India
NGT recalls Aug ’22 order over Mumbai Coastal Road noise levels passed without hearing HCC | India News
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MUMBAI: On a plea by Hindustan Construction Company (HCC), one of the contractors for the Mumbai Coastal Road, alleging violation of principles of natural justice, the National Green Tribunal (NGT) recalled its August 10, 2022 order that had directed Maharashtra Pollution Control Board (MPCB) to ensure that the noise pollution at the South work site was brought within permissible limit, within three weeks, failing which the Board could act against the defaulting agency.
The August 2022 order by NGT was in an application filed by a south Mumbai resident Dileep Nevatia who had sought orders to direct the government and civic administration to “maintain air and noise quality level for construction of the Coastal Road (South) project within limits’’ specified under the Noise Pollution rules.
The Coastal Road (south) is from Princess Street Flyover to Worli end of Sea Link in Mumbai.
After the order, MPCB issued notices to BMC and HCC to take adequate measures to minimize construction noise and issued regular directions since. The HCC last year then approached the NGT seeking recall of order, apprehending coercive action saying “it is possible that in future, some adverse action may be taken against it wrongly holding it to be responsible for higher noise levels’’ at Nevatia’s house. HCC was not even a party to the application, said its lawyer Siddhant Buxy.
The BrihanMumbai Municipal Corporation (BMC) which is executing the project, through senior counsel Jimmy Pochkhanawalla also said the earlier order which “erroneously put the onus’’ on HCC to reduce noise levels though it was not the only source of noise, was passed without making the contractor a party. It was akin to “enacting Hamlet without the Prince of Denmark”.
The Noise pollution (regulation and control) rules prescribe a day-time noise limit of 55 dB in residential areas. HCC cited noise level reports when its work was restrained in April 2019 to show at worli sea link, the level was almost 90db,” main sources of noise being vehicle movement and sea waves.’’
The HCC is operating under a BMC contract which permits day-time 75 dB and night-time 65 dB levels of noise in residential areas, said NGT.
The BMC also said it was “ impossible to bring down the noise level within 55 dB(A)’’ as reports established that even on non -construction days the average day-time noise levels were 73.4 dB(A) and when work was on, it was 72.5 dB.
Nevatia appeared in person opposed, the HCC recall-plea, saying the issue was already pending before the SC. He also said since pollution levels were not in check and MPCB failed to initiate action against defaulters, he had filed for ‘execution’ of the order and last September the NGT had issued notice.
Nevatia submitted, “There is no provision under the Environment (Protection) Act, 1986 to provide the offender an opportunity of hearing before initiating the prosecution proceedings.’’
The NGT bench of Justice DK Singh (Judicial Member) and Vijay Kulkarni, expert member, noted that the August 2022 order “would certainly impact adversely (HCC) , who is yet to be impleaded…’’ NGT said it was “evident that the noise level even without any construction activity was well beyond (the permissible) 55 dB(A).’’
“Looking to the fact that enough evidence has been placed on record before us to the effect that despite no such construction work being done, there existed much higher dB level of noise at the site in question due to other reasons such as vehicular traffic and sea waves,’’ the NGT it needs to give “adequate opportunity’’ to HCC to be heard and recalled its orders of last August observing that there was no stay by the SC on NGT proceedings.
The SC had last year raised few questions in Nevatia’s appeal which is pending. One issue is “Whether the noise pollution limits, as prescribed by the statutory rules, being the Noise Pollution Rules can be altered and increased by way of a contract?’’
Nevatia informed the NGT he would be challenging its recall order before the SC.
The project
In December 2011, a Joint Technical Committee had recommended that about 35.60 kms of coastal road be constructed involving Rs.5303 Crores to improve quality of life, and reduce commuting time by 70 percent and save 34 percent fuel daily. Added benefit the JPC said would be reduction of carbon foot print by about 1826 TCO2 per year.
After several legal battles over permissions given to the project, after the Bombay high court in July 2019 set aside the CRZ clearance of May 2017 for construction of the Coastal road, the matter is pending before the Supreme Court. The SC in interim orders on October 7, 2020 permitted construction of the Mumbai Coastal Road (South) project to go ahead, said NGT.
