National Green Tribunal
Remesh Vellore vs The State Environmental Impact ... on 20 May, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 21 of 2017 (SZ)
IN THE MATTER OF:
Ramesh Vellore
S/o Late B.K. Nair,
Residing at Flat No. 32/1, Jyostna, Main Street,
Padmavathy Nagar Estn, Velachery,
Chennai - 600 042.
... Applicant(s)
Versus
The Member Secretary
State Environmental Impact Assessment Authority,
3rd Floor, Panagal Maligai,
Saidapet,
Chennai - 600 015 and Ors.
...Respondent(s)
For Applicant(s): Mr. A. Yogeswaran
For Respondent(s): Mrs. Sumathi for R1.
Mrs. P. T. Ramadevi along with
Mr. Raghul Adithya for R3.
Mr. Vidhusan for R4
Judgment Pronounced on: 20th May 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
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.21/2017 (SZ) 20th May, 2022. Sr. Page 1 of 49 Item No.1:
BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI (Through Video Conference) Original Application No. 21 of 2017 (SZ) IN THE MATTER OF:
Ramesh Vellore S/o Late B.K. Nair, Residing at Flat No. 32/1, Jyostna, Main Street, Padmavathy Nagar Estn, Velachery, Chennai - 600 042.
... Applicant(s) Versus
1. The Member Secretary State Environmental Impact Assessment Authority, 3rd Floor, Panagal Maligai, Saidapet, Chennai - 600 015.
2. The Member Secretary The Chennai Metropolitan Development Authority, Represented by its Member Secretary, Thalamuthu Natarajan Maligai, Egmore, Chennai.
3. The Corporation of Chennai Represented by its Commissioner, Rippon Buildings, Chennai.
4. M/s. Esthell Homes Represented by its Authorised representative, No. 1, Royal Enclave Besant Avenue, Adyar, Chennai.
...Respondent(s) For Applicant(s): Mr. A. Yogeswaran.
For Respondent(s): Mrs. Sumathi for R1.
Mrs. P. T. Ramadevi along with
Mr. Raghul Adithya for R3.
Mr. Vidhusan for R4
Page 2 of 49
Judgment Reserved on: 12th April 2022.
Judgment Pronounced on: 20th May 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/No Whether the Judgment is to be published in the All India NGT Reporter - Yes/No JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The grievance in this application is regarding the damage caused to the property of applicant on account of the illegal activities of the fourth respondent unit while implementing their project in violation of the environmental laws.
2. It was alleged in the application that the fourth respondent was granted Environmental Clearance (EC) by State Environment Impact Assessment Authority (SEIAA) for their project with certain specific and general conditions. At the time when the application was filed, fourth respondent was in the process of constructing an apartment complex containing 91 apartments and commercial complex at TS No.1/10, No.176, Inner Ring Road (South Segment), Opposite Sunshine School, Velachery Chennai-600 042 lying between the MRTS line and Jyotsna Residents Colony in Velachery having a built up area greater than 20,000 Sq. Meters and attracting the EIA Notification, 2006. Fourth Page 3 of 49 respondent had continued with construction activity at the site without taking any safety precautions and large scale excavations were carried out within 2 feet of the compound wall of Jyotsna complex where applicant was residing in Block 19A/2 which is adjacent to the project property of the fourth respondent. They had been carrying on construction activity day and night, creating major disturbance and nuisance including sound, air and water pollution. None of the necessary pollution control measures were taken by fourth respondent and the construction activity was continued in violation of the conditions imposed by respondents 2 and 3 respectively.
3. According to the applicant, he could not trace out the details of Environmental Clearance. But later he came to know from his counsel that the State Environment Impact Assessment Authority (SEIAA) filed an affidavit stating that the 4th respondent had obtained Environmental Clearance for the project. On account of the illegal activities of the 4th respondent, cracks were developed on the compound walls and roads in the Jyotsna apartment complex near to the construction site. The owners of the association submitted a representation to the authorities on 12.11.2014 but no action was taken. Subsequently, in May, 2015 part of the compound wall of the complex along plot 19A collapsed and the fourth respondent carried out superficial repair work to the protest of the association and the residents and continued with the construction. On 29th September, 2015 they approached the fourth respondent and asked him to comply with the precautions and take all necessary safety measures to avoid any damage being caused to the neighbouring properties. On 13.11.2015 at around 3.30 pm, major landslide occurred Page 4 of 49 and part of the land of plot 19A, including compound wall, sump, gate and the entire drive way caved in and the entire block‟s access to the road was blocked and the end of 5th street also caved in, destroying the road. Since they did not have access to the road, the same was restored at the instance of the Fire and rescue services. On account of the same, severe mental stress was caused to the applicant and others. Though they attempted to file a police complaint, the police refused to register a case and only CSR was made regarding the incident. On 14.11.2015 morning further landslides occurred along Fourth Street along fourth respondent‟s construction and the disaster management team arrived at the spot. Second respondent orally requested the residents of adjacent property owners to vacate the area since most of the houses on Fifth Street were found to be unsafe due to excavation, piling and other activities carried out by fourth respondent in a negligent manner. Though the authorities have issued stop memo dated 26.11.2015, fourth respondent continued with his illegal activity. Though Jyotsna Apartment Association had arranged discussions with fourth respondent along with few of the affected and willing parties, the resident of 19A did not join the association as some of the terms and conditions were not acceptable and they could not come back to Chennai. They had to leave Chennai as they had been rendered homeless on account of the illegal activity of fourth respondent‟s construction. They had to spend nearly Rs.5,53,000/- (Rupees Five lakhs and fifty three thousand) towards rent and maintenance apart from rental deposit Rs.87,000/- (Rupees Eighty seven thousand) being done for alternative accommodation. So, the applicant filed this application seeking following reliefs:-
Page 5 of 49
"a. Suspend the clearance issued by first respondent to the fourth respondent in Letter No. SEIAA/TN/F.481/EC/(a)/165/2012 dated 04.06.2013 until necessary studies and assessments are conducted by the accredited consultant/s to assess the stability and the safety of the area.
b. Direct respondents 1 to 3 to take necessary action against fourth respondent for violations of EIA Notification, 2006 and the Town and Country planning Act, 1971.
c. Direct fourth respondent to pay compensation to the applicant for losses suffered by him and for the mental agony suffered by him.
d. Direct the fourth respondent to carry out all necessary repairs to the applicant's premises by a competent, recognized third party agency to ensure the safety and integrity of the building.
e. Direct respondents 1 to 3 to conduct a risk assessment of the project of the 4th respondent."
4. First respondent filed counter statement contending that since it is a project falling within the purview of the State Environment Impact Assessment Authority (SEIAA), it is for them to consider the same and the State Environment Impact Assessment Authority (SEIAA) had considered the application and granted the Environmental Clearance to the 4th respondent on 04.06.2013 for construction of Multi-storied commercial building "Esthell Paragon Mall" having a built up area of 41,203 Sq. meters with certain specific and general conditions. Even if there is any violation, then, it is for them to consider the same and take appropriate action. They prayed for accepting their contentions and passing appropriate orders.
5. Second respondent filed counter statement contending that planning permission was granted to the fourth respondent for the proposed construction. Thereafter, they filed revised planning permission which Page 6 of 49 was also granted. When the site was inspected by Chennai Metropolitan Development Authority (CMDA) officials on 24.03.2017, they had observed that the developer was continuing the construction works of the said project in spite of the stop memo issued. The repair works had been done by the developer for the damage caused earlier in the neighbouring properties. Further, CMDA also issued locking and sealing and demolition notice dated 26.11.2015 in continuation of the stop work notice already issued. They prayed for passing appropriate orders for accepting their contentions.
