Mrs. Shaila vs Government of India And Ors

We have heard learned counsel appearing for the applicant in both these applications as well as the learned counsel for the respondents at length.

In Application No.284 of 2014 the applicant who is stated to have entered into a construction agreement with 8th respondent therein viz., M/s. Olympia Infratech Pvt. Ltd., for putting up construction of basement + ground + 19 floors to whom a flat (11B) was allotted in 11th floor, has prayed for a direction to initiate appropriate legal action against 8th and 9th respondents from putting up construction in Survey Nos.11/2, 13, 15, 19, 20/3, 20/4, 20/5, 20/6, 20/7, 21/1, 21/2, 21/3, 21/4, 23, 24/1, 24/2, 30/1, 30/2, 30/3, 31/2, 31/3, 33, 34, 35/2, 38/1 and 5/2, 6/1A, 1B, 2, 3A, 3B, 5A, 5B, 6A, 6B(pt), 8pt, 9/1, 2, 10, 11/1A, 1B1, 1B2, 12/1pt, 3pt, 4pt, 13pt, 18/1A, 1B, 19, 20/3, 4, 5, 6, 7, 9A, 9B, 9C, 21/1, 2, 23/1, 24/1A, 2A & 28/1 of Navalur Village without obtaining permission from the Tamil Nadu State Coastal Zone Management Authority, the 4th respondent therein.

The case of the applicant is that the 8th respondent has commenced construction in the land which is situated along the Buckingham Canal in Survey No.242 of Navalur Village and the same is covered by the Coastal Zone Regulation Notification, 1991 and 2011. According to her, the construction has been proceeded with, without obtaining clearance from the authorities concerned. She has stated that the Environmental Clearance (EC) has been obtained for the II Phase in the name of the 9th respondent on 21.4.2014. She has stated that the construction activity of the 8th respondent is outside 100 meters from high Tide Line along the Buckingham Canal. However, in the 2nd Environmental Clearance (EC) it is mentioned that the portion of the land is falling under the CRZ which was stated to be subsequently restricted to the area not falling under the CRZ and therefore the Environmental Clearance from the Coastal Zone Regulatory Authority is not necessary. It is the case of the applicant that the 8th respondent has manipulated the sketch as if there was an existence of a road between his property and the Buckingham Canal situated in Survey No.242 of Navalur Village and there was no such road in existence for their 2nd phase which was advertised by the 8th respondent itself. Therefore, according to her, the 8th respondent should have obtained permission from the Coastal Zone Regulatory Authority for executing the project. In as much as such permission has not been obtained, the applicant has prayed for taking action against 8th and 9th respondents, as stated supra.

The 8th respondent in the reply has stated that they have obtained planning permission and approval from the authorities after the purchase of land. On verification of the document, planning permission was issued by Mamallapuram Local Planning Authority on 1.2.2010. After the approval of the project by the Director of Town & Country Planning on 10.3.2008, Environmental Clearance (EC) was granted by MoEF & CC on 18.2.2009. It is stated that the construction of 1082 flats in ''Olympia Opaline'' was completed in 2013 and 1017 flats were handed over, out of which 761 purchasers have occupied the flats. It is the case of the 8th respondent project proponent that the applicant has waited all along and having seen that the entire project is completed has chosen to file this application on the ground of Coastal Regulation Zone Notification, 2011.

