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BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal Nos. 172, 173, 174 of 2013 (SZ) and Appeal Nos. 1 and 19 of 2014 (SZ) Appeal No. 172 of 2013 (SZ) In the matter of: Sreeranganathan K.P., Sreepadam Vadakkkekkottaram (H) Aranmula P.O., Pathanamthitta District Kerala .. Appellant and 1. The Union of India Rep.by its Secretary Ministry of Enivironment and Forests CGO Complex, New Delhi 2. The State of Kerala Rep. by its Principal Secretary Environment Department Thiruvananthapuram 3. Kerala State Pollution Control Board Rep by its Member Secretary Pattom, P.O., Thiruvananthapuram 4. M/s. K.G.S. Aranmula Airport Ltd., No. 43, Besant Avenue Road Adyar, Chennai- 600 020. .. Respondents
Counsel appearing:
M/s. T. Mohan and A. Yogeshwaran, Advocates for appellant M/s. C. Sangamithirai, Advocate for respondent No. 1, Shri K.P. Dhandapani, Advocate General, State of Kerala assisted by Shri Rohan D. Alexander, Government Pleader attached to Advocate General and Suvitha A. S., Special Government Pleader for respondent No. 2 Shri M. Ajay, Advocate for respondent No.
3. Shri T.R. Rajagopalan, Senior Advocate for Shri Sathish Parasaran, Advocate for respondent No. 4.
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Appeal No. 173 of 2013 (SZ) In the matter of:
Padmakumar S/o. Achuthan Nair Keechemparambil House Aranmula P.O., Pathanamthitta District Kerala State, PIN: 689 533 .. Appellant and 1. Government of India, Ministry of Environment and Forests Rep.by its Director Parayavaran Bhavan, C.G.O. Complex Lodhi Road, New Delhi- 110 003 2. The Managing Direcor M/s. K.G.S. Ltd., Bhasanth Avenue Road Adyar, Chennai Tamil Nadu - 600 020. .. Respondents Counsel appearing:
M/s. Ashok M. Cherian, K. Janardhan Shenoy, Advocates for appellant Smt. C. Sangamithirai, Advocate for respondent No.1, Shri T.R. Rajagopalan, Senior Advocate assisted by Shri. Sathish Parasaran, Advocate for respondent No. 2 Appeal No. 174 of 2013 (SZ) In the matter of:
Aranmula Heritage Village Action Council Represented by its Patron Kummanam Rajashekharan Thekkenada, Aranmula - P.O.
Pathanamthitta District .. Appellant and 1. State of Kerala, represented by its Chief Secretary Kerala State Government Secretariat Thiruvananthapuram - 695 001 2 2. Secretary to Government, Revenue Department, Kerala Government Secretariat Thiruvananthapuram - 695 001. 3. Secretary to Government, Industries Department, Kerala Government Secretariat Thiruvananthapuram - 695 001 4. Secretary to Government, Agriculture Department, Kerala Government Secretariat Thiruvananthapuram - 695 001 5. Secretary to Government, Irrigation Department, Kerala Government Secretariat Thiruvananthapuram - 695 001 6. Secretary to Government Environment Department Kerala Government Secretariat Thiruvananthapuram - 695 001 7. Agriculture Officer, Krishi Bhavan Aranmula, Pathanamthitta - 689 533 8. Agriculture Officer, Krishi Bhavan Mallapuzhassery, Pathanamthitta - 689 533 9. Village Officer, Aranmula, Pathanamthitta - 689 533 10. Village Officer, Krishi Bhavan Mallapuzhassery, Pathanamthitta - 689 533 11. Village Officer, Kidanganoor, Pathanamthitta - 689 514 12. Tahsildar, Kozhenchery, Pathanamthitta - 689 641 13. District Collector, Pathanamthitta -689 645 14. Revenue Divisional Officer, Adoor Pathanamthitta-691 523 15. Union of India, Represented by its Secretary, Ministry of Civil Aviation, New Delhi - 110 001 16. Secretary, Ministry of Defence, New Delhi - 110 001 3 17. Secretary, Ministry of Environment and Forests, Paryavaran Bhavan, New Delhi -110 001 18. M/s. KGS Aranmula International Air Port Ltd. Registered Office, KGS Corporate House, No.43, Basant Avenue Road, Adayar, Chennai-600 020. 19. K.J.Abraham @ Kalamannil Abraham, Kalamannil Veedu, Kozhenchery Village, Pathanamthitta-689 641 20. Expert Appraisal Committee, Ministry of Environment and Forest Paryavaran Bhavan, New Delhi - 110 001 21. Taluk Land Board, Kozhencherry, Represented by its Chairman, Collectorate, Pathanamthitta .. Respondents Counsel appearing:
M/s. R. Krishnaraj, Advocate for Shri Ramesh Kumar Chopra, Counsel for appellant Shri K. P. Dhandapani, Advocate General, Kerala assisted by Shri Roshan D. Alexander and Smt. Suvitha, A.S. Advocates for respondent No. 1 to - respondent No. 14 and respondent No. 21, Smt. C. Sangamithirai, Advocate for respondent No. 17 and respondent No. 20, Shri T.R. Rajagopalan, Senior Advocate assisted by Shri. Sathish Parasaran, Advocate for respondent No. 18 Appeal No. 1 of 2014 (SZ) In the matter of:
P.Prasad, aged 45 years
S/o Parameswaran Nair
R. Ravindran Smarakam, Kannankara
Pathanamthitta, Kerala .. Appellant(s)
and
1. The Union of India represented by Secretary
Department of Environment and Forest
New Delhi
2. The Director, Parayavaran Bhavan
CGO Complex, Lodhi Road
New Delhi-3
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3. M/s. KGS Aranmula International Airport Limited
Registered Office, KGS Corporate House
No.43, Basant Avenue Road
Adayar, Chennai-600 020
Represented by its Managing Director
4. Kerala State Pollution Control Board
Represented by its Secretary
Office of Kerala State Pollution Control Board
Pattom P.O., Thiruvananthapuram - 695 004
5. Shri. C.P. Mohammed M.L.A.
Chairman, Committee of Environment
Kerala Legislature
Kerala Legislature Complex
Thiruvananthapuram
6. State of Kerala represented by
Secretary, Department of Revenue
Secretariat, Thiruvananthapuram .. Respondent(s)
Counsel appearing:
Shri Ranjith Thamban, Senior Advocate for Shrimathi Rema Smrithi, and Shrimathi Mallika Srinivasan, Advocates for appellant Smt. C. Sangamithirai, Advocate for R-1 and R-2, Shri T.R. Rajagopalan, Senior Advocate assisted by Shri Sathish Parasaran, Advocate for respondent No. 3, Shri M. Ajay, Advocate for respondent No. 4, Shri K.P. Dhandapani, Advocate General, Kerala assisted by Shri. Roshan D. Alexander, and Smt. Suvitha A.S., Advocates for respondent No. 5 and respondent No. 6 Appeal No. 19 of 2014 (SZ) In the matter of:
K.K.Royson (Former President, Pathanamthitta District Panchayat) Kaithavana Malayil House Thekkamala PO, Kozhencherry Pathanamthitta (District) Kerala - 689 654 .. Appellant(s) and 5
1. The Government of India represented by Secretary Ministry of Environment and Forests (IA-III Division) Parayavaran Bhavan, CGO Complex, Lodhi Road New Delhi-110 003
2. State of Kerala represented by Secretary, Department of Environment Government Secretariat Thiruvananthapuram - 695 001
3. M/s. KGS Aranmula International Airport Limited Registered Office, KGS Corporate House No.43, Basant Avenue Roa Adayar, Chennai-600 020 Represented by its Managing Director
4. Kozhencherry Charitable Education Society Represented by its Chairman K.J.Abraham, Kalamannil House Kozhencherry, Pathanamthitta Kerala - 689 641
5. Enviro Care India Private Ltd Represented by its Chairman, 43, 2nd Street, Harvey Nagar Madurai, Tamil Nadu - 625 016
6. Kerala State Pollution Control Board Represented by its Secretary Pattom P.O., Thiruvananthapuram - 695 004
7. The District Collector Pathanamthitta, District Collectorate Pathanamthitta, Kerala - 689 645 ... Respondent(s) Counsel appearing:
Shri. Jacob Alex, Advocate for appellant Smt. C. Sangamithirai, Advocate for respondent No. 1, Shri K. P. Dhandapani, Advocate General assisted by Shri Roshan D. Alexander and Smt. Suvitha, A.S. Advocates for respondent No. 2, Shri T.R. Rajagopalan, Senior Advocate for Shri Sathish Parasaran, Advocate for respondent No. 3 and respondent No. 7, Shri P.S. Raman, Senior Advocate assisted by Shrimathi Pushpa Menon, Advocate for respondent No. 5, Shri M. Ajay, Advocate for respondent No. 6 6 COMMON JUDGMENT Present:
(1) Hon'ble Shri Justice M. Chockalingam Judicial Member (2) Hon'ble Prof. Dr. R. Nagendran Expert Member ___________________________________________________________________ Date: 28th May, 2014 ___________________________________________________________________ (Hon'ble Shri Justice M. Chockalingam, Judicial Member) Appeal No. 172 of 2013 (SZ) This appeal has been preferred by the appellant herein against the order of the 1st respondent, Ministry of Environment and Forests (for short 'MoEF') dated 18.11.2013, granting Environmental Clearance (for short ' EC') to the 4th respondent, M/s. KGS Aranmula Air Port Ltd., to set up an airport at Mallappuzhasserry, Aranmula and Kidangannur villages in Kozencherry taluk of Pathanamthitta District, Kerala. A writ petition has also been filed in W.P. (C). No. 6004 of 2012 challenging the notification issued by the 2nd respondent, the State of Kerala declaring the area as an industrial area and the said writ petition is still pending before the Hon'ble High Court of Kerala. The brief facts of the appeal filed herein are stated as follows:
2. The proposed airport is being set up by the 4 th respondent on the banks of the holy river Pampa, in an ecologically sensitive and environmentally diverse and rich area. Aranmula is a declared heritage site and gets its name from the centuries old Aranmula Parthasarathy temple and it attracts a large number of devotees. The Aranmula village is situate at the beautiful wetland eco- system on the banks of the 7 holy river Pampa represents the epitome of Kerala culture and also the apex heritage of Kerala.
3. Mallappuzhasserry, Aranmula and Kidangannur villages where the airport is to be set up are agricultural villages with paddy being the principal crop and the wetlands in the area are major bio-diversity hotspots. The 1st respondent, without considering the deleterious effects of the airport on the pristine environment of the area, has granted the impugned EC to the 4th respondent. The Environment Impact Assessment (for short 'EIA') submitted by the 4th respondent is inadequate, incorrect, misleading and it is a fraud perpetrated by the 4 th respondent. The EIA has not been prepared by an accredited agency. The public hearing conducted for the purpose of the setting up the airport was conducted in a clandestine and undemocratic manner in violation of EIA Notification, 2006 and the impugned EC dated 18.11.2013 was granted without any application of mind.
4. The area is rich in bio-diversity. The region is the home to hundreds of plants, animal and species. The EIA report submitted by the 4th respondent to the 1st respondent for obtaining the EC did not provide any details about the flora and fauna in the region except to state that there are no endangered species in the area. The 1st respondent without considering the falsity of the statement listing only 22 species of plants and a few grasses as the flora in the region, has granted the impugned clearance. The report of the Salim Ali Foundation clearly states that more than 212 species of plants were recorded in a span of 4 days spent in the field making direct observations. The report further states that 27 of these species were endemic to the Western Ghats, 110 are economically important and 88 were wetland species. The Salim Ali Foundation in addition clearly states that more than 60 species of fishes 8 and more than 80 species of birds were recorded. The EIA report submitted by the Project Proponent did not reflect any of these facts and instead falsely stated that 34 species of birds were identified and baldly went on to state that there were no endangered species of flora and fauna in the area. The paddy fields and wetlands in Mallappuzhaserry, Aranmula and Kidangannur where the proposed project is to be set up serve as the flood plains of the river Pampa. These wetlands minimize damage to the surrounding areas by serving as a natural flood control mechanism. On the onset of monsoon in the month of June, when the water begins to drain into river Pampa, a large number of fishes migrate upwards against the paddy fields and wetlands which serve as a nursery and hatchery for the fish species. The EIA report had not considered these aspects and the 1st respondent erred in granting the impugned clearance when the very eco system of the area was incorrectly assessed by the EIA report based on which the impugned EC was granted. The EIA did not attempt to characterize the ecology of the area including wildlife inhabited in forest land to locate the runway at the proposed project location. The EIA stated that very limited field studies were made on the ecology of the area and the information allegedly collected from the field studies referred to in the EIA report is lacking in all requisite details. It is impossible to identify and understand the potential impact of the proposed airport without knowing the identity of a single mammal or bird species inhabiting that land for giving clearance to the proposed project. The EIA report relied on by the 1st respondent/MoEF while granting the impugned EC did not even conform to the MoEF's EIA Guidance Manual for Air Ports which states inter alia as follows and none of the criteria was met by the EIA prepared in the instant case based on which the 1st respondent granted the impugned EC.
