National Green Tribunal
Eas Sarma vs Union Of India on 27 September, 2022
Bench: K. Ramakrishnan, Satyagopal Korlapati
Item No.2:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 160 of 2020 (SZ)
IN THE MATTER OF:
E.A.S. Sarma
14-40-4/1, Gokhale Road
Maharanipeta,
Visakhapatnam - 530 002
Andhra Pradesh and Anr.
... Applicant(s)
Versus
Union of India
Through the Secretary
Ministry of Environment and Forests & Climate Change
Indira Paryawaran Bhawan, Jor Bagh Road
Lodi Colony, New Delhi - 110 003 and Ors.
... Respondent(s)
For Applicant(s): Mr. Ritwick Dutta along with
Mr. G. Stanley Hebzon Singh.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mrs. Madhuri Donti Reddy for R2 to R4.
Mr. Ashok Kumar for R6.
Mr. R. Palaniandavan for R7.
Mr. A. Prabhakara Reddy for R8.
Judgment Pronounced on: 27th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. The original application is disposed of with directions vide separate Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.160/2020 (SZ), 27th September 2022. Mn.
Page 1 of 50 Item No.2:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 160 of 2020 (SZ)
IN THE MATTER OF:
1) E.A.S. Sarma
14-40-4/1, Gokhale Road
Maharanipeta,
Visakhapatnam - 530 002
Andhra Pradesh.
2) K. Mrutyumjaya Rao
3-18, Flat 404 Kamalakshi Residency,
Behind Benda Complex,
Sarpavaram Junction,
Kakinada - 533 005.
Andhra Pradesh
... Applicant(s)
Versus
1) Union of India
Through the Secretary
Ministry of Environment and Forests & Climate Change Indira Paryawaran Bhawan, Jor Bagh Road Lodi Colony, New Delhi - 110 003.
2) State of Andhra Pradesh Through the Chief Secretary 1st Block, 1st Floor, Interim Government Complex, A.P. Secretariat Office, Velagapudi Andhra Pradesh.
3) Andhra Pradesh Coastal Zone Management Authority (APCZMA) Through the Member Secretary D.No.33-26-14 D/2, Chalamvari Street, Kasturibatipet, Vijayawada - 520 010.
4) Andhra Pradesh Forest Department Through the Principal Chief Conservator of Forests (HoFF) Aranya Bhavan, K.M. Munshi Road, Nagarampalem, Guntur - 522 004.
Page 2 of 505) GMR Holdings Private Limited Through the Managing Director Unit No.1 B, First Floor, Riaz Garden, Old No.12, New No.29, Kodambakkam High Road, Chennai, Tamil Nadu.
(R5 Deleted as per order in I.A. No.120/2020 dt.20.11.2020)
6) East Coast Concessions Private Limited (ECPL) Through the Managing Director 514, Dalamal Towers, Nariman Point Mumbai - 400 021, Maharashtra.
7) Andhra Pradesh Maritime Board Through its Chief Executive Officer, Port Administrative Building, Beach Road, P.B. No.11, Kakinada - 533 007.
8) GMR Energy Limited Through the authorized representative Mr. Ravishankar 701, 7th Floor, Naman Centre, Plot No.C-31, Bandra Kurla Complex, Mumbai Banra Suburban - 400 051.
(R8 Impleaded as per order in I.A. No.119/2020 dated 20.11.2020) ... Respondent(s) For Applicant(s): Mr. Ritwick Dutta along with Mr. G. Stanley Hebzon Singh.
For Respondent(s): Mrs. Me. Saraswathy for R1.
Mrs. Madhuri Donti Reddy for R2 to R4.
Mr. Ashok Kumar for R6.
Mr. R. Palaniandavan for R7.
Mr. A. Prabhakara Reddy for R8.
Judgment Reserved on: 26th August 2022.
Judgment Pronounced on: 27th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.
Page 3 of 50JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member
1. The first applicant herein is a former Secretary to Government of India in Ministries of Power and Finance and also former Principal Adviser (Energy), Planning Commission. He had also held the positions of Secretary in the Departments of Urban Development and Energy and Environment in the erstwhile State of Andhra Pradesh. He had voluntarily retired from the Government service in the year 2000 and had worked as Principal of Administrative Staff College of India (ASCI), Hyderabad for three years. Thereafter, he was involved in activities promoting the Right to Information Act among the people and also promoting public awareness of the rights and responsibilities of the citizens in safeguarding the environment. The second applicant is an environmental activist interested in studying different bird species in Andhra Pradesh, promoting public awareness on the need to conserve their habitats and motivating the local communities to protect those habitats. On account of his involvement, lot of improvements in protection have taken place in respect of Thelineelapuram Bird Sanctuary and also the unique Naupada Swamps wetlands in Srikakulam District of Andhra Pradesh, 'Uppalapadu' Bird habitat. He was also involved in protecting and saving the threatened species of several bird and flora and fauna. He had authored certain books by name "Water Birds of EGREE"
(East Godavari River Estuarine Ecosystem) and "Dakshina Bharatha Pakshulu" and he was awarded with "Jeeva Vyvidhya Rakshak" award in 2011 created by Andhra Pradesh Biodiversity Board for his activities in protecting the biodiversity, flora and fauna and eco-system in the State of Andhra Pradesh.
2. Grievance in this application was regarding the indiscriminate sand mining in CRZ Zone against the CRZ Notification and without getting any clearance as required the CRZ Notification as well as EIA Notification.
Page 4 of 503. It is alleged in the application that the 5th respondent is a company in whose favour the Annexure - A1/Environmental -cum- CRZ Clearance dated 07.03.2019 was granted by the 1st respondent vide their letter No. F.No.10-30/2016-IA-III dated 07.03.2019and the 6th respondent is a company in whose favour, the 1st respondent had transferred the said Environmental Clearance evidenced by Annexure - A2/Order vide Letter F.No.10-30/2016-IA-III dated 18.06.2019. The project by name „LNG Import Facility‟ is located within Kakinada Port Limits, East Godavari District, Andhra Pradesh and the LNG jetty is located at Kakinada Deep Water Port (KDWP) Berth 7 adjacent to Survey No.317/31B, GMR Barge Mounted Power Plant located at Survey No.411 & 413, Tehsil Kakinada, East Godavari District of Andhra Pradesh. The 10 Km radius of the Plant consists of Kakinada town, existing sea port, various industries like NFCL, Corromondal fertilizer, gas based power plants etc. and Hope Island (natural sand spit) offshore in the east of the project site. Coringa Wild Life Sanctuary boundary is at about 1.24 km distance from the Mangrove patch under destruction. The Plant is situated within the eco- sensitive zone of the Coringa Wild Life Sanctuary being within 11.5 Kms of it's boundary, evidenced by Annexure - A3, Google Map. The 7th respondent is the Andhra Pradesh Maritime Board works for developing the port and offshore area that are attached to the port and were issuing permission for dredging of Kakinada Bay area in total disregard to the ecological relevance of the area.
4. It was specifically mentioned in the Environmental -cum- CRZ Clearance dated 07.03.2019 that failure to comply with the conditions mentioned in the said Clearance may result in revocation of this clearance and attract the provisions of the Environment (Protection) Act, 1986. One of the prayer in this application was for revocation of the said Clearance primarily because of the illegal actions of the project proponent leading to dredging near the said plant opposite to Coast Guard Office, Kakinada. The illegal dredging and dumping of dredged material in undesignated area affected the entire area nearby the mudflats which even otherwise is an important part of a remnant mudflat for the endangered species (IUCN list). As per the Environmental -cum- CRZ Clearance granted, Page 5 of 50 dredging shall not be carried out during the fish breeding season and dredging, etc. shall be carried out in a confined manner to reduce the impact of marine environment. Dredged material shall be disposed safely in the designated area. Shoreline should not be disturbed due to dumping. Periodical study on shore line changes shall be conducted and mitigation carried out, if necessary. The details shall be submitted along with the six monthly monitoring reports. While carrying out dredging, an independent monitoring shall be carried out by the Government Agency/Institute to check the impact and necessary measures shall be taken on priority basis, if any adverse impact is observed.
5. According to the applicants, dredging is going on near the GMR/EPCL Plant opposite to Coast Guard office Kakinada. The dredging spoil is being used to fill the mangrove/mudflat by making a bund around it approximately an area of 40 Acres near GMR/ECPL Plant which also affected the entire nearby mudflat. Dredging and the area for disposal of the dredged material are within the limits of CRZ-I which is having mangrove and mudflat. The mudflat plays an important for the endangered species (IUCN list) such as Great knot and vulnerable species such as Indian Skimmers and also has very good number of different species of Waders, Gulls and Terns. As per the conditions in the Environmental -cum- CRZ condition No.xiv, "Marine ecology shall be monitored regularly also in terms of sea weeds, sea grasses, mudflats, sand dunes, fisheries, echinoderms, shrimps, turtles, corals, coastal vegetation, mangroves and other marine biodiversity components as part of the management plan. Marine ecology shall be monitored regularly also in terms of all micro, macro and mega floral and faunal components of marine biodiversity." The original mudflat is very large nearly 2 Sq.Km. around Kumbhabhishekam Temple including 7th berth of the port its surroundings and to GMR/ECPL Plant surroundings. Large number of migratory birds and other species are visiting that area. The Indian Skimmer and Great Knot whose congregation has become one of the most important habitats of birds. The Google Map showing the location of the mangrove patch and mudflats under destruction within the sanctuary boundary dated 19.11.2019 was produced as Annexure - A4 to show that there was no destruction of mangroves at that time. They also produced another Page 6 of 50 Google Map of recent origin, evidenced by Annexure - A5 to show that the destruction of the mangroves taken place due to dredging and dumping of dredged material by the 6th respondents on the basis of the permission granted by the 7th respondent. The photographs showing the pipe system for discharging the dredged spoil into the mangrove cover was produced as Annexure - A6 (Series). The dredged spoil enters the mangroves and gradually settles down in the Mangroves, causing drying up and consequent death of the mangroves thereafter they were cleared. The 6th respondent is also erecting a bund surrounding the mangrove cover towards the main road side and the mangrove inside the bund can be seen drying up which is violating the following general condition of the Environmental and CRZ Clearance conditions:- "Appropriate measures must be taken while undertaking digging activities to avoid any likely degradation of water quality." The bund which is constructed by the 6th respondent surrounding the mangrove cover is evident from the photographs, Annexure - A7 (Series) produced by the applicants. The applicants also produced Annexure - A8 (Series) showing the discharge of dredged spoil into the mangrove cover, which resulted in drying up of mangrove in that area. The 7th respondent has been granting permission for dredging in the Kakinada Bay leading to destruction of Mangroves and mudflats and copy of the permissions granted dated 01.02.2020 and 10.06.2020 by Andhra Pradesh Maritime Board were produced as Annexure - A9 (Series). The Applicants had prepared a map showing the site of GMR/ECPL plant and destructed mangrove on each side by side and the yellow line represents the bund constructed round the mangroves and through the mudflat. The map based on Google earth shows as on 14.02.2020 that the bund / road was laid and a part of mangrove was cut down, evidenced by Annexure - A10. The Map showing the extent of the Eco-Sensitive Zone of the Coringa Wildlife Sanctuary was produced as Annexure - A11. The Divisional Forest Officer in-charge of the Coringa Wild Life Sanctuary, on the proposal for investigation and Survey in the National parks / Sanctuary good habitat for the Marine and Avian fauna, had mentioned about the necessity for maintaining the mudflats and also the nature of flora and fauna, migratory birds and other biological resources available in that area. He had also mentioned about the siting of unique species like Blood Clam Page 7 of 50 (Anadara granossa), Windowpane Oyster (Placuna placenta) and Button Shells etc. and it is a good habitat for the movement of fauna like Fishing cat, Otters and Olive Ridley turtles along with birds like black headed gull (Larusridibundus), Common Sand Piper (Tringa hypoleucas) etc., besides the Mangrove forest (which resists the cyclonic effects and shelter the neighbouring villages) that exists near the Hope Island. The main bird congregation is the 7th berth area about 1 Sq. Km. has been destroyed/disturbed due to the expansion of 7th berth of deep water port. They also mentioned about various articles dealing with the importance of mudflats and mangroves and its impact on marine ecology and the existence of various habitats and migratory birds found in that area. They also mentioned about the impact of destruction of mangroves. They have produced the photographs showing the mudflats and rich Bird life in the Kakinada Bay area near the Plant evidenced by Annexure - A12. The copy of the relevant pages of National Action Plan for conservation of Migratory birds was annexed as Annexure - A13 and the press release was produced as Annexure - A14.
6. According to the applicants, mangroves are intertidal (growing between the high tide line and low tide line) evergreen forests growing on the soft marshy lands of a creek, estuary or a bay in the tropical and sub-tropical regions. The expression 'mangrove' does not apply to a single species of plants, but to a complete ecosystem which is a conglomeration of several species of flora, fauna and biotic features in an area, and their interaction with each other. Mangroves are a peculiar habitat because they are found on the boundary between the land and the sea. As extensions of the tropical rainforests into the sea, mangroves are functionally as important as the tropical rainforests. They are additional import for the protection of seashores from erosion, wave action, high winds and cyclones. Mangroves being intertidal forests are equal to tropical forests, however their importance is not merely in their forest value but due to their strategic location between the land and the sea. Mangroves are the lifeline of any coastal area and perform invaluable protective functions for the environment.
