National Green Tribunal
V.Ramasubbu vs Union Of India Rep By The Secretary To ... on 1 August, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1: Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 149 of 2016 (SZ)&
M.A. No.46 of 2017 (SZ)
IN THE MATTER OF
V. Ramasubbu
Advocate
Door No.48/17,
Theppakulam Street,
Srivaikundam - 628 601.
...Applicant(s)
Versus
Union of India
Represented by the Secretary to Government
Ministry of Environment, Forests & Climate Change
Government of India, Paryavaran Bhavan,
New Delhi - 110 003 and Ors.
...Respondent(s)
For Applicant(s): Mr. A. Thirumalai Raja.
For Respondent(s): Mr. Meyyappan represented
Mrs. Me. Saraswathy for R1, R2 &R4.
Dr. D. Shanmuganathan for R3, R5 & R8.
Mrs. Shanmugavalli Sekar for R6 & R7.
Mr. Sanjay Upadhayay along with
Mr. S. Kamalesh Kannan for R9.
Mr. Arunchandran represented
M/s. Anithas Jacob - Intervenor.
Judgment Pronounced on: 01st August 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
Page 1 of 117
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.149/2016 (SZ) M.A. No.46/2017 (SZ) 01st August 2022. Mn.
Page 2 of 117Item No.1: Court No.1 BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 149 of 2016 (SZ)& M.A. No.46 of 2017 (SZ) IN THE MATTER OF V. Ramasubbu Advocate Door No.48/17, Theppakulam Street, Srivaikundam - 628 601.
...Applicant(s) Versus
1) Union of India Represented by the Secretary to Government Ministry of Environment, Forests & Climate Change Government of India, Paryavaran Bhavan, New Delhi - 110 003.
2) The Wildlife Preservation (Southern Region) Ministry of Environment, Forest and Climate Change C-2/A, Rajaji Bhawan Basant Nagar, CGO Complex, Chennai - 600 090.
3) The Principal Chief Conservator of Forest and Chief Wildlife Warden Panagal Maligai Saidapet, Chennai - 600 006.
4) The Member Secretary State Level Environment Impact Assessment Authority - Tamil Nadu 3rd Floor, Panagal Maligai, No.1, Jeenis Road, Saidapet, Chennai - 15.
5) The State of Tamil Nadu Represented by the Secretary to Government, Department of Environment and Forest, Government of Tamil Nadu Fort St. George, Chennai - 600 003.
6) The Chairman Tamil Nadu Pollution Control Board 76, Mount Salai, Guindy, Chennai - 32.
Page 3 of 1177) The District Environmental Engineer Tamil Nadu Pollution Control Board D.No.15-4-12-A3 Back to National Theatre SAR Complex, Theni - 625 531.
8) The Commissioner Directorate of Town and Country Planning 807, Annasalai, Chennai - 600 002.
9) M/s. Bahri Estate Private Limited Represented by its Managing Director 201-202, Park N Shop, L - Block, DLF City Phase - II Gurgaon - 122 002, Delhi.
...Respondent(s) The Secretary BBC - SOS Association Registration No.91/2021, Villa 269 D, Anandam Senior Citizens Community, „Bahri Beautiful Country‟, Genguvarpatty Village, G. Kallupatti Panchayat Periyakkulam Taluk, Theni District, Tamil Nadu.
... Intervenor For Applicant(s): Mr. A. Thirumalai Raja.
For Respondent(s): Mr. Meyyappan represented Mrs. Me. Saraswathy for R1, R2 &R4.
Dr. D. Shanmuganathan for R3, R5 & R8.
Mrs. Shanmugavalli Sekar for R6 & R7.
Mr. Sanjay Upadhayay along with Mr. S. Kamalesh Kannan for R9.
Mr. Arunchandran represented M/s. Anithas Jacob - Intervenor.
Judgment Reserved on: 29th April 2022.
Judgment Pronounced on: 01st August 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.Page 4 of 117
JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The above application was filed by the applicant alleging that the 9th Respondent had developed a township in S.F. No.179/B, 290B/2B of Genguvarpati Revenue Village, G. Kallukpatti Panchayat, Periyakulam Taluk, Theni District without obtaining necessary Environmental Clearance (EC) and other permissions under the environmental laws.
2. According to the applicant, the exact location of the project is on the way to Kodaikanal from Genguvarpati and the North and North-Western part of the project is surrounded by Reserve Forest of Kodaikanal hills. The Project Proponent had obtained the layout approval from the 8 th Respondent to construct the building. Based on the 8th Respondent‟s approval, the Panchayat Board of G. Kallupatti sanctioned permission to start construction works. The Government of Tamil Nadu had declared 60,895.482 Hectares of forest land of Western Ghats as Kodaikanal Wildlife Sanctuary which includes Murugamalai Reserve Forest, Perumalmalai Reserve Forest etc. The said project is exactly adjacent to the Reserve Forest of Kodaikanal and so, it is well within the eco-sensitive zone of Kodaikanal Wildlife Sanctuary.
3. Further, according to the applicant, the project location has high density of natural ephemeral streams which are originated from the Kodaikanal Wildlife Sanctuary. No Environmental Clearance (EC) had been obtained for commencement of the project which is a prerequisite under the EIA Notification, 2006. The 9th Respondent submitted an application for Environmental Clearance (EC) on 22.01.2016 which is still pending and under examination with office of the 4th Respondent. Without getting prior Environmental Clearance (EC), the project work has been started and hundreds of houses and hotels were constructed and still construction work is going on and they had sold certain houses as well.
The 9th Respondent had also established concrete mixture factory unit within the project site which is under operation. The blue metal Page 5 of 117 excavated from the Kodaikanal Hill was utilized for the said concrete mixture factory.
4. Though complaints have been made to the authorities, no action was taken. That prompted the applicant to file this application seeking the following reliefs:-
"(i) To directed the fourth respondent to not concede the application for environment clearance, submitted by the ninth respondent.
(ii) To directed the first respondent and seventh respondent to prosecute the ninth respondent for violation of Environment Protection Act.
(iii) To direct the ninth respondent to take steps towards compensating and remedying the social and environmental damage caused.
(iv) To direct the ninth respondent to restore the natural streams as it is existed prior to the commencement of project."
5. The 9th Respondent filed counter denying the allegations and also challenging the maintainability of the application before this Tribunal. Townships and Area Development Projects covering an area greater than 50 Hectares and/or built up area greater than 1,50,000 Sq. Mtrs are covered under Clause 8 of the EIA Notification, 2006 and according to the applicant, it comes under Category "B1" project and requires prior Environmental Clearance (EC). According to the 9threspondent, this application is premature one and has to be dismissed on the point of maintainability alone. Even according to the admission of the applicant, the area mentioned is less and that much extent is not covered by the project. The applicant has to prove that it is a project under "B1 Category" which requires prior Environmental Clearance (EC) and without proving the same, application cannot be entertained by this Tribunal. The 9threspondent had entered into joint development agreement with other five companies for development of retirement houses and at the outset, they had submitted the application for around 121.84 Acres or 49.31 Hectares for residential housing plots and the same had been sanctioned by DTCP Layout Approval No.13 of 2009 dated 31.05.2009 and as per the approval, there were about 298 residential approved plots besides leaving area of open space reservation area and other areas as required under the Act including gifting the land for road and OSR area in favour of the panchayat and complied with all the conditions thereof for the said approval of the layout. According to the Page 6 of 117 9threspondent in their counter, this area will not fall under the reserved forest or within the Eco-Sensitive Zone of the Kodaikanal Wildlife Sanctuary and according to them, they had obtained all necessary No Objection Certificate (NOC) from all the departments and it is on the basis of the approval, construction for the project was stated. An application for obtaining NOC from State Level Environmental Impact Assessment Authority (SEIAA) for Phase- I for the proposed area of 49.31 Hectares and proposed an area of 31.03 Hectares which has been kept for different projects. With regard to Phase - II, they had submitted a fresh application for issuance of NOC and the same is pending for consideration. So, according to them there was no violation and there are not liable for any of the reliefs claimed in the application.
6. The 4th Respondent filed a counter statement stating that the prayer for directing the State Level Environmental Impact Assessment Authority (SEIAA) not to consider the application for Environmental Clearance (EC) is not maintainable. M/s. Bahri Estates Private Limited - 9th Respondent herein had originally applied for the Environmental Clearance (EC) for the area development project to the 4threspondent for a total land area of 8,03,301.3 Sq.Mt. (80 Hectares). The project proposal involves construction of Commercial, Hospital, Educational Institution, Mini Golf, Resort, Group Housing etc. It was found that the construction of the project was started before getting prior Environmental Clearance (EC). As such, it is a case of clear violation of notification as per the existing guidelines. As per the Office Memorandum dated 12.12.2012, there are some amendments to grant Environmental Clearance (EC) even in case of violation cases, but any activities, expansion and modernization of existing projects listed in the schedule to the said notification with capacity beyond threshold limits prescribed there under to obtain prior Environmental Clearance (EC) under the provision thereof. As instructed by the State Level Environmental Impact Assessment Authority (SEIAA) in letter dated 09.06.2014, the project proponent had furnished a letter of commitment and apology for the violation committed in letter dated 16.06.2014, as per the procedure adopted by MoEF&CC and the letter of apology was forwarded to the Government of Tamil Nadu, Environment & Forest Department to initiate credible action against the violation committed by the project proponent in letter No.SEIAA-
Page 7 of 117TN/F.2477/2014 dated 21.07.2014.The project proponent was informed by their letter dated 20.11.2014 that the project proposal is included in the list of cases involving violations of Environment (Protection) Act, 1986 and it stands delisted in the lists of proposals under process in SEIAA-Tamil Nadu. Since it falls under the violation category, action have been taken against the project proponent as per the procedure issued in the Office Memorandum and it is being held by the authorities for the reason that the Official Memorandum dated 12.12.2012 has been stayed by the National Green Tribunal, Southern Zone in Original Application No.135/2014 on 21.05.2014 and thereafter, it was transferred to the National Green Tribunal, Principal Bench, New Delhi. The project had been delisted by the authorities and they were taking steps to ensure further construction is stopped and they should not continue to violate the provisions of the Environment (Protection) Act, 1986 and EIA Notification, 2006. They would be issuing Environmental Clearance (EC) after following the procedure under EIA Notification, 2006 and they would be granting post-facto clearance for expansion, modernization only on the basis of guidelines given in this regard. According to them, since the project is covered under Category "B1" and Item No.8(b) of EIA Notification, 2006, and hence the applicability of protected areas/Wildlife Sanctuary/Eco-sensitive areas to this project does not arise.
7. The 3rd Respondent / Principal Chief Conservator of Forest filed a counter stating that Kodaikanal Wildlife Sanctuary lies in the Western Ghats falling in the revenue districts of Dindugul and Theni between falling 77o 26‟ and 77o 71‟ of East longitude and 100 20‟ and 100 42‟ of North latitude. The area was declared as a sanctuary vide G.O. No.143, Environment and Forest (FR.V) dated 20.09.2013 consisting 17 Reserved Forests of Kodaikanal Forest Division, 7 Reserved Forest of Dindigul Forest Division and 1 Reserved Forest of Theni Forest Division with the sanctuary headquarters at Kodaikanal. It was further contended that the forest in Kodaikanal Sanctuary being one of the parts of the Western Ghats has a unique topography, climate and hydrological factors to harbour varied flora and fauna within a limited area. The fantastic Western Ghats endear them as one of the best Bio-diversity Zones in Tamil Nadu. The forest of this sanctuary showed a remarkable diversity in composition, quality and condition. Most of the species are Page 8 of 117 endemic to this region and gradually more species are becoming rare, endangered, threatened and extinct. During the 21st meeting of the Indian Board for Wildlife held on 21.01.2002, a "Wildlife Conservation Strategy - 2002" was adopted, wherein it was decided that "Lands falling within 10 Kms of boundaries of National Parks and Sanctuaries should be notified as eco- fragile zones under section 39(v) of the Environment (Protection) Act and Rule 5 Sub rule (viii) & (x) of the Environment (Protection) Rule". Some of the State Government had raised concern over applicability of the 10 Kms range from the protected area boundary and informed that the most of the human habitation and other areas including important cities in these States would come under the purview of Eco-Sensitive Zone and will adversely affect the development. Considering the constraints communicated by the States, the proposal was re-examined by the National Board for Wildlife in its second meeting held on 17.03.2005 and it was decided that the delineation of Eco-Sensitive Zone would have to be site specific and relate to regulation, rather than prohibition of specific activities, unless and otherwise so required. The decision was communicated to all the State Governments for compliance vide letter dated 27.05.2005. Thereafter, Public Interest Litigation was also filed by the Goa Foundation as Writ Petition No.460 of 2004 before the Hon‟ble Supreme Court regarding the issuance of eco-sensitive zones and directions have been given by the Hon‟ble Supreme Court on these aspects. The Hon‟ble Supreme Court also directed that Eco-Sensitive Zone shall be 10 Km width by default till final notification of Eco-Sensitive Zone of the respective Protected Areas by the States/UTS was issued. As per the directions of the Hon‟ble Apex Court, the Ministry of Environment, Forest and Climate Change (MoEF& CC) had issued a Memorandum vide F.No.J- 11013/41/2006 - IA.II(1) dated 02.12.2009 indicating that every project attracting Environmental Clearance (EC) that fall within 10 Kms boundary of the National Parks and Sanctuaries will be subject to the recommendation of the Standing Committee of National Board for Wildlife (in the absence of delineation of Eco-Sensitive Zone of Kodaikannal Wildlife Sanctuary).No proposals for obtaining clearance from the Standing Committee constituted by the National Board of Wildlife through State Board of Wildlife for the activities carried out in the project area has been received from the ninth respondent. Since the area falls within the preview of Eco-Sensitive Zone i.e., Page 9 of 117 in absence of declaration of Eco-Sensitive Zone for Kodaikanal Wildlife Sanctuary and till the States notify the Eco-Sensitive Zone for the Protected Areas, 10 Kms width around the protected areas will be considered as Eco- Sensitive Zone by default and to undertake any developmental activities requiring Environmental Clearance (EC), prior clearance from the Standing Committee of the National Board for Wildlife will be mandatory. Kodaikanal Wildlife Sanctuary was constituted vide G.O. (Ms.) No.143 Environment and Forest Department (FR.5) dated 20.09.2013. Now, the project area lies adjoining to Kodaikanal Wildlife Sanctuary within 35 meters. The report submitted by the Forest Range Officer, Perumpallam Range showed that NOC was issued by the District Forest Officer, Kodaikanal vide Ref. No.10722/2007/D1 dated 24.01.2008 to establish only agricultural farm in various survey numbers located in Genguvarpatti Village of Periyakulam Taluk of Theni District whereas the ninth respondent have stated developing the land / layouts for outsides / construction of office building and residential quarters / formation of nursery etc., in 2009 before the declaration of Kodaikanal Wildlife Sanctuary, which was subsequently notified during 2013. The project area is adjacent to the Palani Hills Southern Slope Reserved Forests, Pattarai Parai Saragam is part of the Kodaikanal Wildlife Sanctuary. The proposal for issuance of draft notification in connection with delineation of Eco-Sensitive Zone of Kodaikanal Wildlife Sanctuary is under the active consideration of the Government of Tamil Nadu. As per Government of India notification vide S.O. No.1533 dated 14.09.2006, Environmental Clearance (EC) is essential for the establishment of townships and area development projects (vide 8 (b) of Schedule enclosed to the notification) covering an area greater than or equal to 50 Hectare and or built up area greater than or equal to 1,50,000 Sq. Mtrs. The project proponent had approached the State Environmental Impact Assessment Authority (SEIAA), Tamil Nadu for getting Environmental Clearance (EC) and the same is pending. The explanations had been called from the ninth respondent in this regard by the District Forest Officer, Kodaikanal on 07.12.2016. According to the this respondent, the present establishment of Township projects in their work premises without obtaining statutory clearance from the competent authority was illegal. So, they prayed for passing appropriate orders, accepting their contentions.
Page 10 of 1178. Respondents No.6 & 7 filed counter affidavit contending that the project attracts Environmental Clearance (EC) as per S.O. 1533 of MoEF&CC, GOI, New Delhi dated 14.09.2006 as amended by Notification dated 01.12.2009. As per the notification, any project activity specified in Category "B" will be treated as Category "A", if located in whole or in part within 10 Km from the boundary of (i) Protected Areas notified under the Wildlife (Protection) Act, 1972, (ii) Critically Polluted areas as notified by the Central Pollution Control Board from time to time, (iii) Notified Eco-Sensitive areas, and (iv) Inter State boundaries and international boundaries and the total extent was given as 56.25 Hectares and revealed that this project was attracting the EIA Notification. The unit did not obtain necessary clearance from the authorities. The unit was inspected on 17.05.2016 and Show Cause Notice was issued for operating the unit without obtaining consent from the board and the unit sent its reply dated 27.05.2016 stating that they had applied for Environmental Clearance (EC) with relevant documents to SEIAA and they are awaiting clearance from the SEIAA and further stating that they had not started the construction as they are awaiting SEIAA‟s clearance. They had again inspected on 04.10.2016 and it was noticed that the unit had constructed some villas and construction of some villas were also in progress. The District Environment Engineer had informed that permitting the construction of building at the site is under the purview of DTCP. The unit had provided mobile concrete mixture unit and are having moulds for manufacturing of concrete solid blocks which was not under operation during inspection. They had provided D.G. Sets of 250 KVA - 2 Nos. and 25 KVA - 1 which are in operable condition. They have not produced any plan approval to DTCP. In its letter, they had informed that there is no construction activity happening in areas like hotels, resorts, convention centres, hospitals etc. which is proposed to be constructed and they are not constructing any of these projects. So, they prayed for accepting their contentions and passing appropriate orders.
9. The 8th Respondent filed reply affidavit contending that the Government of Tamil Nadu had issued Government Order vide G.O. (Ms.) No.255 Rural Development (C2) Department dated 18.08.1997 in which it was clearly stated that the Executive Authority of Rural local bodies have to obtain prior Page 11 of 117 concurrence of the Director of Town and Country or Joint Director of Town and Country Planning or Regional Deputy Directorate of Town and Country Planning for any layout proposal. The above mandatory condition was notified by the Government of Tamil Nadu and it was incorporated in Rule 3 of Tamil Nadu Panchayats Building Rules, 1997. The Directorate of Town and Country Planning is a Government Organization functioning under the provisions of Town and Country Planning Act, 1971 and the function of this Department is preparing the Master Plans and Detailed Development plans etc., for various Local Planning area and issuing technical approval for various developments received from local bodies in Tamil Nadu. Any person intend to carry out any development in the area other than the planning Area shall make an application in writing to local Authority for permission and the Local Authority before according permission U/s 47A(1) shall obtain prior concurrence of Director of Town and Country Planning. Any layout development has been approved by the Executive Authority who shall get prior concurrence of the Director of Town and Country Planning or his authorized Joint Director or Deputy Director of Town and Country Planning for such approval. The Government of Tamil Nadu has accorded power delegation to approve layout upto 5.00 Acres in Rural area vide G.O.Ms.No. 71 R.D & CA Department dated, 16.06.2003. Accordingly, all the Layout developments and Building developments shall obtain Technical Approval/Planning Permission from Town and Country Planning Department. The application from M/s. Bahri Estates Private Limited/9th Respondent requesting layout approval for an extent of 49.31.00 Hectares in Survey Nos. 179B, 209B/2B etc., of Genguvarpatti Village of G. Kallupatti Panchayat through the President G.Kallupatti Panchayat was received by Deputy Director of Town and Country Planning, Madurai Region on 14.02.2008. The proposed layout gaining access from the Vathalagundu to Kodaikanal Road and it lies in foot hills of Kodaikanal in the Non-Planning area and as well as Genguvarpatti Village was not included in the list of Hill Villages notified in G.O.Ms. No. 19, Housing Urban Development dated 24.03.2003. Since the extent of layout is more than 5 Acres, the layout proposal was scrutinized and forwarded to Directorate of Town and Country Planning, Chennai along with Remarks and Inspection Report of the Deputy Director of Town and Country Planning, Madurai Region. The 9th Page 12 of 117 Respondent's layout proposal was technically analyzed and approved by the Directorate of Town and Country Planning and numbered as LP/DTCP No. 13/2009 vide Roc. No.3082/2008 dated 09.03.2009. The details of the approved layout was as follows:
"T - 121.84 Acres (49.31.00 Hect.)
Allotted Plots - 298 Nos.
OSR (Open Space) - 552210,0 Sq.ft. (12.68 Acres) (10.40%)
Shops - 6.34 Acres (5.20%)
Nursing Home - 2.15 Acres
Educational purpose - 2.90 Acres (4.14%)
Mini Golf - 10.1190 Acres (8.29%)"
10. It is further contended that the above approved layout was sent to the President, Genguvarpatti Village for its final approval. The 9th Respondent also handed over the layout, Roads and OSR like open space to local body (Genguvarpatti Panchayat) through Gift Deed. This technically approved layout was also approved by the President of G.Kallupatti Panchayat vide Resolution No. 58/09 dated 31.05.2009. The technically approved layout has to be developed without any deviation and buildings shall be constructed by the individual, who is owner of the plot shall construct or develop according to the layout condition annexed along with the approved layout. Each plots of the approved layout has its own regulations, such as setbacks plot coverage etc. and accordingly, the development has to be made. If various developments made in various plots by the various owners is not construed as a Group Development. All the developments in Planning Area or Non- Planning Area shall satisfy the Development Control Regulations, Public Building Rules, 1993 and Panchayat Building Rules, 1997. According to the Ministry of Environment Forest Notification, S.O. 3252(E) dated 27.12.2014, layout or Township development exceeding, 50 Hectares shall obtain Environmental Clearance from the Ministry of Environment, Forest, Government of India. The extent of 9th Respondent's layout proposal is less than 50 Hectares. The plots in the approved layouts are legally subdivided lands for the specific purpose and the developments shall be made as per the layout and its conditions. All the residential developments in the approved layout are individual private developments. So, obtaining NOC from the Ministry of Environment was not insisted and they prayed for accepting their contentions and passing appropriate orders.
Page 13 of 11711. The applicant filed rejoinder to the counter filed by the respondent denying the allegation and reiterating their contentions that the project requires prior Environmental Clearance (EC) and it is abutting the eco-sensitive zone of Kodaikanal Wildlife Sanctuary and without getting prior permission from them, no construction/activity should have been carried out by the 9th Respondent to establish their township project. So, they prayed for accepting their contentions and passing appropriate orders, as prayed for in the application.
12. Vide Order dated 08.01.2020, in order to ascertain the clear picture of the area of construction and proximity of the project to the Reserve Forest and Kodaikanal Wildlife Sanctuary and also whether there was any water body available near and within the project area which requires preservation and protection, this Tribunal appointed a Joint Committee comprising of (i) Regional Office, MoEF&CC, Chennai (ii) Representative of Chief Wildlife Warden, State of Tamil Nadu, (iii) Central Pollution Control Board (CPCB),(iv) Tamil Nadu State Pollution Control Board (TNPCB), (v) District Collector - Dindugul District and (vi) Commissioner - Directorate of Town and Country Planning (DTCP), Tamil Nadu to inspect the area in question and consider the question regarding the environment impact of the project in Eco-Sensitive area in forest wildlife and existing water bodies and whether the project proponent had started their construction without getting Environmental Clearance (EC) and if so, what is the extent of construction made in that area covered for the project and also the applicability of EIA Notification, 2006 for the project and if there is any violation, the Joint Committee was directed to specify the violation aspects and the extent of violation having impact on environment and the action taken by the authorities for the said violation and submit a report to this Tribunal.
13. The Tamil Nadu State Pollution Control Board (TNPCB) was designated as nodal agency for coordination and also providing necessary logistic for this purpose.
14. The matter was taken up on 25.08.2020 and this Tribunal had considered the Joint Committee report received through e-mail on 25.08.2020 and extracted in Para (3) of the order which reads as follows:-
Page 14 of 117"Joint Committee report in compliance with the Order dated 08.01.2020 of Hon'ble NGT (SZ), Chennai in O.A. No.149 of 2016 in the matter of Shri. V. Ramasubbu Vs Union of India & Ors.
1. Background of the Project:
M/s. Bahri Estates Pvt. Ltd. is contracting company that specialized in layout development and rendering construction and hospitality services to Senior Citizens. The company manufactures curb stones, pavers, and construction blocks (Solid & Hollow) too. M/s. Bahri Estates Pvt. Ltd. has developed a layout for retirement community namely "Anandam" at Genguvarpatti village, G. Kallupatti Panchayat, Periyakulam Taluk, Theni District of Tamilnadu.
The Details of the layout is as follows:
Sl. No. Descriptions of the project Area / No. of plots
(i) Total Area of the site 121.84 Acres (49.31 Hectares)
(ii) Allotted plots 298Nos.