9 "Airport operations may cause change in local eco-systems, threaten, endangered species and disturb the movements and breeding patterns of local wildlife. Airports are located within a variety of settings (both urban and rural) which support habitats and species of their own, some of which will have direct interaction with those located on the airport and vice versa. Some local areas designated for their nature conservation value will be affected. The biological environment of the airport should hence be seen as an integral component of the wider landscape scale ecological network. To accomplish this, base line data from field observations for various terrestrial and aquatic systems are to be generated; comparison of the data with authentic past records to understand changes is undertaken; environmental components like land, water, flora and fauna are characterized and the impact of airport development on vegetation structure in and around the project site is to be understood.
Data on sensitive habitats, wild and endangered species in the project area also is to be collected from Zoological Survey of India, Botanical Survey of India, Wildlife Institute of India and the Ministry of Earth Sciences. Wildlife symbolizes the functioning efficiency of the entire eco-system. Just as wild flora needs special treatment for preservation and growth, wild fauna as well deserves specific conservatory pursuits for posterity. As per Wildlife Act, 1972 the various wild animals are enlisted in the schedules of the Wildlife Act based on the intensity of threat to them as rare, endangered, 10 threatened, vulnerable etc. Primary data on survey of the wild animals and birds in the study area is collected and identified with the classification into various schedules taken from secondary data.
5. The 1st respondent has failed to consider the impact of filling in paddy lands and wet lands in the area on ground water table. The wetlands and paddy fields serve as a natural reservoir when water level rises in Pampa River and also functions as a natural irrigation system. It helps to maintain the ground water level, ponds and tanks in the surrounding villages. Destruction of paddy fields by the 4 th respondent will affect the ground water table in the area. Due to the filling of 500 acres of lands allegedly acquired by the 4th respondent, the deleterious effects will be felt in all surrounding wetlands as the water path would be blocked leading to the destruction of the intricate natural system.
6. The 4th respondent has provided false information about the number of persons likely to be displaced as a result of the present project. The EIA report is based on woefully inadequate study on the impact of the project in this regard. The EIA report has not provided any details regarding the sociological impact on account of the project activities assessed and the impugned EC has been granted without even assessing this aspect. The 4th respondent has willfully concealed the fact that a huge number of people will have to be evacuated from the area to facilitate the project and has not addressed the rehabilitation and relocation issues involved with such huge displacement. The evacuation of people historically, culturally and economically connected with the region is violation of the right to life as guaranteed by the Article 21 of the Constitution of India.
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7. The respondents have not assessed the impact of exploitation of water resources by the proposed airport. While the EIA report in paragraph 2.8.2 under 'Water' contained the information that the total requirement of raw water for this air port will be 7.55. KLD which will be met from the bore wells and municipal water supply, the EIA report does not discuss the impact of such large scale extraction of water on the water table in the area, especially in the light of the fact that the recharge areas are and have to an extent already been filled up illegally prior to the grant of EC.
8. A four lane approach road is proposed from Alkkara junction to the terminal building for which land needs to be acquired. Similarly, road from Parumootampadi junction to Alkkara junction is also required to be widened for smooth vehicular traffic to the proposed airport. However, the environmental, socio-economic and other impacts of the said road construction have not been addressed by the 4 th respondent and the 1st respondent has mechanically granted the impugned clearance. The land use classification as per the EIA states that the Government has recognized the location of this project site as unclassified land while admittedly, paddy lands have to be filled up and the area is covered by the paddy lands and wetlands. The clearance granted was thus based on false information in the EIA report in this respect.
9. The EIA in paragraph 2.6 (a) and 2.6 (c) read under the captions 'Archaeological Monuments' and ' Cultural Monuments' states that there are no archeological monuments in the 10 km radius. The Aranmula village itself is a heritage village and got its name from the century's old Aranmula Parthasarathy temple on the banks of the holy river Pampa which attracts large number of devotees. The temple has fine murals from the 18th century and the entire region is 12 replete with temples of importance. The Pampa River runs within a few hundred meters of the alleged boundary of the project site described in the EIA. Even according to the 4th respondent and Annexure-A1 of the EC, it is an admitted fact that the Aranmula village is declared as heritage village for its peculiar metal mirror 'Aranmula Kannadi' which is unique, patented product which is produced exclusively from Aranmula village by a family of local craftsmen. The representatives of the mirror making family has approached the Hon'ble High Court of Kerala against the proposed project on the ground that filling up of the paddy lands in that area will seriously affect the making of this metal mirror. They have also stated that the mud and clay collected from the paddy lands is one of the main ingredients in the process of making Aranmula metal mirror. The 1st respondent, being aware of all the facts did not address any such issues in the EC and instead, falsely stated that this project has no connection with the Aranmula metal mirror.
10. The EIA report does not deal with the quantum of materials needed for filling in the 500 acres of land required for the project. However, the impugned EC, in specific condition No. (iii) states that the soil required for the land filling shall be met from the elevated area of about 14.5 acres available within the site itself. The 1 st respondent has not considered the fact that the 4th respondent even prior to the grant of EC altered the nature of the land and did not take any action against the 4th respondent.
11. There is no information in the EIA that would allow one to independently verify where exactly the boundary of the airport would be located and where key components of the airport such as runway would be located. It has been mentioned in Figure 1.2 of the EIA report purport to show the site of the proposed airport and 13 Figure 1.4 which describes the overall plan of the airport including the 2300 m runway. There is no conceivable way that a 2300 m runway as depicted in Figure 1.4 of the EIA would ever fit into the boundary of the site as depicted in Figure 1.2 of the EIA. The maximum lateral distance between the boundaries indicated in Figure 1.2 when measured with Google Earth is only 515 m. The proposed runway of 2300 m and 2800 m in future could not possibly fit into the site as per Figure 1.2 of the EIA report in respect of which the EIA study has been done. The 1 st respondent blindly granted the present clearance without even ascertaining the extent of the project boundaries claimed by the 4th respondent.
12. The public hearing was not conducted in a proper manner. The access to the public hearing was not facilitated by the project proponent or other stake holders as a result of which a majority of the people who are likely to be affected due to the setting up of the 4th respondent project were not provided with an opportunity to voice their grievances. The law requires that the project proponent submits copies of the draft EIA report with the generic structure given in Appendix III including a summary of the EIA report in English and in the local language prepared strictly in accordance with the terms of reference communicated after scoping. In the instant case, the 4th respondent applied on 02.02.2011 for conducting the mandatory public hearing. The alleged publication in the dailies did not contain all required information as mandated by the Appendix VI of the EIA Notification, 2006. Even as on date, the EIA is not available for viewing or downloading from the 1 st respondent's website. The public hearing was scheduled on 10.03.2011. It was rescheduled to 29.04.2011 and again to 10.05.2011 and that the change in the dates was neither publicized as required in law nor published in any local dailies and this fact was brought forth from the minutes of the public hearing held on 10.05.2011. This is in violation of EIA 14 Notification, 2006 as per clause 3.3 of Annexure IV. Even the time limit between the postponed dates was short of the minimum 30 days as mandated and never publicized and as a result of which the public was prevented from effective participation in the public hearing process. As could be seen from the minutes of the public hearing in Annexure A-4, only 26 persons were able to participate in the public hearing. The tenor of the serious protests held by the people directly affected in the area is not reflected in the public hearing which was also not conducted at the project site or anywhere in close proximity. In the matter of S. Nandakumar Vs. the Secretary to Government, Tamil Nadu, in W.P. No. 10641 of 2009 the Hon'ble High Court of Madras by its order dated 22.04. 2010 observed as follows:
"33. The public consultative process is, therefore, an essential component in the process of EIA. It is essentially an embodiment of the principles of natural justice. The importance of conducting public hearing in a peaceful atmosphere with opportunity to all the local affected persons and others, who have plausible stake in the environment impacts of the project is evident by the fact that the notification wanted District Magistrate or any other officer not below the rank of an Additional District Magistrate to supervise the conduct of the public hearing. Similarly, while conducting appraisal of the application and the documents submitted by the applicant for EC, the EAC has to consider the outcome of the public consultations, including report of the public hearing proceedings. Therefore, public hearing occupies a pivotal position in the matter of EIA. 15
34. When the notification itself indicates the manner and method of conducting public hearings, the statutory authorities are expected to conduct the hearing by giving reasonable opportunity to all the local affected persons and others who have interest in the particular project or activity. Such public hearings should not be a make belief affair just to comply with the requirements of the notification. It is the responsibility of the District Magistrate or officers of equal status to see that all the affected persons are given audience. The panel of officers conducting the public hearing must remember that such hearings are conducted only to record the views of the affected persons. The statutory panel should hear the views of the affected persons and not those who have assembled in the meeting hall at the behest of the developer with a hidden agenda to block or prevent the opposition to the project. The regulation, therefore, provides for recording the attendance of those who are present at the venue and such attendance register should be forwarded with the minutes of the proceedings. Therefore, the attempt should be to conduct the hearing in an open and transparent manner with an opportunity to express even the dissenting views without fear. The authorities owe a duty to the society to conduct such meetings in the manner prescribed by the statute and if necessary, by taking police assistance. The minutes of the hearing should contain a true note of what has transpired in the meeting. The consultative process is an essential facet of the EIA study and therefore, any violation of the mandatory procedure in the matter of conducting public hearing and recording 16 the views or objections of the affected persons would give the aggrieved a cause of action to challenge the legality and correctness of the public hearing proceedings, without waiting for the final outcome of the impact assessment proceedings."
13. In the light of the above judgment describing the importance of the public hearing in the clearance process and the facts of the present case make it evident that the entire process was farce and the 1st respondent has not considered any of these facts while granting the impugned clearance.
14. According to EIA Notification, airports are Category-A projects and only duly accredited EIA consultants can appear before the EAC or prepare the EIA report. The present agency is found in Serial No. 47 of the QCI list (in Annexure-A-5) and as per the accreditation, M/s. Enviro Care India Private Limited is authorized only to carry out EIA preparation for Category B projects and the 1st respondent has not considered even this aspect while granting the impugned clearance. The 4 th respondent has submitted false information in the application in Form I submitted to the 1st respondent for the purpose of obtaining clearance. The 4th respondent has provided false data about the ecology in the area, the resources to be used for the project and overall impact on the environment, including the location of protected nearby area and the presence of wetlands or forests. The 4th respondent has provided false data even about the basic information of the project in many of the items in the application form and the 1 st respondent has not considered these aspects while granting the impugned EC. Instead, additional "terms of reference" was given and based on the incompetent terms of reference to assess the real 17 environmental impact, the EIA study was conducted and report was prepared and it completely failed to address all the real environmental issues in the area.
15. In accordance with the draft policy of the Ministry of Civil Aviation, no green field airport is permitted within the aerial distance of 150 km of an existing airport without studying the impact of the new airport on the existing airport. However, no such study has been conducted in the instant case. The proposed airport is located between two international airports at Trivandrum and Cochin and the distance between these two international airports and the proposed airport is less than 150 km. The proposed airport is also located at a distance of 44 km from the INS Garuda airfield. The communication from the Ministry of Defence dated 05.04.2010 clearly states that the ministry objected to the setting up of the proposed airport as it would severely restrict the airspace available for military flying operations. . The communication further states that the UAV operations would not only hamper flight operations but also compromise safety.
16. The EAC has recommended the present project for clearance during the 115th meeting held during 16th and 17th August, 2012. It can be seen from the minutes of the meeting that the EAC has discussed a total of 50 items on its agenda. The EAC could not have discussed in detail the various aspects relating to the project as observed in the matter of Utkarsh Mandal Vs. Union of India and others (W.P. (C).No. 9340 of 2009 by the Hon'ble High Court of Delhi in paragraph 45. The bare perusal of the minutes of the EAC meeting would indicate that none of the issues raised was considered by it.
17. The Wetland (Conservation and Management) Rules, 2010 of the State of Kerala clearly includes in rule 2 (g) "creeks" within the definition of wetlands. The 18 Kozhithodu which faces obliteration due to the proposed construction is a creek and is protected under these rules. The classification of lands as 'industrial area' was done without following the due process of law. There are no industries in the area and the present classification has been made with the sole reason of facilitating the 4th respondent's project. The conditions contained in the impugned clearance have no bearing on the factual matrix of the situation and show the non application of mind on the part of the 1st respondent. The respondents have not seen that the Hon'ble Supreme Court of India has held in the matter of Karnataka Industrial Areas Development Board Vs. Sri C. Kenchappa and others in Appeal (Civil) No. 7405 of 2000 dated 12.05.2006, wherein it was held that in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development only if the project does not impair the ecology and environment. The action of the respondents is in direct violation of the above orders. The 1st respondent's clearance is contrary to the Precautionary Principle and Principles of Sustainable Development vide also reaffirmed by the Hon'ble Supreme Court of India in Research Foundation for Science, Technology and Natural Resources Policy Vs. Union of India (AIR 2007 SC (Supp) 852 prescribing the 'precautionary principle' and ' sustainable development' in Vellore Citizens' Forum Vs. Union of India and Andhra Pradesh State Pollution Control Board Vs. Prof. M.V. Naidu reported in (1999) 1SCR 235.