Page 8 of 507. They also given the role played by the mangroves in preserving and maintaining the coastal ecology as follows:-
"i. The mangroves play important role in protecting seashores from erosion, high winds and cyclone;
ii. Mangroves are strategically located between the land and sea and therefore, their importance is not merely in their forest value. The mangroves act as a buffer between the land and sea and play a very important role in fighting tidal erosion. The presence of mangroves does away with the need for expensive sea walls. The loss of mangroves endangers the stability of the land;
iii. The mangroves facilitate reclamation of land from the sea; iv. Sometimes mangroves act as flood control by absorbing excess water from the sea and also protect the land from storms and hurricanes;
v. Apart from the fact that mangroves act as natural sewage water filter systems, the same act as natural pollution coastal checks. They naturally absorb waste;
vi. The mangroves are breeding grounds for a number of marine organisms, such as shrimps, crabs and fish. The presence of mangroves keeps the fish relatively free from industrial and other pollution."
8. Further, according to the applicants, mangroves are deemed forest as explained by the Hon‟ble Apex Court in T.N. Godavarman Thirumulkpad Vs. Union of India & Ors.1, and as such, any non-forest activity can be done only after obtaining necessary clearance under the Forest (Conservation) Act, 1980. The word „forest‟ has been defined by the Hon‟ble Apex Court in Samatha Vs. State of Andhra Pradesh & Ors.2, wherein it was mentioned that in Para (122) that "It would thus be seen that 'forest' bears extended meaning of a tract of land covered with trees, shrubs, vegetation and undergrowth inter-mingled with trees with pastures, be it of natural growth or manmade forestation". The project proponent has not submitted the six monthly reports to the authorities. One of the copy of the six monthly monitoring report dated 13.04.2020 submitted by the 6th respondent was produced as Annexure - 15, in which, they have not mentioned about the specific actual compliance of the conditions imposed, except stating that noted. Though this was brought to the notice of the authorities, no action was taken.
1 (1997) 2 SCC 267 2 (1997) 8 SCC 191 Page 9 of 50
9. The applicants had relied on the decision reported in S. Jagannath Vs. Union of India & Ors.3, Krishnadevi Malchand Kamathia & Ors. Vs. Bombay Environmental Action Group & Ors. 4 and M.C. Mehta (Badkhal and Surajkund Lakes Matter) Vs. Union of India5 in respect of the importance of mangroves, mitigating measures to be taken to protect the same applying the „Precautionary Principle‟ etc.
10. Despite representation made, evidenced by Annexure - A6, since no action was taken, the applicants filed thi present application seeking the following interim as well as main reliefs:-
"Interim Relief:
i. Direct the Respondents to stop illegal dredging and discharging the dredge spoil near the mangroves, until final adjudication of the present Original Application.
ii. Direct that the bund erected by the Project Proponent be dismantled, until final adjudication of the present Original Application. iii. Direct that the operation of the permission/s granted by Respondent No.7-Andhra Pradesh Maritime Board for dredging of the Kakinada Bay area in total disregard to the ecological relevance of the area be stayed till the disposal of this Original Application.
Main Relief:
i. Direct the Respondent No.1 to revoke the Environmental and CRZ clearance dated 07.03.2019 granted to Respondent No.6 along with the transfer letter dated 18.06.2019 ii. Direct that responsibility be fixed and action be initiated against those persons who started the illegal dredging and discharge of dredge spoil into the mangroves in violation of the CRZ Notifications of 2011 and 2018.
iii. Direct that responsibility be fixed and action be initiated against Government-Respondents for having omitted to take any action against discharge of dredge spoil into the mangroves to take place and death of mangroves in the area.
iv. Direct that action be taken against the officials of Andhra Pradesh Maritime Board for issuing illegal permission/s dated 01.02.2020 and 10.06.2020 when it is well known that the whole area in Kakinada Bay is ecologically important and sensitive.
v. Direct that a Committee be set up to enable their fact-finding and reporting to the Hon‟ble Tribunal on the issue of damage to the mangroves and illegal dredging and discharge of the spoil into the mangroves being done by the Respondent No.6.
vi. Direct that the entire area be restored to its original condition and the entire bund be broken and removed in order to clear the dredging spoil and to conserve rest of the habitat and bring back the habitat to it's original status by applying the polluter pays principle at the cost of Respondent No.6.
vii. Direct the 2nd respondent to prepare a management plan for the biologically active mudflats present in Kakinada Bay area be prepared without delay.
viii. Direct that the Respondent No.1 should notify without delay the Eco- sensitive Zone of Coringa wildlife sanctuary in a radius of 10 Km from the Coringa Wildlife Sanctuary.
ix. Direct that the restoration should be done under the supervision of an expert committee comprising of national level institution which has expertise on restoration of marine ecology and specifically mangroves."
3 (1997) 2 SCC 87 4 2011 (3) SCC 363 5 (1997) 3 SCC 715 Page 10 of 50
11. Subsequently, the original 5th respondent was deleted as per Order in I.A. No.120 of 2020 (SZ) and additional 8th respondent viz., GMR Energy Limited was impleaded as per Order in I.A. No.119 of 2020 (SZ) both dated 20.11.2020.
12. The 6th respondent filed affidavit contending that the application is not maintainable. The 6th respondent is a company (East Coast Concessions Private Limited) incorporated under the Companies Act, 2013 with a vision to contribute to the economic growth of the State of Andhra Pradesh by offering world-class, environmentally safe and sustainable energy solutions and they were currently engaged in development of LNG terminal with 1.75 MTPA handling capacity within Kakinada Deep Port Limits (KDWP), Kakinada. The 5th Respondent/GMR Holdings Pvt. Ltd. (now known as GMR Enterprises Pvt. Limited) submitted a proposal for grant of Environmental cum CRZ Clearance to the 1st Respondent for development of LNG facility at Kakinada Deep Water Port (KDWP) Berth 7 located at latitude 16°57'42"N and longitude 82°16‟33"E within the Kakinada Port Limits. The 1st respondent granted the Environmental Clearance (EC) to the 5th Respondent vide letter dated 07.03.2019, evidenced by Annexure A-1 produced along with the original application by the applicants themselves. The 5th Respondent thereafter changed its name from GMR Holding Pvt. Ltd. to GMR Enterprises Pvt. Ltd. and the change was intimated to the 1st Respondent vide their letter bearing No. GMR / GEPL / 2019 / 01 dated 20.03.2019 with a request to change the name and incorporate the same in the Environmental Clearance (EC) and the same was granted by the 1st respondent vide their letter dated 20.03.2019, evidenced by Annexure - R1, letter produced along with the counter statement. Thereby, the project proponent name was changed from GMR Holding Pvt. Ltd. to GMR Enterprises Pvt. Ltd., as mentioned in Annexure - A1 produced along with the application. On 26.04.2019, vide their letter bearing Reference No. ECPL/BD/MoEF&CC/2019/01, the 6th respondent submitted an application to the 1st respondent for transfer of Environmental Clearance (EC) dated 07.03.2019 from the name of the 5th respondent to the name of the 6th respondent by making an online application vide Transfer Page 11 of 50 Application No. IA/AP/MIS/103758/2019 dated 29.04.2019, along with all the requisite documents and the copy of the letter bearing No.ECPL/BD/MoEFCC/2019/01 dated 26.04.2019 and Application. No. IA/AP/MIS/103758/2019 dated 29.04.2019 were produced along with the counter as Annexure - R2 (series). In response to the Transfer Application dated 26.04.2019 and online Transfer Application dated 29.04.2020, the 1st Respondent had transferred the Environmental Clearance (EC) dated 07.03.2019 in favor of the 6th Respondent vide its letter dated 18.06.2019, evidenced by Annexure A-2 produced along with the Original Application. Since the project of the 6th respondent was distinct from that of 5th Respondent, certain amendments in the Environment cum CRZ Clearance were required and as such, the 6th Respondent applied for an amendment to the Environmental Clearance (EC) vide online Amendment Application dated 17.10.2019, evidenced by Annexure - R3 produced along with the counter and they were awaiting the reply from the MoEF&CC in this regard. The dredged site as the project site of the answering respondent was wrongly shown by the applicants in the application. The plot identified by the Applicants and marked as "GMR (ECPL) in Annexure - A3 of the Original Application did not fall within the project site of the 6th Respondent. Further, the coordinates quoted in the map in Annexure - A3 do not match the plot marked out in the map. The correct map demarcating the project site and Project Boundary Coordinates has been set out as Figure I (page 31 of the Technical Note which was annexed to the 6th respondent‟s Environmental Clearance (EC) Amendment Application), evidenced by Annexure - R4. The Andhra Pradesh Maritime Board granted dredging permissions to M/s GMR Energy Limited with environmental protections and requirements. The site of M/s. GMR Energy Limited is approximately 1 km south to the project of the 6th Respondent, which becomes apparent from a comparison of maps produced by the applicants as Annexure - A3 and by the 6th respondent as Annexure - R4. The 7th respondent had granted dredging of channel for towing the barge out of mooring basin and for disposal of dredged spoil at specified location to one 'GMR Energy Ltd.' (who were later impleaded as 8th respondent). The said permissions have been granted in two parts. The Page 12 of 50 first permission has been granted vide 7th Respondent's letter dated 01.02.2020 and second permission was granted for disposal of dredged spoil in deep sea using hopper barges to GMR Energy Ltd., evidenced by their letter dated 10.06.2020 and those letters were produced as Annexure
- A9 with the Original Application. Dredging work was allegedly carried out at the site demarcated by the Applicants under the said permissions by the company named in the permissions, i.e. GMR Energy Pvt. Ltd. The Applicants in their representation dated 21.05.2020 produced as Annexure - A16 had erroneously named GMR Holdings Pvt. Ltd. viz., 5th respondent as party who was carrying out the dredged activities which is incorrect in view of the contents of the permissions granted by the 7th respondent in favor of the GMR Energy Pvt. Ltd. and as such, they are unnecessary party to the proceedings. The GMR Energy Pvt. Ltd. is a necessary party to the proceedings and without them, the application is not maintainable. They have received a letter from the 1st respondent seeking explanation from the 6th respondent on various concerns /allegations related to dumping of dredged waste material into the adjacent mangroves and mud-plains outside the project area thereby destroying the mangrove vegetation, evidenced by Annexure - R5. They have sent their reply that they have not undertaken any dredging activity within the Kakinada Deep Water Port till date and they further clarified that the construction of proposed LNG Terminal Project at Kakinada Deep Water Port (KDWP) had yet to commence and in the compliance report, they have specifically mentioned that the construction of the project has yet to commence as the 6th Respondent was awaiting the amendment to its Environmental Clearance (EC) and the letter so sent was produced as Annexure - R6. The applicants had filed the present application without making necessary enquiry regarding the institution which is actually carrying out the dredging. The 6th respondent had produced the copy of the map submitted along with the application for Environmental Clearance (EC) amendment, demarcating the project site and boundary, evidenced by Annexure - R7. They also produced the photographs showing the site taken during September 2020 as Annexure
- R8 to show that the project area of the 6th respondent and the work carried out by the GMR Energy Limited are different. They have made Page 13 of 50 para wise reply reiterating the above contentions and prayed for dismissal of the application as against them with exemplary costs.
13. The 7th respondent filed counter contending that the application is not maintainable as against them and most of the allegations were made in respect of the dredging activity in violation and causing damage to the mangroves and mudflats, as most of the allegations are related to Environmental -cum- CRZ Clearance granted to the 5th respondent and its transfer to the 6th respondent and there are change of name etc. The allegation that the 7th respondent was granting permission for dredging in Kakinada Bay area in total disregard to the ecological relevance of the area is emphatically denied and those allegations were made only for the purpose of present proceedings to drag the 7th respondent before Tribunal. It will be seen from the documents produced that the 1st Applicant had no personal knowledge about the alleged violations and it is also unclear regarding the personal knowledge of these aspects of the second applicant as well. Permissions for dredging were provided within the Port limits, strictly on an as-needed basis, after carefully and holistically considering the requirement and perusing all relevant/requisite materials. In the instant case, the 7th Respondent granted dredging permission within the limits of Kakinada Port only based on the application of the 8th Respondent for towing the barge- mounted plant out of the mooring basin. It is pertinent to note that the plant was kept idle because of withdrawal of gas allocation to run the plant, resulting in keeping the barge mounted power plant idle. As such, it was necessitated to move out the plant from the mooring basin. For taking out of the mooring basin, it required effecting of some dredging due to subsequent siltation of the area after its installation earlier. Permission was not accorded for capital dredging or maintenance dredging and it is only for minimum quantity to facilitate the barge- mounted power plant to be taken out from the mooring basin, as its existence become redundant consequent on withdrawal of gas allocation to run it. It has not authorised any dredging activity, disregarding the ecological relevance of the area. The 7th Respondent has a statutory duty to perform its functions mandated under Section 15 of the Andhra Page 14 of 50 Pradesh Maritime Board Act, 2018. The allegations that the permission granted by the 7th respondent to the 8th respondent for dredging has resulted in destruction of the mangroves and mudflats in the Kakinada area are denied. They had accorded permission after being satisfied that the proposal for dredging was approved by the Government. A perusal of the permission granted by the 7th Respondent will amply and clearly demonstrate the application of mind by the authority in considering all the relevant material before grant of permission especially in laying down additional conditions for taking up the dredging activity. The 7th Respondent had clearly designated the dumping area and specifically instructed the 8th Respondent to take all precautions to protect the mangroves while dumping the dredged spoil and to ensure that the slushy water is allowed into the sea. The dredged site as well as the dredged spoil disposal area falls outside the eco-sensitive zone of Coringa Wildlife Sanctuary. The applicant had failed to make out a case of any violation committed by the 7th respondent and as such, they prayed for dismissal of the allegation as against them.
