BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Application No.297 of 2014 (SZ)
IN THE MATTER OF:
M/s. Tril Info Park Limited Represented by its Director Ramanujam IT Park City Tambaram Rajiv Gandi Salai (OMR) Chnnai-600 113.
...
Applicant(s)
AND The State Environment Impact Assessment Authority Represented by its Member Secretary Panagal Malaigai Saidapet Chennai-600 015
...
Respondent(s)
Counsel appearing for the Applicant: M/s. S. Balachandran
Counsel appearing for the Respondents: Mrs. P. Mahalakshmi for R-1
ORDER PRESENT: HON’BLE SHRI JUSTICE M. CHOCKALINGAM, JUDICIAL MEMBER HON’BLE PROF. Dr. R. NAGENDRAN, EXPERT MEMBER ---------------------------------------------------------------------------------------------------------------Dated 13th January, 2015 ---------------------------------------------------------------------------------------------------------------1
This application is brought forth by the applicant M/s. Tril Info Park Limited represented by its Director seeking to set aside the proceedings of the State Environment Impact Assessment Authority, (SEIAA), the only respondent herein, made in Reference SEIAA-TN/F-2352/2014 dated 12.11.2014 and also direct the respondent to consider the application made by the applicant for the proposed expansion dated 21.04.2014 seeking for the proposed expansion. 2. The case of the applicant in short is that the applicant herein is a joint venture company between the Tamil Nadu Industrial Development Corporation (TIDCO), Tata Realty and Infrastructure Ltd., and Indian Hotels Company Limited established in the year 2008 for the purpose of development of information technology, Special Economic Zone (SEZ). The applicant applied for Environmental Clearance (EC) on 08.04.2009 and also applied to the Tamil Nadu Pollution Control Board (Board) seeking for Consent for Establishment (CFE) under Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and Water (Prevention and Control of Pollution) Act, 1974 (Water Act). The CFE was granted vide the proceedings dated 30.09.2009 of the Board. Subsequently, Consent to Operate (CFO) was granted by the Board in the proceedings dated 24.07.2012 under the above Acts. The CFO was granted for construction of InfoPark comprising of IT Park, Integrated International Convention Centre, Hotel, Residential and Retail Complex in a total extent of 3,75,328 m2 . The applicant also applied for the project in Block-C and Block-U for a total built up area of 1,26,162 m2 in the application dated 24.07.2012. 3. The Board sent a communication dated 24.09.2013 informing the applicant to the effect that while the total built-up area of the entire project is 5,28,277.24 m 2 the approved construction area is 4,67,172,04 m 2, the construction made in the 2
basement, ground and stilt were not included in the Environment Impact Assessment(EIA) Report and that the constructed area exceeded the extent specified in the CFE. The applicant sent a communication through the letter dated 09.10.2013 addressed to the respondent explaining that the EIA clearance for construction of 3,75,238 m2 includes processing and non-processing zones. But, based on the SEZ Regulations there was a modification from the initial proposal for the areas of residential and commercial which were converted into IT or ITES Office Blocks. The respondent in the letter dated 23.10.2013 directed the applicant to obtain a certified compliance status of conditions imposed in the EC already issued by the MoEF from its regional office. 4. The applicant in the letter dated 27.11.2013 stated in reply that as the applicant has introduced five- level parking for the campus as per the Chennai Metropolitan Development Authority (CMDA) requirements, the total built-up area has increased in the new plan to extent of 6,65,760 m 2 covering processing zone of 6,41,520 m2 in Phase I and 1,74,348 m2 in Phase II and Non-Processing Zone consisting of service apartment and convention centre in an extent of 24,240 m 2 as against 3,75,328 m2 . It was also mentioned that various wastewater recycling and renewable energy arrangement for the campus and over all fresh water and energy requirements of the campus maintained within the quantity approved by the respondent. As there is no additional requirement of electricity and water, the applicant requested for ratification of the variation in the built-up area and also requested the MoEF seeking its compliance certificate to enable the applicant to get EIA from the respondent. The Director, MoEF visited the site on 19.12.2013 and made detailed inspection and provided the compliance certificate in favour of the applicant. 3
