National Green Tribunal
The Conservation Action Trust Through ... vs The Union Of India By Its Secretary ... on 23 November, 2023
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
**********
Appeal No.74/2016(WZ)
IN THE MATTER OF:
1. The Conservation Action Trust
Represented by its Executive Trustee
Mr. Debi Goenka,
5, Sahakar Bhavan, 1st Floor, LBS Road,
Narayan Nagar, Ghatkopar (W),
Mumbai- 400 086.
2. Mr. Debi Goenka
B 502, Glengate,
Hiranandani Gardens,
Mumbai- 400 076.
.....Appellant(s)
Versus
1. The Union of India
Represented by its Secretary
Ministry of Environment, Forests & Climate Change
Indira Paryavaran Bhawan,
Jor Bagh, New Delhi- 110 003.
2. Government of Gujarat
Through the Secretary,
Department of Forest and Environment
Block No.14, 8th Floor, Sachivalaya,
Gandhi Nagar- 382 010.
3. Gujarat Coastal Zone Management Authority
Through the Member Secretary
Block No.14, 8th Floor,
Sachivalaya, Gandhinagar- 382 010.
4. Gujarat Pollution Control Board
through its Member Secretary
Paryavaran Bhavan, Gandhinagar-
Gujarat- 382 010.
5. Principal Chief Conservator of Forest &
Head of the Forest Force (HoFF)
"Aranya Bhavan", Near CH-3 Circle,
Sector-10 A, Gandhinagar- 382 010.
6. M/s. Adani Petronet (Dahej) Port Pvt Ltd.
Adani House, Near Mithakhali Circle
Navarangapura, Ahmedabad, Gujarat.
.....Respondent(s)
Appeal No.74/2016(WZ) Page 1 of 62
Counsel for Appellant(s):
Ms. Rishika Harish, Advocate along-with
Ms. Meenaz Kakalia, Advocate
Counsel for Respondent(s):
Mr. Rahul Garg, Advocate for R-1/MoEF&CC
Mr. Maulik Nanavati, Advocate for R-2/Envt. Deptt, R-3/GCZMA,
R-4/GPCB & R-5/PCCF
Shri Vikram Nankani, Senior Advocate along-with
Mr. Kehkasha Sehagal, Advocate and Mr. Shailesh Poria, Advocate
and Ms. Shubhangi Khandelwal, Advocate for R-6/PP
PRESENT:
Hon'ble Mr. Justice Dinesh Kumar Singh (Judicial Member)
Hon'ble Dr. Vijay Kulkarni (Expert Member)
Reserved on : 08.08.2023
Pronounced on : 23.11.2023
JUDGMENT
1. This appeal has been preferred seeking quashing of Environmental Clearance (EC) and CRZ Clearance dated 14.10.2016 granted to respondent No.6-M/s. Adani Petronet (Dahej) Port Pvt Ltd. by the respondent No.1/MoEF&CC; and further, it is prayed that direction be issued to respondent No.6/Project Proponent to remedy the damage caused by its activities.
2. In brief, the facts of this case are that the impugned EC has been granted for "Expansion of Adani Petronet (Dahej) Port Pvt. Ltd. at Bharuch District, Gujarat, where-in the proposal of respondent No.6‟s Company to expand the Dahej Port, in respect of which the respondent No.1/MoEF&CC has issued the impugned EC constitutes Phase-III of the Adani Petronet Dahej Port. This project involves reclamation of an area of 23 hectares for coal stockpiles, back up equipment, coal storage silo at railway siding and other supporting infrastructure as well as the expansion of the cargo handling facility from 11.7 MMTPA (Million Metric Appeal No.74/2016(WZ) Page 2 of 62 Tonnes per Annum) to 23 MMTPA. The important details of Phase-III are as follows:-
"
i). Reclamation of 23 hectares of contiguous lands to the existing back-up area to store and handle multipurpose cargo.
ii). Creation of additional coal stock pile to be developed for storage of 1.1 Million Tonnes of coal.
iii). Widening of existing 15 m wide rubble bund to 60 m wide to handle over dimension cargo.
iv). Existing Ramp being used for port craft and tugs will be strengthened to handle project cargo.
v). Mechanization of south jetty to handle coal cargo.
vi). Rail loading silo and other supporting infrastructure facilities."
3. Further, it is mentioned in this appeal that the Terms of Reference (ToR) for Phase- III were finalized by the respondent No.1/MoEF&CC on 02.12.2013. A draft EIA Report was prepared in November 2014. Public hearing was held on 18.03.2015. Final EIA Report was prepared in March 2015 and thereafter respondent No.3/GCZMA recommended the proposal to the respondent No.1/MoEF&CC on 15.09.2015. The Government of Gujarat/respondent No.2 recommended the project to the respondent No.1 on 14.03.2016. On or about 14.03.2016, the respondent No.6/PP submitted an online proposal to the respondent No.1/MoEF&CC for grant of Environmental and CRZ Clearance, in terms of the provisions of the Environment Impact Assessment Notification- 2006 and the Coastal Regulation Zone (CRZ) Notification- 2011, which was considered by the EAC in its meeting held on 28th & 29th March, 2016 and thereafter on 14.10.2016, the EC as well as the CRZ Clearances both were granted.
4. It is further mentioned in this appeal that the respondent No.6/PP did not disclose correct and complete facts and information in the prescribed Form-1 and in the EIA report and has in fact furnished incorrect and misleading information to the respondent No.1/MoEF&CC and other concerned Authorities. Further, it is submitted that Phase- III of Appeal No.74/2016(WZ) Page 3 of 62 the project involves reclamation of mudflats, which are classified as CRZ- IA under the CRZ Notification- 2011, while the respondent No.6/Project Proponent has stated otherwise in the Form- I and in its EIA Report. The impugned EC has been issued on the basis of incorrect and misleading information provided by the respondent No.6 inter alia that though mudflats were present at the project site in question, reported to be "biologically insensitive". In fact, they are biologically active. The Google Earth image dated 10.01.2004 shows that a substantial part of the project area was at that time a mudflat area. However, part of the proposed project area has already been partially reclaimed, which is evident from the Google Earth image dated 10.01.2004, which is annexed as Annexure A-2.