(iii) OSR (Open space) 552210 sq. ft (12.68Acres)
(iv) Shops 6.34 Acres
(v) Nursing Home 2.15Acres
(vi) Educational Purpose 2.90Acres
(vii) Mini Golf 10.119 Acres
As informed, out of 298 allotted plots, 172 plots including undivided shares are sold out to the individual. Now, 103 villas are constructed. Built up area of each villa is at about 950 Sq.
ft. Total built up area of the villas is 97850 Sq. ft. (9093.86 m 2). At present 40 villas are occupied by the owners and remaining villas have occasionally occupied.
M/s. Bahri Estates Pvt. Ltd. has obtained approval from the Commissioner of Town and Country Planning, Chennai for construction of club house vide approval no. 27280/2012/PA1 dated 23.04.2013 for the construction of club house consisting of Restaurant and kitchen, Entertainment Room, Bar, Library, Reception, Office administration, Gymnasium and Yoga hall, Consultancy Room, Spa and saloon with the built up area 38855.64 Sq. ft (3611.11 m 2) in plot area 79081.00 Sq. ft. (7349.53 m 2). Club house constructed but not yet commissioned.
2. Statutory status:
Under the provision of the EIA Notification, 2006, construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the schedule annexed to the said notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India, as applicable, only after receipt of the prior environment clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority ("SEIAA").
Under the provisions of EIA Notification, 2006, Environment Clearance for Building and Construction Projects, Area Development Projects and Townships are covered under entry 8
(a) & (b) of the Schedule to the EIA Notification, 2006. The entry 8(a) and 8(b) of the Schedule of EIA Notification 2006 says:
"8(a): Building and Construction projects - ≥ 20000 sq. m. and < 150000 sq. m. of built-up area - (built up area for covered construction; in the case of facilities open to the sky, it will be the activity area) 8(b): Townships andArea Development projects - Covering an area ≥ 50 ha. Andor built up area >150000 sq. m. - (All projects under Item 8(b) shall be appraised as Category B1)."
According to the EIA Notification and its amendment, general condition shall not apply to the project activity under schedule 8(a) and 8(b). The aforementioned entries 8(a) and 8(b) are qualified as category „B‟ projects under the EIA Notification, 2006 and the said projects are required to be appraised by the State Level Expert Appraisal Committee (SEAC) and approved by the State Environmental Impact Assessment Authority (SEIAA).
3. Meeting of Joint Committee:
An introductory meeting of the Joint Committee was held on 19.03.2020 (FN) in the O/o District Environmental Engineer, Dindigul and the Committee members deliberated the TOR of the Committee and the issues involved therein. In continuation to the discussion held, the Joint Committee visited the site on 19.03.2020 (AN) along with all the respective local authorities concerned. During the site visit an opportunity was given to the project developer (M/s. Bahri Estates Pvt. Ltd.) to present their views on the project. On behalf of Page 15 of 117 M/s. Bahri Estates Pvt. Ltd., Shri. M. Pandiyarajan, Assistant General Manager presented the status of the project interalia including the NOCs / licenses obtained from the departments concerned.
As informed by the Project proponent, the land for this project under consideration was purchased from the public by various entities as under:
1. M/s. Sushma Sales Pvt. Ltd., - 56.33 Acres.
2. M/s. Anpra Farms Development Pvt. Ltd., - 7.5 Acres.
3. M/s. Bahri Cuisines Pvt. Ltd., - 18.28 Acres.
4. M/s. Suprava Agro Estates Pvt. Ltd., - 37.83 Acres.
5. M/s. Venkatesh Agro Estates Pvt. Ltd., - 1.90 Acres.
TOTAL - 121.84 Acres (49.31 Ha.) M/s. Bahri Estates Pvt. Ltd. has entered agreement with above entities for further process. Project developer has made available the relevant project documents to the Committee.
4. Observation and recommendations:
The Joint Committee perused the documents made available during the visit and observed that Project developer has obtained NOC / communication from various departments as mentioned under:
(i). NOC from Tamilnadu State Forest Department vide letter No. 10772/07 dated 24/01/2008, wherein NOC was accorded for 128 Acres (51.82 Ha.) for the purpose of agricultural farming only ( Annexure - I).
(ii). Project developer has obtained Certificate from Tahsildar, Periyakulam Taluk vide letter dated 22/2/2008, for the development of layout in an area of 49.765 Ha. (Annexure - II).
(iii). A communication dated 12/07/2011was issued by the Tamilnadu State Forest Department that Project developer shall maintain Buffer Zone between the project site and southern reserve forest and follow other conditions in the earlier NOC dated 24/01/2008 while carrying out new activities (Layout development). (Annexure - III).
(iv). Approval for the development of layout in an area of 49.31 Ha. has been obtained from DTCP vide approval NO.13/2009 dated 18/03/2009 ( Annexure - IV).
From the above NOC and communication obtained from the Tamilnadu Forest Department, it has been observed that project developer has more than 50 Ha. of area in their possession from 2008 to 2011. Presently, project developer claims that the adjoining area of 7 acres comprising of Survey No. 426,428,429,441/1 is not in their name and it will be purchased as and when required. As a result they claim that the total project area is less than 50 Ha. In such circumstances, it is pertinent to mention here that in the absence of the ownership one can not get the NOC. Further, the NOCs obtained for 128 Acres (51.82 Ha.) from the Forest Department has not been amended till date.
During the visit, it has been observed that few project related activities viz. Nursery, composting yard etc., are being undertaken in the adjoining area of the project, which is not part of the project area. But considered to be activity area.
The developer in a calculated approach has excluded 7 Acres of the land from the total area of layout in order to avoid the process of EC. Based on the NOCs obtained and actual utilization of adjoining area, the area of project activity is more than 50 Ha. and thus it attracts the provisions of schedule 8(b) (B1 category) of the EIA Notification, 2006, which needs to be appraised by the SEIAA-Tamilnadu. The project site is 35 m away from the boundary of the Kodaikanal Wildlife Sanctuary. Since the project activity falls within 10 km of eco-sensitive zone (in the absence of delineation of Eco-sensitive Zone of Kodaikanal Wildlife Sanctuary prior to the Gazette notification dated 23/01/2020), it is mandatory requirement of getting Clearance from the Standing Committee of National Board for Wildlife (NBWL). Further, Govt. of India vide S.O. 412(E) dated 23/01/2020 has notified the Kodaikanal Wildlife Sanctuary, wherein notified an area to an extent of 0 km to 1.0 km around the boundary of the Kodaikanal Wildlife Sanctuary as Eco-sensitive Zone.
Based on the direction of the Tamilnadu State Pollution Control Board, the developer vide their letter dated 02/04/2014 applied for Environment Clearance before the State Level Environment Impact Assessment Authority- Tamilnadu and it appears that the matter still pending during the subjudice of the above matter. It is pertinent to mention that vide Notification No. S.O. 804 (E) dated 14 th March 2017 provided a six month window for the entities not complying with environment regulation under Environment Impact Assessment Notification, 2006, i.e., those entities which did not obtain prior Environment Clearance to apply for grant of Environment Clearance in order to bring them under compliance with the prevalent environment laws. Subsequently, MoEF&CC also issued an Office Memorandum dated 9th September, 2019 for consideration of violation proposals through lateral entry. As per the said O.M., proposals involving violation can be considered Page 16 of 117 as per the notification no. S.O. 804 (E) dated 14/03/2017 only, if it is applied during the window period 14/03/2017 to 13/09/2017 and 14/03/2018 to 13/04/2018 (or) prior to the violation window period. It appears that the developer has failed to avail this opportunity.
During the visit, the natural drains / nallah passing through the project area have been verified with revenue authorities / FMB and observed that the existing natural seasonal drains have not been realigned / obstructed. Further, M/s. Bahri Estates Pvt. Ltd. has constructed the bridge on the natural drains after obtaining requisite permissions from the Tamilnadu Public Works Department vide letter dated 3.02.2011.(Annexure - V).
Based on the site visit, the District Environmental Engineer, Tamilnadu State Pollution Control Board, Theni vide Proceeding No.DEE/TNPCBD/TEN/F.0001(INV)/W/2016 dated 18/05/2016 issued Show cause Notice to the developer. In response to the Show cause Notice, the Project developer vide letter dated 27/05/2016 replied that they have applied for the Environment Clearance from the SEIAA- Tamilnadu with relevant documents and that they are awaiting clearance from the SEIAA. In this regard, District Environmental Engineer, TNPCB, Theni vide letter No.F.0002/DEE/TNPCB/Theni/2016/ dated 21/06/2016 submitted report to the TNPCB Head Office, Chennai to take necessary action against the developer.
It appears that, SEIAA-TN vide Office Memorandum dated 12.12.2012 delisted the application of M/s. Bahri Estates Pvt. Ltd. from the list of proposals under process in SEIAA- TN, since it falls under the violation category and action have been taken against the Project Proponent by SEIAA-TN. The above mentioned office memorandum dated 12.12.2012 has been stayed by this Green Tribunal, Southern Zone in O.A. No. 135/2014 on 21.05.2014 and thereafter it was transferred to the Hon‟ble NGT, Principal Bench, New Delhi.
The District Forest Officer, Kodaikanal Forest Division has issued NOC in its Letter No. D1/10772/07 dated 24.01.2008 in favour of M/s. Bahri Estates Pvt. Ltd., to establish agriculture farm in the land of 128 acres, subject to the condition that it shall not cause any damage to Reserve Forest, injury to wild animals and without any encroachment. The unit has approached DTCP for layout approval of 49.31 Hectares. The Commissioner, DTCP has issued approval vide letter No 3082/08/LA2/ Dated 09.03.2009 with a list of conditions that it should handover the land for OSR (Open Space Reserved) to the local body. Total No. of Plots is 298 with Shops, Nursing Home, Educational Institution and Mini Golf. Subsequently, the unit has handed over the land for the above purpose to the local body vide its Gift Deed dated 15.04.2009 and Ratification Deed dated 14.09.2010.
The Project Developer has started sale of plots to the public. The unit has obtained further approval from the commissioner, Town and country planning, Chennai for construction of Club House with a condition to obtain consent from the Tamilnadu Pollution Control Board for discharge of waste water vide approval No.27280/2012/PA1 dated 23.04.2013.
The Project developer vide their letter dated 12.02.2014 has filed an application to District Environmental Engineer, Tamilnadu Pollution Control Board, Theni under Water and Air Act. The DEE, Theni, vide letter No. F.0001/(INV APP)/AEE/TNPCB/Theni/2014 dated 28.03.2014 returned the applications stating that clearance from SEIAA is mandatory, since the project built up area is more than 20,000 Sq.mt.
Subsequently, the developer has approached SEIAA for grant of Environmental Clearance under Environment (Protection) Act, 1986. The application has been submitted by the Project developer for development of Township in 49.31 Hectares. The Member Secretary, SEIAA vide letter dated 02.04.2014 instructed the developer not to commence any activity other than cleaning of the site, fencing the site and putting up temporary structure for accommodation of labour, along with basic facilities like toilets and water supply, made as a temporary arrangement.
Based on the representation received from Shri. Ramasubbu, Advocate, Srivaigundam, Thoothukudi District, the site was inspected by TNPCB, Theni Office on 17.05.2016 and Show cause notice was issued for operating the unit without obtaining Consent from the TNPCB vide Proceeding dated 18/05/2016. Action taken report was sent to the petitioner Shiri. Ramasubbu, Advocate, vide TNPC Board, Theni, letter No. F.0001 (N.A)/DEE/TNPCB/2016/ dated 25/05/16. The project developer replied that they have applied for SEIAA Clearance with relevant documents and the same is under process vide their letter dated 27/05/2016. Report was submitted to Head Office, Chennai to take necessary action against the developer vide TNPCB, Theni letter No.F.0002/DEE/TNPCB/ Theni/2016/ dated 21/06/2016.
During the inspection of the site again on 04.10.2016 by TNPCB official, it was noticed that the unit had constructed some villas and construction of some villas are also under Page 17 of 117 progress. The unit has established mobile concrete mixture unit and are having moulds for manufacturing of concrete solid blocks. Manufacturing of concrete blocks was not under operation during inspection. The unit had installed D.G. Sets of 250 KVA - 2 Nos. and 25 KVA -1 No and were in working condition.
The unit is continuing the construction activity without obtaining SEIAA clearance and consent from the TNPC Board. The unit continues to violate the provisions of Water & Air Acts. Hence, TNPCB, Theni vide letter No. F.0002/DEE/TNPCB/ Theni/2016/ dated 06.10.2016 submitted report to the TNPCB, Head Office, Chennai - for taking necessary action against the unit.
Subsequently, the developer has submitted a letter to SEIAA stating that the project has been duly approved as residential layout vide DTCP sanction letter 3082/2008/LA2 dated:
09.03.2009 & approved layout no 13/2009 and for commercial, Hospital, Educational Institution, Mini Golf, Resort, Group housing and for owner‟s use which are all future proposed developments in the same layout in 49.31 hectares (less than 50 hectors). Further stated that they have submitted an application for the grant of EC to develop the layout Phase II to the extent of 31.02 hectares as expansion of the same project. The project named as "Bahri Beautiful Country". The plots are being registered in the name of buyers. After the registration of the plot, the ownership goes to the individual buyer‟s name and the construction work is being taken up by the developer on behalf of individuals after obtaining due approval from local panchayat as per the request of the buyer after the registration of plot.
Reportedly, for various business reasons, the project developer is not proceeding and withdrawing the proposed phase II of 31.02 hectares at present.
The Committee has inspected various constructions of villas, Oddai flowing through the project site, collection system of sewage, vermicomposting and distance between reserved forest and the project site.
Thiru. V. Ganeshan, Village Administrative Officer, Genguvarpatti and Thiru.S.Stephen, Deputy Inspector of Survey, Periyakulam Taluk has shown the records of Revenue for various oddai in the project site. There are four oddais in the project site. Widths of the oddais are not altered in the site. The unit has left 35 meters buffer zone between the boundary of reserved forest and the project activity area.
The sewage from the villas are collected and disposed periodically through tankers authorized by local body. Also the unit is converting the Bio degradable solid waste through vermicomposting.
5. Committees views based on terms of reference as per NGT order:
Sl. Terms of reference Observations of the committee No. To inspect the area in question Regarding the eco-sensitive area: The project activity falls
(i) and consider the question within 10 km of eco-sensitive zone (in the absence of regarding the environment delineation of Eco-sensitive Zone of Kodaikanal Wildlife impact of the project in Eco- Sanctuary prior to the Gazette notification dated 23/01/2020), Sensitive area in forest wildlife it is mandatory requirement of getting Clearance from the and existing water bodies and Standing Committee of National Board for Wildlife (NBWL).
whether the project developer Further, Govt. Of India vide S.O. 412(E) dated 23/01/2020 had started their construction has notified the Kodaikanal Wildlife Sanctuary, wherein without getting environment notified an area to an extent of 0 km to 1.0 km around the clearance. boundary of the Kodaikanal Wildlife Sanctuary as Eco sensitive zone.
Whether the project developer had started their construction without getting environment clearance: As per the affidavits submitted by SEIAA and as per the records of TNPCB, it is observed that, the unit has continued the project related activity without obtaining environmental clearance from SEIAA and consent from the TNPC Board. The unit continues to violate the provisions of Water & Air Acts, as per the report submitted by TNPCB, DEE, Theni vide TNPCB, Theni letter No. F.0001 (N.A)/DEE/TNPCB/2016/ dated 25/05/16& F.0002/DEE/TNPCB/ Theni/2016/ dated 06.10.2016. In this regard, TNPCB vide Proceeding dated 18/05/2016 issued Show cause Notice to the Unit.
Page 18 of 117The Member Secretary, SEIAA vide letter dated 02.04.2014 instructed the Project developer not to commence any activity other than cleaning of the site, fencing the site and putting up temporary structure for accommodation of labour, along with basic facilities like toilets and water supply, made as a temporary arrangement.
Though the Project developer has obtained approval from DTCP, requisite Consent & Authorization has not been obtained from the TNPCB.
Impact of the project in Eco-Sensitive area in forest wildlife and existing water bodies:
The Committee has inspected various constructions of villas, Oddai (small seasonal streams) flowing through the project site, treatment system of sewage, solid waste disposal and distance between reserved forest and the project site. Committee has shown the records of Revenue for various oddai in the project site and verified the existence along with revenue officials. There are four oddais in the project site. Widths of the oddais are not altered in the site. However, bridges are constructed along the cross roads within the developed project area for free flow of water during monsoon. The Project Developer has left 35 meter buffer zone from the reserved forest.
The sewage from the villas are collected and disposed periodically through tankers authorized by local body. Also the unit is converting the Bio degradable solid waste through vermicomposting.
(ii) Whether the project proponent From the NOC and communication obtained from the had started their construction Tamilnadu Forest Department, it has been observed that without getting environment project developer has more than 50 Ha. of area in their clearance and if so, what is the possession from 2008 to 2011. Though the project developer extent of construction made in claims that the total project area is less than 50 Ha., it is that area covered for the project pertinent to mention here that in the absence of the ownership and also the applicability of EIA one can not get the NOC. Further, the NOC obtained for 128 Notification 2006 for the project Acres (51.82 Ha.) from the Forest Department has not been and if there is any violation. amended till date.
During the visit, Committee has observed few project related activities viz. nursery, composting yard etc., are being undertaken in the adjoining area of the project, which is not part of the project area. But, considered to be activity area. Accordingly, it is observed that the area of layout development and allied activities exceeds 50 Ha., therefore obtaining Environmental Clearance under EIA Notification, 2006 is mandatory.
(iii) Area of construction and Out of 298 allotted plots, 172 plots including undivided proximity of the project to the shares are sold out to the private individuals. Presently, 103 reserve forest and Kodaikanal villas are constructed. Built up area of each villa is at about Wildlife Sanctuary. 950 Sq. ft. Total built up area of the villas is around 97850 Sq.
ft. (9093.86 m2). At present 40 villas are occupied by the owners and remaining villas have occasionally occupied.
The project site is 35 m away from the boundary of the Kodaikanal Wildlife Sanctuary. Since the project activity falls within 10 km of eco-sensitive zone (in the absence of delineation of Eco-sensitive Zone of Kodaikanal Wildlife Sanctuary prior to the Gazette notification dated 23/01/2020), it is mandatory requirement of getting Clearance from the Standing Committee of National Board for Wildlife (NBWL). Further, Govt. of India vide S.O. 412(E) dated 23/01/2020 has notified the Kodaikanal Wildlife Sanctuary, wherein notified an area to an extent of 0 km to 1.0 km around the boundary of the Kodaikanal Wildlife Sanctuary as Eco sensitive zone.
Page 19 of 117(iv) Whether there is any water body During the visit Committee observed that there is no any available near and within the water body available near and within the project area. Further, project area which requires the natural drains / oddais passing through the project area preservation and protection. have been verified with revenue authorities / FMB and observed that the four existing natural seasonal drains / oddais in the project area have not been realigned / obstructed. Widths of the oddais are not altered. Further, M/s. Bahri Estates Pvt. Ltd. has constructed the bridge on the natural drains after obtaining requisite permissions from the Tamilnadu Public Works Department.
(v) If there are violations, the Based on the records made available during the visit, it has committee may also specify the been observed that the unit continuing the construction violation aspects and the extent activity without obtaining environmental clearance and of violation having impact on Consent & Authorization from the authorities concerned. The environment and the action unit violated the provisions of Air & Water Acts. In this taken by the authorities for the regard, TNPCB, Theni vide Proceeding dated 18/05/2016 said violation and submit a issued Showcause Notice to the unit for continuing the project report. activity without obtaining Consent from the Board.
Based on the direction of the Tamilnadu Pollution Control Board, the developer vides their letter dated 02/04/2014 applied for Environment Clearance before the State Level Environment Impact Assessment Authority- Tamilnadu and it appears that the matter is still pending.
SEIAA-Tamilnadu vide letter dated 02.04.2014 instructed the developer not to commence any activity other than cleaning of the site, fencing the site and putting-up temporary structure for accommodation of labour, along with basic facilities like toilets and water supply, made as a temporary arrangement.
MoEF&CC vide Notification No. S.O. 804 (E) dated 14 th March 2017 provided a six month window for the entities not complying with environment regulation under Environment Impact Assessment Notification, 2006, i.e., those entities which did not obtain prior Environment Clearance to apply for grant of Environment Clearance in order to bring them under compliance with the prevalent environment laws. Subsequently, MoEF&CC also issued an Office Memorandum dated 9th September, 2019 for consideration of violation proposals through lateral entry. As per the said O.M., proposals involving violation can be considered as per the notification no. S.O. 804 (E) dated 14/03/2017 only, if it is applied during the window period 14/03/2017 to 13/09/2017 and 14/03/2018 to 13/04/2018 (or) prior to the violation window period. It appears that the developer has not availed this opportunity also.
Conclusion:
(i). The Joint Committee, based on the site visit, observed that the area of said layout development and allied activities exceeds 50 Ha. and thus obtaining Environmental Clearance under the provisions of EIA Notification, 2006 is mandatory.
(ii). The project activity falls within 10 km of eco-sensitive zone (in the absence of delineation of Eco-sensitive Zone of Kodaikanal Wildlife Sanctuary prior to the Gazette notification dated 23/01/2020), it is mandatory requirement of getting Clearance from the Standing Committee of National Board for Wildlife (NBWL). Even after the Gazette notification dated 23/01/2020, Clearance from NBWL is mandatory, since the project site is just 35 meter away from the boundary of notified Kodaikanal Wildlife Sanctuary.
(iii). The developer carried out / continued to do the manufacturing of pavers, construction blocks both hollow and solid and readymade concrete mix, vermicomposting and collection & transportation of sewage in contravention of section 25 of Water (Prevention and Control of Pollution) Act, 1974.
(iv). The Project developer has established three number of DG sets in contravention of section 21 of Air (Prevention and Control of Pollution) Act, 1981.
(v). In view of above observations and clarifications obtained from departments concerned, the project developer has further planned for a second phase of the project in the same area having an extend of about 31.02 hectares. However, the proposal submitted to SEIAA-Tamil Nadu / DTCP stands withdrawn as informed by the Project Developer."Page 20 of 117
15. Thereafter, this Tribunal had passed the following order:-
"4. It is seen from the report that construction was made without getting Environment Clearance and against the permission granted by the Forest Department and no action was taken by the regulating authorities. Further, the committee has not assessed the environmental compensation which they were directed to assess if there is any violation.
5. So under these circumstances, we feel it appropriate to direct the regulating authorities to submit further action taken report and also direct the committee to assess the environmental compensation for the violation committed and submit a further report regarding the same. In the mean time, the parties are at liberty to file their objections if any, to the committee report as well.
6. The committee as well as the regulating authority are directed to file their further report and action taken report respectively on or before 9.11.2020 to this Tribunal through e-filing at [email protected]."
16. The 9th Respondent filed interlocutory applications viz., I.A. Nos.74 of 2020 (SZ) & 75 of 2020 (SZ) to advance the hearing of the case and also to recall the order dated 25.08.2020 on the ground that no opportunity was given to them to file objection to the report and without considering the objection, there was a direction issued by this Tribunal to file further action taken report, including imposition of environmental compensation on the premise that there was violation committed by the 9th Respondent.
17. This Tribunal, by order dated 16.09.2020, advanced the hearing to that date from 09.11.2020 and disposed of the interlocutory application viz., I.A. No.75 of 2020 (SZ) on the same date by a separate order, instead of recalling the order in its entirety, this Tribunal observed that there was no order passed on merit on the report submitted by the Joint Committee but only directed that since they found that there were certain violations, they have been directed to take further steps of course action to be taken including imposition of environmental compensation and what is the nature of direction to be given on the basis of such report is the matter has to be considered by this Tribunal and so, this Tribunal disposed of that application stating that there is no necessity to recall the entire order as such, but on the basis of the observations made by this Tribunal and directions given as to what is the proposed further action taken by the regulating authorities, it was made clear that they need not proceed with the coercive action against the project proponent at present. With the above observations and directions, I.A. No.75 of 2020 (SZ) was disposed of.
Page 21 of 11718. Vide Order dated 16.09.2020, after disposing the interlocutory applications [I.A. Nos.74 & 75 of 2020 (SZ)], the 9th Respondent was directed to file their objections to the Joint Committee report and the case was posted to 09.10.2020. On 09.10.2020, the applicant was given liberty to file their response to the objection submitted by the 9th Respondent to the Joint Committee report and posted the case to 13.10.2020 for that purpose. On 13.10.2020, this Tribunal considered the submissions made by the learned Senior Advocate Mr. Sathish Parasarn appearing for the 9th Respondent observed that this Tribunal has power to appoint committees and the power of the Tribunal to appoint a committee was upheld by the Hon‟ble Apex Court in several decisions where such appointments have been challenged before the Hon‟ble Apex Court and directed the Joint Committee to consider the objections filed by the 9th Respondent to the earlier report and also objections (if any) to be filed by the applicant to the objections by the 9th Respondent and submit their view points on that aspect as well as their further report as directed by this Tribunal by the earlier order.