18. The 4th respondent has commenced the airport construction work even prior to the EC being granted in violation of the EIA Notification, 2006 and the letter dated 12.04.2010 of the 4th respondent stands as evidence for which the 4th respondent is liable to be prosecuted. On 13.07.2013, more than 70 Members of the 19 Legislative Assembly of the State of Kerala submitted a representation to the Prime Minister of India opposing the project. The 1st respondent has not considered the impact of pollution from the airport and the impact of noise on animal and avian lives nor the pollution during combustion of fuel.
19. Hence, the appellant herein seeks to quash the EC granted by the 1st respondent in the impugned order dated 18.11.2013, to remove all constructions made and to restore the area to its original pristine state, initiate and direct the 1 st respondent to initiate appropriate action against the 4th respondent, EIA consultant as per law for providing false and misleading data in the EIA report and to direct the 4th respondent to pay compensation for the damages caused to the area and restore the ecology of the region.
Appeal No. 173 of 2014 (SZ)
20. This appeal has been filed by the appellant herein in his capacity as a social worker as well as a political activist in Pathanamthitta District in Kerala State. He is an ex-Member of Legislative Assembly, Kerala representing Konni Constituency. He is a native of Aranmula in Pathanamthitta District. He is the Secretariat Member of the Patthanamthitta District Committee of Communist Party of India (Marxist) which is a recognized political party in India. This appeal has been filed aggrieved by the EC granted by the 1st respondent/MoEF to the 2nd respondent, the Managing Director, M/s. KGS Limited, Chennai-20 in Tamil Nadu. Only two respondents have been arrayed by the appellant in this appeal. The facts of the cases that could be made out from the averments of the appeal grounds can be stated as follows:
20
21. An application was submitted by the 2nd respondent to the 1st respondent seeking EC under section 3 of the Environmental Protection Act in Form I for developing an international airport on a stretch of land in Kozhencherry Taluk. The proposal involves development of airport at Mallapuzhasserry Aranmula, Kindangannur villages in Kozhencherry Taluk in Patthanamthitta District of Kerala State on a plot area of 500 acres to cater Airbus A-300 aircraft. The airport is proposed to be constructed on land mentioned in Annexure A2 herein which contains paddy land and wetland acquired by the K.J. Abraham, Kozhencherry in the name of a charitable society by name Mt. Zion Charitable Society and reclaimed by him in violation of Kerala Land Utilisation Order, 1967, Kerala Conservation of Paddy Land and Wetland Act, 2008 and Kerala Land Conservancy Act, 1957. The land also comprises of 8.87 acres of Government land encroached upon by the said K.J. Abraham. He had also illegally filled up a natural water course locally known as Valiyathodu which is also known as for some distance as Kozhithode and which is a tributary to River Pampa. The total length of Kozhithode is 12 km. extending from Prakkanam near Pathanamthitta town to River Pampa at Aranmula. The paddy land filled and reclaimed unauthorized by K.J. Abraham is part of a large extent of puncha paddy land (Padashekharam) which are in low lying land that get water logged during monsoon, where paddy is cultivated and drained after monsoon. During the season of cultivation the field will be marshy. Puncha paddy fields are thus wetlands and they also serve as flood plains of nearby river and provide to maintain waterbed for the locality as in the case of wetland which is not used for paddy cultivation. The stretch of paddy field proposed to be reclaimed for the said purpose serve for natural flood control in the area when the river Pampa overflows in monsoon seasons. Even without any cultivation in the said land, maintenance of the said lands in its nature as 21 low lying wetland is essential for controlling the flush of water in river Pampa during monsoon as the river hits the plains at the area mentioned above. Protection of the said area of low lying wetland is essential to maintain water bed so as to provide water in wells of the nearby villages.
22. The revenue authorities have already initiated proceedings against the unauthorized reclamation of paddy land and wetland, as also the encroachment of Government land and for filling natural water streams vide Annexure-A3(a) and Annexure -A4 filed herein which would prove that K. J. Abraham had acquired the land and reclaimed it violating the law of the land. When application dated 28.06.2010 was submitted by the 2nd respondent, no land was in their possession or ownership. The land reclaimed by K. J. Abraham in the name of Mt. Zion Charitable Society is said to have been transferred in favour of the 2 nd respondent on 20.12.2010. Annexures-A3 and A4, however, go to show that no mutation with regard to the said land has been so far effected in favour of the 2nd respondent. On submitting the application for EC, the EAC it its 91 st meeting held on 21st-23rd September 2010 finalized the Terms of Reference ( for short 'ToR') for the proposed airport and also decided to conduct a public hearing as per the provisions of EIA Notification, 2006. Advertisements regarding the public hearing for the comments on the proposed project were published in 'Malayala Manorama' and Mathrubhoomi, Malayalam dailies and in 'The Hindu' English daily. The hearing as notified in the said dailies did not take place on the date thus notified and the same was postponed to 29.04.2011 and on this day also the hearing was not held. The hearing took place on 10.05.2011. The dates of postponement of the hearing were not published in any newspaper after 06.02.2011 and hence, the public at large had no information of the hearing scheduled on 10.05.2011. As there was no proper notice for the hearing, 22 only a few persons and organizations took part in the hearing. The views of the public at large were, therefore, not reflected in the so called public hearing purportedly held on 10.05.2011
23. The EAC in its 107th meeting held on 15th-16th December, 2011 without any detailed discussion and without proper consideration of the facts and circumstances recommended the grant of EC for the proposed airport at Aranmula. Meanwhile, 'Salim Ali Foundation' a registered charitable trust with a mission 'Bio- diversity Conservation and Food Security' conducted a thorough study on the impacts of the proposed airport on the bio-diversity and ecology of the wetlands and paddy lands in Aranmula and its adjoining villages along with analyses of the tangible and intangible benefits of the ecosystem. It analyzed (i) EIA conducted by Enviro Care India Pvt. Ltd., for KGS Aranmula Airport Ltd., who proposed the airport,
(ii) the need for an airport at Aranmula, and (iii) the inevitable need for restoring the paddy land. The Legislative Committee for Environment of the Kerala Legislature had unanimously recommended against establishing an airport at Aranmula considering the adverse impact it would cause to the environment and ecology of the State. The 1st respondent has not considered the findings of the Salim Ali Foundation and has consciously avoided answers the aspects pointed out therein which are major concerns of the public and are most relevant while deciding upon granting EC to a major project like constructing an airport. While issuing the EC, the 1st respondent has failed to take into account the need for an airport at Aranmula at the cost of environment and ecology of more than three agrarian villages in Kerala, which are having great traditions. The 1st respondent failed to see that Aranmula is located almost at the middle of the International Airports at Cochin and at Trivandrum with a distance of 128 km, 135 km, respectively. If the proposed airport 23 at Aranmula is expected to serve Pathanamthitta, Kottyam, Idukki and Alappuzha districts, the people from every part of the said districts can reach either the international at Cochin or at Trivandrum within not more than 2 hours by road and roads are made available to have easy access to the international airports to cater the needs of the people from the districts to whom the proposed airport is expected to serve.
24. The 1st respondent has not taken into account the need of the land necessary to be acquired for providing infrastructural facilities such as roads leading to the airport from various places. It has also not considered the competitive impact of the new international airport at Aranmula upon the existing international airports causing its impacts upon the environment and ecology of the State including the natural resources already invested to construct them. A localized impact assessment on the environment and ecology while implementing the project is insufficient while granting EC for a major project like the one in hand. The negative externality that would be caused to the society as whole while implementing the proposed airport project was not assessed by the 1st respondent. The EC has been granted on the assumption that only a minimum extent of 500 acres of land is required for runway, apron, taxiway etc., and the remaining area will be preserved in its natural form. However, the report of feasibility study conducted by the Airports Authority of India has noted that the developers aim for an ultimate operation of wide bodied aircraft which requires more extent of land and with the present availability of land, the proposed airport can cater only to smaller aircrafts and only for daytime operations. It also mentions the necessity to level the hillocks around the airport site so as to enable the safe landing of aircrafts. Leveling of hillocks is further necessitated when capacity of the airport is required to be increased in future. While EC has been 24 granted by the 1st respondent for establishing the present airport at Aranmula, it has not taken into account the future requirements for expansion of the airport and impacts of such requirements on the environment and ecosystem. The number of families who will be displaced from their abode is much more than what has been stated by the 2nd respondent in the application for EC as well as in the subsequent statements.
25. Hence, the appellant herein seeks the indulgence of this Tribunal to set aside the EC granted to the proposed international airport at Aranmula and for directing the 1st respondent not to grant EC to the proposed international airport at Aranmula.
Appeal No. 174 of 2013 (SZ)
26. This appeal has been filed by the appellant herein, an action council formulated by the Aranmula, Mallapuzhassery and Kidangannoor villages of Kozhenchery Taluk of Pathanamthitta District. The action council has been formulated for resisting the illegal move of the respondents in setting up an airport and other construction by reclaiming the paddy land which will cause serious environmental damage to the entire area and also the residents of the locality. The 17th respondent arrayed in this appeal is the Ministry of Environment and Forests (MoEF) of the Central Government. The 18th respondent arrayed in this appeal is M/s. KGS Aranmula International Airport Ltd., having its registered office at Chennai in Tamil Nadu and the 19th respondent is K. J. Abraham of Kozhenchery village in Patthanamthitta District in the State of Kerala. The 20 th respondent arrayed in this appeal is the Expert Appraisal Committee, MoEF, New Delhi. This appeal has been filed seeking the indulgence of the Tribunal to set aside the EC granted by the 17 th 25 respondent, directions for 17th and 20th respondents to conduct a proper public hearing as prescribed in the matter of granting EC to 18th respondent and for directions to the Government of Kerala to complete the proceedings initiated against the 19th respondent for restoring 49.725 acres of paddy land reclaimed to its original form. The brief statement of facts as could be seen from the appeal grounds can be stated as follows:
27. From the reading of the discussions of facts by the 17 th respondent which led to the granting of the clearance would clearly show that the 17th respondent proceeded on the precincts that the entire land in question is either the land already reclaimed or partly developed. This impression was made on the 17 th respondent by the State Government as well as the 18th respondent by twisting and suppressing the material facts. In the application submitted before the 17th respondent, the 18th respondent has made a false assertion stating that no reclamation is required for the construction of the proposed Aranmula Airport which is a false statement. As per the documents produced by the appellant, in which it can be seen that an extent of 211 acres out of the total 248 acres of land which has been purchased by the 18 th respondent and earmarked for the construction of the airport is either paddy land or wetland. This fact is supported by the revenue as well as agriculture officers of that are, who are officers of the Government. The Government, instead of submitting these facts before the 17th respondent has actually suppressed the facts and has taken an illegal stand to the effect that the properties placed before the 17 th respondent as the site for the airport has already been reclaimed and reclamations cannot have any legal implication as it was done prior to 2008, in which year the Act had not come into force. This is an illegal stand taken by the State. It is so because, even prior to 2008 which year the Act was promulgated, Kerala Land Utilization 26 Order was in force and any change in the nature of the land can be made only with the prior permission from the Government. It is an admitted fact that it is under this Land Utilization Order, the 19th respondent has submitted necessary application for getting permission to fill paddy field in an extent of 8 acres and it was suppressed before the 17th respondent that the authorities have permitted the 19 th respondent to reclaim the paddy land for construction of an airstrip as part of the Aeronautical College of the 19th respondent under this order. It was by misusing the permission; the 19th respondent instead of filling 8 acres of land has filled an extent of 49.72 acres of paddy fields. The Revenue Officers of the State Government have initiated legal action against the 19th respondent for restoring the above paddy fields to its original form under the Land Utilization Order. In such circumstances, when the officers of the Government have initiated proceedings which are still pending under the Land Utilization Order against the illegal filling and reclamation of the paddy fields by the 19th respondent, the Government cannot take a stand that since the reclamation has been made by the 19th respondent prior to 2008 and there is no illegality committed.