5. It is further mentioned in this appeal that this project will also cause damage to approximately 60,000 square meters of mangroves that exist abutting the existing 15 meters wide rubble bund in the North, which is proposed to be widened to 60 meters, though the CRZ map in the Appendix 1 to the EIA report does not show mangroves that exist abutting the rock bund in the North. But these mangroves are clearly visible in the Google Earth Image dated 24.04.2016 at Annexure A2. In fact, there is also a huge area of mangroves spreading in the area of approximately 700 meters to the North of the project site admeasuring approximately 75,47,500 square meters and stretching over 14 kilometers, which is apparent from the Map annexed as Annexure- A3 and Annexure A4 which is the Google Earth Image dated 24.04.2016 showing the vast extent of mangroves in the vicinity. Despite these facts being there, the respondent No.6/Project Proponent in its proposal for obtaining an EC and CRZ clearance has submitted to the effect that there were dwarf mangrove patches, which were 600 meters away from the rubble bund on the Appeal No.74/2016(WZ) Page 4 of 62 seaward side and that the coastal areas rich in mangroves are located at Ban Khadi (7 km from the project site), Ghugar Khadi (10.5 km away) and Narmada Estuary (12 km away). The respondent No.6/Project Proponent has deliberately not disclosed the existence of 60,000 square meters of mangroves that abutted the rock bund nor has it disclosed the 14 kms. stretch of dense mangroves, which starts at a distance of approximately 700 meters North of the project, admeasuring approximately 75,47,500 square meters.
6. It is further mentioned in this appeal that in the meeting of GCZMA held on 15.09.2015, the respondent No.6/Project Proponent has incorrectly categorized the area proposed to be reclaimed as CRZ- I B and CRZ- III, whereas in reality, the said area should correctly be classified at CRZ-IA, a copy of Minutes is annexed as Annexure- A5. It is further submitted that even as per the Coastal Zone Management Plan prepared by the respondent No.2/Gujarat Government, this area is classified as CRZ- I, a copy of CZMP is annexed as Annexures A6 and a copy of draft Gujarat State Coastal Zone Management Plan dated 27.09.1996 is annexed as Annexure-A7, which has been sanctioned by the respondent No.1/MoEF&CC. Further, it is submitted that the appellants have superimposed the co-ordinates of the project site on the approved CZMP of the area and further plotted the area proposed to be reclaimed by the respondent No.6 thereon, the same clearly shows the area proposed to be reclaimed as CRZ-1A.
7. It is further mentioned in this appeal that Clause-7 of CRZ Notification- 2011 classifies the CRZ-IA area, which is reproduced herein below:-
Appeal No.74/2016(WZ) Page 5 of 62
"7. Classification of the CRZ -- For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-
(i) CRZ-1,- A. The areas that are ecologically sensitive and the geomorphoiogical features which play a role in the maintaining the integrity of the coast,-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided; (b) Corals and coral reefs and associated biodiversity; (c) Sand Dunes; (d) Mudflats which are biologically active; (e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves; (f) Salt Marshes; (g) Turtle nesting grounds; (h) Horse shoe crabs habitats; (i) Sea grass beds; (j) Nesting grounds of birds; (k) Areas or structures of archaeological importance and heritage sites.
B. The area between Low Tide Line and High Tide Line;"
8. It is further mentioned in this appeal that as per the CRZ Notification- 1991 and also the CRZ Notification- 2011, no new constructions are permitted in CRZ l(i)/CRZ IA areas, which are held to be ecologically sensitive and the geomorphological features, which play a role in maintaining the integrity of the coast, such as mangroves, corals, coral reefs, mudflats, which are biologically active, reserve forests, turtle nesting grounds etc. Storage of coal is not a permissible activity in CRZ- I.
9. It is further mentioned in this appeal that three creeks, which exist in the project area, have already been partially blocked, which is contrary to the condition mentioned in the impugned EC, which says that the Project proponent shall ensure that no creeks or rivers are blocked due to any activities at the project site and that free flow of water would be maintained. It is submitted that the activities of respondent No.6/Project Proponent have already partially blocked the creeks, which is evident from Annexure A2, which could be partially seen.
Appeal No.74/2016(WZ) Page 6 of 62
10. It is further mentioned in this appeal that the project area is an ecologically sensitive area with a high density of mangroves and biologically active mudflats. Looking to the ecological importance and sensitive nature of the Gulf of Khambat, the Government of India in CRZ Notification- 2011 has declared the Gulf of Khambat as a "Critically Vulnerable Coastal Areas (CVCA)". Further, it is mentioned that the high density of mangroves in this area and the marine biodiversity clearly establishes the fact that the mudflats in this area are not biologically inactive/insensitive. The Final EIA report submitted by the respondent No.6/Project Proponent shows that the mudflats/intertidal areas are biologically active because at page no.90 of the said report, it is stated that "The phytoplankton community in study area exhibited moderate diversity and abundance during January 2014. Overall 6 phytoplankton genera were observed from entire study region". Further, the Final EIA report also states that "Earlier studies were conducted by NIO (2008) exhibited that, the region is diverse in zooplankton fauna with groups ranging from 9 to 15 with dominance of copepods". It is also mentioned in the Final EIA Report that "...pagadiya type fishing is operational in intertidal zones..." Further, it is mentioned in the said Report that "Reclamation would impact nearly 23 ha. of benthic habitats. However, density of benthos was observed to be very low in intertidal zone. No recovery of benthic organisms is possible as habitats will be permanently lost due to reclamation". These facts would clearly demonstrate that the area in question harbours good marine biodiversity and that the mudflats/intertidal areas are biologically active as well, and that the marine biodiversity of this area will be reduced due to pollution in the area. Nevertheless, the area still supports good biodiversity. Besides this, Appeal No.74/2016(WZ) Page 7 of 62 dense mangroves also indicate biologically active mudflats/intertidal areas.
11. It is further mentioned in this appeal that earlier respondent No.6/Project Proponent had obtained only a CRZ Clearance from the Ministry of Environment and Forests on 06.07.2007 for the "Development of solid cargo port terminal Phase-I". The MoEF had proceeded on the assumption that the same did not require an Environmental Clearance, which is specifically mentioned in the CRZ clearance itself, annexed as Annexure- A10. The details of Phase- I and Phase-II have been given in para nos.15 & 16 in the memo of this appeal. Therefore, it is made clear that the MoEF had granted a combined Environmental and CRZ Clearance to Phase- II on 11.11.2008, which was done without issuing ToRs and without a Public Hearing, since the entire process was completed in 35 days.