6. Third respondent filed counter statement contending that some of the incident happened on 14.11.2015 and during inspection it was revealed that fourth respondent did not provide adequate shoring and protecting measures needed for the triple basement floor deep excavation as per constructional practices and safety prescribed by National Building Code (Part VII) resulting into endangering of the abutting properties of Padmavathy Nagar Second Street Extension in Division 178, Zone XIII. They directed to take all preventive measures of safe guards to avoid such incident in future. During November, 2015 about 8 houses adjacent to the site were affected due to the deluge happened and the residents of the said houses were rehabilitated immediately by the developer. It was also learnt that 6 affected house owners out of eight were adequately compensated and the reason for which the remaining two house owners including the applicant have not been compensated is not known to this respondent. They prayed for accepting their contentions and passing appropriate orders.
Page 7 of 49
7. Fourth respondent filed counter statement denying the allegations made in the application. Further they contended that they had obtained necessary Environmental Clearance and they did not commit any violation or deviation of any of the conditions and they were strictly complying with the conditions. They had completed the construction of two blocks and basements etc. had been filled up. They had taken all necessary safety measures before beginning the construction. There was no deviation which had also been verified by the respondents soon after the Moulivakkam incident. They had also completed major portion of the construction. They had taken all necessary precautions against mud-sliding on the eastern side adjacent to the Block by adopting soil shoring and nailing techniques. As it was pointed out to CMDA officials during the inspection of fourth respondent site on 14.11.2015 the stagnated drainage water started flowing in the reverse direction on the night of 13.11.2015 due to the clogging and breakage of the existing drainage system in the adjacent streets (4th and 5th streets of Padmavathy Nagar) resulting in the reverse flow of storm and drainage water into their property with force which loosened and damaged their soil nailing and guniting resulting in the mud-sliding for a small area. This was not due to any act committed by them. The incident happened due to heavy rain and people have to vacate the premises and they were not responsible for any of the incident alleged as it was due to "Act of God".
Page 8 of 49
8. The fourth respondent had taken the following steps to restore the setback area so as to prevent any further damage to the neighbouring property.
"i. The Fourth respondent have organized an inspection by a team consisting of Soil Consultant, Structural Consultant, Architect immediately on 21st November 2015 once the area became accessible.
ii. Due to stagnation of water all around our site and due to continuous monsoon climate our plot was full of water and the Fourth respondent was advised that immediate de-watering was not possible. Only from 29.11.15 onwards the Fourth respondent had seen some reduction in the water level.
iii. The Fourth respondent was advised by the soil and structural consultants not to de-water as it might result in erosion of soil.
iv. The reduction of water had enabled them to start piling of sand bags to the adjacent buildings in order to help them to commence de-
watering on a slow pace. The Fourth respondent had fully covered their side of the adjacent properties with sand bags up to a length of 70 meters and width of 1.5 meters from the adjacent building forming their setback. This would also enable further remedial measures taken by them.
v. The Fourth respondent would to continue the piling of sand bags slowly and steadily up tothe top of second basement slab already laid and simultaneously de- water the entire plot slowly.
vi. Once this was achieved the Fourth respondent could immediately construct a retaining wall above the second basement roof of Block B and finish the filing up to the existing ground level of the road which would enable the restoration of setback space.
vii. Furthermore the Fourth respondent filled up the balance portion of excavated area upto the existing ground level of the road to a length of 50 meters from the constructed area of 35 meters in all forming 85 meters as shown in the approved plan. This would Page 9 of 49 enable the Fourth respondent to restore the entire setback area on the eastern side of Block B and this would also protect the neighbouring properties."
9. According to the 4th respondent there was no negligence on their part, there was no violation of environmental laws committed by them and as such they are not liable for any of the relief‟s claimed by the applicant. They had further contended that on humanitarian consideration, for damage caused to the neighbouring property, namely, Jyotsna Apartment Complex, on negotiation with the concerned parties, they had made certain arrangements and also carried out the remedial action, including payment of compensation for the damage caused. Since the applicant was not amenable for the settlement, his claim could not be considered. That was done without prejudice their right to challenge the action of any of the person and purely on humanitarian consideration, though they were not legally liable to pay any compensation. They prayed for dismissal of the application.
10. The applicant filed common rejoinder denying the allegations made in the counter statement and reiterating their contentions raised in the application that the incident occurred not due to rain, but due to the constructions made by the fourth respondent in violations of the environmental clearance granted.
11. As per order dated 06.03.2020, after considering the pleadings, this Tribunal came to the conclusion that as regards the suspension of Environmental Clearance and setting aside the same is concerned, the remedy of the applicant has to file an appeal against the grant of Page 10 of 49 Environment Clearance which the applicant had not done. Even if the violations was found of the conditions of Environmental Clearance granted, then, it is for the authorises to take appropriate action for the violations and this Tribunal can consider only the scope of violation and any damage has been caused on account of such violation and what is the nature of relief to be granted to the affected party including the compensation, if any, payable for the damage caused on account of such violation. So this Tribunal felt that the prayer for setting aside the Environmental Clearance or suspending environmental clearance cannot be directly granted, but only directed the authorities to take appropriate action against the project proponent if there is any violation found.
12. In order to ascertain the alleged violations and the nature of damage if any caused to the applicant, this Tribunal appointed a Joint Committee comprising of (1) Senior Scientist of Ministry of Environment Forest & Climate Change (MoEF & CC), Chennai, (2) Senior Officer from State Environment Impact Assessment Authority (SEIAA), Regional Office, Chennai, (3) Senior Officer from Chennai Metropolitan Development Authority (CMDA), (4) Senior Officer of the Tamil Nadu State Pollution Control Board and (5) Senior Structural Engineer from Public Works Department (PWD) Construction to inspect the area in question and submit a report as to a. Whether there was any violation committed by the fourth respondent in carrying out the construction which resulted in any damage to the property of the applicant, Page 11 of 49 b. The extent of damage caused and what is the compensation payable for the same, c. whether there was any negligence on the part of the fourth respondent in carrying out the construction of not providing the necessary safety measures while making excavations in their property for a high level construction and d. if there is any violation found in not complying with the terms and conditions of the Environmental Clearance and Consent to Establish, what was the action taken by the authorities against fourth respondent for the violation committed by them including the recovery of compensation for the damage caused to environment, apart from any individual damage caused to the applicant and submit a factual and action taken report to this Tribunal.
13. The Tamil Nadu State Environment Impact Assessment Authority (SEIAA - TN) was designated as the nodal agency for co-ordination and providing necessary logistics for this purpose.
14. The matter was adjourned from time to time either by notification or at the request of the committee members seeking time to file the report.
15. The Joint Committee has filed a report dated Nil, e-filed on 01.03.2021 which reads as follows:-
Page 12 of 49 1
INSPECTION REPORT OF THE JOINT COMMITTEE CONSTITUTED BY THE HON'BLE NATIONAL GREEN TRIBUNAL (SOUTHERN ZONE) !N RESPECT OF O.A.NO.21 OF 2017 FILED BY THIRU REMESH VELLORE S/O. LATE B K NAIR RESIDING AT FLAT NO.3Z1. JYOTSNA. MAIN STREET. PADMAVATHY NAGAR EXTENSION. VELACHERY. CHENNAI - 42.
M/s. Esthell Hotels & Resorts has been issued with Environmental Clearance vide SEIAA Letter No. SEIAA/TN/F48'1/EC/8(a)/16512012 dated 04.06.2013 for construction of Multi-storied commercial Building "Esthel[ Paragon Mall" - Block (A)
- Mall/ Multiplex/ Hotel Complex with 3 nos. of Basement + G +7 Nos. of Floors and Multi-storied Residential Euilding "Esthell Golden Square" - Block (B) - Residential Apartment with 2 nos. of Basement + Stilt + 13 Nos. of Floors (91 Dwellings) in the plot area of 8517.00 m2 & with total built up area of 41203.00 m2 at S.F No. 638t1,2 & 3 , 639/1, 2&3, 64411, T.S No. 1110, Block No. 176, of Velachery Village, Mambalam - Guindy Taluk, Chennai District, subject to certain conditions.
