National Green Tribunal
Association Of Deep Sea Going Artisanal ... vs Union Of India on 23 July, 2021
Bench: K Ramakrishnan, K. Satyagopal
Item No.04:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 172 of 2020 (SZ)
(Through Video Conference)
IN THE MATTER OF
Association of Deep Sea going
Artisanal Fishermen,
Rep. by its Vice President,
Mr. Selvoriyan.A,
Kanyakumari District.
...Applicant(s)
Versus
The Union of India,
Rep. by its Secretary,
Ministry of Environment and Forest
Department of Environment and Forest and Wildlife
Paryavaran Bhavan,
Jor Bagh Road, New Delhi and others.
...Respondent(s)
Date of hearing: 23.07.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. Dr. K. SATYAGOPAL, EXPERT MEMBER
For Applicant(s): Mr. Edwin Jerome
For Respondent(s): Ms. Ojas Sivakumar represented
Mr. M.R. Gokul Krishnan for R1.
Dr. D. Shanmuganathan for R2 to R7.
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ORDER
1. The above case has been posted to today for completion of pleadings, objections (if any) to the committee report and also for hearing on the question of granting interim order or not as requested by the counsel appearing for the applicant.
2. When the matter came up for hearing today through Video Conference, Mr. Edwin Jerome represented the applicant. Ms. Ojas Sivakumar represented Mr. M.R. Gokul Krishnan for 1st respondent and Dr. D. Shanmuganathan represented respondents 2 to 7.
3. The grievance in this application is regarding the construction of Check Dam across Tamirabarani River at Eraiyumanthurai. According to the applicant, they are representing the deep sea going artisanal fishermen community and the Check Dam is constructed in the CRZ Zone at 8015'10.6"N 77009'44.3"E. Further, the proposal for Check Dam itself was done without conducting any prior Environmental Impact Assessment and in fact, it is likely to affect the environment as such. During 2016, when the people in that locality came to know about the proposal, they made representation to the then Chief Minister much prior to the administrative sanction granted by Proceedings dated 24.08.2018. Further, they applied for the details of 2 proposal under the RTI Act and got reply stating that the Government has passed the impugned order granting administrative sanction by order dated 24.08.2018 and tenders were called for and on that basis, work has been started during lockdown period.
4. According to the applicant, the construction falls in the CRZ III (No Development Zone) area of the Coastal Zone Management Plan, Map No. TN 11 Sheet No.C43*3/SE and on account of the construction, there is a possibility of deposit of more sand near the mouth of Thengaipatinam Fishing Harbour and causing deaths and damage of boats.
5. So, the applicant filed this present application seeking the following reliefs:-
"(i) Direct the 2nd, 3rd, 5th and 7th respondents not to construct the check dam at Parakani at 8015'10.6"N 77009'44.3"E, which falls under CRZ-III (NDZ) of the Coastal Zone Management Plan, Map No. TN 11 Sheet No.C43*3/SE in blatant violation of the provisions of the Coastal Regulation Zone Notification 2011 (CRZ), Environment Impact Assessment Notification, 2006 (EIA) and Coastal Regulation Zone Notification, 2019 (CRZ)
(ii) Direct the respondents to restore the river to its original condition demolishing and removing the partially constructed illegal check dam.
(iii) Any other relief which the Hon'ble Tribunal may be deem fit and proper to this case and render justice."3
6. The 7th respondent/Public Works Department (PWD) has filed a detailed counter affidavit stating that construction is being done in the public interest and the policy of the Government for construction of Check Dam could not be challenged before this Tribunal. They further contended that in the CRZ Notification, 2011, there are certain permitted / regulated / prohibited activities. According to the respondent, there is no Environmental Clearance (EC) or permission from State Coastal Zone Management Authority (SCZMA) is required for construction of Check Dam. Further, the CRZ Notification, 2011 was published on 24.10.2018 whereas, the proposal for the present Check Dam and approval was granted by the Government vide G.O. (3D) No.26 Public Works (W1) Department dated 24.08.2018, which was prior to the approval of Coastal Zone Management Plan (CZMP) of Tamil Nadu. Further, Check Dam under construction is 800 M away from the HTL and proposed location does not come under any CRZ Zone as per the map available with the District Coastal Zone Management Authority. It is emphasized that the Coastal Zone Management Plan, 2011 was issued on 24.10.2018, which is only after the issuance of G.O. dated 24.08.2018 for the construction. So, there was no question of obtaining prior clearance arises. Further, they contended that this was intended for the purpose of protecting environment and also protecting the sea erosion to save the life of the 4 fishermen community and also for the purpose of preventing sea water intrusion into the river which affects the quality of river water. So, according to the 7th respondent, the area in dispute is not falling within the CRZ Zone and no clearance is required.
7. The 1st respondent/ Ministry of Environment, Forests & Climate Change (MoEF&CC) filed a counter statement contending that any construction or activity that is being prohibited could not be carried out in the CRZ Zone and even permitted activity can be done, only after obtaining clearance from the State Coastal Zone Management Authority (SCZMA). Though it is a permissible activity, clearance is required as per Para 3 & 4 of the CRZ Notification, 2011. So, according to the MoEF&CC, since construction of the Check Dam falls within the CRZ zone as alleged in the application, it requires prior CRZ Clearance. The Tamil Nadu Coastal Zone Management Plan is concerned, as per the CRZ Notification, 2011 it was approved and issued as per the Annexure R1 (2) Notification dated 24.10.2018. Any violation in respect of CRZ Notification as far as Tamil Nadu State is concerned, it is for the State Coastal Zone Management Authority (SCZMA), Tamil Nadu to look into the issue. They further contended that if any further additional affidavit is required, they may be permitted to file the same.
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8. The 1st respondent/ MoEF&CC also filed an additional affidavit contending that as per the inspection conducted by them and also on the basis of the datas collected, the area in dispute falls within the CRZ Zone and no activity can be permissible without obtaining necessary clearance and they even directed the State Coastal Zone Management Authority (SCZMA), Tamil Nadu to take appropriate action for the violation.
