National Green Tribunal
Capt. B.S.Prakash Males /O. ... vs Union Of India Rep.By Its Secretarymoef on 18 March, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.2:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 136 of 2016 (SZ)
IN THE MATTER OF:
Capt. B.S. Prakash ...Applicant(s)
With
Union of India and Others.
....Respondent(s)
Date of hearing: 18.03.2020.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) M/s. Capt. B.S. Prakash
For Respondent(s): M/s. G.M.Syed Nurullah sheriff for R1
M/s. Nivedita menon for .K. Rema Smrithi
for R2
M/s. D. Ekambaram for R3
M/s. M. Abdul razack for R7
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ORDER
1. The grievance in this application is regarding the violation of environmental conditions and also Coastal Zone Clearance granted for the project of the seventh respondent.
2. It is alleged in the application that seventh respondent had applied for grant of environmental clearance for construction and development of resort and spa in about 58 acres in various Survey Nos. in Kikam Village 1(P) of ChittaRI at Bekal in Kasargod District and Environmental Clearance cum Coastal Regulation Zone Clearance was granted on 02.01.2009, by the first respondent in favour of the seventh respondent.
3. It is alleged in the application that the seventh respondent had committed violation of the terms and conditions in carrying out the project. As per the clearance granted, no drawal of ground water was permitted, but seventh respondent has installed more than 28 bore-wells for drawing ground water mainly for construction purpose.
4. Large quantity of ground water is being illegally drawn by the seventh respondent without getting necessary permission from the authorities. The constructions were also made not in tune with the approved plan and the safe guards provided 2 under the environment as well as the Coastal Regulation Zone Clearance were violated.
5. There is no proper sewage system provided and the waste water is being discharged into the water without treatment that causes health hazards in that area.
6. Fourth respondent filed a counter statement contending that seventh respondent had obtained clearance from the Ministry of Environment, Forest and Climate Change (MoEF & CC) Vide Letter No. 16-04/2008-IA-III dated 02.01.2009 subject to the conditions to construct the resort buildings at various Survey Nos. of Kikam Village, in Pallikare Panchayat of Kasargod District.
7. They imposed conditions, and one such condition is that there shall be no withdrawal of ground water within 500 metre from High Tide Line (HTL) for the purpose of the project. No tapping of the ground water shall be done to meet the water requirement for the project activity.
8. Further as per Notification No. S.O. 114 E dated 19.02.1991 within the 200-500 metre zone, the ground water can be tapped only with the concurrence of the Central or State Ground Water Departments.
9. The Kerala Coastal Zone Management Authority, had deputed Dr. Harinarayanan Senior Scientist of Kerala State 3 Council for Science Technology and Environment for conducting Site Inspection to ascertain the truth in the present application and proceed with necessary action for violation and site inspection was conducted on 28.10.2016 and following recommendations have been given;-
1. The KCZMA shall direct the project proponent to submit report on compliance of the conditions in the environment clearance issued by the MoEF&CC.
ii) A detailed examination of the activities vice versa conditions laid down in the clearance and CRZ notification shall done before the resort is in operation. III) The District Coastal Zone Management Committee shall be directed to provide a detailed report on the construction made and also to report the details of regularisations of buildings done.
IV) The petitioner alleged that 28 bore wells were dug by the project proponent for drawing ground water within the site. During the site inspection on 26.10.2016, it has been observed that the entire site was devoid of boreholes as alleged. It was also noticed that water from the Kerala Water Authority was used by the project proponent for various activities.
v) The said site inspection report was then forwarded to MOEF&CC vide letter no. 4359/A1/16/KCZMA dated 21.02.2017.
10. In addition to the above, the following observations were also noted:-
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Observations:
1) Large Scale digging/excavation of earth to create new water canal without width of 10m and above within 500 ml from HTL amounts to violation of provisions of CRZ Notification.
2) These canals are connected to the river having tidal influence from sea and hence on the banks from HTL landward equivalent to the distance of the canal will be 'No Development zone'. The distance from the HTL to the existing construction made in many places is less than the width of the canal newly created. Those constructions will be partly in the No Development Zone.
3) The construction of Sewage Treatment Plant (STP) has not been initiated. The Kerala Coastal Zone Management Authority shall direct the STP before opening the resort to public.
4) The details of water availability from Kerala Water Authority may be requested from the project proponent to examine whether this will be sufficient for the use of operation of the resort.