28. Though the 18th respondent has submitted before the 17th respondent that altogether they are in possession of 350 acres of land earmarked for the purpose of the airport, the revenue officials have informed the appellant that only 248.37 acres of lands stand mutated in the name of the 18th respondent and out of the total 248.37 acres of land (99.35.20 ha), 85.74.02 ha of land is paddy field/wetland and only 13.61.00 ha is dry land. In effect, the application which was considered by the 17 th respondent is for a proposal to construct an airport in the paddy field and which can be done only by reclaiming the land. The proposed airport cannot be set up in 33.7 acres of dry land and the airport can be set up only by reclaiming the remaining 27 portion of the paddy land converting the same as dry land. The application submitted by the 18th respondent states that the area in which airport is proposed to be set up is 16, 250 M2 which comes around 41 acres and even for constructing the terminal building the available dry land will not suffice. The 17 th respondent was misled by the 18th respondent and also the Government in granting permission to the 18 th respondent to construct an airport in a paddy field. From the stipulation in Clause
(iii) of the EC granted to the 18th respondent, the contention of this appellant that the 17th respondent has proceeded with the assumption that the proposed airport site is a dry land stands proved. Moreover, in this stipulation, it is clearly stated that only the area required for the runway with 1000 m x 150 m (37.07 acres) shall be filled within the site itself and that almost 80% of the soil from the only elevated area has already been utilized for illegal reclamation done by the 19 th respondent against which action was already been initiated by the revenue officials for restoring the same to its original form of paddy field. The requirement of filling 37 acres at a height of one meter cannot be completed utilizing the remaining soil in the elevated area of 14.5 acres mentioned in the stipulation. From the stipulation, it is very clear that the intention of the 17th respondent is only to permit the 18th respondent to fill the dry land at a height of one meter to make it an elevated portion for the construction of the runway and all these stipulations were made on the assumption that the entire land is a dry land.
29. Moreover, in the stipulation, it has been stated that necessary permission for leveling should be taken as drawn from Kerala Paddy and Wetland Act into the operation as the filling of paddy land can be made only after obtaining exemption/permission from the Government of Kerala under Section 10 of Act subject to regulation by imposing conditions and on recommendations from the 28 monitoring committees as constituted under the Act. The officers of the Government have informed the appellant that the local or state level committee has not made any such recommendation to the Government till date for converting the paddy land which forms part of the land earmarked for setting up the airport. The State Legislative Committee on Environment has also observed in the report that the reclamation which was already made by the 19 th respondent has adversely affected the cultivation of that locality and came to a standstill because of the illegal reclamation of 49.725 acres of land by the 19th respondent. Besides that, the appellant has also filed a writ petition in W.P.(C) .No. 8794 of 2013 before the Hon'ble High Court of Kerala for directions to the State Government to take action against the 18th and 19th respondents under the Kerala Wetland and Paddy Act, 2008 and thereby restoring the land to its original form. Matters being so, the State Government will not be able to grant permission to the 18 th respondent to fill up the land for reclaiming the paddy field for the construction of the airport. In such circumstances, the permission of the Government is a pre-requisite for the 18th respondent to submit an application for EC before the 17 th respondent. The application submitted without the necessary exemption/permission from the State Government under the Kerala Paddy and Wetland Act, 2008 is defective and therefore, the grant of clearance made by the 17th respondent on this defective application itself is illegal. The permission of the Government under the Kerala Paddy and Wetland Act, 2008 is a pre-requisite for the consideration of the applicant by the 17th respondent for the grant of EC is evident from the fact that Column No. 22 of the Form I is concerning the existence of a Government order/policy relevant relating to the site in question. So, the application submitted without exemption from the State Government permitting the 18th respondent to fill paddy land should not 29 have been considered by the 17th respondent as 211 acres of land out of the total extent of 248 acres which is in the possession of the 18th respondent and projected as the site of the proposed airport remains as a paddy field and airport cannot be constructed in 37 acres of land which includes the illegally filled land. In such circumstances, the 18th respondent has falsely stated that no Act or order or policy is applicable in the case of the site in hand. The Government has also supported this suppression made by the 18th respondent in the application submitted before the 17th respondent. In the application submitted before the 17th respondent, the 18th respondent has made a false statement that no reclamation is required and the 18 th respondent has presented the property before the 17th respondent as developed/semi developed property. This stand taken by the State Government contending that the reclamations have already been made prior to 2008 and therefore, there is no illegality in the reclamation done by the 19 th respondent since it was prior to the promulgation of the Act, 2008 cannot be accepted since the Land Utilization Order was in force and it was by this order several actions have already been initiated against the 19th respondent by the officials of the Government against the reclamation of 49.725 acres of land. The orders passed by the revenue officials directing the reclaimed land of 49.725 acres to be restored to its original form have not been subjected to legal scrutiny till this date. This legal situation is applicable to the 18th respondent also and in such circumstance, the 17 th respondent ought not to have granted EC.
30. The 18th respondent has suppressed the fact that Kerala Land Reforms Act is applicable to the case in hand. As per this Act, no person is entitled to hold any land in excess of the ceiling limit prescribed under this Act and the permission from the Government is required to hold any land in excess of the ceiling limit which 30 can be granted under section 81(3) of the Act in public interest. The appellant has already filed an application before the Government requesting the Government to conduct a public hearing to ascertain the public interest before granting exemption to the 18th respondent and the appellant herein has also filed a writ petition in W.P. (C ) No. 14220 of 2013 for a direction to Government to conduct a public hearing with due notice to the residents of the 13 Grama Panchayat and Pathanamthitta Municipality before granting exemption to the 18th and 19th respondents which is the subject matter before the Land Board. It is an admitted fact that the application submitted by the 18th respondent before the Government for exemption is not yet allowed by the Government. Hence, the holding of the land by the 18 th respondent is illegal even now. The 18th respondent was holding the land which is projected as the site for the proposed airport at the time of making an application before the 17 th respondent and in effect, the 17th respondent was granted EC to the 18th respondent for setting up an airport in the property which is illegally held by the 18 th respondent. In such circumstance, the proposed land cannot be treated as land owned by the 18th respondent and the clearance by the 17th respondent permitting the 18th respondent to set up an airport is illegal and without jurisdiction.
31. From the clearance issued by the 17th respondent, it is clear that the 17th respondent has not independently assessed the veracity of the claims made by the 18th respondent and the State Government. The reports of the Legislative Committee for Environment and the Salim Ali Foundation were not properly analyzed. There is no independent assessment or appraisal of the various contentions and submissions made by the 18th respondent and the State Government. The 17th respondent has simply reiterated the various contentions and submissions of the 18 th respondent and the State Government and simply accepted the report of the EAC and granted 31 license. The 17th respondent is, therefore, not justified in granting EC especially when the Writ Petition (C) No. 8794 of 2013 are pending before the Hon'ble High Court of Kerala filed by the appellant herein in this behalf.
32. Hence, based on the above averments the appellant in this appeal has sought for the indulgence of the Tribunal to set aside the impugned EC dated 18.11.2013 granted to the 17th respondent, the MoEF, to direct the 17th and 20th respondents to conduct a proper public hearing as prescribed in the matter of granting EC to the 18th respondent for setting up an airport and to direct the Government of Kerala to complete the proceedings initiated against the 19th respondent for restoring 49.725 acres of paddy land reclaimed to its original form.
Appeal No. 1 of 2014
33. This appeal has been filed by the appellant herein challenging the EC granted to the 3rd respondent namely M/s. KGS Aranmula International Airport Limited, Chennai by the 1st and 2nd respondents, namely the MoEF dated 18.11.2013. The Kerala State Pollution Control Board and the Secretary to Government, Department of Revenue of the State of Kerala are arrayed as 4 th and 6th respondents, respectively. The 5th respondent, Chairman, Committee of Environment, Kerala Legislature, Kerala is deleted. The facts of the case of this appellant as averred in the appeal grounds raised can be briefly stated thus:
34. The 3rd respondent herein as per letter dated 24.6.2011 and subsequent letters has sought EC under the EIA Notification, 2006 for the proposal of the 3 rd respondent to establish an international airport at Aranmula in Pathanamthitta district, Kerala. The land proposed for construction of the airport and other buildings 32 are part of a large extent of paddy fields "Nilam" covering more than 1200 acres. It is humbly submitted that paddy fields "Nilam" apart from providing paddy/rice for human consumption, serves for the upkeep of ecology in the area. Paddy lands, "Nilams" serves as reservoirs of rainwater which ensure the availability of ground water in the area, apart from providing drinking and irrigation water in the nearby wells. "Nilams" also serve as the breeding ground of a large number of fauna which are necessary for the upkeep of the local ecology. Moreover, Nilams also serve as the wind regulators for the local area. As stated in the objects and reasons of the Kerala Conservation of Paddy and Wetland Act 2008, there are indiscriminate and unregulated filling up of paddy land in the State of Kerala, which apart from resulting in food insufficiency has also adversely affecting the entire ecology and environment of the State of Kerala often called as 'Gods Own country'. Further, the proposed site for the airport is along the banks of one of the major rivers of Kerala, Pampa and is situated in an ecologically sensitive and environmentally diverse and rich area. Aranmula is home to the famous ancient "Parthasarathy" temple which is a protected monument by the Archeological Survey of India and which attracts lakhs of devotees across the country. The temple apart from the ancient architecture marvel is also home to 18th century murals that are well preserved and is recognized by the United Nations Development Program (UNDP). The temple by itself is surrounded by wetlands and the customs and traditions associated with the temple and its surrounding areas mirror the upkeep of the ecology of the wetland therein. The 3 rd respondent has continued to refill the wetland more specifically the water body, Karimaram channel which an effective water reservoir is collecting all the excess water during flooding of the river Pampa and this is running through the specified area. In consequence, the entire area has become prone to frequent flooding due to 33 the unnatural filling up of the land and has resulted in serious ecological imbalance. Till the enactment of the Kerala Conservation of Paddy and Wetland Act, 2008 as aforesaid, the filling up of paddy lands in the State of Kerala was regulated by the Kerala Land Utilization Order 1967, which was enacted under the Essential Commodities Act. As per the said order, for converting a paddy land for any other purpose, previous sanction from the District Collector was necessary as can be seen from clause VI of the Kerala Land Utilization Order. As per clause VII of the Kerala Land Utilization Order the District Collector has power to ensure that the illegal conversion of the paddy land is restored to paddy cultivate paddy in the area. Likewise, under the Kerala Conservation of Paddy and Wetland Act there is total prohibition of conversion or reclamation of any paddy land and Sec.13 enables the District Collector to restore the land, illegally reclaimed or converted. The Conservation of Paddy and Wetland Act as the name suggests was enacted seeing the urgent need to put in place legislation that would restrict the rampant conversion of wetlands and paddy lands resulting in widespread loss of ecological balance . The aims and objects of the Act state clearly that the legislation is enacted primarily to promote growth in agricultural sector and preserve the ecological balance of the State of Kerala. The conservation and preservation of wetlands and paddy fields are hand in glove with maintenance of ecological balance. India is a signatory to the Ramsar Convention on Wetlands and the Ashtamudi wetland which is a designated wetland under the Convention comes within the vicinity of the area proposed for this illegal airport by the 3rd Respondent. The 1st and 2nd respondents are bound to follow the conditions under the Convention which includes detailed studies to be conducted and measures to be undertaken to conserve the biodiversity of the wetland. The 1 st and 2nd respondents have very clearly ignored this fact while giving the impugned 34 clearance to the 3rd respondent. The fact that the land in which the proposed Aranmula Airport is to be established is a paddy land and there is total prohibition of converting any paddy land in the State of Kerala except for governmental public purposes. This aspect is totally suppressed in the proposal for EC made by the 3rd respondent. Though these aspects were clearly and unambiguously brought to the notice of respondents 1 and 2, these aspects which are of critical importance for considering the environmental clearance is seen ignored (Annexure AI).
35. The land measuring an extent of more than 350 acres, which is now proposed by the 3rd respondent for establishing the airport, was originally owned by one K.J.Abraham @ Kalamannil Abraham, Kalamannil House, Kozhenchery, Pathanamthitta. He had purchased about 350 acres of land in the name of two registered societies in which he was the Chairman and his family members are the office bearers. The aforesaid K.J. Abraham acquired vast extent of paddy field in Aranmula, Mallapuzhassery and Kidangannur village right from 2004 onwards. At that time the land purchased by K.J. Abraham was coming under the provisions of the Kerala Land Utilization Order 1967. The aforesaid K.J.Abraham proposed to the local Panchayat that he is intending to start an Aeronautical College and sought permission from the local Panchayat to reclaim 8 acres of paddy land. The local Panchayat without any authority whatsoever under any provision of law, arbitrarily issued permission for the reclamation of paddy land. On the basis of the alleged illegal permission granted by the local Panchayat, Shri.K. J. Abraham illegally filled up an extent of 49.725 acres of paddy land. This act prima facie was done in violation of the Kerala Land Utilization Order and Kerala Conservation of Paddy and Wetland Act 2008. This paddy land reclamation resulted in mass public protest by the local people. The illegal land filling by the said person also resulted in filling up of 35 irrigation canals which in turn caused flooding and other adverse effects to the nearby paddy fields. Vide letter dated 26.10.07 the Revenue Divisional Officer in his letter to the Tahsildar has explicitly stated that the aforesaid K.J. Abraham had illegally reclaimed 3.56 hectares of land and has also trespassed into 8.87 acres of Government land. It is further stated in the above letter that the reclamation of the Nilams/paddy fields is done by mining ordinary earth which is a minor mineral from his 5.92 Acres of land in Sy.No. 392/2. No sanction for mining ordinary earth is also obtained by the said K.J. Abraham. The letter dated 03.05.2008 of the Revenue Divisional Officer to the Circle Inspector of Police Aranmula and true copy of letter dated 09.02.2009 of the Assistant Engineer, Minor Irrigation Department to K.J. Abraham is evidencing the above fact. As can be seen from the letter, the Revenue Divisional Officer had directed the Sub Inspector of Police to ensure that there is no illegal filling up of paddy land. By another letter from the Irrigation Department, the said K.J. Abraham was directed to restore the land and the report of the Agricultural Officer would show that paddy cultivation has become impossible in large extent of paddy land because of the illegal filling and encroachment into government land. The above facts will show that there has been widespread illegal filling up of paddy land by the said K.J. Abraham and also encroachment in the irrigation canal. This will show that there is illegal filling up of a big canal to 800 m and the encroachment in the government land by the said K. J. Abraham. This will also show that an estimate of Rs. 19 lakhs as on 19.11.2009 is required for restoring the irrigation canal.