19. The Joint Committee has filed the report dated Nil, received on 21.12.2020 which reads as follows:-
"Joint Committee report in compliance with the Order dated 25.08.2020 & 13.10.2020 of Hon'ble NGT (SZ), Chennai in O.A. No.149 of 2016 in the matter of Shri. V. Ramasubbu Vs Union of India & Ors.
xxx xxx xxx Subsequent to the objection filed by the 9th respondent on the report on the joint committee report, the Hon'ble National Green Tribunal, Southern Zone, in the Order dated 13.10.2020 has directed to consider the objections filed by the ninth respondent to their earlier report and also objection if any to be filed by the applicant to the objections filed by the ninth respondent and submit their view points on that aspect as well in the further report called for by this Tribunal, as modified by this Tribunal as per order in I.A.No. 74 of 2020 Dated 16.09.2020. The committee is directed to submit their further report on or before 26.11.2020 to this Tribunal by e filing.
In pursuance to the above directions of Hon'ble National Green Tribunal, the Joint Committee meeting was held on 24.11.2020 at the 0/o. the District Environmental Engineer, Tamil Nadu Pollution Control Board, Page 22 of 117 Page 23 of 117 Page 24 of 117 Page 25 of 117 Page 26 of 117 Page 27 of 117 Page 28 of 117 Page 29 of 117 Page 30 of 117 Page 31 of 117 Page 32 of 117 Page 33 of 117 Page 34 of 117 Page 35 of 117 Page 36 of 117 Page 37 of 117 Page 38 of 117 Page 39 of 117 Page 40 of 117 Page 41 of 117
20. The 9th Respondent filed objection to the second report filed by the Joint Committee in detail and also replied to the remarks of the Joint Committee in respect of each terms of reference as follows:-
" Reply to Terms of reference (i):
88. It is submitted that the committee has only relied upon the NOC of the forest department dated 24.01.2008 and 02.07.2011 to show that the project retains 51.82 hectares of land. The committee has while noting that the DTCP approval is only for 49.3 hectares has not answered about the prevalence of DTCP approval over and above the forest NOC.
89. It is submitted that the committee has not dealt with the submission of the Respondent in terms of Section 2 of the Forest Conservation Act and how the jurisdiction of the forest department is restricted and it is only the DTCP approval that prevails over and above the Forest NOC.
90. The committee has failed to note that the disputed survey number 426, 428, 429 & 441 has no activity or access even as on today and as such instead of reporting on the factual aspects has made a legal case by interpreting the forest NOC clearance.
91. It is submitted that the committee has in a shocking manner reported that collection of sewage, solid waste, maintain the common areas like road street light etc., as amounting to project under development. In such a case, if the report of the committee is to be accepted then the 9th Respondent has to be stopped providing sewage and waste maintenance to the project.
92. It is submitted that in so far as the construction of residences is concerned, the same is not a project activity as discussed in detail above and without referring to the objections already raised, the committee has brushed aside all the valid objections and merely reiterated the same findings.
93. In so far as the letter of the DFO dated 25.11.2020 given as Annexure 1 is concerned, it is submitted that the same is merely an extract of all existing notifications. The DFO has not objected or granted any explanation on the submission of the project with regards to Section 2 of the Forest Conservation Act. The DFO has further baldly stated that the project is ongoing without responding to the objections that the project is only a layout development and other construction of residence is by
94. The arbitrariness and unreasonableness of the DFO is explicit from his blatant allegation that there is impact on the behavior and movement of wildlife worsening the man animal conflict. At the outset, the DFO has not based the above contention on the basis of any record or document. Further, he has not stated which wildlife behavior or pattern was affected. Further, the altered movement pattern or altered behavior has not been stated on the basis of any record maintained by the forest department. That apart, the DFO has not even referred to any recorded instance of an animal conflict and any compensation paid there not only in the project site but in the entire village of G Kallupatty.
95. The above statement of the DFO is a complete reversal of the clearance given by the same department and the same office to the same project at the same site in the year 2011 while it was cleared that there is no impact on forest and wildlife and that there are no man animal conflicts, while completely taking and opposite stand from his predecessor in office, the DFO in his letter has not relied on any records or documents.
96. It is submitted that since the project proponent has denied any environmental impact there arises no necessity for calculation of compensation. The committee without establishing any environmental damage has instead alleged that the proponent has not given any baseline data that too, when it was not even asked of the Respondent. The committee has failed to establish any environmental damage caused due to the project.
Reply to Terms of Reference (ii):
97. It is submitted that the committee has stated the proponent failed to include the lands in Sy. No 426, 428 and 429 for the purpose of Environmental Clearance.
98. Firstly, the committee has given up the land in Survey Number 441/1 which was earlier alleged as a part of the project land. Now the committee is only concerned with 426, 428 & 429.
99. It is submitted that the same is not a part of the project and was shown to the committee on the site as isolated barren lands with no activity or no access. Without placing all that on record, the committee has simply alleged that the same was left out. It is indeed true that those lands were left out and intentionally so because those lands as a matter of record were purchased approval / completion of project. That apart, those lands were never a part of the project or connected in any manner with the project as seen from the DTCP approved layout. Therefore the 9th Respondent has intentionally and responsibly left out those lands and not utilized an inch of the same for the project till today.
Reply to Terms of reference (iii):
100. It is submitted that the committee has once again stated that because the forest NOC dated 24.01.2008 is 51.82 hectares, the project requires environmental clearance. The Page 42 of 117 committee bas not answered on the DTCP approval which is only for 49.3 hectares and the NOC by the Forest Department is only a mistake of record and in any event has no statutory backing in the project site as per Section 2 of the Forest Conservation Act. 101 . The committee has here given up and has not specifically alleged that any of the activity is carried on in 426, 428 or 429. The committee only states that the lands are in possession of this Respondent. The committee has conveniently not answered the objection that the project was completed in 2011. It is submitted that the lands are not a part of the project and not used for the project. However, as owners of the lands, the possession is with the Respondent and in the event of them not being utilized for the project the committee has failed to point out the illegality in bolding the possession. 102 . The committee has given up and has now admitted that the land in survey number 441/1 is not a part of the project. It is in fact the same state with the other lands in survey number 426, 428 & 429 also.
103 . It is submitted that since the project does not attract the EIA 2006 and was completed in the year 2011 as certified by the District Collector, the ESZ notification of Kodaikanal sanctuary does not apply to the project.
Reply to Terms of reference (iv):
104. It is submitted that the committee has given a clean chit to the 9th Respondent as having not caused any damage to the environment, specifically the drains and odais. The committee has further directed the 9th Respondent not to alter, change or modify the streams and the 9th Respondent accepts and undertakes for the same.
Reply to terms of reference (v):
105. It is submitted that the show cause notice was issued by the TNPCB only against the club house for total area of 4,000 sq. meters. In fact, the show cause notice of the TNPCB which is annexed to the committee report would only refer to survey numbers 400/6, 401/1, 401/2 which are the survey numbers for the club house alone. 106 . The issue relating to the club house has been explained in detail above and the respondent is vested with the right to statutory process as per Section 33A and 31A of the Water and Air respectively.
ENVIRONMENTAL COMPENSATION
107. It is submitted that the issue with regards to the imposition of compensation is more elaborately explained above. It is thus submitted that the project is only 49.3 hectares and not requiring EC, the project was completed in the year 2011 and not attracted to any of ESZ notification and thus there arises no necessity for imposition of any environmental compensation. Further, as clear from the committee report, there is no damage caused to the environment as well and on that ground also the project is not liable for imposition of any environmental compensation."
21. The 9th Respondent has reiterated their contentions raised by them in the counter affidavit. According to them, the extent of the property which was developed by them is having 49.31 Hectares and the project was completed in year 2011 and as such, the Eco-Sensitive Zone Notification and EIA Notification are not applicable to their project and the environmental compensation assessed is not proper and there was no damage caused to the environment on account of their activities and there was no impact on environment as well.
22. This Tribunal had directed the Joint Committee to consider the objections filed by the project proponent to the second report as well and directed them to file a further report and on that basis, the Joint Committee has filed a further report dated 16.04.2021, received on 28.04.2021 which reads as follows:-
Page 43 of 117Joint Committee Report in compliance with the Order of Hon'ble NGT (SZ) Chennai dated 18.02.2021 on O.A. No.149 of 2016 & M.A.No 46/2017(SZ) in the matter of Shri. V. Ramasubbu Vs Union of India & Ors.
In compliance with the orders dated 25.08.2020 & 13.10.2020 of the Hon'ble National Green Tribunal, (Southern Zone) in the O.A. No.149 of 2016 in the matter of V. Ramasubbu Vs Union of India & Ors., the Joint Committee has already filed the detailed report Dt. 25.11.2020 before the Hon'ble National Green Tribunal.
Subsequently, Hon'ble National Green Tribunal (Southern Zone) vide Order dated 18.02.2021 has issued the following directions in the above O.A. filed by Shri. V. Ramasubbu, alleged development of township by M/s. Bahri Estates Pvt. Ltd. at S.F.No 179/B, 290/2B etc., in Genguvarpatty Revenue village, G. Kallupatti Panchayat, Periyakulam Taluk, Theni District:
"The committee is directed to consider the objections filed by the 9 th respondent to the report submitted by them and file a further report giving their opinion regarding the same as well, so as to enable this Tribunal to consider the objections and submit the report in a comprehensive manner to take an appropriate decision in this matter."
The 9th Respondent is directed to submit the copy of the objections to the Members of the committee within a week so as to enable them to consider the same and file a further report.
The committee is directed to submit a further report to this Tribunal by e-filing.
In pursuance to the above directions of Hon'ble Tribunal, the objections made by the 9th respondent on the Joint Committee Report Dt. 25.11.2020 were furnished to all the members of the Joint Committee. The objections raised by the 9th respondent have been examined by the members of the Joint Committee and the opinion/remarks of the Committee to the objections of 9th respondent is furnished under:Page 44 of 117
Sl. OBJECTIONS RAISED BY THE COMMENTS / REMARKS OF no. M/s. Bahri Estates Pvt. Ltd. (9th THE JOINT COMMITTEE Respondent) BEFORE THE HON'BLE NATIONAL GREEN TRIBUNAL ON THE JOINT COMMITTEE REPORT 1 I am the managing director of 9th No comments are offered by the Respondent and as such I am authorized Committee, since this para is to file the present affidavit. I am aware of matter of record.
the facts and circumstances of the case and I have read and understood the records and pleadings filed in the present case. I am filing the present affidavit in the nature of "objections" to the second report of the Joint Committee dated 19.12.2020. (hereinafter THE SECOND REPORT).
2 It is submitted that initially, as per order No comments are offered by dated 08.01.2020, this Hon'ble Tribunal the Committee, since this para was pleased to appoint a joint committee is matter of record.
to inspect the area in question and consider the question regarding environmental impact and whether the project developer started construction without getting Environmental clearance and also the applicability of EIA notification 2006 and other such matters.
3 In compliance to the order, a Joint No comments are offered by Commissioner was constituted by the the Committee, since this para Nodal agency i.e., the Tamil Nadu State is matter of record. Pollution Control Board comprising of 9 members as stated below;
i. Er. S. Pandiyarajan, DEE,TNPCB, Theni ii. Dr. R. Chandrasekaran, DEE, TNPCB Dindugul iii. Dr. M. Madhusudanan, Regional Director, CPCB, Chennai iv. Dr.M.T. Karuppaiah, Scientist- D, MoEF&CC, Regional office, Chennai v. Shri. S. Karthikeyan, Scientist- C, Regional Directorate of CPCB, Bengaluru vi. Shri. Thejasvi, DFO&Wildlife Warden, Kodaikanal Wildlife Division vii. Shri. L. Eugine, Tahsildar, Nilakottai for and on behalf of District Collector, Dindugul viii. Shri. Mathimaran, Dy. Director, DTCP, Madurai Region
(ix). Shri. B. Rameshkumar, Member Secretary, Dindugal Local Planning Authority, Dindugul.
Page 45 of 1174 The Committee had submitted a report No comments are offered by before this Hon'ble Tribunal dated the Committee, since this para 25.08.2020 (hereinafter THE FIRST is matter of record.
REPORT) Pursuant to the same, this Hon'ble Tribunal permitted this Respondent to also file objections to the first report and accordingly detailed objections were filed by this respondent dated 08.10.2020.
5 In the next hearing on 03.10.2020, this No comments are offered by Hon'ble Tribunal directed the Joint the Committee, since this para Committee to offer its remarks on the is matter of record. objections filed by this respondent and along with other directions. Thereafter, another inspection was conducted and the Second Report had been filed.
6. It is submitted that the Second Report No comments are offered by has largely not denied the objections of the Committee, since this para this Respondent and has either dropped is matter of record.
or unanswered several points of contention. In that aspect, the Second Report is largely in favour of the case of this respondent. However, by total non-
consideration of the effect of the same, the Second Report had concluded against this Respondent and has also assessed and calculated Environmental Compensation as if the Project was in violation of the laws.
7 It is submitted that the Second Report had No comments are offered by also raised some fresh averments and the Committee, since this para allegations apart from producing new is matter of record. additional documents such as a recent proceeding of the District Forest Officer dated 25.11.2020. Therefore, in order to point out the procedural and material illegality in the conduct of the committee and also to submit a reply to all new points of contentions introduced by the Second Report, this Respondent is constrained to file the present affidavit.
8 Therefore, it is prayed that this Hon'ble No comments are offered by Tribunal may be pleased to accept and the Committee, since this para take on file the present affidavit filed by is matter of record. this Respondent and thus render justice.
PRELIMINARY OBJECTIONS TO THE SECOND COMMITTEE REPORT 9 At the outset, it is submitted that the Completely denied the impugned report is not maintainable averments. The Joint either on law or on facts of the case. The Committee neither exceeded committee has exceeded its jurisdiction its jurisdiction / procedures and all known procedures of law and has of law nor gone beyond the gone even beyond the scope of the main scope of the litigation rather litigation and as such is liable to be examined the issues in dismissed. accordance with the Rules to ascertain the alleged violation Page 46 of 117 of environmental law and the consequences to be followed against violator as directed by the Hon'ble Tribunal.
10 The committee has placed erroneous and Completely denied the wrong facts, materials which would only averments. The Joint result in misleading and misguiding this Committee constituted by the Hon'ble Tribunal. The committee has not Hon'ble National Green responded to a number of contentions Tribunal has clearly examined which were raised by this Respondent, to the issues in accordance with justify the project, but on the other hand the terms of reference issued has introduced new materials to only to the Committee by the confuse the issue further. Hon'ble Tribunal.
11 Thus, the conduct of the committee itself Completely denied the is not fair and it has acted with the averments made by the purpose of finding some guilt or the other Respondent. Respondent with this Respondent when none exists. made false allegations against Thus, the proceedings of the committee the Committee. Further, it is are contrary to principles of natural submitted that the justice and fair treatment of law and thus proceedings of the Committee liable to be set aside. is neither contrary to principles of natural justice nor against the fair treatment of law.
No opportunity of being heard by the full committee 12 The purpose of the constitution of The allegations of the 9th committee was to inspect the site and Respondent is completely answer this Tribunal on specific terms of denied. It is submitted that, reference issued by this Hon'ble Tribunal. as part of the principle of However, the same was not complied by Natural Justice, sufficient the Joint Committee. In fact, at the time opportunity was given to the of filling the second report, the committee project authority to submit has failed to even conduct a site their views / documents inspection with all its members. It was before the Joint Committee on only the District Environmental Engineer the day of first meeting held of TNPCB who had inspected the site and the Committee whereas the other members had not thoroughly inspected the inspected the site itself. Therefore, the project area in presence of the present Respondent was deprived of an project authority. District opportunity to present its case on the Environmental Engineer, objections earlier filed to the earlier report TNPCB, Theni is also a to all members of the committee, when a member of the Joint second inspection was deemed necessary. Committee. There was a Further, in total contradiction to fair transfer postings of the procedure, only the nodal agency had Officers of TNPCB. inspected and furnished reply for Accordingly, the newly joined deliberation by the committee. District Environmental Engineer of TNPCB, Theni was inspected the site in order to acquaint the status of the project in respect of the issues referred therein the O.A. Further, in pursuant to the Order dated 13.10.2020 of Page 47 of 117 Hon'ble NGT(SZ), a meeting was convened on 24.11.2020 at O/o District Environmental Engineer, Tamilnadu Pollution Control Board, Dindugul, with the Members of the Joint Committee. The Joint Committee deliberated the objections filed by the 9th Respondent in the said meeting. As directed by the Hon'ble NGT, the environmental compensation has been arrived based on the guidelines issued by the CPCB.
Modification of the members of the Committee without prior permission 13 That apart, it is crucial to point out that It is submitted that the there is a gross violation of procedure, Hon'ble NGT(SZ) in its Order whereby the constitution of the committee dated 08.01.2020 constituted itself was modified without obtaining prior a joint committee comprising permission from this Hon'ble Tribunal. of Regional Office, MoEF, The impugned project of this 9th representative of Chief Respondent falls within the jurisdiction of Wildlife Warden of Tamil DTCP, Madurai region. Therefore, it was Nadu, Central Pollution the Deputy Director of DTCP, Madurai Control Board (CPCB) and region who was initially constituted as a Tamil Nadu State Pollution member of the committee. However, at Control Board (TNPCB), the the time filing the 2nd Report, the District Collector, Dindigul committee had submitted the said and the Commissioner of member with the official from DTCP- Directorate of Town and Theni region. Even though the Country Planning (DTCP), bifurcation of Madurai region into Theni Tamil Nadu. The member of region had happened recently, in any the respective Department event, in so far as the report of the attended the Joint Committee committee is concerned, it had to be meeting held on 24.11.2020 appraised by the same members as per at O/o District Environmental the orders of this Hon'ble Tribunal. Engineer, Tamilnadu Pollution Control Board, Dindugul.
14 It is pertinent to point out that, the matter It is submitted that the was placed before the Committee for the Hon'ble NGT(SZ) in its Order second time only to offer its remarks on dated 08.01.2020 constituted the objections and in such a situation to a joint committee comprising modify and incorporate a new member of Regional Office, MoEF, is highly irregular and in any event representative of Chief without informing or obtaining Wildlife Warden of Tamil permission from this Hon'ble Tribunal. Nadu, Central Pollution Control Board (CPCB) and Page 48 of 117 15 Thus, the entire conduct of the committee Tamil Nadu State Pollution is irregular, not fair, biased and causes Control Board (TNPCB), the much prejudice to the 9th Respondent. District Collector, Dindigul That apart, the committee has raised and the Commissioner of fresh allegations even beyond the scope of Directorate of Town and the main litigation over which an Country Planning (DTCP), adjudication has to be done only by a Tamil Nadu.
statutory process and thus the
committees report is liable to be The member of the Joint
dismissed in limine. Committee of the respective
departments constituted as
per the direction of the
Hon'ble National Green
Tribunal attended the Joint
Committee meeting held on
24.11.2020 at O/o District
Environmental Engineer,
Tamilnadu Pollution Control
Board, Dindugul and
submitted their views during
the meeting.
16 The present Respondent denies every No comments are offered as
statement and allegation made by the the contents are matter of
committee report as erroneous and record and matter of law.
incorrect either on facts or on law.
Without prejudice to the aforesaid
contentions, the present Respondent
submits the following to sustain and
establish its case before this Tribunal and also by way of objections to the second report filed by the Joint Committee.
OVERVIEW OF THE PROJECT 17 The project of the 9th Respondent is a Completely denied the "plotted layout development". The averments made by the project and the layout are intended for Respondent and the Committee purchase and utilization as a senior relied upon the following facts:
citizen welfare plotted housing
community. The plotted layout The Ministry of Environment,
development of the project is for a total Forest & Climate Change,
extent of 49.3 Hectares or 121.84 acres. Government of India has
Each and every inch of land that was directed that the construction
utilized for the project after due approval of new projects or activities or is tabulated as below: the expansion or modernization of existing projects or activities 18 It is submitted and undertaken by the listed in the schedule of the Respondent that not a single inch of Environment Impact land beyond what is stated above has Assessment Notification 2006 been utilized or forms part of the including Townships and Area project. This simple and basic fact is Development projects covering an the entire case itself whereas bald area ≥ 50 hectares, entailing allegations are made, contending that capacity addition with change some other areas are also used for the in process and or technology project. shall be undertaken in any part of India only after the prior environmental clearance from the Ministry of Environment Page 49 of 117 Forest, or as the case may be, by the State Level Environment Impact Assessment Authority vide Notification issued by the Ministry dated 14.09.2006.
Project Authority obtained NOC from Tamilnadu State Forest Department vide letter No. 10772/07 dated 24/01/2008, wherein NOC was accorded for 128 Acres (51.82 Ha.) for the purpose of agricultural farming only. Subsequently, Project developer has obtained Certificate from Tahsildar, Periyakulam Taluk vide letter dated 22/2/2008, for the development of layout in an area of 49.765 Ha. In the year 2011, a communication dated 12/07/2011 was issued to the Project Authority by the Tamilnadu State Forest Department with the stipulation that Project developer shall maintain Buffer Zone between the project site and southern reserve forest and follow other conditions in the earlier NOC dated 24/01/2008 while carrying out new activities (Layout development). All the above documents are already placed as Annexures in the Joint Committee Report filed.
From the above NOC / communications obtained from the Tamilnadu Forest Department, undisputedly it has been observed that project developer has more than 50 Ha.
of area in their possession from 2008 to 2011. It is pertinent to mention here that in the absence of the ownership one cannot get the NOC. Further, the NOCs obtained for 128 Acres (51.82 Ha.) from the Forest Department has not been amended till date.
During the visit, it has been observed that few project related activities viz. Nursery, composting yard etc., are being undertaken in the adjoining area of the project, which is not part of the project area. But considered to be activity area.
The developer in a calculated approach has excluded part of the land from the total area of Page 50 of 117 layout in order to avoid the process of EC. Based on the NOCs obtained and actual utilization of adjoining area, the area of project activity is more than 50 Ha. and thus it attracts the provisions of schedule 8(b) (B1 category) of the EIA Notification, 2006, which needs to be appraised by the SEIAA-
Tamilnadu.
Further, Project authority has already submitted their application to the SEIAA-
Tamilnadu seeking Environmental Clearance.
It appears that, SEIAA-TN vide Office Memorandum dated 12.12.2012 delisted the application of M/s. Bahri Estates Pvt. Ltd. from the list of proposals under process in SEIAA-TN, since it falls under the violation category and action have been taken against the Project Proponent by SEIAA-TN.
The Member Secretary, SEIAA vide letter dated 02.04.2014 instructed the Project developer not to commence any activity other than cleaning of the site, fencing the site and putting up temporary structure for accommodation of labour, along with basic facilities like toilets and water supply, made as a temporary arrangement.
Further it was observed that the entire project premises are still under the responsibility of the 9th respondent and constructions are being under taken only by the 9th respondent for the plans predefined for the township project.
19 Further, it is submitted that after the It is submitted that the entire development of the layout was complete in project premises are still under the year 2011, in the total approved 298 the responsibility of the 9th plots, about 172 plots have been sold. All respondent and constructions the bonafide third parties who have are being under taken only by purchased the plots are holding valid legal the 9th respondent for the plans title and possession over the lands. They predefined for the township have also been assessed and regularly project. paying municipal and other taxes for the aforementioned lands.
Page 51 of 117Location of the Project 20 The present project is situated at the foot No comments are offered by hills of Kodaikanal and falls within the the Committee. village panchayat limits of G-Kallupatty.
The entire extent of the lands in the project is classified as "patta lands". The lands have not been utilized for any sort of agricultural activity for many decades.
In fact, the entire village of G.Kallupatty has undergone massive urbanization and houses a population of more than 5000 to 10,000 people. It was a combination of the urbanization of the village coupled with isolation from the hustles of a city that prompted the selection of the site for the project. It is both a developed area and at the same time a peaceful location which is ideal for the present project.
21 Most importantly, it is submitted that Completely denied the there are no notified eco-sensitive areas or averments of the Respondent eco-sensitive zones within the entire that there is no notified eco- village of G.Kallupatty and a lot of sensitive areas or eco-sensitive residential activity has been happening in zones within the project area. the entire locality. In particular, it is submitted that the present project is The project site is 35 m away situated within Ward No.1 of the from the boundary of the G.Kallupatty village panchayat having a Kodaikanal Wildlife Sanctuary. total of 12 wards. The plot owners of the Since the project activity falls project whoever has made any housing within 10 km of eco-sensitive development on their plot are also zone (in the absence of assessed and have been paying property delineation of Eco-sensitive tax to the aforesaid local body as stated Zone of Kodaikanal Wildlife above. Sanctuary prior to the Gazette notification dated 23/01/2020, it is mandatory requirement of getting Clearance from the Standing Committee of National Board for Wildlife (NBWL).