14. The 3rd respondent filed counter denying the allegations made in Para 3 of the original application. The 3rd Respondent/Andhra Pradesh Coastal Management Authority received application from the proponent M/s. GMR Enterprises Pvt. Ltd. (GEPL) dated 12.01.2017 seeking CRZ Clearance to establish LNG Import Facility adjacent to Kakinada Deep Water Port (KDWP), East Godavari Dist, with handling capacity 1.75 MTPA. The application was examined by the APCZMA meeting held on 06.02.2017 and decided to issue NOC before forwarding the proposal to MoEF&CC for clearance under the provisions of CRZ Notification 2011, evidenced by Annexure - 1 produced along with the counter affidavit. The CRZ demarcation for the project was carried out by Institute of Remote Sensing (IRS), Chennai an authorized agency of MoEF & CC. The proposed activity requires water front and is a permitted activity as per paragraph 3 (ii) (b) of CRZ Notification, 2011. The area of the proposed LNG jetty and approach trestle of 550 m is classified as CRZ IV (A) and is permissible under paragraphs 3 (ii) (b) and 4 (i) (f). The area of LNG pipeline with a length of 240 m connecting the trestle and Page 15 of 50 LNG platform over a length of 240 m is also classified as CRZ-IV (A) and is permissible under paragraph 3 (ii) (b) and 4 (i) (d) and 4 (i) (f) of CRZ Notification, 2011. The area where the trestle length of 330 m and the LNG pipeline connecting the storage terminal on the shore to a length of 380 m, LNG storage tank, truck loading facility, LNG flare, Degasification facility, Natural Gas pipeline length of 845 m and utilities and operation buildings are classified as CRZ - III and are permissible under paragraphs 3 (ii) (b), 4 (i) (f) and paragraphs 8 of CRZ Notification, 2011. The approach trestle of length 550 m since the area falls in between LTL and 12 NM areas is classified as CRZ - IV. They denied the allegations made in the Para 6, 8, 10, 13 and 30 of the original application. As an enforcement of the recommendations of CRZ, the monitoring agency to monitor the compliance with the terms and conditions of the CRZ Clearance is Regional Offices of MoEF&CC, as per the Office Memorandum dated: 05.08.2011, evidenced by Annexure 2. They do not make any specific remarks relating to the averments in paragraphs 7, 9, 11, 12, 14 to 29, 32 of the original application, as they do not relate to them. The MoFF & CC, GoI, New Delhi while issuing the Environmental and CRZ Clearance to M/s. GMR Holdings Pvt. Ltd. (presently M/s. East Coast Concessions Pvt. I td.) vide order dated 07.03.2019, evidenced by Annexure 3 stipulated specific condition that "dredged material shall be disposed safely in the designated areas". The monitoring agency to monitor the compliance of the terms and conditions of the CRZ Clearance is Regional Offices of MoEF&CC as per the Office Memorandum mentioned above. So, they prayed for accepting their contentions and passing appropriate orders in accordance with law.
15. While admitting the matter, vide Order dated 27.08.2020, this Tribunal appointed a Joint Committee comprising of (i) a Senior Officer from Regional Office, Ministry of Environment, Forest & Climate Change (MoEF & CC), Chennai, (ii) a Senior Officer from Andhra Pradesh State Coastal Zone Management Authority (APCZMA), (iii) a Senior Officer not below the rank of Chief Conservator of Forest to be designated by the Principal Chief Conservator of Forest & HOFF, Andhra Pradesh and (iv) the Divisional Forest Officer, Coringa Wildlife Sanctuary to inspect the area in question and submit a factual as well as action taken report, if Page 16 of 50 there was any violation found, including assessment of environmental compensation and remedial measures to be taken to restore the damage caused to the environment.
16. The Joint Committee was directed to consider the question of nature of damage caused to the mangroves and mudflats due to the activities of the 6th respondent and also on account of the construction of the bund preventing the flow of seawater in that area and the consequential damage caused to the mangroves and the mudflats and its effects on environment and eco-sensitive zone namely, the Coringa Wildlife Sanctuary and if there was any damage caused, the Joint Committee was directed to suggest and recommend the remedial measures to be taken to restore the damage caused to the environment apart from assessing the environmental compensation required for restoration of damage caused to the environment. Further, the Joint Committee was also directed to consider the question as to whether any activity of the sixth respondent has been extended in the prohibited CRZ - I and CRZ - IA areas as alleged in the application. The Regional Office, Ministry of Forest, Environment & Climate Change (MoEF&CC), Chennai was designated as the nodal agency for co-ordination and for providing necessary logistic for that purpose.
17. When the matter was taken up on 18.02.2021, this Tribunal had considered the Joint Committee report dated Nil, e-field on 11.01.2021 and received on 12.01.2021 and extracted in Para (2) of the order which reads as follows:-
"Joint Committee Report on OA No.160 of 2020(SZ) filed before the Hon'ble National Green Tribunal, Southern Zone, Chennai.
INTRODUCTION Vide Order dated 27.8.2020 in O.A No. 160 of 2020, the Hon‟ble NGT (SZ) has constituted a Joint Committee comprising of 1) a Senior Officer from Regional Office, Ministry of Environment, Forest & Climate Change (MoEF & CC), Chennai, 2) a Senior Officer from Andhra Pradesh Coastal Zone Management Authority (APCZMA), 3) a Senior Officer not below the rank of Chief Conservator of Forest to be designated by the Principal Chief Conservator of Forest & HOFF, Andhra Pradesh and 4) the Divisional Forest Officer, Coringa Wildlife Sanctuary to inspect the area in question and submit a factual as well as action taken report, if there is any violation found including assessment of environmental compensation and remedial measures to be taken to restore the damage caused to the environment.
However, several times the site visit was postponed due to various constrains like request vide letter No. ALN/70/2019-SA(E2) dated15.7.2020 from District administration due to Covid-19 pandemic in the District, thereafter due to the heavy rainfall in the State of Andhra Pradesh and Telangana and finally due to the Nivar Cyclone at East Coast.Page 17 of 50
The committee is also directed to consider the question of nature of damage caused to the mangroves and mudflats due to the activities of the sixth respondent and also on the account of the construction of the bund preventing the flow of sea water in that area and the consequential damage caused to the mangroves and the mudflats and its effect on the environment and eco sensitive zone namely, the Coringa Wildlife Sanctuary and if any damage caused to the environment apart from assessing the environmental compensation required for the restoration of damage caused to the environment. The committee is also directed to consider the question as to whether any activity of the sixth respondent has been extended in the prohibited CRZ - I and CRZ- IA areas as alleged in the application.
Meanwhile, Hon‟ble NGT vide its common order dated
20.11.2020 in
th
I.A.Nos.119&120/2020 of OA No. 160 of 2020(SZ) deleted the S respondent and impleaded M/s.GMR Energy Ltd as 8th respondent.
BACKGROUND GMR Energy Limited, the 8th Respondent has relocated a Barge Mounted Power Plant from Mangalore to Kakinada during June, 2010 by transporting the barge in a mother vessel upto Kakinada high sea. From the high sea, the barge was towed to the existing mooring basin after deepening the commercial channel and dredging the area of mooring basin. From March 2013, the plant remained to shut down due to the non availability of natural gas and do not foresee any chance for getting natural gas in near future, the management decided to sell the barge for managing the financial crisis. As a preparatory work for towing the barge out of mooring basin to high sea to handover to prospective buyer, dredging of the same navigation cannel used for bringing the barge to Kakinada mooring basin is done. For dredging, necessary approvals/ clearance were obtained. The approval for dredging given by Andhra Pradesh Maritime Board is at Annexure-I. OBSERVATIONS DURING THE SITE VISIT The committee members conducted field inspection on 10.12.2020 in the presence of petitioners as well as respondents. On behalf of Shri E.A S Sharma (petitioner) Shri K.M Rao with a team of Environmentalist has described about the damages caused to the mangroves along the roadside patch. The Respondent No.7 informal that the area in question is under their control and covered fry the approved master plan and the activities are being under taken as per the approved master plan.
The Respondent No.8 conveyed that dredging was undertaken after obtaining necessary permissions. As directed by Andhra Pradesh Maritime Board, to avoid mixing of dredging spoil with sea water they constructed a bund in the designated area for depositing dredging spoils. Later they realized that the mangrove patch along the road side got affected and removed certain portion of bund to allow inflow of sea water into mangrove patch.It is also informed that due to this they have stopped all their activities in that area until further directions.
They also informed that they have taken necessary steps for the regeneration/restoration of the affected mangroves by appointing an Expert Consultant for this purpose. However the petitioner demanded for the complete removal of the bund and the Respondent No. 8 has agreed up on. They also expressed their willingness to restore the damaged area to its original position under the supervision of Andhra Pradesh Maritime Board since the area is under their control. They also informed that apart from the mangrove patch along the road the area adjacent to GMR Power plant did not have mangroves as alleged by the petitioners, in fact it was a reclaimed area and only growth of Prosopisplants was found earlier. The photos taken during the site visit is at Annexure-II. The area in question is not a notified forest area and not under the control of forest department. The affected portion of mangrove area is approximately 1.80 km away from Coringa Wildlife sanctuary boundary as well as away from proposed Eco Sensitive Zone of Coringa WLS (the Coringa WLS Eco Sensitive Zone is not yet notified hence default zone of 10 km from Coringa WLS is currently applicable).It is noted that the important migratory bird species like Great knot and Indian skimmers are seen along with other species in the Kumbhabhishekam mudflats area which is under the control of AP Maritime Board. The committee also noticed that the area is fully covered with high buildings, immense warehouses, Industries, Ports, Fishing harbor and other facilities related to port related activities.
Recommendations of the committee The main allegation of the petitioner in OA No.160 of 2020(SZ) is that there is a violation of Environmental Laws by the respondent No.8while dredging. Further, due to deposition of dredging spoil and construction of bund in that location, the mangroves got damaged and requested to remove the bund and restore the mangroves to its original status as well as maintenance of Kumbhabhishekam mudflats area which is important for migratory birds. In view of this and based on the observations/discussions during the site visit, the followings are recommended.Page 18 of 50
As demanded by the representatives of the petitioner and as agreed by the Respondent No.8 during the site visit, the affected portion of Mangroves has to be restored to its original position by 8th respondent by engaging suitable consultant/subject expert under the supervision of AP Maritime Board. The balance portion of the bund also has to be removed to allow in flow of sea water into this area by taking due care that the deposited dredging spoil not mixed with sea water.
The Kumbhabishekam mudflats area is to be maintained suitably by AP Maritime Board without affecting the existing port activities since important migratory bird species like Great Knot and Indian Skimmers along with other, migratory bird species are visiting this area every year. The area is falling in the default ESZ and therefore, they have to follow the rules and regulations imposed on ESZ.
Vigilance should be taken to protect the existing Mangroves and mudflats by the project proponent, AP Maritime Board and Forest Department while dredging the cannel in future for port related activities"
18. Thereafter, this Tribunal had passed the following order:-
"3. It was mentioned in the report, that there was some damage caused to Mangroves and it requires restoration which will have to be undertaken by the Andhra Pradesh Maritime Board. However, they have not mentioned the extent of damage and cost required for restoration and time limit within which the same has to be done.
4. It is also seen from the report that the project site is within 1.8 Km from the Eco Sensitive Zone (ESZ) of Coringa Wildlife Sanctuary an since the Eco Sensitive Zone (ESZ) has not been notified so far, the default zone of 10 Kms as directed by the Hon‟ble Apex Court has to be followed.
5. So under such circumstances, the committee is directed to file a further report explaining the above aspects before the next hearing date."
19. Further, on that day, the additional 8th respondent was granted permission to file their counter statement and the applicant and others were granted permission to file their objections to the Joint Committee report.
