National Green Tribunal
Association Of Deep Sea Going Artisanal ... vs Union Of India on 19 January, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.03:
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 and others.
...Respondent(s)
Date of hearing: 19.01.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Sri. Edwin Jerome
For Respondent(s): Sri. M. R. Gokul Krishnan for R1
Sri. DR. V. R. Thirunarayanan for R2 to R7.
ORDER
1. The above case has been filed by the applicant alleging that Check Dam at Tamiraparani River (Kuzhithuraiyaru) 1 near Eraiyumanthurai of Kanyakumari District is being constructed in violation of the CRZ Notification, 2011.
2. According to the applicant, without getting the necessary permission from the Coastal Zone Management Authority, they are not entitled to proceed with the work.
3. Further, on account of the construction of the check dam the free flow of water in the river is likely to be affected and that may in turn affect the availability of water for the people of the locality for drinking as well as agricultural purposes.
4. In order to ascertain the genuineness of the allegation and also the violations if any, this Tribunal had by order dated 08.09.2020 appointed a joint committee comprising 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, (SCZMA) Chennai and 4) The Superintending Engineer of Public Works Department (PWD) and Water 2 Resources Organisation (WRO), who is in charge of that area to inspect the area in question and submit a factual as well as action taken report, including the assessment of environmental compensation if there is any violation found.
5. Ministry of Environment Forests and Climate Change (MoEF & CC), Regional Office, Chennai was designated as the nodal agency for co-ordination and for providing all necessary logistics for this purpose. The case was posted for filing report by the committee to today.
6. When the matter came up for hearing today through Video Conference, Sri. Edwin Jerome represented the applicant. Sri. M. R. Gokul Krishnan represented 1st respondent and Sri. Dr. V. R. Thirunarayanan represented respondents 2 to 7. So service is complete.
7. We have received a joint committee report dated 11.01.2021, received on 19.01.2021 without the signature of Sub Collector and the Superintending Engineer, Public Works Department (PWD) and Water Resources Organisation (WRO), but signed by the other two members of the committee namely, Assistant Conservator of Forests and Ministry of Environment, Forests and Climate Change (MoEF & CC), 3 Regional Office, Chennai 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, Chennai (4) The Superintending Engineer of 4 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:5
(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 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 6 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, 7 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.
(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.
85.(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 9 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.
(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.
10(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.
11(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 12 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 6th 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 per provisions of CRZ Notification, 2011 shall continue to be followed for appraisal and CRZ clearance to such projects."13
(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 14 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 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 15 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.
16(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:
(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 17 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 18 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 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 19 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 20 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:
(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 21 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.
8. They have come to the conclusion that this is a prohibited activity under Clause '3', (iv) under the CRZ Notification 2011. But it is also seen from the report that the complaints have been received by the Tamil Nadu Coastal Zone Management Authority (TNCZMA) regarding this project and were forwarded to the District Coastal Management Authority (DCZMA) and the Convener of the District Coastal Zone Management Authority (DCZMA) by 22 Annexure-VIII produced along with the report of the joint committee came to the conclusion, that there is violation of CRZ Notification and without complying with the provisions of the CRZ Notification, 2011, the activity should not be proceeded with. But in spite of that the construction is going on and around 32% of the work has been completed.
9. It is also mentioned in that report, that there was a case pending before the Hon'ble High Court of Madras at Madurai Bench as W.P. (MD) No: 7069 of 2019 in respect of the construction of the Check Dam and the Hon'ble High Court appears to have passed an order directing the authorities to start the check dam work and complete the same before the rainy season. But it was mentioned in this report that the question regarding the violation of CRZ issues were not projected and considered by the Hon'ble High Court of Madras at Madurai Bench.
10. The Pollution Control Board had also sent a separate report namely proceedings dated, 24.08.2020, which is said to have been passed on the basis of the complaints received directing the Executive Engineer, Public Works Department (PWD) and Water Resources Organisation (WRO) not to proceed with this project which reads as follows:-
23"Lr. No. DEE/TNPCB/NGL/COMPL/TECH 06/1513/2020 dt. 24.08.2020 Sir, Sub: TNPCB: O/o DEE, TNPCB. NGL - Complaint petitions receive against Establishments of check dam across River Thamiraparani- to take necessary action - requested - regarding.