It is the further case of the 8th respondent that under the Coastal Regulation Zone Notification, 2011 the area falling under CRZ - III an extent of 100 meters from the tidal influenced water body is declared as ''No Development Zone'' and development is permitted beyond 100 meters of the tidal influenced water body. It is stated that the construction put up by the 8th respondent is beyond 100 meters and the same is in accordance with the plan approved by the authorities and therefore there is no violation of the CRZ Notification. It is also stated that 100 meters area from the tidal influenced water body viz., Buckingham Canal was developed by the 8th respondent as a park pursuant to the letter dated 23.1.2009 by the Navalur Panchayat. It is further stated that while the construction of ''Olympia Opaline'' (Phase I) was undertaken by the 8th respondent, the adjacent site was developed by the 9th respondent by construction of the flats named ''Olympia Sequel'' (Phase II). The approval of the plan was granted by the Mamallapuram Local Planning Authority on 6.8.2012 and EC was granted by SEIAA on 21.4.2014. It is the case of the 8th respondent that since the western side of the land falls within the tidal influence of Buckingham Canal, the said respondents made a request to the Department of Remote Sensing, Anna University to map the high tide line and the Director of Remote Sensing, Anna University mapped and marked 100 meters from the Buckingham Canal in the field plan dated 5.2.2007. As the Coastal Regulation Zone Notification, 2011 permits construction beyond 100 meters, the 8th and 9th respondents put up construction in the concerned place, which according to them, is beyond 100 meters and that therefore it is permissible. It is also stated that the 9th respondent has made an application to the Zonal Coastline Authority for construction of a school in the area falling under the ''No Development Zone'' 100 meters area (comprised in SF No.6 pt, 8pt and 12 pt of Navalur Village) which according to the 8th respondent is permissible under the Coastal Regulation Zone Notification, 2011. It is stated that the Collector of Kancheepuram District made a personal inspection on 6.7.2012 and based on the recommendation, the District Coastal Zone Management Authority viz., the 4th respondent has approved the construction of the school in the area. Therefore, it is stated that the construction put up by the 8th and 9th respondents are beyond 100 meters, as marked by the Institute of Remote Sensing, Anna University and in accordance with the approval granted by the authorities concerned.

The 5th respondent Board in its report dated 7.5.2015 has stated that after ''Consent to Establish'' was granted to the 8th respondent, the unit was issued with a notice on 10.1.2013 asking for the total built up area to be informed and after completion of construction of the residential complex the unit has applied for ''Consent to Operate'' on 1.4.2013 in respect of 1,63,528.86 m2 instead of 1,66,091.35 m2 approved as per the ''Consent to Establish'' issued. Therefore, additional details were called for by the Board on 26.2.2014 and according to the Board the 8th respondent has not furnished details till date. It was in those circumstances the Board inspected the unit on 10.4.2015 and recommended issuance of the following directions to the 8th respondent unit in the proceedings dated 13.4.2015:

i. The unit shall remove the pipe line provided to discharge the treated/untreated sewage into the Buckingham canal immediately.

ii. The unit shall provide suitable dewatering system to dewater the sludge generated from the sewage treatment plants immediately, so as to stop the disposal of sludge outside the premises through lorry tankers.

iii. The unit shall provide necessary EMFM at the outlet of each of its sewage treatment plant so as to monitor the quantity of sewage utilized for toilet flushing and gardening.

iv. The unit shall provide organic waste convertor to convert the organic waste to manure within their premises.

v. The unit shall mark the 100 m line from the HTL of Buckingham cannel on their compound wall to identify the no development zone under CRZ notification 2011.

vi. The unit shall furnish the revised water and wastewater balance, since it started establishing one more STP of 250 KLD.

vii. The unit shall comply with all the conditions as stipulated in Consent to Establish orders under Water and Air Acts.

According to the 5th respondent Board, compliance report has not been received so far and therefore ''Consent to Operate'' has not been granted. In this regard it is relevant to note that the learned counsel appearing for the 8th respondent has submitted that compliance measures will be carried out and suitable reply will be sent to the Board for its consideration. According to the learned counsel, discharge referred to in the notice is not relating to treated or untreated sewage, but it is the storm water which is impermissible in law to be discharged.

We are not expressing any opinion on the merit of the notice issued by the Board at this stage. It is always open to the 8th respondent to reply to the notice of the Board and it is for the 5th respondent Board to take appropriate decision in the manner known to law. We have to observe that the Remote Sensing Unit of the Anna University has only measured the distance as 100 meters and does not state anything about the tidal influence.