36. It is also clear from the letter dated 03.08.2008 that proceedings under the Kerala Land Utilization Order was initiated by the District Collector for restoring the illegally filled up paddy land. As per letter dated 22.10.2012, the Assistant Director, Agriculture also informed the Principal Agricultural Officer, Pathanamthitta of the 36 above illegality of filling up of paddy land. This also shows that out of the 315 acres of land possessed by the said Shri K.J. Abraham, about 70 acres are partially and illegally filled up, adversely affecting the irrigation facilities to the rest of the paddy lands. It is also reported that during the rainy season, when the holy river 'Pampa' starting from Sabarimala flows with full capacity, the flood like situation is prevented because the water flows to the paddy fields at Aranmula. Since the free flow of water through Kozhithodu is obstructed, the flood like situation in the area cannot be ruled out. It is also reported that because of the reclamation of paddy land, the ground water table in the area will be lowered and there is possibility of natural disaster as well as drinking water scarcity. Thus, it is clear that there has been illegal filling up of paddy land resulting in environmental degradation. The Joint Land Revenue Commissioner, State of Kerala,in his report dated 25.08.2012 has highlighted the illegalities in filling up of paddy land and has recommended a vigilance enquiry into the entire incident. Thus, it is absolutely clear that the major portion of the land now proposed by the 3rd respondent for establishing the Aranmula airport is still paddy land, and the balance portion is wetland. These are illegally filled up in violation of the Kerala Land Utilization Order as well as Kerala Conservation of Paddy and Wetland Act, 2008. It is clear that the revenue authorities are taking action to restore the paddy land, illegally filled up, to its original state. The fact that if the actions against illegal conversion of the paddy land are brought to logical conclusion by revenue authorities, the already filled up lands will become paddy fields again was not even considered. This vital aspect is suppressed by the 3 rd respondent while submitting an application for EC before the MoEF. As a matter of fact, the District Collector Pathanamthitta has informed the Additional Chief Secretary, Department of Industries by letter dated 23.7.2012 that almost the entire land possessed by the 3 rd 37 respondent which was obtained from aforesaid K.J. Abraham are paddy lands. The Legislative Committee on Environment of the Kerala Legislature Assembly in its report has clearly and in unambiguous terms found that major portion of land held by the 3rd respondent is paddy land and that the committee cannot agree with the development activity that would destroy water resources, acres of paddy fields which are cultivated for centuries and also would destroy the biodiversity of the area. The legislative committee has also observed that action for the illegally converting paddy land under the Land Utilization Order and Kerala Conservation of Paddy and Wetland Act should be taken. The Environment Committee of the Kerala Legislative Assembly had filed the report after eliciting views of at least 3000 people in the locality whereas the alleged public hearing held for obtaining the EC was attended by just about 80 persons including the officials. Moreover, the entire aspect regarding the illegal filling up of paddy land was enquired by the Joint Land Revenue Commissioner, State of Kerala who filed a report on the land issues connected with Aranmula Airport. This will show that there has been illegal conversion of paddy land as well as illegal filling up of poramboke/government 'thodu'. The Land Revenue Commissioner has recommended a vigilance inquiry into the whole issue. The Government of Kerala has filed a report before the MoEF. As can be seen from 2 nd page of Annexure A XIV, the government has reported that the allegations made regarding the illegal filling up of paddy land etc., if true, is very grave and that could erode the validity of the environment impact assessment study. However, in spite of Annexure A XIV, not even an enquiry is made regarding the alleged illegal filling up of paddy land and also the proposal for filling up of about 350 acres of paddy land, before issuing EC. In fact, the Government of Kerala has itself brought to the notice of the Union of India that a portion of paddy land has been filled up, and this can 38 have adverse environmental impact. It is not known whether the agency which conducted the EIA considered this aspect. It is proven that filling up of wetland can adversely affect ground water recharge which would in turn disturb the agricultural activities of the nearby areas. Further, it is true that earth is required for filling up of wetlands to make it suitable for the project. This ought to have been identified before hand and EIA should have looked into that aspect also. However, these aspects were totally ignored while passing EC order.
37. The Kerala State Assembly has got 140 elected members of legislature. Majority of the MLAs of Kerala Legislative Assembly cutting across political affiliations i.e. 72 MLAs have addressed a letter to the Hon'ble Prime Minister of India, stating that there has been illegal filling up of wetland, paddy field as well as canals and that the majority of the MLAs of Kerala Legislature has submitted to the Hon'ble Prime Minister that the project has no moral, legal or scientific ground for existence and it is an impractical project which would cause irreversible damage to the environment. Hence the majority of the MLAs of Kerala Legislative Assembly as well as retired Judges of Hon'ble Supreme Court and High Court of Kerala, religious leaders of all faiths, political leaders of all political parties as well as former diplomats had requested for rejecting the proposal of the airport. These documents will clearly show that the land in which the proposed airport is to be established is a paddy land. These are ignored while granting the impugned EC. In the State of Kerala filling up of paddy land for governmental public purpose is illegal. Annexure A I in the impugned EC mentions that the paddy fields have to be filled for run way, apron, taxi way etc. The Chief Operating Officer of the 3 rd respondent admits that about 350 acres of uncultivated paddy land is to be filled up for providing public utility service as part of the project. In the feasibility study conducted by the Airport Authority of India, 39 New Delhi (AAI) it is clearly mentioned that on the date of visit of the Expert Committee i.e., on 15.10.2009, filling up of land for the purpose of runway is going on. Admittedly, the aforesaid filling up activity is done in paddy land, which was prohibited under Sec.3 of the Kerala Conservation of Paddy and Wetland Act. The photographs attached to Annexure A XVII feasibility study would show the illegality perpetuated even after Kerala Conservation of Paddy and Wetland Act 2008 has come into force. As per the copy of the letter dated 10.06.2009 issued by KITCO Limited to the Hon'ble Chief Minister of Kerala, it is necessary to convert 350 acres of paddy land to cater the requirement of the proposed project. Thus, it is absolutely clear that the land proposed is a paddy field and under the present enactment namely Kerala Conservation of Paddy and Wetland Act 2008, there is an absolute and total prohibition of conversion or reclamation of paddy land. Sec.2 (xii) defines paddy land as all types of land situated in the State where paddy is cultivated at least once in a year or suitable for paddy cultivation but uncultivated and left fallow. Thus, the entire land proposed for the project is a paddy land as defined under Sec.2 (xii) of the Kerala Conservation of Paddy and Wetland Act. Sec.3 prohibits reclamation or conversion of paddy land except under Sec.10 which provides for grant of exemption. However, Sec.10 does not enable the government to grant exemption from the provisions of the Act except for any public purpose. Public purposes defined under Sec.2 (xiv) is that the schemes undertaken or financed by the State or Central Governments or statutory bodies or other schemes specified by the government. Thus, only if the project is financed or undertaken by the State Government, the exemption can be granted. In Annexure A I, in order to overcome the Kerala Conservation of Paddy and Wetland Act, the State Government has observed that since approximately 100 acres of land is notified as industrial area and since the 40 reclamation was before 2008, the Kerala Conservation of Paddy and Wetland Act 2008 is not applicable. Both these grounds do not stand scrutiny of law. The notification SRO.No.185/2011 declaring that the area is an industrial area has absolutely no relevance vis-a-vis the Kerala Conservation of Paddy and Wetland Act 2008. Once it is found that the land is a paddy land as defined under Sec.2 (xii) of the Kerala Conservation of Paddy and Wetland Act, there is no escape from the provisions of the Kerala Conservation of Paddy and Wetland Act. The 2 nd reason stated is that reclamation was done prior to the coming into force of Kerala Conservation of Paddy and Wetland Act 2008. This itself is not correct in view of the report of the KITCO (Annexure A XVIII), feasibility study of the AAI as well as the letter of the 3rd respondent Annexure A XVI, which will show that even after commencement of the Kerala Conservation of Paddy and Wetland Act, the paddy lands need to be converted or reclaimed and are being reclaimed as can be seen in the photographs of Annexure A XVII report of the AAI. Apart from that, even if the reclamation of paddy land is made prior to 2008, the law that is applicable is the Kerala Land Utilization Order 1967. It is abundantly clear from documents contained in Annexure A II to X that actions are being initiated by revenue authorities against illegal reclamation of the paddy land both under the Kerala Land Utilization Order as well as under the Kerala Conservation of Paddy Land Act. Hence, the observation made in EC (Annexure A I) that since the area is declared as an industrial area and the reclamation if done before the commencement of the 2008 Act, is not legally sustainable is not tenable. Even in the said observation of the State Government, in Annexure A I paragraph VII (1), it is admitted that paddy field is left fallow and natural irrigation facilities have been encroached upon and blocked at several places by K.J.Abraham who had allegedly sold the property to the 3 rd respondent. Hence, the 41 observation in Annexure A I that the Kerala Conservation of Paddy and Wetland Act will not be applicable is not correct.
38. The proposal involves development of an airport in Pathanamthitta district in a plot of area 500 acres. It is revealed that in the meeting held on 21 to 23 September 2010, the ToR was finalized. In the said ToR, the issue regarding filling up of paddy land was not one of the points to be noted. When there was newspaper report and complaints, the project was again reconsidered by the EAC in September 2011. Thereafter, the EAC noticed that there is allegation of inclusion of wetlands and conversion of paddy lands in the project. This was put to the proponent as well as the government. On the basis of the reply filed by the government as well as the proponent it was found that there is no paddy cultivation for past 10 years which is not factually correct. Moreover, even if there is no cultivation of paddy for ten years, it does not take the land out of the purview of Kerala Conservation of Paddy and Wetland Act. As can be seen from relevant pages of the note file of the Government of Kerala (Annexure A XX) in reply to the enquiry made by the MoEF, based on the article in 'The Hindu', the Additional Secretary has given his observation. As can be seen from Annexure A XX it was mentioned that the enquiry report of the Directorate of Environment and Climate Change does not reveal reclamation of wetland. As for the reclamation of the land where paddy cultivation was there ten years also it requires statutory clearance, it is for the proponent to get the clearance. All these should be examined as a part of EIA Process. However, as can be seen from EC (Annexure A I) none of these aspects was examined. In para 52 of the Annexure A XX, it is admitted that the promoters without obtaining clearance have filled up wetland. It is also reported that commencement of the work without getting clearance from the MoEF is illegal. It is also admitted that filling up of wetland has 42 environmental impact and that the agency which conducted the environmental study has not considered this aspect. The MoEF was requested to consider this aspect. Further in paragraph 54, it is also admitted that ordinary earth is required for further frilling up of wetland to make it suitable for the project and the EIA should have considered that aspect also. This was also not considered while issuing EC. Moreover, the fact that there is no paddy cultivation and the paddy land is left fallow and uncultivated does not mean that the land goes out of the definition of the paddy land under the Kerala Conservation of Paddy and Wetland Act and also looses the character of natural paddy land except that there is no cultivation of paddy, a paddy land even if left uncultivated for 10 years, serves all other ecological purposes including serving the upkeep of the ground water table, breeding ground and fauna and the balancing factor of the local environment. However, as can be seen from Annexure A XIX, the EAC has brushed aside these allegations even though it is clearly found that filling is required for development of runway, taxi way etc., and the details of area required to be filled, were not addressed in the EIA. However, accepting a vague reply from the 3rd respondent, the EAC recommended the proposal for EC. Thus, it is clear that the ToR, was finalized without including the question regarding the existence of paddy fields and filling up of the same.
39. As can be seen from the feasibility study prepared by the AAI, in the suggestion and recommendation in clause VI, it is clearly stated that as the possible approach would be from 34 N, the hillocks situated near the area can be obstruction for navigation aids. Hence, action to acquire and level the hillocks should be initiated. However, in the ToR as well as in EC, the environment impact of removing of these hillocks is clearly omitted.