5. The respondent vide letter dated 10.10.2014 asked the applicant to furnish the certified compliance status and fresh applications in Form-I and Form-II which were filed on 21.04.2014 seeking EC for the proposed expansion. The respondent had referred to the EIA Notification dated 14.09.2006 by a letter dated 22.04.2014 informing about the penal clauses under Environment (Protection) Act, 1986 (E P Act, 1986) which was only a routine one without any reference to applicant’s EIA clearance and EC and also sought an apology letter for the deviation in the area and change in the product mix vide letter dated 04.08.2014. Despite all the above, the respondent sent the impugned letter dated 12.11.2014 stating about the stay granted on 21.05.2014 by this Zonal Bench for the Office Memorandum of the MoEF dated 12.12.2013 in Application No. 135 of 2014 and the application of this applicant for EC will be processed only after receipt of the orders of the Tribunal in this matter and further informing that as the project proposal of the applicant is included in the list of cases involving violations of the E P Act, 1986 the application stands deleted in the list of proposals under the process in SEIAA-TN. 6. The Office Memorandum of the MoEF dated 12.12.2012 deals with the cases of activities carried out such as construction/physical/operation without obtaining the required clearance under the EIA Notification, 2006 and or Coastal Regulation Zone (CRZ) Notification, 2011 and as such the activities of construction/physical/operation relating to the project which have been started at sites without any approval amount to violations under the E P Act, 1986. The applicant had already obtained all clearances including the clearance from the respondent and therefore, the Office Memorandum dated 12.12.2012 is not applicable to the case of the applicant. The applicant had already obtained EIA clearance and EC from the respondent and all other clearances and carrying out the 4
activities as permitted and the alleged violation of the built-up area is mainly due to shifting of open parking to the basement resulting in extra construction of the basement which is not a leasable area. The MoEF had provided a detailed statement of compliance. Hence, it is arbitrary and unreasonable to reject the application of the applicant after keeping the same pending for a very long time under the pretext of the pendency of the Application No. 135 of 2014 before the Tribunal. As the project is a joint venture with TIDCO with an investment of Rs. 3988 crore and already an investment of Rs. 2393 crore has been made and the project has come to a standstill with the consequences of escalation of cost etc. 7. The sole respondent, namely, the SEIAA has filed reply affidavit in which the SEIAA has stated that the applicant submitted a fresh application on 22.04.2014 for the proposed expansion activity for built up area of 6,65,760 m 2 along with the certified compliance report dated 30.04.2014 from the Regional Office of the MoEF. The Project Proponent also submitted the status report along with the copy of the inspection report dated 18.06.2014 of the District Environmental Engineer of the Board wherein it is specifically stated that there is violation of EC already given. On perusal of the application for the proposed expansion activity along with scrutiny of the details of construction permitted in the EC already issued in Letter No. SEEIATN/EC/8(b)/039/F.No.190/2009 dated 08.04.2009, it is obvious that the applicant herein has not only changed the original scope of the project, but also violated the provision of EIA Notification, 2006 by carrying out additional construction for a changed scope without EC. Thus, it is a clear case of violation of notification as per the existing guidelines. Denying the contentions in paragraph 9 and 10 of the affidavit of the applicant, the respondent states that even as per paragraph 1 of the Office Memorandum dated 12.12.2012, the EIA Notification, 2006 and its amendments 5