20. Accordingly, the applicants had filed their objection to the Joint Committee report, wherein they have reiterated the allegations made in the application and also the nature of terms of reference issued by the Tribunal to be considered by the Joint Committee and thereafter, observed that none of the question referred to have been addressed. The observation that they have obtained approvals and clearance for dredging, to avoid mixing of dredging spoil with seawater, bund was constructed in the designated area for depositing dredged spoil was not correct. They have not mentioned about the conformity of the approval were consisted with the norms of conserving mangroves/mudflats/ environment/biodiversity and the 8th respondent cannot take shelter under the approvals by other agencies that ignored such norms of environmental conservation. The so called Master Plan cannot override the environmental norms. The Joint Committee ought to have looked into Page 19 of 50 the Master Plan and tried to ascertain the factual position, which has not been done. It was a clear admission on the part of the 8th Respondent that it was severely interfered with the seafront, disturbed the sea water flow, thereby causing damage not only to the mangroves/mudflats/associated ecology, but also the marine bio-resources of the sea. This aspect has not been considered and they have not assessed the environmental compensation. Further, the allegation that when the mangrove patches were affected and removed, certain portion of the bund was removed to allow inflow of seawater into the mangrove patch to enable its regeneration was not correct. On 27.05.2020, the District Forest Officer (East Godavari Territorial) and Andhra Pradesh Pollution Control Board‟s (Kakinada) Executive Engineer had conducted a site inspection based on the direction of the District Collector East Godavari which was reported in „The Hindu‟ daily dated 30th May, 2020, wherein it was mentioned that on the site, a bund has been erected on the mudflat front. The inflow of water and sand being dredged from the mudflat into the mangrove has been recorded. The GMR authorities have been directed to stop the dredging activity, and remove the bund by June 1st, evidenced by Annexure - 1 produced along with the objection. Even after the Order of the DFO, no credible action was taken by the Respondent No.8-GMR Energy Ltd and Respondent No.7- Andhra Pradesh Maritime Board. M/s GMR Energy Ltd., Kakinada had submitted a requisition to the Chief Executive Officer, APMB duly stating that GMR Energy Ltd. has commenced dredging operation and completed @ 1.50 lakh cu.m. of dredging and has an action plan to complete the remaining at the earlier in a time bound schedule. It was further stated that 2.00 lakh cu.m. of dredging is yet to be carried out and the current permitted location does not have the capacity to hold the quantity and requested to deposit the remaining dredged material in the deep sea by using hopper barges. It clearly shows that they are not complying with the directions given by the District Forest Officer for stopping the dredging and remove the bund by 1st June, 2020. The copy of the Letter No.SE/PP2/05/2020, dated 10.06.2020 was produced as Annexure - 2 along with the objection. Since the area was within the control of Andhra Pradesh Maritime Board, they should have obtained necessary approval from the MoEF&CC when the Page 20 of 50 site in question had mangroves and mudflats and they should ensure that no violation of EC -cum- CRZ Clearance conditions and Eco Sensitive Zone. The responsibility of the restoration should be done under the supervision of an expert committee comprising of national level institution which has expertise on restoration of marine ecology and specifically mangroves which has been prayed for in the Original Application. They also reiterated the admission made by the 8th respondent regarding these aspects as follows:-
"i. GMR Energy was the company that carried out dredging and dumped the dredged waste on the mangrove area in question ii. GMR Energy seems to rely entirely on the two letters issued by AP Maritime Board for dumping the waste, thereby admitting that they did dumping of waste at the site in question iii Respondent No. 8 has admitted raising a bund on it‟s own without an independent expert institution being involved just because it had the permissions by APMB iv. Respondent No. 8 has denied that there were pre-existing mangroves at the site and the dredging waste dumped there had not affected the mangroves.
v. The Respondent No. 8‟s Counter states that apart from the mangrove patch along the road the area adjacent to GMR Power plant did not have mangroves as alleged by the petitioners, in fact it was a reclaimed area and only growth of Prosopis plants was found earlier. The photos taken during the site visit is at Annexure-II".
21. Further, they have not considered the nature of impact of destruction of mangroves. Certain photographs showing the proximity of the mangroves with GMR Plant were produced as Annexure - 3 along with the objections. They wanted the restoration of damaged portion in order to protect the present mangroves and its biodiversity outside the sanctuary. They further alleged that the respondents No.7 & 8 are responsible for the destruction of the mangroves and mudflats and they prayed for allowing the Original Application with prayers made therein and direction will have to be issued to the 8th respondent to bear the environmental cost /damage for restoration of the area to its original condition. They had made the following prayers in the objections:-
"(i) Prayers as mentioned in the Original Application may be granted in favour of the Applicants and against the Respondents.
(ii) Action be taken against Respondent Nos.7 and 8
(iii) Respondent No.8 should also be directed to bear the environmental cost/damages for restoration of the area to it‟s original condition.
(iv)Any other or further relief may kindly be granted in favour of the Applicants."Page 21 of 50
22. On the basis of the objections filed by the applicants and also as directed by the Tribunal, the Joint Committee has filed the further report dated Nil, e-filed on 08.06.2021 which reads as follows:-
"Joint Committee Report on OA No.160 of 2020(SZ) filed before the Hon'ble National Green Tribunal, Southern Zone, Chennai.
Introduction The Hon‟ble NGT(SZ) vide its Order dated 18.02.2021 in OA No.160 of 2020(SZ) has directed the Joint Committee to file further report by explaining the extent of damage and cost required for restoration and time limit within which the same has to be done.
The Hon‟ble NGT(SZ) pointed out that the project site is within 1.8 Km from the Eco Sensitive Zone (ESZ) of Coringa Wildlife Sanctuary and since the Eco Sensitive Zone (ESZ) has not been notified so far, the default zone of 10 Kms as directed by the Hon'ble Apex Court has to be followed. (Copy of the Order dated 18.02.2021 in OA No.160 of 2020(SZ) is at Annexure-I).
During the field inspection on 10.12.2020, the joint committee realized that there were some damages caused to Mangroves and the same was reported to the Hon‟ble NGT (SZ). The damage to mangroves was happened to an extent of around 5 acres. The surveyed map of actual affected area prepared by the port authorities is at Annexure-II.
Regarding the project activity fall under the default zone of 10 Km distance from Eco Sensitive Zone of Coringa Wildlife Sanctuary, the present activity is coming under 7(e) of the schedule to EIA Notification, 2006 and it is stated that "maintenance dredging is exempted provided it formed part of the original proposed for which Environment Management Plan (EMP) was prepared and environment clearance obtained".(Copy of the schedule to EIA Notification, 2006 is enclosed as Annexure-III).
Restoration of Mangroves and expenditure involved Restoration of degraded mangroves was being carried out in the tropical and subtropical estuaries throughout the world. Restoration of mangroves started in Indonesia in the early 1960's and an area of about38,923 ha of mangroves were" restored. In Andhra Pradesh, the Forest Department initiated restoration of mangroves in Godavari by canal digging during 1991.(As per the Manual "Mangrove Forest Restoration in Andhra Pradesh, India" by M.S. Swaminathan Research Foundation) For the same, the staff of the Forest Department was taken on an exposure visit to the Pichavaram mangroves where restoration was done by M.S. Swaminathan Research Foundation. After observing the restoration at Pichavaram, the Forest Department started digging canals at 30° from the main canal from 1999 onwards. The canals were dug perpendicular to the river and the side canals were at right angles to the main canal. This reduces the rate of siltation of canals and also facilitates easy flow of tidal water. Accordingly an area of 2,000ha has been restored by the Forest Department in Godavari and Krishna Mangroves.
The manual on Mangrove Forest Restoration in Andhra Pradesh by M.S. Swaminathan Research Foundation also have practical suggestions to restore mangrove and associated cost. This publication reflects the process and results of restoration activities carried out over seven years by the project Coastal Wetlands: Mangrove Conservation and Management, implemented in Godavari and Krishna wetlands by MSSRF with its field centre at Kakinada. M.S. Swaminathan Research Foundation (MSSRF) started its activities of mangrove restoration and management in Andhra Pradesh from 1997 and restored 520 ha of degraded mangroves and facilitated community participated mangrove management in 9,442 ha. Copy of the manual is at Annexure-IV.
As per the manual the restoration cost for canal construction and planting of seedlings per unit depends on extent of area, nature of the soil and distance between the village and the restoration site (if it is community participation) In Godavari basin, the cost for canal digging for one ha was Rs. 18,000/.Therefore, the cost of restoration of degraded mangroves in an area of 10 ha which includes survey, nursery raising, advance work in canal construction and planting would require Rs. 2,00,000/- and for desilting in the first three years, it will cost Rs. 1,00,000/-. Hence, Rs. 3, 50,000/- will be the total cost for restoration of 10 ha of degraded mangroves through community participation.
Thus Rs. 70000/ was the expenditure for restoring the mangroves at 5 acers through community participation in Godavari area. However, this mangrove plantation was done in 1999 (before 20years) and also through community participation. After taking account of inflation rate and non community participation the amount required may be around 25 times more than the amount spend on 1999 for the purpose of restoration of mangroves in the same district of Andhra Pradesh. That is Rs.70000x 25=Rs.1750000/-
Timeline for the restoration work
1. Construction of Canal and associated channeling work should be completed before monsoon (June, 2021).
Page 22 of 502. Planting of additional mangrove saplings should be done during October and November (2021) after the Southwest monsoon for ensuring better survival rate.
3. Further mortality if any, should be replenished up to December/January 2021.
4. Desilting of canals should be done before the onset of summer i.e., February/March 2021.
5. The estimated time required for restoration of mangroves is one (1) year from March 2021.
6. The maintenance works like casualty replacement and desilting of canals should be carried out yearly up to March 2024.
Recommendation of the Committee:
1. The restoration methods in the manual "Mangrove Forest Restoration in Andhra Pradesh, India" published by M.S. Swaminathan Research Foundation can be followed since it was a successful project in Andhra Pradesh.
2. Rs. 20 Lakhs may be required for the purpose of restoration of mangroves in the affected area."
23. The applicant has filed their objections to the second report e-filed on the 23.06.2021 and received on 24.06.2021, wherein they have reiterated the insufficiency of the compensation fixed. Nothing was mentioned about the mudflats and its impact and necessity for restoration of the same. No amount was considered for that purpose. The Joint Committee has not considered the question as to whether they are doing maintenance dredging as per its original proposal, for which, Environment Management Plan was prepared and Environmental Clearance (EC) obtained by the 8th respondent. There was no document produced by the 8th respondent to support their case. There was nothing mentioned about the removal of the bunds and the expenses required for removal of the same. Few photographs produced will go to show that the mangrove plants in the bunds with gravel and it was mangrove which was destructed. The Prosopis will not grow if regular inundation occurs. It will be an elevated area which will not get tidal flushing. Prosopis can be seen along the road site up to the Director of Port Office and immediate adjacent of the GMR Plant. The area was low lying with the regular tidal inundation and continuation of mangroves with North to South upto GMR Power Plant and it will be seen from the documents produced by the applicant that the dredged spoil is being dumped in the mangrove area. They ought to have co-opted an expert from the professional institution such as East Godavari Estuarine Ecosystem (EGREE) Foundation who conducted a Marine Biodiversity Study which worked in the area for 5 to 7 years who had knowledge about the mangroves/mudflats/ biodiversity in the area and they may be able to assess the pre and post dredging extents of damage on the basis of which Page 23 of 50 the total compensation cost could be determined. The original status with mangrove and mudflat needs to be restored and the bund also need to be removed and no ecologically dangerous activity be permitted within the Eco Sensitive Zone. It is also important to protect to the present mangroves and its biodiversity outside the sanctuary. According to the applicant, respondents Nos.7 & 8 are responsible for the destruction and they must be mulcted with the penalty, but the Joint Committee suggested the supervision of the restoration of the mangrove with Maritime Board and the violators themselves cannot be given the work of supervision. They had made the following prayers in the objections:-
"(i) Prayers as mentioned in the Original Application may be granted in favour of the Applicants and against the Respondents.
(ii) The original status with mangroves and mudflat needs to be restored
(iii) The cost of restoration may be reviewed and increased in view of the above submissions
(iv) Bund to the restored forthwith. (v) Action be taken against Respondent Nos.7 and 8 (vi) Respondent No.8 should also be directed to bear the environmental cost/damages for restoration of the area to it‟s original condition."
24. The 8th respondent filed affidavit regarding the status report of implementation of the recommendations made by the Joint Committee and also objection to the report of the Joint Committee dated 23.06.2021 and e-filed on the same day, wherein they have stated that they have filed their counter denying the allegations in the application and that counter will have to be read as part of this affidavit. They have mentioned about the nature of work undertaken by them and their objection to the report as follows:-
"STATUS REPORT REGARDING THE IMPLEMENTATION OF THE RECOMMENDATIONS MADE BY THE JOINT COMMITTEE
4. At the outset, it is stated that the 8th Respondent has not carried out any activity that is prejudicial to the environmental interests in any manner whatsoever. It is stated that the activities of the 8th Respondent were carried out only in the lands owned by the port and far from the eco sensitive areas mentioned in the Original Application by the Applicant.
5. Without prejudice to the contentions made in this Affidavit and in terms of the orders of this Hon'ble Tribunal, I state that the 8th Respondent, in compliance of recommendation made by Joint Committee and in good faith, has conducted a detailed study of the area by engaging the services of experts. Following works have been undertaken by 8 Respondent under the supervision of Andhra Pradesh Maritime Board during the period between March'21 and April 21 for re growth of Mangroves in the area.
a. Cleared dried plants from mangroves area.
b. Main and Pre channeling work are completed c. Sub channeling work in progress.
d. Tidal water flow established in the mangrove area.
e. Monitoring of tidal water flow on hand.
f. The existing mangrove saplings are healthy and well established. g. Large area of mangrove new saplings that have germinated is well established
6. I state that in respect of aforesaid a report by expert consultant with regard to rehabilitation and current status of mangrove vegetation near 8 th Respondent, site in Kakinada and plan for restoring the mangroves in triangular area to bring back mangrove vegetation as on 30th April 2021 is attached herewith and marked as Annexure A. Page 24 of 50
7. Further, I state that in the month of May 2021 and June 2021, we have carried out the following activities:
a. Curing of additional channels by water flowing through the channels for establishing water regime was undertaken during May-June 2021.
b. Planting of additional mangrove saplings will be undertaken during June to July coinciding with Southwest monsoon for ensuring better survival rate.