Thiru Remesh Vellore, S/o. Late B K Nair Residing at Flat No. 3211 Jyotsna, Main Street, Padmavathy Nagar Extension, Velacherry, Chennai 17 filed case against M/s. Esthell Hotels & Resorts, project of construction of Multi-storied commercial Building "Esthell Paragon Mall" - Block (A) - Mall/ Multiplex/ Hotel Complex and Multi-storied Residential Building "Esthell Golden Square at S.F No. 638/1,2&3,639/1,2&3,64411, T.S No. 1/10, Block No. 176, of VelacheryVillage, Mambalam - Guindy Taluk, Chennai District before the Hon'ble National Green Tribunal, Southern Zone(SZ), Chennai vide O.A.No.21 of2017.
ln this regard, Hon'ble National Green Tribunal (SZ) in its order dated 06.03.2020 has constituted a Joint Committee comprising of Senior Scientist of Ministry or Environment Forest & Climate Change (MoEF & CC), Chennai, Senior Officer of State Environment lmpact Assessment Authority (SEIAA), Regional Office, Chennai, Senior Officer of Chennai Metropolitan Development Authority (CMDA), Senior Offlcer of the Tamil Nadu State Pollution Control Board, Senior Structural Engineer from Public Works Department (PWD) Construction, to inspect the area in question and submit a report as to whether there was any violation committed by fourth respondent in carrying out the construction which resulted in any damage to the applicant, the extent of damage caused and what is the compensation payable for the same, whether there was any negligence on the part of fourth respondent in Page 13 of 49 2 while carrying out the construction and not providing the necessary safety measures if there is any making excavations in their property for a high level construction and violation found in complying with the terms and conditions of the Environmental Clearance and Consent to Establish or Consent to Operate what is the action taken by the authorities against fourth respondent for the violation committed by him apart including the recovery of compensation for the damage caused to environment, from any individual damage caused to the applicant and submit a factual and action taken report to this Tribunal through e-mail @ ngtszfiling@gmail'com. The State for co-
Environment lmpact Assessment Authority (SEIAA) shall act as nodal agency as well ordination and providing necessary logistics for this purpose. The applicant as fourth respondent are directed to cooperate with the Committee for carrying out the inspection and assessing damage and also to find out any violation if any committed by fourth respondent which resulted in the alleged damage to the applicant's property. Registry is directed to communicate this order to the above officials by e-mail immediately so as to enable them to comply with the directions.
tn this connection, the nomination were received from concerned departments and the committee members details are as follows
1. Thiru.R.Sridhar, Scientist { MoEF&CC, Regional Office 34, Cathedral Garden Road, Nungambakkam, Chennai - 34
2. The Joint Chief Environmental Engineer (Monitoring)' Tamil Nadu pollution Control Board, 77 A, South Avenue, Ambattur lndustrial Estate, Chennai- 58
3. Thiru.S.Panneerselvam Depu$ Planner, Enforcement Cell (south) Chennai Metropolitan Development Authority Egmore, Chennai
4. Er.C.KalYanasundaram M.E, SuPeri ntending Engineer Public Works DePartment, Chennat
5. Dr.S.Rajendiran Assistant Environmental Engineer SEIAA-Tamil Nadu as a member of the committee and as a Nodal officer. Page 14 of 49 3 ln this regard, the Joint Committee decided to inspect the site on 06.11.2020 (Friday) at 11.00 AM to comply the Hon'ble National Green Tribunal, Southern Zone, Chennai order. The date of inspection was informed to the applicant as well as to the fourth repondent, Accordingly, the said site was inspected by the following members of Joint Committee on 06.11.2020
1. Thiru.R.Sridhar, Scientist 4 MoEF&CC, Regional Office 34, Cathedral Garden Road, Nungambakkam, Chennai - 34
2. Thiru S.Vijayarajan, Environmental Engineer --- representing Joint Chief Environmental Engineer (Monitoring), Tamil Nadu pollution Control Board, 77 A, South Avenue, Ambattur lndustrial Estate, Chennai- 58
3. Thiru.S.Panneerselvam Deputy Planner, Enforcement Cell (south) Chennai Metropolitan Development Authority Egmore, Chennai
4. Er.C.Kalyanasundaram M.E, Superi ntending Engineer Public Works Department, Chennai
5. Dr.S.Rajendiran Assistant Environmental Engineer SEIAA-Tamil Nadu as a member of the committee and as a Nodal officer. At the time of inspection, both the applicant as well as the fourth repondent were present. Before starting the inspection, a detailed discussion were carried out with the applicant as well as with fourth repondent.
The applicant has narrated the incidents happened, before the Joint Committee Members stating as follows:
1. The fourth respondent had continued with construction activity at the site without taking any safety precautions and large scale excavations were carried out within 2 feet of the compound wall of Jyotsna complex where Page 15 of 49 4 he is residing in Block 19N2 which is adjacent to the project of fourth respondent.
2. The fourth respondent had been carrying on construction activity day and night, creating major disturbance and nuisance including sound, air and water pollution. None of the necessary pollution contro! measures were taken by fourth respondent and the construction activity is being continued in violation of the conditions imposed by respondent 2 and 3.
3. On account of the construction activities of the fourth respondent, cracks have come up on the walls and roads in the Jyotsna apartment complex near to the construction site.
4. The owners of the association submitted a representation to the authorities on 12.11.2014 but no action was taken.
5. Subsequently, in May, 2015 part of the compound wall of the complex along plot 19A collapsed and fourth respondent carried out superficial repair work to the protest of the association and the residents and continued with the construction.
6. On 29th September,2OlS they approached fourth respondent and asking him to comply with the precautions and take all necessary safety measures to avoid any damage being caused to the neighbouring properties, 7 . On 13.1 1 .2015 at around 3.30 PM major landslide occurred and part of the land of plot 19A, including compound wall, sump, gate and the entiredrive way caved in and the entire block's access to the road was blocked and the end of Sth street also caved in, destroying the road.
8, Since they did not have access to the road, the same was restored at the instance of the Fire and rescue services.
9. On account of the same, severe mental stress was caused to the applicant and others. Though they attempted to flle a police complaint, the police refused to register a case and only CSR was made regarding the incident.
10.On 14.11.2015 morning further landslides occurred along fourth street along fourth respondent's construction and the disaster management team arrived at the spot.
11.Though the authorities have issued stop memo dated 26.11.2015, fourth respondent continued with his illegal activity. Page 16 of 49 5
12. Though Jyotsna Association has arranged discussions with fourth respondent along with few of the affected and willing parties, the resident of Plot 19A (Applicant) did not join the association as some of the terms and conditions were not acceptable and they could not come back to Chennai.
13.The applicant has reported that because of the illegal activity of fourth respondent construction, the applicant have been rendered homeless and have to spend nearly Rs.5,53,0001 (Rupees Five lakhs and fifty three thousand) towards rent and maintenance apart from rental deposit RS.87,000/- (Rupees Eighty seven thousand) being done for alternative accommodation.
14.|n view of the above, the applicant filed this application seeking following reliefs:
a. "(a) Suspend the clearance issued by first respondent to the fourth respondent in Letter No. SEIAA/TN/F.481/ECl(a)116512012 dated 04.06.2013 until necessary studies and assessments are conducted by the accredited consultanUs to assess the stability and the safeg of the area.
b. (b) Direct respondents 1 to 3 to take necessary action against fourth respondent for violations of EIA Notification, 2006, the Town and Country planning Act, '1971.
c. (c) Direct fourth respondent to pay compensation to the applicant for losses suffered by them and for the mental agony suffered by them.
d. (d) Direct the fourth respondent to carry out all necessary repairs to the applicant's premises by a competent, recognized third party agency to ensure the safeg and integrity of the building. e. (e) Direct respondents 1 to 3 to conduct a risk assessment of the project of the 4th respondent.' 15'The applicant has also furnished the copy of photos taken during various occations.