12. It is further mentioned in this appeal that the impugned EC for Phase-III has been accorded giving clearance for additional area of 23 hectares for coal stockpiles, back up equipment, coal storage silo at railway siding and other supporting infrastructure and to expand its cargo handling facility from 11.7 MMTPA to 23 MMTPA. It does not make it clear, as to why this additional land of 23 hectares was required at this stage, since the original Phase- I and Phase- II proposals allowed the respondent No.6/Project Proponent to carry out its activities on 575 hectares plus 38 hectares, totally aggregating to 613 hectares. According to the appellants, respondent No.6/Project Proponent has utilized a total land of 68 hectares in Phase I, II and III of its project, which includes the 23 hectares of land proposed to be reclaimed by the respondent No.6/Project Proponent as per the sanction accorded via impugned EC. It is further mentioned that respondent No.6 is seeking clearances for expansion phase-wise and that Appeal No.74/2016(WZ) Page 8 of 62 the other respondents have been granted the same in piecemeal clearances without considering the total impact of the project upon the total land requirements. Further, it is mentioned that activities such as reclamation, destruction of mangroves and mudflats are specifically prohibited under the CRZ notification 2011, which are being permitted in the impugned EC within CRZ- IA areas.
13. It is further mentioned in this appeal that as per the monitoring report of 2014 uploaded on the website of respondent No.1/MoEF&CC, all conditions, which were earlier imposed, while granting the CRZ Clearances, have not been fully complied with. Therefore, it is apparent that respondent No.1/MoEF&CC has granted the impugned EC without ensuring that all the earlier conditions have been fully complied with. It is submitted that the respondent No.6/Project Proponent was required to carry out mangrove plantation over 200 hectares of land as per the CRZ clearance given for Phase- I and another 200 hectares of land as per the EC and CRZ Clearances given for Phase- II. The information provided regarding mangrove plantation by the respondent No.6/Project Proponent to the appellants in response to appellants‟ query at the Public Hearing, is erroneous based on the coordinates of five locations, where the Respondent‟s Company states that they have carried out mangrove plantation. The appellants have checked the Google Earth imageries at each of these five locations and have found that no plantation was done.
14. It is further mentioned in this appeal that the reclamation would result in a change in geomorphology, which would, in turn, affect the tidal flow and result in change of HTL and LTL and would also impact the fisheries. All these impacts have not been dealt with in the EIA Report. There is also no Cumulative Impact Assessment Study conducted, despite Appeal No.74/2016(WZ) Page 9 of 62 the fact that there are number of industries within the study area of 10 kms., details of which are given in para no.23 of the memo of appeal.
15. It is further mentioned in this appeal that in addition to above industries, another Thermal Power Plant of 3200 MW is proposed to be set up near Village Suva, Vagra Taluka by the respondent No.6/Adani Power Dahej Ltd. Surprisingly, the same has not been mentioned in the EIA Report, though it has received an EC in 2011 and the respondent No.6/Project Proponent had applied for revised ToRs in July 2015. Further, it is mentioned that as per the Director, Industrial Safety and Health of the Government of Gujarat, there are about 92 "Major Accident Hazard Factories" in Bharuch District. Further, it is mentioned that the respondent No.6 has also failed to ensure that a proper Disaster Management Plan is put in place before granting the impugned EC.
16. It is further mentioned in this appeal that the respondent No.1/MoEF&CC and respondent No.2/Government of Gujarat have questioned in regard to the incorrect classification of CRZ-1A Zones, despite the fact that there were mangroves and mudflats in the area in question as it should be CRZ-1B and CRZ-III. It is further mentioned that no study has been conducted to examine the movements of ships/barges on the marine ecology and environment and more particularly on the hilsa and the turtles. The mitigation measures suggested in the EIA report in the Environment Management Plan are also inadequate. The ToRs formulated by the respondent No.1/MoEF&CC are based on the inaccurate and incomplete information provided by the respondent No.6 in Form-I, a copy of which is annexed as Annexure A-14. Clause 1.2 to 1.4 of respondent No.1 as set out in the prescribed format under the heading "Activity" which pertains to details of CRZ classification, the information regarding whether the area is located in CRZ-I area, distance from CRZ- I Appeal No.74/2016(WZ) Page 10 of 62 area etc. has been deliberately omitted. The respondent No.6 has also not disclosed the mudflats, mangroves, creeks, numerous industries in this area. Under Item Nos.1, 2 & 11 pertaining to heading "Environmental sensitivity" the respondent No.6 has not disclosed the fact that mangroves were present at the project site and that the area is already subject to excessive pollution or environmental damage.
17. It is further mentioned in this appeal that the Google Earth Image dated 24.04.2016, annexed as Annexure A2 to this Appeal, reveals that the project site has already been partially reclaimed and was being used to store coal. There are creeks also in the area to be reclaimed, which would alter the HTL-LTL, which would change the shoreline. Further, it is mentioned that in clause 5.6.2.4.2. of the EIA Report, it is stated that sparse Mangroves were observed near intertidal regions of proposed reclaimed area. Northern boundary of study area showed healthy growth of mangroves on the banks of Ban Khadi and Ghugar Khadi (which are found to be about 12 kms. and 7 kms. respectively from the said area in question). Density of mangrove was found to be 40-80 per 100 sq. mtrs. and height was observed to be 1-1.5 m. near creek barks. Tall mangroves were present near open mudflats in seaward direction. However, the particular area was not accessible due to heavy siltation. Dense growth of mangroves were observed to be at least 8 kms. away from the proposed development. Further, it is mentioned that clause 6.4.1.3 of the EIA report deals with the "Impacts on Ecologically Sensitive Areas". It is stated that "Ecologically sensitive areas like corals, sea grass beds, breeding grounds are absent at proposed reclamation site. Hence, no impacts on these ecologically sensitive marine habitats are envisaged due to proposed development. Sparse and dwarf mangroves are present on northern side of existing bund and these are located away from footprint of proposed Appeal No.74/2016(WZ) Page 11 of 62 reclamation area and thus remains un-affected. However, few dwarf plants (12 nos.) falls under footprint of northern corner of land reclamation and impact on these dwarf plants is considered to be insignificant while taking into account overall mangrove cover of study area. Thick and dense mangroves are present in Ban and Ghugar creeks which are located 5 km north of APPPL jetty. Hydrodynamics of these creeks will remain unaltered due to proposed reclamation. Hence, impacts on dense mangroves are not envisaged."
18. Based on above information, it is mentioned that the project in question would involve reclamation of mudflats that are classified as CRZ- IA under the CRZ Notification, 2011. This project will also destroy about 60,000 square meters of mangroves, which abuts towards North side of the existing 15m. wide rubble bund, which is to be widened to 60 mtrs. Further, it is mentioned that due to movement of ships and barges as well as additional transport by road and rail, a detrimental impact would take place in Marine Ecology and water quality but the same has not been considered. It is further submitted that it is not made clear in the EIA Report, as to whether the 10 kilometer study area has been considered from the periphery of the entire 636 hectares of land belonging to the respondent No.6.