Ref:
1. Complaint petition from Thiru. J. Christopher, District Secretary, Akila India Parambariya Meenavar Sangam, #11/135B, Anbiam 5, Melmidalam, Udhayamarthandam, Kanniyakumari District - 629 178 dated Nil received in the office on 13.08.2020
2. Complaint petition from Association of Deepa Sea Going Artisanal Fishermen, Shark Street, College Road, Thoothoor P.O., Kanniyakumari District - 629 176 dated 08.08.2020 received in this office on 17.08.2020.
3. Complaint Petition fom Fishermens Integral Development Society, Reg. No. 3/2018, Neerodithurai, Kollemcode P.O., Kanniyakumari District - 629 160 dated 11.08.2020 received in this office on 17.08.2020.
4. Complaint Petition from Eraviputhenthurai Meenavar Padagu Urimaiyalar Unnetta Sangam (Eraviputhenthurai Boat Owners Developmental Society), Eraviputhenthurai, Thoothoor P.O. Kanniyakumari District- 629 176 dated 24
11.08.2020 received in this office on 17.08.2020.
5. Complaint petition from Eraviputhenthuri Boat Owners Developmental Society), Eraviputhenthurai, Thoothoor P.O. Kanniyakumari District- 629 176 dated11.08.2020 received in this office on 17.08.2020.
6. Complaint petition from Thiru S. Maria Manoj, Chairman, Meenavar Orunginaippu Sangam, Iraviputhenthurai, St.Joseph Colony, Thoothoor Post, Kanniyakumari District 629 176 date 11.08.2020 received in this office on17.08.2020.
7. Complaint Petition from Thiru. K. Mary Dasan Thoothoor Jesus Boat Owners AssociationKoshy Complex Thoothoor, Thoothoor Post, Kanniyakumari District 629 176 dated 11.08.2020 received in this office on 17.08.2020.
8. Complaint petition from Thiru. K. Mary Dasan, Thoothoor Jesus Boat Owners' Association, Koshy Complex Thoothoor, Thoothoor Post, Kanniyakumari District 629 176 dated 11.08.2020 received in this office on 17.08.2020.
9. Complaint Petition from St.John the Baptist Boat Owner Union, Poothurai, Poothurai Post, Kanniyakumari District-
629 176 dated 11.08.2020 received on this office 17.08.2020.
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The copy of the complaints cited under reference is enclosed for taking necessary action.
The complaint is against the construction of check 25 dam at Ezhudesam Village Vilavancode Taluk of Kanniyakumari District across River Thamiraparani by way of blocking the flow of River Thamiraparani using Construction debris. It was also stated that, it leads to the formation of sand dunes at the mouth of River Thamiraparani causing accidents of fisherman boats.
The complaint site was inspected by the AEE on 21.08.2020 and noted that construction activity was being carried out at one side of River Thamiraparani close to the confluence at sea (Arabian Sea). As enquired, it was ascertained that a check dam is under construction by PWD WRD.
The site of construction falls under the CRZ area and any construction activity is to be carried out only after obtaining prior clearance from the Tamil Nadu Coastal Zone Management Authority.
In this regard, I request you to take necessary action on the following.
1. PWD shall furnish the details on the activities carried out in the complaint area. The project report if any shall be furnished.
2. PWD shall furnish the site details in which the construction activities are carried out.
3. PWD shall undertake any activities in the CRZ area only after obtaining CRZ clearance.
4. PWD to ascertain the CRZ zone in which it falls through DTCP, Tirunelveli (or) Local Town Planning 26 Office, kanniyakumari.
5. PWD shall inform the date from which the above said activity has commenced. The action taken may be informed to this office immediately.