9. In order to the ascertain the genuineness of the allegations made in the application and also to ascertain the question as to whether the area in dispute falls within the CRZ Zone and any clearance is required and there is any violation is committed, this Tribunal had appointed a Joint Committee to go into the question and submit a report.
10. The Joint Committee had submitted the report dated 11.01.2021 e-filed on 18.01.2021 and received on 19.01.2021 which reads as follows:-
"Report of the Joint Committee constituted in the O.A. No. 172 of 2020(SZ) in the matter of Association of Deep Sea going Artisanal Fishermen Vs Union of India & Ors. before the Hon'ble National Green Tribunal, (SZ), Chennai.
1. Introduction:
In order to ascertain the genuineness and real state of affairs and also the nature of alleged violation said to have been committed in carrying out the construction of check dam in Tamiraparani River referred therein the O.A. No. 172 of 2020(SZ) and also its impact on ecology, the Hon'ble National Green Tribunal, Southern Zone, Chennai vide Order dated 08.09.2020 appointed a Joint Committee comprising the members of (1) the District Collector, Kanyakumari District, or a Senior Officer not below the rank of Assistant Collector or Revenue Divisional Officer, as designated by the District Collector, (2) Senior Officer from Ministry of Environment Forests and Climate and Change (MoEF&CC), Regional Office, Chennai, (3) a Senior Officer from State Coastal Zone Management Authority, 6 Chennai (4) The Superintending Engineer of Public Works Department and Water Resources Organisation, who is in-charge of that area with the direction to inspect the area in question and submit factual as well as action taken report, if there is any violation. In the above said Order Hon'ble NGT appointed Ministry of Environment Forest and Climate Change, Regional Office, Chennai as nodal agency for co-ordination and for providing all necessary logistics for this purpose.
2. Constitution of the Joint Committee:
In compliance with the directions of the Hon'ble NGT, as a nodal agency Regional Office of MoEF&CC at Chennai vide O.M. No. EP/12.7/NGT(SZ)/055/2020/ dated 09.11.2020 constituted a Joint Committee comprising the following members based on the Officers deputed / nominated from the Authorities concerned:
(i). Smt. Sharanya Ari, I.A.S, Sub-Collector, Padmanabhapuram, Kanniyakumari District.
(ii). Er. N. Gnanasekar, Superintending Engineer, WRD/PWD, Thamiraparani Basin Circle, Tirunelveli.
(iii). Shri. D. Eswaran, Assistant Conservator of Forests, Department of Environment, Govt. of Tamilnadu.
(iv). Dr. M.T. Karuppiah, Scientist - E, MoEF&CC, Regional Office, Chennai.
3. Terms of reference (ToR) to the Joint Committee:
The Terms of the Reference (ToR) to the Joint Committee referred therein the Order dated 08.09.2020 of Hon'ble NGT in the above matter inter-alia include the following:
(i). The committee shall go in to the question as to whether there was any violation of any environmental laws?
(ii). If there is any damage caused to environment including river bed and surrounding area in the process of constructing the check dam in the river and if so, the committee is directed to assess the environmental compensation as well.
(iii). The impact on the livelihood of the local fisherman on account of the construction of dam in the river, and
(iv). If there is any damage caused to environment the committee is also directed to suggest the ways and means to restore the damage caused to the environment and who is responsible to carry out for the same as well.
4. Background of the project:
Tamiraparani,(Kodayar or Kuzhithuraiyaru or Kuzhithurai river) which is one of the major rivers of the Kanniyakumari district, which is flowing about 60 km distance in the central part of the district and drain in the Melpuram, Kuzhithurai, Munchirai and Killiyur blocks. The river after traversing Killiyur and Munchirai Blocks, confluence in to the Arabian Sea near Erayumanthurai and Thengapatnam, which is at a distance of 56 km west of Cape Commerin. Thengapattanam estuary banks are Thengapattanam at the East and Erayumanthurai at West. The stretch of the coast from Pozhiyoor to Neerodi in Kerala and Neerodi colony to 7 Erayamunthurai in Tamilnadu is an island surrounded by Arabian Sea in south and AVM Canal in North Poovar estuary in west and Thengapainam estuary in East.
Reportedly natural sandy mouth formed near the confluence point has been removed for the fishing harbor works. Further, it has also been observed from the report of PWD that many years sand was quarried in the Kuzhithuraiyaru, which resulted deeply lowering the river bed below the mean sea level (MSL) with heavy undulations and thus to prevent the back water entry and mixing the saline sea water, the Government of Tamilnadu vide G.O.(3D). No.26 dated 24.08.2018 has accorded administrative sanction for construction of Check Dam across kuzhithuraiyar near Eraimanthurai in Kanniyakumari District with estimated cost of Rs. 1537.07 lakhs.
5. Meeting of the Joint Committee:
In compliance with the Order dated 08.09.2020 of Hon'ble NGT in the above matter and in continuation to the Joint Committee Constitution vide O.M. dated 09.11.2020 of Regional Office of MoEF&CC at Chennai, the meeting of the Joint Committee was held on 08.12.2020 at Office of District Collector, Collectorate, Nagercoil, Kanniyakumari District. As a nodal agency, the meeting was coordinated by the MoEF&CC, Regional Office, Chennai. All the members of the Joint Committee were present in the said meeting. As part of natural justice and as consented by all the members of the Committee an opportunity was given to the Counsel of the Applicant in the O.A. and also to the project authority i.e. Water Resources Organization, Public Works Department, Govt. of Tamilnadu to submit their views before the Committee. During the meeting of Joint Committee, members discussed the facts, issues and prayers in the above case and the Terms of the Reference (ToR) to the Joint Committee referred therein the Order dated 08/09/2020 of Hon'ble NGT.
