Report ProfKTRavindran

7/31/2019 Report ProfKTRavindran

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RE PO RT O F T H EE X PE RT CO M M I T T E E T O E XAM I N E T H E

Q U AN T U M O F PE N AL T Y AN D CRE AT I O N O FE N V I RO N M E N T AL R E ST O R AT I O N F U N D F O R

LAVASA C I T Y PRO JE CT , PUN E D I ST RI CT

O ctober 25, 2011N ew D elh i


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RE PO RT O F T H E E X PE R T CO M M I T T E E T O E X AM I N E T H EQ U AN T U M O F PE N AL T Y AN D C RE AT I O N O F

E N V I R O N M E N T A L RE ST O R AT I O N F U N D F O R LAV ASA C I T YP RO JE C T , P U N E D I ST R I C T

1. I ntroduction

On 17 January, 2011, the Ministry of Environment and Forests

(G overnm ent of I ndia) issued a Show Cause N otice under Section 5 of the

Environment (Protection) Act, 1986 to the Lavasa Corporation Ltd

(Vikhro li, M umbai) for violation of the provisions of E nvironm ent I mpact

A ssessment N ot if icatio n, 1994 as amended in 2004 and 2006. T he Show

Cause N otice inter-alia indicated that the M O E F is prepared to consider

the pro ject on merits wi th the imposition of various T erm s and Cond itions

including the following: (i) the payment of substantial penalty for theviolation of environmental laws, which is incontrovertible; (ii) over and

above the penalty, creation o f an E nvironm ental Restoration Fund (E RF) by

M / s L CL wi th suff icient ly large corpus which would be managed by an

independent body with various stakeholders under the overall supervision of

the M O E F; and (iii) im position of stringent term s and conditions, to ensure

that no further environmental degradation takes place and any degradation

that has already occurred wo uld be rectif ied within a tim e bound schedule .

Sequel to the Show Cause N otice, the M O E F V ide O rder N o. 19-58/ 2010-

1A-III (Part) dated 9 February, 2011, constituted an Expert Committee to

make recom mendations on the following with r espect to L CL : -

(i) Q uantum of penalty with respect to violation of envi ronmental laws;


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2. I nterim Report

The Expert Committee presented an Interim Report to the MOEF

on 7 M arch, 2011. A s a preface, the Interim Report emphasized that as

Indias urban profile undergoes a change as indeed it will, it becomes

essential that the spirit of the EPA which calls for a proper balance between

environm ent and developm ent is maintained. I t recognized the various

regulatory and monitoring mechanisms that have been put in place by the

MOEF and underlined the need to bring Lavasa project within the

mechanisms already established so that instances of violation of the EPA as

observed in the case of L avasa are no t r epeated.

The Interim Report refereed to Article 15 of the Environment

(Protection) Act, 1986 which reads as under:

(1) W hoever f ails to com ply wi th or cont ravenes any of the pro visions of

this Act, or the rules made or orders or directions issued thereunder, shall,

in respect of each such failure or contravention, be punishable with

imprisonment for a term which may extend to five years or with fine which

may extend to one lakh rupees, or with both, and in case the failure or

contravention continues, with additional fine which may extend to fivethousand rupees for every day during which such failure or contravention

continues af ter the conv iction for t he f irst such failure or contravent ion.

(2) I f the failure or contravention referred to in sub-section (1) contin ues

beyond a period of one year after the date of conviction, the offender shall


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be punishable with imprisonment for a term which may extend to seven

years . The Committee not ed that w hile the above pro vision w as bind ing,

the prescribed penalty is no t a substant ial f inancial penalty to act as a

deterrent . I t added that T he Com mit tee is of t he opinion that fo r the

penalty to serve as a deterrent, it may be necessary to amend the provisions

of t he A ct . T he E xpert Com mit tee reaf f irm s th is observation, and makes a

specif ic recom mendation in this respect in the latter p art of the repor t.