19. It is further mentioned in this appeal that the Google Earth images dated 15.04.2013, annexed as Annexure- A 7, would show that there is a huge impact of coal storage being done by the respondent No.6 as the entire intertidal area seems to have been covered with coal dust. As per the complaints made through public hearing and the documents obtained under the Right to Information Act, 2005 by the appellants from the respondent No.4/GPCB, there are found to be serious problems caused due to open storage and transportation of the coal. Pursuant to the Appeal No.74/2016(WZ) Page 12 of 62 various complains received by the respondent No.4/GPCB, an ambient Air Monitoring Analysis exercise and site inspections were carried out by the respondent No.4/GPCB on 10.11.2014 and found that the PM10 values were higher than the National Ambient Air Quality Standards - 2009. Values of PM10 were recorded to be 201 µg/m3 and 226 µg/m3 on the terrace of Chhaganbhai Ahir, Near Adani belt, Village Lakhigam and on the terrace of Anganwadi, Village Lakhigam, respectively. The PM2.5 values at these two locations were 56 µg/m3 and 78 µg/m3 respectively. The National Ambient Air Quality Standards- 2009 state the maximum value 60 µg/m3 for PM2.5 and 100 µg/m3 for PM10. It is clear that the values exceed the permissible limit.
20. It is further mentioned in this appeal that a Show Cause Notice dated 19.09.2014 was issued to respondent No.6/Project Proponent indicating therein the weak house-keeping and noise pollution by the respondent No.6‟s Company and in this regard, earlier direction was issued by the GPCB vide letter dated 11.12.2014 under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981 for non-compliance of consent conditions and the respondent No.6 was directed to carry out a detailed comprehensive study through agencies like NEERI, IIT, NPC, etc. But no such report has been submitted by the respondent No.6. Further, it is mentioned that due to this kind of pollution referred above, various ailments are being suffered by the people in local area such as death from lung cancer, cardiac and respiratory diseases.
21. It is further mentioned in this appeal that Public hearing was conducted on 18.03.2015, where-in the representative of the appellants had submitted the comments and suggestions regarding various issues. One of the major issues raised at the Public hearing by the stakeholders was with respect to coal dust pollution leading to health problems. A Appeal No.74/2016(WZ) Page 13 of 62 perusal of the replies would show lack of willingness on part of the respondent No.6 to implement the suggestions given during the Public Hearing in its right spirit. During public hearing, it was replied by the respondent No.6 that the nearest mangrove patch was 600 meters away from the site in question, which actually was abutting the rubble/rock bund itself and the same was patch of 60,000 sq. mtrs. Besides that a continuous patch of about 14 kilometers is existing in north of the rubble/rock bund, which stretch admeasures about 75,47,500 square meters. The claim of respondent No.6 in the EIA report that the mudflats in this area are biologically insensitive, is completely false and misleading. On the basis of above-mentioned facts, above prayers have been made by the appellants.
22. This matter was first considered by the Tribunal on 16.12.2016 and notices were directed to be issued to the respondents.
23. Service affidavit has been filed, as per which service of notice upon all the respondents is found to be sufficient.
24. From the side of respondent No.6-M/s. Adani Petronet (Dahej) Port Pvt Ltd., reply affidavit dated 11.05.2017 has been filed, in which rebutting the claims made by the appellants, it is submitted that the appellants were residing and carrying out their business approximately 300 kms. away from the port side for which no locus standi is there likely to be affected by the said project. The project in question is of national importance, which is being sought to be obstructed by the appellants for extraneous considerations. The Gujarat Maritime Board identified Dahej for the development of a minor port complex under the Port Policy of 1995. The Petronet LNG Limited is a Concessionaire of Dahej Port and has established LNG Port, the same is operating since long. The answering Appeal No.74/2016(WZ) Page 14 of 62 respondent is a joint venture company and Adani Ports & Special Economic Zones Limited and Petronet LNG Limited are its shareholders. The answering respondent is a Sub-Concessionaire for the development of a port at Dahej, along the Eastern Coast of the Gulf of Khambhat to handle multi cargo. In the year 2005, the answering respondent proposed to set up a multipurpose jetty at the minor port at Dahej to facilitate handling of dry cargo like coal, de-oiled cakes, fertilizers, steel and steel products, iron ore, cement, etc. including backup facilities. The port backup facilities, inter alia, included erection of conveyor belts from the jetty for transportation of coal along-side the GIDC road up-to the railway siding for loading the rakes. The proposal put forth by the answering respondent was accepted by the Gujarat Maritime Board. The details of initial Phase-I of the said project are given in para no.5.1 of this reply and the details of the Phase-II of the said project are also given in para no.5.5 in this reply.
25. We are concerned only with the Phase-III of the said project, which deals with expansion of the project due to growth of cargo at Dahej Port and details of the same are given in para no.5.6 of this reply affidavit. The answering respondent had submitted a proposed Terms of Reference along-with the EIA Form 1, clearly specifying therein the existence of mangroves at a distance of 12 km to the South of the said project and at a distance of 7 kms. to the North of the said Project. In the proposed Terms of Reference, the answering respondent also undertook to conduct a primary ecological survey within a 10 km. marine and terrestrial radius of the project in question and to conduct marine environment studies by collecting marine water samples from 5 identified locations within the port area, a copy of the said application is annexed as Annexure R4. On 02.12.2013, the respondent No.1/MoEF&CC addressed a letter to the Appeal No.74/2016(WZ) Page 15 of 62 answering respondent approving the ToR proposed by the answering respondent with respect to the clearance required for Phase- III of the said project. The answering respondent thereafter engaged M/s. Cholamandalam MS Risk Services Ltd. to conduct the environment impact assessment studies in terms of the approved ToR. The answering respondent also approached the National Centre for Earth Science Studies (NCESS), in terms of the Coastal Regulation Zone Notification, 2011. The said agency submitted a draft EIA report on 05.11.2014. Thereafter, a public hearing was conducted on 18.03.2015, pursuant to which the answering respondent amended the draft EIA Report to include the concerns raised during the public hearing. In July 2014, NCESS provided answering respondent with a map which identified the reclamation area for expansion of the project in question, as falling under CRZ IB and IV. Accordingly on 30.03.2015, the answering respondent submitted an application to the respondent No.3/GCZMA for its recommendation for grant of the CRZ clearance where-with the prescribed Form 1 was also submitted with the CRZ map prepared by NCESS. The CRZ Form 1 submitted by the answering respondent to respondent No.3/GCZMA specified that the reclamation area fell within CRZ-I B and IV.