5.(i). Submissions of project authority (Public Works Department, Govt. of Tamilnadu):
In the above Joint Committee meeting, on behalf of Public Works Department, Govt. of Tamilnadu, as a project authority, Officers from the Water Resources Organization, Public Works Department took part in the meeting and made their submissions in connection with the above alleged construction of Check Dam, which inter-alia include the following:
(a). The River bed is lower than the Mean Sea Level (MSL) and thus construction of Check Dam is necessary to prevent the sea water intrusion.
(b). Project Authority claimed that in order to develop the livelihood of the fishermen, the Government of Tamilnadu has formulated new fishing harbor at Thengapattinam. Reportedly, PWD consented the development of fishing harbor at Thengapattinam, subject to the condition that one check dam across the river within 1 km from the Thengapattinam in the upstream side of the river shall be provided in order to avoid sea water intrusion during high tides.
(c). Project Authority claimed that CRZ clearance is not required for the said project activity, since the G.O. for the said project activity was issued on 24.08.2018, that is prior to the CRZ Notification, 2019 and thus it is not attracting the provisions of the CRZ Notification.8
(d). It was informed that in the W.P.(MD)No. 7069 of 2019, Hon'ble High Court of Madras, Madurai Bench passed the judgment with the direction to commence the check dam work and complete it before the rainy season.
(e). No fishermen would be affected due to construction of Check Dam, since the same is being constructed 800 m away from the mouth of the river.
(f). Project authority informed that the petitioner association has intention to misuse the river bank for the activities such as landing of their boats etc. beyond the harbour area.
5.(ii). Submissions of the Applicant to the O.A.:
The Counsel for the applicant Shri. Edwin Jerome took part in the above said Joint Committee meeting and made the following submissions on behalf of the applicant Association:
(a). The applicant Association claimed that the said construction of check dam at Tamiraparani River (Kuzhithuraiyaru) near Eraiyumanthurai of Kanyakumari District is falling well within the CRZ area and the project authority executing the same without obtaining prior CRZ clearance from the Competent Authority.
(b). The river Tamiraparani (Kuzhithuraiyaru) had two Check dams at Kuzhithurai and Mancaud. In the year 2016, Kuzhithurai Check dam was reconstructed by increasing its height and can deliver maximum of 55000 cu.ft of water. The Mancaud Check dam has already damaged. The project authority failed to reconstruct the Mancaud check dam instead they commenced construction of new check Dam in the CRZ area without obtaining prior CRZ clearance.
(c). Due to the construction of Check Dam resulted sand deposit and tidal influence near the mouth of Thengapatinam Fishing Harbour, which is causing deaths and damage to the boats.
(d). The applicant claimed that due to continuous unregulated sand mining activities in the past, the river bed is lowered than the Mean Sea Level (MSL).
(e). AVM canal joins to the Thamiraparani river at Erayumanthurai, which serves as feed river which help to distribute the flood in the river to the Canal. Due to the present construction of the Check Dam about 50 m away from the AVM Canal, the entire stretch of the AVM Canal will become saline due to sea water ingression, which affects the local fishermen as well as the farmers, who depend on the fresh water.
(f). The dwelling units located just close to the coast are facing threat of erosion.
The width of the beach along this stretch of the coast is about 30 m and gets washed away during the South-West (SW) monsoon leads to the occasional seawater intrusion into the dwelling units. Beach slope in this stretch is quite steep. An existing sea wall for a length of 1km is in a collapsed stage. 9
(g). Due to the construction of alleged Check Dam, the boats of the fishermen can not go to the Tamiraparani River, which will affect the fishermen community as their main source of income is fishing.
(h). The applicant association claimed that there is technical flaw in the proposed activity, wherein height of the proposed Check Dam (6 m) is less than the height of the River (+ 6.5 m).
(i). The present Check Dam construction leads to reduction of fresh water flow into the sea. The reduction in the freshwater discharge to the estuary would have major catastrophic impact due to the imbalance in the salinity and other aquatic parameters in the estuary region.
(j). Applicant claims that the river banks are not having side walls and thus the present construction of the Check Dam can not hold the water, which may lead to flooding in the adjoining area of the river stretch.
(k). Applicant informed that already numerous applications have been submitted to various Govt. Authorities with the request to shift the location of check dam from the current location.
(l). It was alleged that the project authority failed to assess the ecological impact due to construction of the check dam at the present location, taken into account of the environmental and ecological damages to the local people and marine environment.
(m). Finally he has submitted a collective representation duly signed by the local fishing communities with the request to drop the check dam construction to ensure the livelihood security to the fishermen communities. The said representation is enclosed as Annexure - I.
6. Status of Statutory requirements:
(i) In exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-
rule (3) of rule 5 of the Environment (Protection) Rules, 1986, Ministry of Environment, Forest & Climate Change had notified the Coastal Regulation Zone Notification, 1991 on 19th February, 1991, which, inter-alia, provided classification of Coastal Regulation Zone (hereinafter referred to as CRZ) areas and norms for regulating developmental activities referred therein. This Notification was subsequently amended from time to time.
(ii). Subsequently, in supersession of the CRZ Notification, 1991, the Coastal Regulation Zone Notification, 2011 was notified on 6th January, 2011 for regulation of developmental activities along the coastal stretches and to ensure the livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches.
(iii) All the developmental activities / projects attracting the provisions of the CRZ Notifications 2011 are required to obtain prior CRZ clearance from the authorities concerned.
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(iv). As per the CRZ notification, the State Coastal Zone Management Authority (SCZMA) is primarily responsible for enforcement and implementation of the provisions of the notification. For the purpose of implementation and enforcement of the provisions under CRZ Notification, the powers either original or delegated, under the Environment (Protection) Act, 1986 are with the State Governments and State Coastal Zone Management Authorities (SCZMAs).