Further, Govt. of India vide S.O. 412(E) dated 23/01/2020 has notified the Kodaikanal Wildlife Sanctuary, wherein notified an area to an extent of 0 km to 1.0 km around the boundary of the Kodaikanal Wildlife Sanctuary as Eco sensitive zone.
In compliance with the Hon'ble Supreme Court Order dated 04.12.2006 in W.P.No. 40 of 2006, MoEF&CC issued a public notice dated 01.01.2009 that "those projects/ activities which are located within ten kilometers of the boundaries of Sanctuary and National parks shall seek clearance under the Page 52 of 117 Wildlife (Protection) Act, 1972".
As the 9th respondent has obtained approval only after the said public notice, It is evident that the project needs to obtain approval from the NBWL.
The 9th respondent is carrying out activities such as construction of residences, construction of utilities such as club house, provided services like collection of sewage, solid wastes, etc, maintaining the common areas like roads and street lights even during the inspection made by the committee on 19.03.2020.
It is evident from the above that the project development is still under progress and the 9th respondent cannot claim that the project activities are not covered under the Eco-
Sensitive Zone regulations.
Senior Citizens Lifestyle Plots 22 Initially, the project was envisaged from No comments are offered by the year 2007 itself. The project which is the Committee. a plotted layout development was proposed and styled as suitable for purchase senior citizen retirement community. The idea was provide layout plots at the outskirts so that retired people and senior citizens can settle there for a peaceful life. This project is novel and has attracted accolades and awards from the real estate community.
It is in those circumstances that the project has attracted many wrongful eyes who have continued to cause one problem or the other to the project.
23 It is submitted that being a plotted No comments are offered by layout development, the approval for the Committee. the project has to be given by the DTCP as per the Town and Country Planning Act, 1990. The present Respondent has undertaken the project on the basis of business understanding with land owners, agents, legal entities and other associated investors. There are independent agreements being entered into with such legal entities for the purpose of executing the project.
However, as a part and parcel of business, the entire extents of lands Page 53 of 117 were not purchased or vested with this Respondent in a single transaction.
Simultaneously with the project proposal in hand, the Respondent had been approaching the authorities of DTCP to find out and comply on a step-by-step basis, the procedure to get the layout approval.
Grant of Clearances 24 It is submitted that it was at the advice The 9th respondent has obtained of the DTCP and their insistence, that NOC from the Tamil Nadu Forest the project was required to obtain a NOC Department on 24/01/2008 over from the Forest department. It is a an extent of 51.82 Hacters (128 matter of fact and record that the Acres) of land. Subsequently, a entire extends of land are private communication dated 12.07.2011 patta lands and as such there is no was issued to the Project role for the forest department on Authority by the Tamilnadu State these extents of lands. However, due to Forest Department with the the insistence of the DTCP, this stipulations referred therein Respondent did not find much harm in interalia including to follow other informing and obtaining a NOC from the conditions in the earlier NOC forest department. dated 24/01/2008 while carrying out new activities (Layout development). However, 9th 25 respondent made a claim that The Project proponent is advised to state the project does not require that there is no concept of NOC under Environmental Clearance under any of the forest laws and the EIA Notification, 2006 as they jurisdiction of the forest department only have obtained DTCP approval arises when any portion of the land is a only over an extent of 49.31 forest land. It is not in dispute from any Hacters.
of the parties to the case or the members of the committee that there is no The 9th respondent cannot involvement of any forest land in the claim for the exemption of present project. In such a scenario, the environmental clearance as the jurisdiction and competence of forest proponent failed to include the department starts and ends with lands in the S.F. Nos. 426, 428 directives to maintain a buffer from the and 429 with respect to the boundary of the forest for their purpose. clearance obtained from the It is not in dispute that the project Forest Department and the proponent has left out the buffer area above said lands still under adequately as required by the authorities possessions of 9th respondent. and thus in this scenario there was no The Committee relied upon the role for the forest department. above submissions.
26 However, at the planning stage of the project, as early as on 17.01.2008, this Respondent submitted a letter to the DFO of forest department informing of the project and disclosing that proper applications were being filed with the DTCP for a proposed plotted layout development project.
27 Interestingly, in the said letter, while attaching a list of lands covering the project, by oversight and by state of thins as it stood then the Respondent had indicated the lands in Survey Page 54 of 117 No.426, 428, 429 & 441 as part of the project. It is a matter of record that while submitting the ownership records for the entire extends of lands, the records for the afore stated four survey numbers were not produced for the simple reason that the ownership was not with this Respondent and the lands were only a business proposal which was in the stage of negotiation with the actual third-
party land owners.
28 Accordingly, the forest department issued a letter dated 24.01.2008 which was styled as a NOC which consequently comprised of the said for survey numbers in 426, 428, 429 & 441.
29 However, at the time of finalizing the project and approaching the DTCP for statutory clearance, the business deal could not be worked out with the owners of the aforesaid survey numbers and as such the lands had to be abandoned for the purpose of the project. This is evidenced from the statutory application the four survey numbers are not included and they are not part of the development. Thereafter, the Respondent was also necessitated to obtain statutory certificate from the Tahsildar which was also received on 22.02.2008 which also did not include the aforesaid four survey numbers.
30 Thereafter, in the year 2009, the DTCP had granted statutory approval for the plotted layout development by proceedings dated 09.03.2009. In the said approval also, the contested for survey numbers 426, 428, 429 & 441 are not included and accordingly they never formed a part of the project.
31 This obvious fact is overlooked by the Joint Committee and had the project is alleged to be inclusive of the lands in the said four survey numbers only because they were initially a part of the forest NOC. The proceedings by the forest department do not have any statutory or legal competence and in any event all the subsequent approvals have left out the four survey numbers. In fact, even on ground realities the lands are totally vacant even as on date with no access and the issue is further dealt with in a detailed manner herein below.
Bonafides of the Project & CSR Activities 32 The implementation of the project has No comments are offered brought out much good to the entire locality. This Respondent is an honest and sincere citizen of this nation and Page 55 of 117 has undertaken the project with socio-
centric responsibility and total compliance to the law. As a part of implementing the project, this Respondent has in fact developed and improved the entire locality and has contributed to the overall upliftment of the entire village.
33 This Respondent has, as a part of the No comments are offered CSR activities, sponsored and dedicated check post facilities to the local police department and the forest department.
The same was done to assist and cooperate with the government to bolster the surveillance and security which will benefit the larger public also. In the same spirit, this Respondent submits with humility that the present project has been instrumental in meeting a major substantial portion of the water requirement for the village of G.Kallupatty. For the said purpose, as a CSR activity, on the request by the District Collector and the local panchayat officials and on the approval and supervision of the authorities, this Respondent completed a pipeline connection project from Manjalur Dam to the village at the expense of the Respondent. It is pertinent to mention that there was no proper source of drinking water earlier and all the activities were done as a part of social responsibility by this Respondent.
34 Even in the present project, apart from No comments are offered the business of plotted layout development, the Respondent has, as per law and out of responsibility installed several infrastructural facilities for maintaining clean environment and for processing all waste generated therein.
Waste Disposal 35 It is submitted that, each plot is The 9th respondent is carrying designed to have independent inspection out activities such as chambers for any constructions, as and construction of residences, when, put up by the purchasers. The construction of utilities such project also has centralized sewage as club house, provided chamber connecting each and every services like collection of single plot whereby the sewage is sewage, solid wastes, etc, collected and discharged into the central maintaining the common network. Thereafter the central network areas like roads and street chamber flows into the collection tanks lights even during the inspection made by the adequately installed for the purpose.
committee on 19.03.2020.
From the collection tank, the sewage is disposed through authorized disposal It is evident from the above agencies of the local body through and from the statements tanker lorries.
Page 56 of 11736 Similarly, a coordinated and wholesome submitted by the 9th disposal system is installed for the solid Respondent that the project waste as well. The waste collection is development is still under segregated at the source into wet waste, progress. dry waste and sanitary waste. The dry waste is further segregated into plastic, All the facilities are being metal, glass etc as recyclable and non- maintained by the 9th recyclable waste. The recyclable waste is respondent and which are not then collected by a regular scrap dealer. common to the general public. The non-recyclable and sanitary waste are sent to municipal body for disposal with proper sanctions.
37 That apart, a community compost yard has also been set up within the project for utilizing the wet waste produced to maintain the greenery belt in the project.
The said activity is also utilised as a leisure and hobby activity by the senior citizen residents.
38 All of the aforesaid facilities have been provided, installed and completed in the year 2011 itself. This fact is evidenced from the proceedings of the District Collector who has certified the project as complete in terms of provision of all infrastructural facilities as per the approved layout conditions of the DTCP vide his proceedings dated 15.09.2011.
39 Thereafter, the Respondent continues to aid, assist and engage with the purchasers for the maintenance of all such facilities. It is pertinent to mention here, that as a part of the project, public roads and OSR were also gifted to the authorities which are also continuously maintained till date. The Respondent also engages with a lot of leisure activities for the senior citizens who are permanent residents in the project.
40 It is submitted that within the residence, there are people who have retired from high- ranking post both from private as well as governments sectors including retired officers of the defence forces. In fact, most of the residents are celebrated officers during their service and as such they are all knowledgeable persons contributing to the various activities as mentioned above.
41 That apart, this Respondent has also tied up with nearby hospitals to provide for ambulance and first aid facilities on the site. This also includes general health and leisure activities such as yoga, meditation and other health and spiritual activities. The Respondent also provides for social get together activities at the time of festivals and functions.
Page 57 of 11742 All these activities which do not require The 9th respondent is carrying any permissions or sanctions are carried out activities such as on by the Respondent through its construction of residences, subsidiaries as a service provider and construction of utilities such offers solutions for a wholesome as club house, provided experience from the purchase of the plot services like collection of to construction of houses on their behalf sewage, solid wastes, etc, as contractor up to, day to day maintaining the common housekeeping needs etc. areas like roads and street lights even during the 43 Thus, it is in the above indicated manner inspection made by the in which the Respondent has completed committee on 19.03.2020. It is the project and maintained project but evident from the above and on the other hand by assumptions and from the statements submitted presumptions, twisting of actual facts by the 9th Respondent that the several allegations are made against the project development is still proponent from utilizing land beyond under progress. 49.31 hectares and continuation project beyond the year 2011. All the facilities are being 44 maintained by the 9th The Respondent submits and states respondent and which are not that it has not utilised an inch of land common to the general public beyond 49.31 hectares and the entire project as per DTCP approval was The Committee has already completed in the year 2011 as confirmed the possession of certified by the District collector. All land area more than 50 Ha.
other confusions and allegations are with the project authority
explained in a more detailed manner based on the documental
hereunder. evidence.
FOREST NOC
45 It is submitted that, the core allegation It is submitted that the NOC
in the entire case against this was issued by the Forest
Respondent has its basis on a letter department based on the
styled as a NOC issued by the forest application submitted by the
department dated 24.01.2008. More Project Authority. Project
particularly, the issue narrows down to authority twisting the facts for
the inclusion of four survey numbers their own convenience.
that is S.No's. 426 (3.42 acre), 428 (1.41 Further, the entire project
acre) 429 (1.41 acre), & 441(1.90 acre) area is located well within 1
totaling an extent of 8.14 acres or 3.22 Km from the boundary of the
Kodaikanal Eco-Sensitive Zone
hectares.
declared under Notification
46 Since, it was advised and understood by issued by Govt. of India vide
the project that the jurisdiction and S.O. 412(E) dated
competence of the forest department 23/01/2020.
begins and ends with laying down
conditions for maintenance of forest area The 9th respondent is executing
and buffer, this Respondent did not the project even without
further have anything to do with the obtaining clearance as
forest department because the project is mandated under the
admittedly following the buffer norms Environment Impact
and never caused any encroachment or Assessment Notification, 2006
violation of forest conditions. In that and also the clearance from
view of the matter, it was felt Standing Committee of NBWL
unnecessary to seek modification of the under Wildlife Protection Act.
NOC dated 24.01.2008 since within the
boundaries of the project, the forest
department has no jurisdiction or
competence to either approve, certify or
grant sanction as per law.
Page 58 of 117
47 Thereafter, it is a matter of fact and As per Hon'ble Supreme Court
record that the four survey numbers Order dated 04.12.2006 in
were left out from the project as the W.P.No. 40 of 2006, MoEF&CC
business in incorporating them was not issued a public notice dated
successful. The statutory application 01.01.2009 that "those
made with the DTCP and the statutory projects/ activities which are
approval granted by the DTCP would located within ten kilometers of
bear evidence to the fact that the four the boundaries of Sanctuary
survey numbers were not included in the and National parks shall seek
project. This clearance by the DTCP is clearance under the Wildlife
(Protection) Act, 1972".
alone to be considered as the legal and
binding document since it is only the
DTCP that can approve the project as per
As the 9th respondent has
law. Further, the project has been obtained approval only after
completed only as per DTCP approved the said public notice and it is
boundaries. evident that the project needs
Thus, it is the submission of this to obtain approval from
Respondent, that the project is only 49.3 Standing Committee of
48 hectares as per the DTCP approved plan National Board for Wildlife.
and on the ground. All reliance upon the
forest NOC is without any legal standing The 9th respondent is carrying
and contrary to the facts as narrated out activities such as
above and only to mislead this Hon'ble construction of residences,
Tribunal. construction of utilities such
49 Notwithstanding all of the above, the 9th as club house, provided
Respondent for its part, made an services like collection of
application with the forest department to sewage, solid wastes, etc,
amend its proceedings to exclude the maintaining the common
four survey numbers and submitted the areas like roads and street
approved DTCP plan for the reference lights even during the
and understanding of the forest inspection made by the
department. However, it seems that the committee on 19.03.2020.
forest department had not corrected its
It is evident from the above
records and the proponent did not
that the project development is
pursue further since its duty to inform
still under progress and the
the department was duly done and since 9th respondent cannot claim
the forest department had no jurisdiction that the project activities are
within the boundaries of the project, no not covered under the Eco-
further application was made by the Sensitive Zone regulations.
project.
50 However, to the shock and surprise, after the completion of the project in the year 2011, the forest department issued a show cause notice dated 28.03.2011 alleging primarily that the land was not utilised for agricultural farm and there were construction of compound wall and formation of road etc. The Forest Department erroneously continued to include the four disputed survey numbers also, in their records, despite the representation of this respondent.
51 The 9th Respondent issued a detailed reply to the notice and submitted the DTCP approved plan to evidence its compliances. Thereafter, the forest range officer inspected the site and based on the inspection and the reply of the project, the show cause proceedings were dropped by only imposing a condition upon this Respondent to Page 59 of 117 maintain the buffer zone as per the 2008 NOC. It is pertinent to state that while clearing the project, the forest department observed that the project had been completed as per law and there were no violations and made the following five specific observations.
i. No land encroachment of forest area.
ii. No barrier for wild animal corridor was done and there is no man-
animal conflict.
iii. The entrance made in Kodaikanal to Batalagundu road beyond 300 feet from area there is no wild animal passing through this area and there is no damage to eco system of the natural forest, environment and wildlife.
iv. The layout area is dry waste land. It is like "Clay Canker soil"
having strength of concrete and no agricultural operation is possible.
v. Roads formed are by gravel stoned and it was not hindrance to forest and environment eco system.
52 Therefore, it is obvious and clear that the role of the forest department was only to the extent of maintenance of forest regulations. It is also clear from the records of the forest department as stated above that the project is in total compliance to all the forest laws and regulations. The mistake of the forest department in not updating and modifying its records as to the extent of the project despite the representation and production of the statutory DTCP approval cannot be put against the 9th Respondent. As stated above, it is submitted that the reliance placed on the forest NOC to determine the extent of land is contrary to Section 2 of Forest Conservation Act, 1980 and unsustainable in law. It is only the statutory competent approval by the DTCP vide Approval Number 13/2009 that will prevail over and above everything else and the same is clear that the extent of the project is 49.3 hectares only.
SURVEY NUMBER 441- now subdivided as 441/1 and 441/2 53 The next allegation is that physically It is submitted that, even the project has utilised the disputed though the DTCP approval survey number 441 (now 441/1 and obtained for 49.31 Ha for their 441/2) and thus it must be deemed as a project, the 9th respondent has part of the total extent of the project. obtained NOC on 24.01.2008 The Respondent denies the averment as from Forest Department, a mere fantasy and contrary to reality. It Government of Tamil Nadu for Page 60 of 117 is submitted that the ownership of land the development of farming in survey number 441 vests with third over an extent of land of 128 parties. The patta and land records Acres (51.82 Hacters) inclusive would evidence that the title and of SF No 441 village of possession belong to two different third G.Kallupatty which exceeds 50 parties and nowhere is the Respondent Hectares. utilizing the land. This Respondent is neither the owner nor in possession of The 9th respondent is carrying the said lands nor it is the part of the out activities such as project at any point in time. construction of residences, construction of utilities such as club house, provided 54 Further, on ground reality, it can be seen services like collection of that the survey number 441 is a vacant sewage, solid wastes, etc, barren land even as on date and one maintaining the common look at the said land would make it areas like roads and street obvious that it is untouched and not lights even during the used for any purpose. The photograph inspection made by the of the land is annexed and the very sight committee on 19.03.2020.
of the land would show that it is neither
a part nor being utilised for the project. The 9th respondent is carrying
out activities such as
55 In so far as the alleged activities such as construction of residences, brick manufacturing etc., this construction of utilities such Respondent has responded in detail in as club house, provided its previous reply and the committee has services like collection of not specifically denied any of the sewage, solid wastes, etc, contentions. However, it is reiterated maintaining the common that the Respondent has nothing to do areas like roads and street with these activities and by no stretch of lights even during the imagination can these be called a part of inspection made by the the project and all averments are denied. committee on 19.03.2020.
However the 9th respondent is 56 That apart, even otherwise the executing the project even allegations were only for temporary without obtaining clearance as usage of lands and that cannot required under the contribute to the permanent affiliation as Environment Impact a project activity or project lands. Above Assessment Notification 2006 all, the lands are not owned by the within the boundary of the Respondent, not in possession, the Kodaikanal Eco-Sensitive Zone activities were never taken part as a declared under Notification project activity and thus all allegations issued by Govt. of India vide are denied. S.O.412(E) dated 23.01.2020.
SURVEY NUMBER 426,428 &429 57 It is submitted that the above three It is submitted that, even survey numbers were not a part of the though the DTCP approval project and included by the applicant obtained for 49.31 Ha for their only in an attempt to confuse and project, the 9th respondent has mislead because they found part in the obtained NOC on 24.01.2008 original forest NOC. It is repeated that from Forest Department, the DTCP approval does not contain the Government of Tamil Nadu for aforesaid three survey numbers. On the development of farming that ground alone these are not liable to over an extent of land of 128 be considered as project lands. Acres (51.82 Hacters) inclusive of SF No 426, 428, and 429 58 It is submitted that the lands were village of G.Kallupatty which dropped from the project since the exceeds 50 Hectares. purchase from its owners was not successful. It was much latter that is, The 9th respondent is carrying after the approval/completion of the out activities such as project that the Respondent was forced Page 61 of 117 by circumstances to purchase the land. construction of residences, More elaborately, it is submitted that construction of utilities such after the approval of the project, during as club house, provided executing the project up to completion in services like collection of the year 2011, disputes arose with the sewage, solid wastes, etc, owners of those lands to create a trouble. maintaining the common Ultimately, it was resolved through talks areas like roads and street and from a pure business perspective of lights even during the purchasing peace, the 9th Respondent inspection made by the had purchased the lands. This was committee on 19.03.2020.
stated in the earlier reply also and since
The 9th respondent is carrying
the committee has not considered, the
out activities such as
elaborate business reason is stated
construction of residences,
hereby. construction of utilities such
59 In any event, till date, the said lands in as club house, provided
S. No. 426, 428, and 429 are untouched services like collection of
and remain in an "as is where is" sewage, solid wastes, etc,
condition and not utilised for the project. maintaining the common
It is shocking that the committee has areas like roads and street
alleged some activities as going on in the lights even during the
lands as on today and the same is inspection made by the
nothing but false. The photograph of the committee on 19.03.2020.
lands would clearly show that there is no
activity whatsoever going on in the said However the 9th respondent is
lands. executing the project even
60 Further, since the lands were never without obtaining clearance as
utilised and are never going to be required under the
utilised, this Respondent hereby states Environment Impact
and undertakes as follows: Assessment Notification 2006
The Respondent undertakes that the within the boundary of the
lands in Survey Number 426,428 &429 Kodaikanal Eco-Sensitive Zone
has never been and will never be utilised declared under Notification
issued by Govt. of India vide
for the project or any alleged allied
S.O.412(E) dated 23.01.2020.
activity. The Respondent further
undertakes to make more developments
in the lands as a green belt cover and
also undertakes to abide by any other
condition that may be imposed by this
Hon'ble Tribunal.
61 Therefore, in light of the above, it is
submitted that neither the forest NOC
nor the alleged activities are correct and true allegations and accordingly deserves to be rejected. Further, the lands in their physical state and mere observation would evidence that no activity whatsoever has been carried on as a part of the project. The entire extent of the project is thus only 49.3 hectares and does not attract the EIA, 2006.
WILDLIFE ISSUE 62 At the outset, it is submitted that once The averments of the 9th the project is not coming under the respondent is denied. ambit of the EIA Notification, 2006, no other allegations or clearances from It is submitted that the said NBWL are necessary, without prejudice project activity falls well within to the above, the following explanation is the ambit of EIA Notification on submitted. account of the facts mentioned in the preceding sections. Also, Page 62 of 117 it is worthy mention here that the Project authority itself had applied for the EC under violation category before the SEIAA-Tamilnadu.
63 It is submitted that the project is It is submitted that any situated on private patta lands and projects lies within the eco- within the village panchayat of sensitive zone requires G.Kallupatty and as such the wildlife clearance from National Board laws and regulations are not attracted to of Wildlife irrespective of the project. The project is situated on applicability of EIA Notification, the southern boundary of the Palani hills 2006. and the hills near to the project has a natural steep slope and dry terrain. It is important to state that there are no notified or known animal corridor in this part of the hills or in the entire village of G.Kallupatty within which the project is situated in Ward1.
64 In fact, the Manjalaru Dam waterfalls are No comments are offered.
situated on diagonally opposite slope of the hills which is on the far side from the village and the project, whereby the animal movement can only be attracted to that part which is within the forest area. Thus, the project is situated within village limits where it is free from wildlife issues. In fact, in all these years since the project was completed in 2011 or for many decades in the village of G.Kallupatty, there is not a single reported incident of any wildlife issue and thus there is no applicability of wildlife regulations to the project.
65 It is submitted that the project is a The project authority failed to plotted layout development. Thus, there comply with the provisions of is no statutory certificate of completion the EIA Notification and as in the case of buildings under the Wildlife Protection Act. Mere existing legal system. The project is thus approval from the DTCP does completed in the eye of law when the not absolve the purpose of development is complete with all getting clearance from other infrastructure such as road, sewage, mandatory clearance from the water supply, electricity etc., and as per authorities concerned. the statutory conditions laid down in the approved DTCP plan including gifting of OSR and Public Roads to the local bodies.
66 In the instant case, it is the contention of this Respondent that the project was completed as per the stipulated conditions of the approved DTCP plan in the year 2011 itself. In order to evidence this, It is submitted that the proceedings of the District Collector and that of the forest department would certify on physical inspection that the project was complete.
Page 63 of 11767 It is submitted that pursuant to a show The project authority failed to cause proceeding earlier, by way of a comply with the provisions of final order, the District Collector in his the EIA Notification and proceeding dated 15.09.2011 has stated Wildlife Protection Act. Mere on record that all facilities for housing approval from the DTCP does layout has been completed and that on not absolve the purpose of the said layouts the village panchayat getting clearance from other can be permitted to grant building mandatory clearance from the permissions. The District Collector has authorities concerned.
further stated that all compliances as required have been made and that the project has complied with and completed all the conditions of the approved DTCP plan. The District Collector has made the above order by comparing and referencing the compliance in accordance with the DTCP letter dated 09.03.2009 which is for an overall extent of 49.3 hectare and thus all of the above would clearly demonstrate that the project was completed only for 49.3 hectares and that the project was completed in the year 2011 itself, In fact, the sale of the plots had also commenced post these events, from the year 2011 onwards.
68 It is submitted that it is an admitted fact that the Kodaikanal forest range was notified as a Wildlife Sanctuary only in the year 2013 that is on 20.09.2013 as per G.O.(Ms.) No. 143. Therefore, all the regulations applicable with a wildlife sanctuary such as the eco sensitive zone restriction can apply to the Kodaikanal sanctuary only from the year 2013. The notification of the boundary and prohibition distance of the Sanctuary was done only in January,2020.
69 It is submitted that as demonstrated above, the project was completed in the year 2011 and thus the project is not attracted under the eco sensitive zone regulation. On the contrary what is alleged is that the construction of independent villas by individual plot owners has to be taken as a continuation of project activity and thus the project should be deemed to continue beyond the year 2013.
