry of Environment, Forests & Climate Change (MoEF&CC) had issued the Office Memorandum enabling the project proponent to proceed with the preparation of the EIA Report on the basis of the standard ToR within 15 days of their submission of the application made to the authority for issuance of ToR. It is on that basis, there is no bar for the project proponent to start the study of Environmental Impact Assessment for preparation of their EIA Report and after obtaining ToR with additional conditions, they will have to 3 2021 SCC Online SC 7 Page 19 of 29 incorporate those aspects as well in the EIA Report to be submitted along with their application for Environmental Clearance (EC) which can be considered by the Expert Appraisal Committee (EAC).
25. So under such circumstances, the submission made by the counsel for the appellant that the EIA Report was prepared prior to ToR issued cannot be accepted, is unsustainable in law and the same is liable to be rejected.
26. Though there was an allegation made by the appellant that Edappally Thodu was encroached by the project proponents, there was no evidence adduced on that aspect. Further, even if there is any encroachment made, it is for the revenue authorities and irrigation department to take action against them for removal of encroachment and restore the water body to its original position and if the appellant had any grievance, he is at liberty to approach them for that purpose. But, the documents produced by the project proponent will go to show that there was no possibility of any encroachment as alleged. Further, since the existence of Mangalavanam Bird Sanctuary was mentioned in the application itself and also it was mentioned that they have applied to the National Wildlife Board for management plan, in the Environmental Clearance (EC), it was specifically mentioned that the project proponent has to obtain the same and implement the same in its letter and spirit.
27. As regards the marshland near the project area is concerned, except some report relied on by the counsel for the appellant, there is no acceptable document produced such as revenue records to show that it is recorded as "marshland". Further, as regards the possibility of pollution to Edappally Thodu is concerned, this Tribunal can direct the project proponent to strictly adhere to the conditions regarding functioning of Sewage Page 20 of 29 Treatment Plant (STP) and not to discharge any water generated into the Edappally Canal will be sufficient. Even, according to the appellant, as per records, it is recorded as "Nilam" and permission from the authorities has to be obtained. If it is not obtained, then the authorities under the Act has to take action and the project proponent has to obtain permission, if it is noted as "Nilam" in the revenue records and the data bank prepared by the authorities. Since the Edappally Canal is passing through/along boundary of the property, they are directed to provide certain buffer zone from the canal and only thereafter, they can make their construction as has been observed by the Principal Bench of National Green Tribunal in Forward Foundation Vs. State of Karnataka & Ors.4 [O.A. No.220 of 2014 (PB)], which was approved with some modification by the Hon'ble Supreme Court in Mantri Techzone Pvt. Ltd. Vs. Forward Foundation5 and this will have to be followed by the project proponent.
28. As regards the traffic congestion is concerned, they have conducted a study through accredited agency who has experience in that field and projected the probable traffic congestion on account of their project and also mentioned about the probable solution which they are expected to introduce in consultation with the National Highway Authority and Public Works Department. They also produced all necessary permissions from the authority to use the service road for their purpose. They can only modulate the traffic congestion likely to arise on account of the project within their complex and also to regulate the same through the service road and they may not have any control over the traffic that is likely to be generated on the National Highway and any regulation to be made on 4 (2015) SCC Online NGT 5 5 (2019) 18 SCC 494 Page 21 of 29 these aspects which have to be done by the concerned authorities. But these aspects were mentioned in the application and also in the EIA Report by the project proponent in different heads and those were considered by the Expert Appraisal Committee (EAC) before approving the same and recommending the project. So, it cannot be said that there was no proper application of mind by the Expert Appraisal Committee (EAC) or the Ministry of Environment, Forests & Climate Change (MoEF&CC) before recommending and issuing the Environmental Clearance (EC) as alleged by the appellant.
29. As regards the applicability of Energy Conservation Building Code (ECBC) is concerned, they explained as to how this is applicable to the project and they have also given a power-point presentation and also the methods by which they are going to regulate the same in their project and that was appreciated by the Expert Appraisal Committee (EAC) which involves experts in this field and they have also specifically mentioned that they will have to follow the Energy Conservation Building Code (ECBC) guidelines for alternate energy consumption as a condition in the Environmental Clearance (EC) and the project proponent has to comply with the same as well. Being a building project, they can also consider the question of using solar panels wherever possible for the purpose of energy conservation by alternate energy resource in their project, which this Tribunal can direct to be implemented by the project proponent applying the "Precautionary Principle" for that purpose, the Environmental Clearance (EC) need not be set aside.