On the issue of the Environmental Restoration Fund, the Expert

Committee observed in the Interim Report that a provision for such funds

whose purposes are akin to what the M O E F visualizes, exists in several

count ries, and suggested that the M O E F should undertake a review of such

pro visions in o rder to arrive at a system appropr iate to I ndian condi tions .

For the purpose laid down in the terms and conditions of the Ministrys

Order of February 9, 2011, and taking into account the alternative ways in

which the amount of the Fund can be worked out and issues relating to the

management of the Fund, suggestions have been made in Section 4 of this

report.

3. F ield L evel Assessm ent

As indicated earlier, the Expert Committee visited Pune-Lavasa from

April 14-16, 2011 and met with the Government officials concerned with

the L avasa project. T he Com mit tee visited the L avasa township, the various

sites where part of the construction work has been completed, e.g., artificial

lake in D asve village, the working of the sewage disposal p lant , the N A SA


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point, t he A shiana Senior Citi zens H om es Com plex, and the City-Centre

which has a convention cent re, a ho tel, shopping areas etc. T he Commit tee

visited the E kanth and f amiliarized itself wi th t he bro ad features of the

M aster Plan.

The main observations and conclusions of the Expert Committee on

the visit are stated below. I t m ust be underl ined that th e purpose of the visit

to Pune-Lavasa was to obtain a better assessment of the damage that has

been caused in the township area as a result of the activities of the Lavasa

Corporatio n L td. The assessment is qualitati ve in nature.

3.1 Land

3.1 The activities of the Lavasa Corporation Limited (L.C.L.) hasresulted in extensive damage to the land under active

construction. While the first phase shows serious physical

damage and violations of existing laws and land allotment

regulations, the land under second phase development shows

extensive cutting and filling of land for infrastructure

developments. The construction activities appear to have been

halted at present though part use of the first phase is going on.The general land environment needs to be restored and the

damages already inflicted on land need to be mitigated.


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3.2 Land restoration and damage mitigation measures that arerequired should be undertaken as an integrated policy with

punitive, fiscal provisions built into them.

3.3 Resto re tree cover in the ent ire land acquired for t he project inall phases.

3.4 G round cover restoration on the ent ire project area in o rder toprevent top-soil erosion, using appropriate native ground cover

species, to resto re the health of land in f ive dif ferent w ays:

a) Prevention of excessive soil erosion and reduction insurface water runoffs.

b) Restoration of lower food - chain cycles.c) Reducing land slide potent ial.d) Improvement in the micro climate and overall climatic

balance.

e) Restoration of existing animal migration paths.

3.5 Greening of the land of 50 meters reserved area provided onall forest edges. The possibility of soft - lease of this land tothe villagers within the project site may also be explored as a

compensatory measure for loss of livelihood as well as to

ensure utilization and maintenances of these lands.


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3.6 A 50 meter wide linear protected area and reforestation of thesame, around all swales, water channels and valleys.

3.7 Upper and lower embankments on either side of constructedroads to b e turned into sof t surfaces/ partly sof t surf aces, using

biodegradable materials.

3.8 T he land around w ater bodies/ water channels wit hin thedevelopment should be returned into the original soft land. All

the paved walkways created around water bodies are in

violation of the land allotment conditions and other State

environm ental laws. T he State/ Cent ral governm ents should

consider implement ing appropriate measures for the same.

3.9 After restoration of the soft landscape around the waterbodies, only Board-Walks of say about 3 meters wide should

be permitted along the active building edge in order to

facilitate the movement of pedestrians. This must be taken up

as a pr ior ity. T he bui lding debr is generated m ust be recycled

entirely within the project.

3.10 The solid waste disposal sites especially construction wastehave damaged the land profile extensively and that also in a

steep gorge. This land must be restored with forest and ground

cover. The solid waste disposal should be reworked towards


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complete on-site-recycling without damage to land, especially

low lying areas, valleys or gorges.

3.11 Extensive damage to land has been caused by re-profiling,concreting and bitumen topping for the roads. The costs of

this damage are not calculable. Based on the total area under

roads, twice as much area of land should be brought under

native medicinal flora for which these hills were once famous.

3.12 All rock formations within the entire project area should bedeclared protected and mining and other related activities must

be stopped forth with.