70 The above allegation is erroneous and unsustainable in law. It is undoubtedly a clear fact that the project is only a plotted layout development. Once the plots are purchased by individual land owners, they can choose to construct or not to construct any building. Even seen from the report of the committee, out of about 170 odd plots sold, only about 100 have been developed with buildings and the remaining are not. Therefore, the constructions made by them either by Page 64 of 117 themselves or through contractor can bind only themselves and the same cannot be a part of the layout project.
71 It is submitted that the very purpose of a No comments are offered.
layout development project is to sell vacant plots along with common and municipal infrastructure facilities.
Further, it is obvious that the purchase of vacant plots is for either holding it as an investment or for construction of building. It is submitted that any buildings if constructed by the plot purchasers cannot be called as a part of the original layout project. The statutory permissions are separate and independent of each other for the layout development and any building constructed thereafter. While the promoter such as the 9th Respondent obtains DTCP approval etc., to promote the layout with required infrastructure, it is always the individual plot owners who are liable under law to obtain permission and construct buildings if required.
72 In the instant case, from a business No comments are offered.
perspective, the plots were marketed as senior citizen residence homes. Upon purchase of the plots, in some cases the Respondent by itself or through subsidiary also acted as a contractor to some of the plot purchaser to build their houses. It is paramount to point out here that the individual houses, its design and size is al decided by the plot owners subject to statutory regulations.
Equally it is only for aesthetics that a common design is suggested and accepted by individual purchasers in terms of having equal ceiling etc. The same is a common business practice in luxury homes and the fact remains that the project is only a layout development project and the buildings are constructed by the individual plot owners which is sometimes contracted by the 9th Respondent. Some of the plot owners have constructed and some are in the process of constructing and some may construct in the future. The above fact cannot, as per law, mean and include that the layout development project is continuing only because the plot purchasers build houses at different points of time.
73 Therefore, it is submitted that the layout Completely denied the development project was completed in averments and the Committee the year 2011 and thus the 2013 relied upon the facts notification of Kodaikanal sanctuary has mentioned against above serial no application to the present project. In No. 17, 18 and 21.
Page 65 of 117fact, the eco sensitive zone notification for the sanctuary of the year 2020 that is 23.01.2020 does not cover the entire village of G.Kallupatty and thus even as on date, there is no applicability of any restrictions to the project.
74 In arguendo it is submitted that the primary contentions are that since the project does not attract the EIA, 2006 as being only 49.3 hectares in extent, the ESZ or clearance from National Board for Wild Life does not apply to the project. It is only on false charges that the project is contended as exceeding 50 hectares and continuing beyond 2011 and all of that is denied and unsustainable as elaborated above. Thus, the project neither attracts the ESZ or the need for NBWL clearance.
CONSENT FROM TNPCB:
75 It is submitted that the 9th Respondent Show cause notices was after the completion of the project in the issued by TNPCB on year 2011 onwards had sold and handed 18/05/2016 as the unit fails over those plots to individual to obtain consent of TNPCB as purchasers. Thereafter, this Respondent required under Section 25 of proposed to construct a club house to an the Water (Prevention and extent of 4,000 sq. meters. The 9th Control of Pollution) Act, 1974 Respondent also applied and got as amended and under approval from the DTCP vide order dated section 21 of the Air 27.05.2013 for the club house. (Prevention and Control of Pollution) Act, 1981 as Accordingly, along with taking steps for amended for the entire construction, the 9th Respondent also township development project applied for consent from the TNPCB vide including for all its allied application dated 12.02.2014. activities. 76 Thereafter, the application was returned However, no application is by the TNPCB erroneously by relying received from the project upon the forest NOC dated 12.07.2011 proponent for the entire and concluding that the project is township project along with beyond 50 hectares and thus attracts the environmental clearance the EIA, 2006. obtained from the MoEF&CC/SEIAA.
77 Consequently, it is a matter of fact that, at that point of time, the Respondent MoEF&CC vide its Notification proposed to have an expansion of the dated 09.12.2016 stated that layout project and subsequently dropped "No consent to Establish or the same and the application was Operate" under the Water withdrawn. Thereafter it became (Prevention and Control of necessary for the Respondent to Pollution) Act, 1974 as approach the TNPCB again and explain amended and the Air that the project is only 49.3 hectares and (Prevention and Control of that is does not require EC. Pollution) Act, 1981 as amended will be required from the State Pollution Control 78 In the meantime, the TNPCB issued Board for residential show cause notice dated 18.05.2016 for Buildings up to 1,50,000 the club house of 4,000 sq. meter for not square meters.
having obtained consent. It is a matter
of fact that the club house is not fully However, Hon'ble NGT (PB)
constructed or operated on 18.05.2016 vide its Order dated
and it remains in the same state till 09/12/2017 in O.A.677 of
today. In the mean time since the
Page 66 of 117
present application was filed and the 2016 directed MoEF&CC "to re-
entire matter is before this Hon'ble examine its Notification dated
Tribunal, the 9th Respondent has not 9th December, 2016 and take
acted any further, awaiting the outcome appropriate steps to delete,
of the present case. amend and rectify the clauses
of the said
79 Therefore, it is submitted that this Notification" and the matter
Respondent has been only issued a show still under sub-judice.
cause notice and that too only for the
reason that the project exceeds 50
hectares by erroneously relying upon the
forest NOC. It is within the rights of this
Respondent to respond and submit
explanations clarifying the same to the
TNPCB for the said authority to decide
and pass statutory order under Section
33A and Section 31A of the Water and
Air Act respectively under which the
show cause notice has been issued.
80 Therefore, the above issue has no
relevance to the allegations contained in the present case and the reliance placed on the TNPCB proceedings are only to find some fault somehow on the project which only amount to misleading this Hon'ble Tribunal.
ENVIRONMENTAL IMPACT AND ENVIRONMENTAL COMPENSATION 81 It is submitted that the present project is The Hon'ble NGT(SZ) in its only a layout development project. The Orders have directed to assess plot owners whoever has purchased and the environmental chosen to, have put up only residential compensation, if there is any buildings. There is no other industrial violation. As the Joint or commercial activity in the whole Committee confirmed the project site. violation, the environmental compensation was arrived as per 82 In so far as the layout development is the methodology derived by the concerned, the 1st report of the joint Central Pollution Control Board.
committee itself is evidence to the fact
that there is no environmental
disturbance or damage done by the
project. More particularly, it is clearly recorded that the project has not disturbed or poses any danger to the existing land pattern, water streams, odai etc., to not disturb the existing ecology of the area.
83 It is submitted that even thereafter the only waste generation at the project is that of sewage and domestic waste. They are taken care of adequately by proper sewage and waste disposal system. It is not disputed that the waste disposal system is sufficient and efficient and the project maintains highest standards of eco- friendly living with pure air and total hygiene.
Page 67 of 11784 Therefore, it is submitted that there is no The Hon'ble NGT(SZ) in its environmental damage that has been Orders have directed to assess caused by the project and thus there the environmental arises no necessity for imposition of any compensation, if there is any environmental compensation on the violation. As the Joint project. Without nothing the above and Committee confirmed the without establishing the manner in violation, the environmental which any damage has been caused by compensation was arrived as per the project, the committee has proceeded the methodology derived by the to assess the compensation. In fact, the Central Pollution Control Board. committee ought to have filed a report if there were any damages and then proceeded for calculating compensation.
However, by understanding the order of this Hon'ble Tribunal to assess damage and calculate compensation, if any, the committee in arbitrary and erroneous manner straight away assessed the compensation which is unsustainable in law.
85 The only other ground on which It is submitted that, even though the DTCP approval obtained for 49.31 Ha for their project, the 9th respondent has obtained NOC on 24.01.2008 from Forest Department, Government of Tamil Nadu for the development of farming over an extent of land of 128 Acres (51.82 Hacters), which exceeds 50 Hacters.
Though the proponent has obtained DTCP approval over an extent of 49.31 Hacters, it was ascertained from the records vide Tamil Nadu Forest Department letter dated 02/07/2011 that the project proponent retains the same area of 51.82 Hacters land for the township development project and thus the project activity attracts Environmental Impact Assessment Notification, 2006 as amended listed under category 8(b) of the Schedule.the compensation is assessed is that of non-
obtainment of EC by supposing that the project is beyond 50 hectares. The same is erroneous as the project does not require EC as it falls below 50 hectares and does not attract the EIA, 2006.
86 Nevertheless, the compensation and It is submitted that Committee calculation were done without an has given an opportunity to the opportunity being provided to this project authority to submit Respondent and as such the their views. Project authority Respondent reserves recourse to cannot direct the Committee to statutory process before the give an opportunity prior to imposition of environmental each and every decision compensation. making process, report preparation etc., which tantamount the interference with the Judicial proceedings.
The environmental Page 68 of 117 compensation can be levied to any defaulters.
Calculation of Environmental compensation was arrived only based on the methodology derived by the Central Pollution Control Board, New Delhi, for levying Environmental Compensation.
PARAWISE REPLY 87 It is submitted that the report of the joint committee is from any angle erroneous and unsustainable in law and is denied on para wise basis hereunder.
Terms of reference(i):
To inspect the area in question and consider the question regarding the environment impact of the project in Eco-Sensitive area in forest wildlife and existing water bodies and whether the project developer had started their construction without getting environment clearance.
Observations of the Objections by the 9th Remarks of the
committee Respondent for 1st report Committee
(in 1st Report) (2nd Report)
Regarding the eco- a) It is submitted that the Remarks on (a), (b), (c)
sensitive area: issue regarding to the and (d) *
The project activity violation of Eco-Sensitive .
falls within 10 km of Zone regulation is Though the proponent
eco- sensitive zone (in unsustainable for the reason has obtained DTCP
that the application of the approval over an extent of
the absence of
said regulation applies only 49.31 Hacters, it was
delineation of Eco- to projects that require
sensitive Zone of ascertained from the
Environmental Clearance. records of Tamil Nadu
Kodaikanal Wildlife This proposition of law is
Sanctuary prior to the Forest Department NOC
established and settled by dated 24/01/2008 and
Gazette notification the orders of the Hon'ble
subsequent letter dated
dated 23/01/2020), it Supreme Court in the
02/07/2011 that the
is mandatory landmark judgment in Goa
Foundation v.Union of India
project proponent retains
requirement of getting the same area of 51.82
Clearance from the and the resultant
notification by the MoEF Hacters land for the
Standing Committee of township development
dated 02.12.2009. In the
National Board for project and thus the
instant case, the project
Wildlife (NBWL). does not attract the EIA project activity attracts
Further, Govt. Of Notification 2006 and thus Environmental Impact
India vide S.O. 412(E) does not require EC as per Assessment Notification,
dated 23/01/2020 EIA 2006. Therefore, the 2006 as amended listed
has notified the Eco-Sensitive Zone buffer under category 8(b) of the
Kodaikanal Wildlife regulations do not apply to Schedule.
Sanctuary, wherein the present project at all.
notified an area to an b) In arguendo, it is As per Hon'ble
extent of 0 km to 1.0 submitted that the approval Supreme Court Order
km around the for the project was granted dated 04.12.2006 in
boundary of the much prior on 09.03.2009 W.P.No. 40 of 2006,
itself before the ESZ MoEF&CC issued a public
Kodaikanal Wildlife
regulations came into force notice dated 01.01.2009
Sanctuary as Eco which is on 02.12.2009 by a
sensitive zone. that "those projects/
notification of the MoEF and
activities which are located
as such at the time of grant
Whether the project within ten kilometers of the
of approval, there was no
developer had boundaries of Sanctuary
regulations of eco-sensitive
and National parks shall
started their area.
c) Notwithstanding all of seek clearance under the
construction without
Page 69 of 117
getting environment the above, it is pertinent to Wildlife (Protection) Act,
clearance: state that the Kodaikanal 1972".
As per the affidavits Wildlife Sanctuary itself was
submitted by SEIAA notified only on 2013. The As the 9th respondent
and as per the records buffer Eco-Sensitive Zone of has obtained approval
the Sanctuary was fixed up only after the said public
of TNPCB, it is to a distance of 1 km only
observed that, the unit during the year 2020. Even notice, It is evident that
has continued the earlier, when the default the project needs to obtain
project related activity approval from Standing
buffer of 10 kms were made
without obtaining Committee of National
applicable procedure for
Board for Wildlife.
environmental such regulations were made
clearance from SEIAA by on office Memorandum of
the MoEF dated 02.12.2009 The 9th respondent is
and consent from the
only. Thus, looking from any carrying out activities
TNPC Board. The unit such as construction of
continues to violate angle, the project is not residences, construction
the provisions of covered under the ESZ of utilities such as club
regulations.
Water & Air Acts, as house, provided services
d) It is pertinent to state
per the report like collection of sewage,
that the enforcement of ESZ,
submitted by TNPCB, the notification of the solid wastes, etc,
DEE, Theni vide Kodaikanal Sanctuary, the maintaining the common
TNPCB, Theni letter fixing of buffer zone can areas like roads and street
No. F.0001 apply only prospectively and lights even during the
(N.A)/DEE/TNPCB/20 in the instant case, as inspection made by the
16/ dated explained herein above, the committee on 19.03.2020.
25/05/16 & regulations cannot be
F.0002/DEE/TNPCB/ retrospectively applied. It is evident from the
Theni/2016/ dated above that the project
06.10.2016. In this development is still under
regard, TNPCB vide progress and the 9th
Proceeding dated respondent cannot claim
18/05/2016 issued that the project activities
Show cause Notice to are not covered under the
the Unit. Eco-Sensitive Zone
regulations.
The Member
Secretary, SEIAA vide The project site is 35 m
letter dated away from the boundary of
02.04.2014 instructed the Kodaikanal Wildlife
the Project developer Sanctuary. Since the project
not to commence any activity falls within 10 km of
activity other than eco-sensitive zone (in the
cleaning of the site, absence of delineation of Eco-
fencing the site and sensitive Zone of Kodaikanal
putting up temporary Wildlife
structure for Sanctuary prior to the
accommodation of Gazette notification dated
labour, along with 23/01/2020), it is
basic facilities like mandatory requirement of
toilets and water getting Clearance from the
supply, made as a Standing Committee of
temporary National Board for Wildlife
arrangement. (NBWL). Further, Govt. of
Though the Project India vide S.O. 412(E) dated
developer has obtained 23/01/2020 has notified the
approval from DTCP, Kodaikanal Wildlife
requisite Consent & Sanctuary, wherein notified
Authorization has not an area to an extent of 0 km
been obtained from the to 1.0 km around the
TNPCB. boundary of the Kodaikanal
Environmental Clearance: Wildlife Sanctuary as Eco sensitive zone.
Page 70 of 117
* - The remarks of DFO
a) It is submitted that and Wildlife warden,
the entire extent of the Kodaikanal on the
project is 49.31 hectares objections filed by 9th
and thus does not require Respondent was furnished
environmental clearance vide his letter dated
as being less than 50 25.11.2020 is annexed
hectares as per Entry 8 of herewith vide Annexure I.
Schedule to the EIA
notification 2006. Remarks on (a), (b), (c),
b) The observations of (d), (e), (f), (g) and (h) of the committee are firstly Environmental Clearance:
that an extent of 7 acres of land in Survey Nos. The 9th respondent 426, 428, 429 and 441/1 has obtained NOC from are also project lands over the Tamil Nadu Forest and above 49.31 hectares Department on and as such the total land 24/01/2008 over an usage exceeds 50 extent of 51.82 Hacters hectares. The Committee (128 Acres) of land.
came to the above However, the 9th
conclusion based on the respondent made a claim
reason that the Survey that the project need not
require Environmental
Number Except 441/1 are
Clearance under EIA
a part of the NOC given by
Notification, 2006 as they
the Tamil Nadu Forest have obtained DTCP
Department dated approval only over an
24.01.2008 and extent of 49.31 Hacters.
Impact of the project 12.07.2011 which are not The 9th respondent
in Eco-Sensitive area amended till date. Further cannot claim for the
in forest wildlife and certain activities of exemption of
existing water organic farming were environmental clearance
bodies: carried on in Survey as the proponent failed to
No.441/1 and some other include the lands in the
activities of brick S.F.Nos. 426, 428 and
The Committee has manufacturing in some 429 with respect to the
inspected various other land which makes it clearance obtained from
constructions of villas, a part of the project the Forest Department
Oddai (small seasonal activity. and the above said lands
streams) flowing c) It is submitted that still under possessions of
through the project the above findings of the 9th respondent.
site, treatment system Committee is erroneous The 9th respondent
of sewage, solid waste because the committee cannot claim that their
disposal and distance has failed to compare the project area is reduced
between reserved approved DTCP layout just because they handed
forest and the project dated 09.03.2009 which over the land of 12.51 Ha
site. forms the basis and to local body as per the
DTCP guidelines, which is
Committee has shown describes the extent of the
an integral part of the
the records of Revenue project. The Committee
township development
for various oddai in also failed to consider the
project.
the project site and proceedings of the District
verified the existence Collector date 2011, which All allied activities
along with revenue has observed the includes vermi
officials. There are completion of the project composting, organic
four oddais in the as per the DTCP farming activity, hollow
project site. Widths of conditions which also block manufacturing
the oddais are not points to only 49.31 facility, development of
altered in the site. hectares. All the activities roads, street lightings
However, bridges are are confined only to DTCP
Page 71 of 117
constructed along the approved area only. covers the entire township
cross roads within the Further, out of the 49.31 development
developed project area hectares of land, almost project/activity and
for free flow of water 12.51 hectares is gifted for hence, the proponent has
during monsoon. The forming of roads to the to submit application for
Project Developer has local body as per DTCP Consent of the TNPCB
left 35 meter buffer norms who had taken under red category.
zone from the reserved charge and completed the
forest. same. The 9th Respondent
The sewage from the is thus only having 36.8
villas are collected and hectares of land for the
disposed periodically project area. In additions,
through tankers the application for
authorized by local environmental clearance
body. Also the unit is for Phase II of the project
converting the Bio submitted by the
degradable solid waste Applicant clearly
through explained the confusion
vermicomposting and recorded Phase I of
the project to be 49.31
hectares which is the
actual project size and the
remaining extent of lands
including the aforesaid
Survey Numbers in 426,
428, 429 and 441/1 as
proposed expansion areas.
The expansion was also
subsequently given up
and the application for
expansion stands
withdrawn.
d) Therefore, the
committee has not
considered the various
statutory documents and
has concluded only on the
basis of the forest NOC
which was an inadvertent
mistake and not binding
on the project since the
lands are itself are not
forest lands. Thus, the
above findings of the
Committee warrant
revision and interference
by this Hon'ble Tribunal.
e) The 2nd observations
of the Committee in Point
No.(i) is that the project
related activity such as
nursery, composting yard,
etc are being undertaken
in the aforesaid additional
Survey Number and thus
amounts to land utilized
for the project. It is
submitted that the
referred activity is organic
farming carried on in 1
acre of land in Survey No.
Page 72 of 117
441/1. The said land is
not owned by the 9th
Respondent and such is
not a part of the project or
a part of the DTCP
approval.
f) In fact, the activity is
not a project activity since
what has been
implemented by the 9th
respondent is only plotted
layout development. The
activity of organic farming
does not find a part as a
project activity in any
permissions or clearances.
g) it is understood by the
respondents that is only
upon a request by the
residents who are senior
citizens, as a leisure
activity, that they
obtained consent and had
an arrangement with the
original land owner to
carry out such activities
which seems to be
permitted by the land
owner on a temporary
basis until the lands are
required by him.
Therefore, an activity that
is purely temporarily
carried on by purchasers,
not promised as a project
activity, in lands that do
not form part of the
clearance are now
portrayed on assumptions
and presumptions to be
that the project. It is
submitted that the
Committee had not
noticed this fact and the
allegation that the activity
is a project activity is
without verification,
perusal and assessment of
the activities. Therefore, it
is submitted that the
above are contrary to true
facts and those facts
cannot be denied on the
basis of suspicions and
presumptions.
h) It is further submitted
that with regard to the
issue pertaining to hollow
brick manufacturing
which was noticed as
undertaken in part of the
Page 73 of 117
lands in Survey No.441/1,
the same was carried out
by 3rd party agencies on a
contractual basis to
supply material for the
project. The land on which
such units were
established were never a
part of the project nor
owned by the 9th
Respondent. The units are
white category industries
as per Type Code No.4016
in BP No.6 dated 2.8.2016
and as such the white
category industries do not
require consent form the
TNPCB as per the
guidelines of CPCB. These
units are not in operation
which were also confirmed
by TNPCB in their reply to
this Hon'ble Tribunal.
Environmental Impact:
a) It is submitted that
the report of the
committee clearly
establishes that there is
absolutely no impact of
the project in eco-sensitive
area in forest wildlife and
existing water bodies. The
committee has also
observed that the sewage
and solid waste are
properly disposed. The
committee has further
observed that no water
bodies or odai are
disturbed by the project.
The committee also
observed that a 35 metre
buffer zone is also left
from the forest. Therefore,
the committee has given a
clean chit to the 9th
respondent in terms of
viability and impact of the
project on the
environment. Therefore,
the entire issues only
related to procedural
compliances by the 9th Remarks on (a) of
respondent. Environmental Impact :
*
The 9th respondent
has not furnished any
base line data in respect
of water quality, air
quality to assess the
Page 74 of 117
environmental impact due
to ongoing project
activities and also not
furnished any
Environmental Impact
Assessment carried out as
per the Standard Terms of
Reference applicable for
construction and
township projects.
* - The remarks of DFO and
Wildlife warden, Kodaikanal
on the objections filed by 9th
Respondent was furnished
vide his letter dated
25.11.2020 is annexed
herewith vide Annexure I.
88 Reply to Terms of reference(i)
It is submitted that the committee has The 9th respondent is carrying
only relied upon the NOC of the forest out activities such as
department dated 24.01.2008 and construction of residences,
02.07.2011 to show that the project construction of utilities such
retains 51.82 hectares of land. The as club house, provided
committee has while noting that the services like collection of
DTCP approval is only for 49.3 hectares sewage, solid wastes, etc,
has not answered about the prevalence maintaining the common
of DTCP approval over and above the areas like roads and street
lights even during the
forest NOC.
inspection made by the
committee on 19.03.2020.
89 It is submitted that the committee has
not dealt with the submission of the It is evident from the above
Respondent in terms of Section 2 of the that the project development is
Forest Conservation Act and how the still under progress and the
jurisdiction of the forest department is 9th respondent cannot claim
restricted and it is only the DTCP that the project activities are
approval that prevails over and above the not covered under the Eco-
forest NOC. Sensitive Zone regulations.
90 The committee has failed to note that the The entire project area is
disputed survey number 426, 428, 429 located within 1 Km from the
& 441 has no activity or access even as boundary of the Kodaikanal
on today and as such instead of Eco-Sensitive Zone declared
reporting on the factual aspects has under Notification issued by
Govt. of India vide S.O.
made a legal case by interpreting the
412(E) dated 23/01/2020.
forest NOC clearance.
91 It is submitted that the committee has in
However the 9th respondent is
a shocking manner reported that
executing the project even
collection of sewage, solid waste,
without obtaining clearance as
maintain the common areas like road
required under the
street light etc., as amounting to project Environment Impact under development. In such a case, if Assessment Notification 2006 the report of the committee is to be within the boundary of the accepted then the 9th Respondent has to Kodaikanal Eco-Sensitive Zone be stop providing sewage and waste declared under Notification maintenance to the project.
issued by Govt. of India vide S.O.412(E) dated 23.01.2020 92 It is submitted that in so far as the Page 75 of 117 construction of residences is concerned, the same is not a project activity as Though the proponent has discussed in detail above and without obtained DTCP approval over referring to the objections already raised, an extent of 49.31 Hacters, it the committee has brushed aside all the was ascertained from the valid objections and merely reiterated records vide Tamil Nadu the same findings. Forest Department letter dated 93 In so far as the letter of the DFO dated: 02/07/2011 that the project 25.11.2020 given as Annexure-1 is proponent retains the same area of 51.82 Hacters land for concerned, it is submitted that the same the township development is merely an extract of all existing project and thus the project notifications. The DFO has not objected activity attracts or granted any explanation on the Environmental Impact submission of the project with regards to Assessment Notification, 2006 section -2 of the Forest Conservation Act. as amended listed under The DFO has further baldly stated that category 8(b) of the Schedule.
the project is on-going without
responding to the objections that the As per Hon'ble Supreme
project is only a layout development and Court Order dated 04.12.2006
other construction of residence is by in W.P.No. 40 of 2006,
individual third party. MoEF&CC issued a public
94 The arbitrariness and unreasonableness notice dated 01.01.2009 that
of the DFO is explicit from his blatant "those projects/ activities
allegation that there is impact on the which are located within ten
behaviour and movement of wildlife kilometers of the boundaries of
worsening the man animal conflict. At Sanctuary and National parks
the outset, the DFO has not based the shall seek clearance under the
above contention on the basis of any Wildlife (Protection) Act, 1972".
record or document. Further, he has not
stated which wildlife behaviour or As the 9th respondent has
pattern was affected. Further, the altered obtained approval only after
movement pattern or altered behaviour the said public notice, It is
has not been stated on the basis of any evident that the project needs
to obtain approval from
record maintained by the forest
Standing Committee of
department. That apart, the DFO has not
National Board of wildlife.
even refered to any recorded instance of
man animal conflict and any
compensation paid there on not only in
the project site but in the whole village of G.Kallupatty.