43
40. The proposal made by the 3rd respondent in Form No.1 would show that there is no necessity for making any new roads or other transportation facility for the purpose. However, as can be clearly seen from the report of the AAI, there is not even an approach road to the site in question where the airport is proposed. The documents produced before the Central Government would show that there is necessity to provide four lane road from the proposed site of airport to a distance of more than 8 km in two directions. Thus, the proposal of the airport and the construction of at least four lane new roads to a distance of 16 km is an integral part of the project. Without roads or other transport facilities, functioning of an airport is impossible. For construction of the aforesaid roads, large extent of paddy fields and wetlands haves to be reclaimed and filled up. Apart from causing environmental disaster in the area, the filling up of paddy land needs ordinary earth. Thus, the social impact of the establishment of the airport by the 3 rd respondent especially the necessity of road connectivity should have been a critical item of ToR, which is not included in ToR, nor is this aspect considered in the EC.
41. The MoEF, as per Notification No. SO 1533 dated 14.09.2006, has issued the notification, prescribing the procedure for getting EC. As a part of the screening, scoping and appraisal of the project, there is a procedure called "public consultation". As can be seen from clause III (ii), the public consultation shall ordinary have two parts. (i) Public hearing at the site and (ii) responses in writing from other concerned persons having stake in the environment. Appendix 4 of the said notification prescribes the procedure for public hearing. As can be seen from clause 2.3 and 2.4, on receipt of the draft EIA report, the authority shall arrange wide publicity of the report to elicit the views of the public. The State Pollution Control Board has also a duty to conduct a public hearing. Clause 3 of the appendix to the notification shows 44 that the Pollution Control Board has to advertise in two daily news papers, the exact date, time and venue of the conduct of public hearing and minimum notice period of 30 days shall be provided for furnishing the responses. Clause 3.2 shows that the advertisement shall inform the public about the place where the public could access the report before the public hearing. Clause 3.3 provides that no postponement of the date or time or venue of the public hearing shall be undertaken unless the emergency contingencies mentioned in the clause happen. Clause 3.4 provides that, if the public hearing is adjourned, the procedure prescribed under clause 3.1 has to be again undertaken.
42. In the present case, there had been hasty attempts to conduct the alleged public hearing with the sole purpose of ensuring that the procedure is complied with in a mechanical manner, without holding on to the spirit of the necessity of public hearing. This is clear from the following facts: On 02.02.2011, the 3rd respondent requested the Kerala State Pollution Control Board to arrange public hearing on the basis of the EIA report. The next day, in the Pollution Control Board letter dated on 03.02.2011, the Secretary of the Kerala State Pollution Control Board wrote to the District Collector for arranging a public hearing on behalf of the Board. The District Collector immediately made arrangements for public hearing to be held on 10.03.2011 at Collectorate Conference Hall, Pathanamthitta.
I. As can be seen from Annexure A XXI the public hearing is related to the environmental issues of water, air and sound pollution by construction of the airport in 347 acres of land. No agenda on reclamation of paddy lands or use of illegally filled up paddy lands.
45 II. The public hearing notice does not make any mention of the conversion of paddy land for the purpose of construction as well as leveling of hillocks and using of ordinary earth, a minor mineral, for filling purpose. It does not mention the issue relating to construction of four lane roads for 16 km.
III. On 04.03.2013, the Pollution Control Board in its attempt to ensure hasty public hearing, requested the Chief Electoral Officer to permit conduct of the public hearing on 10.03.2011 itself. The Chief Electoral Officer informed the Pollution Control Board that the public hearing has to be deferred till the election process is over. The said information is issued as per letter dated 07.03.2011 of the Electoral Officer to the Secretary of the Pollution Control Board.
IV. The Pollution Control Board by letter dated 24.03.2011 in its anxiety to hold public hearing at the earliest again wrote to the District Collector to conduct the public hearing immediately after the election was over i.e., on 13.04.2011, though the election process would be over only after counting and declaration of result.
V. The 3rd respondent met the Chief Electoral Officer and obtained permission to conduct the public hearing after the poll process was over on 13.4.2011.
VI. The Pollution Control Board requested the District Collector to convene the Public Hearing on 29.04.2011 at 11 am in the Office of the District Collector. The newspaper publication was 46 made in 'The Hindu' daily on 27.03.2011 that the Public Hearing for construction of new airport at Aranmula would be held on 29.4.2011. As can be seen from newspaper report dated 27.03.2011 in Annexure A XXII, the advertisement did not reveal whether it was an advertisement in accordance with the prescribed procedure for public hearing for the purpose of EC. In contrast to Annexure A XXI newspaper advertisement did not reveal the purpose of public hearing. It only said the postponed public hearing for construction of airport will be held on 29.4.2011. The said advertisement itself is faulty.
VII. However, no public hearing was held on 29.04.2011 also because of inconvenience of the District Collector. The local land owners have, in the meanwhile, filed objection before the District Collector regarding the aforesaid project. As per the document in Annexure A XXIII, the paddy land is proposed to be filled up for the purpose of airport is not mentioned.
VIII. Since the Public Hearing on 29.04.2011 was not held, the Pollution Control Board by letter dated 06.05.2011 informed the District Collector that the Public Hearing should be held on 10.05.2011 at 11 am in the conference hall of the Collectorate and the details regarding the public hearing should be published. However, to the knowledge of the Appellant, no newspaper advertisement regarding the public hearing scheduled to be held on 10.5.2011 as mandated in the notification of the Union Ministry was published.
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43. The appellant is an environmentalist who campaigns against illegal and disastrous exploitation of environment and is in the forefront of the people's agitation against Aranmula Airport and also a member of Wildlife Board constituted by the State Government. In Pathanamthitta District the contest between the rival political fronts was very intense and one of the major issues was the proposed Aranmula airport. The election process in the State of Kerala started on the first week of March 2011 the polling was held on 13.04.2011. The counting of votes was posted on 11.05.2011. This means that on 10.05.2013 - the penultimate day of counting many of the persons who are involved in political activities like the appellant were in the midst of arranging the party workers as the counting agents and other work in the connection of election process. Apart from that, the politically conscious Kerala people were all eagerly waiting for the election results. It is at the midst of this highly contested election, an excuse of public hearing was conducted in order to complete the formalities prescribed without complying with the spirit of the purpose of public hearing. As a matter of fact, the appellant was present for the public hearing on 10.3.2011 as well as 29.04.2011. On both these days the public hearing was adjourned. There was no newspaper advertisement regarding the public hearing on 10.05.2011. The conduct of the public hearing on the penultimate day of counting of votes in the ballot boxes in a politically conscious state is solely for the purpose of avoiding public participation in the public hearing. This is abundantly clear from the fact that in the alleged public hearing held on 10.05.2011 the total number of participants was only 80 persons, whereas in the public hearing conducted by the Environment committee of the Kerala Legislative Assembly on the same issue more than 3000 persons participated.
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44. The illegality of public hearing without proper newspaper advertisement can be seen from the copy of the minutes prepared by the Pollution Control Board as per the document in Annexure A XXV. As can be seen from Annexure A XXV, there is no mention regarding the newspaper advertisement of the public hearing held on 10.05.2011. It also shows that only 80 persons including officials participated. Even the copy of minutes of the proceedings would show that many of the participants had raised the issue of illegal reclamation of paddy land though it was ignored as not part of agenda. Hence, it is absolutely clear that the public hearing held on 05.10.2011 is a farce and without proper notice.
45. A reading Annexure A I of EC would show that the proponent had got ownership and title over 350 acres of land in the aforesaid area. This is the impression one gathers from the list of survey number and lands given as annexure to Form No. I. However, this list is the list of lands notified as industrial zone. It has nothing to do with ownership of 3rd respondent. In fact, the majority of land mentioned in annexure to Form No. I belong to other persons. Moreover, (i) the claim of the proponent/3rd respondent is that they purchased the land as aforesaid from one K.J.Abraham. It is pertinent to note that under Sec.83 of the Kerala Land Reforms Act, no person can hold any property in excess of the ceiling area. Sec.82 of the Kerala Land Reforms Act provides that the maximum land that can be held is 15 acres and the balance excess land automatically vest with the government by fiction of law. In the present case the person who allegedly sold the subject matter of land to the 3rd respondent was holding land far above the ceiling area. The land board has booked a ceiling case under the Kerala Land Reforms Act against the aforesaid person. Under Sec.84 of the Kerala Land Reforms Act, any voluntary transfer of property, by any person holding excess land, is invalid. Hence, the 3 rd 49 respondent who claims to be the transferee from the aforesaid K.J.Abraham cannot have even title or ownership over the property. Thus Annexure A I and the entire process is based on a wrong factual assumption that the 3 rd respondent has title to the aforesaid property. This made abundantly clear by the letter issued by the government to the Department of Environment. Annexure A XXVII admits that the land is excess land under the Land Reforms Act. However, it says that exemption can be granted under the Land Reforms Act regarding the ceiling area. It is brought to the notice of the tribunal that no such exemption can be granted under Sec.81(3) of the Land Reforms Act for various reasons especially in favour of 3 rd respondent who is not even an owner of the land.
46. The details given by the 3rd respondent in Form I are misleading and incorrect and for that reason alone the grant of EC is liable to be rejected. As can be seen from the details mentioned in Annexure A XXVII they are either absolutely false or half true. The details are given below.
I. In column 3 of clause 1.0, it is stated that the proposed area is only 16,250 square meters, which is absolutely false. The area covers at least 10 times the area mentioned in the said entry. In clause 22 of the same table, it is wrongly mentioned that there is no government order or relevant policy relating to the site. As can be seen from Annexure A II to XIV there are various reports of the government and government officials regarding the illegal reclamation of paddy land.
II. Entry in clause 24(c) that there is no order or direction of the court is absolutely false.
50 III. In clause II serial No.1.1 it is wrongly stated that no permanent or temporary change in land use, land cover or topography including increase in the intensity of land use will be there by construction of the proposed airport. This is absolutely false since large areas of paddy land and wetland will be converted and used and there will be total change in the land use pattern, the land cover and the topography of the land. This will also cause increase in the intensity of land use. Likewise, the documents produced in the above application would show that there is thick vegetation and also there will be threat to the biodiversity in the entire paddy land. Clause 1.2 sways that the vegetation and buildings will be relocated. Likewise, clause 1.3 falsely says that there is no creation of new land uses. Clause 1.10, falsely says that no reclamation work in the project is necessary. This is only to mislead the authority, especially to show that there is no paddy land in the area, which is factually incorrect.
IV. Clause 1.17 wrongly says that no new road for traffic is necessary and already roads exist. This is factually incorrect. There is not even a approach road to the site. Moreover when the operation of the airport commences there will be at least two four lane roads having 8 kilometers length each.
V. The answer to clause 1.24 that there will be no change in the water bodies or land surface affecting drainage or runoff is wrong.
VI. Clause 2.1 falsely says that there is no undeveloped or agricultural land in the project site. The last page of Form No. 1 deals with the pattern of land. It is wrongly stated in serial No. 1 that the 51 land in which the project is proposed is not covered by any local legislation for ecological, land scale and other related value. As a matter of fact, the land is clearly covered by the Kerala Conservation of Paddy and Wetland Act, the Kerala Land Utilization Order as well as the wetlands under the RAMSAR convention. It is also wrongly stated that the Pampa River is 2 kilometers away from the project. Pampa River is laying very adjacent to the project.
VII. Answer to clause No.8, 9 and 10 are also false. Hence it is absolutely clear that application has been filed by the 3 rd respondent suppressing material facts. The resultant ToR prepared by the EAC and Annexure AI ecological clearance is also illegal.
47. The objections of Salim Ali Foundation were totally ignored. Salim Ali Foundation, Ayyappankavu Road, Kanimangalam, Thrissur, which is an organization functioning for the protection of ecology has filed a detailed report regarding the potential ecological, social and economic impacts of the proposed project. The Salim Ali Foundation has pointed out various environment disasters that may occur in the area if the aforesaid project is implemented. This includes the loss of intangible values of wetlands and paddy lands in the proposed site as well as adjoining area. It also points out in paragraph 37 to 42 the net physical value of the land which will be lost by the starting of the proposed project. The total benefits of the paddy fields and wetlands from the proposed airport area will be about Rs. 335 to 440 crore per year because of loss and damage. It also points out the total lack of application of mind in preparation of the Environment Impact Assessment report. However, in the EC, nothing is mentioned about the findings of the report. It brushed aside the said report, on the basis of an observation by the State 52 Government that there is no wetland as mentioned in the report. In the observation of the government extracted from EC, it is wrongly stated that report has confused paddy land and wetland. At any rate, since the land which is proposed to be used for the said project is a paddy land which not only serves as a food production area but also serves for the recharge of ground water level and upkeep of the local ecology, the question regarding NPV at least have been addressed.
48. It is clear from the various reports and documents produced as Annexure A II to VI that the tributary of Pampa River, ValiyaThodu as well as Kozhithode which serve as the irrigation water source to the entire paddy fields have been encroached and filled up by the proponent and his predecessor in interest. Steps have been taken under the Kerala Land Conservancy Act for recovering the aforesaid Government land. However, the Environment Impact Assessment Report ignores these allegations also.