3.2 D amage to W ater Systems

3.2.1 T he ponding of water by creatin g check dams (bandheras) has

been carried out by L.C.L. for the first phase and the check

dams for the rest of the project are under construction.

Though the work has stopped on these as well, the

repercussions of these dams need to be understood from a

systemic perspective, as the impact can be far reaching forareas downstream. A part fr om t he agricultural activ iti es and

their natural water balance, urban usage by settlements

downstream also needs attention as Pune City depends on it

in summ er m ont hs. I n case of any water loss the L.C.L. w ill

need to put in place appropriate strategies.


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3.2.2 T hese issues raise th e need for an immediate com missioning

of a Regional W ater Shed M anagement Plan in order to assess

the resource-use equilibrium, including all human activities

wi th in t he watershed area within one year. N ew t echno logies

are available for accurate assessment and strategising, while it

is clear that established planning measures have failed to

identity the thresholds of development. Such a detailed,

scientific study along with a Landscape Restoration Plan

(from a broader perspective) will help establish the limits of

building activities to be permitted in these sensitive lands.

O nly af ter such a watershed m anagement study is undertaken,

should further phases of the project be permitted to proceed,

if f ound f it .

3.2.3 Such a study with proper costing could be undertaken for theenti re area by th e State T own Planning O f f ice wit h expert help

where necessary.

3.2.4 Treatment of the edges of the existing water bodies, inparticular the vertical, concreted edge, needs to be reworked

and replaced by natural local stone boulder-pitching and therest of the land areas must be turned into soft landscape using

on ly native species of grass f lora, wi th in one clim atic cycle.

3.2.5 In many places, the mandated 50 meter distance has beenviolated, though separately stipulated by State Government.


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The State Government may initiate appropriate measures for

the work already done and must prevent such violations in

future.

3.2.6 All chemical fertiliser and manure should be banned. Thewater present in the lakes should be tested and appropriate

treatments adopted by a State Agency to mitigate any

contamination.

3.2.7 The present sources of water for the project are the reservoirsfrom where water is pumped up for treatment and distribution

through a gravitation based supply. The upper-land

developments which are characterized by extensive

independent housing, are served by separate supply reservoirs.

The energy consumption on pumping water should be

separated from other forms of consumption and specially

targeted for alternative power sources like solar, wind, etc. The

project could be implemented by the State government as a

deposit work.

3.2.8

Impounding of water in the valley in linear formations preventanimal migration across the hills during different reasons. The

vehicular bridges build over the Bandheras do not facilitate

migration paths. Soft landscape connectivity should be

provided across linear water bodies at strategic locations to

facilitate the migrations across hil ls.


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3.2.9 The two sewage treatment plants were found in working orderand the treated water was being recycled for gardening

purpose. All the existing large projects under construction

should be made autonomous zero-run-off projects, to reduce

energy consumption for pumping of sewage into centralised

STPs.

4. Recomm endations and W ay F orward

The Expert Committee has made a serious attempt to address

the terms of reference entrusted to it in the light of the discussions it

has had with a cross-section of individuals, and its own qualitative

assessment of the environmental damage caused by the LCL

activ it ies. A s would be no ted f rom the earli er sections, th e

Committees observations fall into four categories:

i. Violation of the Environment (Protection) Act, 1986 as amendedfrom t ime to tim e. T he violations are dif fi cult to m onetize. T he

Act lays down that the failure to comply with the provisions of the

Act is punishable with imprisonment for a term which may extend

to f ive years or a f ine of upto Rs. one lakh o r bot h. T he E xpertCommittee is bound by this statutory provision, realising though

that a fine of upto Rs. one lakh is not an adequate deterrent, and

the Act may need to be appropriately amended.