The fourth respondent has reported before the Joint Committee Members as follows, Page 17 of 49 5
1. The fourth repondent reported that they have obtained necessary Environmental Clearance and they did not make any violation or deviation and they were complying with the conditions.
2. The fourth repondent reported that they have completed the construction of two blocks and basement etc. have been filted up.
3. The fourth repondent reported that they have taken all necessary safe$ measures before beginning the construction.
4. The fourth repondent reported that they have taken all necessary precautions against mud-sliding on the eastern side adjacent to the Block by adopting soil shoring and nailing techniques.
5. The fourth repondent reported that the stagnated drainage water started flowing in the reverse direction on the night of 13.11.2015 due to the clogging and breakage of the existing drainage system in the adjacent streets (4th and Sth streets of Padmavathy Nagar) resulting in the reverse flow of storm and drainage water into our property with force which loosened and damaged our soil nailing and guniting resulting in the mud- sliding for a small area and this was not due to any act committed by them,
6. The incident happened due to heavy rain and people have to vacate the premises and they are not responsible for any of the act as alleged.
7. The fourth respondent has taken the following steps to restore the setback area so as to prevent any further damage to the neighbouring property.
8. The fourth repondent reported that they have organized an inspection by a team consisting of Soil Consultant, Structural Consultant, Architect immediately on 21st November 2015 once the area became accessible.
9. Due to stagnation of water all around our site and due to continuous monsoon climate our plot was full of water and it was advised that immediate de-watering was not possible.
10.The fourth repondent reported that they have been advised by the soil and structural consultants not to de-water as it may result in erosion of soil.
11. The reduction of water has enabled us to start piling of sand bags to the adjacent buildings in order to help us to commence de-watering on a slow pace.
Page 18 of 49 7
12. The fourth repondent reported that they have fully covered their side of the adjacent properties with sand bags up to a length of 70 meters and width of 1.5 meters from the adjacent building forming their setback.
13.The fourth repondent reported that they have also obtained the partial completion certificate from CMDA for its complex vide letter No EC/S- 1 n7 1 512017 dated 06.12.2017 .
14.The fourth respondent has produced the copy of certified compliance obtained from Regional office, MoEF&CC and CTO for Phase I obtained from TNPCB.
After detailed discussion with the applicant as well as with the fourth repondent, the Joint Committee Members inspected the applicant's residence & fourth respondent's construction site.
OBSERVATIONS A. APPLTCATNT',S RESTDENCE (DAMAGE TO THE AppLtCANT NOTTCED & THE EXTENT OF DAMAGE CAUSED)
a) During inspection, the following observations were noticed in the applicant residence of Flat 3211, Jyotsna Main Street, Padmavathy Nagar, Extension Velachery are submitted as follows:
(i) Compound Wall:
a. The compound wall on west side was found collapsed completely.
b. The compound wall on south side was also found collapsed (Though a
portion of about 26 feet exists on south side, it was found over turned and to be demolished and new one is to be constructed). c. The compound walls on North and East side were found to be ok. d. Hence Length of compound wall to be reconstructed is about 90 Feet and the height of compound wall is 5 Feet
(ii) Gatei a. Out of two gates on Northern side, the one on western end was found completely damaged and the length and height of gate were 8 feet and 5 feet respectively.
(aii) PavementArranqement:
a. The pavement all-round the building is provided with Grano Flooring, over plain concrete.Page 19 of 49 8
b. Damages were noticed in many portions of pavement. Pavement was found sunken down from the original laid level and found separated from the wall in few places.
c. The entire pavement arrangement all-round the building is to be redone.
(iv) Sump:
a. The underground sump was found collapsed and completely caved-in.
(v) EB Box Arranoements:
a. The E.B (power supply) connection box arrangements provided in the
' Building was found damaged and to be replaced with new one with
necessary accessories.
(va) Miscellaneous damaqes:
a. Cracks & damages were found in the following portions:
a. ln the sun shades on two sides b. ln the wall under over head tank. c. Damages in few roofing tiles (Pressed tiles) B. FOURTH RESPONDENT'S CONSTRUCTION SITE
1. M/s Esthell Golden square & Esthell Paragon Mall (M/s Esthell Hotel & Resorts) has obtiained Consent to Establish (CTE) on 5.12.2014 for the Construction of Residential cum commercial complex with two Blocks A and B:
a. Block A- Commercial/hotel complex- 3 basements+ ground floor and 7 Floor b. Block B- Residential blocks- basement + stilt and 13 floors with total built up area of 41,203 sqm.
2. The Project Authorities have obtained Consent to operate on 24.9.2020 in the name of M/s Esthell Golden square and Esthell Paragon Mall - Esthell Homes - Phase I for the Residential Complex blocks-- Basement + stilt and 13 floors with total built up area of 17,752.56 sqm (91 dwelling units) with permission to discharge 54 KLD of treated sewage as follows:
a) 22 KLD for utilizing for toilet flushing,
b) 5 KLD for gardening and
c) The remaining 27 KLD into CMWSSB sewer Page 20 of 49 9 and to discharge emission through 4metre height stack attached to 380 KVA DG set.
3, During inspection, the following were observed:
a. The unit had completed the Rear block (Block B -Residential block) only and out of 91 units only 20 units were occupied. Block A (front block -which is adjacent to the Petitioner's house) was under
construction in which structural works for 3 basement+ Ground and 2 Floors only were completed.
b. The unit has provided Sewage Treatment Plant (STP) for the residential block which was under stabilization. The Project Authorities informed that the raw sewage is at present sent through lorry tankers to CMWSSB STP for treatment as only 20 dwelling units, out of 91 units, have been occupied recently and the STp is under stabilization.
c. The unit has installed one DG Set of 380 KVA with 4 metre height stack.
d. one organic waste converter (owc), to process the organic wastes generated from the dwelling units, has been kept in place but yet to commission. The Project authorities informed that at present the solid waste (including the organic waste) is disposed through Chennai Corporation.
RECOII'IMENDATIONS:
The Joint Committee after having a detailed inspection has suggested the following recommendations:
A. COST ESTIMATION TO THE DAMAGE CAUSED TO THE APPLICANT.
1. Compound Wall:
1) Compound wall is of brick masonry and height of Compound Wal is 5 Feet & Thickness of Compound Wall = 5.5 inch and Brick pillars are 9 inch X 9 inch (provided at about 9 feet intervals).
2) The Collapsed Compound Wa[ Length a. Western side = 36 feet Page 21 of 49 10 b. Southern side = 42 teet (including overturned wall of 18 feet in length) c. Extra at Junctions Btc; = 12 feet d. The total length of the Collapsed Compound Wall is 90 feet & the Rate per one feet length = Rs. 4000
3) Hence the Cost for reconstructing the collapsed compound wall is (90xa000) Rs. 3, 60,000. -- (a)
2. Gate:
a. The damaged steel gate is of size 8' - 6' X 5' - 0' b. TotalWeight = 850 kg c. Cost of replacing the damaged gates with new gate: Rs. 85,000 '-
(.i)
3. Pavement Arranqements:
a. Pavement is finished with grano flooring over cement concrete. b. Area of pavement to be re-laid = 1000 sqft c. Adopting rate of Rs. 125 Per sqft, d. Hence the Cost of relaying entire pavement arrangement =1000 X 125 = Rs.1, 25,000 -'----'(iii)
4. Sumo:
a. Capacity of sump (about) = 6000 litre b. Adopting Rate of Rs. 25 Per litre c. Cost of surnp = 6000 X25 =Rs. 1, 50,000 '--"' (iv)
5. E.B Box Arranoements:
Cost of replacing E,B Box Arrangement = Rs. 30,000 ".. (v)
6. Miscellaneous damaqes:
Repairing miscellaneous damages like cracks in sunshade, Walls etc., is Rs. 25,000 ---- (vi)
7. Unforeseen Expenditure durino reoairino is Rs. 25.000 ------ (vii)
8. Total amount-(a) + (ii)+ (iii) + (iv)+ (v) + (vi)+ (vii) = (360000+85000+125000 + 150000 + 30000 + 25000 + 25000) Total = Rs.8, 00,000 (Rupees Eight lakhs only) Page 22 of 49 11 . B. COMPENSATION PAYABLE TO THE APPLICANT.