In Application No.156 of 2015, the applicant who is stated to be a social worker for protection of environment has prayed for a direction to the respondents 1 to 6 to remove the huge quantity of construction debris and filling materials dumped inside the Buckingham Canal in Survey No.242, Navalur Village, Thiruporur Taluk, Kancheepuram District for formation of an illegal road by the 7th and 8th respondents and restore the eco system in Buckingham Canal and also to direct the respondent authorities to revoke and cancel all the clearances issued including the planning approval granted by the authorities concerned. In so far as it relates to the laying of 30 feet road inside the Buckingham Canal the applicant has also stated that the canal is 750 kilometers long between Kakinada in Andhra Pradesh and Cudalore in Villupuram District. However, for the past few decades, uncontrolled encroachments and commercial and residential developments are being carried out blocking the rain water canals leading the Buckingham Canal and therefore the said canal had dried up in many areas. However, it remains a waterway, connecting Coovam River in Chennai. It is the case of the applicant that by the conduct of the 7th and 8th respondents in developing a large scale project near Buckingham Canal has resulted in the obstruction to free flow of water. According to the applicant, the 7th and 8th respondents have encroached upon a large portion of the Buckingham Canal by putting up the construction. The applicant has submitted a representation on 25.6.2015 to the District Collector, Kancheepuram District requesting to take appropriate action. However, till July 2015 no action was taken and therefore he was compelled to approach this Tribunal by fling this application.

His main intention is stated to be the removal of construction debris dumped illegally by the 7th and 8th respondents in the Buckingham Canal situated in Survey No.242. It is also stated that the 7th and 8th respondents have fabricated certain documents, showing as if there is an existing 30 feet road on the eastern side of Buckingham Canal i.e., on the back side of the constructions put up by the 7th and 8th respondents.

It is the case of the applicant that if only the existence of such road was brought to the notice of the authorities, the authorities would not have granted any permission at all for the purpose of putting up of the construction. It is the case of the applicant that in any event the authorities ought to have conducted proper inspection before granting permission which has not been done in the present case.

The 2nd respondent in the reply dated 26.11.2015 has stated that the Buckingham canal is a 426 km long salt water navigation canal, running parallel to the Coromandel Coast of South India from Peddaganjam in Andhra Pradesh to Villupuram District in Tamil Nadu. The canal connects most of the natural backwaters along the coast to the port of Chennai. It was constructed during the British rule and was an important waterway during the late 19th and 20th centuries. The bed level of the Buckingham Canal is 1.83 m below the mean sea level in order to facilitate the required depth of water for navigational purpose in those days. However, the canal has lost its significance as an inland waterway in course of time due to rapid urbanization. It is also stated that the canal runs approximately 1 km back from the coastline. The Cooum river connects the canal to the Bay of Bengal in the centre of Chennai. The portion north of the Cooum river is known as North Buckingham canal and the portion south of the Cooum as the South Buckingham canal. The length of the Buckingham canal in Tamil Nadu is 170 km out of which approximately 31 km runs within the city limits of Chennai.

It is stated that as per the revenue records S.F.No.242 of Navalur Village in Thirupporur Taluk of Kancheepuram District measuring an extent of 18.47.5 hectare is classified as Buckingham canal and this portion of the land is actually the backwater in Muttukkadu and acts as a balancing basin to receive the high tidal waves during active monsoon rains when there would be stagnation of water in the Muttukkadu mouth with rise in the level of water for a few hours until the sea water recedes. As regards the topography of the area, the width of the canal is 60m and there is a jeep track towards the eastern side of the canal. There is also a bank on the western side of the Buckingham canal and the extent of land between Old Mahabalipuram Road to the back water flood plain on the western side is the actual balancing basin when there is an upsurge of sea water due to tidal waves. Hence, any construction abutting the ridge of the basin, more specifically when the basin is intended to accommodate the tidal waves in its natural terrain should not be encouraged, even if such lands are owned by any private person since there would be inundation of water for a few hours at the time of entry of sea water into this basin due to tidal action. It is stated that the Public Works Department authorities, after coming to know of the project of the 7th and 8th respondents have stopped any further dumping of debris and earth into Muttukkadu back water flood plain besides issuing strict instructions to remove the dumped debris and earth from the canal portion. The temporary road formed by the 7th and 8th respondents has been directed to be removed and a notice has been sent to the 7th and 8th respondents in this regard. It is stated that if the temporary road is not removed within the specified date, the same would be removed by the Public Works Department and the charges would be collected from the said respondents.