Further, the Government of Tamil Nadu constituted District Coastal Zone Management Authorities (DCZMA) for all the Coastal districts vide G.O.Ms.No.163 dated 09.06.1998 of Environment and Forests Department. The District Environmental Engineer of the Tamil Nadu Pollution Control Board is the Convener of the District Coastal Zone Management Authority and is the appropriate authority to take action in this regard. The DCZMAs are entrusted with the following responsibilities, in their respective jurisdictions, as per the above G.O.
a) to be responsible for monitoring and enforcement / Implementation of the provisions of the Coastal Regulation Zone Notification.
b) to ensure that the activities within Coastal Regulation Zone take place as per the approved Management Plan.
c) to advice the State Government on any matter relating to protection and control of pollution in Coastal areas.
d) to act as an Authority under Sec. 4 of Coastal Regulation Zone Notification, 1991 dated 19.02.199 for taking action on Coastal Regulation Zone Plan violations.
(v). MoEF&CC vide letter No. 12-8/2018-IA.III dated 24.10.2018 has approved the Coastal Zone Management Plan (CZMP) of Tamilnadu for all its coastal districts as per the provisions of the CRZ Notification, 2011.
(vi). As approved by the Union Cabinet the new CRZ Notification, 2019 was notified vide S.O. GSR 37(E) dated 18.01.2019. However, CRZ Notification, 2019 come into force only after the respective Coastal Zone Management Plan (CZMP) framed to the CRZ Notification, 2011 have been revised / updated by the States / UTs, as per the provisions of the new CRZ Notification and approved by the Ministry of Environment, Forest & Climate Change. Para 6 (i) of CRZ Notification, 2019 inter alia states as under:
(i) "All coastal States and Union territory administrations shall revise or update their respective coastal zone management plan (CZMP) framed under CRZ Notification, 2011 number S.O. 19(E), dated 6 th January, 2011, as per provisions of this notification and submit to the Ministry of Environment, Forest and Climate Change for approval at the earliest and all the project activities attracting the provisions of this notification shall be required to be appraised as per the updated CZMP under this notification and until and unless the CZMPs is so revised or updated, provisions of this notification shall not apply and the CZMP as 11 per provisions of CRZ Notification, 2011 shall continue to be followed for appraisal and CRZ clearance to such projects."
(vii). Before finalizing the CZMP concerned State / Union Territories / Coastal Zone Management Authorities are required to adopt due procedure in preparation of CZMPs as stipulated in Para 6 (iii) of CRZ Notification, 2019, which includes public consultation. Para 6 (iii) of said notification inter alia states as under:
(iii) . "The coastal States and Union territories shall prepare draft CZMP in 1:25,000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in Annexure-IV to this notification, which involve public consultation."
All developmental activities listed in this notification shall be regulated by the State Government, Union territory administration, the local authority or the concerned Coastal Zone Management Authority within the framework of such approved CZMP, as the case may be, in accordance with provisions of this notification.
(viii). In accordance with the provisions of the sub-clause (d) clause (iv) of Para 3 of CRZ Notification, 2011, the structures for prevention of salinity ingress or measures to prevent the sand bars, installation of tidal regulators are permissible activity, based on carried out by any agency specified by MoEF&CC and needs to be regulated in accordance with the provisions of Para 4 of CRZ Notification, 2011. Thus the said activity requires prior permission / clearance from the competent authority before the commencement of the activity. Para 4.2 of CRZ Notification, 2011 prescribes the procedure for clearance of permissible activities attracted under this notification.
7. Observation of the Joint Committee on the ToR to the Committee:
Based on the deliberations held during the meeting of the Joint Committee and site inspection of the area under question, the following observations are made:
Whether there was any violation of any environmental laws?
(i) The Project Authority claimed that the alleged construction activities for the Check Dam was commenced, since the Hon'ble Madurai Bench of Madras High Court in the W.P.(MD)No.7069 of 2019 directed to start the check dam work and complete it before the rainy season. But, Hon'ble High Court was neither appraised of the CRZ issues in the said W.P. nor the same was exempted from the CRZ clearance for the said activity.
(ii) The Joint Committee relied upon the following statutory provisions of the CRZ Notifications:
(a). Coastal Zone Management Plan (CZMP) framed to the CRZ Notification, 2011 be revised / updated by the Tamilnadu State as per the provisions of the CRZ Notification, 2019. All the project activities attracting the provisions of this notification shall be 12 required to be appraised as per the updated CZMP under this notification and until and unless the CZMPs is so revised or updated, provisions of this notification shall not apply and the CZMP as per provisions of CRZ Notification, 2011 shall continue to be followed for appraisal and CRZ clearance to such projects.
(b). The activities prohibited and permitted within the CRZ are expressly declared in the Para 3 of CRZ Notification, 2011. As per sub-clause (d) clause (iv) of Para 3 -
"3. Prohibited activities within CRZ - The following are declared as prohibited activities within the CRZ,-
......(iv). Land reclamation, bunding or disturbing the natural course of sea water except those,-
.....
(d). measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and fresh water recharge based on carried out by any agency to be specified by MoEF".
Thus, setting up of structures for prevention of salinity ingress is permissible activity under CRZ Notification, 2011. However, prior permission under the CRZ Notification, 2011 is required before commencing such a project, even if it is permissible activity.
(c). Para 4 of CRZ Notification, 2011 prescribes for the regulation of permissible activities in CRZ area except those activities prohibited in para 3 of the Notification. Further, it requires prior permission / clearance from the competent authority before the commencement of the activity.
(d). Para 4.2 of CRZ Notification, 2011 prescribes the procedure for clearance of permissible activities attracted under this notification.