"The petitioner has alleged that the proponent of Green Gateway Leisure Limited has alleged that 28 bore-wells are dug for drawing groundwater within the site. The entire site was inspected and site was devoid of any boreholes as alleged. The water from the Kerala Water Authority was seen being used by the proponent for various activities. The allegations that the proponent has violated the provisions in clearance issued by MoEF 5 including the building plan approved can be verified only if the field regarding the DRZ clearance is received."
11. Third respondent Central Pollution Control Board had filed a reply statement contending that the Central Pollution Control Board had nothing to do with the issuance of the clearance and taking action for violation. It is for the Coastal Zone Management Authority as well as the Ministry of Environment, forest and Climate Change (MoEF & CC) to take necessary action.
12. Seventh respondent had filed a statement contending that the applicant was working under the seventh respondent earlier and due to his termination of employment, on account of personal vendetta that the present application has been filed.
13. Seventh respondent Mrs. Green Gate Way Leisure Limited (GGLL), is a Public Limited Company incorporated under the Companies Act, 1956 as a special purpose vehicle by Air Travel Enterprises India Limited for development of resort at Bekal, Kasargod, Kerala.
14. Government of Kerala has formed a company called Bekal Resort Development Corporation Limited (BRDC) to develop Tourism Projects in and around Bekal Fort in Kasargod 6 District. They acquired 6 properties and assigned the leasehold right to various private entrepreneurs for setting up resort projects and the seventh respondent was such a lessee who obtained leasehold right of Resort Site No.2 (RS-2) to set up resort project through tender procedure for a period of 30 years.
15. The resort project is proposed to be a top end five star deluxe beach resort with 165 keys, built in traditional Kerala architectural style and one that adopts green practices to achieve zero carbon footprints. The theme of the resort is 'true celebration of Kerala heritage' with focus on Malabar. The Resort blends with 400 metres of beach frontage and 1 km of backwater frontage. The resort is conceptualized on Responsible & Sustainable Tourism Principles and will be one of the first resorts with LEED Platinum Certification in India.
16. They signed an operational agreement for 17 years with Starwood Asia Pacific Hotels and Resort Private Limited, Singapore, for their "Westin Brand".
17. The construction of the project is being monitored by the experts of Starwood to bring in International Standards in all the areas. They are adopting sustainable standards like Green Building, Landscaping, Planning and Management of 7 Water Resources, alternative energy principles etc, in their properties.
18. They have obtained following necessary clearances for this purpose (1) Approval from Ministry of Environment and Forest and Climate Change (MoEF & CC).
(2) Approval from Kerala Coastal Zone Management Authority.
(3) Approval from Ministry of Tourism (4) Approval from Chief Town Planner.
(5) Building Permit from Pallikara Panchayat (6) Approval from Kerala State Pollution Control Board etc. and they have started the work only after obtaining necessary clearance and permission from the authorities.
19. The applicant was appointed as General Manager for their projects at Bekal site on contractual basis and since he had committed some mischief of creating some communal antagonism in the site they had to terminate his service. It is on account of that enmity that the present application has been filed. Unnecessary litigation has been filed by the applicant against the seventh respondent.
20. They have not committed any violation. They are not drawing water from the bore wells and they are getting water supply from the Kerala Water Authority for their purpose. The constructions have been made complying with the 8 conditions imposed. They prayed for dismissal of the application.
21. First respondent filed a counter statement contending that environmental clearance cum Coastal Zone Clearance was granted as per the Proceedings dated 02.01.2009, to the seventh respondent subject to certain conditions. On receipt of the present application an officer from the Regional Office of the Ministry of Environment, Forest and Climate Change (MoEF & CC) with the State Pollution Control Board (SPCB) authorities inspected the area on 10th and 11th March, 2017 and it was noted that the construction activities have commenced.
22. The Sewerage Treatment Plant (STP) has been stipulated in the clearance. The project cannot be made operational without the installation and commissioning of Sewerage Treatment Plant (STP) as per the regulation imposed by the Kerala State Pollution Control Board (KSPCB).
23. The seventh respondent has already taken steps for the installation of a Sewerage Treatment Plant (STP). It is also mentioned that there were certain recommendations made by the Expert Appraisal Committee and the seventh respondent was directed to comply with the recommendations.
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24. It is seen from the site inspection report, that the following violations were noted.