As per the cost estimation done above, the compensation payable to the applicant to repair/reconstruction of the damage noticed is Rs.8, 00,000. C. NEGLIGENCE IN CARRYING OUT THE CONSTRUCTION.
It is reported that in order to protect the soil from sliding during deep excavation, the method adopted was soil shoring and nailing technique. ln this method, steel rods are driven into the excavated vertical sides, to compact it and cement grouting is done after spreading, wire mesh which act like a thick sheeUwrapper and prevent the sliding of earth, The above technique adopted is adequate in normal condition. But when there is an intrusion of excess water, there are chances of erosion and sliding which may cause damages and collapse of adjacent structures like compound walls, amenities and even buildings in the neighbourhood. Hence it is opinioned that water inundation due to rain has caused the failure of this shoring and nailing technique resulted in loosening and erosion of portions excavated for the purpose of constructing underground basement walls resulting in collapse and damage to compound wall and other amenities of neighbouring buildings.
D. SAFEW MEASURES PROVIDED WHILE MAKING EXCAVATIONS. The incident occurred in the year 2015. The following observations are submitted based on present site conditions (06.11 .2020) and also on scrutinizing the relevant old photographs furnished, regarding the safety measures provided while making excavations.
1. Meticulous care is to be taken while carrying out the deep excavation for triple basement floor below the ground.
2. There are many ways to protect the soil from sliding during deep excavation and the method adopted here was soil shoring and nailing technique. 3' ln this method, steel rods are driven into the excavated vertical sides, to compact it and cement grouting is done after spreading, wire mesh which act like a thick sheeuwrapper and prevent the sliding of earth.
4. The above technique adopted is adequate in normal condition. But when there is an intrusion of excess water, there are chances of erosion and sliding Page 23 of 49 72 which may cause damages and collapse of adjacent structures like compound walls, amenities and even buildings in the neighbourhood.
5. Other shoring methods like sheet piles, contiguous piling, etc. are good enough to withstand this water pressure. Hence it is opinioned that water inundation due to rain has caused the failure of this shoring and nailing technique resulted in loosening and erosion of portions excavated for the purpose of constructing underground basement walls resulting in collapse and damage to compound wall and other amenities of neighbouring buildings.
E. COMPLIANCE & VIOLATION WITH RESPECT TO ENVIRONMENTAL CLEARANCE.
The report on compliance & violation with respect to Environmental Clearance issued to m/s Esthell Hotels & Resorts, S,F No 638/1,2 & 3, 639/1,2&3, 64411, T.S.No.1/10, Block No.176 of Velachery Village, Mambalam - Guindy Taluk, Chennai District is enclosed as Annexure-1 F. COMPLIANCE & VIOLATION WITH RESPECT TO GONSENT TO ESTABLISH OR CONSENT TO OPERATE.
The report on compliance & violation with respect to consent to establish (for block A and B) issued to M/s Esthell Golden Square & Esthell Paragon Mall (M/s Esthell Hotel & Resorts) proposed at S.F No 638/1, 2 & 3, 639/1 ,2&3,64411, T.S.No.1/10, Block No.176 of Velachery Village, Mambalam - Guindy Taluk, Chennai District and consent to operate issued in the name of M/s Esthell Golden Square & Esthell Paragon Mall - Esthell HOMES Phase I ( Block B only) at S.F No 638/1 and 639/2 is enclosed as Annexure-2 and 3 respectively. At the time of inspection, only 20 units were occupied out of g1 units and the STP was under stabilization and the Organic Waste Converter (OWC) has been installed. However, the sewage was sent to CMWSSB through tankers and the solid waste generated is disposed through Chennai Corporation then and there, The unit authorities informed that due to less occupancy and also availability of less labour in Covid Pandamic situation, STP and the OWC was not operated Page 24 of 49 and will be commissioned shortly and disposal outside will be completely stopped."
16. The 4th respondent has filed their objection to the Joint Committee report stating that the incident occurred due to heavy rain and people had to vacate the premises and they were not responsible for the incident. They had taken all the steps to restore the setback area, so as to prevent further damage to the neighbouring property. They had organised an inspection by a team consisting of Soil Consultant, Structural Consultant and Architect immediately on 21.11.2015 once the area became accessible. Due to stagnation of water all around their site and due to continuous monsoon climate, their plot was full of water and on account of the same immediate de-watering could not be possible. They had been advised by the soil and structural consultants not to de- water as it might result in erosion of soil. The reduction of water had enabled them to start piling of sand bags to the adjacent buildings in order to help them to commence the de-watering on a slow pace. They had fully covered their side of the adjacent properties with sand bags upto a length of 70 meters and width of 1.5 meters from the adjacent building forming their setback. They had obtained partial Completion Certificate from CMDA for their complexes vide Letter No. EC/S- 1/7715/2017 dated 06.12.2017. They had produced all the documents before the committee to show their bonafidies and compliance of the environmental laws in carrying out their project. The committee had failed to note that the damage to the applicant residence has happened only due to the Act of God. The 4th respondent was not responsible for the same. The damages assessed by the Joint Committee were also highly excessive.
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17. The applicant also filed an affidavit stating that on account of the violations committed by the 4th respondent in carrying out their project, damage has been caused to the apartment in which the applicant was residing in Jyotsna Apartment Complex and he had to vacate the premises and live in a residential house by paying huge amount as rent. He was working with IBM as Project Manager handling a prestigious assignment- playing the role of Risk Manager in a Corporate Governance team at the peak of his career. He was having more than ten years experience in IBM and inspired confidence in his leadership capacities and expertise, his organisation gave accommodation to him in his employment. Irrespective of the health conditions, they offered him a remote position to support him in his recovery phase. The incident occurred only due to non-compliance of the environmental norms and failure to take safely measures which fourth respondent ought to have taken even considering the climatic conditions during monsoon.
18. On account of sound pollution caused, the applicant was suffering from seizure and health affected diseases and he was under continuous medication. Though complaints were made to the 4th respondent to take appropriate steps to abate the nuisance caused on account of sound and construction activity, no steps were taken by them which resulted in great health hazards to the applicant as it had affected his sleep during night. During May, 2015 part of the compound wall of the complex along plot 19A collapsed and the 4th respondent carried out superficial repair work after protest by the Association and residents. But he had continued with the illegal construction activities. Page 26 of 49
19. On 29.09.2015, the Association called Esthell Homes to inspect and assess the damage caused due to their construction work. The Technical Representative visited the site and listed down the damage caused however, they refused to give any commitment in writing. Despite many assurances given, no repair works was done nor were safety precautions taken to ensure that the site did not cave in and mudslides did not happen in future.