8. I state that the Channels are being dug to a length of 1.370 mts, which includes
-150 mts. of Feeder Channel and 220 mts. of Sub Feeder Channel and 1,000 mts. of side channels. Further mortality if any, will be replenished till September, 2021 and site will be handed over to Port. The estimated time required for restoration of mangroves is six (6) months from March 2021. The Recent Photographs of the site in question is annexed as Annexure B.
9. I state that it is pertinent to note that till date the 8 Respondent has incurred the following expenses in the course of the above activities for restoration of mangroves:
Vendor Name Details of work Contract
Price (Rs.)
Kumar Tippers Transport Creation of canals for free flow of seawater 4,92,060
Sai Durga Builders Removal of debris, muck and other waste 88,500
material
Sai Durga Builders Extension of canals 59,000
Sai Durga Builders Additional samplings wherever required 92,040,
Ravishankar T Consultant for mangrove rehabilitation 2,25,000
Sai Durga Builders Rehabilitation and maintenance of affected 5,31,000
mangroves area of 3 months
Sai Durga Builders Additional mangroves rehabilitation works 7,43,400
Total 22,31,000
10. In addition to the above, the 8 Respondent has also incurred additional miscellaneous expenditure including but not limited to mobilization of men, resources and time, which cannot be quantified in terms of money and the same are not mentioned in the chart above. At any rate, it is to be pointed out that the Joint Expert Committee had indicated that Rs. 20,00,000/- (Rupees Twenty Lakhs Only) would be required for the purposes of restoration of mangroves in the affected area. On the other hand, the 8 Respondent as a matter of policy and values of 8th Respondent to protect the environment has gone further and has already incurred more than Rs. 22,31,000/-, which is much more than the amount of Rs. 20 lakhs mentioned by the Joint Expert Committee.
11. I state that the above rehabilitation work was undertaken in good faith by engaging the subject expert under the supervision of Andhra Pradesh Maritime Board and without prejudice to its rights and contentions before this Hon'ble Tribunal in the present Original Application.
OBJECTIONS TO THE REPORT OF THE JOINT COMMITTEE
12. At the outset, I state It is stated that the Joint Committee 10.01.2021 when the representatives of the Applicant had inspected the site on and the 8 "Respondent were present. However, it is denied that the representatives of the 8 "Respondent had admitted to the damage caused to the mangroves. In fact, the representatives had informed the Committee that considering the importance of environmental concerns, as a bonafide initiative, 8 Respondent would take steps to improve the growth of the mangroves in the area. Not only that, it was pointed out to the Committee that steps had already been taken by the 8 "Respondent under the supervision of Andhra Pradesh Maritime Board, even without the indulgence of any person, to enable growth of mangroves in the area.
13. 1 state that the Report of the Joint Committee ought to have also considered the fact that the activities of the 6 Respondent were not carried out in the mangrove area and the same were carried out in the lands owned by the Port. In such a case, when the activities are carried out in the lands owned by the Port, there could not have been any issue of damage to the environment. Further, with respect to Kumbhabhishekam mudflats, it is pertinent to note that same are far away from site of 8th Respondent and same is within jurisdiction of Andhra Pradesh Maritime Board and PAG has nothing to do with 8th Respondent.
14. In the light of the above, I most humbly stated that the 8th Respondent in compliance of this Hon'ble Tribunal orders and as recommended by Joint Expert Committee has taken all steps to re-grow the mangroves even in the port area."
25. They also produced the report of the consultant and the photographs showing the nature of work undertaken by them along with the affidavit.
Page 25 of 5026. The 7th respondent filed an affidavit dated 18.08.2021, e-filed on 19.08.2021, wherein they have mentioned that the proposal for dredging of channel for towing the barge and for disposal of dredged spoil was forwarded to the Government of Andhra Pradesh, which was sanctioned vide its proceedings dated 30.01.2020. Consequent thereto, the 7th Respondent had communicated the permission issued by the Andhra Pradesh Go v e r n me n t to th e 8 t h Re s p o n d e nt o n 0 1 . 0 2 . 2 0 2 1 . B o th th e se proceedings are part of the first Joint Committee Report dated Nil. All activities within the area under the control of the 7 th Respondent is permitted only as per the Master Plan of the 7th Respondent. The averment that dumping of dredge had far more extensive damage, not only in terms of the mangroves but also the mudflats and the associated biodiversity is false and baseless. The dredged spoil was directed to be disposed in the approved designated area strictly as per Environmental & Coastal Regulation Zone Clearance, in the land owned by the Ports Department and designated as area for Barge Mounted Power Plant, Coast Guard and Future use, as per the approved Master plan of the Kakinada Port, evidenced by Annexure - 1 produced along with the affidavit. The Zoning Regulations of Sanctioned Master Plan of Kakinada Municipal Corporation specifies that the Zoning Regulation and Development Control Rules are applicable as per provision made in Kakinada Port Area Master Plan (2020) issued by the Govt. of Andhra Pradesh, evidenced by Annexure - 2, relevant portions of the Zoning Regulation & Development Control Rules produced along with the affidavit. As per the HTL/LTL map prepared by National Institute of Oceanography, Visakhapatnam, and approved by the AP Coastal Zone Management Authority for the Barge Mounted Power Plant Project, it was clearly evident that there were no mudflats near the plant site, evidenced by Annexure - 3 produced along with the affidavit. They denied the allegation that the said area was reclaimed by constructing a containment bond, as per the Environmental and CRZ C l e a r a n c e s g r a n t e d b y M i n i s t r y o f Environment & Forests Page 26 of 50 vide their File No.10-81/2007-I.A. III dated 15.04.2008, evidenced by Annexure - 4. The said area is not low lying and regular tidal inundation is not experienced. The historical Google Earth imageries were produced as Annexure-5, which clearly show the reclaimed area. They denied the allegation that the 7th Respondent was also respons ible for the sa me and it is false and baseless. The permissions for dredging are provided within the Port limits, s tr ic tly o n a s - n e e d e d b a s is , a f te r c a r e f ully a n d h o lis tic a l ly considering the requirement and perusing all relevant/ requisite materials. In the instant case, permission was accorded only for needed dredging to facilitate the barge-mounted power plant to be taken out from the mooring basin, with a condition that the 8th Respondent shall take all relevant permissions, if any required, shall be taken. Further, it was also seen from the letter No. SE/PP2/05/2020, dated 10.06.2020 that the 7th Respondent had further cautioned the 8th Respondent regarding precautions to be taken to protect the mangroves. They have not authorized any dredging activity by disregarding the ecological relevance of the area. The 7 th respondent has clearly designated the dumping area and specifically instructed the 8 th respondent to take all precautions to protect the mangroves while dumping the dredged spoil. So, they prayed for accepting their contentions.
27. The 7th respondent has filed further report dated 28.09.2021, e-filed on 29.09.2021 which reads as follows:-
"Report filed on behalf of the 7 th Respondent The 7th Respondent states that all activities in the areas under its control are covered by the approved Master Plan. The Joint Committee, after inspection, submitted its First Report dated Nil, where under it was recommended that restoration activities be undertaken by the 8th Respondent by engaging a suitable consultant, under the supervision of the 7th Respondent Accordingly, the 7th Respondent instructed the 8th Respondent to forthwith commence the restoration work by engaging a qualified consultant/advisor. The 8th Respondent intimated the 7th Respondent that they had engaged the services of a mangrove rehabilitation and managem ent sp ecialist and based on his recommendations, the restoration work would be carried out. Since the work was directed to be carried out under the supervision of the 7th Respondent, the Ports Officer, Kakinada and Executive Engineer- Marine, Kakinada were directed by the 7th Respondent to monitor the work.
Subsequently, the 8th Respondent has taken up the restoration works of Mang roves such as removal of debris, muck and other waste from the area, digging of main channel and part of sub chann el works and submitted their Progress Reports. A copy of the Progress Reports dated 01.07.2021 and 20.09.2021 are attached herewith as Annexure-1 & 2.Page 27 of 50
Post the implementation of the measures suggested, natural regeneration of the mangroves is observed in the area. The 8th Respondent has assured to complete the balance work viz., removal of balance bund along the sea side, gap planting with mangrove species in the areas devoid of natural regeneration etc. Recent color photographs of the area which show the natural regeneration in the area and the dugout channel are attached herewith as Annexure-3.
As on 22.09.2021, work has been completed in respect of 950 meter length of main channel and approx. 300 meter length of sub-channel. The 7th Respondent states that the Board, through the above-mentioned officials will monitor the pending work to be completed by the 8th Respondent i.e., including digging of sub-channels, gap plantation, removal of balance portion of bund and maintenance of the area to ensure that the existing mangroves are protected and to take steps for natural regeneration of mangroves in the area. "
28. The 8th respondent also filed a status report dated 27.10.2021, e-filed on the same date which reads as follows:-
"STATUS REPORT FILED GMR ENERGY LTD. - 8TH RESPONDENT
1. That I am the authorized signatory of the Respondent No. 8 Company and as such I am well aware of the facts and circumstances of the case.
2. I am filing the present affidavit in terms of the orders of this Hon'ble Tribunal. I further respectfully state that the 8th Respondent has already submitted a status report highlighting the various aspects of the restoration work carried out by the 8th Respondent for restoring the mangroves under the supervision of Andhra Pradesh Maritime Board and by engaging a qualified consultant / expert. I respectfully crave leave of this Hon'ble Tribunal to read and refer to the contents of the same and the contents thereof are not reiterated for the sake of brevity.
3. I reiterate that the following are the expenditure incurred by the 8th Respondent with respect to the restoration work :
Vendor Name Details of work Contract
Price (Rs.)
Kumar Tippers Transport Creation of canals for free flow of seawater 4,92,060
Sai Durga Builders Removal of debris, muck and other waste 88,500
material
Sai Durga Builders Extension of canals 59,000
Sai Durga Builders Additional samplings wherever required 92,040,
Ravishankar T Consultant for mangrove rehabilitation 2,25,000
Sai Durga Builders Rehabilitation and maintenance of affected 5,31,000
mangroves area of 3 months
Sai Durga Builders Additional mangroves rehabilitation works 7,43,400
4 . I respectfully state that at present mangrove saplings are healthy and well established. The height of saplings varies from 110 cms to 120 cms, which indicates that the mangroves are establishing very well and restoration of mangroves through canal based interventions was undertaken which has resulted in the better growth of mangroves saplings and natural regeneration of mangroves in larger area than the actual affected area as per the survey report by AP Maritime Board.
5. I state that as per the directions of Joint Committee, Respondent has appointed Mangroves expert consultant and with the supervision of APMB started restoring the Mangroves to its normal position for which the following works:
• Channeling work using manual labour.
• Sourcing of saplings and planting of saplings wherever natural growth of Mangroves are not sufficient.
• Sea side sand removal along with debris at regular intervals for establishing channels for ensuring water flow into the triangular pond area.
• Establishing tidal water flow into Mangroves area Creating main canal from seaside bund to entire length of mangroves up to the road side and joining the sea side by employing manual labor and excavator.
• Creating sub channel branches from main canal for establishing water flows to mangroves.
• Maintenance of canal and sub channels by clearing mud slippages manually wherever is required on regular basis to clear the channels for water flow.
6. As the current naturally regenerated saplings are able to establish and survive further inflow of water can be facilitated by construction trapezoidal canals for inflow of water to restore the entire area. Further, the sub feeder channel has been extended, bund Page 28 of 50 has been removed and additional saplings will be planted in the month of November, 2021 to March 2022 in the areas devoid of natural regeneration as indicated by AP Maritime Board. The current photographs are annexed herewith as Annexure - A as proof of the growth of mangroves.
7. Therefore, it is respectfully stated that GMR Energy Limited is taking all steps in good faith to restore mangroves as per the recommendations of the Joint Committee and as such I humbly pray that this Hon'ble Tribunal may take the present proceedings on record and dispose of the applications since the 8th Respondent has taken all steps to restore the mangroves in the area in question and pass such other or further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
29. Both the 7th and 8th respondents have produced the photographs showing the nature of mangroves and plantation done and its growth.
30. Heard the learned counsel appearing for the applicant and respondents.
31. The learned counsel appearing for the applicants reiterated the averments made in the application and also drawn certain admissions made by the respondents Nos.7 & 8 to the effect that there was no capital or maintenance dredging was permitted to be carried out by the 8th respondent, even as per the permission granted by the 7th respondent to them. It was only permitted to dredge within the port area in order to enable them to remove the barge from the mooring area. Further, it will be seen from the affidavit filed by the 7th respondent that if they are doing more activity than permitted, they will have to obtain necessary permission from the concerned authorities before carrying out the same. Further, they were continuing with the dredging portion in spite of the directions given by the District Forest Officer. The Joint Committee has not properly assessed the compensation. They only considered the restoration of the damaged portion of the mangrove, but they have not considered the impact of damage and assess the compensation. They have also not mentioned anything about the mudflats and in fact, further study will have to be conducted through an approved agency who has dealt with the issue earlier so that they may have pre and post condition of the mangroves in that area and that may be helpful for assessing the compensation. The learned counsel also mentioned about the importance of the mangroves in marine ecosystem. According to them, the mangroves will be deemed to be a forest and clearance from the Forest Department is required for removal of mangroves.
