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Judgment
1.This application is filed by the applicant who is stated to be an Environmentalist for a declaration that the building permit recommendations/approvals in respect of total extent of 14.26 Acre land situated in Survey No.15/1 and 33/1 in Kodenchery Panchayat, Kodenchery Village, Kozhikode Taluk, Kaithapoyil, Kozhikode District mentioned in the schedule to the application and granted by the 14th respondent., Secretary, Kodancheri Grama Panchayat to 18th and 19th respondents viz., M/s. Corpvale Projects Pvt. Ltd., represented by its Managing Director, Markaz Commercial Complex and M/s. Cliffvale Projects Pvt Ltd., represented by its Managing Director, Markaz Commercial Complex, as void ab initio and consequently to direct the respondents 15 to 19 to jointly and/or severally restore/restitution of the ecology/environment of the schedule property in its original shape as existed before the commencement of construction and to direct the concerned respondents/Statutory Authorities to take appropriate legal action against the 15th to 19th respondents for putting up illegal and unlawful constructions at schedule property without seeking prior Environmental Clearance (EC) and in violation of the conditions prescribed in the EC.
It is admitted that the same applicant has earlier filed Application No.1 of 2015 before this Tribunal, seeking prevention of ongoing construction in Survey No.15/2, based on a direction issued by the MoEF in the year 2013. In the said Application there was an interim order passed by this Tribunal. It is the case of the applicant that in the application filed by the 17th respondent for vacating the interim order, the development agreement signed dated 15.9.2013, between 18th and 19th respondents/owners and 17th respondent/builder came to be referred. It is the case of the applicant herein that after seeing the Development Agreement he found that the schedule property is also situated in Kodenchery Village and is covered by the directions of MoEF dated 13.11.2013 which according to the applicant prohibits any one from carrying on construction activity in Kodenchery Village. He has also stated that the said village is declared as Ecologically Sensitive Area (ESA) as per the direction of the first respondent of the year 2013. He also stated that a High Level Working Group (HLWG) constituted by the Government of Kerala, in the light of Ecologically Fragile Land (EFL) notified in 2013 has recommended that no clearance shall be given for developmental work without Environment Impact Assessment (ESA) and no sanction for construction of building exceeding 20,000 sqm shall be permitted. The sixth respondent viz., The Bio Diversity Board of Kerala is stated to have placed Kodenchery and Nellippoyil Villages among others in Kozhikode District under Ecologically Sensitive Areas. Inspite of the same, Hon'ble Ministers have laid foundation for various projects of the 16th respondent Markaz Knowledge City Trust, in violation of Dr. Kasturi Rangan's Report and Dr. Madhav Gadgil's Report. The applicant has also referred to various documents viz., the Sale Deed and also documents relating to the construction of residential tower and flats and stated that the 9th respondent - The Chief Town Planner, Thiruvananthapuram and 14th respondent - Kodancheri Grama Panchayat have violated Environmental Laws deliberately against the Notification of the first respondent MoEF & CC and therefore the recommendation of construction activities by the 14th respondent is illegal. The applicant has also stated about the existence of various flora and fauna in the area and according to him the resolutions of the National Forest Policy, 1988 and consequentially the provisions of forest conservation are being violated by issuing such permit. He also relies upon the website of the sixth respondent and states that the activity of the 16th respondent is covering large extent of area resulting in disaster to ecology and environment in Western Ghats. With the above pleadings, the applicant has chosen to file the present application.. It is clear from the pleadings of the applicant that he challenges the building permit given to Sulaiman Puthiyedath, Managing Director, M/s. Cliffvale Projects Pvt. Ltd., issued by the 14th respondent Koancheri Grama Panchayat dated 26.7.2013 in respect of Survey No.15/1 with a plinth area of construction of 16,524 sq.m. as it is seen in the permit dated 26.7.2013.
The prayer made in the present application as well as the earlier application filed by the applicant himself in Application No.1 of 2015 are the same except that names of the project proponents which are different. This Tribunal in the final order in Application No.1 of 2015 dated 31.8.2015 while dismissing the application has held that there is no bar for the Municipality from issuing permit and in as much as the construction was to the extent of 16,699 sqm, there is no necessity for EC under the EIA Notification 2006, however, by giving certain directions. The operative portion of the said order is as follows:
''Even though we have to necessarily arrive at a conclusion that respondent Nos.14 to 17 in the present proposed scheme of construction in the extent of 16,699.32 Sq.m which is less than 20000 Sq.mt is not required to obtain prior EC as per the EIA Notification 2006, we are of the considered view that certain environmental safeguards are to be taken which are more of a guideline and directions to the State Pollution Control Board (SPCB). We are in fact informed that certain anti environmental activities are proposed to be done for making access to the project area. We also note that there are allegations of cutting of trees. If that is so, the PCB along with the authorities under the relevant Act for preservation of trees shall inspect the spot and find out the real position. In the event of any trees illegally cut, the authorities concerned shall initiate immediate action in accordance with law which shall include afforestration in sufficient number and also restoration of damages which might have been caused to the hilly terrain. The authorities concerned in this regard shall do all things necessary expeditiously in order to avoid any further damage and also to restore the damage caused to the hilly terrain.