30. As regards the amount allotted for Corporate Environment Responsibility (CER) is concerned, the amount was not in tune with the total construction Page 22 of 29 cost. But the total cost of the project is Rs.1,024 Crores and as per the Corporate Environment Responsibility (CER) guidelines, maximum was 0.5% of capital investment which would translate to value of approximately Rs.5 Crore at the maximum. Apart from Corporate Environment Responsibility (CER), they have to provide the CSR provided under the Company's Law, 2013 as well. Further, the Hon'ble Delhi High Court in W.P.(C) No.13252 of 2019 in CREDAI NCR Vs. Union of India, where the Office Memorandum dated 01.05.2018 was challenged and thereafter, it was superseded by the Office Memorandum bearing F.No.22- 65/2017-IA.III dated 30.09.2020 and imposition on the basis of the percentage of the project cost has been done away with. The guideline now prescribes specific conditions in the physical terms without specifying any monetary basis and the Expert Appraisal Committee (EAC) had considered the project and the Corporate Environment Responsibility (CER) and in the specific condition, they have mentioned as follows:-
"As per the Ministry's Office Memorandum F.No.22- 65/2017-IA.III dated 1st May 2018, the project is required to prepare and implement Corporate Environment Responsibility (CER) Plan. As per Para 6 (II) of the said O.M. appropriate funds shall be earmarked for the activities such as infrastructure creation for drinking water supply, sanitation, health, education, skill development, roads, cross drains, electrification including solar power, solid waste management facilities, scientific support and awareness to local farmers to increase yield of crop and fodder, rain water harvesting, soil moisture conservation works, avenue plantation, plantation in community areas etc. The activities proposed under CER shall be restricted to the affected area around the project. The entire activities proposed under the CER shall be treated as project and shall be monitored. The monitoring report shall be submitted to the regional office as a part of half yearly compliance report, and to the District Collector. It should be posted on the website of the project proponent."
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31. However, the project proponent had given an undertaking that they are prepared to abide by any condition imposed by this Tribunal on this aspect. So under such circumstances, we feel that the amount of Corporate Environment Responsibility (CER) can be fixed as 1% of the total project cost of Rs.1,024 Crore of the project and the Respondents No.2 to 5 are expected to modulate their Corporate Environment Responsibility (CER) projects in tune with the amount that is likely to come and the same can be calculated on that basis and direct the project proponent to spend that amount and for that purpose, we do not think that there is any necessity to set aside the Environmental Clearance (EC) and send back the same to the authority below for consideration of this aspect, as the project proponent has undertaken to abide by any conditions imposed by this Tribunal on this aspect.
32. Regarding the contention that the EAC Minutes was signed by three members of the committee, as such it cannot be said to be properly appraised cannot be accepted, as there is no quorum provided for the committee to make it valid and as such, it cannot be treated as ground for setting aside the Environmental Clearance (EC) granted.
33. So under such circumstances, we feel that there is no necessity to set aside the Environmental Clearance (EC) and the same can be confirmed with the following directions:-
(a) The project proponent is directed to use the solar panels as many as possible for the purpose of utilizing alternate energy conservation for providing lights in the compound for illuminating the gate and other areas at the maximum possible, apart from using LED and CFL lamps as mentioned by them in their EIA Report, after Page 24 of 29 obtaining necessary permission from the authorities for this purpose.
(b) The project proponent shall modify the Corporate Environment Responsibility (CER) amount to 1% of the total project cost of Rs.1,024 Crore instead of Rs.77,80,000/- fixed by them in the EIA Report and prepare a project in tune with the amount and submit the same to the Regional Office, Ministry of Environment, Forests & Climate Change (MoEF&CC) and also to the concerned District Collector for approval and implementation and utilize the amount for the said project in tune with the necessity of protecting environment, apart from meeting the socio-economic needs in that area.
(c) The project proponent is also directed to take appropriate steps to regulate the traffic congestion that is likely to be caused on account of their project without causing any unnecessary traffic jam or traffic congestion in the service road by taking appropriate steps to regulate the inflow and outflow of the vehicles from the project area using appropriate security measures by appointing sufficient security to regulate the same without causing any trouble to the public in that area.
(d) The project proponent is directed to strictly adhere to maintain the Sewage Treatment Plant (STP) and Solid Waste Management accordingly Solid Waste Management Rules, 2016 and they should not discharge any sewage into any water body or Edappally Canal situated in the property and near the properly. Further, they should also make all arrangements to see that the rain water should not be stagnated in the property and flow of rain water during monsoon Page 25 of 29 should not be blocked due to any construction made by them so as to cause induration of the property with flood water during monsoon.