I. Large scale digging/excavation of earth to create new water canals with width of 10m and above within 500m from HTL was noted. The CRZ notification 1991 clearly states that "Extraction of sand, levelling or digging of sandy stretches except of foundation of building, swimming pool shall not be permitted within 500m from HTL of sea". Hence the digging within 500m from HTL amounts to violation of provisions of CRZ notification. II. These canals are connected to the river tidal influence from sea. These canals have tidal influence from sea and hence on the banks from High Tide Line landward equivalent to the distance of the canal will be No Development zone. The distance from the High Tide Line to the existing, construction made in many places is less that the width of the canal of the canal newly created. Those constructions will be partly in the No Development Zone. The Google images of 2003 and 2015 given below as fig 1 and 2 will provide the excavation taken and modifications done. This will also amount to violations. III. The construction of Sewage Treatment Plant (STP) has not been initiated. The KCZMA shall direct to install the STP before the opening the resort to public. IV. The details of water availability from the Kerala Water Authority may be requested from the proponent to 10 examine whether this will be sufficient for the use on operation of the resort.
V. Buildings have been regulated even before completion.
This need to be examined.
25. It is seen from the report that they have made the following summary and recommendation:
Summary and Recommendation The KCZMA shall direct the proponent to submit a report on the compliance of the conditions in the Environmental clearance issued by the MOEF.
A detailed examination of the activities visa versa conditions laid down in the clearance and CRZ notification shall be done before the resort is in operation. The District Coastal Zone Management Committee shall be directed to provide a detailed report on the construction made and also to report the details of regularisations of buildings done. The details may be forwarded to MoEF and also to the counsel for KCZMA in NGT Chennai.
26. It is also mentioned that they do not find any existence of the bore-well at the time of inspection and it was revealed that the seventh respondent is getting water through the supply made by the Kerala Water Authority.
27. The seventh respondent had also filed an additional counter statement stating that there was no violation committed by them, either under the environmental 11 clearance or under the Coastal Regulation Zone (CRZ) Clearance granted.
28. Heard the applicant who appeared in person and also counsel appearing for Ministry of Environment, Forest and Climate and Change (MoEF & CC), project proponent, and Central Pollution Control Board, Coastal Zone Management Authority and the Kerala State Pollution Control Board.
29. It is seen from the counter statement filed by Ministry of Environment, Forest and Climate and Change (MoEF &CC) and also the Kerala State Coastal Zone Management Authority that inspections were conducted and certain violations were found and certain recommendations and directions have been issued.
30. It is not known as to whether those directions and recommendations have been complied with by the seventh respondent. It is also not known as to whether any further inspection was conducted by the Officers of the Regional Office of the Ministry of Environment, Forest and Climate and Change (MoEF & CC), Bangalore, or by the Kerala State Coastal Zone Management Authority to find out whether there was any violation of any of the conditions 12 imposed during the course of the construction progress of the project.
31. It is also not known as to whether the project proponent is submitting the progress report every six months as required under the clearance for the supervision of the Ministry of Environment, Forest and Climate Change (MoEF & CC) regarding the construction project and if there is any violation whether any action has been taken by Ministry of Environment, Forest and Climate and Change (MoEF & CC) in this regard.
32. It is also seen that environment clearance was granted for 5 years from the year 2009 and there is no details on whether any extension has been obtained or further environment clearance has been obtained and what is the stage of the project as well.
33. So, under such circumstances, in order to ascertain the present status, we feel it appropriate to appoint a joint committee comprising of a Senior Officer from Regional Office, Ministry of Environment, Forest and Climate Change (MoEF & CC), Bangalore, a Senior Officer of the 13 Kerala State Coastal Zone Management Authority and a Senior Officer from the Kerala State Pollution Control Board to inspect the project in question and submit a present status report and if there is any violation found regarding the conditions imposed including the Coastal Zone Regulation, then they should also mention what is the proposed action, in respect of such violation.
34. If there is any damage caused to environment on account of the violation, then the committee is also directed to impose environmental compensation against the seventh respondent for the violations, on any of the conditions imposed in the environmental clearance as well as the Coastal Zone Clearance granted in respect of the project as has been directed by this Tribunal in several cases of this nature on the basis of the guidelines given by the Central Pollution Control Board in this regard.
35. Regional Office of Ministry of Environment, Forest and Climate Change (MoEF & CC) Bangalore will act as nodal agency for co-ordination and for providing all necessary logistics for this purpose.
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36. The Registry is directed to communicate this order to the concerned authorities through e-mail immediately, so as to enable them to comply with the direction of this Tribunal.
37. The committee shall submit the report to this Tribunal within a period of two months through e-mail @ [email protected] or by e-filing.
38. For consideration of report post on 02.07.2020.
...................................J.M. (Justice K. Ramakrishnan) .............................E.M. (Shri. Saibal Dasgupta) O.A. 136/2020 18th March, 2020.
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