20. On 13.11.2015, at around 3.30 pm a major landslide occurred and a part of the plot 19A, including compound wall, sump, gate, several trees and the entire driveway caved in and access to the property was blocked. The incident caused heavy traumatic effect on him. He had to leave all his belongings in the house and leave the place with necessary medicines and laptop alone. He could not carry out his performance assessment, effectively and his professional capability was affected and it had affected his monitory benefits as well. He had missed his opportunities which resulted in loss of progress in his professional carrier resulting in loss of Rs.1,50,000/- (Rupees One Lakh and Fifth Thousand Only) apart from loss of bonus of Rs.75,000/- (Rupees Seventy Thousand Only) and professional growth at an estimate of Rs.1,00,000/- (Rupees One Lakh Only). Because of the landslide considering the safely measures they were asked to vacate the premises. He accordingly left the residence and shifted to his cousins house at Velachery. He had to be there in the house during night and he was rescued only in the morning which resulted in trauma to him. He had spent Rs.17,250/- for his transport expenses. He had shifted to a rental house paying Rs.20,000/- per month. He had to spend nearly Rs.33,600 Page 27 of 49 for his transport and special fittings, repair expenses etc. He had to pay a huge amount as rent from 2016 till February, 2022 which amounted to Rs.11,24,750/- (Rupees Eleven Lakh Twenty Four Thousand Seven Hundred and Fifty Only) evidenced by Annexure A2 and other incidental expenses evidenced by Annexure A3.
21. He had also estimated the compensation for the sufferings undergone by him at Rs. 20,00,000/- (Rupees Twenty Lakhs Only) and mental agonly at Rs. 15,00,000/- (Rupees Fifteen Lakhs Only) and loss of career at Rs.10,00,000/- (Rupees Ten Takhs Only) and also expenses incurred for conducting the case at Rs. 1,50,000/- (Rupees One Laks Fifteen Thousand Only) and also he had given the details of the compensation as follows:-
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Total = 77,59,400/-
(Rupees Seventy Seven Lakhs Fifty Nine Thousand and Four Hundred Only)
22. He prayed for granting the above said amount as compensation, though such amount was not estimated in the Original Application but claimed this by filing an affidavit with certain documents. He had also produced certain documents which are all photo copies to substantiate his claim for travel and payment of rent etc., He also produced a disability certificate showing his disability percentage of 75%.
23. Heard Mr. A. Yogeshwaran counsel appearing for the applicant. Mrs. M. Sumathi appearing for first respondent/State Environment Impact Assessment of authority, Mrs. P.T. Rama Devi through Mr. Raghul Adithya appearing for 3rd respondent and Mr. Vidhusan appearing for 4th respondent.
24. The counsel appearing for the applicant argued that the report of the Chennai Metropolitan Development Authority (CMDA) will go to show that the project proponent had not carried out the safety measures which resulted in the untoward incident, resulting damage to the property of the applicant.
25. Further, there were violations of environmental conditions and necessary setback has not been provided while carrying out the constructions and no protective measures to control the sound and vibration that is likely to be generated while doing the piling work using heavy machineries which impact resulted in damage to the Page 29 of 49 neighbouring houses. Even before the monsoon, certain damages had been caused which was admitted by the 4th respondent and they had made some superficial repair work and they had also paid some compensation to the other property owners in the „Jyotsna‟ Apartment Complex and since the applicant was not satisfied with the quantum of compensation and he was not agreeable for the amount provided by them and also the nature of remedial measures suggested by them, he did not participate in the negotiation. Further after the incident, he could not go back to the residential complex on account of the trauma‟s affected him due to the landslide and damage caused to the property due to landslide occurred which was also due to the negligence on the part of the 4th respondent. He had to live in a rented house since long time, incurred large expenses for transport and the mental shock affected him, resulted in health deterioration required long time meditation and affected his health. Though he had not quantified the compensation at the time of filing his application, this Tribunal has to power to award the same to the applicant, if it is found that the 4th respondent was responsible for the same.
26. Further, under Section 14 & 15 of the National Green Tribunal Act, 2010 any damage caused to the property is also liable to be compensated, if it is occurred due to the violation of environmental laws committed by the 4th respondent.
27. Further, the Evidence Act, 1872 and Code of Civil Procedure are not applicable to the National Green Tribunal Act, 2010 and it can evolve its own procedure for considering the issues and granting the relief in Page 30 of 49 accordance with the provisions of the National Green Tribunal Act, 2010.
28. The counsel appearing for the first respondent submitted that the committee has inspected the area and they had calculated the compensation and the Environmental Clearance was granted to the project proponent for their project in the year 2013.
29. The counsel appearing for 3rd respondent submitted that they have no role in the process of assessing compensation and violation of building rules, if any, and the violations of permissions granted for the project and it will have to be considered by the Chennai Metropolitan Development Authority (CMDA).
30. The counsel appearing for the 4th respondent submitted that there was no negligence on their part and they have not committed any violation of conditions which was responsible for the unfortunate incident happened. They were strictly complying with the conditions and their project activities were monitored and supervised by the experts both Technical and Architect and the construction work is being done at their directions. Even the Joint Committee report will go to show they have taken all necessary precautions and as such they cannot be held responsible for the unfortunate incident. Merely because they have paid some compensation to the neighbouring property owner for some damage caused on humanitarian ground that will not ipso facto sufficient to fasten the liability on them on the ground of Environmental degradation caused due to their activity.
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31. Further, the landslide etc., had happened due to heavy unprecedented rain and flood occurred on account of the same during the year, 2015 and the entire Chennai had faced this situation and shifting of resident to another place during that period happened as a part of disaster management and even if the incident had not happened because of the flood occurred, the applicant and the other residents should have been shifted to some another safety place.
32. Further, the applicant has not cooperated in carrying out the repair work and he had not taken any steps to quantify the damage caused to the building or property and the amount required for repairs as part of restitution for the damage caused to the building. He had not taken mitigating measures to reduce the quantum of compensation by carrying out the repairs and making the area suitable for habitation. Merely because he had some mental shock suffered on account of the flood situation and did not want to come back to the residence in the complex, any amount of payment towards rent cannot be taken on the part of compensation and the 4th respondent is not liable to pay the amount.
33. Further, it was an incident happened due to „Act of God‟ and they cannot be made responsible for the damage and they are not liable to pay any compensation. They prayed for dismissal of the application.
34. Considered the pleadings and the documents produced and submissions made by the counsel appearing for the respondents and the reports and the objections filed to the same.
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35. The points that arise for consideration:-
i) Whether the application is maintainable?
ii) Whether the alleged damage caused to the property of the applicant was resulted due to any of the violations of environmental laws committed by the 4th respondent?
iii) What is the nature of damage caused to the property belonging to the applicant?
iv) What is the quantum of compensation to which the applicant is entitled to?
v) Whether the 4th respondent is liable to pay the amount?
vi) Relief and Cost.
POINTS:-
36. The grievance in this application was that on account of the non- compliance of conditions of Environmental Clearance granted to the 4 th respondent resulted in damage to the property of the applicant which the 4th respondent is liable to compensate.
37. According to the applicant, the manner in which the piling operations were done by the 4th respondent has resulted in heavy vibrations and sound which created some cracks. Though complaints were made to the 4th respondent, he did not care to rectify the same. Further, due to not providing certain precautionary methods, when rain came, the compound wall and certain other structures in the applicant colony was damaged completely. During rain, a landslide occurred which resulted in further damage and this necessitated rehabilitation of the applicant to Page 33 of 49 some other places. Though he requested the 4th respondent to compensate and rectify the damage caused, they were not amenable for the same. So, he could not come back to the residence and he had to stay away from the place where he was residing earlier which is a disputed area in respect of which compensation was claimed, incurred huge expenses which the 4th respondent is liable to pay. He also claimed that he underwent severe mental trauma and it in turn affected the professional efficacy which also caused heavy monitory loss to him. He had to undergo treatment and incurred huge medical expenses. All these things will have to be reimbursed by the 4th respondent.
38. The case of the 4th respondent was that that they were not responsible for the unfortunate incident happened. It was an „Act of God‟ and they cannot be held responsible for the compensation and this Tribunal has no jurisdiction to entertain the same.
39. Section 14 & 15 of the National Green Tribunal Act, 2010 deals with the jurisdiction and powers of the National Green Tribunal under Section 14 says "1. The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I
2. The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
3. No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose:
Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days..Page 34 of 49
40. Section 15 deals with the Relief, compensation and restitution as follows:
"Relief, compensation and restitution. - (1) The Tribunal may, by an order, provide,-
(a) Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) For restitution of property damaged;
(c) For restitution of the environment for such area or areas, as the Tribunal may think fit.