With the said direction the application stands dismissed in following terms:-
The applicant is not entitled for the relief claimed in the application. The application No.1 of 2015 stands dismissed.
There is no bar for respondent Nos.9 to 11 to issue permit for the project of respondent Nos.14 to 17 for the scheme of construction in the extent of 16,699.32 sq.m. However, the same shall be subject to the condition that SPCB shall ensure all necessary protections regarding the solid waste management in the scheme, effluent treatment plants and maintenance of the same periodically.
The 12th respondent is not liable for any action for suppression. Accordingly, M.A.No.169 of 2015 stands dismissed and consequently M.A.No.150 of 2015 is also dismissed. Interim order granted against respondent No.14 to 17 dated 21.04.2015 stands vacated, however, subject to the conditions issued against the said respondents.
The 3rd respondent along with the SPCB shall inspect the spot and assess as to whether any trees have been cut in the site and damage caused to hillock while creating access and if so, pass appropriate orders of remediation which shall be effected by respondent Nos.14 to 17 at their cost within a period of 4 weeks from the date of such assessment and such assessment shall be completed within two weeks from the date of receipt of a copy of this order and the 3rd respondent along with 8th respondent shall ensure the effective implementation of this order.
If the proposal is approved, respondent Nos.14 to 17 shall ensure that no damage is caused to environment and no trees are cut in the area without following the due process of law.''
The facts of the present case are absolutely similar and as stated above, the extent referred relating to the constructed area of the project is 16,524 sqm which is also less than 20,000 sqm. Therefore, in such case prior EC is not required. But the concern of the applicant appears to be that if in a large extent of 125 Acres of land called Markaz, if such individual buildings are put up by individual owners, though the individual buildings are of less than 20,000 sqm of built up area, all extents put together will be more than 20,000 sqm in the area of 125 Acres and come under the concept of cluster approach and therefore the Environment Impact Assessment should have been made.
The learned counsel appearing for the applicant, though factually admitted that facts are similar, would again refer to the direction issued by the MoEF dated 13.11.2013 by virtue of the power conferred under Section 5 of the Environment (Protection) Act, 1986. As per the said direction, it is clear that HLWG has identified certain areas as having high biological richness. For the purpose of understanding the points raised by the applicant it is relevant to extract the directions issued by the MoEF dated 13.11.2013 which are as follows:
''WHEREAS, Western Ghats is an important geological landform on the fringe of the west coast of India. It is the origin of Godavari, Krishna, Cauvery and a number of other rivers. It extends over a distance of approximately 1500 km and traverses through Six States viz., Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu.
And whereas, Western Ghats is a global biodiversity hotspot and a treasure trove of biological diversity. Western Ghats harbour many endemic species of flowering plants, endemic fishes, amphibians, reptiles, birds, mammals and invertebrates. It is also important centre of evolution of economically important domesticated plant species such as pepper, cardamom, cinnamom, mango and jackfruit. Western Ghats has many unique habitats which are home to a variety of endemic species of flora and fauna such as Myristica swamps, the flat-topped lateritic plateaus, the Sholas and wetland and rivenue ecosystems. UNESCO has included certain identified parts of Western Ghats in the UESCO World Natural Heritage List because Western Ghats is a Centre of origin of many species as also home for rich endemic biodiversity and hence a cradle for biological evolution;
And whereas, the Ministry of Environment and Forests (MoEF) has constituted a High Level Working Group (HLWG) under the Chairmanship of Dr.K.Kasturirangan, Member (Science), Planning Commission vide office order dated 17.08.2012 to study the preservation of the ecology, environmental integrity and holistic development of the Western Ghats in view of their rich and unique biodiversity;
And whereas, the HLWG submitted its report to the MoEF on 15th April, 2013 and it was thereafter put in public domain by hosting on the website of the Ministry, and also disseminated to all stakeholders including the six State Governments of Western Ghats region for their feedback and comments. All stakeholders were also invited to offer their views on the HLWG report. Thereafter, on completion of a transparent process, the Ministry has accepted the HLWG report "ïn principle" with certain stipulations;
And whereas, HLWG noted that approximately 60 percent of the Western Ghats region is under cultural landscape i.e., it has human dominated land use of settlements, agriculture and plantations (other than forest plantations) and around 40 per cent of the land area is under natural landscape. Of the natural landscape, the biologically rich areas, with some measure of contiguity are roughly 37 percent of the Western Ghats which is 59.940 km2. HLWG identified this 37% of natural landscape having high biological richness, low forest fragmentation, low population density and containing Protected Areas (Pas). World Heritage Sites (WHSs) and Tiger and Elephant corridors as an Ecologically Sensitive Area (ESA).