(iii) Based on the site visit and approved CZMP available, the Joint Committee confirms that the alleged activity for the construction of Check Dam is in the CRZ area and attracts the provisions of the CRZ Notification. The Coastal Zone Management Plan- Tamilnadu - Map No. TN-11, cross sectional view of Tamiraparani river in the CRZ area and superimposed view of ongoing Check Dam construction on the CZM Map having demarcation of No Development Zone (NDZ) Low Tide Line (LTL) and High Tide Line (HTL) is shown in the Annexure-II & III. Google imagery of the area under dispute before the construction and after the construction of the check dam is shown in the Annexure - IV. However, Project authority commenced the alleged project activity without obtaining requisite CRZ clearance from the Competent Authority and is being continued, which tantamount violation of the provisions of the Environment (Protection) Act, 1986 and CRZ Notification, 2011. Damage caused to environment including river bed and the environmental compensation:
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(iv) The details regarding date of commencement of the construction activity for the alleged Check Dam has not been made available. The Civil excavation and construction of Check Dam have been completed for 30m with all components such as body wall, upstream & downstream apron and cement concrete block. The temporary coffer dam for a length of 70 m has been constructed and the water is diverted on the right flank of the river to facilitate day to day construction activities. The left bank abutment and wing wall and return wall completed. The overall physical progress of the construction is about 32%. Heavy machinery has been deployed for excavation and other civil construction work. Excavation of river bed has been carried out. Course of river flow is altered. Thus the damage to the marine environment including river bed has already been occurred due to the process of ongoing construction activity of the check dam in the river.
Photographs taken during the site inspection is placed as Annexure - V to VII.
(v) Tamilnadu State Coastal Zone Management Authority vide letter dated 17.8.2020 and 24.8.2020 forwarded the complaints received in the above subject matter, to the Chairman, District Coastal Zone Management Authority, Kanniyakumari District and Convener District Coastal Zone Management Authority (DCZMA), Kanniyakumari District with the request to examine the matter and take appropriate action, if there is violation under CRZ Notification, 2011 and submit the action taken report. Copy of the said communications addressed to the DCZMA is enclosed as Annexure-VIII. In compliance with the request of TSCZMA, based on the site inspection District Environmental Engineer, TNPCB & Convener-DCZMA vide letter No. DEE/TNPCB/NGL/COMPL/TECH 06/1513/2020 dated 24.8.2020 confirmed the said ongoing construction activity of Check Dam is within the CRZ area and requested the Executive Engineer, Public Works Department, Govt. of Tamilnadu to carryout such activity only after obtaining CRZ clearance from the TSCZMA. Also requested to furnish the project relevant details and action taken report. Copy of the said communication dated 24.8.2020 of DCZMA is enclosed as Annexure-IX. So far the project authority has neither complied with the instructions of the District Coastal Zone Management Authority nor has submitted the action taken report, rather construction activities are being continued without obtaining prior CRZ clearance, which tantamount violation of Environment (Protection) Act, 1986 and also attracts for the provisions of financial penalty.
(vi) The Hon'ble NGT(SZ) in the Order dated 08.09.2020 in O.A. 172 of 2020 has directed to assess the environmental compensation, if there is any violation. The approved methodology / guidelines issued by the Central Pollution Control Board for determining the Environmental Compensation to be recovered for violation is under Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. The said guidelines cannot be applied to the present CRZ activity under dispute. Further, the present project activity falls under the category where damages caused to the environment and liability of the responsible party (occupier, operator, transporter, importer, exporter, etc., as the case may 14 be) as well as cost thereof are difficult to assess, since the ongoing activity is within the river.
(vii) Under such circumstances, the Joint Committee determined the environmental compensation to ensure that levying of financial penalty remain within the brief of Section 15 of the Environment (Protection) Act, 1986, since the CRZ Notifications have been notified under the Environment (Protection) Act, 1986. Further, additional fine up to Rupees five thousand rupees for every day may also be imposed in case of failure continues by the responsible party beyond period by which remedial/corrective measures would have been implemented as suggested by the SPCB/PCC. Non-compliance may attract violation of one or several provisions of the said Rules and thus the total financial penalty amount may be arrived by adding up number of provisions violated.
(viii) Accordingly, the environmental compensation for the present case is arrived as under:
Environmental compensation (EC) = (financial penalty remain within the brief of Section 15 of the E(P) Act, 1986 i.e. Rs. 100000/-) + 5000 x No. of days for which violation took place from date of communication of PCB or CZMA.
EC = 100000 + 5000 x 140 days (as on 11.01.2021) = Rs. 800000/- (rupees eight lakhs only).
The Hon'ble Tribunal may consider the above calculation or may arrive Environmental compensation as it deem fit under the circumstances of the case based on the precedents i.e. on the basis of the percentage of the project cost as desired by the Hon'ble Tribunal. If the above suggested method is followed, it may be directed to the State PCB concerned to calculate and ensure the number of days violated for levying environmental compensation.
The impact on the livelihood of the local fisherman on account of the construction of dam in the river:
(ix) Considering the sensitivity of the matter, the Joint Committee members did not directly interact with the local people to ascertain their views on the impact on the livelihood of the local fisherman on account of the construction of dam in the river. However, the collective representation duly signed by the local fishing communities submitted to the Joint Committee with the request to drop the check dam construction to ensure the livelihood security to the fisher communities is placed as Annexure - I. Restore the damage caused to the environment and responsible authority to carry out for the same:15
(x) The said project activity has been commenced in the CRZ area without obtained requisite prior CRZ clearance from the Competent Authority.
Further, overall physical progress of the construction of about 32% has already been completed, wherein heavy machineries are being deployed for excavation and other civil construction work. Excavation of river bed has been carried out. Course of river flow is altered during the construction. Thus the damage to the marine environment including river bed has already been occurred due to the ongoing construction activity of the check dam in the river. There is a possible impact on the estuary also due to the construction activity. Due to the construction of the check Dam in the present location, there is a possibility of saline water ingression in the AVM canal. In the present case, damages caused to the environment and liability of the responsible party as well as cost thereof are difficult to assess, since the ongoing activity is within the river and CRZ area. If the work could have been commenced with prior CRZ clearance, the requisite measures would have been stipulated based on the scientific data by the experts. Presently, there is no provision for getting ex-post-facto clearance. So, further course of action may be decided by the Hon'ble Tribunal. In the event of restoring the damage, the responsibility lies on the project authority i.e. Public Works Department, Govt. of Tamilnadu. They should bear the entire cost for the restoration.