Page 29 of 5032. The learned counsel also relied on the decision reported in T.N. Godavarman Thirumulpad Vs. Union of India & Ors.6, Samir Mehta Vs. Union of India7, Bombay Environmental Action Group Vs. State of Maharashtra & Ors.8, S. Jagannath Vs. Union of India & Ors.9, Ramdas Janardan Koli Vs. Secretary, Ministry of Environment and Forests 10, Association for Environment Protection Vs. State of Kerala 11 and Karnataka Industrial Areas Development Board Vs. C. Kenchappa12 in support of their case.
33. The learned counsel appearing for the Andhra Pradesh Maritime Board and Andhra Pradesh State Coastal Zone Management Authority argued that the activities were within the port area and certain clearances were granted for the port activities and also for establishing the LNG Import Facility by the 5th respondent which was later transferred in favour of the 6th respondent. The permission for dredging etc. were granted in favour of the 8th respondent with certain specific conditions and if any violation was committed by the 8th respondent, they alone will be responsible for the same. The 7th respondent is monitoring the mangrove replantation and there was no necessity for imposing further environmental compensation. So, they cannot be held for responsible for the violations committed by the 8th respondent.
34. The learned counsel appearing for the respondents Nos.6 & 8 argued that they have not committed any violation. They were only doing minimum dredging as permitted as per the approvals and it was dumped in the designated area and when they came to know that certain mangroves were affected on account of their act, they immediately stopped and sought permission for discharging the dredged spoil into the sea and such permissions were granted later. Though there was no responsibility for them to restore the mangroves etc. as a company committed to protect the environment, they have undertaken the work of restoration of 6 (1997) 2 SCC 267 7 2016 SCC Online NGT 479 8 2018 SCC Online Bom 2680 9 (1997) 2 SCC 87 10 2015 SCC Online NGT 4 11 (2013) 7 SCC 226 12 (2006) 6 SCC 371 Page 30 of 50 mangroves which was damaged and they have also undertaken to maintain the same and mangrove restoration work was done on the basis of the recommendations made by the consultant appointed by them in this regard. There is no necessity to impose any further environmental compensation, as they have spent more than the amount suggested by the Joint Committee for restoration of the damaged mangroves in that area. They further submitted that they will abide by any further directions in respect of restoration project of the damaged mangroves in order to protect the environment.
35. We have considered the pleadings, reports, objections filed, submissions made by the learned counsel appearing for the parties and also written submissions submitted by them and also perused the documents available on record.
36. The points that arose for consideration are:-
a. Whether there was any damage caused to the mudflats or mangroves in the CRZ area within the Kakinada Port area and if so, who was responsible for causing such damage? b. If any damage has been caused to the mangroves and mudflats and what is the nature of impact on account of the same and what is the amount of compensation payable and if so, who is liable to pay that amount?
c. What is the further directions to be issued by the Tribunal applying the principles of „Precautionary Principle‟ and „Doctrine of Public Trust‟ so as to protect the marine environment, including restoration of mangroves that were damaged and for restoring the same to its original position and other directions (if any) required for better protection of mangroves in that area?
d. Relief and costs.Page 31 of 50
POINTS:-
37. Grievance in this application was that the dredging was done by the 8th respondent as permitted by the 7th respondent without obtaining necessary permission and in the course of doing dredging, certain portion of the mangrove area has been destroyed and they will have to be restrained from committing further destruction of mangroves and restoration of the same to the original position, apart from imposing compensation and taking further actions (if any) required under law.
38. Originally, the applicants had a case that the 5th respondent was granted with the Environmental Clearance (EC) by the 1st respondent and dredging was done against the violation of Environmental -cum- CRZ Clearance granted to the 5th respondent which was later transferred to the 6th respondent. It was also the case of the applicants that the dredged material even as per the Environmental Clearance should be deposited in a designated place and not in the CRZ area. The fact that the 5th respondent was granted Environmental Clearance for establishing the LNG Import Facility within the Kakinada Port Limit, East Godavari District and the LNG jetty is located at Kakinada Deepwater Port (KDWP) Berth 7 adjacent to the Survey Nos.317 and 318, GMR Barge Power Plant is located at Survey No.411 and 413 of Kakinada Tehsil, Kakinanda District (Erstwhile East Godavari District). The area is situated within 10 Km radius of Coringa Wildlife Sanctuary and mangrove patch is within a distance of 1.24 Kms from the Coringa Wildlife Sanctuary.
39. Further, the 8th respondent was doing the dredging work as permitted by the 7th respondent/Andhra Pradesh Maritime Board, but subsequently the 8th respondent was impleaded on the basis of the contentions raised by the 6th respondent that originally Environmental -cum- CRZ Clearance was granted for development of LNG Import Facility at Kakinada Deepwater Port Berth 7 in favour of GMR Holdings Private Limited (now known as GMR Enterprises Private Limited) was shown as 5th respondent and later when the name was changed, the EC - cum- CRZ Clearance was also transferred in favour of GMR Enterprises Private Limited.
Page 32 of 5040. Since the project for which the Environmental -cum- CRZ Clearance was granted in favour of the original 5th respondent was different from the subsequent changed 6th respondent, they made an application for amendment and that was pending. In the meantime, the Andhra Pradesh Maritime Board had granted dredging permission to M/s. GMR Energy Limited who had undertaken the dredging work for the purpose of towing the barge out of mooring basin and disposal of dredged spoil at specified location by two permission letters namely 01.02.2020 and 10.06.2020 and it is on that basis, they were doing the same. Subsequently, the additional 8th respondent was impleaded in the proceedings.
41. Though it was mentioned in the response to the Joint Committee report filed by the applicants and subsequent status affidavit filed by the 8th respondent that an independent counter statement was filed by the 8th respondent, no such counter was seen filed in the records. However, the fact that the 7th respondent had granted permission as per letter dated 01.02.2020 and 10.06.2020 for carrying out the dredging of the channel for a limited purpose of towing barge out of the mooring basin and originally, the permission was granted for depositing the dredged materials in the designated place, but later permission was granted for disposal of dredged spoil in deep sea using hopper barges.
42. It is also in a way admitted that there were mangrove patches in that area and some portion of the mangroves was affected on account of the deposit of the dredged spoil and thereafter, they stopped the deposit of dredged spoil in that area and subsequently, it was permitted to be disposed of in deep sea using Hopper Barges. The fact that there existed mangrove patches is evident from the condition imposed in the letter issued by the 7th respondent in favour of the 8th respondent that while doing the disposal of the dredged spoil, no damage should be caused to the mangroves. So, the submission made by the learned counsel appearing for the 8th respondent that no damage was caused to the mangroves on account of their act and they are not liable for any of the reliefs claimed by the applicants in the application cannot be accepted.
Page 33 of 5043. It was also alleged in the application that there were mudflats in that area and a bund was constructed by the 8th respondent using the dredged materials obstructing the flow of water and causing destruction of the mudflats as well.
44. In order to the ascertain the allegation of damage caused to the mangroves, dredging in violation of the conditions of Environmental Clearance, the quantum of damage caused to mangroves, expenses required for restoration of mangroves damaged and environmental compensation, a Joint Committee was appointed by this Tribunal and the Joint Committee has filed the report originally which was e-filed on 11.01.2021.
45. It is seen from the Joint Committee report that the representative of the 8 th respondent had conveyed that the dredging work was undertaken after obtaining necessary permission and as directed by the Andhra Pradesh Maritime Board to avoid mixing of dredged spoil with seawater, they constructed the bund in the designated area for depositing dredged spoils. Later, when they realized that the mangrove patch along the road side got affected and removed certain portion of the bund to allow inflow of seawater into the mangrove patch and they stopped their activities in that area. It was also mentioned in the report that the 8th respondent had agreed to restore the damaged portion of the mangrove patch by replantation under the supervision of the Andhra Pradesh Maritime Board, since the area was under their control. Apart from the mangrove patch along the road side, the area adjacent to the GMR Power Plant did not have mangroves as alleged by the applicants and it was a reclaimed area and certain other species like Prosopis plants were found earlier. Further, it was also mentioned in the report that the affected portion of the mangrove area is approximately 1.80 Km away from the Coringa Wildlife Sanctuary boundary and away from the proposed eco-sensitive zone of the Coringa Wildlife Sanctuary which is yet to be notified and as such, the default zone of 10 Km has to be taken. They also mentioned that important migratory bird species like Great Knot and Indian Skimmers were seen along with other species in Kumbhabishekam Page 34 of 50 mudflats area which is under the control of Andhra Pradesh Maritime Board.
46. Without considering the nature of damage and also without assessing the environmental compensation in respect of impact of the destruction of the mudflats and mangrove patch, they have recommended by directing the 8th respondent to undertake the restoration of the affected mangrove patch by replanting the same to its original position engaging suitable consultant/subject expert under the supervision of the Andhra Pradesh Maritime Board and the balance portion of the bund also to be removed to allow the inflow of seawater into this area by taking due care after disposing the dredged spoil not mixed with the water. The Kumbhabishekam mudflats area is also to be maintained suitably by the Andhra Pradesh Maritime Board without affecting the existing port activities, since the migratory bird species like Great Knot and Indian Skimmers and other migratory bird species are visiting the area every year and the area is falling in the default of eco-sensitive zone and therefore, they have to follow the rules and regulations imposed in the eco-sensitive zone. The Andhra Pradesh Maritime Board also must take necessary steps to protect the existing mangroves and mudflats and the Forest Department while carrying out the dredging the channel in future for port related activities.
47. The applicant filed objection to the same and on that basis, the Joint Committee has filed the further report, wherein they have mentioned that the damage to the mangroves were happened to an extent of around 5 Acres evidenced by Annexure - II, Survey Map produced along with the report and they have estimated the expenses for restoration on the basis of the some reports in respect of restoration as per the manual of M.S. Swaminathan Research Foundation and further taking into the account the inflation rate and non-community participation, they have assessed the amount as Rs.17,50,000/- (Rupees Seventeen Lakhs and Fifty Thousand only) and that will have to be done by the 8th respondent following the guidelines given for the restoration method in the manual of "Mangrove Forest Restoration in Andhra Pradesh".
Page 35 of 5048. The applicant filed further objection to the same stating that the Joint Committee has not considered the various aspects in respect of the same and the impact of destruction of mangroves and no environmental compensation was awarded for the damage caused.
49. It is seen from the subsequent status report submitted by the Andhra Pradesh Maritime Board and also the 8th respondent that they have undertaken the replantation and restoration of the mangroves in the area and the survival rate is also good.
50. The 8th respondent also filed a status report stating that they have spent more than the amount suggested by the Joint Committee and there is no necessity for further compensation to be imposed. The Joint Committee has not considered the importance of mangroves and the impact of destruction of mangroves and no compensation was assessed for that purpose.
51. It may be mentioned here that nobody can dispute the fact that mangroves play a great role in protecting the environment and marine ecology. Even in the report relied on by the Joint Committee for assessing the restoration charges viz., "Mangrove Forest Restoration in Andhra Pradesh" prepared by M.S. Swaminathan Research Foundation, they have mentioned about the importance of the mangrove forest as follows:-
"Mangroves are the plant communities occurring in inter-tidal zones along the coasts of tropical and sub-tropical countries. They are one of the most productive ecosystems. Mangroves represent a rich and diverse living resource and are valuable to both the economy and protection of coastal environments. Mangrove plants belong to several families but possess marked similarity in their physiological characteristics and structural adaptations to similar habitat preferences. Mangroves have been variously described as "coastal woodland" and "inter-tidal forest". The term mangrove is loosely used to describe a wide variety of often - unrelated tropical and subtropical trees and shrubs, which share common characteristics. Mangrove forests perform multiple ecological functions such as production of woody trees; provision of habitat, food, and spawning grounds for fin-fish and shellfish; provision of habitat for birds and other valuable fauna; Protection of coastlines and accretion of sediment to form new land. Mangrove areas have high biological productivity, associated with heavy leaf production, leaf fall and rapid decomposition to form detritus. The mangrove ecosystem is dynamic, changing in both location and composition, and has great resilience with the ability to restore itself after heavy damage, as long as seed sources and water flow are maintained. There are also many economic benefits from mangrove resources; like as a source of firewood, self replenishing areas of fishery resources, for collecting honey and for tourism. The mangrove forests in Andhra Pradesh are located in the estuaries of the Godavari and the Krishna rivers. The Godavari mangroves are located in Godavari estuary of East Page 36 of 50 Godavari district and the Krishna mangroves in Krishna estuary of Krishna and Guntur districts. Apart from these estuaries, mangroves are also found in small patches along the coast of Visakhapatnam, West Godavari, Guntur and Prakasam districts."