thereafter require all new projects or activities and/or expansion and modernization of existing projects or activities listed in Schedule to the said Notification with capacity beyond threshold limits prescribed there under to obtain prior EC under the provisions thereof, solely imposes certain restrictions on the setting up and expansion of industries’ operations or processes. Hence, the amendment brought in the Office Memorandum requires not only new projects or activities, but any activities of expansion and modernization of existing projects listed in the Schedule to the Notification beyond threshold limits prescribed therein to obtain the EC under the provisions thereof. 8. Though the Project Proponent furnished a letter of commitment and apology for the violation committed in the letter dated 22.08.2014, as per the procedure adopted by MoEF, the project has been delisted by the authorities and rejected as stated in the application. The application preferred by the applicant falls within the category of violation as per the provisions of the EIA Notification, 2006 and the guidelines dated 12.12.2012 and 27.06.2013 framed thereunder. Hence, action is being taken against the applicant as per the procedure laid down in the above Office Memoranda. Meanwhile, all the proposals involving violation have been held by the authorities for the reason that the Office Memorandum dated 12.12.2012 has been stayed by the Southern Zonal Bench of the National Green Tribunal in Application No. 135/2014 on 21.05.2014. Further, the letter regarding delisting is sent in such cases of violations noticed by the authority to ensure stopping of further constructions by the Project Proponents and to prevent the violation. The grounds raised by the applicant to the effect that the action is to be taken against the violation in accordance with the EIA Notification, 2006 are incorrect as the stay of the Office
6
Memoranda dated 12.12.2012 and 27.06.2013 restrained the authorities to process the applications of this nature. 9. The respondent is empowered only to grant prior EC under EIA Notification, 2006. It is only based on the Office Memoranda issued as an amendment thereafter bringing forth the guidelines for processing the applications for the grant of EC, prospective post facto clearance or even for expansion, modernization of the existing projects. Thus, it is obvious, unless and until the stay of the Office Memoranda is vacated, the respondent cannot proceed further in any manner to process the application which would amount to defiance of the order dated 21.05.2014 of this Zonal Bench of NGT. 10. The counsel for the parties are heard and the materials available are looked into.
The only point for determination by the Tribunal is
whether the
proceedings of the respondent in Reference SEIAA-TN/F-2352/2014
dated
12.11.2014 is to be set aside along with the direction that is asked for or not. 11.
Admittedly, the applicant made an application for (EC) before the
respondent and the EC was granted on 8.3.2009 by its proceedings as found in Annexure -1.
On an application made by the appellant before the Tamil Nadu
Pollution Control Board (Board) for CFE under the Air Act, 1981 and the Water Act 1974, the same was granted by the
Board’s Proceedings dated 30.09.2009 as
found in Annexure - 2. Following the same, the CFO was also granted by the Board by an order dated 24.7.2012 as found in Annexure - 3. From the perusal of the documents, it is evident that the CFO was also granted for the construction of Info Park comprising of IT Park, Integrated International Convention Centre, Hotel, Residential and Retail Complex with a total area of 3,75,328 m 2. The applicant had applied for project in Block – C and Block - U for a total built-up area of 1, 26,162 7
m2 by its application dated 24.7.2012.
A communication by way of reply was sent
by the Board on 24.09.2013 informing the applicant that while the total built-up area of the entire project was 5,28,277.24 m2., the approved construction area was 4,67,172.40 m2.
It was also mentioned therein that the construction made in the
basement, ground and upper stilt were not included in the EIA report and thus the constructed area had exceeded the extent specified in the CFE. The applicant by a letter dated 9.10.2013 gave an explanation that it was only a modification from the initial
proposal for residential
converted
into IT or ITES
explanation
and commercial areas and the same have been
Office Blocks.
The respondent
directed the applicant to obtain a certified
on receipt of the
compliance status of
conditions imposed in the EC already issued to the applicant from the Regional office of the Ministry of Environment and Forests, Southern Zone, Bangalore as found in Annexure - 6.
Accordingly, the applicant sent a communication dated 27.11.2013
and introduced Five-Level parking for the campus as per CMDA requirements. Due to these changes the total built-up area as per the new plan has increased to 6,65,760 m2 covering the processing zone and also the non processing zone.