1. As a matter of fact, the appellant herein has filed W.P. (c).No.15101/2013 before the Hon'ble High Court of Kerala seeking direction to restore the illegally filled up paddy land, now in possession of 3rd respondent and which is proposed for the construction of airport.
49. Hence, the appellant herein has sought for the indulgence of the Tribunal to:
i) Call for records leading to the EC given by the MoEF, Union of India as per letter dated 18.11.2013 in favour of the 3rd respondent. 53
(ii) Direct the respondents to remove all constructions made, excavate the paddy lands and wetlands filled in, remove any and all obstructions to the flow of water and restore the area to its original pristine state. Direct the 3rd Respondent to restore the Karimaram Chaal to its original flow.
(iii) Declare that the ToR finalized which resulted in Annexure A I does not cover the core environmental issues relating to the establishment of the proposed Aranmula Airport.
(iv) Declare that the public hearing alleged to have been held for the purpose of considering the EC for establishment of the Aranmula Airport is invalid and insufficient.
Appeal No. 19 of 2014 (SZ)
50. The appellant herein is a social worker and a resident of Kozhencherry Taluk of Pathanamthitta District in the State of Kerala, where the proposed Aranmula Airport Project is to be located. He earlier served as the President of the Pathanamthitta District Panchayat and is a Member of Kerala Pradesh Congress Committee at present. The appellant is an activist for protection of environment and promoting paddy cultivation in the Aranmula locality. He is deeply aggrieved by the EC issued to the proposed airport and its allied activities as it will seriously affect the life and livelihood of the people living in Kozhencherry Taluk in particular and Pathanamthitta district in general as it will result in environmental degradation, stoppage of paddy cultivation in puncha padashekharam (paddy fields) in Aranmula and depletion of ground water. He files this appeal challenging the EC granted to the 54 Aranmula Air Port Project as a person affected by the project and the negative impact on paddy land, depletion of ground water and environmental degradation will directly affect him as also a committed social and political worker, several other persons affected by the project are also complaining to him about the ill consequences of the project. The appellant has arrayed the MoEF as the 1 st respondent, State of Kerala as the 2nd respondent, M/s. K.G.S. Aranmula Airport Ltd., as the 3rd respondent, Kozhencherry Charitable Education Society as the 4 th respondent, who was subsequently given up during the proceedings of the appeal before this Tribunal, M/s. Enviro Care India Pvt. Ltd., as the 5 th respondent, Kerala State Pollution Control Board as the 6th respondent and the District Collector, Pathanamthitta District in Kerala State as the 7th respondent. The short facts of the case leading to the filing of this appeal as could be gathered from the grounds of the appeal filed herein can be stated thus:
51. The impugned EC is issued without considering several environmental, ecological and social aspects. Conversion of puncha (paddy fields), it consequences etc., were not even adverted to by the 1st respondent/MoEF. Similarly, the aspects relating to leveling of neighboring hills and the development of airport , allied buildings, construction of road etc., etc., were not addressed. The 3 rd respondent/K.G.S. Aranmula Airport Pvt. Ltd., suppressed several vital details in the application made seeking EC. The EIA report prepared by the 5th respondent/Enviro Care Pvt. Ltd., is legally defective and is factually inadequate. The EIA report was not prepared by the competent persons and ex facie, the impugned EC is bad for non consideration of relevant aspects and irrelevant considerations. The details given in the application form in Form I seeking EC did not reveal that the proposed construction of the project is going to be made in paddy land and that the land use is 55 to be changed or that there will be reclamation of paddy land. Suppression of this vital aspect has resulted in fundamental error of EC as at no point of time, the respondents considered the fact of reclamation of paddy land and its consequential impact on the ecology and environment in its proper perspective. There was also no impact assessment study relating to conversion of paddy lands. Rice is a major wetland crop and paddy fields in Kerala are typical wetland eco-systems that serve numerous important ecological and environmental functions and conversion of paddy fields involves irreversible transformation of the wetland agro-ecosystems. The Aranmula puncha and other paddy fields in adjacent villages from the flood plains of river Pampa and they serve as natural flood control mechanism. None of these aspects was considered by the 1st respondent/MoEF while issuing the impugned EC.
52. In a letter dated 01.06.2013, (Annexure A14), the 2 nd respondent/State of Kerala specifically brought to the notice of the 1st respondent/MoEF about some grave issues raised in the report of the Salim Ali Foundation (Annexure A2), which if true, will erode the validity of the EIA study and requested to examine those issues before granting EC and none of these issues was addressed in the impugned EC by the 1st respondent/MoEF due to non application of mind. While the letter dated 01.06.2013 of the 2nd respondent was referring to the impugned EC for extracting the views of the 2nd respondent/State of Kerala the land in question as wetlands, instead of adverting to the expression used in that latter, the 1 st respondent/MoEF ought to have considered the true nature and significance of the land in question. The 1 st respondent/MoEF proceeded on the wrong premise that the reclamation of paddy land by the prior owner, the 4th respondent/Kozhancherry Educational Charitable Trust is legal and valid. Till the date of judgment dated 24.02.2005 in W.P.(C ).No. 3917 of 2005 of the Hon'ble Kerala High Court, (Annexure A3), the 4 th respondent 56 namely the Kozhencherry Education Trust, the previous owner had no permission to reclaim the paddy land and even subsequent to that date also, no permission was issued by any competent authority to the 4 th respondent to reclaim the paddy land in controversy and contrarily, the competent authorities found that the reclamation of paddy land by the 4th respondent was illegal and ordered to be restored. The legal effect and consequences of those proceedings were not enquired into by the 1 st respondent/MoEF. The observations of the AAI (Annexure A16) following the inspection held on 02.07.2012 would show that there are obstacles to the proposed runway approach due to location of a hill and rubber plantation and require to be removed after obtaining environmental clearances and these aspects have not been considered by the MoEF/1st respondent while issuing EC. The issues relating to leveling of the nearby hills were not made a subject matter for enquiry.
53. There is total non application of mind while permitting reclamation of paddy land for the purpose of runway as the length, orientation etc., were not finalized. As per the paragraphs 2.2.1 in Annexure A 6 and Annexure A 20, the proposed length of the runway is 2800 m in Phase I. In Annexure A 11, the 3 rd respondent/Aranmula Airport Pvt. Ltd., claimed that the construction of runway to a distance of 1500 m has been already completed and in addition to the existing runway to extend it to another 1000 m. Whereas, after quoting the letter from the 3 rd respondent/Aranmula Airport Pvt. Ltd., the 1 st respondent/MoEF has recorded in paragraph 6(iii) of the EC that the previous owner had filled the runway of 1000 x 150 m for airstrip and the only area required for runway 1000 x 150 m will be filed and accorded permission to reclaim 1000 x 150 m. According to the impugned EC, the length of the runway is 2000 m and it is all the more relevant to state that according to the original project report prepared by the Consultant (KITCO), the 57 proposed length of runway is 3100 m. Going by the documents on record, there is no certainty on the actual length of the runway and the required area of paddy land to be reclaimed. But, as per the observations made by the AAI (Annexure A 16) it is recommended for displacing the threshold of runway by 285 m in view of the obstacle reported due to the existence of temple mast. As such, the 1st respondent ought not to have given any permission to reclaim paddy land before finalization of runway orientation and ascertaining its actual length. The issuance of clearance to fill the paddy land at 1000 m and therefore, issuance of piecemeal EC without taking the proposed project as a whole or considering cumulative effect of the project are illegal.
54. Majority of the Members of the Kerala Legislative Assembly and Assembly Committee for Environment pointed out that the proposed airport project that is going to be established in the paddy land to be reclaimed would cause severe environmental degradation. But, none of the aspects pointed out therein were considered in its proper perspective by the 1st respondent/MoEF while issuing the impugned EC.
55. The issuance of SRO No. 185/2011 dated 24.02.2011 referred to in paragraph 7(i) of the EC itself is illegal as the EC is not preceded by the EC as required in paragraph 7(c) of the Schedule to the EIA Notification dated 14.09.2006. Moreover, no specific permission is granted to reclaim any paddy land by any of the competent authorities and the reclamation already made by the 4 th respondent is illegal. Even assuming that the SRO No. 185/2011 dated 24.0.2011 whereby certain areas are declared as industrial area is valid, still permission under Kerala Conservation of Paddy Land and Wetland Act, 2008 is required for filling up any 58 paddy land. In the instant case, no such permission is given to 3 rd respondent for filling up paddy land. On this count also, the EC given for filling up the paddy land is illegal and unsustainable.
56. The public hearing that preceded the grant of EC was not conducted in accordance with law. As per the minutes with covering letter dated 13.05.2011 (Annexure A7), initially the public notice of hearing was published in the newspapers on 06.02.2011 after scheduling the date of hearing as 10.03.2011. Later, it was postponed to 29.04.2011 and was ultimately held on 10.05.2011. No notice was issued for the public hearing as required in paragraph 3 of the Appendix IV of EIA Notification, 2006 for the public hearing held on 10.05.2011. Since no proper notice was given, the participation of project affected people in the public hearing was very low and the entire proceedings were concluded within 120 minutes. The appellant was denied the opportunity to participate in the public hearing for want of proper information/notice while hundreds of people participated in the public hearing conducted by the Kerala State Legislative Assembly Committee on Environment.
57. From the reading of the application made by the 3 rd respondent seeking EC in Form I dated 28.06.2010 (Annexure A4) and the copy of the ToR finalized by the EAC on 13.10.2010 (Annexure A5) with regard to the proposed airport project of the 3rd respondent, there was complete suppression of the fact of the establishment of the proposed airport project required filling of paddy land. The report of the Salim Ali Foundation (Annexure A2), report of the Kerala State Legislative Assembly Committee on Environment regarding Aranmula Greenfield International Airport (Annexure A17) and the letter dated 13.07.2013 submitted by the 72 Members of the Kerala State Legislative Assembly to the Hon'ble Prime Minister of India would show 59 that the issue of paddy land reclamation is very vital to the aspects relating to the EC and is the root cause of public opposition to the project. In the circumstances, the 1 st respondent/MoEF ought to have ascertained the ground situation by obtaining a proper local inspection report before according any clearance which would have revealed the significance of Aranmula paddy land and the hollowness of the claim by the 3rd respondent.
58. By the letter dated 26.06.2012 of the State of Kerala/2 nd respondent addressed to the 1st respondent/MoEF, it has been categorically informed that the portion of land which was paddy land and has been filled, which can have environmental impact. No clearance has been taken for filling up paddy land. According the Kerala State Paddy and Wetland (Conservation) Act, 2008, prior sanction of the Committee authorized for filling such areas is required. But, this crucial aspect was not even probed by the EAC or by the 1 st respondent/MoEF. The EIA report was not prepared in accordance with "Environmental Impact Assessment Manual for Airports (Annexure A19) and the EIA Report for the construction of new airport at Aranmula prepared by the 5th respondent/Enviro Care India Pvt. Ltd., (Annexure A20) are factually misleading.
59. As per the Office Memorandum of the 1st respondent/MoEF bearing No. F. No.J-11013/77/2004-IA II (I) dated 30th September 2011 (Annexure A 24), the application for accreditation submitted by the 5 th respondent/Enviro Care India Pvt. Ltd., was rejected by the Quality Council of India. But, however, as per Office Memorandum of the 1st respondent/MoEF bearing F.No.J-11013/77/2004-IA II(I) dated 30.06.2011(Annexure 23), the Consultants whose application for accreditation was pending were permitted to submit report/certify documents to appear only upto 60 September 2011. As such, the EAC went wrong in considering the EIA report prepared by the 5th respondent/Enviro Care India Pvt. Ltd., in September 2011, December 2011 and in August 2012 as per the extract of the minutes of the 105 th, 107th and 115th meetings of EAC (Annexure A8-A9), respectively and the EAC ought to have rejected the application made by the 3rd respondent seeking EC in Form I dated 28.06.2010 (Annexure A4) and the EIA report for the construction of new airport at Aranmula prepared by the 5th respondent/Enviro Care India Pvt. Ltd., (Annexure A20) as the application of the 5th respondent/Enviro Care India Pvt. Ltd., seeking accreditation was rejected by the Quality Council of India at the time when they considered the EIA report. Hence, the 1st respondent/MoEF was completely wrong in issuing the EC based on the EIA report prepared by an incompetent agency.
