THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI. M.A. No. 35 of 2013(SZ) in Appeal No. 31 of 2012

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1 THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Wednesday, the 6 th day of February 2013 M.A. No. 35 of 2013(SZ) in Appeal No. 31 of 2012 Quorum: 1. Hon ble Justice Shri M. Chockalingam (Judicial Member) 2. Hon ble Prof. Dr. R. Nagendran (Expert Member) BETWEEN R.Veeramani No.136, E-9, Block Makvai Illam 19 th General East Cross Street MKB Nagar Chennai Petitioner/Appellant 1. The Secretary Public Works Department Fort St.George Chennai AND 2. The Executive Engineer Public Works Department Building Construction Division (Block A) Tamil Nadu New Legislative Assembly Complex Chepauk, Chennai The Secretary Health Family Welfare Department Fort St. George Chennai Page 1 of 10

2 4. The State Level Environment Impact Assessment Authority (SEIAA) Represented by its Member Secretary-cum Director Environment 3 rd Floor, 4D, Panagal Maligai No.1, Jeenis Road, Saidapet Chennai The State Level Appraisal Committee (SEAC) Tamil Nadu Rep. by its Chairman 4D, Panagal Maligai No.1, Jeenis Road Saidapet Chennai Respondents/Respondents (Advocates Appeared: Shri P.Wilson, Senior Counsel for M/s. R. Nedumaran, K. Karthik Jagannathan and KT. Sankar Subramanian for applicant/appellant. Shri A. Navaneethakrishnan, Advocate General and Shri P.H.Arvind Panidan, Additional Advocate General assisted by M/s. Abdul Saleem and Saravanan for respondent Nos. 1 and 2. Shri N.R. Chandran, Senior Advocate for Shri N.G. Sahadevan, for respondent Nos. 4 and 5.) (Order delivered by the Bench) O R D E R This application is brought forth by the appellant in Appeal No. 31 of 2012 seeking an order of interim injunction to restrain the respondent No.1 to 3 from carrying out any process of alteration or modification in the structure in question situated at the Omandurar Government Estate, Anna Salai, Chennai and from running a hospital or similar activities therein pending disposal of the appeal. 2. The applicant/appellant has filed an affidavit with the following allegations: Page 2 of 10

3 The said appeal has been preferred against the order dated in letter No. SEIAA/TN/EC/8(a)/120/F-455/2012 of the respondent No.4 granting Environmental Clearance in favour of the respondent No.2 to convert the New Legislative Assembly cum-secretariat complex constructed on the basis of earlier Environmental Clearance dated The contesting respondents have entered appearance, filed their counter and the appeal is posted on for hearing. 3. In the W.P. No of 2011 filed by the applicant/appellant, the Hon ble High Court of Madras granted an order of interim injunction on restraining the Government of Tamil Nadu from making any structural alteration in the building till the disposal of the main writ petition. In the meantime, the 4 th respondent passed an order on granting Environmental Clearance in favour of the 2 nd respondent to convert the said complex into a Multi Super Speciality Hospital against which the present appeal was filed before the National Green Tribunal and the same is pending adjudication. 4. In view of the interim injunction granted the respondent had not made any structural alteration. The Hon ble High Court dismissed the writ petitions on without giving any finding on the question of Environmental Clearance. While so, taking advantage of the order of dismissal of the writ petitions, the Government of Tamil Nadu started to carry out alteration by removing internal parts of the building which might cause grave impact on the environment and surroundings as well as damage to the structural stability of the subject building and ultimately might also affect the effective utilisation of the building. The State Government was neither entitled nor supposed to alter the nature of the building when the appeal is pending. As the competency of the 4 th respondent itself is under challenge, if such hasty alterations are allowed to be carried out, the purpose of appeal would be defeated. The special leave petitions filed on the dismissal of the writ petitions were dismissed by the Apex Court on at the admission stage itself stating that they could not interfere in the policy decisions. Both the High Court and Supreme Court did not go into the environmental issues, as the matter is sub-judice before this Tribunal. Under these circumstances, when the appeal is pending before the Tribunal, the Page 3 of 10

4 respondents are bent upon in making the appeal infructuous and they are attempting to alter the structures based on the impugned Environmental Clearance dated Hence, the Tribunal has to interfere immediately and grant Interim orders of injunction against the conversion of the structure and keep it untouched till the disposal of the appeal. The conversion has an impact on the environment and the surroundings. There is a prima facie case and the balance of convenience is also in favour of the appellant. Hence an order of interim injunction has to be granted to the applicant/appellant. If an order of injunction is not granted, it would render great prejudice and cause great hardship and there would be great loss to the public exchequer. 5. The Respondent No.1 and 3 have filed a counter affidavit with the following averments: The entire averments filed in the affidavit are denied except those which were specifically admitted. No major structural alteration works have been commenced in the said building and no such activity is being carried out in the building which could have great impact on the environment and surrounding as well as cause damage to the structure or affect the effective utilisation of the building as alleged in the affidavit filed by the applicant/appellant. As the Environmental Clearance matter is pending adjudication before the Tribunal, the respondents have not carried out any major structural alteration to the building or commenced a full-fledged Multi Speciality Hospital. There is no dispute that environmental issues have to be decided only by the Tribunal. Since no structural modification or alteration which would have grave impact on the building have not been carried out, the appeal pending before the Tribunal would not become infructuous. In fact, it is only a small referral unit which is operating on a trial basis and certainly not a full-fledged hospital as falsely alleged by the applicant/appellant. No such activity is commenced or taking place in the building which would create an environmentally hazardous situation or alter the position pursuant Page 4 of 10

