National Green Tribunal
Capt. B.S.Prakash Males /O. ... vs Union Of India Rep.By Its Secretarymoef on 27 April, 2022
Bench: Adarsh Kumar Goel, K. Ramakrishnan, Satyagopal Korlapati
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 136/2016(SZ)
(With report dated 11.01.2021)
Capt. B. S. Prakash Applicant
Versus
Union of India and Ors. Respondent(s)
Date of hearing: 27.04.2022
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Applicant: Mr. Capt. B.S. Prakash.
Respondent: Mr. G.M. Syed Nurullah Sheriff for R1.
Mrs. V.K. Rema Smrithi for R2 & R6.
Mr. D.S. Ekambaram for R3.
Mr. G. Vignesh represented Mr. G. Prabhu for R4.
Mr. G. Vignesh represented Mr. E.K. Kumaresan for R5.
Mr. Abdul Razack for R7.
ORDER
1. Grievance in this application is against illegal construction of a resort at Kikam Village at Bekal in Kasargod District, Kerala in violation of conditions of EC dated 02.01.2009, under the CRZ Notification, 1991, in favour of Green Gateway Leisure Limited, the Project Proponent (PP). According to the applicant, in violation of EC conditions, 28 borewells were installed by the PP and also requisite STP. was not constructed. Subsequently allegation of construction of water canals adversely affecting the environment has also emerged.
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2. The application first came up for hearing on 01.07.2016 and was admitted. Notice was issued to the respondents, including the PP, KCZMA, MoEF&CC and State PCB.
3. In pursuance of order of this Tribunal, action taken/status reports have also been filed which have been considered by this Tribunal from time to time and remedial action directed.
4. We have heard learned Counsel for the parties with a view to pass final order in the matter in light of factual position on the record and the orders already passed.
5. The stand of the PP is that the project is being managed by Starwood Asia Pacific Hotels and Resort Pvt. Ltd., Singapore for their "Westin Brand". The PP has denied extraction of groundwater and stated that the STP will be commissioned before the project is operational. The report of the joint Committee submitted in pursuance of order dated 18.03.2020 is that EC was valid for five years which expired on 01.01.2014. The project has not been completed. Validity of consent granted by the State PCB also expired on 30.06.2018 and the project appeared to have been abandoned half way after 40-50% of construction. There was no substantial evidence to prove the borewells. Large scale digging of earth to create water canals was noted without requisite clearance. Conclusions in the report are as follows:-
"A. The construction of the project has been abandoned in halfway and only 40-50% of the buildings have been constructed and the project is not in operation since past 2-3 years. Dense growth of grass and bushes all over the project site was observed and no labour found to be working in the project area on the day of visit.
B. The validity of the clearance granted by the Ministry and Consent to establish granted by KSPCB have expired in 2014 and 2018 respectively. Any further construction/ project activity needs a 2 fresh clearance from KCZMA, Ministry as well as Consent from KSPCB.
C. The Joint Committee opined that there is no substantial evidence to prove the existence of any bore wells in the project site and based on verification of records, the Committee noted that the project authorities have entered into an agreement with Kerala Water Authority for supply of water for nondomestic purposes.
D. The project has not been completed yet and not in operation.
Hence, there is no generation of sewage and accordingly, the project authorities have not installed a Sewage Treatment Plant (STP) till date.
E. It was noted that new canals that are tidal influenced have been created without obtaining prior clearance either from MOEFCC or KCZMA in the project site as part of landscaping and part of which falls within CRZ area. the CRZ details on field, the exact length of canal created within CRZ area etc. need to be ascertained by engaging agency authorized for HTL demarcation and CRZ mapping like National Centre for Earth Science Studies (NCESS), Trivandrum, National Centre for Sustainable Coastal Management (NCSCM), Chennai or Institute of Remote Sensing (IRS), Anna University, Chennai for working out environmental compensation. KCZMA in consultation with MoEFCC, Department of Mining & Geology, Department of Irrigation, Department of Revenue, and other concerned line Departments can initiate appropriate enforcement action as per powers conferred to them under Environment (Protection) Act, 1986."
6. Supplementary report has been filed in pursuance of order dated 20.01.2021 with regard to the liability of the PP to pay compensation which has been assessed at Rs. 11 Lakhs and Rs. 10.05 Lakhs by two different methods (Rs. 11 Lakhs being 0.5% of the project cost and Rs. 10.05 Lakhs being violation for 134 days). The Project Proponent has filed objections to the report. It is submitted that the project could not be completed due to financial difficulties. No digging or excavation of land has been done. Thus, there is no violation of environmental norms. The PP has already invested Rs. 185 crores in the project.
7. From the above, it is seen that the EC and consents have expired and the project has not been completed. Learned Counsel for the PP fairly 3 stated that the project will be commenced only after requisite EC/consents.
8. Thus, only issue which may require consideration by the PCB is the compensation for violation of environmental norms. The joint Committee has recorded such violations in the form of construction of canals while the Project Proponent has denied such constructions. The joint Committee has not taken correct project cost. Let a joint Committee of CPCB, State PCB and District Magistrate, with State PCB as nodal agency assess compensation, giving due opportunity to the PP within three months. The State PCB may finalize the issue of compensation after ascertaining facts on the basis of the joint Committee report in accordance with law. If aggrieved, the concerned party may take remedies against such decision as per law.
The application stands disposed of accordingly. A copy of this order be forwarded to State PCB by e-mail for compliance.
Adarsh Kumar Goel, CP K. Ramakrishnan, JM Sudhir Agarwal, JM Dr. Satyagopal Korlapati, EM April 27, 2022 Original Application No. 136/2016(SZ) SN 4