And whereas the list of State-wise, District-wise and Taluk-wise villages in ESA identified by the HLWG is at Annexure -A;
And whereas, because of unprecedented threats to natural landscape of Western Ghats region by development projects and urban growth, the Working Group has recommended a non-tolerance policy with respect to highly interventionist and environmentally damaging activities like mining or polluting industries HLWG has highlighted the need for urgent action for protection of biologically rich diverse and natural landscape of Western Ghats
And whereas keeping in view the above immediate action is required to be taken by the Central Government in public interest in light of Rule 4(5) and Rule 5(4) of the Environment (Protection) Rules, 1986 as amended from time to time to reserve the environmental integrity of the Western Ghats
Now therefore in exercise of powers conferred under Section 5 of Environment (Protection) Act, 1986, the following directions are hereby issued:
The following category of new and/or expansion projects/activities shall be prohibited in ESA from the date of issue of thee directions except these cases which have been received by EACs and MoEF or SEACs/SEIAA before the date of putting HLWG report on the website of the Ministry, i.e. 17.4.2013 and which are pending with EACs/MoEF or SEACs/SEIAAs. Such projects will be dealt under the guidelines and rules applicable at the time of application before the respective EAC's/MoEF or SEAC'/SEIAAs. Apart from such cases no pending case or any fresh case shall be considered by the EAC's/MoEF or SEAC's/SEIAAs from the date of issue of these directions.
(a)Mining, quarrying and sand mining
(b) Thermal Power Plants
(c) Building and construction projects of 20,000 sq.m area and above
(d) Township and area development projects with an area of 50 ha and above and for with built up area of 1,50,000 sq.m ad above
(e) Red category of industries.''
Ecologically Fragile Land (EFL) is a statutory categorisation as per the State law viz., Kerala Forest (Vesting and Management of Ecology Fragile Lands) Act, 2003. On the other hand, Ecologically Sensitive Area (ESA) is a declaration to be issued by the Government of India in MoEF & CC under the Environment (Protection) Act, 1986 and a draft notification has been issued in that regard . The Government of India is yet to issue the final notification on declaration of ESA in the Western Ghats. However, the Government of India as it is seen in the direction issued under Section 5 of the Environment (Protection) Act, 1986 dated 13.11.2013, has agreed the report of the HLWG in principle and it was in those circumstances pending Notification on declaring the ESA, the MoEF & CC has issued the direction as extracted above. A careful reading of the direction makes it clear that it is the reiteration of the provision of EIA Notification, 2006 and in respect of buildings and construction projects which are directed to be considered by EAC/MoEF & CC is in respect of 20,000 sqm built up area and above. On the facts of the present case, as it is admitted that the built up area is less than 20,000 sqm, there is absolutely no bar for the Municipality to grant permit and the same cannot be said to be against the EIA Notification, 2006 or even against the directions issued by MoEF dated 13.11.2013. The apprehension expressed by the learned counsel appearing for the applicant that such cluster approach may go beyond the permissible limit of extent and will ultimately amount to destroying the environment in the ESA is a matter to be decided as a matter of policy by the Government of India and not for this Tribunal.
It is not the case of the applicant that it is the same person namely applicant in Application No.1 of 2015 is constructing another building and admittedly it is a different person who decides to construct the building. In such circumstances, we do not understand as to how the cluster approach can be acceptable on the factual matrix of this case. Be that as it may, as it is stated earlier, it is for the makers of Law to decide the issue. That apart, it is certainly not open to the applicant to re-agitate the matter again on the same subject-matter, simply because there has been some dispute between the parties. In the light of the final decision given in Application No.1 of 2015, the present application will certainly amount to re-agitating the same issue which is an abuse of process of court. Re-litigation was held to be an abuse of process of court by the Hon'ble Supreme Court in K.K. MODI V. K.N. MODI (1998(3) SCC 573) as under:
"43. The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraph 18/19/33 (p344) explains the phrase "abuse of the process of the court" thus:
This term connotes that the process of the court must be used bonafide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse or process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.
One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted Undoubtedly, it is a matter of the court's discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding."
Again in respect of an act or permit which is stated to be an issue in 2013, the applicant has chosen to file this application at this point of time which is certainly delayed and barred by limitation.
For the reasons stated above and looking at any angle, we are of the considered view that the applicant is not entitled for any relief, as sought for. Accordingly this application fails and the same is dismissed. No cost.