By considering all the above facts, Hon'ble Tribunal may pass appropriate Order(s) direction(s) as deemed fit."
11. Though the committee consists of four members namely, (i) the District Collector, Kanyakumari District or a Senior Officer not below the rank of Assistant Collector or Revenue Divisional Officer as designated by the District Collector, (ii) a Senior Officer from the Ministry of Environment, Forests and Climate Change (MoEF&CC), Regional Office, Chennai, (iii) a Senior Officer from the State Coastal Zone Management Authority, Tamil Nadu, (iv) Superintending Engineer, Water Resource Department & Public Works Department who is in charge of that area, but the Assistant Conservator of Forests, Department of Environment, State of Tamil Nadu and the Scientist from MoEF&CC, Regional Office, Chennai alone signed the joint 16 committee report.
12. The Sub Collector has filed a separate report alleged to be part of the Joint Committee report which reads as follows:-
"Report of Joint Committee Member, Sub Collector I Sharanya Ari, the Subcollector, Padmanabhapuram, Kanyakumari District and Member of Joint Committee submit the report as follows. Based on the Honourable Green Tribunal order in the original application No. 172/2020 (SZ) the following officials inspected the check dam site and the Fishing Harbour area at Thengapattinam / Erayumanthurai on 8/12/2020
(i) The Sub Collector, Padmanabhapuram, (ii) Senior Officer from the Ministry of Environment, Forest and Climate Change (MoEF & CC), Regional office, Chennai, (ii) Senior Officer from State Coastal Zone Management Authority, Chennai, (iv) The Superintending Engineer, PWD, Thamirabarani Basin Circle, Tirunelveli The Government of Tamil Nadu have accorded administrative sanction for the work of Construction of Check Dam across Kuzhithuraiyar near Erumanthurai in Kanniyakumari District for Rs. 1537.07 lakhs vide GO.Ms. No: 26 Dated:
24.08.2018. The work is in progress and about 34% of work physically completed and an expenditure of Rs.4.34crores has been incurred so far. Thamirabarani also called Kuzhithuraiyar is a perennial river having flood for about 60 Km distance and confluences into the Arabian Sea near Erayumanthurai. Backwater Kayal to formed at the confluence of the river with Arabian Sea and the sandy mouth has been removed at the confluences of the river due to Fishing Harbour works. As a result of this, sea water intruded with river water and salty water has been spread around more than 48 villages in the upstream side for a length of 13.00 Km affecting the population of around 2.00 lakhs. Along the course of river there are lots of TWAD Board Infiltration wells and the water is being pumped for supplying to nearby villages for drinking purposes from these wells.17
Since the river bed is lower than the Mean Sea Level it is very much essential to arrest the Sea water intrusion. Hence the check dam is being constructed across Kuzhithuraiyar for a length of 130m and keeping the crest level of the check dam at +1.00 m above Mean Sea Level. The said check dam is 800m (aerial distance) and 1.88 km (along the river path) away from the river mouth.
It is submitted that no fishing activity would be affected due to the construction of the check dam since the same is being constructed 800m away from the mouth of the river. The flow of river water would also not be drastically affected due to the said construction. In order to develop the livelihood of the fishermen, the Government has formulated a new Fishing Harbour at Thengapattinam. For which, the Public Works Department vide CE letter No: TS / DO. III / C 9747/06 dated: 04.07.2006 have given consent to transfer of poromboke land for the formation of the said Fishing Harbour project at Thengapattinam subject to the following conditions:
The entire length of bar mouth may be left as it is in order to allow the entire flood water of the Kuzhithurayar river (Kanniyakumari District) in to the Arabian Sea and the proposed infrastructural facilities located at the bar mouth for the Fishing Harbour Project can be relocated at the right bank of the river.
One check dam across the river well within the distance of 1.00 km from Thengapattinam in the upstream side of the river shall be provided in order to avoid sea water intrusion during high tides.
Therefore, the said Fishing Harbour Project can be developed based on the above said conditions only.
It is submitted that since the river bed is- 3.25m lower than the Mean Sea Level, the Sea water is mixed with the river water and the same becomes as salty which spoils the ground water as salty and this salty water is being used for drinking and agricultural activities by the people of the villages in an around the river bank and the locality Since, the public at large have been suffered due to the salty ground water, they started protesting to restore the river water in its previous position. Hence the State Government has 18 passed the said G.O. , to construct a Check Dam with the height of 4.25m from the bed of river upto the top the existing stagnated water level during high tide period which will resist the sea water into the river. This shall allow in providing fresh water to nearby villages to tune of 2 lakh population The Draft notification of Coastal Regulation Zone, 2011 was published vide SO No: 229 / (E) dated 15th September 2010. The CRZ map indicating LTL, HTL and classification of variation of CRZ zones etc. was approved on 24-10-2018 by Ministry of Environment and Forest, New Delhi. The GO (3D) No: 26 Public Works (WI) department dated 24.08.2018 for the construction of check dam was issued on 24-8-2018 and preliminary works were started. The check dam under construction is 800 m away from HTL, and the proposed location does not come under any CRZ zone as per the map available with the District Coastal Management plan authority. It is emphasized that the CRZ 2011 map was issued on 24-10-2018 which is only after the issuance of the GO date (24-8- 2018) for the work. Therefore the previous CRZ notification 1991 and the coastal zone management plan (CZMP) approved in 1996 has been followed.
It is submitted that Thiru B.Paulraj. Kanyakumari District has filed a writ petition bearing W.P (MD) No: 7069 of 2019 before the Honourable Madurai bench of Madras High Court seeking immediate steps to construct the check dam at Eraimanthurai to prevent sea water intrusion. Honourable High Court delivered the judgment, directing the respondents to ensure that the construction of check dam is completed before the rainy season, so that there will not be any obstruction of the work and further inconvenience to the public can be prevented.