(e) If the project area is noted as "Nilam" as per the revenue records and the data bank prepared by the authorities, then the project proponent is directed to obtain necessary permission from the authorities under the Conservation of Paddy Land and Wet Land Act, 2008.
(f) Since the Edappally Canal is passing through/along boundary of the property, they are directed to provide certain buffer zone from the canal and only thereafter, they can make their construction as has been observed by the Principal Bench of National Green Tribunal in Forward Foundation Vs. State of Karnataka & Ors.6 [O.A. No.220 of 2014 (PB)], which was approved with some modification by the Hon'ble Supreme Court in Mantri Techzone Pvt. Ltd. Vs. Forward Foundation7 and this will have to be followed by the project proponent.
34. The points are answered accordingly.
35. In the result, the appeal is allowed in part and disposed of as follows:-
(i) The Environmental Clearance (EC) granted to the project proponent is not liable to be set aside for any of the reasons stated in the appeal memorandum or the submissions made by the counsel for the appellant and we are hereby confirming the Environmental Clearance (EC) granted with 6 (2015) SCC Online NGT 5 7 (2019) 18 SCC 494 Page 26 of 29 the following further conditions applying the "Precautionary Principle":-
a. The project proponent is directed to use the solar panels as many as possible for the purpose of utilizing alternate energy conservation for providing lights in the compound for illuminating the gate and other areas at the maximum possible, apart from using LED and CFL lamps as mentioned by them in their EIA Report, after obtaining necessary permission from the authorities for this purpose.
b. The project proponent shall modify the Corporate Environment Responsibility (CER) amount to 1% of the total project cost of Rs.1,024 Crore instead of Rs.77,80,000/- fixed by them in the EIA Report and prepare a project in tune with the amount and submit the same to the Regional Office, Ministry of Environment, Forests & Climate Change (MoEF&CC) and also to the concerned District Collector for approval and implementation and utilize the amount for the said project in tune with the necessity of protecting environment, apart from meeting the socio- economic needs in that area.
c. The project proponent is also directed to take appropriate steps to regulate the traffic congestion that is likely to be caused on account of their project without causing any unnecessary traffic jam or traffic congestion in the service road by taking appropriate Page 27 of 29 steps to regulate the inflow and outflow of the vehicles from the project area using appropriate security measures by appointing sufficient security to regulate the same without causing any trouble to the public in that area.
d. The project proponent is directed to strictly adhere to maintain the Sewage Treatment Plant (STP) and Solid Waste Management accordingly Solid Waste Management Rules, 2016 and they should not discharge any sewage into any water body or Edappally Canal situated in the property and near the properly. Further, they should also make all arrangements to see that the rain water should not be stagnated in the property and flow of rain water during monsoon should not be blocked due to any construction made by them so as to cause induration of the property with flood water during monsoon. e. If the project area is noted as "Nilam" as per the revenue records and the data bank prepared by the authorities, then the project proponent is directed to obtain necessary permission from the authorities under the Conservation of Paddy Land and Wet Land Act, 2008.
f. Since the Edappally Canal is passing through/along boundary of the property, they are directed to provide certain buffer zone from the canal and only thereafter, they can make their construction as has been observed Page 28 of 29 by the Principal Bench of National Green Tribunal in Forward Foundation Vs. State of Karnataka & Ors.8 [O.A. No.220 of 2014 (PB)], which was approved with some modification by the Hon'ble Supreme Court in Mantri Techzone Pvt. Ltd. Vs. Forward Foundation9 and this will have to be followed by the project proponent.
(ii) Considering the circumstances, the parties are directed to bear their respective costs in the appeal.
(iii) The Registry is directed to communicate this order to the Ministry of Environment, Forests & Climate Change (MoEF&CC), New Delhi for their information and compliance of the direction.
(iv) The Ministry of Environment, Forests & Climate Change (MoEF&CC) is directed to take back the file relating to issuance of Environmental Clearance (EC) produced before this Tribunal.
36. With the above observations and directions, this appeal is allowed in part and disposed of accordingly.
Sd/-
........................................J.M. (Justice K. Ramakrishnan) Sd/-
...............................E.M. (Dr. K. Satyagopal) Appeal No.03/2019 (SZ) 29th October, 2021. Mn.
8 (2015) SCC Online NGT 5 9 (2019) 18 SCC 494 Page 29 of 29