41. Schedule (II) attached to the National Green Tribunal Act, 2010 deals with the heads under which compensation or relief for damage may be claimed:
" a. Death;
b. Permanent, temporary, total or partial disability or other injury or sickness;
c. Loss of wages due to total or partial disability or permanent or temporary disability;
d. Medical expenses incurred for treatment of injuries or sickness; e. Damages to private property;
f. Expenses incurred by the Government or any local authority in providing relief, aid and rehabilitation to the affected persons; g. Expenses incurred by the Government for any administrative or legal action or to cope with any harm or damage, including compensation for environmental degradation and restoration of the quality of environment; h. Loss to the Government or local authority arising out of, or connected with, the activity causing any damage;
i. Claims on account of any harm, damage or destruction to the fauna including mulch and draught animals and aquatic fauna; j. Claims on account of any harm, damage or destruction to flora including aquatic flora, crops, vegetables, trees and orchards; k. Claims including cost of restoration on account of any harm or damage to environment including pollution of soil, air, water, land and eco-systems; l. Loss and destruction of any property other than private property; m. Loss of business or employment or both;
n. Any other claim arising out of, or connected with, any activity of handling of hazardous substance."
42. As regards the damage of the property is concerned, it was only mentioned that the damage caused to the property. The incidental damage has not been mentioned as part of the claim for compensation. But at the same time, the permanent injury or partial injuries are Page 35 of 49 concerned, the loss of wages due to total or partial disability or permanent disability, medical expenses incurred for treatment of injuries or sicknesses were included. If the applicant had a case that the damage to his property was caused on account of any act which the 4th respondent is expected to implement on the basis of any of the enactments enumerated in schedule -I, then he can maintain the application before this Tribunal.
43. According to the 4th respondent, the incident occurred due to flood happened in the year 2015. Though the applicant asked for a relief to suspend the clearance issued to the first respondent to the 4th respondent for the project, we feel that such a relief cannot be granted by this Tribunal and if there is any violation of conditions imposed, then it is for State Environment Impact Assessment Authority - Tamil Nadu (SEIAA - Tamil Nadu) and Tamil Nadu Pollution Control Board to take appropriate action in accordance with law after affording reasonable opportunity to the project proponent as provided under the EIA Notification, 2006 and only a direction to that extent alone can be issued.
44. The action to be taken under the Town and Country Planning Act, 1971 will not be falling within the jurisdiction of this Tribunal, as that enactment is not part of the enactments enumerated in Schedule-I of the Act. It is for the concerned authority to take appropriate action, if there is any violation of the conditions (if any) imposed.
45. As regards those reliefs are concerned, it is for the authorities to take action and this Tribunal cannot straight away issue any directions as prayed for. As regards criminal complaint of the applicant in respect of Page 36 of 49 the incident concerned, it was specifically mentioned even in the order passed by the Hon‟ble High Court of Madras in Criminal O.P. No. 712/2016 (Sri Subramaniya Pillai and Ramesh Vellore vs. State of Tamil Nadu and others) that "In view of the submissions made on either side, this Court directs the respondent to conduct the enquiry on the compliant given by the petitioner dated 13.11.2015 and upon enquiry, if materials are gathered indicating commission of any cognizable offence, he is directed to proceed further in accordance with law as early as possible. If no prima facie case is made out, the respondent is directed to pass an appropriate order on the said compliant."
46. If there is no cognizable offence made out on the basis of the allegations made by the applicant, then the police officials are not expected to register any crime and proceed against the person against whom such compliant has been made. If it is a civil dispute either personal or due to any environmental law violation, then the remedy of the applicant to approach the appropriate forum and they cannot be blamed not to register the criminal case in this regard.
47. The applicant approached this Tribunal claiming compensation on account of some violation of environmental laws is maintainable before this Tribunal, if any damage has been caused either to the property or to the person, on account of the non-implementation of any of the environmental laws then the applicant is entitled to claim compensation including restitution of the property so damaged on account of such violation.
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48. So, the submission made by the learned counsel appearing for the 4th respondent that the application is not maintainable before this Tribunal is not sustainable and hence the same is rejected.
49. It is an admitted fact that the 4th respondent has obtained the Environmental Clearance for their project as per their proceedings Letter No. SEIAA/TN/F.481/EC/8(a)/165/2012 dated 04.06.2013. As per the conditions, they will have to maintain the Ambient Air Quality (AAQ) and sound level as per the norms. They will also have to take all necessary precautions and the construction of the structure should be undertaken as per the plan approved by the concerned local authorities and local administration. They must have a separate Environment Management Cell, with suitable qualified persons, should be set up under the control of the Senior Executive who will report directly to the head of the Organisation. The conditions can be enforced under the provisions of the Environmental laws and other directions, if any, issued by the Hon‟ble Apex Court and Hon‟ble High Court of Madras and also this Tribunal in this regard.
50. The case of the applicant was that on account of the process of construction undertaken by the 4th respondent namely, M/s. Esthell Golden Square adjacent to the property of the applicant and on account of not-providing necessary safety precautions and large excavation carried out within 2 feet of compound wall of Jyotsna Apartment Complex where the applicant was residing in Flat No. 19A has resulted in crack and other damage to the common area. This had happened on 12.11.2014 and subsequently in May 2015, part of the compound wall along complex Flat Page 38 of 49 19A were collapsed and the 4th respondent had carried out the superficial repair work to the protest of the association and the residents and continued with the construction. Though they have given certain assurance on the basis of the inspection made by the Technical representatives of the 4th respondent, they have not given any commitment in writing and no repair work has been undertaken by them.
51. On 13.11.2015, at around 3.30 P.M. a major landslide occurred and a part of the land of plot 19A, including compound wall, sump, gate, several trees and the entire drive way caved in. For the entire blocks, access to the road was blocked. But it was admitted that the building itself did not collapse or cave in and did not result in loss of life. But it may be mentioned here that the subsequent landslide and further damage etc caused on account of the flood occurred during that time.
52. The case of the applicant was that due to flood, they will have to be relocated and he could not come back to the property. There was an agreement between the Proprietor of the 4th respondent project with Jyotsna Flat Owners and Residents Association dated 17.02.2016 wherein they have admitted that there was certain damage caused due to the excavation and they have agreed to compensate the same either by making repairs of the damage caused and one of the person shown as so affected was the applicant herein, namely Mr. Vellore Ramesh. So, there was an implied admission on their part, for which, certain compensation was fixed at Rs.6,60,000/- (Rupees Six Lakh and Sixty Thousand Only). Page 39 of 49
53. According to the applicant, he was not amenable for the same as the quantum of compensation fixed was not proper. It is not known as to whether this amount has been paid and settled. No steps were taken by the applicant to assess the damage immediately after the incident occurred. But it is seen from the statements submitted by the Chennai Metropolitan Development Authority (CMDA) that due to non- compliance of certain directions and conditions resulted in the damage caused to the neighbouring property and also resulted in rain water entering the property causing damage to the neighbouring property and there was also a stop memo issued by the authorities, but in spite of that they continued with the construction activities. So, there is some evidence to show that there was some latches which occurred on the side of the 4 th respondent in carrying out the construction activities which is against the conditions imposed which resulted in the damage to the neighbouring property. So, it cannot be said that the damage caused to the neighbouring property was due to „Act of God‟ as a result of the subsequent rain and flood occurred immediately after the incident occurred as contended by the 4th respondent.