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T he E xpert Co mmittee is of the view t hat any amount that

may be specified in the Act will prove to be inadequate over a

period o f t im e. I t is, therefo re, necessary to r eplace the f ixed

amount by a percentage, and the percentage should be linked to

the approved cost of the pro ject. T he Committees judgment is

that the percentage should vary between 1-5 percent, the higher

percentage useable in the case of the relatively smaller projects and

low er percentage for larger p ro jects. H ow ever, there will have to

be a case to case assessment based on the environmental

sensiti vit y of the project.

ii . In respect of penalty for physical damage caused by activitiesundertaken in violation of the provisions of the Environment

(Protection) Act, 1986 (as amended from time to time), the

Committee has noted evidence of physical damage in the

following -

(a)Extensive damage to land caused by reprofiling, concreting andbitum en topping of r oads

(b)Extensive cutting and filling of land for infrastructuredevelopment

(c)Erosion of top soil, raising possibilities of land slide, andadversely affecting the animal migration paths, and food chain

cycles.

(d)D amage to t he land prof ile on account of m ining and solid wastedisposal wo rks


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The Committee is of the view that all damages as identified

above should be repaired by the L.C.L. at its own cost, under

supervision of appropriate authorities.

Further, all repairs should be carried out within the period of

one clim atic cycle. Suggestio ns in respect of the cert if ication of

satisfactory completion of the repair work are made later in the

report.

iii. A third category of suggestions relate to such incrementalactivities which can make a decisive impact on the overall

environment of the entire project area. These suggestions are in

the nature of taking up of such activities which have cost

implications but which should be borne by the LCL in the

medium to long term interest of the project area. A lso, these,

listed below, represent a guide for the further development of the

project area.

(a)Soft surfacing of the upper and lower embankments on eitherside of the constructed roads

(b)Soft landscape around the water bodies, within the mandatedopen area.

(c)G reenin g agricult ural use of the land of 50 meters reserved areaaround f orest land.

(d)N atural local stone boulder pi tching to replace the concrete edgesof the existing water bodies and soft landscape of the land areas;


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(e)Soft landscaping connectivity at strategic locations to facilitate theanim al m igrations across hil ls;

(f )D ecent ralised, zero -run of f projects to reduce energyconsumption for pum ping of sewage into cent ralized ST P.

A fourth category of suggestions relate to those activities

which in the opinion of the Expert Committee, are important to the

LCL for long term sustainable environmental improvement. It

comprises of the following:

(a)All rock formations in the project should be declared protectedand mining activities in the site stopped.

(b)U se of all chemical f ert ili zers should be stopped; and

(c)A Regional Watershed Management Plan for the Pune region,aimed at assessing the resource use equilibrium should be

commissioned. It should be able to establish the limits of

developmental activities to be undertaken in the sensitive lands,

including that o f the future L CL phases.

5. E nvironm ent Restoration F und (E RF )

One of the terms of reference of the Expert committee is to make

recommendations on the constitution of an Environment Restoration Fund

(E RF). T he Fund, as the Com mit tee is given to understand, is to b e used


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f or resto ring the damage that the L .C.L. act iv it ies have casued to t he L avasa

Project area.

The Committee has examined this mandate in two parts (i) the

concept of the Fund, and (ii) its application to the Lavasa project.

I n respect of (i), the Com mittee has reviewed the E nvironm ental A cts

of a few countries which have provisions for such a Fund and has come to

conclude that such a Fund will be a relevant instrument for deterring

developmental activit ies f rom damaging the envi ron ment . I t appears to

have universal application and rationale. The Committees suggestion is that

the Ministry of Environment and Forests may consider amending the

existing Act and make a provision for establishing such Funds for projects

having environmental implications. The Committees position is that the

provision for such a Fund should relate to (i) the Purpose of the Fund, (ii)

Size of the Fund, i.e., the basis for determining the size, and (iii) the

M anagement o f t he utilization of the Fund. T he Fund should be dedicated

to meet the cost of restoring the damaged environment in the project

im pacted area. T he size of the Fun d should be linked to t he size of the

inf rastructure and other r elated inv estm ents, and th is size may vary between

1-5 percent of the approved investment as indicated in the financial closure.Its management should be entrusted to a 3-7 member independent Board of

Trustees.