5 to the Environmental Clearance which is the subject matter of adjudication. It is factually incorrect to state that the outpatient ward of the Government Hospital has been shifted to the new place. In fact, the board displayed as Multi Speciality Hospital clearly reflects the wording referral unit. It is only after the clearance given by the 4 th respondent and fulfilment of all required parameters approved by the Tribunal, a full-fledged hospital will be commenced at the said building. The respondents emphatically deny and state that no such alteration, conversion, modification or any such activity has been commenced, which would have an impact on the environment or surrounding or affect the structural stability of the building. As such it is only a small referral unit which is operating in one part of the building where the patients are being referred to various other hospitals and this arrangement is only on a trial basis and until the proceedings are adjudicated by the Tribunal no material alteration or modification would be done. The application is frivolous, vexatious, and politically motivated and the appellant is bent upon to stall the proceedings. By this the appellant is preventing the coming up of Multi Speciality Hospital cum-modern Medical College useful for common man for whom the speciality hospital is out of reach The appellant has not made out a prima facie case nor the balance of convenience is in favour of the appellant. Both the application and the main appeal are without any merits. If the interim injunction is granted it would cause severe hardships, inconvenience, and irreparable injury and hence the application has to be dismissed. 5. The only question that arises for consideration is whether the applicant/appellant is entitled for the interim injunction as asked for. Page 5 of 10

6 6. The Tribunal heard the learned counsel on either side, all materials placed were looked into and paid its anxious consideration on the same. 7. This is an application made by the applicant/appellant in the above said appeal challenging the grant of Environmental Clearance made by the 4 th respondent in favour of the 2 nd respondent to convert the structure in question into a Multi Super Speciality Hospital. At the time of the admission of this appeal at the Principal Bench, New Delhi, though an interim order of injunction was pressed by the appellant side, it was felt not necessary since it was submitted by the respondent s side that there was original order of injunction in W.P. No of 2011 pending on the file of the High Court of Madras and hence a second order of interim injunction was not necessary. 8. On completion of the pleadings, the following questions were formulated to be decided in the appeal. Ii) (ii) Whether this appeal is maintainable in view of the W.P. No of 2011 filed by the appellant herein and pending on the file of the High Court of Madras Whether the grant of Environmental Clearance by the Tamil Nadu Environmental Impact Assessment Authority is violative of law since the assessment for making such a grant lies with the Central Government, Ministry of Environment and Forests as alleged by the Appellant (iii) Whether the Environmental Clearance applied and granted for the second time is against law since the Environmental Clearance was already granted for a different and specific project and also when the Environmental Notification 2006 does not permit any conversion from the original scope of the project or activity as alleged by the Appellant (iv) Whether the grant of Environmental Clearance has to be set aside since it is based on the impact assessment given by the State Environmental Impact Assessment Authority which did not consider all Page 6 of 10

7 the necessary environmental parameters for conversion of the Secretariat into Multi Super Speciality Hospital-cum-Medical College v) Whether the Environmental Clearance given on in letter No. SEIAA/TN/EC/8(a)/120/F.456/2012 by the 4 th Respondent is liable to be set aside on all or any of the grounds mentioned in the appeal. 9. From the reading of the above questions, it would be clear that the competence of the 4 th respondent to grant the Environmental Clearance dated await decision before the Tribunal as also the validity of the Environmental Clearance and, if valid, whether all necessary parameters are available to commence a Multi Super Speciality Hospital. After framing of the above points for decision, the appeal was posted to for enquiry. Under the above circumstances, the instant application was brought-forth by the applicant/appellant seeking for an interim injunction against the respondents 1, 2 and 3 not to make any alteration or modification in the structure and also from running any hospital or similar activities till the disposal of the appeal. 10. It is contended by the learned counsel for the appellant that the injunction originally granted was in force till , the date on which the W.P. No of 2011 was dismissed and the said interim order was to the effect that there would be an injunction restraining the respondents from making any structural alteration in the building in question till the writ petition was disposed of. Pointing to the above said order, the learned counsel would urge that after the dismissal of the writ petition, the respondents have started to carry out alteration works by removing the internal parts of the building by which great impact of environment and surroundings would be caused. Apart from damage to the structure ultimately it would affect the effective utilisation of the building. Added further the counsel, that while the competence of the 4 th respondent to grant Environmental Clearance to the 2 nd respondent for the conversion of the complex into the Multi Super Speciality Hospital is in question, the respondents have actually started the hospital, placing a name board as Multi Super Speciality Hospital and thus these acts are in violation of not only law but also the proceedings which are pending before the Tribunal. Under such circumstances, the balance of convenience is in Page 7 of 10