In the light of the circumstances explained above, it is submitted that in order to safeguard the livelihood of people on banks of river and as per the directions of the Honourable High Court, the check dam is being constructed and which is the only meant to restore the pre-existed condition. Hence, there is no violation of environment laws and no damage caused to 19 environment including river bed and surrounding area due to the construction of check dam."
13. But, in fact, this ought to have been incorporated in the Joint Committee report and the joint committee members ought to have got an opportunity to go into the same and answered that aspect as well. But instead, the Sub Collector without signing the report sent a dissenting report to this Tribunal independently, which practice cannot be encouraged. The dissenting member who has given their dissenting note, when the draft report is circulated and that also will have to be considered by the committee and then, conclusion ought to have been arrived at for giving reasons by the committee members who are not agreeing with the dissent recommended by other members to be considered by this Tribunal while evaluating the report.
14. The applicant also filed a detailed objection to the committee report and also to the counter affidavit filed by the 7th respondent denying the allegations made against them and justifying the construction of Check Dam and reiterating that it is in violation of CRZ Notification.
15. First of all, we find that the State Coastal Zone Management Authority (SCZMA), Tamil Nadu and the State Government including the project proponent namely, the Public Works Department (PWD) are 20 represented by the same counsel.
16. The learned counsel appearing for the State Government fairly submitted that there is some conflict of interest between the SCZMA and the project proponent, and it is not proper for him to appear for the SCZMA and the separate counsel will have to be appointed for that purpose and he will address the Government for the same.
17. Further, as per Notification delegating the power of SCZMA for taking action for violation, it is for the District Coastal Zone Management Authority which consists of District Collector of the respective district as Chairman and District Environmental Engineer of State Pollution Control Board of the respective districts as convenor to take action in this regard. But, in this case, though the District Collector was appointed as one of the members of the committee appointed by this Tribunal with rider to depute some officer not below the rank of Assistant Collector or Sub Divisional Magistrate, it is on that basis, Sub Collector was deputed by the District Collector. The District Collector himself being a regulator should have joined inspection instead of delegating the power to some other persons who is not authorized to take action, if any violation was brought to their notice.
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18. Further, the District Collector in the capacity as Chairman of District Coastal Zone Management Authority has not filed any independent counter statement as well, though he is the authority under the Notification to take action for the violation (if any) brought to the notice and he has been directed to take action by the Regional Office, MoEF&CC, Chennai noting that there is a violation.
19. The learned counsel appearing for the State of Tamil Nadu submitted that a Writ Petition was filed before the Hon'ble High Court of Madras at Madurai Bench seeking mandamus for completion of Check Dam within a time frame as W.P. (MD) No.7069 of 2019 and the Hon'ble High Court of Madras at Madurai Bench by order dated 01.04.2019, directed the State Government to complete the work and passed the following order:-
"The Petitioner has come forward with this Writ Petition seeking issuance of a Writ of Mandamus directing the respondents 1 to 4 to take immediate steps to construct a Check Dam in the Parakkani (Irayumanthurai) area at Vilvancode Taluk in Kanyakumari District to obstruct the sea water intrusion between Mangadu to Thengaipattanam of Thamiraparani (Kuzhithurai) River based on G.O. (3D) No.26, P.W. (W.1) Dept/ dated 24.08.2018 issued by the Department of P.W.D, Tamil Nadu within the time frame fixed by this Court.
2. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
3. The Thamiraparani river which flows from Thirparapu Kuzhithurai - Thengaipattinam, finally ends up in Arabian Sea. It 22 is stated that from Mangadu to Thengaipattinam, there are seven villages and thousands of families are living on the banks of the river to a stretch of seven kilometres. It is also stated that the said river water is the main source of ground water, agriculture and drinking water, for all the people who are living in that stretch for about seven kilometres,
4. The grievance of the petitioner is that sea water is mixing with the river water of Tamiraparani and due to intrusion of saline water into the Tamiraparani (Kuzhithurai) river, water is not suitable for drinking or irrigation purpose. It is also stated that increase in salinity in river water is likely to cause other environmental issues and health hazards. It is in these circumstances, the petitioner has come forward with this Writ Petition for the relief, as stated supra.
5. It is also stated that despite passing of Government Order sanctioning and approving the scheme, construction of check dam has not been commenced.
6. The learned Additional Government Pleader appearing for the respondents, on instructions, submitted that the construction work namely construction of Check Dam in the appropriate place has been given to a Contractor, after following the tender process. Further, for construction of Check Dam, a sum of Rs.14,58,76,181/- has been approved and sanctioned by the Government. It is further stated that the work is likely to be commenced. It appears that the contractor has also deposited the security deposit as per the tender conditions. It is further submitted that after appointment of Contractor and execution of contract, the Contractor has commenced the work.
7. The learned Additional Government Pleader appearing for the respondents also submitted that the respondents will ensure that the work is executed within the time stipulated in the agreement, without any delay.
8. Having regard to the nature of work undertaken by the respondents, the official respondents shall ensure that the construction of Check Dam is completed before the rainy season, so 23 that there will not be any obstruction of the work and further inconvenience to the public can be prevented.
9. With the above direction, the Writ Petition is closed. No costs."
20. The Hon'ble High Court of Madras at Madurai Bench has not considered as to whether the authorities have obtained necessary clearance for this purpose including Environmental Clearance (EC) or CRZ Clearance as required under the EIA Notification or CRZ Notification and there is any violation of environmental norms. The Division Bench of High Court of Madras at Madurai Bench only proceeded on the basis that it was a project which had obtained all necessary requisites and there is no violation of any environmental laws. The question whether it requires any CRZ Clearance was also not gone into by the High Court.
21. Further, in Para 5 of the Order, it was mentioned that despite passing of Government Order sanctioning and approving the schemes, construction of check dam has not been commenced, that was the status of construction as on 01.04.2019.