26. It is further submitted in this reply affidavit by the respondent No.6- M/s. Adani Petronet (Dahej) Port Pvt Ltd. that on 14.03.2016, the respondent No.2/Government of Gujarat forwarded the recommendation of respondent No.1/MoEF&CC for grant of clearance for Phase- III at Dahej Port, which was considered by the Expert Appraisal Committee of the respondent No.1/MoEF&CC in its meetings held during 28th-29th March, 2016 and subsequent thereto, the said clearance was accorded to the answering respondent on 14.10.2016. This process clearly demonstrates that there was no error in procedure. The Phase- I of the said project was Appeal No.74/2016(WZ) Page 16 of 62 to be set up when the CRZ Notification of 1991 was in force, which classified the coastal stretches of seas, rivers, bays, estuaries, creeks and backwaters, which were influenced by the Tidal Action up-to 500 meters from the High Tide Line and the area between the High Tide Line and the Low Tide Line was considered to be Coastal Regulation Zones. In terms of the CRZ Notification of 1991, the Coastal Regulation Zones were divided into 4 main categories viz. CRZ 1(1) (i.e. ecologically sensitive zones such as national parks/ marine parks, reserve forests, sanctuaries, wildlife habitats, mangroves, corals/ coral reefs etc. where industrial activity was largely prohibited) CRZ l(ii) (i.e., the area between the high tide line and the low tide line) CRZ II (i.e. areas developed close to the shoreline), CRZ III (i.e areas that were relatively undisturbed) and CRZ IV (coastal stretches in the Andaman and Nicobar, Lakshadweep and small islands except those categorized as CRZ-I, II & III).
27. It is further submitted in this reply affidavit by the respondent No.6- M/s. Adani Petronet (Dahej) Port Pvt Ltd. that Phase- 1 of the said project was proposed to be set up on the land and in the area between the High Tide Line and the Low Tide Line, which included the construction of a rubble bund, which would extend from the said project into the Gulf of Khambat. The CRZ area within which Phase- I of the said project was to be developed, has been categorized as CRZ- I(ii) and CRZ- III, which is evident from the Coastal Regulation Zone Management Plan prepared by Space Application Centre (SAC) and Gujarat Engineering Research Institute. The said plan further indicates that no part of the area, which pertained to the said project, was ecologically sensitive or categorized as CRZ I(i), in terms of the CRZ Notification of 1991, a copy of the Coastal Zone Management Plan is annexed as Annexure- R6, which indicates that Phase-I of the project fell within CRZ- I (ii) and CRZ III. Thereafter, when Phase II of the Appeal No.74/2016(WZ) Page 17 of 62 said project was to be set up, the same was to be carried out in 38 Ha. of forest land in respect of which permission had been granted. When the answering respondent proposed to set up Phase- III of the said project, the answering respondent required 23 Ha. of additional land, which was contiguous to the Dahej port, which also entailed expanding the rubble bund from 15 m. to 60 m. Accordingly, in terms of the CRZ Notification of 2011, it approached NCESS to prepare a map of the area within which the expansion was to be carried out, which categorized CRZ IA (i.e. areas that are ecologically sensitive including mangroves, corals and coral reefs, sand dunes, national parks, mudflats that are biologically active etc.), CRZ IB (i.e. the area between the High Tide Line and the Low Tide Line, CRZ II (i.e. areas which have been developed upto or close to the shoreline) CRZ III (i.e. areas that are relatively undisturbed and do not fall within CRZ I or II) CRZ IV A (the water area from the low tide line to twelve nautical miles on the seaward side), CRZ IV B i.e. the water area of the tidal influenced water body from the mouth of the water body at sea up to the influence of tide, which is measured at five parts per thousand during the driest season of the year etc.
28. It is further submitted in this reply affidavit by the respondent No.6- M/s. Adani Petronet (Dahej) Port Pvt Ltd. that the map prepared by NCESS categorized the area pertaining to Phase- III of the Dahej port as CRZ IB and IV. When M/s Cholamandalam Risk Services MS conducted a study of the area, it was discovered that the intertidal mudflats in the proposed reclamation area did not have any sensitive habitation, such as dense mangroves, corals, nesting/ breeding grounds or any mudflat habitations such as hermit crabs, mudskipper and other mulloscans due to the turbid conditions of sand silt formation of sediment texture in the mudflat region. The mudflats were, therefore, considered as biologically insensitive. A Appeal No.74/2016(WZ) Page 18 of 62 Google Earth Image of 15.04.2013 and of December 2014 would clearly indicate that there were no mangroves in the area proposed for reclamation except 12 dwarf mangroves, which fall under the footprint of northern corner of land reclamation and the impact on these dwarf plants is considered and disclosed in the EIA document. All these shows that the answering respondent did not furnish any wrong information to the respondent No.1/MoEF&CC but also proves that the mangroves, which abut the rubble bund, grew subsequently. The copies of Google Earth Image dated 15.04.2013 and of December 2014 are annexed as Annexure R7colly.
29. It is further submitted in this reply affidavit by the respondent No.6- M/s. Adani Petronet (Dahej) Port Pvt Ltd. that mudflats are predominantly clayey and salty substrates with high organic content. Generally, mudflats play ecological and physical functions like dissipating wave energy, reducing the risk of erosion of salt marshes and providing a habitat for aquatic birds. Some mudflats are biologically productive which, together with other intertidal habitats, are of importance to large numbers of water birds and fishes. But the mudflats, which are not fulfilling the above activities, particularly, water birds foraging and congregation are considered to be inactive or insensitive.
30. It is further submitted in this reply affidavit by the respondent No.6- M/s. Adani Petronet (Dahej) Port Pvt Ltd. that the appellants' case is based entirely on the Google Earth Image dated 24.04.2016, where-as the EAC meeting was held on 28th and 29th March, 2016. No objection was raised by the appellants nor have they disclosed as to when and how they came to know about the patch of mangroves through Google Earth Image dated 24.04.2016 nor have they alleged EIA report to be false. It is further submitted that the relief claimed in the present appeal relates to Phase-III Appeal No.74/2016(WZ) Page 19 of 62 of the project but the appellants have mentioned unwarranted, unjustified allegations with respect to Phase-I & II as well, which were covered by two separate Environmental Clearances dated 06.07.2007 and 11.11.2008.
31. From the side of respondent No.4/GPCB, reply affidavit dated 09.05.2017 has been filed, stating therein that public hearing in the present matter had taken place on 18.03.2015. Besides that answering respondent is regularly inspecting the premises and is immediately reporting about the non-compliances, if any. Since the respondent No.6/Project Proponent has been complying with the directions issued by the answering respondent from time to time, no coercive steps were required to be taken against it.