52. The importance of mangroves was considered by the Hon‟ble Bombay High Court in Bombay Environmental Action Group & Anr. Vs. State of Maharashtra & Ors.13, wherein (on the basis of the extracts made in the application in that case) the definition of mangrove was observed as follows, "Mangroves are intertidal (growing between the high tide and low tide line) evergreen forests growing on the soft marshy lands of a creek, estuary or a bay in the tropical and sub tropical regions. The expression 'mangrove' does not apply to a single species of plants, but to a complete ecosystem which is a conglomeration of several species of flora, fauna and biotic features in an area, and their interaction with each other. Mangroves are a peculiar habitat because they are found on the boundary between the land and the sea. They are found almost entirely in the tropical and sub tropical regions, that is, between 30 degrees north and 30 degrees south latitude, and are an extension of the tropical rain forests towards the sea. They are found largely in the estuarine regions where a river meets the sea, the intertidal regions of shallow bays and creeks. As extensions of the tropical rain- forests in to the sea, mangroves are functionally as important as the tropical rain- forests. Moreover, they are additionally important for the protection of the seashores from erosion, wave action, high-winds and cyclones. Mangroves being intertidal forests are equal to tropical forests, however their importance is not merely in their forest value but due to their strategic location between the land and the sea. Mangroves are the life line of any coastal area and perform invaluable protective functions for the environment. "
53. They also reiterated the role played by the mangroves on the basis of the allegations made in the application which was not disputed in that case as follows:-
"A] The mangroves play important role in protecting sea shores from erosion, high winds and cyclone;
B] Mangroves are strategically located between the land and sea and therefore, their importance is not merely in their forest value. The mangroves act as a buffer between the land and sea and play a very important role in fighting tidal erosion. The presence of mangroves does away with the need for expensive sea walls. The loss of mangroves endangers the stability of the land;
C] The mangroves facilitate reclamation of land from the sea; D] Sometimes mangroves act as flood control by absorbing excess water from the sea;
E] Similarly, mangroves protect the land from storms and hurricanes; F] Apart from the fact that mangroves act as natural sewage water filter systems, the same act as natural pollution coastal checks. They absorb natural waste;
G] The presence of mangroves on the fringes of the city like Mumbai which has one of the lowest open space ratios in the world ensures that some open spaces are kept open, H] The mangroves are breeding grounds for a number of marine organisms, such as shrimps, crabs and fish. The presence of mangroves keeps the fish relatively free from industrial and other pollution; and I] The mangroves are also centres of biodiversity and are the most productive ecosystems. In Maharashtra, they house panthers, otters, jackals, wild 13 2018 SCC Online Bom 2680 = (2019) 1 Bom CR 1 Page 37 of 50 cats, reptiles and birds of numerous varieties. It is pointed out that Thane creek is a home to about 1.5 million birds of 206 different species."
54. Further, it is more sensitive organism and any change in the existing ecosystem will affect the growth of the mangrove itself which in turn affects the marine ecosystem as well.
55. Further, in the decision cited (supra) after considering the wide meaning given to forest by the Apex Court, observed that "the land covered by mangroves irrespective of its ownership is a forest within the meaning of Forest (Conservation) Act, 1980 and the embargo imposed by Section 2 of the Forest (Conservation) Act, 1980 and the directions issued by the Hon‟ble Apex Court will apply with all the force to mangrove areas. It will apply to mangrove areas irrespective of the fact that the lands are privately owned and a prior approval from the Central Government is required for doing any non-forest activity within the area of mangroves, as required under Section 2 of the Forest (Conservation) Act, 1980."
56. Further, it was also observed in the decision relying on Clause 3 of the CRZ Notification, 1991 that the areas that are ecologically sensitive and important, such as national parks, marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty historical heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time and area between the Low Tide Line and the High Tide Line will be treated as CRZ area under the CRZ Notification, 1991. That a buffer zone of 50 meters was also fixed by the Central Government by Notification dated 27.09.1996 that all mangroves within the area of 1000 Sq.M. would be classified as CRZ area with buffer zone of atleast 50 meters. Subsequently, an amendment was made to this on 19.01.2000 that 50 meter buffer zone around the mangroves of area 100 Sq.M. above will not required on the land ward side provided a road abutting such mangroves was constructed prior to February 1991.
Page 38 of 5057. In CRZ Notification, 2011, the CRZ - I was defined in Clause 7 as follows:-
"7. Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-
(i) CRZ-I:-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds; (j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites.
B. The area between Low Tide Line and High Tide Line; "
58. So, it is clear from the definition of CRZ Notification, 2011 that mangroves having area of 1,000 Sq. M. will fall under the CRZ - I and a buffer zone of 50 M along the mangroves have to be provided. Certain categories of activities were permitted in the same. The importance of mangroves was considered by the Hon‟ble Apex Court in S. Jagannath Vs. Union of India & Ors.14
59. Further, the Hon‟ble Bombay High Court in the decision referred to above also relied on the decision of the Association for Environment Protection Vs. State of Kerala15, Nature Lovers Movement Vs. State of Kerala16, M.C. Mehta Vs. Kamalnath17 and other cases observed that in such case principle of „Doctrine of Public Trust‟ will have to be applied in order to protect the environment. Further, the Hon‟ble Bombay High Court also relied on the role of Ramsar Convention in protecting the mangroves in its 8th meeting held at Spain in November 2002 and in the Resolution VIII.32, mangrove ecosystem was discussed and explained as follows:-
"ROLE OF RAMSAR CONVENTION
57. The 8th meeting of the contracting parties (which includes India) to the Convention on Wetlands at Ramsar in Iran in the year 1971, was held in Spain in 14 (1997) 2 SCC 87 15 (2013) 7 SCC 226 16 (2009) 5 SCC 373 17 (1997) 1 SCC 388 Page 39 of 50 November 2002. In the said meeting, a resolution was passed as regards the mangroves which reads thus:
"Resolution VIII.32: Conservation, integrated management, and sustainable use of mangrove ecosystems and their resources
1. RECOGNIZING the major importance of the wide range of ecological goods and services provided by mangrove ecosystems, including their vital role in acting as spawning and nursery areas for many species of economic importance, and the economic, social and environmental importance of mangroves for, inter alia, fishing, biodiversity, coastal protection, recreational activities, education, and coastal and shelf water quality;
2. ALSO RECOGNIZING that the survival of a large number of local communities and indigenous peoples depends upon the productivity and health of mangrove ecosystems;
3. RECOGNIZING FURTHER that mangrove ecosystems are important for regulation of natural processes and maintaining biological diversity in the coastal zones of the countries in which they occur, and that many species, notably, inter alia, fish, molluscs, crustaceans, migratory and resident water birds, and aquatic mammals, as well as threatened species, are ecologically dependent upon mangroves and their surrounding areas;
4. AWARE that healthy mangrove ecosystems, in conjunction with their associated coral reefs, sea grass beds, and intertidal flats, can play an important role in mitigating climate change and sea-level rise, including through carbon sequestration and the buffering of sea- level rise and storms, particularly in view of the current extent of coral bleaching and Intergovernmental Panel on Climate Change (IPCC) predictions of future increase in coral bleaching, as is recognized in document COP8 DOC. 11 and Resolution VIII.3;
5. CONCERNED that, despite this widely-recognized importance of mangrove ecosystems, the area of mangrove ecosystems continues to decrease in many countries as the result of destruction and degradation through human activities that use mangroves and their surrounding areas, or that disrupt the flow of freshwater or tidal flows to mangrove ecosystems, without appropriate planning, management and control mechanisms;
6. AWARE of the increasing availability of knowledge about practices related to the sustainable use of mangrove ecosystems by the ancestral communities of users and that experiences and technical knowledge about the conservation and sustainable use of these ecosystems should receive wide dissemination at the national and global levels;
7. TAKING NOTE of the need to strengthen at the global level the mechanisms for exchanging good practices and technical knowledge about mangrove ecosystems and to benefit from those exchanges, while at the same time promoting and strengthening these activities among local communities, with the cooperation, where appropriate, of local people and national or international organizations with knowledge or interest in the sustainable use of the biological diversity of mangrove ecosystems;
8. AWARE that Contracting Parties to this Convention have concluded through Action 6.2.3 of its Strategic Plan 1997-2002 that mangrove ecosystems are under- represented in the List of Wetlands of International Importance, and that guidance on the identification and designation of mangrove ecosystems has been adopted by this meeting of the Conference of the Parties (Resolution VIII.11);
9. RECOGNIZING that mangrove ecosystems are dependent on ecological processes and influenced by socio- economic processes that occur in river basins and the wider coastal zones in which they occur, and that their capacity to continue to provide their values and functions depends upon sustainable land-use management at the wider scale, as is recognized by Resolution VII.18 concerning river basin management and the guidance adopted by this meeting concerning site-based management planning (Resolution VIII.14), water allocation and management (Resolution VIII.1), and integrated coastal zone management (Resolution VIII.4);
10. RECALLING Resolution VII.21, which specifically refers to mangrove ecosystems as an integral part of intertidal wetlands which have been lost and degraded due to unsustainable activities; and
11. ALSO RECALLING the Annex to Resolution VIII.11 which refers to the principal factors causing loss and damage to mangrove ecosystems worldwide as a result of unsustainable exploitation practices, such as habitat destruction, hydrological changes, pollution, and unsustainable aquaculture;
THE CONFERENCE OF THE CONTRACTING PARTIES
12. REQUESTS Contracting Parties with mangrove ecosystems in their territories to review, and as appropriate to modify their national policies and strategies that could have harmful effects on these ecosystems, and to implement measures to protect and restore their values and functions for human populations, recognizing their rights, uses and traditional customs and the maintenance of biodiversity, and to cooperate at the international level to agree regional and global strategies for their protection;
13. ALSO REQUESTS the Contracting Parties with mangroves ecosystems in their territories to promote their conservation, integrated management and sustainable use within the context of the national policies and regulatory frameworks, and in accordance Page 40 of 50 with environmental and strategic assessments of the activities that could affect, directly or indirectly, the structure and function of the mangrove ecosystems;
14. EXHORTS relevant Contracting Parties to update information on mangrove ecosystem cover and their conservation status, as well as the forms and levels of their use, and to provide this information to the Ramsar Bureau and the Convention's Scientific and Technical Review Panel (STRP) so as to assist their work as called for in Resolution VIII.8 concerning status and trends in wetlands;
15. ALSO EXHORTS those Contracting Parties with mangrove ecosystems within their territories to exchange information relating to their conservation, integrated management, and sustainable use, especially where this involves the full participation of local communities and indigenous peoples;
16. REQUESTS the Ramsar Bureau and the STRP, as resources permit, and the Contracting Parties to contribute to the initiatives concerning the transfer of environmentally sound technologies for the sustainable management of mangrove ecosystems, and to make this available to the users;
17. ALSO REQUESTS Contracting Parties with mangrove ecosystems within their territories, including those of their dependent territories, according to their capacities and internal regulations, to designate mangrove ecosystems that fulfill the criteria for their inclusion in the List of Wetlands of International Importance, in order to create a coherent national and international network of designated Ramsar sites as called for in the Strategic Framework and Vision for the List of Wetlands of International Importance (Resolution VII.11), and in doing so to emphasize particularly those Ramsar sites which are important for local communities and indigenous peoples in terms of their subsistence and cultural values;
18. ALSO REQUESTS all relevant Contracting Parties to recognize the importance of mangrove ecosystems for migratory and non-migratory birds, and to designate such areas as Ramsar sites that qualify under Criteria 4, 5, and 6 of the Strategic Framework adopted by Resolution VII.11, in order to contribute to the establishment of coherent flyway-scale networks of Ramsar sites, in line, as appropriate, with the Joint Work Plan of the Ramsar Convention, Convention on Migratory Species, and African-Eurasian Migratory Waterbird Agreement (AEWA) as endorsed by Resolution VIII.5 and other conventions or related agreements;
19. ENCOURAGES all relevant Contracting Parties to take into account in their management planning for Ramsar sites with mangrove ecosystems, applying the New Guidelines for management planning for Ramsar sites and other wetlands and other guidance adopted by this meeting (Resolutions VIII.1, VIII.4, and VIII.14 ), the ecological and socio-economic factors that occur in river basins and coastal zones to which they are related, and to ensure that their wider land-use planning and management does not adversely affect their mangrove ecosystems, such as through the introduction of pollutants, modification of water flows, sediment inputs, and exotic species;
20. ALSO ENCOURAGES all relevant Contracting Parties to recognize fully the important role mangrove ecosystems can play in mitigating climate change and sea-level rise, especially in low-lying areas and Small Island Developing States, and to plan their management, including required adaptation measures, so as to ensure that the mangrove ecosystems may respond to impacts caused by climate change and sea-level rise;
21. URGES all relevant Contracting Parties to identify the factors degrading their mangrove ecosystems and to seek to restore such ecosystems, using the guidance on this matter adopted by this meeting (Resolution VIII.16), so that they can deliver their range of values and functions; and
22. REQUESTS the Ramsar Bureau to make all possible efforts to secure financial resources and advance technical cooperation for promoting the conservation, integrated management, and sustainable use of mangrove ecosystems and their resources through appropriate existing partnerships and agreements with international and regional organizations."
60. So, it is clear from the above decision that the role played by mangroves in protecting the marine ecosystem is invaluable and it is too sensitive in nature and it will not survive in eco-sensitive system which is not conductive for its existence and destruction of the same will have great impact on marine ecology.