The District Collector, Kancheepuram viz., the 4th respondent in the status report dated 30th October, 2015 has stated that the 7th respondent has constructed flats in Survey No.38/1 of Navaloor Village, Thiruporur Taluk. The company has another land in Survey No.39 lying south to Survey No.38/1 of Navaloor Village. The Land in Survey No.39 is a vacant ground. It is stated that the company has formed a road in Survey No.242 Buckingham canal for a length of one kilometer with a width of 200 feet on the eastern side of the canal to bring the materials from Survey No.38/1 to 39 of Navaloor Village. If the road has been shown as access for the approval of planning permission, it has to be rejected as the road has been formed in poramboke land i.e., Buckingham canal. Regarding the dumping of construction debris or filling materials in Buckingham canal, the 5th respondent took action on the basis of the order of this Tribunal and stopped the dumping completely. The said land comprised in Survey No.242 belongs to Public Works Department and the Collector has instructed the Executive Engineer concerned to take action to remove the encroachments in Buckingham canal.

There is no appearance on behalf of the applicant in Application No.284 of 2014. We have also heard Mr.Syed Nurullah Sheriff, the learned counsel appearing on behalf of MoEF & CC and Mr. Abdul Saleem, the learned Special Government Pleader.

It is the submission of Mr.Thanka Sivan, the learned counsel appearing for the applicant in Application No.156 of 2015 that as on date after the unprecedented flood due to incessant rain in Chennai from the beginning of December, 2015, the entire portion which is disputed in Application No.156 of 2015 wherein a passage has been created with building debris, has been flooded and in fact the road portion stated as illegally constructed by the project proponent has totally submerged. He has also submitted that the District Collector has already issued notice for removal of debris and has taken action for the said purpose.

The learned counsel appearing for the project proponent has very fairly submitted that the canal as well as road which is on the back side of the construction put up by the said respondents is not an access for the project proponent, as they have access from OMR which they are already using and there is another road on the northern side.

In this case we are concerned about the dumping of construction materials on the Buckingham canal. It is admitted and it is also stated in the report of the Collector as well as PWD that as per the revenue records, Survey No.242 is the place where the Buckingham canal runs. Even though there are some disputes regarding No.38/1 ad 39 raised by the project proponent stating that the said survey number do not belong to the said project proponents, the fact remains that the flats of the said project proponents are situated at the western side of the Buckingham canal which is undoubtedly situated in Survey No.242. Since it is the case of the project proponent that either the road stated to have been in existence or the road put up behind their project is not required by them as access and the same was not put up by them and it was in existence for a long time, we are of the view that we should not express any opinion on that especially when the District Collector has already initiated proceedings for its removal. We make it clear that while passing appropriate orders by the authorities for the purpose of removal of debris or the road portion, it is for the said authority to pass orders in the manner known to law, however, giving opportunity to the parties concerned. We make it clear that the debris which are dumped either by the project proponent or any other person in the canal comprised in Survey No.242 has to be removed immediately for ensuring the free flow of water in Buckingham canal. In this regard, we appreciate the stand taken by the PWD at this point of time for protecting the free flow of water and we are of the view that PWD as well as the Collector should take immediate action to remove the said debris at the earliest point of time. This will not prevent the District Collector in passing appropriate orders in respect of the action already initiated. Similarly, all actions initiated by PWD for the purpose of smooth running of Buckingham canal shall go on and order passed in accordance with law, however, following the principles of natural justice.

The allegations regarding encroachments or correctness of the plan are left open to be decided by the authorities concerned in accordance with law and take appropriate action, by following the principles of natural justice. Such decision shall be taken expeditiously.

With the above direction, the applications stand disposed. There shall be no order as to cost.