54. So, the 4th respondent is liable to compensate the applicant for the damage caused to his property on account of their act of committing violations of the conditions of environmental laws and failure to provide necessary measures as part of disaster management and proceed with the work in spite of stop memo issued and lock and seal order issued by the Chennai Metropolitan Development Authority (CMDA) to the project proponent. Normally this Tribunal will not entertain the application for damage to the private property due to any mere negligence on the part of the project Page 40 of 49 proponent in carrying out their activities under tort. But in this case apart from negligence, there was failure to comply with the conditions of Environmental Clearance and conditions imposed by the planning authority, considering the environment protection angle which was not complied with by the project proponent which resulted in damage to the property of the applicant, which they are expected to anticipate and provide, applying "Precautionary Principle" to avoid any damage to the neighbouring property, this Tribunal has entertained the application. Admittedly, the house of the applicant was not affected. Only a portion of the compound wall adjacent to the property of the project proponent where the construction was in progress and the common area has been affected. The dislocation happened due to the flood and the consequential expenses incurred by him for getting an alternate accommodation and payment of rent etc., cannot be attributed to the act of the 4th respondent and he is not entitled for any compensation on that aspect.
55. Further, though he had a case that he had lost his professional efficacy which resulted in loss of income, there is no evidence adduced before this Tribunal on this aspect and that also cannot be granted on the basis of the property damage as claimed by them which cannot be attributed to that. Though there was a case for the applicant that there was noise and sound pollution which resulted in the crack, there is no factual evidence adduced on that aspect before the Tribunal. So, any discomfort said to have been suffered by the applicant on account of the noise and sound pollution is not established before this Tribunal by cogent evidence. Any health related issues caused to the applicant cannot be related to the incident so as to make him eligible for claiming compensation on that ground. Page 41 of 49
56. So under such circumstances, the applicant is not entitled to claim any compensation on those heads and the same is rejected.
57. As regards the damage caused to the property is concerned, this Tribunal had appointed a Joint Committee and the Joint Committee had inspected the property and assessed the damage. As regards the compensation aspect is concerned, they have noted the following damage. Page 42 of 49
58. They have also calculated the cost of estimation of the damage caused to the applicant which reads as follows:-
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Total =Rs. 8,00,000/- (Rupees Eight Lakhs Ony)
59. They have also noted certain violations of non-compliance of Environmental Clearance which was produced as Annexure A1 to the report and Annexure A2 and A3 regarding the consent etc., If there is any violation found, then Tamil Nadu State Environment Impact Assessment Authority (SEIAA - TN) as well as the Tamil Nadu Page 44 of 49 Pollution Control Board are directed to take appropriate action against the 4th respondent for the violations, if any, committed by them of the conditions of Environmental Clearance and the Consent to Establish/Consent to Operation granted in accordance with law.
60. The applicant has not also taken any mitigating measures by making construction of the damaged portion, so as to avoid further damage to the property as well. So that aspect also will have to be taken into consideration while fixing the compensation.
61. So under such circumstances, considering the overall issues and also on the basis of the estimation made by the Joint Committee which is having an expert in the field, we feel that the applicant can be granted compensation of Rs. 8,00,000/-(Rupees Eight Lakhs Only) which the 4th respondent is liable to pay with interest @ 7% from the date of application till payment, and cost of Rs. 20,000/- for conducting the case and 1% of Rs.8,00,000/- (Rupees Eight Lakhs Only) i.e. Rs.8,000/- (Rupees Eight Thousand Only) will have to be deducted and that has to be paid to the account of the National Green Tribunal being the court fee payable for the compensation awarded, as no amount was quantified in the application and no court fee was paid thereon as per the provisions of the National Green Tribunal Act, 2010. If any personal compensation is claimed for the property damage or personal injury, then the applicant has to pay 1% of the compensation claim as Court fee. Since the amount was not quantified and it was left to the discretion of the Court, we feel that Rs. 8,00,000/- can be fixed as compensation and 1% of that amount (i.e Rs.8,000/-) will have to be Page 45 of 49 realised from the applicant as court fee for filing the application for compensation.
62. So, the application can be disposed of with the following directions:-
a) The applicant is not entitled for compensation for the mental agony, trauma etc. said to have been suffered on account of the displacement caused due to flood during the year 2015 and consequential monetary loss as claimed by him including compensation for loss of professional efficacy caused due to the trauma as claimed by the applicant.
b) The applicant is entitled to get a compensation of Rs.8,00,000/-
(Rupees Eight Lakhs Only) for the damage caused to the property as estimated by the Joint Committee, which the 4th respondent is liable to pay with interest @ 7% from the date of application (i.e 02.11.2016) till payment and the applicant is liable to pay a Court fee of 1% (i.e Rs. 8,000/-) for the compensation awarded which will have to be deducted from the compensation payable. If the amount is paid directly to the applicant by the 4th respondent, then 1% has to be remitted before this Tribunal in the account of the National Green Tribunal towards the Court fee. If the amount is not paid by the 4 th respondent within a period of three months, then the applicant is entitled to take steps for recovery of the amount either by filing an application before this Tribunal or before any other appropriate forum as contemplated under Section 25 of the National Green Tribunal Act, 2010.
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c) State Environment Impact Assessment Authority - Tamil Nadu (SEIAA - Tamil Nadu) as well as the Tamil Nadu State Pollution Control Board are directed to initiate action, if any, required if there is any violation found in complying with the conditions of Environmental Clearance and Consent granted against the 4th respondent in accordance with law.
d) The applicant is also entitled to Rs.20,000/- (Rupees Twenty Thousand Only) as costs which the fourth respondent is liable to pay to the applicant.
63. The points are answered accordingly.
64. In the result, the Original Application is allowed in part and disposed of with the following directions:-
(i) The applicant is not entitled for compensation for the mental agony, trauma etc. said to have been suffered on account of the displacement caused due to flood during the year 2015 and consequential monetary loss as claimed by him including compensation for loss of professional efficacy caused due to the trauma as claimed by the applicant.
(ii) The applicant is entitled to get a compensation of Rs.8,00,000/-(Rupees Eight Lakhs Only) for the damage caused to the property as estimated by the Joint Committee, which the 4th respondent is liable to pay with interest @ 7% from the date of application (i.e 02.11.2016) till payment and the applicant is liable to pay Page 47 of 49 a Court fee of 1% (i.e. Rs.8,000/-) for the compensation awarded which will have to be deducted from the compensation payable. If the amount is paid directly to the applicant by the 4th respondent, then 1% has to be remitted before this Tribunal in the account of the National Green Tribunal towards the Court Fee. If the amount is not paid by the 4th respondent within a period of three months, then the applicant is entitled to take steps for recovery of the amount either by filing an application before this Tribunal or before any other appropriate forum as contemplated under Section 25 of the National Green Tribunal Act, 2010.
(iii) The State Environment Impact Assessment Authority - Tamil Nadu (SEIAA - Tamil Nadu) as well as the Tamil Nadu State Pollution Control Board are directed to initiate action, if any, required if there is any violation found in complying with the conditions of Environmental Clearance and Consent granted against the 4th respondent in accordance with law.
(iv) The applicant is also entitled to Rs.20,000/- (Rupees Twenty Thousand Only) as costs which the fourth respondent is liable to pay to the applicant.
(v) The Registry is directed to communicate this order to the official respondents District Collector, Chennai District, Chairman - Tamil Nadu State Pollution Control Board and also State Environment Impact Assessment Page 48 of 49 Authority - Tamil Nadu (SEIAA - Tamil Nadu) for their information and also for compliance of the direction.
(vi) The Registry is also directed to ensure the recovery of 1% (i.e., Rs.8,000/- (Rupees Eight Thousand Only) of the compensation awarded namely, Rs.8,00,000/- (Rupees Eight Lakhs Only) from the applicant and remit the amount in the account of the National Green Tribunal towards Court fee payable for the compensation awarded.
65. With the above observations and directions, the Original Application is disposed of accordingly.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.21/2017 (SZ) 20th May, 2022. Sr. Page 49 of 49