60. The validity of the EIA report prepared by a Consultant is subject to and is dependent on its accreditation/recognition by the Quality Council India. Pursuant to the Office Memorandum of the 1st respondent/MoEF bearing No. F. J- 11013/77/2004-IA II (I) dated 02.12.2009 (Annexure 21) and subsequent office memorandums, applications seeking accreditation of Quality Control of India were submitted in early 2010. In view of elaborate procedure for processing the applications, the application submitted by the 5 th respondent/Enviro Care India Pvt. Ltd., was processed only between June-September 2011 and this would not mean that EIA report prepared by the 5th respondent/Enviro Care India Pvt. Ltd., is valid irrespective of accreditation. If the 5th respondent/Enviro Care India Pvt. Ltd., is incompetent to submit a report after September 2011, then it is only to be found that they were incompetent throughout. In complete violation of Chapter 12 of Environmental Impact Assessment Manual for Airports (Annexure A19) and 61 Appendix III of the EIA Notification, 2006, the 5 th respondent/Enviro Care India Pvt. Ltd., refused to disclose the names of the consultants with their brief resume in the copy of the summary of EIA report circulated by the 3 rd respondent/K.G.S. Aranmula Airport Ltd., (Annexure A6) as well as the Environmental Impact Assessment Report for the construction of new airport at Aranmula prepared by the 5th respondent/Enviro Care India Pvt. Ltd., (Annexure A20) and the persons who prepared the EIA report in respect of the airport project in question were not experts in the relevant sector. Even in 2013 as is evident from minutes of the 94th Accreditation Committee Meeting of the Quality Council of India, dated 8th January 2013 (Annexure A25), the 5th respondent/Enviro Care India Pvt. Ltd., is neither competent to prepare an EIA report for Category A projects nor having any experts in its roll to conduct study in the airport sector and on this count of incompetency/want of expertise of persons who prepared the report also, the same is liable to be set aside.
61. No final report as required under the relevant law was prepared by the 3rd and 5th respondents (M/s. K.G. S. Aranmula Airport Ltd., and Enviro Care India Pvt. Ltd., respectively). In view of total absence of details of paddy land for reclamation for the proposed airport project, the 1st respondent/MoEF ought to have ordered to conduct a final EIA study with special reference to the paddy land reclamation and other allied aspects. The 1st respondent/MoEF has therefore went wrong in clearing the project without a final EIA report that covers all relevant environmental aspects.
62. As is evident from the reply made by the representative of the 3 rd respondent/K. G. S. Aranmula Airport Ltd., (referred to in Annexure A7 'Notes of Public Hearing') they already committed to undertake a comprehensive environmental impact assessment study in continuation of EIA report for the 62 construction of new airport at Aranmula prepared by the 5th respondent/Enviro Care India Pvt. Ltd., (Annexure A20). The 3rd respondent/K.G.S. Aranmula Airport Ltd.,). The 1st respondent/MoEF was wrong in issuing the impugned EC without obtaining the final EIA report. The terms of reference are insufficient and inadequate. The same went wrong in identifying the significance of puncha land where the proposed project was sought to be established. Similarly, the significance of environmental and biological etc., of the area were not even adverted to. The same is vitiated by complete non application of mind.
63. Hence, the appellant herein seeks the intervention the Tribunal:
i) To set aside the EC granted to the proposed international airport at Aranmula;
ii) To set aside the application made by the 3 rd respondent seeking EC in Form I dated 28.06.2010 (Annexure A4) and the copy of the Terms of Reference finalized by the EAC on 13.10.2010 (Annexure A5); and the Environmental Impact Assessment Report for the construction of new airport at Aranmula prepared by the 5 th respondent/Enviro Care India Pvt. Ltd., (Annexure A20);
iii) To direct the respondents to conduct the public hearing for the proposed Aranmula Airport Project in accordance with law after finalizing fresh terms of reference.
64. The 1st respondent, namely the MoEF, per contra, stated in the reply affidavit and which can be treated as reply to the other appeals also, as follows: 63
65. According to Form I and EIA report submitted by the project proponent, the site is situate almost 2 km from Pampa River. There is a small rivulet namely Kozhithodu passing through the project site which starts from uphill areas and joins the Pampa River. Due to poor maintenance over the years, it is blocked at various points creating small water bodies in different parts of the project site. The proponent informed that there is no wetland and due to blockage of the rivulet water logging occurs and forms a few shallow water bodies in the project area. The Minor Irrigation Department of Kerala was entrusted to study and streamline the flow of rivulet and the department has studied and has suggested measures to maintain the rivulet. Conditions have been stipulated in the clearance to implement the measures suggested by the Minor Irrigation Department in letter and spirit. Based on the complaints against the inclusion of wetland and paddy fields in the project and public objections for conversion, a factual report was sought from the Environment Department of Government of Kerala and the project proponent. In the reply dated 01.03.2012, the proponent has stated that the Government has notified 500 acres of land for development of the airport. There is no paddy cultivation for the past ten years. Further, according to the letter dated 26.06.2012 of the State Government, 500 acres of land was declared as an industrial area vides notification in SRO. No. 185/2011 dated 24.02.2011.
66. The Government of Kerala, in its letter dated 01.06.2013, has stated that some factual mistakes in the report of Salim Ali Foundation are worth noting and the report says that there are extensive wetlands in the village. However, there is no identified wetland in Aranmula village as per the report of the Centre for Earth Science Studies which prepared the list of wetlands in Kerala. As per the definition of 64 the Kerala Conservation of Paddy and Wetlands Act, 2008, paddy land is not wetland and the provisions of the Central Wetland Act are also similar.
67. The averment that the EIA study has not covered flora and fauna is denied. The 1st respondent/MoEF states that the same is covered under Chapter-III of EIA report. The location of the site with respect to Vembanad Kol, Ramsar site and Silent Valley were sought and the Proponent has informed that the site is not located in the upstream of Vembanad and neither silent valley nor ecological diversity areas are located anywhere near the site. The proponent had informed that only minimum area required for runway, apron, taxiway etc., would be filled and the remaining area would be preserved in its natural form. The previous owner had filled the runway of 1000 x 150 m for airstrip and hence only the area required for runway 1000 x 150 m would be filled with 1 m height and the soil required for land filling would be met from elevated area of about 14.5 acres available within the site itself. When a contour map was called for confirming the availability of source for soil within the site, as per the contour map submitted, the level of elevated area varies from 3 m to 11.5 m with average height of 3.5 m. The soil available in 14.5 acres is 205375 m 3 as against the 1,50,000 m3 . Further, the EAC has suggested the following condition in the above EC:
"(iii) Though the site is not a wetland, in view of the presence of various plants and species, the proponent shall fill only minimum area required for the runway, apron, taxiway etc., and the remaining area will be preserved in its natural form as committed.  The soil required for land filling shall be met from elevated area of 14.5 65 acres available within the site itself. Necessary permission for leveling should be taken."
68. Denying the allegation with regard to the rehabilitation and resettlement, the 1st respondent/MoEF would state that as per letter dated 26.06.2012 of the State Government; the project proponent has stated that seven houses in the proposed area may require rehabilitation, which they have already purchased. The approach road is proposed from Aikkara junction to the terminal building of KGS Aranmula Airport for which the land is to be acquired. Similarly, the road from Parumoottupadi junction to Aikkara junction is also to be widened for smooth vehicular traffic to the proposed airport.
69. The ministry brought the accreditation for the consultants to ensure the quality of EIA report and Environment Management Plans (EMP). According to Office Memorandum dated 30.12.2010, 265 consultants including M/s. Enviro Care India Pvt. Ltd., were permitted to certify various documents as consultants such as EIA/EMP and appear before the State Level Expert Appraisal Committee/ State Environment Impact Assessment Authority for Category- B projects and the EAC for Category-A projects till 30.06.2011. The ToR for the project was accorded on 13.10.2010. Public hearing was conducted on 10.05.2011 and the proponent has submitted the final EIA on 26.06.2011 after incorporating the issues raised during the public hearing within 30.06.2011.
70. The project was considered by the EAC in its meeting held from 21 st-23rd September, 2010 and the ToR was finalised including the conduct of public hearing. The ToR for the project was accorded on 13.10.2010. Public hearing was held on 10.05.2011 at Pathanamthitta District Collectorate. Major issues raised during the 66 public hearing were regarding filling up of paddy fields, restoration of Kozhithodu, the tributary of Pampa River etc. The project proponent has committed that minimum area required for runway, apron, taxiway etc., will be filled and the remaining area will be preserved in its natural form while Kozhithodu will be maintained in consultation with the Minor Irrigation Department of the State of Kerala. The proposal along with the final EIA report and the minutes of the public hearing were examined by the EAC in its meeting held on 21st-23rd September, 2011. After deliberation, the EAC sought additional information viz., Noise level modeling impact analysis especially on traffic, waste water treatment and disposal, energy conservation risk management, EMP etc. The details submitted by the project proponent were examined by the EAC in the meeting held on 15th -16th December, 2011 and the EAC recommended the proposal for grant of EC subject to certain environmental safeguards. While processing the proposal for EC, news items alleging inclusion of wetlands and conversion of paddy fields in the project area had come to the notice and a report in this regard was sought from the State Government and the project proponent. The project proponent submitted reply in letter dated 01.03.2012 according to which the Government has notified 500 acres of land for development of airport and there is no paddy cultivation in the area for the past ten years. However, the project proponent was asked to submit the details of wetlands/water bodies or land having the characteristics of wetlands at or in the vicinity of project site along with their conservation plan and the project required soil filling which was not properly addressed in the EIA report to submit supplementary information reading the details of area requiring filling, source of filling material, it's likely impacts of environment and drainage system, the project proponent submitted the details and the proposal was again referred to the EAC to examine the details submitted by the project proponent. The EAC in the meeting held 67 on 16th -17th August, 2012 after deliberations stipulated conditions. As regards the commencement of land filling work even before the grant of EC as alleged in the news reports, there were no developmental works at that site by then. However, the original owner of the site had carried out minor developmental works.
71. All issues have been considered by EAC and MoEF and there have been representations, news items, joint petitions from MLAs and a report from the Salim Ali Foundation against the project. Major allegations are inclusion of wetlands and conversion of paddy fields, filling up of wetlands and paddy fields that will disturb the ecosystems and environmental balance of the area, the project proponent facing criminal and vigilance cases, violation of Central and State Acts like Kerala Land Reforms Act, 1963 ( in regard to the land ceiling provision), Kerala Conservation of Paddy Land and Wetland Act, 2008, findings of the Legislative Committee, commencement of the land filling work at the site prior to EC, non-obtaining of no objection certificate from the Defence, competition to existing airports, inadequate EIA, non-inclusion of source of earth for filling the land, 212 species of plants including 27 that are endemic and 110 that are economically important have been recorded in the area and these are said to have been affected. The comments on the above representations/issues were sought from the project proponent and the State Government of Kerala. The project proponent replied in the letters dated 20.06.2011, 01.03.2012 and 23.08.2012. The comments were also received from the Principal Secretary, Environment Department, Government of Kerala vide letters dated 26.06.2012, 01.06.2013, and 21.08.2013 and from the Additional Chief Secretary, Environment Department, Government of Kerala vide letter dated 13.09.2013. The following issues are noted from the letter of the project proponent: 68
(i) There are no developmental works at this site by them.
However, the original owner of the site had carried out minor developmental works. The semi-developed site was purchased from Mt. Zion Educational Trust.
(ii) Ministry of Defence has granted NOC vide letter No. 19(79)/11(DN-11Ops) (669) dated 24.08.2011.
(iii) There is a small rivulet Kozhithodu passing through the project site. This rivulet collects water from uphill areas and joins with Pampa River. Due to poor maintenance over the years, it is blocked at various points causing small water bodies in different parts of the project site. The Minor Irrigation Department of the Kerala was entrusted with the study to streamline the flow of rivulet and the Department has studied and suggested measures to maintain the rivulet. It is noted from the report of the Minor Irrigation Department of Kerala that after due alterations that are suggested and carried out in the Kozhithodu, the water logging in the upstream paddy fields will not occur.
(iv) Only minimum area required for the runway, apron, taxiway etc., would be filled and the remaining area will be preserved in its natural form. The previous owner had filled the runway of 1000 x 150 m for airstrip. Therefore, only the area required for runway 1000 x 150 m will be filled to a height of one meter and the soil required for land filling will be met from the elevated area of 14.5 acres available within the site itself. When a contour map was called for confirming the availability of source for soil within the site, as per the contour 69 map submitted, the level of elevated area varies from 3 m to 11.5 m with average height of 3.5 m. The soil available in 14.5 acres is 205375 m3 as against the 1,50,000 m3
(v) Aranmula is declared by the UNDP as a 'heritage village' due to Uthirattadhi Boat Race and Aranmula mirror which are unique to this village and not based on environmental or physical features. This airport once commissioned will showcase these unique cultural aspects globally and will ensure international visibility ensuring tourist flow.
72. The following are noted from the letters of the Government of Kerala:
(i) The State Government vide Notification in SRO No. 185/2011 dated 24.02.2011 had declared approximately 500 acres of land as industrial area, the reclamation was done during pre 2008 period when the Kerala Paddy Land and Wetland Conservation Act was not in force there and hence, the above Act is not applicable. The ecological damages which have already set in unmindful river sand mining during the last three decades that lowered the bed of Pampa River to almost below sea level, among other environmental facts causing degradation, resulted in lowering the ground water table in the riparian areas. Putting the blame of lowering the ground water table on the reclaimed portion of the paddy field would be illogical. The paddy field is left fallow and the natural irrigation facilities have been encroached upon or blocked at several places.
70