95 The above statement of the DFO is complete reversal of the clearance given by the same department and the same office to the same project at the same site in the year 2011 while it was cleared that there is no impact on forest and wildlife and that there are no man animal conflicts, while completely taking and opposite stand from his predecessor in office, the DFO in his letter has not relied on any records or documents.
96 It is submitted that since the project proponent has denied any environmental impact there arises no necessity for calculation of compensation. The committee without establishing any environmental damage has instead alleged that the proponent has not given any baseline data that too, when it was not even asked of the respondent. The Page 76 of 117 committee has failed to establish any environmental damage due to the project.
Terms of reference(ii):
Whether the project proponent had started their construction without getting environment clearance and if so, what is the extent of construction made in that area covered for the project and also the applicability of EIA Notification 2006 for the project and if there is any violation.
Observations of the Objections by the 9th Remarks of the committee Respondent for 1st Report Committee (1st Report) (2nd Report) From the NOC and a) It is submitted that the Remarks on (a) communication observations in the above As submitted above, obtained from the point are already discussed The 9 respondent cannot th Tamilnadu Forest and replied to in the claim for the exemption of Department, it has previous paragraph itself. It environmental clearance been observed that is only reiterated that the as the proponent failed to project developer has forest department's NOC is include the lands in the more than 50 Ha. of referred without context to S.F.Nos. 426, 428 and area in their the DTCP approval and 429 with respect to the possession from 2008 ground reality. The alleged clearance obtained from the Tamilnadu Forest to 2011. Though the activities are not project Department and the above project developer activities, not carried on by said lands still under claims that the total the 9th respondent and not possessions of 9th project area is less within the project site. respondent.
than 50 Ha., it is
pertinent to mention Further, all other
here that in the allied activities are
absence of the integral part of the
ownership one can not township development
get the NOC. Further, projects, which is being
the NOC obtained for carried out in the above
128 Acres (51.82 Ha.) said survey numbers.
from the Forest
Department has not
been amended till
date.
During the visit,
Committee has
observed few project
related activities viz.
nursery, composting
yard etc., are being
undertaken in the
adjoining area of the
project, which is not
part of the project
area. But, considered
to be activity area.
Accordingly, it is
observed that the area
of layout development
and allied activities
exceeds 50 Ha.,
therefore obtaining
Environmental
Clearance under EIA
Page 77 of 117
Notification, 2006 is
mandatory.
97 Reply to Terms of reference(ii) It is submitted that, even
It is submitted that the committee has though the DTCP approval
stated that the proponent failed to obtained for 49.31 Ha for their
include the lands in survey number 426, project, the 9th respondent has
428 & 429 for the purpose of obtained NOC on 24.01.2008
Environmental Clearance. from Forest Department,
Government of Tamil Nadu for
98 Firstly, the committee has given up the development of farming
the land in survey Number. 441/1 over an extent of land of 128
which was earlier allegated as a part of Acres (51.82 Hacters) inclusive
the project land. Now the committee of SF No 441,426, 428, and
is only concerned with 426, 428 & 429 village of G.Kallupatty
429. which exceeds 50 Hectares.
99 It is submitted that the same is not a
The 9th respondent is carrying
part of the project and was shown to the out activities such as
committee on the site as isolated barren construction of residences,
lands with no activity or no access. construction of utilities such
Without placing all that on record, the as club house, provided
committee has simply alleged that the services like collection of
same was left out. It is indeed true that sewage, solid wastes, etc,
those lands were left out and maintaining the common
intentionally so because those lands as a areas like roads and street
matter of record were purchased lights even during the
approval/completion of project. That inspection made by the
apart, those lands were never a part of committee on 19.03.2020.
the project or connected in any manner
with the project as seen from the DTCP The 9th respondent is carrying
approved layout. Therefore the 9th out activities such as
Respondent has intentionally and construction of residences,
responsibly left out those lands and not construction of utilities such
utilised an inch of the same for the as club house, provided
project till today. services like collection of
sewage, solid wastes, etc,
maintaining the common
areas like roads and street
lights even during the
inspection made by the
committee on 19.03.2020.
However the 9th respondent is
executing the project even
without obtaining clearance as
required under the Environment
Impact Assessment Notification
2006 within the boundary of the
Kodaikanal Eco-Sensitive Zone
declared under Notification
issued by Govt. of India vide
S.O.412(E) dated 23.01.2020.
Terms of reference(iii)
Area of construction and proximity of the project to the reserve forest and Kodaikanal wildlife Sanctuary.
Observations of the Objections by the 9th Remarks of the committee Respondent for 1st Report Committee (1 Report) st (2nd Report) Out of 298 allotted a) It is submitted that Remarks on (a) * plots, 172 plots the reply and It is submitted that, Page 78 of 117 including undivided objections to this even though the DTCP shares are sold out to paragraph is already approval obtained for the private discussed under the 49.31 Ha for their project, the 9th respondent has individuals. Presently, heading "Eco-sensitive obtained NOC on 103 villas are Zone" and thus not 24.01.2008 from Forest constructed. Built up repeated for the sake Department, Government area of each villa is at of convenience and of Tamil Nadu for the about 950 Sq. ft. Total brevity. development of farming over an extent of land of built up area of the 128 Acres (51.82 Hacters), villas is around 97850 which exceeds 50 Hacters, Sq. ft. (9093.86 m2). At and thus the project present 40 villas are activity attracts occupied by the owners Environmental Impact and remaining villas Assessment Notification, have occasionally 2006 as amended listed occupied. under category 8(b) of the The project site is Schedule. 35 m away from the boundary of the As per Hon'ble Kodaikanal Wildlife Supreme Court Order Sanctuary. Since the dated 04.12.2006 in W.P.No. 40 of 2006, project activity falls MoEF&CC issued a public within 10 km of eco- notice dated 01.01.2009 sensitive zone (in the that "those projects/ absence of delineation activities which are located of Eco-sensitive Zone within ten kilometers of the of Kodaikanal Wildlife boundaries of Sanctuary Sanctuary prior to the and National parks shall Gazette notification seek clearance under the dated 23/01/2020), it Wildlife (Protection) Act, is mandatory 1972". requirement of getting Clearance from the As the 9th respondent Standing Committee of has obtained approval National Board for only after the said public Wildlife (NBWL). notice, It is evident that Further, Govt. of the project needs to obtain India vide S.O. 412(E) approval from Standing dated 23/01/2020 Committee of National has notified the Board of wildlife. Kodaikanal Wildlife Sanctuary, wherein The 9th respondent is notified an area to an carrying out activities extent of 0 km to 1.0 such as construction of km around the residences, construction boundary of the of utilities such as club house, provided services Kodaikanal Wildlife like collection of sewage, Sanctuary as Eco solid wastes, etc, sensitive zone. maintaining the common areas like roads and street lights even during the inspection made by the committee on 19.03.2020. It is evident from the above that the project development is still under progress and the 9th respondent cannot claim that the project activities Page 79 of 117 are not covered under the Eco-Sensitive Zone regulations. The entire project area is located 1 Km from the boundary of the Kodaikanal Eco-Sensitive Zone declared under Notification issued by Govt. of India vide S.O. 412(E) dated 23/01/2020 * - The remarks of DFO and Wildlife warden, Kodaikanal on the objections filed vide by 9th Respondent was furnished vide his letter dated 25.11.2020 is annexed herewith vide Annexure I. 100 Reply to Terms of reference(iii) The Ministry of Environment, It is submitted that the Forest, Government of India committee has once again stated has directed that the that because the forest NOC dated construction of new projects 24.01.2008 is 51.82 hectares, the or activities or the expansion project requires environmental or modernization of existing clearance. The committee has not projects or activities listed in answered on the DTCP approval the schedule of the Environment Impact which is only for 49.3 hectares and Assessment Notification 2006 the NOC by the Forest Department including Townships and Area is only a mistake of record and in Development projects covering any event has no statutory backing an area ≥ 50 hectares, in the project site as per Section 2 entailing capacity addition of the Forest Conservation Act. with change in process and or technology shall be 101 Reply to Terms of reference(iii) undertaken in any part of The committee has here given India only after the prior up and has not specifically environmental clearance from alleged that any of the activity is the Ministry of Environment
carried on in 426, 428 or 429. Forest, or as the case may be, The committee only states that the by the State Level lands are in possession of this Environment Impact Respondent. The committee has Assessment Authority vide conveniently not answered the Notification issued by the objection that the project was Ministry dated 14.09.2006. complete in 2011. It is submitted that the lands are not a part of the The 9th respondent obtained project and not used for the NOC from Forest Department, project. However, as owners of the Government of Tamil Nadu on lands, the possession is with the 24.01.2008, for their project Respondent and in the event of over an extent of land of 128 them not being utilised for the Acres (51.82 Hectares), but not obtained prior project the committee has failed to Environmental Clearance from point out the illegality in holding the Ministry of Environment the possession. Forest, Government of India, Page 80 of 117 102 The committee has given up and as required under the has now admitted that the land in Environment Impact survey number 441/1 is not a part Assessment Notification 2006 of the project. It is in fact the same for their project. state with the other lands in survey number 426, 428 & 429 also. Though the proponent has 103 It is submitted that since the obtained DTCP approval over project does not attract the EIA an extent of 49.31 Hectares, 2006 and was complete in the year it was ascertained from the records vide Tamil Nadu 2011 as certified by the District Forest Department letter Collector, the ESZ notification of addressed to the project Kodaikanal sanctuary does not authority dated 02.07.2011 apply to the project. that the project proponent retains the same area of 51.82 Hectares of land for the township development project and thus the project activity attracts Environmental Impact Assessment Notification, 2006 as amended listed under category 8(b) of the Schedule.
Further it was observed that the entire project premises are still under the responsibility of the 9th respondent and constructions are being under taken only by the 9th respondent for the plans predefined for the township project.
The entire project area is located within 1 Km from the boundary of the Kodaikanal Eco-Sensitive Zone declared under Notification issued by Govt. of India vide S.O. 412(E) dated 23/01/2020.
However the 9th respondent is executing the project even without obtaining clearance as required under the Environment Impact Assessment Notification 2006 within the boundary of the Kodaikanal Eco-Sensitive Zone declared under Notification issued by Govt. of India vide S.O.412(E) dated 23.01.2020.
Terms of reference (iv) Whether there is any water body available near and within the project area which requires preservation and protection.
Observations of the Objections by the 9th Remarks of the
committee Respondent on 1 Report Committee
st
(1st Report) (2nd Report)
During the visit a) It is submitted that as Remarks on (a)
Committee observed stated earlier, the It is submitted that
that there is no any observations of the during the inspection of
Page 81 of 117
water body available committee establish the joint committee on
near and within the the fact that no 19.03.2020, it was
project area. Further, environmental hazard observed that the
the natural drains / or damage has been drains/oddais available
oddais passing caused by the 9 th within the project area
through the project respondent. have not been
area have been verified realigned/obstructed.
with revenue However, the 9th
authorities / FMB and respondent shall not
observed that the four alter/change/modify the
prevailing ecological
existing natural
conditions of within the
seasonal drains /
project site including
oddais in the project
natural drain/oddais at
area have not been all point of time.
realigned /
obstructed. Widths of
the oddais are not
altered. Further, M/s.
Bahri Estates Pvt. Ltd.
has constructed the
bridge on the natural
drains after obtaining
requisite permissions
from the Tamilnadu
Public Works
Department.
104 Reply to Terms of reference(iv): It is submitted that during the
It is submitted that the committee has inspection of the joint committee given a clean chit to the 9th Respondent on 19.03.2020, it was observed as having not caused any damage to the that the drains/oddais available environment, specifically the drains and within the project area have not odais. The committee has further been realigned/obstructed. directed the 9th Respondent to not alter, change or modify the streams and the 9 th However, the 9th respondent Respondent accepts and undertakes for shall not alter/change/modify the same. the prevailing ecological conditions of within the project site including natural drain/oddais at all point of time.
Terms of reference(v):
If there are violations, the committee may also specify the violation aspects and the extent of violation having impact environment and the action taken by the authorities for the said violation and submit a report.
Observations of the Objections by the 9th Remarks of the committee Respondent on 1st Report Committee (1st Report) (2nd Report)
Based on the records a) With respect to the Remarks on (a), (b), (c), made available during notices issued by the (d), (e), (f), (g) and (h) the visit, it has been TNPCB, it is submitted that Show cause notices observed that the unit the 9 th respondent had was issued by TNPCB on continuing the approached the authorities 18/05/2016 as the unit construction activity only for consent for the fails to obtain consent of without obtaining constructions of club TNPCB as required under environmental house in a total built up Section 25 of the Water clearance and Consent area of 4000 sq.m. The (Prevention and Control of & Authorization from show cause notice issued Pollution) Act, 1974 as amended and under the authorities by the TNPCB have been section 21 of the Air concerned. The unit complied with and reply (Prevention and Control of violated the provisions along with applications Page 82 of 117 of Air & Water Acts. In have been made by the 9th Pollution) Act, 1981 as this regard, TNPCB, Respondent. Thus, it is for amended for the entire Theni vide Proceeding the TNPCB to conclude the township development dated 18/05/2016 statutory process and pass project including for all its issued Showcause final orders on the Show allied activities.
Notice to the unit for Cause notice after
continuing the project considering the reply given However, no
activity without and the applications made application is received
obtaining Consent by the 9th Respondent. It is from the project
from the Board. submitted that the same is proponent for the entire
township project along
a statutory process as per
Based on the direction Section 25 of the Water Act with the environmental
of the Tamilnadu and Section 21 of the Air clearance obtained from
Pollution Control Act by exercise of powers the MoEF&CC/SEIAA.
Board, the developer granted under section 33-A vides their letter dated and Section 31-A of the MoEF&CC vide its 02/04/2014 applied aforesaid acts respectively, Notification dated for Environment where there are appeal 09.12.2016 stated that Clearance before the remedies available to the "No consent to Establish State Level 9th or Operate" under the Respondent. Thus, Water (Prevention and Environment Impact without appreciating the Control of Pollution) Act, Assessment Authority- above stated, the 1974 as amended and the Tamilnadu and it Committee had drawn Air (Prevention and appears that the conclusions on the notices Control of Pollution) Act, matter is still pending. issued by the TNPCB which 1981 as amended will be SEIAA-Tamilnadu vide is unsustainable. required from the State letter dated b) In so far as the Pollution Control Board for residential Buildings 02.04.2014 instructed applications and withdrawals for EC are upto 1,50,000 square the developer not to meters.
commence any activity concerned, it is submitted other than cleaning of that they were made only However, Hon'ble NGT the site, fencing the for a proposed expansion of (PB) vide its Order dated site and putting-up about 31.02 Hectares of 09/12/2017 in O.A.677 temporary structure land as contained in the of 2016 directed for accommodation of application dated MoEF&CC "to re-examine labour, along with 02.04.2014. The proposed its Notification dated 9th basic facilities like expansion lands had no December, 2016 and take toilets and water activity going on at the appropriate steps to supply, made as a time application or even till delete, amend and rectify temporary date. When the expansion the clauses of the said arrangement. was proposed, the total Notification" and the extent of the project matter still under sub- MoEF&CC vide including the existing judice. Notification No. S.O. 49.31 hectares became 804 (E) dated 14th liable for environmental March 2017 provided clearance. Accordingly, the a six month window existing project was shown for the entities not as Phase I with an extent of complying with 49.31 hectares and environment proposed expansion was regulation under shown as Phase II with an Environment extent of 31.02 hectares.
c) It is submitted that as explained above, the lands shown as Phase I had become liable for obtaining EC only due to proposed expansion activity.
Therefore, as per the
existing regulations and
procedure the 9th
Page 83 of 117
respondent submitted the
application for expansion
and also subsequently
submitted a letter of
apology in so far as the
construction in Phase I is
concerned. Thereafter, the
said application was
delisted by the SEIAA.
d) However, it is crucial
to state that the project
proponent thereafter could
not pursue the proposed
expansion due to failure to
secure the land and due to
economic situation and
business-related reasons.
Therefore, the proposed
expansion was given up by
the 9th respondent and the
application for EC was also
withdrawn vide letter dated
03.09.2015.
e) Thereafter, it has been
clearly explained to the
authorities that with the
withdrawal of the proposed
expansion, the project is
confined only to 49.31
hectares and as such there
is no violation as were
before the application for
expansion. In continuation
to the same, the 9th
respondent has also
submitted such
explanations to the TNPCB
and EC authorities
whenever called upon.
With respect to the show
cause notice received from
the TNPCB, the 9th
respondent complied with
the same and applied for
consent under Section
25(5) of the Water Act for
the establishment of the
Club House in a total built
up area of 4000 sq.m
which is unrelated to the
issue of Environmental
Clearance.
f) Thus, the proceedings
of SEIAA and TNPCB
directing the 9th
respondent to not
commence the
constructions or permitting
clearing the area, etc. were
all made in the intervening
time period starting form
Page 84 of 117
application for proposed
expansion and withdrawal
of that application. It is
further submitted that the
project of "Bahri Beautiful
Country" which is plotted
layout development was
completed in the year 2011
itself as evidenced by the
proceedings of the District
Collector dated
15.09.2011.
g) Therefore, these
correspondent are replied
upon without context by
the joint committee and
based on observations in
those correspondence, has
concluded as if the
authorities had found the
9th respondent to be a
violator. Such findings are
erroneous, unsustainable
and perhaps made out of
caution by the joint
committee.
h) Finally, it submitted
that it is a matter of fact
and a matter of record that
the project of the 9th
respondent is only 49.31
hectares. Only that extent
of lands were developed
and completed in total
compliance to the DTCP
regulations. In fact the
aforesaid possession was
admitted by the DTCP
authorities while granting
layout approval and
Environmental Clearance
was also not insisted at the
time of approval. Therefore,
looking from any angle, the
committee report is
erroneous and
unsustainable and contract
to actual facts and
circumstances
105 Reply to Terms of reference(v): Show cause notices was issued
It is submitted that the show cause by TNPCB on 18/05/2016 as
notice was issued by the TNPCB only the unit fails to obtain consent
against the club house for total for total of TNPCB as required under
area of 4,000 sq. meters. In fact, the Section 25 of the Water
show cause notice of the TNPCB which is (Prevention and Control of
annexed to the committee report would Pollution) Act, 1974 as amended
only refer to survey numbers and under section 21 of the Air
400/6,401/2 which are the survey (Prevention and Control of
numbers for the club house alone. Pollution) Act, 1981 as amended
for the entire township
Page 85 of 117
106 The issue relating to the club house development project including
has been explained in detail above and for all its allied activities.
the respondent is vested with the right to
statutory process as per section 33A and However, no application is
31A of the Water and Air respectively. received from the project
proponent for the entire
township project along with the
environmental clearance
obtained from the
MoEF&CC/SEIAA.
MoEF&CC vide its Notification
dated 09.12.2016 stated that
"No consent to Establish or
Operate" under the Water
(Prevention and Control of
Pollution) Act, 1974 as amended
and the Air (Prevention and
Control of Pollution) Act, 1981
as amended will be required
from the State Pollution Control
Board for residential Buildings
upto 1,50,000 square meters.
However, Hon'ble NGT (PB) vide
its Order dated 09/12/2017 in
O.A.677 of 2016 directed
MoEF&CC "to re-examine its
Notification dated 9th December,
2016 and take appropriate steps
to delete, amend and rectify the
clauses of the said Notification"
and the matter still under sub-
judice.
ENVIRONMENTAL COMPENSATION
107 It is submitted that the issue with The Hon'ble NGT(SZ) in its
regards to the imposition of Orders have directed to assess
compensation is more elaborately the environmental
explained above. It is thus submitted compensation, if there is any
that the project is only 49.3 hectares and violation. As the Joint
not requiring EC, the project was Committee confirmed the
complete in the year 2011 and not violation, the environmental
attracted to any of ESZ notification and compensation was arrived as per
thus there arises no necessity for the methodology derived by the
imposition of any environmental Central Pollution Control Board.
compensation. Further, as clear form the Eenvironmental compensation
committee report, there is no damage can be levied to any defaulters.
caused to the environment as well and Calculation of Environmental
on that ground also the project is not compensation was arrived only
liable for imposition of any based on the methodology
environmental compensation. derived by the Central Pollution
Control Board, New Delhi, for
levying Environmental
Compensation.
The Ministry of Environment,
Forest, Government of India has
directed that the construction
of new projects or activities or
Page 86 of 117
the expansion or modernization
of existing projects or activities
listed in the schedule of the
Environment Impact
Assessment Notification 2006
including Townships and Area
Development projects covering
an area ≥ 50 hectares, entailing
capacity addition with change
in process and or technology
shall be undertaken in any part
of India only after the prior
environmental clearance from
the Ministry of Environment
Forest, or as the case may be,
by the State Level Environment
Impact Assessment Authority
vide Notification issued by the
Ministry dated 14.09.2006.
The 9th respondent obtained
NOC from Forest Department,
Government of Tamil Nadu on
24.01.2008, for their project
over an extent of land of 128
Acres (51.82 Hectares), but not
obtained prior Environmental
Clearance from the Ministry of
Environment Forest,
Government of India, as
required under the
Environment Impact
Assessment Notification 2006
for their project.
Though the proponent has
obtained DTCP approval over an
extent of 49.31 Hectares, it
was ascertained from the
records vide Tamil Nadu Forest
Department letter addressed to
the project authority dated
02.07.2011 that the project
proponent retains the same
area of 51.82 Hectares of land
for the township development
project and thus the project
activity attracts Environmental
Impact Assessment Notification,
2006 as amended listed under
category 8(b) of the Schedule.
Further it was observed that
the entire project premises are
still under the responsibility of
the 9th respondent and
constructions are being under
taken only by the 9th
respondent for the plans
predefined for the township
project.
Page 87 of 117
The entire project area is located within 1 km from the boundary of the Kodaikanal Eco -
Sensitive Zone declared under Notification issued by Govt. of India vide S.O. 412 (E) dated 23.01.2020.
However, the 9th Respondent is executing the project even without obtaining clearance as required under the Environment Impact Assessment Notification 2006 within the boundary of the Kodaikanal Eco - Sensitive Zone declared under Notification issued by Govt. of India vide S.O. 412 (E) dated 23.01.2020."
23. The applicant filed additional documents in response to the objections filed by the 9th Respondent to the committee report.
24. The 9th Respondent filed objection to the Joint Committee report extracted above as well, reiterating their contentions and also produced certain documents to substantiate their case to exonerate them from payment of liability and also reiterated their contention that no Environmental Clearance (EC) is required for their project and they have no intention to expand their project and if it is necessary and if it exceeds 50 Hectares, they will apply for Environmental Clearance (EC) at that time.
25. The 9th Respondent also filed rejoinder to the counter filed by the SEIAA
- Tamil Nadu and the Tamil Nadu Pollution Control Board reiterating their contentions raised by them in the counter statement.
26. On 25.04.2022, this Tribunal had considered I.A. No.42 of 2022 (SZ) filed by third party who is one of the allottees in the township developed by the 9th Respondent wanted to come on record as a party to the proceedings, wherein they have stated that the 9th Respondent had violated their contract of project and there are certain cases pending between the developer and the home-buyer before the Tamil Nadu Real Estate Regulatory Authority (RERA) and the project itself was developed in violation of the environmental laws and they are necessary party to the proceedings. The 9th Respondent in the original application had filed counter to the interlocutory application, opposing the application stating that he is a defaulter and most of the residents have given an undertaking Page 88 of 117 that they were not accepting the applicant as their representative and this Tribunal had disposed of I.A. No.42 of 2022 (SZ), observing that the allegations regarding violation of contract of development entered into between the home buyers and the project proponent and any deficiency in the service provided by the developer etc. has to be considered by the respective authority before whom the cases are pending and this Tribunal is only considering about the question as to whether the project requires prior Environmental Clearance (EC) and whether the development was made in violation of the EIA Notification and consequential orders including imposition of environmental compensation etc. and this Tribunal further held that the presence of the applicant in the interlocutory application will be helpful for the purpose of ascertaining the nature of the project launched at its inception calling for the purchase from the intended purchasers so as to ascertain what was the extent which was expected to be developed by the project proponent on the basis of which the project was launched and for that purpose, it was not necessary to implead the applicant in I.A. No.42 of 2022, but he can be permitted to intervene in the matter and assist the Tribunal regarding the nature of project that has been floated by the 9th Respondent in the original application based on which buyers have purchased the property in order to ascertain as to whether what was the extent of development for the purpose of project was anticipated by the project proponent to ascertain as to whether it requires prior Environmental Clearance (EC) or not. For the above limited purpose, the applicant in I.A. No.42 of 2022 (SZ) was permitted to intervene and the application was disposed of accordingly.