As regards the establishment of such a Fund for Lavasa, the Expert

Committee notes that damage has already taken place in the project area as a


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result of L.C.L. activities. Establishment of a Fund in such circumstances

may be a less affective course of action. Instead, the Expert Committee

suggests that

(i) the L .C.L . be asked to resto re the envi ronm ent by specif icallyresponding but not limited to, the environmental damage caused to

the Lavasa project and the related areas as a result of its activities, at

its own cost;

(ii)an amount equal to 5% of the expenditure incurred as on the date theL .C.L. activ iti es ceased, may be kept with the G overnment of

M aharasht ra, which may be used in case the L .C.L. fails to carry out

the necessary restoration works within a specific time frame,

(iii)a H igh Level M onit or ing G roup com pr ising the representatives of theCentral and state governm ent and E xperts/ N G O s may be set up t o

certify that the restoration work has been satisfactorily completed,

and

(iv) L .C.L. should be asked to prepare a tim e bound env iro nm ental

restoration plan identifying the activities as indicated in the report and

shall carrying out the works under t he superv ision of the H igh L evel

M onitoring G roup.

In addition to the constitution of the Environmental Restoration

Fund, the Committee would like to make five additional suggestions:


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(a)The Expert Committee has noted that the Lavasa Corporation Ltd. hasbeen declared as a Special Planning Authority (SPA) for the area under

its jurisdiction under Section 40(1)(b) of the M RTP A ct, 1966. The total

area of 3656.28 ha is so no ti f ied under the SPA . T he SPA has the

powers to prepare and approve the draft plan and proposals and also act

as a regulator y body. T he E xpert Com mittee f inds th is provision

violative of the normal canons of laying down the powers of such

A uthorit ies. T he Com mittee has also noted that the D irector , T ow n

Planning, Governm ent of M aharashtra is a member o f the SPA and the

plans so prepared are to be submitted to the Assistant Town Planner,

Pune D ivision. T he ent ire constit ution of the SPA and its f unctions

needs to undergo major revisions, and there should be no scope of any

conflict of interest arising out of its constitution or functions.

(b)The Committee would like to draw attention of the MOEF to the74th Constitutional amendment under which all local bodies should

have an elected Council . W hil e recognizing that Lavasa township is a

Special Planning Authority (SPA) and may not, therefore, be covered

by the provisions of the 74 th Constitutional amendment, the

G overnm ent of M aharashtra should examine the desirability and

feasibility of the Lavasa township being brought within the purviewof the M etro politan Planning Com mit tee of Pune M etrop olitan

D istrict.

(c)T o t he extent possible, bodies like the Forest D epartm ent wh ich haveextensive experience in restoration and mitigation must be co-opted

into t he imp lementation pro cess, in a time bound manner.


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(d)Rehabilitation of affected population needs to be quantitativelyand qualitatively audited, especially from livelihood perspective

and the project proponent must be made responsible for both

f inancial and land related requirements f or t he same. Som e of

the mitigation measures can be dovetailed into these

rehabilitation schemes.

Closing Remarks

In conclusion, the Expert Committee would like to place on record its

deep appreciation to Shri Jairam Ramesh, former Minister of Environment

and Forests who spoke to each one of us personally to become members of

the Expert Committee and to discuss the first findings of Committees

deliberations; to M r. J.M . M auskar, D r. N alini Bhat and Shri BharatBhushan who were untiring in their efforts to brief the Committee on the

nature of the tasks invo lved. W e sincerely thank them and of course, the

M inistry of E nvi ron ment and Forests for their tim e and assistance.

The Expert Committee was fu l ly conscious of the complex nature of i ts mandate, which

d i rect ly o r ind i rect ly imp inged on the need for ba lanc ing env i ronmenta l concerns wi th

grow th ob ject ives. The Com m it tee cou ld ignore ne ither o f the tw o in m aking i ts

recomm endat ions. Indeed, as the Com m it tee s w ork progressed, the need to s t r ike a

ba lance betw een envi ronm ent and grow th becam e even mor e ev ident . The Com mit tee has

m ade an earnest a t t em pt in addressing i t s mandate and add i t iona l ly m ade


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