The company also showed reports from April 2019 when HC had restrained work, that noise levels at Coastal Road, Near VUP Area (Bandra Worli Sea Link) was almost 90 dB during the day with “main sources of noise being vehicle movement and sea waves.’’ It cited two more test reports.
The August 2022 order by NGT was in an application filed by a south Mumbai resident Dileep Nevatia who had sought orders to direct the government and civic administration to “maintain air and noise quality level for construction of the Coastal Road (South) project within limits’’ specified under the Noise Pollution rules.
The Coastal Road (south) is from Princess Street Flyover to Worli end of Sea Link in Mumbai.
After the order, MPCB issued notices to BMC and HCC to take adequate measures to minimize construction noise and issued regular directions since. The HCC last year then approached the NGT seeking recall of order, apprehending coercive action saying “it is possible that in future, some adverse action may be taken against it wrongly holding it to be responsible for higher noise levels’’ at Nevatia’s house. HCC was not even a party to the application, said its lawyer Siddhant Buxy.
The BrihanMumbai Municipal Corporation (BMC) which is executing the project, through senior counsel Jimmy Pochkhanawalla also said the earlier order which “erroneously put the onus’’ on HCC to reduce noise levels though it was not the only source of noise, was passed without making the contractor a party. It was akin to “enacting Hamlet without the Prince of Denmark”.
The Noise pollution (regulation and control) rules prescribe a day-time noise limit of 55 dB in residential areas. HCC cited noise level reports when its work was restrained in April 2019 to show at worli sea link, the level was almost 90db,” main sources of noise being vehicle movement and sea waves.’’
The HCC is operating under a BMC contract which permits day-time 75 dB and night-time 65 dB levels of noise in residential areas, said NGT.
The BMC also said it was “ impossible to bring down the noise level within 55 dB(A)’’ as reports established that even on non -construction days the average day-time noise levels were 73.4 dB(A) and when work was on, it was 72.5 dB.
Nevatia appeared in person opposed, the HCC recall-plea, saying the issue was already pending before the SC. He also said since pollution levels were not in check and MPCB failed to initiate action against defaulters, he had filed for ‘execution’ of the order and last September the NGT had issued notice.
Nevatia submitted, “There is no provision under the Environment (Protection) Act, 1986 to provide the offender an opportunity of hearing before initiating the prosecution proceedings.’’
The NGT bench of Justice DK Singh (Judicial Member) and Vijay Kulkarni, expert member, noted that the August 2022 order “would certainly impact adversely (HCC) , who is yet to be impleaded…’’ NGT said it was “evident that the noise level even without any construction activity was well beyond (the permissible) 55 dB(A).’’
“Looking to the fact that enough evidence has been placed on record before us to the effect that despite no such construction work being done, there existed much higher dB level of noise at the site in question due to other reasons such as vehicular traffic and sea waves,’’ the NGT it needs to give “adequate opportunity’’ to HCC to be heard and recalled its orders of last August observing that there was no stay by the SC on NGT proceedings.
The SC had last year raised few questions in Nevatia’s appeal which is pending. One issue is “Whether the noise pollution limits, as prescribed by the statutory rules, being the Noise Pollution Rules can be altered and increased by way of a contract?’’
Nevatia informed the NGT he would be challenging its recall order before the SC.
The project
In December 2011, a Joint Technical Committee had recommended that about 35.60 kms of coastal road be constructed involving Rs.5303 Crores to improve quality of life, and reduce commuting time by 70 percent and save 34 percent fuel daily. Added benefit the JPC said would be reduction of carbon foot print by about 1826 TCO2 per year.
After several legal battles over permissions given to the project, after the Bombay high court in July 2019 set aside the CRZ clearance of May 2017 for construction of the Coastal road, the matter is pending before the Supreme Court. The SC in interim orders on October 7, 2020 permitted construction of the Mumbai Coastal Road (South) project to go ahead, said NGT.
The company also showed reports from April 2019 when HC had restrained work, that noise levels at Coastal Road, Near VUP Area (Bandra Worli Sea Link) was almost 90 dB during the day with “main sources of noise being vehicle movement and sea waves.’’ It cited two more test reports.
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