Page 41 of 5061. Considering the importance of mangroves and its destruction, the National Green Tribunal, Western Zone Bench while considering the Ramdas Janardan Koli & Ors. Vs. Secretary, MoEF&CC, New Delhi18 (O.A. No.19 of 2013) had applied the principles of „Precautionary Principle‟, „Doctrine of Public Trust‟ and „Polluter Pays‟ and also the „Sustainable Development‟, issued direction to pay an environmental compensation for the damage caused to the mangrove patch of about 1 Ha. area due to leakage and spillage of oil.
62. The question of balance between the „environment protection‟ and „sustainable development‟ was considered by the Hon‟ble Apex Court in Karnataka Industrial Areas Development Board Vs. C. Kenchappa & Ors. 19 and in that case, the Hon‟ble Apex Court had specifically mentioned the necessity to consider the conservation of natural resources, ecological balance and maintenance, environmental degradation and its consequences, raising problem of global warming, depletion of ozone layers and acid rains and its ill effects and the same will have to be taken note of while acquiring the lands for industrial purpose having more ecological sensitiveness.
63. In Samir Mehta Vs. Union of India & Ors.20 (O.A. No.24 of 2011), the Principal Bench of National Green Tribunal, New Delhi had considered the impact of oil spill in coastal zone and imposed certain compensation relying on the decision of the Hon‟ble Apex Court in Sterlite Industries India Limited Vs. Union of India21 and other cases.
64. So, it is not only sufficient to restore the damage caused to the mangrove patches, but environmental compensation also has to be fixed for that purpose. It is seen from the report of the Joint Committee that the area having an extent of 5 Acres having mangrove have been affected on account of this, what is the total extent of the mangrove area and what is the impact of the remaining mangrove ecosystem has not been considered in this case. Further, even it was admitted by the 7th 18 2015 SCC Online NGT 4 19 (2006) 6 SCC 371 20 2016 SCC Online NGT 479 21 (2013) 4 SCC 575 Page 42 of 50 respondent that the work that was allotted to the 8th respondent is not part of capital dredging or maintenance dredging. Considering the quantum of the dredged spoil to clean the channel, it will be seen that it is nothing but it is maintenance dredging and if it was granted, if it is not done by the 7th respondent directly, but it was entrusted to some other agency, then that agency is expected to obtain necessary clearance from the authorities under the CRZ Notification for this purpose which admittedly was not obtained in this case.
65. It is seen from the objections filed by the applicant to the second Joint Committee report that the committee ought to have co-opted an expert from the approved institution like East Godavari Estuarine Ecosystem Foundation who conducted the marine biodiversity study in that area for 5 to 7 years having knowledge on the mangroves / mudflats and biodiversity in that area and they may be able to assess the pre and post dredging extent of damage on the basis of which total environmental cost ought to have been determined.
66. The 7th respondent has granted only permission to the 8th respondent to do certain things with conditions including that while doing the dredging they should not cause any destruction to the mangrove patches while depositing the dredged spoil. But no mechanism was provided by the 7th respondent to monitor the activity of the 7th respondent on the basis of the permission granted. Further, the deposit of dredged spoil in mangrove patch area itself is a violation committed by the 8th respondent. So, it cannot be said that the 7th respondent had not taken all precautionary principle while providing approval to do certain acts in that area for limited purpose and taken all precautions by imposing necessary conditions including protection of mangroves. Any violation committed by the 8th respondent has to be compensated by them along with the Andhra Pradesh Maritime Board, as the damage was caused to mangroves within their area of operation.
67. The 7th respondent is equally responsible, if any negligence was committed by the 8th respondent to whom permission was granted and they are also equally responsible to pay compensation and if any Page 43 of 50 compensation is to be recovered, the respondents Nos.7 & 8 are jointly and severally liable to pay the environmental compensation and the 8th respondent is also liable for the restoration of the damage caused as found by the Joint Committee.
68. Even in CRZ Notification, 2019, the CRZ - I was classified as CRZ- IA, IB, CRZ-II, CRZ-III, IIIA, IIIB, CRZ - IV, IVA, IVB and the CRZ - I includes mangroves but in case mangrove area is more than 1,000 Sq.M. a buffer zone of 50 m along the mangroves shall be provided and such area also constitutes CRZ - IA. CRZ - IB was defined as the intertidal zone i.e. the area between the High Tide Line and Low Tide Line which shall constitute CRZ - IB. CRZ - II is a developed land area up to the close of the shoreline within the existing municipal limits or in other existence legally designated urban areas which has been substantially built up which is having drainage and approach road, etc. CRZ - III has been defined as the land that are relatively undisturbed (i.e. rural area etc.) and those which do not fall under CRZ - II shall constitute CRZ - III and further classification of CRZ - III A and III B were provided certain restrictions were also made. Certain prohibitions were made in Para (4) of the Notification in respect of activities which were enumerated therein and in CRZ - IA in mangrove buffer only such activities shall be permitted like laying of pipeline, transmission line, conveying system or mechanism and construction of road on stilts etc. that are required for public utilities and some other activities were permitted. In CRZ - IB also certain restrictions were made for certain activities in Clause - 5.
69. So, it is clear from the above that the destruction caused to the mangroves should not be taken very lightly and it should not be confined to the restoration expenses only and further compensation on this aspect will have to be assessed.
69.1 For that, we feel that a Committee can be constituted with the following members:-
a. A member from the NCZMA;
b. A member from the SCZMA - Andhra Pradesh;Page 44 of 50
c. A member from M.S. Swaminathan Research Foundation having expertise in mangrove ecosystem and marine ecosystem;
d. A member from the East Godavari Estuarine Ecosystem Foundation who had conducted the study in that area earlier;
e. A member from the Salim Ali Centre for Ornithology and Natural History, Coimbatore; and f. A member from the National Centre for Sustainable Coastal Management, Chennai 69.2 The committee shall inspect the area in question and consider the following aspects:-
The extent and density of the existing mangroves in that area prior to the dredging activity;
The extent of area that has been affected on account of the act of dredging;
What was the impact of the destruction of the mudflats and the mangroves on marine ecosystem and the remaining mangrove patch in that area;
Assess the environmental compensation taking into all aspects of importance of mangroves not only in respect of carbon sequestration but also other relevant importance of existence of mangrove in that area;
What is the nature of other facilities to be provided to improve the marine ecosystem, including the flora and fauna and fish breeding in that area on account of the existence of such mangroves and its impact on Corniga Wildlife Sanctuary; and The methodology for restoration of the mangroves in that area, if the methodology adopted by the 8th respondent is not sufficient.
69.3 If such recommendations and amount of compensation was fixed by them, then the same will have to be paid by the respondents Nos.7 & 8 jointly and severally and it will have to be recovered from them by the SCZMA - Andhra Pradesh and the 8th Page 45 of 50 respondent has to carry out the recommendation for restoration process and the amount of compensation realized can be utilized for the purpose of improving the mangrove ecosystem in that area and marine ecosystem by the SCZMA - Andhra Pradesh after evolving an action plan for that purpose in consultation with the Forest Department and other expert agencies in this regard in a scientific manner as suggested by the committee appointed by this Tribunal.
69.4 Apart from this, the 8th respondent is liable to remove the bund constructed in that area and restore the free flow of water so as to improve the growth of mangroves replanted and also for the protection of the existing mangroves in that area.
70. In view of the detailed discussions and observations made above, we feel that the original application can be disposed of by giving following directions:-
a. Respondents Nos.7 & 8 are jointly and severally liable for the damage caused to the mangroves and mudflats in that area and they are liable to pay environmental compensation to be assessed by the Committee appointed by this Tribunal jointly and severally and the cost of restoration of the damaged mangroves, its replantation and its maintenance for a period of five years will have to be undertaken by the 8th respondent under the supervision of the Andhra Pradesh Maritime Board in whose possession the land is now and the Forest Department and if the SCZMA - Andhra Pradesh feels that it will have to be done under the supervision of some other expert agency like East Godavari Estuarine Ecosystem Foundation, then that also can be considered and that will have to be done in accordance with law. The cost of the study to be conducted by the committee has to be borne by the respondents Nos.7 & 8 jointly.
b. The Committee constituted by this Tribunal (as stated supra in Para No.69.1) is directed to assess the environmental compensation after considering various aspects to be considered by the committee as Page 46 of 50 directed by this Tribunal in the Para No.69.2 and also provide further restoration process (if any) required, if the restoration process adopted by the 8th respondent is not sufficient and if the compensation amount is assessed and the further restoration process is suggested, then the environmental compensation so assessed has to be paid by the Andhra Pradesh Maritime Board and the 8th respondent viz., GMR Energy Limited jointly and severally and restoration process will have to be carried out by the 8th respondent as suggested by the committee under the supervision of the person as directed by this Tribunal in Direction No.(I).
c. If the amount is not paid by the respondents Nos. 7 & 8, then the SCZMA - Andhra Pradesh is directed to recover the amount from them in accordance with law and utilize the amount for the purpose of improving the mangrove ecosystem in that area after preparing an action plan in consultation with the expert agency as directed by this Tribunal in the earlier paragraphs and utilize the amount for that purpose in a scientific manner.
d. The 8th respondent is directed to bear the expenses for restoration of damaged portion of the mangrove area by replanting and maintain the same and ensure its survival rate of not less than the 85% and they will have to maintain the same for a period of 5 years till it attains a particular stage to ensure its self existence by itself under the supervision of the Forest Department and the Andhra Pradesh Maritime Board in consultation with the agency to be appointed by the SCZMA if so feels to their satisfaction.
e. The 8th respondent is directed to remove the bund constructed along the mudflats area and restore the flow of seawater as existed prior to the construction of the bund and ensure that the free flow of seawater into that area where the bund was constructed and mudflats and mangroves were existed so as to restore the position prior to the construction of the bund.Page 47 of 50
71. The points are answered accordingly.
72. In the result, the Original Application is allowed in part and disposed of with the following directions:-
(I) Respondents Nos.7 & 8 are jointly and severally liable for the damage caused to the mangroves and mudflats in that area and they are liable to pay environmental compensation to be assessed by the Committee appointed by this Tribunal jointly and severally and the cost of restoration of the damaged mangroves, its replantation and its maintenance for a period of five years will have to be undertaken by the 8th respondent under the supervision of the Andhra Pradesh Maritime Board in whose possession the land is now and the Forest Department and if the SCZMA - Andhra Pradesh feels that it will have to be done under the supervision of some other expert agency like East Godavari Estuarine Ecosystem Foundation, then that also can be considered and that will have to be done in accordance with law. The cost of the study to be conducted by the committee has to be borne by the respondents Nos.7 & 8 jointly.
(II) The Committee constituted by this Tribunal (as stated supra in Para No.69.1) is directed to assess the environmental compensation after considering various aspects to be considered by the committee as directed by this Tribunal in the Para No.69.2 and also provide further restoration process (if any) required, if the restoration process adopted by the 8th respondent is not sufficient and if the compensation amount is assessed and the further restoration process is suggested, then the environmental compensation so assessed has to be paid by the Andhra Pradesh Maritime Board and the 8th respondent viz., GMR Energy Limited jointly and severally and restoration process will have to be carried out by the 8th respondent as Page 48 of 50 suggested by the committee under the supervision of the person as directed by this Tribunal in Direction No.(I).
(III) If the amount is not paid by the respondents Nos. 7 & 8, then the SCZMA - Andhra Pradesh is directed to recover the amount from them in accordance with law and utilize the amount for the purpose of improving the mangrove ecosystem in that area after preparing an action plan in consultation with the expert agency as directed by this Tribunal in the earlier paragraphs and utilize the amount for that purpose in a scientific manner.
(IV) The 8th respondent is directed to bear the expenses for restoration of damaged portion of the mangrove area by replanting and maintain the same and ensure its survival rate of not less than the 85% and they will have to maintain the same for a period of 5 years till it attains a particular stage to ensure its self existence by itself under the supervision of the Forest Department and the Andhra Pradesh Maritime Board in consultation with the agency to be appointed by the SCZMA if so feels to their satisfaction.
(V) The 8th respondent is directed to remove the bund constructed along the mudflats area and restore the flow of seawater as existed prior to the construction of the bund and ensure that the free flow of seawater into that area where the bund was constructed and mudflats and mangroves were existed so as to restore the position prior to the construction of the bund.
(VI) Considering the circumstances, parties are directed to bear their respective costs in the Original Application.Page 49 of 50
(VII) The Registry is directed to communicate this order to the members of the Committee constituted by this Tribunal and also to the Chairman - Andhra Pradesh SCZMA, Principal Chief Conservator of Forest (HoFF) and Chief Wildlife Warden, State of Andhra Pradesh, Special Chief Secretary to Government, Department of Environment, Forest, Science and Technology and the Chief Secretary to Government, State of Andhra Pradesh for their information and compliance of directions.
(VIII) The committee as well as the Andhra Pradesh SCZMA and the Chief Secretary to Government, State of Andhra Pradesh are directed to file their periodical reports regarding the compliance of directions and submissions of the report once in six months till the entire recommendations are complied with by the respective departments to be suggested by the Committee constituted by this Tribunal for this purpose.
(IX) As and when the reports are filed, the Registry is directed to place the same before the Bench for consideration and also for issuing necessary further directions (if any) required in this regard.
73. With the above observations and directions, this Original Application is disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.160/2020 (SZ), 27th September 2022. Mn.
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