32. Rejoinder affidavit dated 20.06.2017 has been filed against the reply affidavit of respondent No.6/Project Proponent dated 11.05.2017, where-in it is submitted that the person aggrieved may be a person, who has no direct or personal interest in invoking the provisions of National Green Tribunal Act, 2010, as has been held by this Tribunal in M.A. No.49/2023 in Original Application No.26/2012 (Goa Foundation and Peaceful Society vs. Union of India & Ors.). Therefore, the appellants are fully competent to file the present appeal before the Tribunal.
33. It is further submitted in this rejoinder affidavit by the appellants that Respondent No.6 is only a Sub-Concessionaire for the development of the port at Dahej hence is not entitled to apply for clearances under the EIA Notification, 2006 and under the CRZ Notification, 2011. Therefore, it is clear that respondent No.1 has erred in entertaining their applications for EC and CRZ clearances. Several pleadings are made with respect to earlier Phases i.e. Phase- I & II, which we are not concerned with in the present appeal. According to the appellants, Form No.1 of EIA does not Appeal No.74/2016(WZ) Page 20 of 62 even refer to the dwarf plants (12 nos.) and that a number of concerns raised at the public hearing have not been dealt with in the final EIA Report. It is also denied that the reclamation area falls within CRZ-1B(IV) as the same falls in CRZ-1A area. Further, it is submitted that the map, which has been attached, is titled „Coastal Landuse Map‟, which is not approved by the Coastal Zone Management Authority, hence the same cannot be considered to be the final nor the same can be treated to be approved Coastal Zone Management Plan. Respondent No.6 has failed to mark their project area on the said map and therefore, on the basis of that, they cannot be allowed to claim that no part of the area, which pertained to the said port in question (in Phase I), was in ecologically sensitive CRZ-1(i) area. Moreover, the Coastal Landuse Map indicates the presence of mudflats and forests at the site of the said Port.
34. It is further submitted in this rejoinder affidavit by the appellants that the entire reply of respondent No.6 in respect of the presence of mangroves and the biological activity of mudflats depends upon the CRZ study and map prepared by the NCESS and Google Earth images taken on dated 15.04.2013 and December 2014. In fact, imagery for December 2014, as sought to be relied upon by respondent No.6, is not available and does not exist. Images reveal the presence of a large number of mangroves occupying an area of approximately 10,000 m2 adjacent to the project site, which is annexed as Annexure A2. Further, it is submitted that the presence of mangroves itself would indicate that the mudflats are biologically sensitive. It is also pertinent to note that the conditions of the GCZMA, Government of Gujarat specifically note the presence of existing mangrove patches near the site of the said project, which establishes that these mudflats are biologically active.
Appeal No.74/2016(WZ) Page 21 of 62
35. It is further submitted in this rejoinder affidavit by the appellants that the CRZ Notification- 2011 does not distinguish between 'sparse' and 'dense' mangroves. Thus, the reference to 'biologically insensitive' mudflats in Form-1 to both the CRZ and EC clearances, 'sparse' mangroves, and to 12 dwarf mangroves in the EIA Report and the absence of any mention of the mangroves abutting the rock/rubble bund, including even a mention of the 12 dwarf mangroves, in Form-1 to both the CRZ and EC clearances, is a deliberate attempt on part of the respondent No.6 to mislead the respondent No.1/MoEF&CC. Above circumstances unequivocally show that a large number of mangroves could be found abutting the rock/rubble bund even at the time of preparation of CRZ map and EIA study and that the mudflats could not be considered to be 'biologically inactive'. Further, it is submitted that the challenge is made to the EC for Phase-III of the said port, which has been granted based on the EIA Report, hence it would be self-evident that the appeal would be treated to have challenged the EIA report as well in the present appeal.
36. It is further submitted in this rejoinder affidavit by the appellants that the existence of mangroves and the mudflats would automatically mean that the site in question should be classified as CRZ 1(A). The Minutes of meeting of GCZMA reflect the existence of mangroves and also recommend that no activities be carried out, that would adversely impact the mangroves, itself indicates non-application of mind on part of the GCZMA in accepting the incorrect classification prepared by NCESS. Further, it is submitted that the scale of the map attached by the respondent No.6, annexed as Annexure R10, is not good enough to establish that there were no creeks in the area of project in question. Further, it is submitted that no-where has it been stated by the respondent No.6 that only 98.54 hectares was allotted to respondent Appeal No.74/2016(WZ) Page 22 of 62 No.6/Project Proponent. The EC (Phase I) dated 06.07.2007 clearly shows that 575 hectares of land was allotted to the respondent No.6. Therefore, 98.54 hectares as the existing capacity/area in Form-1 is yet another attempt to mislead the respondent No.1/MoEF&CC while applying for grant of the impugned clearance. It is also not made clear as to why this additional 23 hectares of land was required at this stage, when the respondent No.6 had already 613 hectares of land at its disposal.
37. It is further submitted in this rejoinder affidavit by the appellants that the respondent No.6 has not provided correct coordinates regarding the sites of mangrove plantation. Therefore, the respondent No.6 cannot assert that the appellants have proceeded with the present appeal based on alleged inaccurate and incomplete information. Further, it is mentioned that a perusal of the reports annexed as Annexures R12 to R15 would show that dense mangroves already existed at some sites where re- plantation is alleged to have taken place and that the mangrove re- plantation is not seen at all at other sites. Respondent No.1/MoEF&CC has failed to consider the cumulative impact of large number of industries already existing within the study area of 10 kms. of Respondent No. 6. It is further submitted that the GCZMA, Government of Gujarat as well as the EAC specifically noted the presence of mudflats and mangroves and yet have not found it fit to question the classification of the site as CRZ- 1(B) and CRZ- III by the respondent No.6. The recommendations made by the GCZMA and State of Gujarat include that the construction and operational activities, should be carried out in such a way that no negative impact would be there on mangroves, if any, and other important coastal/marine habitats and activities would be carried out only under the guidance/supervision of the reputed institute/organization. Besides that, there are several other conditions also, which were imposed. Appeal No.74/2016(WZ) Page 23 of 62
38. Apart from above, the other averments made in the affidavit of respondent No.6 have also been rebutted by the appellants in this rejoinder affidavit.
39. From the side of respondent No.1/MoEF&CC, reply affidavit dated 30.06.2017 has been filed, where-in it is submitted that the answering respondent has granted EC in question in accordance with the prevailing laws under item no.7(e) in Schedule of the EIA Notification- 2006, subject to certain conditions, which are enumerated in para no.9 of this affidavit from sub-clause (a) to (e). It is also reiterated in this affidavit that the proposal of the project was run in accordance with the procedure.