11. The Superintending Engineer, Public Works Department (PWD), Water Resources Organisation (WRO), Thamirabarani Basin Circle, Tirunelveli, who is one of the members of the committee, instead of signing the report submitted an independent report projecting it as the joint committee member as a dissenting report to the joint committee report which reads as follows:-
"Report of Joint Committee Member, WRD I, N.Gnanasekar, the Superintending Engineer, P.W.D, Thamirabarani Basin Circle, Tirunelveli 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, (iii) Senior Officer from State Coastal Zone Management Authority, Chennai, (iv) The Superintending Engineer, P.W.D, Thamirabarani Basin Circle, Tirunelveli.
The Government of Tamil Nadu have accorded administrative sanction for the work of Construction of 27 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 carrying capacity of 42,700 cusecs in Kanniyakumari District. It runs for about 60 Km distance and confluences into Arabian Sea near Erayumanthurai. Backwater Kayal that 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 spreaded 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 lot of TWAD Board Infiltration wells and the water is being pumped for supplying to nearby villages for drinking purposes from these wells.
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.
During the monsoon season due to littoral effect of sea tides the river mouth at the estuary of river used to get closed by sand sediment and which acted as natural barrier for preventing back water entry and preventing the mixing of saline water with river water which had been the natural phenomenon and whenever there is flow in the river the sand bar gets opened and flow of water got discharged into the sea and when water recedes, the sand bar got formed automatically and preventing the sea water intrusion. Due to the Construction of Fishing Harbour the river mouth was opened for vessel movement 28 and sea water entered into the river. The salanity the happened due to the Harbour works, the ground water in the adjoining acquifiers, openwells, borewells became saline and which are difficult to utilise for domestic and agricultural purposes.
It is submitted that no fisherman 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 also would not affect 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 its 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 Kuzhithurayarriver (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 hightides. 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 29 water in its previous position. Hence the State Government has 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. Since the top of the check dam will be as same as the level of existing stagnated water level during high tide period always there will be water nappe over the check dam from upstream to downstream side It is pertinent to note that since the bed of the river is very much lower than the Mean Sea Level, water is always stagnating in Kuzhithuraiyar for about 3m depth for a length of 13km throughout the year. However, even after the completion of the said proposed construction, the steady river water flow will occur and the river confluences with sea without any obstruction. Therefore, the reproduction and for laying eggs and other eco systems would not affect due to the proposed construction of the said check dam which is 800m (aerial distance) and 1.88 km (along the river path) away from the river mouth. The construction of check dam is made in the river itself within the banks and existing top level only, so there will be no additional inundation and outflanking in the river and no submergence in the adjoining places. There will be only the downward flow of fresh water from upward to downward. The fresh water above check dam would be eco- friendly which will be helpful for flora and fauna and since downward flow would not be blocked which would never ever prevent any upcoming nutrients of fresh water into the sea. The check dam barrier is only meant to restore the earlier existed condition.
Further, the need of construction of Check Dam at this place became essential due to the removal of sand bar for the construction of fishing harbour at the estuary of river so it will only bring the earlier situation before the construction of Fishing Harbour.
The Draft notification of Coastal Regulation Zone, 2011 was published vide SO No:229/(E) dated 15th 30 september2010. 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, NewDelhi. The GO(3D) No: 26 Public Works (W1) 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 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. Hence obtaining CRZ clearance from the authorities was not arisen.
The petitioner himself is taking inconsistent plea with the intention to misuse the river and the river bank for the landing of their boats and other purposes beyond the harbor area. Further it is submitted that the development along coastal for fish landing and berthing of fishing vessels crafts are to carried out accordingly to the "Comprehensive shore line protection management plan for entire Tamilnadu coast May2016"prepared by the prestigious Indian Institute of Technology, Madras (popularly known as IIT Madras ) and approved by the Government of Tamil Nadu for the proper implementation and maintenance of entire coast of Tamil Nadu . In the above plan the planning for development of fish landing centers will be carried out broadly under two categories viz "i) Development of fish landing centers in gaps of existing coastal protection measures and ii) conversion of existing coastal protection measures to fish landing centers with possibility for further expansion and these expansion works are being carried out by the Fisheries Department of Government of Tamil Nadu.
It is submitted that Thiru A. Sesadimai, President Association of Deep Sea Going, Artisanal Fisherman, Shark Street, Thoothoor post, Kanyakumari District has filed a writ petition W.P (MD) No: 27380 of 2019 in the Honorable 31 Madurai bench of Madras High Court seeking order of injunction from proceeding with the check dam construction work and it is still pending before the Honorable Madurai bench of Madras High Court.