27. Heard the learned counsel appearing for the applicant, official respondents and the project proponent and the intervenor.
28. The learned counsel appearing for the applicant relying on the documents produced by the 9th Respondent themselves for obtaining NOC from the Forest Department argued that they have originally intended to develop the project area of 80 Hectares, for which, NOC was obtained from the Forest Department that too not for construction or township purpose, but only for doing agricultural activities. Further, Page 89 of 117 apart from the area covered by the approved plan by the Town and Country Planning Authority, they also developed certain drainage and constructed bridges over the streams and that extent also will have to be added for the purpose of ascertaining the total extent covered by the project. Further, they have purchased some other property adjacent to this property which was intended to be developed as recreational areas like Golf ground etc. and that is in the possession of the 9th Respondent and in fact, that was deliberately omitted by the 9th Respondent so as to make it appear that the project is covering an area less than 50 Hectares and does not require Environmental Clearance in a dubious manner and such an attempt of the 9th Respondent cannot be encouraged.
29. It was also argued by the learned counsel for the applicant that the exact location of the project is adjacent to Kodaikanal Wildlife Sanctuary and down hills of Kodaikanal Hills and they have developed the land without obtaining Environmental Clearance (EC) and permission from the National Wildlife Board and Consent from the State Pollution Control Board. Further, they also applied for Environmental Clearance (EC) before the SEIAA - Tamil Nadu during 2016 showing the area to be developed as 80 Hectares and while that was pending, they have developed the area without obtaining prior Environmental Clearance. Having submitted to the jurisdiction of SEIAA-TN and sought for Environmental Clearance, they cannot now contend that the project did not require any prior Environmental Clearance (EC).
30. The learned counsel also argued that the SEIAA-TN had not granted the Environmental Clearance, but they delisted the same from their consideration, as it was found to be a violation case, as the 9th Respondent had already commenced the project and made constructions without obtaining prior Environmental Clearance (EC) and that will have to be treated as a violation case as per the guidelines issued by the MoEF&CC in this regard. There are various discrepancies in the nature of applications filed by the 9th Respondent for various purposes. In the application filed before the District Forest Officer for NOC on 24.01.2008, the extent of the project was shown as 51.82 Hectares, but they have filed an application for layout permission showing the area as 49.76 Hectares Page 90 of 117 and obtained layout permission for 49.31 Hectares. Again in 2011, the letter issued by the District Forest Officer to the project proponent shows the extent as 51.82 Hectares. The agreement copy submitted along with the Consent application in Form - I & II by the 9th Respondent to the 7th Respondent on 28.03.2014 showed that the area is having an extent of 56.25 Hectares and on 02.04.2014, when they filed an application for Environmental Clearance (EC), the extent of the project was shown as 80.33 Hectares. So, it is clear from this that the 9th Respondent had intended to develop a project of township consisting various activities viz., residential villas, commercial areas like food court, office building, convention centre, resort, group housing, club house and golf ground covering an area of more than 50 Hectares and merely because, they have slowly started the work and obtained DTCP permission in respect of 49.31 Hectares alone will not absolve from them from the liability of obtaining prior Environmental Clearance, as even as per the counter statement, it is clear that they want to develop the same in a phased manner and as such, they would have given a conceptual plan of the entire project, as they are interlinked projects for the purpose of assessment of environmental impact of such activity by the authorities and should have obtained Environmental Clearance for that purpose. It was also mentioned that they have obtained properties in Sy. No.426, 428 and 429 which they intended for the purpose of development of the project and included in their project plan having an extent of 2.49 Hectares and this land also will have to be included in the project area and if this is included, the extent will be more than 50 Hectares.
31. Apart from this, they are having land in Sy. No.441/1, which is now in the possession of M/s. Venkatesh Agro Estate Private Limited which is also one of the party of the land development agreement and their land also is part of the development area and that extent will come to 0.39.50 Hectares and if these things are added, then the total extent will come to 52.18 Hectares and it will fall under the regime of Environmental Clearance (EC). But conveniently, these lands were omitted while obtaining the approved development plan from the Town and Country Planning Authorities. The details of the other lands developed by the 9th Page 91 of 117 Respondent belonging to the Government where permissions obtained were covered under the S.F. No.296, 306/1, 310, 378, 398, 418, 419 and 419 B and this also will have to be treated as part of the project area, as that is required for the purpose of providing the beneficial enjoyment of the project area.
32. So, according to the learned counsel for the applicant, the submission made by the 9th Respondent is not proper and all the objections raised by the 9th Respondent were considered by the Joint Committee comprising of experts who are expected to consider the question of violation of EIA Notification and its applicability to the project. Further, they also using concrete mixture unit for preparation of blocks and using DG sets of 250 KVA and 25 KVA without obtaining Consent from the State Pollution Control Board and though show cause notice were issued, no action was taken by the authorities in this regard.
33. The learned counsel for the applicant had relied on the decision of the Principal Bench of National Green Tribunal, New Delhi in Vikrant Kumar Tongad Vs. Delhi Tourism and Transport Corporation& Ors. dated 19.01.2015, Vellore Citizens Welfare Forum Vs. Union of India (1996) 5 SCC 647, The Authorized Officer, Thanjavur & Anr. Vs. S. Nagarnatha & Ors. (1979) 3 SCC 466, Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation (1985) 4 SCC 71, Securities and Exchange Board of India Vs. Ajay Agarval (2010) 3 SCC 765, M.C. Mehta Vs. Union of India (1997) 3 SCC 715, M.C. Mehta Vs. Kamalnath (1997) 1 SCC 388 and Indian Council for Enviro Legal Action Vs. Union of India (1996) 5 SCC 281in support of their case.
34. The learned counsel appearing for the MoEF&CC, SEIAA - Tamil Nadu and State Pollution Control Board argued that they are adopting the findings of the Joint Committee regarding the applicability of the Environmental Clearance (EC) for the project and also consent mechanism under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, which the 9th Respondent had not obtained. Having submitted to the jurisdiction of Page 92 of 117 the SEIAA - TN and filed an application for Environmental Clearance (EC) in 2016 showing the entire area of 80 Hectares as the proposed developed area, the 9th Respondent is esttoped from now contending that they are developing only less than 50 Hectares and they are outside the purview of the EIA Notification, 2006 and the consent mechanism. They were also relying on the submissions made by the learned counsel for the applicant to substantiate their case against the 9th Respondent.
35. The learned counsel appearing for the Town and Country Planning Authority submitted that the 9th Respondent had filed an application for establishing a township having an extent of 49.31 Hectares before the local body viz., G.Kallupatti Panchayat and they have forwarded the same to the authority for approval of the layout. Accordingly, approval was granted with certain conditions and the same has been approved by the local body and it is on that basis, the 9th Respondent had started the project. Since as per the Office Memorandum issued by the MoEF&CC only if the extent of the area of development is more than 50 Hectares and/or the built up area exceeds 1,50,000 Sq.Mtrs. under the township development project, then only the Environmental Clearance is required and since the project area is only less than 50 Hectares and it was development of land plots which will have to be sold to the individual purchasers who has to construct building in the plots obtained by them, the construction area will not be more than the threshold limit of 1,50,000 Sq.Mts. provided under the EIA Notification, 2006 and subsequent amendments made therein. They have granted permission strictly in accordance with law and since the area is less than 50 Hectares and there was no intention for the developer to construct any buildings by their own, they have not insisted for Environmental Clearance (EC) in view of the Office Memorandum issued by the MoEF&CC.
36. The learned counsel appearing for the State Departments argued that no forest land was involved and the wildlife sanctuary was declared only in the year 2013 by which time, the project was completed. No application was filed for approval from the National Wildlife Board, as the project area comes within the default extent of eco-sensitive zone and they have issued a show cause notice to them, as the permission was granted to Page 93 of 117 develop only for agriculture purpose and not for any other commercial purpose.
37. The learned counsel appearing for the 9th Respondent argued that Item 8
(b) of the EIA Notification, 2006 as amended from time to time will apply only if the area of township development is more than 50 Hectares and/or the built up area exceeds 1,50,000 Sq. Mtrs. Though they had a plan for developing a large extent, since they could not get the land but obtained land only having an extent of 49.31 Hectares, they applied for approval for their layout plan showing that extent and it was approved by the Town and Country Planning Authority, based on which, the panchayat has granted the permission and that happened in 2009 and the project was completed in 2011. When they wanted to construct a club house, they were informed that they will have to obtain Environmental Clearance (EC) by a wrong advice and it was on that basis, in 2014, they filed an application for Environmental Clearance (EC) showing the extent as 80 Hectares which was not in their possession as advised by the authorities and thereafter, when they treated them as violators and it will have to be treated as violation category, they did not pursue that application and that was how, it was delisted by the SEIAA - Tamil Nadu. They have not developed any further area over and above the permission granted viz., 49.31 Hectares. The area where they have constructed the bridge across the streams and the sewage line provided on the basis of the permission given by the authorities and after making the construction, the same were handed over to the respective departments and they were not in their possession and as such, that portion cannot not added to the property owned by the 9th Respondent. Even if that extent is added, it will not exceed the threshold limit of 50 Hectares. Further, all the constructions were made by the respective plot owners and certain constructions were made by the 9th Respondent on their behalf who wanted the assistance of the 9th Respondent, after obtaining necessary building permit in the name of the plot owner as an independent project of construction. Even the entire constructed area is added, it will not exceed the threshold limit of 1,50,000 Sq.Mts. and as such, that will not fall under the category of necessity of obtaining prior Environmental Clearance.
Page 94 of 11738. The learned counsel appearing for the 9th Respondent further argued that the wildlife sanctuary was declared and notified only after the project of the 9th Respondent was completed. So, the default distance of National Park or notified Wildlife Sanctuary or Bird Sanctuary will not be applicable to this project. The various documents produced by the 9th Respondent will go to show that they will not come under the regime of obtaining prior Environmental Clearance. The attempt of the applicant is only to harass the respondent who is providing a project to help the elders and developing the township as elder village to provide all facilities to the senior citizens who are residing there and they were maintaining the project area coming within the approved layout in an environment friendly manner by creating greenbelt and also utilizing their CSR fund for developing the greenbelt in and around the project area and outside the project area as well and they obtained several awards for keeping the area as an eco-friendly senior citizen village.
39. The learned counsel appearing for the 9th Respondent also argued that Sy. Nos.426, 428 and 429 were not part of the project area and no development has been made in that area and they have no intention to develop that area as part of this project as well. If in future, they wanted to add this portion and develop that area as part of the project, then they will surely apply for the Environmental Clearance (EC) and they are prepared to keep that area as green belt.
40. The learned counsel appearing for the intervenor argued that lot of facilities were promised to be provided when the project was launched and showing a larger extent than the approval obtained and it was on the basis of the promise, they have entered into the purchase agreement, but subsequently, most of the facilities promised to be given were not provided in order to avoid the Environmental Clearance (EC) and other permissions and some of the home buyers have filed application before the Tamil Nadu Real Estate Regulating Authority (TNRERA) in respect of the violations committed by the 9th Respondent and the same were pending. If the overall project envisaged by the 9th Respondent was taken into account, then it will be more than 50 Hectares, based on which, the township project was floated and influenced the buyers to purchase the Page 95 of 117 same and if the entire conceived project area is taken, then it will be more than 50 Hectares and conveniently, they have obtained permission for 49.31 Hectares to clandestinely avoid the necessity for obtaining Environmental Clearance and if such a practice of the real estate developers were permitted, then they will develop the areas having more environmental impact without obtaining Environmental Clearance (EC) in the guise of legal avoidance of obtaining Environmental Clearance (EC) which cannot be permitted, as such project will have great environment impact and without conducting proper environment impact assessment and if such projects were brought up, it may have impact on environment which will have irreversible impact affecting the environment adversely.
41. We have considered the pleadings, submissions made by the learned counsel appearing for the parties, including the written submissions submitted and the documents available on record.
42. The points that arose for consideration are:-
i. Whether the 9th Respondent had committed any violation of environmental laws in developing the disputed project in that area?
ii. Whether the project requires Environmental Clearance (EC), Consent to Establish and Consent to Operate under the respective environmental laws?
iii. Whether the development of the project without obtaining necessary Environmental Clearance (EC) resulted in any impact on environment and if so, what is the remediation method to be undertaken by them?
iv. If the 9th Respondent had committed any violation of environmental laws, what is the quantum of environmental compensation to be imposed against them for the violation committed of not obtaining Environmental Clearance (EC) and other permissions under the environmental laws?Page 96 of 117
v. What are all the further directions (if any) to be issued to protect environment to be carried out by the 9th Respondent, even if it is found by the Tribunal that the 9th Respondent did not require any Environmental Clearance (EC) or even if it is found that it requires Environmental Clearance (EC) but not obtained, applying the principles of "Precautionary Principle" and "Sustainable Development"?
vi. Relief and costs.
POINTS:-
43. Grievance in this application was that the 9th Respondent had engaged in developing the township project having more than 50 Hectares but clandestinely obtained approval from the Town and Country Planning Authority and also from the local body showing lesser extent with a view to avoid obtaining Environmental Clearance (EC) and caused lot of environmental degradation in the project area. Further, later when this was pointed out by the State Pollution Control Board, they applied for Environmental Clearance (EC) during 2014 and while the application was pending, they were proceeding with the construction activities in their area.
44. Further, the project area is situated within the bird sanctuary namely, Kodaikanal Wildlife Sanctuary which includes Murugamalai Reserve Forest, Perumalmalai Reserve Forest etc. and that forest area are situated very adjacent to the project area of the 9th Respondent. They have proceeding with the work without obtaining necessary clearance from the National Board for Wildlife as required under Wildlife (Protection) Act, 1972 and also under the notifications issued by the MoEF&CC. Water bodies inside the project area were also obstructed and mutilated by the 9th Respondent. So, the applicant wanted action to be taken against the 9th Respondent for the violation of the environmental laws committed by them.
Page 97 of 11745. On the other hand, the case of the 9th Respondent was that the present application was barred by limitation and they proposed to have the township within an area of 49.31 Hectare which is less than 50 Ha. and as such, there is no necessity to obtain any Environmental Clearance (EC). Further, though certain extents were shown while applying for No Objection Certificate from the Forest Department, in fact those lands were not with the 9th Respondent at the time when they made an application and such an application has been made only for the purpose of ascertaining as to whether there was any forest land involved in the project area and nothing more. Bird sanctuary was declared only in the year 2013, prior to that they had obtained necessary approval and as such, the restrictions mentioned in respect of eco-sensitive zones are not applicable to them. They have filed an application for Environmental Clearance (EC) on the wrong advice and later, when they have been labelled as violators and their application was treated as violation case, they withdrew the application, as there was no necessity for them to obtain Environmental Clearance (EC) for the project, as the construction area does not exceed 1,50,000 Sq.M. and the area of development does not exceed 50 Ha. Further, the State Pollution Control Board was also not justified in directing them to obtain Consent to Establish for the project as construction was less than 20,000 Sq. M. Further, the entire construction area in the township project is less than 1,50,000 Sq.M. and as such, they would not come under the consent mechanism as well. Since they did not want to proceed with further activities, they did not challenge the order rejecting the Consent to Establish passed by the State Pollution Control Board.
46. Since it is a case of violation of environmental laws of making construction without obtaining Environmental Clearance (EC) and that is being a continues cause of action, then every breach will be deemed to be a fresh cause of action and the application is not said to be barred by limitation as contended by the counsel for the 9th Respondent. Further, in this case, the 9th Respondent had applied for Environmental Clearance (EC) and during the pendency of the application with the SEIAA - Tamil Nadu, they have proceeded with the construction. That prompted the Page 98 of 117 applicant to file this application and as such, it cannot be said to be filed out of limitation period. So, we hold that the application is not barred by limitation as contended by the learned counsel appearing for the 9 th Respondent.
47. As per the EIA Notification, 2006, Item 8 deals with the building projects which reads as follows:-
Project or Activity Category with threshold Conditions if any limit A B (1) (2) (3) (4) (5) 8 Building / Construction projects / Area Development projects and Townships 8(a) Building and >20000sq.mtrs The term "built up area" for the Construction and<1,50,000 sq. purpose of this notification the built projects mtrs. Of built up up or covered area on all floors put area together, including its basement and other service areas, which are proposed in the building or construction projects.
Note1.-Theprojects or activities shall not include industrial shed, school, college, hostel for educational institution, but such buildings shall ensure sustainable environmental management, solid and liquid and implement environmental conditions given at Appendix XIV.
Note 2:- General condition shall not apply Note 3:- The exemptions granted at Note 1 will be available only for industrial shed after integration of environmental norms with building permissions at the level of local authority.
8(b) Townships and > 3,00,000 >1,50,000 Sq.Mts Note: General condition shall not
Area Sq.Mtrs of and <3,00,000 Sq. apply.
Development built up Mtrs built up
Projects area or area or covering
covering an an area >50 Ha
area > 150 and < 150 Ha
Ha.
48. As regards the township projects are concerned, they will come under the regime of Environmental Clearance (EC), if the developed project area is equivalent to or greater than 50 Ha. and/or the construction area exceeds 1,50,000 Sq.M. So, if the township project involving 50 Ha. and more and construction area is exceeding 1,50,000 Sq.M., then automatically it will come under the regime of Environmental Clearance (EC) or if the Page 99 of 117 township project is equivalent to or more than 50 Ha. or even if the extent is less but the township project has a construction area or built up area of more than 1,50,000 Sq.M., then also it will fall within the regime of obtaining Environmental Clearance (EC).
49. It may be mentioned here that in this case, the question is whether the reduction of the extent marginally by the project proponent for the purpose of avoiding Environmental Clearance (EC) will amount to legal avoidance or an illegal evasion. If it is later case, then they will have to be proceeded against for violation of environmental laws.
50. In the decision reported in Keystone Realtors Private Limited Vs. Anil V. Tharthare and Ors. (2020) 2 SCC 66, the Hon‟ble Apex Court observed in respect of the EIA Notification, 2006 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 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."
51. So, the Hon‟ble Apex Court had deprecated the practice of starting the project within the threshold limit without obtaining Environmental Clearance (EC) and slowly expanding the project little by little and later contending that it will not come under the regime of EIA Notification, 2006 as they are at the maximum threshold limit of 1,50,000 Sq.M.
52. With this principle in mind, the case in hand has to be considered.
Page 100 of 11753. It is an admitted fact that the project area is situated very adjacent to the Kodaikanal Bird Sanctuary which was declared as Bird Sanctuary in the year 2013. It is also an admitted fact that the 9th Respondent along with five other companies had entered into a venture of developing a township project of preparing a layout with lot of amenities including residential plots to be sold to the individuals and undertaken the construction activities on the basis of the requirement of the purchasers of the housing plots. It was also envisaged by them to provide all amenities like hospital, hotel, resort, recreational club, community hall, golf ground and play area for the purpose of providing all health facilities and activities to senior citizens who are going to be benefited by the township project.
54. It is also an admitted fact that they have applied for No Objection Certificate from the Forest Department showing the area of development as 51.92 Ha in the year 2008, including certain survey numbers which are not now part of the approved plan obtained by the 9th Respondent from the District Town and Country Planning Authority. They have applied for the NOC having an extent of 129.8 Acres of land adjacent to the reserved forest area for agricultural and layout purposes to be applied to the Town and Country Planning authority. So, it is clear from this that without having a land in their possession or having an idea of obtaining so much land, normally the project proponent will not apply for NOC to the authorities. So, the initial attempt on the part of the project proponent is to develop an area more than 50 Ha. for this purpose. The Forest Department had granted permission for the purpose of doing agricultural activities in this land.
55. We are not going into the question as to whether they have violated the permission or not and it is for the Forest Department to take appropriate steps, if it is found that in violation of the permission granted, they have developed the land. We are only concerned about the project requires Environmental Clearance (EC) or not. For the purpose of making application to the Environmental Clearance (EC), it is not necessary that an approved plan from the authority is required. What is required is only the conceptual plan of the proposed activity by the project proponent, if it Page 101 of 117 falls within any of the items provided requiring prior Environmental Clearance, then they will have to submit an application in Form - I or Form - IA, as the case may be, showing the proposed extent of the land, nature of the activity that they are going to undertake along with the feasibility report and Environment Management Plan if it falls under B2 - Category to the authorities and in turn, the authority has to appraise the same through Expert Appraisal Committee and based on the recommendations made by the committee, they will have to take a decision as to grant or not to grant the Environmental Clearance (EC).If that is the legal position and once the project proponent had visualized a project of more than 50 Ha. for developing a township project falling under Item 8 (b) of the EIA Notification, 2006 irrespective of the fact whether he had obtained layout or other building permits etc. from the authorities are not, they will have to make an application for Environmental Clearance (EC) before proceeding with the project.
56. Quite unfortunately, the 9th Respondent had not produced the original prospectus of the township floated by them for the purpose of attracting the proposed purchasers which will give an indication as to what is the extent of land that they are going to develop and what are the nature of facilities they intended to provide for this purpose. If that was produced by them, it will give an indication that what is the extent of the land that they wanted to develop and what is the nature of facilities they intend to provide. That document was wilfully suppressed by the 9th Respondent before the Tribunal though it was directed to be produced the same by giving oral direction so as to ascertain the real intention of the project proponent in launching the project initially.
57. The subsequent documents relied on by the 9th Respondent namely, agreement entered into between the other partners etc. are only subsequent to obtaining NOC from the Forest Department. So, it is clear from this that though they envisaged the project of more than 50 Ha. of township project, subsequently with an intention to evade obtaining Environmental Clearance (EC), they have reduced the extent marginally namely 49.31 Ha. to the extent of 120 Ac. and applied for layout permission from the Planning Authority and obtained the same and Page 102 of 117 proceeded with the project without obtaining Environmental Clearance (EC). Further, subsequently when this was pointed out, they made an application for Environmental Clearance (EC) before the SEIAA showing the total extent of the development area as 80 Ha. which is also more than 50 Ha. threshold provided under the EIA Notification, 2006. When the application for Environmental Clearance (EC) was filed by the project proponent viz., the 9th Respondent had clearly mentioned his vision for launching the project covering an extent of 80 Ha. providing facilities like hospital, educational institution and other facilities of gymnasium, play area, golf ground, library, resort, restaurant, etc. Further, it was also mentioned in the same that it was a composite project envisaged by the project proponent spreading over an extent of 80 Ha. in two phases. If it is treated as an integrated project, then they will have to apply for Environmental Clearance (EC) for the entire project and they could not confine to Phase - I alone reducing the extent marginally less than 50 Ha. so as to avoid applying for Environmental Clearance (EC). This is nothing but an illegal evasion and it cannot be treated as legal avoidance known to law.
58. Further, in Key Stone Realtors Private Limited Vs. Anil V. Tharthare & Ors. (2020) 2 SCC 66, the Hon‟ble Apex Court had deprecated the practice of dividing the project and starting the project within the lesser threshold limit and thereafter, slowly increase the extent of construction which will denied the proper impact of the entire project on environment which will have to assessed by the Expert Appraisal Committee before considering the project and before granting Environmental Clearance (EC) and such a practice was deprecated by the Hon‟ble Apex Court. In another case viz., Original Application No.106 of 2020 (SZ) [Atana Flat Owners and Residents Association Vs. The District Environmental Engineer, Tamil Nadu Pollution Control Board, Kancheepuram District & Ors.] by Judgment dated 14.07.2022, this Tribunal came to the conclusion that the same project proponent simultaneously launching the building project in adjacent plots of lesser threshold limit without obtaining Environmental Clearance (EC) and this can be treated as only composite project and the subsequent project will be deemed to be an expansion of the earlier project and without obtaining Environmental Page 103 of 117 Clearance, they should not have proceed with the project and impose environmental compensation on the project proponent. Applying the same principle, this is also a case where the project proponent has visualized the composite project covering an extent of more than 50 Ha. and for the purpose of evading Environmental Clearance (EC), restricted the project reducing the area of township project marginally less than 50 Ha. and such a practice should not be encouraged that will have only great impact on environment and that was the reason why SEIAA found that a project requires Environmental Clearance (EC) and during the pendency of the application for Environmental Clearance (EC) submitted by the project proponent showing the total extent of the project area as 80 Ha. and visualizing the composite project providing various facilities showing those facilities are available in the project area launched the project and floated the prospectus as well. That will clearly indicate the real intention of the project proponent at the time when he visualizing the project and floated the project calling upon from the proposed purchasers. This was clear from the allegations projected by the intervenor in the application for impleading as well.