40. Additional Sur-Rejoinder of respondent No.6 dated 12.09.2017 has been filed to the affidavit-in-rejoinder dated 20.06.2017 filed by the appellants, where-in it is submitted that the appellants have raised this allegation for the first time in the said rejoinder against the answering respondent for being a Sub-Concessionaires for the Dahej Port, hence they were eligible to apply for the EC and CRZ Clearances. The said allegation is absolutely false because the answering respondent is a joint venture company, which was established for the purpose of development of the said port and its primary functions are the development and the operations of the said port. The answering respondent is the project proponent and hence it required to obtain EC in accordance with law. The development of Infrastructure Projects in India is undertaken by the respective Concessionaires, assisted by Sub-Concessionaires in many cases and this concept is well understood and recognized by all the concerned authorities operating in the field. Therefore, raising this allegation shows poor knowledge on the part of appellants. Appeal No.74/2016(WZ) Page 24 of 62
41. It is further submitted in this Additional Sur-Rejoinder of respondent No.6 that with respect to 2nd allegation of concealment of certain facts, the issue of their being mangroves in existence in the area where the project is to be expanded, has been dealt with the facts mentioned by the answering respondent in its earlier affidavit. But additionally, it is submitted that with respect to the issue of mangroves abutting the rubble bund, it is submitted that rubble bund was constructed during Phase- 1 of the development of the said port and at that time, there were no mangroves existing in the adjoining area. The position was more or less the same at the time when the answering respondent applied for the EC and the CRZ clearances for Phase-III of the said project with the exception of presence of only 12 dwarf mangroves, which was duly considered by the authorities in the EIA Report. Hence, there is no merit in the allegation of its concealment. As regards the respondent No.6 having been allotted 575 hectares of land for the Phase-I project, it is submitted that the said information is wrong as the answering respondent had been allotted only 98.54 hectares of land for Phase-I. In rest part of this additional Sur-Rejoinder affidavit, nothing is stated except the denial of the contentions of the appellants and the reiteration of their own earlier information.
42. From the side of respondent No.3/GCZMA, reply affidavit dated 13.09.2017 has been filed, where-in it is submitted that as per the allegations of the appellants, Phase- I & II of the project of respondent No.6 are to be carried out in CRZ-1A area, due to there being in existence ecologically sensitive mudflats and mangroves. However, it is mentioned that the area where the Phase-III, which is the expansion of earlier phases of the project of respondent No.6, is to be located in CRZ-1A area, hence the same needs to be quashed and set aside because such activities are Appeal No.74/2016(WZ) Page 25 of 62 not permissible in the said area. In this regard, the contention of the answering respondent is that the respondent No.6 had approached the answering respondent on 30.03.2015, by submitting Form 1 and various documents as prescribed under the Coastal Zone Management Regulation, 2011 and inter-alia submitted a map, prepared by the National Center for Earth Science Studies (NCESS), which identified the Phase- III of the project to fall in CRZ 1B and IV areas. A copy of the said application of Form 1 is annexed as Annexure R-I Colly.
43. It is further submitted in this affidavit by the respondent No.3/GCZMA that the NCESS is an agency approved by Central Government for the purpose of mapping and the maps prepared by this agency are accepted and relied on by the Central Government because of the fact that the answering respondent has also identified the said area to be CRZ 1B and IV Category. Further, it is submitted that the project in question was evaluated by the answering respondent on 04.04.2015, where-after certain aspects were required to be verified on site and therefore, the technical committee of answering respondent visited the project site on 15.09.2015. Thereafter, the said project was again evaluated in the meeting of the answering respondent held on 15.09.2015 and after careful consideration, it was found that the expansion area fell within the category CRZ 1B and CRZ III and therefore, the same was recommended for clearance on 14.03.2016, subject to certain conditions which are mentioned therein.
44. It is further submitted in this affidavit by the respondent No.3/GCZMA that no corals or coral reefs and associated biodiversity were found in the project area; no sand dunes existed in the said area; the mud flats were biologically inactive; and there were no national parks, marine parks, sanctuaries, reserve forest or other protected areas under the Appeal No.74/2016(WZ) Page 26 of 62 provisions of Wild Life (Protection) Act, 1972, Forest (Conservation) Act, 1980 or Environment (Protection) Act, 1983 or any other categories specified the said Notification of 2011. Therefore, it was found that the project area was correctly categorized as CRZ 1B and CRZ- III. As per the EIA prepared by M/S. Cholamandalam MS Risk Service Limited, existence of twelve dwarf mangroves was found to be there in the entire area. Therefore, the answering respondent imposed the condition of plantation of mangroves in an area admeasuring 50 hectares, to be planted in the next two years and report thereof was to be submitted to the answering respondent periodically. The condition was also imposed on respondent No.6 to ensure that none of the creeks, if existing, should be blocked by the respondent No.6/Project Proponent.
45. We have heard the arguments learned counsel for the parties and perused the documents on record.
46. In view of above, we are framing following issues to be decided for just disposal of this case.
(i). Whether the respondent No.6/Project Proponent made concealment of information, which was required to be furnished in Form 1 specifically with respect to there being mangroves and mud flats in the area in question?
(ii). Whether the project in question lies in CRZ-1A and accordingly, whether EC and CRZ Clearances could have been given in that area?
(iii). Whether there is found to be any air pollution on account of storage and handling of coal in the area in question?
(iv). Relief, if any.
Appeal No.74/2016(WZ) Page 27 of 62
47. Before giving our findings issue-wise, we would like to deal with the arguments, which have been made by the respective parties.
48. The learned counsel for appellants has drawn our attention to page no.269 of the paper book, where-at Form No.I is annexed, which was filled up by the respondent No.6 and our attention is drawn therein to serial no.17, which deals with Item "Interlinked Projects" and in front of that, in the next column, it is recorded "Not Applicable". It was argued by the learned counsel for appellants that this information is false because it was incumbent upon the Project Proponent to furnish the information pertaining to the fact that this was Phase-III of the project, while the other two phases should have been mentioned in this column. This non- furnishing of information would amount to concealment of the facts.
49. Thereafter, the learned counsel for appellants has drawn our attention to page no.273 of the paper book, where-in at serial no.1.2 in column no.2, information was required to be furnished relating to clearance of existing land, vegetation and building, regarding which in Column-3 „No‟ is mentioned and in Column- 4, it is recorded that „area proposed for reclamation is devoid of vegetation or civil structures‟, which is a clear concealment of facts because in that area, there were mudflats and mangroves. With respect to above concealment, our attention is drawn to para no.6.4 of the affidavit of respondent No.6 where there is an admission on the part of respondent No.6 that there existed 12 dwarf mangroves.