22. It is also seen from the counter statement filed by the 7th respondent that another Writ Petition was filed before the Hon'ble High Court of Madras at Madurai Bench as W.P. (MD) No.27380 of 2019 seeking for 24 injunction restraining from proceeding with the work of construction of check dam by the President of the present applicant association. Since no injunction was granted by the Hon'ble High Court of Madras at Madurai Bench, the applicant approached this Tribunal by filing this present application.
23. It is seen from the documents produced by the applicant that, that writ petition was later withdrawn and the same has been dismissed as withdrawn by the Hon'ble High Court of Madras at Madurai Bench.
24. The question as to whether there is any violation of environmental laws has not been gone into by the High Court while disposing the writ petition mentioned above. That question will have to be gone into by this Tribunal.
25. The learned counsel appearing for the applicant submitted that the project proponent is proceeding with the work and some death also occurred on account of consequence of this alleged unauthorized construction by the Government.
26. We feel that an opportunity will have to be given to the SCZMA, Tamil Nadu to independently represent by another counsel, as there are conflicts of interest between the State Government and the SCZMA, Tamil Nadu as per the Joint Committee report submitted. 25
27. But, at the same time, prima facie, it is found that the MoEF&CC, Regional Office, Chennai in the joint committee along with the Department of Environment, State of Tamil Nadu have come to the conclusion that there is a violation of CRZ Notification.
28. We are not agreeing with the submission made by the counsel appearing for the State Departments that since the administrative sanction as well as financial sanction has been granted for the project in 2018 and the CZMP was approved only thereafter, there is no need to obtain CRZ Clearance.
29. It may be mentioned here that even prior to the preparation of CZMP in tune with the CRZ Notification, 2011, CRZ Notification 2011 has been notified much earlier namely, 06.01.2011 and that will govern the area in respect of permitted/regulated/prohibited activities in the CRZ Zone and till the Coastal Zone Management Plan of 2011 in tune with the Notification 2011 has been prepared. This will have to be guided by CZMP of 1996 in tune with the provisions of 2011 Notification so as to ascertain as to whether this falls under any of the zone as provided under the CRZ Notification, 2011 or not.
30. Further, the question regarding obtaining prior clearance will arise not at the time when the administrative sanction was granted by the Government, but before starting of execution of work on ground, as 26 the notification prohibits any construction in the regulated zone without getting prior clearance and further, prior to commencement of work, they will have to obtain clearance / permission from the concerned authority. Since there is some dispute regarding the place exactly where the work is going on, according to the two members of the joint committee, it falls within the No Development Zone of CRZ III Zone, but, according to the Government Departments namely, the project proponent including the Sub Collector it is not falling within the CRZ Zone at all.
31. So, in order to resolve the issue, we appoint an independent agency namely, Institute of Remote Sensing (IRS), Anna University, Chennai to go into the question as to whether the area in dispute falls in any of the regulated/prohibited/permitted zone as per the CRZ Notification, 2011, after inspecting the area along with the joint committee and prepare a plan by super imposing the area with the CZMP of State of Tamil Nadu prepared in tune with the CRZ Notification, 2011. The District Collector himself/ herself is directed to participate in the committee at the time of inspection, instead of deputing any other officer.
32. Till that question is resolved, we are not inclined to grant any interim order, but at the same time, it is clarified that any construction made 27 by the project proponent in the disputed area will be subject to the result of original application and they will be doing the work at their risk.
33. Anyhow, the State Government shall take all necessary steps to provide safeguard to the people who are residing near the construction site to avoid any alleged calamities as claimed by the applicant.
34. In the meantime, the party respondents are directed to file their independent response including the SCZMA, Tamil Nadu regarding the allegations made in the application and also regarding ongoing project and also violation (if any) as alleged by the applicant and if there is any violation, what is the nature of action taken by them regarding the same, especially two members of the joint committee mention that there is a violation.
35. Expense for conducting the study will have to be met by the State Government of Tamil Nadu and the Chief Secretary, State of Tamil Nadu is directed to take all necessary steps for providing necessary fund for conducting the study as directed by this Tribunal and any other logistics or other support (if any) required by the expert agency. 28
36. The Institute of Remote Sensing, Anna University, Chennai is directed to submit the report along with the plan super imposing the CZMP of 2018 and locating the project area, so as to enable this Tribunal to ascertain as to whether the area in dispute falls in any of the regulated/prohibited/permitted zone under the CRZ Notification, 2011 with colour pictures and on that basis, the joint committee is also directed to file further report on this aspect.
37. They can file the documents with the help of the Regional Office, MoEF&CC, Chennai. The MoEF&CC, Regional Office, Chennai is also directed to provide all assistance to the agency to conduct the study and for submitting the report as directed by this Tribunal and the committee members are directed to reinspect the site along with the agency mentioned and co-operate with the agency in carrying out the work and submit the report on the basis of the report from the agency.
38. The committee members as well as Institute of Remote Sensing, Anna University, Chennai are directed to submit their reports to this Tribunal on or before 25.08.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules without fail, considering the importance of the issue and urgency in the matter. 29
39. The State Government is also directed to consider the aspect that conflict of interest between the regulators namely, SCZMA, Tamil Nadu and the project proponent namely, Public Works Department (PWD) and appoint an independent counsel to represent the SCZMA, Tamil Nadu without delay, considering the fact that the matter involves serious environment issues and alleged violation by the State Department itself.
40. The Registry is directed to communicate this order to the Chief Secretary, State of Tamil Nadu, Additional Chief Secretary for Public Works Department, Principal Secretary for Environment by e-mail immediately for their information, apart from communicating this order to the committee members, official respondents and also to the Institute of Remote Sensing, Anna University, Chennai for their information and also to depute an expert for this purpose.
41. For consideration of further report and also for completion of pleadings, post on 25.08.2021.
Sd/-
..................................J.M.
(Justice K. Ramakrishnan)
O.A. No.172/2020,
23rd July, 2021. Mn. Sd/-
................................E.M.
(Dr. K. Satyagopal)
30