8 favour of the appellant and prima facie case is also made out to restrain the respondents from doing such acts. 11. Countering the above, the learned Advocate General would submit that the contentions broughtforth by the applicant/appellant are thoroughly unsustainable. There was no alteration or any modification to the structure, but what was done was only cleaning work. It is true that in a small area a referral medical unit was commenced only with an idea of making awareness, while the poverty stricken people were standing in queues, and it was done with a bonafide intention to assist them and they were to be directed to the correct medical units. Except this, there was nothing done and this cannot be called violation of any law, order or proceedings. Added further the counsel, that the appeal itself is politically motivated, no prima facie case is made out and the balance of convenience is in favour of the respondents. Since what is now being done is in the interest of the poor, it should be allowed and this would in no way cause any impact on the environment and hence the application is to be rejected. 12. The learned senior counsel for the 4 th respondent would submit that the application for injunction was dismissed long back, the applicant/appellant if is really interested or if the allegations are true, should have approached the Tribunal immediately. But he has not done so. This conduct of the petitioner would be indicative of not only laches but also the allegations are untrue. Added further, the learned counsel, that since the appeal is ripe for hearing, the status quo has to be maintained. 13. Admittedly, there was an order of the High Court of Madras in Writ Petition No of 2011 whereby the respondents were injuncted from making any alterations in the structure till the disposal of the writ petition and admittedly the writ petition was disposed of on As rightly pointed out by the learned counsel for the applicant/appellant at the time of admission of this appeal, no order of such injunction was granted since it was submitted by the learned counsel of the respondents that there was already an order or injunction in W.P. No of 2011on the file of High Court. It is true that on the dismissal of the writ petitions, Page 8 of 10

9 the order of interim injunction stood vacated. But, while the appeal in which all the questions indicated above concerned with and connected to the Environmental Clearance in particular, the competency of the 4 th respondent to grant such an Environmental Clearance and also the validity of the environment clearance and even if it is valid, whether all parameters necessary for the Multi Super Speciality Hospital are available, are actually pending decision in the hands of the Tribunal. Being parties to the proceedings, the respondents 1, 2 and 3 should have direct knowledge as to the pendency of the proceedings and the questions which remain to be decided by the Tribunal. Under such circumstances, any act of changing or converting or modifying the structural position, even if it is minor one, has to be considered only as an act which is done contra to the pending proceedings. It remains to be stated that the respondents are bound in law to keep the structure intact and untouched till the questions on the Environmental Clearance for the structure are answered by the Tribunal. 14. The claim that, there was no stay available cannot be countenanced even for a moment. It is pertinent to point out that even in the counter affidavit, the respondents have stated that that they have not carried out any major structural alterations to the building or commenced full-fledged Multi Super Speciality Hospital. The photographs placed and also the reports in media would indicate that after the disposal of the writ petition by the High Court, the respondents have commenced activities connected to the structural alterations, which in the opinion of the Tribunal, cannot be permitted to be done and that too when all the questions above mentioned remain to be answered. In so far as the utility of the Multi Super Speciality Hospital is concerned, it is conceded by the learned Advocate General that in a small area in the very structure, 6 doctors and 14 staff members are deployed for a referral unit. It is also submitted that a name board Multi Super Speciality Hospital was fixed outside the structure. His explanation that the words referral unit are also mentioned at the bottom of the name board cannot be countenanced since the question whether all parameters necessary for such a Multi Super Speciality Hospital is under consideration before the Tribunal. 15. The Tribunal is at a loss to understand while appeal is pending and questions as above remain to be decided, why the concerned departments were Page 9 of 10

10 hasty in commencing such activities, both structural and medical. The acts of the respondents in fixing a name board as above and deploying doctors and staff as stated above is indicative of the soft commencement of the Multi Super Speciality Hospital. This act of the respondents, in the considered opinion of the Tribunal would speak that the respondents have acted not only with an undue haste but also against the pending proceedings. This conduct of the respondents might even create a doubt whether it was intended to defeat the appeal proceedings. Hence from the submissions made and also looking into the materials available, the Tribunal considers that it is a fit case where a prime facie case is made out for granting an order of interim injunction restraining the respondents from carrying on any structural modifications, alterations or any medical activity in the complex under question till the disposal of the appeal. Accordingly an interim injunction is granted. No costs. 16. On the request made by both sides to hear the appeal at the earliest, the matter is posted to 3.00 p.m. on (Prof. Dr. R. Nagendran) Expert Member (Justice M. Chockalingam) Judicial Member Page 10 of 10