59. Subsequently, when the SEIAA wanted this to be treated as violation case, they have made an application to withdraw the application for Environmental Clearance (EC) stating that their project will not fall under the regime of Environmental Clearance (EC). However, the application for prior Environmental clearance submitted for above 80 hectares by the project proponent himself as well as his own statements that the project was conceived in two phases clearly establish that the project requires prior Environmental clearance and as observed by the Joint Committee it was ploy by the Project Proponent to get approval from DTCP for an area of 49.31 hectares initially to avoid applicability of prior Environmental clearance. Certain survey numbers viz., 428, 426, 441 were omitted which were included in the application originally for NOC applied to the Forest Department. If this land is included, then the extent of land covered by the project will be more than 50 Ha. even in Phase I. Having conceived a project having multiple facilities, the attempt of the Project Proponent to obtain clearances from Regulatory Authorities in piece meal clearly Page 104 of 117 shows that the intention on the part of the project proponent was to deliberately reduce the area marginally when the application was made to DTCP seeking approval for layout and houses only, though he planned construction of Club house, Hospitals etc for the benefit of the Senior Citizens, so as to evade the procedure of obtaining Environmental Clearance (EC) and denied the opportunity for the Expert Appraisal Committee to conduct study on the impact of the project on environment.
60. The Joint Committee comprising of MoEF&CC and SEIAA have considered the objections filed by the project proponent on different occasions and on all those occasions, they have categorically came to the conclusion by giving cogent reasons that is a clear intention of the project proponent to evade obtaining Environmental Clearance (EC) and with that in view showed lesser extent for the purpose of obtaining Planning Permission from the Planning Authority and that will amount to violation of the EIA Notification. For the detailed reasons cited by us supra, we do not find any reason to deviate from the observations made by the Joint Committee comprising of authorities who have to consider the provisions of the EIA Notification, 2006, so as to accept the contentions of the learned counsel appearing for the 9th Respondent that they have intended only development of the project of 49.31 Ha., for which, they do not require any prior Environmental Clearance (EC), especially when the built up area also does not exceed 1,50,000 Sq. M.
61. The decision relied on by the learned counsel appearing for the 9 th Respondent viz., Dhruva Enterprises Vs. C. Srinivasulu &Ors. Civil Appeal No. 3776 of 2020 of the Hon‟ble Apex Court is not applicable to the facts of this case, as that was the case where though the project proponent had applied for mining lease in respect of 29 Ha. but the Mining Department had granted only mining lease in respect of 24 Ha. and the project proponent applied for Environmental Clearance (EC) for 24 Ha. and in such circumstances, the Hon‟ble Apex Court came to the conclusion that the findings of the National Green Tribunal that there was a wilful evasion on the part of the project proponent in reducing the project area so as to avoid treating the project as „B1 Category‟ and to Page 105 of 117 avoid public hearing, as there was no role on the part of the project proponent in reducing the extent. But that was not the case in hand. The project proponent is having land and they applied for NOC showing the extent more than 50 Ha and obtained NOC and clandestinely reduced the extent marginally so as to evade the regime of obtaining Environmental Clearance (EC) for the purpose of proceeding with the project.
62. The dictum laid down in I.A. 1000 of 2003 and other connected applications in W.P. (C) No.202 of 1995 (In Re: T.N. Godavarman Thirumulpad Vs. Union of India & Ors.), the Hon‟ble Apex Court, by Judgment dated 03.06.2022, disposed of those applications with the following directions:-
"a) Each protected forest, that is national park or wildlife sanctuary must have an ESZ of minimum one kilometre measured from the demarcated boundary of such protected forest in which the activities proscribed prescribed in the Guidelines of 9th February 2011 shall be strictly adhered to. For Jamua Ramgarh wildlife sanctuary, it shall be 5OO metres so far as subsisting activities are concerned.
b) In the event, however, the ESZ is already prescribed as per law that goes beyond one kilometre buffer zone, the wider margin as ESZ shall prevail. If such wider buffer zone beyond one kilometre is proposed under any statutory instrument for a particular national park or wildlife sanctuary awaiting final decision in that regard, then till such final decision is taken, the DSZ covering the area beyond one kilometre as proposed shall be maintained
c) The Principal Chief Conservator of Forests as also the Home Secretary of each State and Union Territory shall remain responsible for proper compliance of the said Guidelines as regards nature of use within the ESZ of all national parks and sanctuaries within a particular State or Union Territory. The Principal Chief Conservator of Forests for each State and Union Territory shall also arrange to make a list of subsisting structures and other relevant details within the respective ESZs forthwith and a report shall be furnished before this Court by the Principal Chief Conservator of Forests of each State and Union Territory within a period of three months. For this purpose, such authority shall be entitled to take assistance of any governmental agency for satellite imaging or photography using drones.
d) Mining within the national parks and wildlife sanctuaries shall not be permitted.
e) In the event any activity is already being undertaken within the one kilometre or extended buffer zone (ESZ), as the case may be, of any wildlife sanctuary or national park which does not come within the ambit of prohibited activities as per the 9th February 2011 Guidelines, such activities may continue with permission of the Principal Chief Conservator of Forests of each State or Union Territory and the person responsible for such activities in such a situation shall obtain necessary permission within a period of six months. Such permission shall be given once the Principal Chief Conservator of Forests is satisfied that the activities concerned do not come within the prohibited list and were continuing prior to passing of this order in a legitimate manner. No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ.
f) The minimum width of the E'S,Z may be diluted in overwhelming public interest but for that purpose the State or Union Territory concerned shall approach the CEC and MoEF&CC and both these bodies shall give their respective opinions/recommendations before this Court. On that basis, this Court shall pass appropriate order.
g) In the event the CEC, MoEF&CC, the Standing Committee of National Board of Wildlife or any other body of persons or individual having special interest in environmental issues consider it necessary for maintaining a wider or larger ESZ in respect of any national park or wildlife sanctuary, such body or individual shall approach the CEC. In such a situation the CEC shall be at liberty to examine the need of a wider ESZ in respect of any national park or wildlife sanctuary in consultation with all the stakeholders including the State or Union Territory concerned, MoEF&CC as also the Page 106 of 117 Standing Committee of National Board of Wildlife and then approach this Court with its recommendations.
h) In respect of sanctuaries or national parks for which the proposal of a State or Union Territory has not been given, the 1O kilometres buffer zone as ESZ, as indicated in the order passed by this Court on 4th December 2006 in the case of Goa Foundation (supra) and also contained in the Guidelines of 9th February 2011 shall be implemented. Within that area, the entire set of restrictions concerning an ESZ shall operate till a final decision in that regard is arrived at.
i) I.A. No. 1412 of 2005 and I.A.No.117831 of 2019 do not relate to the issues involved in I.A. No.1000 of 2003. These applications may be placed before the appropriate Bench to be heard independently.
j) For the same reason, I.A. No.1992 of 2007 shall also be dealt with independently by the appropriate Bench and no order is being passed concerning this application at this stage.
k) The application of the State of Rajasthan registered as I.A. No.3880 of 2015 relates to clarification of an order passed in the case of Goa Foundation [W.P.(C) No.460 of 2004). Let this application be placed before the Bench taking up the case of Goa Foundation.
l) I.A.No.96949 of 2019 and I.A.No.65571 of 2021 are disposed of with directions that the MoEF&CC as also CEC shall proceed to take a decision in regard to the draft proposal for ESZ made by the State of Maharashtra to the extent of 0-3.89 kilometres and the MoEF&CC shall take final decision on that basis within a period of three months, if said decision has not already been taken (m) Prayers for impleadment of the applicants in I.A. Nos. 984 of 2003, 1026 of 2004, 1123 of 2004, 1197 of 2004 and 1251 of 2004 are allowed. Necessary amendments may be carried out in these regards
n) For the reasons already given, however, prayers of the applicants in I.A. Nos.982 of 2003, 1027 of 2004, 1124 of 2004, 1198 of 2004, 1210 of 2004, 1250 of 2004 and 1512 of 2006 are rejected.
o) The CEC shall quantify the compensation to be recovered from each miner indulging in mining activities within the Jamua Ramgarh sanctuary in violation of any statutory provision or order of this Court. Specific recommendations for compensatory afforestation, reclamation, clearing overburden dumping as also compensation in monetary units for degradation of forest resources shall also be made. A further set of recommendations concerning confiscation of earth moving equipments and other machineries lying within or in the periphery of the said sanctuary shall be made by the CEC. Recommendations shall be made within a period of four months before this Court in the form of an application. This Court shall consider passing appropriate order upon going through such application. The exercise concerning such reparation, including quantifying compensation shall be undertaken upon giving the mining operator, State and MoEF&CC opportunity of hearing.
p) In the event there is any subsisting order of any High Court or any Court subordinate to such High Court covering any of the issues dealt with by this Court in this order, this order shall prevail over any such order which may be contrary to these directions.
q) We have already observed that there are certain overlapping issues involved in this writ petition and the cases of Goa Foundation Writ Petition (C) No.460 of 2004) and [Writ Petition (C) No.435 of 2012). We request the Hon'ble the Chief Justice of India to consider having the present writ petition i.e. In Re: T.N. Godavarman Thirumulpad v.
Union of India & Ors., W.P.(C) No.460 of 2004 (Goa Foundation v. Union of India) as also W.P (C) No.435 of 2012 (Goa Foundation v. Union of India & Ors.) be heard together before the same Bench. The registry may place this order before the Hon'ble the Chief Justice of India."
63. In that decision, it has been observed that 1 Km buffer zone will have to be provided from the National Park or Wildlife Sanctuary and no activities should be permitted within that eco-sensitive zone and where the eco-sensitive zone has not been fixed, then 10 Km default distance will have to be taken. Further, the permissible activity within that area will have to be considered on the basis of the site and project specific. It was also mentioned in that decision that in order to start any activity or expansion of the activities, then they will have to obtain Environmental Clearance (EC) and also clearance from the National Board for Wildlife Page 107 of 117 and if it is a permitted activity and not coming within the purview of Environmental Clearance and not falling with the prohibited activities and as per 09.02.2011 guideline issued, such activities may continue with the permission of the Principal Chief Conservator of Forest of each State/Union Territory and the person who is carrying out the activity has to obtain the same within six months. But in this case, there was no notified or declared National Park/ Bird Sanctuary/ Wildlife Sanctuary by the State Government as on the date of launching the project by the 9th Respondent. The Kodaikanal Wildlife Sanctuary was declared only in the year 2013. By that time, the 9th Respondent had already obtained approval from the Town and Country Planning Authority and the work has been started. They have not obtained Environmental Clearance (EC) on the premises that activities are covered within the threshold limit of less than 50 Ha. but this Tribunal while considering the issue came to the conclusion that there was a wilful evasion by reducing the area marginally to bring the activity out of the EIA Notification, 2006 and this Tribunal observed that the project requires Environmental Clearance (EC). However, since the project has been completed and houses have been constructed and the people are occupying the house, it will be harsh if we order demolition of the houses and the innocent purchasers who are senior citizens will be put to serious hardship.
64. Since the constructions were made without obtaining Environmental Clearance (EC), it will be deemed to be an unauthorized construction and the principles laid sown in Goel Ganga Developers (India) Private Limited Vs. Union of India (2019) 9 SCC 288 will be applicable. Further, the doctrine of proportionality evolved by the Hon‟ble Apex Court in Alembic Pharmaceuticals Limited Vs. Rohit Prajapati & Ors. (2020) 5 SCJ 531 and Key Stone Realtors Private Limited Vs. Anil V. Tharthare & Ors. (2020) 2 SCC 66will also be applicable to the facts of this case and considering this aspects and applying those principles, instead of ordering demolition of constructions, we feel it appropriate to impose an environmental compensation for the violation committed by the project proponent. The Joint Committee has assessed Rs.9,91,20,000 (Rupees Nine Crore Ninety One Lakh and Twenty Thousand only) as environmental compensation, based on the formulae evolved by the Page 108 of 117 Central Pollution Control Board viz., EC = PI x N x R x S x LF, treating this as a „Red Category‟ industry.
65. It may be mentioned here that in Goel Ganga Developers (India) Private Limited Vs. Union of India (2019) 9 SCC 288, the Hon‟ble Apex Court has observed that the compensation can be fixed at 10% of the project cost or Rs.100 Crore whichever is high depending upon the nature of project and its impact on environment. Further, in Key Stone Realtors Private Limited Vs. Anil V. Tharthare & Ors. (2020) 2 SCC 66, the Hon‟ble Apex Court has approved the compensation of Rupees One Crore imposed by the Tribunal on the building project. Considering the fact that the project is envisioned to benefit the senior citizens who would have invested their hard earned retirement benefits for getting comfortable accommodation in the project launched by the 9th Respondent, further also considering that the project proponent had also constructed certain bridges at his cost and also provided certain amenities for the enjoyment of the senior citizens and to meet their necessities, and since the overall built up are as on date is less than 10,000 Sq.Mtrs., instead of applying the formula evolved by the Central Pollution Control Board, we feel that fixing the amount of Rs.3,00,00,000/- (Rupees Three Crore only) as environmental compensation will be sufficient and that will meet the ends of justice. So, the Project Proponent/9th Respondent is directed pay a compensation of Rs.3,00,00,000/- (Rupees Three Crore only) to the Tamil Nadu Pollution Control Board within a period of 3 (Three) months.
66. Any further activity in the project area can be done by the 9th Respondent only after obtaining Environmental Clearance (EC) either from the MoEF&CC or from the SEIAA since the project area is adjacent to the Kodaikanal Wildlife Sanctuary and further expansion or work to be undertaken will be treated as „A‟ Category and it will have to be assessed at central level. Further, since certain activities were carried out by the 9 th Respondent after the Kodaikanal Wildlife Sanctuary was declared in the year 2013, we feel that it is necessary to get impact of the project assessed by the National Board for Wildlife applying the "Precautionary Principle"
and study the impact on the wildlife sanctuary and suggest mitigating measures to mitigate the impact of the project on the sanctuary and if any Page 109 of 117 suggestions were given by them, the same will have to carried out by the 9th Respondent in its letter and spirit and that will have to be overseen by the Principal Conservator of Forest, State of Tamil Nadu or an officer not below the rank of Chief Conservator of Forest &Wildlife Warden as deputed by the Principal Conservator of Forest.
67. As regards the applicability of the decisions relied on by the learned counsel appearing for the applicant viz., Vikrant Kumar Tongad Vs. Delhi Tourism and Transport Corporation & Ors. in O.A. No.137 of 2014 dated 19.01.2015 and Susheel Ragav Vs. State of U.P. & Ors. dated 17.03.2021 and Delhi Airport Metro Express Pvt. Limited Vs. Delhi Metro Rail Limited (2022) 1 SCC 131 are concerned, this Tribunal was considering the question as to whether the construction of bridges will fall under the construction category and whether the EIA Notification will be applicable or not and in those cases, this Tribunal came to the conclusion that if it exceeds 20,000 Sq.M., then they will come under the regime of EIA Notification, 2006. As regards the first case is concerned, there was no appeal filed, but as regards the second case is concerned, civil appeal has been before the Hon‟ble Apex Court and the operation of the order of the National Green Tribunal has been stayed. The question arose in the second case was that the linear projects where no Environmental Clearance is required, for construction of buildings and bridges, any Environmental Clearance (EC) is required or not. But in this case, the constructions were made in the Government lands on getting certain permissions for the purpose of putting bridges across water bodies in different survey numbers for the purpose of getting access to the property of the project proponent and for the beneficial enjoyment and also for the purpose of construction of sewage line to carry out the sewage generated from the project area to the STP for treatment, etc. Those things will become part of the project area, though those areas do not belong to the project proponent but those are required for the purpose of beneficial enjoyment of the project without which the project area cannot be beneficially enjoyed by the occupants and that area also will have to be added to the area of the project proponent for the purpose of calculating the total extent of the area covered by the project, though after construction, the same has been handed over to the Government Page 110 of 117 Departments and the project proponent is not retaining any interest in that land. Similarly, merely because he had gifted about 12 Acres of land covered by roads and other common areas to the local body on the basis of the conditions imposed while approving the layout also, that extent need not be deducted from the total project area as claimed by the counsel for the 9th Respondent and that also will have to be treated as part of the project area only for the purpose of considering the question of total extent of the land covered by the project. On the overall examination of the documents and circumstances of the case, this Tribunal came to the conclusion that the project area envisaged was more than 50 Ha. by the project proponent and in order to evade the applicability of EIA Notification, marginally reduced the area to bring less than the threshold limit of 50 Ha. and as such, the act of the 9th Respondent cannot be encouraged and this will have to be treated as a project which requires Environmental Clearance (EC) under Item 8 (b) of the EIA Notification, 2006 and they are liable to pay compensation as mentioned above for the violations committed by them.
68. In order to protect the Wildlife Sanctuary as directed by this Tribunal, a study will have to be conducted by National Board for Wildlife and the impact of the project on the Kodaikanal Wildlife Sanctuary has to be assessed and any mitigation measures as directed by Wildlife Board has to be implemented by the 9th Respondent and any further construction or expansion in the project area can be carried out by the 9th Respondent only after obtaining Environmental Clearance (EC).
69. Further, the Joint Committee has found that on account of activities of the 9th Respondent, no impact has been caused to the water bodies situated within the project area and as such, we do not think that there is no necessity to issue any further direction of restoration of the water bodies. But the Revenue Department is at liberty to ascertain as to whether as per the revenue records, whether there was any other water body situated in the project area and if any mutilation or damage has been caused to the same on account of the activities of the 9th Respondent, then they are at liberty to take appropriate action to locate the water body and restore the Page 111 of 117 same to its original position after complying with the due process of law, by giving opportunity to the 9th Respondent in accordance with law.
70. So, under such circumstances, we feel that the application can be disposed of with the following directions:-
a. The contention of the 9th Respondent that the application is barred by limitation is rejected and we hold that the application is within limitation.
b. We hold that the project of the 9th Respondent requires Environmental Clearance (EC) and proceeding with the project by the 9th Respondent without obtaining Environmental Clearance (EC) will amount to illegality and the constructions will be deemed to be unauthorized construction, but applying the "Doctrine of Proportionality" and hardship will have to be faced by the innocent and the bonafide purchasers for occupying the area, we feel that there is no necessity to direct for demolition of buildings. c. In order to compensate the violation committed by the 9th Respondent, they are directed to pay the environmental compensation fixed by the Tribunal viz., Rs.3,00,00,000/- (Rupees Three Crore only) to the Tamil Nadu Pollution Control Board within a period of 3 (Three) Months and if the amount is not paid, then the Tamil Nadu Pollution Control Board is at liberty to take steps to recover the amount from the 9th Respondent in accordance with law.
d. On realization of the amount, the Tamil Nadu Pollution Control Board in coordination with the District Collector - Theni District prepare an action plan for carrying out the restoration or remediation activities (if any) required in that area and utilize the amount realized for that purpose in a scientific manner. e. The National Board for Wildlife is directed to depute a Senior Officer to inspect the area in question and ascertain as to whether any impact has been caused on account of the activities of the 9th Respondent in the project area on Kodaikanal Wildlife Sanctuary and if so, what are all the mitigation measures to be taken by the 9 th Page 112 of 117 Respondent to minimize the impact on Kodaikanal Bird Sanctuary and if mitigation measures were suggested by the National Board for Wildlife, then the 9th Respondent is directed to carry out the same in its letter and spirit and it will have to be done under the supervision of the Principal Chief Conservator of Forest or an officer not below the rank of Chief Conservator of Forest and Chief Wildlife Warden as designated by the Principal Chief Conservator of Forest (HoFF) and Chief Wildlife Warden, State of Tamil Nadu.
f. The Forest Department is at liberty to take appropriate action against the 9th Respondent for the violations (if any) said to have been committed by them of the conditions imposed at the time of issuing NOC in accordance with law.
g. The Tamil Nadu Pollution Control Board is directed to monitor the implementation of the Solid Waste Management Rules, 2016, Liquid Waste Management and Other Waste Management in the project area to be carried out by the 9th Respondent and if there is any violation found, then they are directed to take appropriate action against the 9th Respondent including imposition of environmental compensation, apart from initiating prosecution and other coercive actions as provided under the respective statutes strictly in accordance with law.
h. The District Collector - Theni District is at liberty to inspect the area in question to ascertain as to whether there is any water body situated in the project area as per the revenue records other than the water body identified by the Joint Committee at the time of inspection and if there is any water body existed and that was mutilated or encroached by the 9th Respondent, then the District Collector is at liberty to take appropriate action against the 9th Respondent in accordance with law to restore the water body to its original position and recover the expenses incurred for restoration from the 9th Respondent.
i. The 9th Respondent is directed not to do any activity determent to the existing water bodies in the project area and constructions (if any) to be made and that can be done only after providing necessary buffer zone from the water body to avoid obstruction of free flow of Page 113 of 117 water in the water body. The 9th Respondent is also directed not to do any activity which is likely to pollute the water body situated within and outside the project area so as to cause contamination of the water quality in the water body.
j. The 9th Respondent is restrained from carrying out any further construction or expansion in the project area without obtaining Environmental Clearance (EC) as required under the EIA Notification, 2006.
71. The points are answered accordingly.
72. In the result, the Original Application is disposed of with the following directions:-
i. The contention of the 9th Respondent that the application is barred by limitation is rejected and we hold that the application is within limitation.
ii. We hold that the project of the 9th Respondent requires Environmental Clearance (EC) and proceeding with the project by the 9th Respondent without obtaining Environmental Clearance (EC) will amount to illegality and the constructions will be deemed to be unauthorized construction, but applying the "Doctrine of Proportionality"
and hardship will have to be faced by the innocent and the bonafide purchasers for occupying the area, we feel that there is no necessity to direct for demolition of buildings.
iii. In order to compensate the violation committed by the 9th Respondent, they are directed to pay the environmental compensation fixed by the Tribunal viz., Rs.3,00,00,000/- (Rupees Three Crore only) to the Tamil Nadu Pollution Control Board within a period of 3 (Three) Months and if the amount is not paid, then the Tamil Nadu Pollution Control Board is at liberty to take steps to recover the amount from the 9th Respondent in accordance with law.Page 114 of 117
iv. On realization of the amount, the Tamil Nadu Pollution Control Board in coordination with the District Collector - Theni District prepare an action plan for carrying out the restoration or remediation activities (if any) required in that area and utilize the amount realized for that purpose in a scientific manner.
v. The National Board for Wildlife is directed to depute a Senior Officer to inspect the area in question and ascertain as to whether any impact has been caused on account of the activities of the 9th Respondent in the project area on Kodaikanal Wildlife Sanctuary and if so, what are all the mitigation measures to be taken by the 9th Respondent to minimize the impact on Kodaikanal Bird Sanctuary and if mitigation measures were suggested by the National Board for Wildlife, then the 9th Respondent is directed to carry out the same in its letter and spirit and it will have to be done under the supervision of the Principal Chief Conservator of Forest or an officer not below the rank of Chief Conservator of Forest and Chief Wildlife Warden as designated by the Principal Chief Conservator of Forest (HoFF) and Chief Wildlife Warden, State of Tamil Nadu.
vi. The Forest Department is at liberty to take appropriate action against the 9th Respondent for the violations (if any) said to have been committed by them of the conditions imposed at the time of issuing NOC in accordance with law.
vii. The Tamil Nadu Pollution Control Board is directed to monitor the implementation of the Solid Waste Management Rules, 2016, Liquid Waste Management and Other Waste Management in the project area to be carried out by the 9th Respondent and if there is any violation found, then they are directed to take appropriate action against the 9th Respondent including imposition of environmental compensation, apart from initiating Page 115 of 117 prosecution and other coercive actions as provided under the respective statutes strictly in accordance with law.
viii. The District Collector - Theni District is at liberty to inspect the area in question to ascertain as to whether there is any water body situated in the project area as per the revenue records other than the water body identified by the Joint Committee at the time of inspection and if there is any water body existed and that was mutilated or encroached by the 9th Respondent, then the District Collector is at liberty to take appropriate action against the 9th Respondent in accordance with law to restore the water body to its original position and recover the expenses incurred for restoration from the 9th Respondent.
ix. The 9th Respondent is directed not to do any activity determent to the existing water bodies in the project area and constructions (if any) to be made and that can be done only after providing necessary buffer zone from the water body to avoid obstruction of free flow of water in the water body. The 9th Respondent is also directed not to do any activity which is likely to pollute the water body situated within and outside the project area so as to cause contamination of the water quality in the water body.
x. The 9th Respondent is restrained from carrying out any further construction or expansion in the project area without obtaining Environmental Clearance (EC) as required under the EIA Notification, 2006.
xi. Considering the circumstances, parties are directed to bear their respective costs in the application.Page 116 of 117
xii. The Registry is directed to communicate this order to the MoEF&CC, SEIAA - Tamil Nadu, National Board for Wildlife, Tamil Nadu Pollution Control Board, District Collector - Theni District for their information and compliance of directions.
73. With the above observations and directions, this Original Application is disposed of.
74. Since the Original Application has been disposed of, pending miscellaneous application [M.A. No.46 of 2017 (SZ)] is also disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.149/2016 (SZ) M.A. No.46/2017 (SZ) 01st August 2022. Mn.
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