In light of the circumstances explained above it is submitted that due to the removal of sand bar from the river mouth and reduction of river width from 800m to 75m at river mouth for Fishing Harbor works caused sea water intrusion. The sea water intruded around 13km along the river in the upward direction and water became salty and also spoiling the adjoining aquifer, open wells, bore wells etc. In order to safeguard the livelihood of people on banks of river the check dam is being constructed and which is the only meant to restore the preexisted condition. Hence there is no violation of environment laws and no damage caused to environment including river bed and surrounding area due to the construction of check dam."
12. It was mentioned in this report that another case was pending before the Hon'ble High Court of Madras at Madurai Bench filed by one Thiru. Sesadimai, President Association of Deep Sea Going, Artisanal Fisherman, Shark Street, Thoothoor Post, Kanyakumari District as W. P. (MD) No: 27380 of 2019 seeking order of injunction from proceeding with the Check Dam construction work and it is still pending before the Hon'ble Madurai Bench of Madras High Court.
3213. According to the Public Works Department (PWD) Engineer, there is no violation and CRZ and the check dam construction is 800 meters away from the HTL and the location does not come under the CRZ zone as per the map available in the District Coastal Zone Management Authority.
14. According to them, Coastal Zone Management plan (CZMP) in respect of Tamil Nadu on the basis of CRZ Notification, 2011 was approved only on 24.10.2018. But this G.O was issued on 24.08.2018. But it may be mentioned here, that the authorities have lost sight of the legal aspect that even if the Coastal Zone Management Plan (CZMP) has not been approved on the basis of CRZ Notification, 2011 but they will have to go by the existing CZMP namely Coastal Zone Management Plan of 1996 and it was approved on the basis of the earlier CRZ Notification, 1991 and the areas will have to be fixed on the basis of the Coastal Zone Management Plan (CZMP), though in tune with CRZ Notification, 2011.
15. Further, even if the sanction has been granted before proceeding with the work if, Coastal Zone Management Plan 33 (CZMA) 2018 has been approved then also they will have to abide by the CRZ Notification, 2011, and they will have to ascertain as to whether any portion of the check dam falls within the CRZ area and if so, then they are not entitled to proceed with the work if it is a prohibited or a regulated activity without getting necessary sanction under that Notification.
16. However, since there was some mention made about two Writ Petitions, we feel that it is better to peruse those two orders passed in the Writ Petition by the Hon'ble High Court of Madras at Madurai Bench before passing any adverse order against the Government in respect of the project.
17. The office is directed to get the copies of the orders passed by the Hon'ble High Court of Madras at Madurai Bench as W.P. (MD) No: 27380 of 2019 and also W.P. (MD) 7069 of 2019 so as to consider those orders as well before passing any order by this Tribunal before the next hearing date.
18. The parties are also at liberty to produce the copies of the Writ Petition and orders passed by the Hon'ble High Court of Madras at Madurai Bench in this regard.
3419. The parties are also at liberty to file their objections, if any, to the committee report before the next hearing date. If the Government is proceeding with the work then, that will be the subject to the result of further orders to be passed by this Tribunal in this regard.
20. The parties are at liberty to submit their independent responses regarding the allegations made in the application which they are expected to file within one month from the date of service of the notice.
21. The Tamil Nadu State Pollution Control Board is also directed to submit the report to this Tribunal on or before 29.01.2021, by e-filing in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF along with necessary hard copies to be produced as per rules.
22. The Registry is directed to communicate this order to the Tamil Nadu State Pollution Control Board as well as the official respondent's immediately through e-mail, so as to enable them to comply with the direction and for filing their independent response to the allegations made in the application and also for filing their independent report as directed by this Tribunal.
3523. For consideration of report, objections if any, post on 29.01.2021.
......................................J.M. (Justice K. Ramakrishnan) ...............................E.M. (Shri. Saibal Dasgupta) O.A.172 of 2020 (SZ) 19th January, 2021. Sr. 36