The
Director of MoEF made an inspection of the site on 19.12.2013 and provided the statement of compliance as found in Annexure - 8 and it was in favour of the applicant. The applicant sought for a certificate of compliance and also filed a fresh application in Form 1 and 2 and also Form 1A for EIA on 21.4.2014 seeking EC for the proposed expansion. 12. The respondent pointed out to the EIA Notification, 2006 and informed about the Penal Clauses under the Environment (Protection) Act, 1986 as found in Annexure-10.
A letter of apology was sought for from the applicant by the
respondent in its letter dated 4.8.2014 which as found in Annexure-11. While the 8
matter stood so, the respondent sent a communication dated 12.11.2014 stating that the official memorandum of MoEF, Government of India dated 12.12.2012 has been stayed
by the National Green Tribunal. Southern Zone in Application No. 135 of
2014 by its order dated 21.5.2014 and wherein the further orders were awaited and the application filed by the applicant for EC pending in the hands of the respondent would be processed only after the final disposal of the Application No. 135 of 2014. It was also informed to the applicant that the project proposal of the applicant was included in the list of cases involving violations of E P Act, 1986 and it stands delisted in the list of proposals under process in the SEIAA, Tamil Nadu. background this application is brought forth by the applicant seeking
In the above the above
reliefs. 13. Apart from the narrated facts and circumstances which compelled the applicant to approach the Tribunal,
the learned. counsel for the applicant would
submit that the official memorandum of MoEF, Govt. of India dated 12.12.2012 has no application to the project or for the further expansion sought for and hence the stay of the said memorandum granted by the Tribunal in Application No.135 of 2014 at no stretch of imagination can be applied to the present factual position. He also made all the attempts to distinguish the contents of the Office Memorandum dated 12.12.2012 with the facts of the case on hand and he would appeal that relief has to be granted. 14.
In answer to the above, the counsel for the respondent vehemently
pointing out the official memorandum issued by the MoEF dated 12.12.2012 would submit that the said memorandum squarely connected the application to the project of the applicant.
It is true that such communication was addressed and would
further add that till the disposal of the Application No.135 of 2014 and without 9
knowing the final result of the application, the application made by the applicant cannot be processed or ordered
to be passed.
The Court, after anxious
consideration made feels that it is not necessary to go into the validity or otherwise of the Office memorandum dated 12.12.2012 since it is actually pending in Application No.135 of 2014.
Admittedly, the stay has also been granted in respect of the
application on the Office Memorandum. It is not in controversy that the applicant has obtained the EC and also the CFE and CFO from the Board for the project. Admittedly, the application has been filed on 21.4.2014 which is pending in the hands of the respondent without any consideration or orders being passed.
The
contention put forth by the applicant’s side that the Office Memorandum has no application to the expansion of the present project of the applicant and also the contention put forth by the respondent’s side that the official memorandum is squarely applied to the present project though it is an expansion does not arise for consideration.
Hence, it need not be considered at this stage and also the
consideration of the same would amount to entering into merits of the matter which the Tribunal is not called upon to do at this stage.
What is all required by the
applicant is only to issue a direction to respondent authority to consider the application of the applicant pending for the past eight months and pass orders thereon.
Once an application is filed before an authority, the authority has to in
exercise of its power pass suitable orders thereon in accordance with law.
It is not
for the Court or the Tribunal to issue a direction to exercise the said power in a particular way or mode but it would be fit and proper to issue a direction to the authority to exercise its power and dispose of the application in accordance with law.
10
15.
Accordingly, in the instant case, it is suffice to issue a direction to the
respondent to consider the application of the applicant dated 21.4.2014 and pass suitable orders thereon, in accordance with law. With the above observations and direction, the application is disposed of. No cost.
Justice M. Chockalingam Judicial Member Chennai Dated, 13th January, 2015 Prof. Dr. R. Nagendran Expert Member
11