50. Thereafter, the learned counsel for appellants has drawn our attention to the Judgment of Hon‟ble Bombay High Court in PIL No.87/2006 (Bombay Environmental Action Group & Anr. vs. The State of Maharashtra & Ors.) and other connected Writ Petitions delivered on Appeal No.74/2016(WZ) Page 28 of 62 17.09.2018, where-in, in para no.42, it is recorded "Under the 2011 notification, all mangrove area fall in CRZ-I irrespective of its area and in case the said area is 1000 sq. mtrs. or more, even a buffer zone of 50 mtrs. along the side area shall be a part of CRZ-I. Thus, the buffer zone of 50 meters abutting mangroves having an area of 1000 sq. mtrs. or more was also included in CRZ-I from 27th September, 1996". Thereafter, our attention is drawn to para no.85 of the said Judgment, where-in, in Clause nos.(III) & (IV), following is recorded:-
"III. Regardless of ownership of the land having mangroves and the area of the land, all constructions taking place within 50 metres on all sides of all mangroves areas shall be forthwith stopped. The area of 50 meters shall be kept free of construction except construction of a compound wall/fencing for its protection;
IV. No development permission whatsoever shall be issued by any authority in the State of Maharashtra in respect of any area under mangroves. All authorities including the Planning Authorities shall note that all mangroves lands irrespective of its area will fall in CRZ-I as per both the CRZ notifications of 1991 and 2011. In case of all mangrove areas of 1000 sq. meter or more, a buffer zone of 50 meters along the mangroves will also be a part of CRZ-I area. Though buffer zone of 50 meters in case of mangroves area of less than 1000 meters will not be a part of CRZ-I, it will be subject to above restrictions specified in clause III above;"
51. Based on above position of law, it has been argued by the learned counsel for appellants that there is an admission on the part of respondent No.6 that there were 12 dwarf mangroves in the area where the project for expansion has been granted EC, therefore, the same should be treated to fall in CRZ- IA, where-in there is strict prohibition of any kind of construction to be raised as per the direction of Hon‟ble Bombay High Court cited above. In view of above, the impugned EC, which has been granted, needs to be set aside because under that EC, permission has been granted to expand the width of bund, which would amount to nothing but a kind of construction.
52. Thereafter, the learned counsel for appellants has also drawn our attention to Annexures 2 & 3 of the memo of appeal, annexed at page Appeal No.74/2016(WZ) Page 29 of 62 nos.46-47 of the paper book, which are maps respectively. Annexure -2 is a Google Earth Image dated 24.04.2016 and Annexure- 3 is a CRZ Map prepared by the National Centre for Earth Science Studies (NCESS), Thiruvananthapuram. In Annexure -2, mangroves, which are shown by the Green colour, are spread in an area of 60,000 sq. mtrs., and according to the appellants, this is said to have not been considered by the EIA in its report. As regards the mangroves in Annexure -A3, we find that in that map, mangroves are shown by dotted green colour, which is shown in the map quite far away from the rubble bund, therefore, how the appellant is saying that the same should have been considered by the EIA in its report, appears to be non-comprehendible. Because from the Map annexed at Annexure A2, it appears that there are some other Companies/Projects located side by side and that the area where the mangroves with dotted green mark is shown, appears to be falling in the area, which is covered by Gujarat Chemical Port Ltd. Further, it is argued by the learned counsel for appellants that by these photographs, it is also clear that in the area in question, there are mudflats, existence of which would require the said area to be covered under CRZ- IA. It is also argued that since these mudflats are existing there, they cannot be said to be biologically inactive because of the presence of mangroves. These mudflats ought to have been considered to be active mudflats. It is vehemently argued that a proper study has not been shown to have been done in the EIA report regarding these facts.
53. Thereafter, the learned counsel for appellants has also drawn our attention to the Office Memorandum (OM) dated 24.12.2010, which deals with consideration of integrated and inter-linked projects, particularly, with respect to the fact that, as to how the environmental clearance under EIA Notification 2006 would be considered in respect of the integrated and Appeal No.74/2016(WZ) Page 30 of 62 interlinked projects having multi-sectoral components. Having drawn our attention to it, it is argued that in the present case, Phase-III of the project in question was falling in the Category of interlinked projects and that the information with regard to earlier projects i.e. Phase-I & Phase-II were required to be disclosed, while obtaining the EC for the Phase-III of the project, the appraisal of Phase-III should have been made in consonance with the procedure laid down under OM dated 24.12.2010.
54. We have doubts with respect to applicability of this OM in the case in hand because interlinked projects appear to be those where one project appears to be dependent upon the other project such as limestone mining and cement plant. If a cement plant is to be set up then that would require lime stone mining; thermal power plant would also require coal mining; distillery will require sugar factory etc. In the case in hand, we find that it is only an expansion of the earlier phases, therefore, it should not fall in our assessment in the category of interlinked projects and hence on that count, we do not find any concealment to be there in Form -I.
55. Thereafter, the learned counsel for appellants has also drawn our attention to the Final Environmental Impact Assessment (EIA) Report for Phase-III Expansion of Adani Petronet (Dahej) Port Pvt. Ltd. from 11.7 MMTPA to 23 MMTPA Multi-Cargo Port dated March 2015, in which our attention is drawn to page no.19 of the same, where-in it is recorded that the study area also included the area, which consisted of mudflats. It is also recorded simultaneously in this report that as the port expansion is proposed towards seaward direction, no land acquisition is proposed hence resettlement and rehabilitation are not envisaged. Similarly, no Ecologically Sensitive Zones and Geo-morphological features as mentioned in CRZ Notification 2011 for CRZ-I area were found present at the proposed expansion area. We do not find any contradiction in the above Appeal No.74/2016(WZ) Page 31 of 62 observation in the EIA Report because as per this report referred above, mudflat was found there and accordingly, the said area is found to be in CRZ-I also.
56. Thereafter, our attention is also drawn to internal page nos.64-65 of the above-mentioned EIA report, where-in our attention is drawn to the fact that there is mention that within 0 to 10 kms. of the project, the study area, 56.35% area is covered with water bodies, 8.83% consists of rivers and creeks. Out of the 18.87% of wetland, 14.58% of area is covered by mudflat, 2.44% of the area by dense mangroves and remaining 1.84% of the area is sparse or dwarf mangroves. At internal page no.65 of the same report at serial no.4 of the table relating to wetland, in column 2, the area of mudflat/tidal flat, Dense Mangrove and Sparse/Dwarf Mangrove are also indicated. Based on this, it is argued that the EIA study report did contain existence of mangroves and mudflats in the study area within 0 to 10 kms. and yet MoEF&CC have permitted the expansion of rubble bund in that area, which is illegal.
57. Thereafter, our attention is drawn to internal page no.110 of the above-mentioned EIA report, in which it is recorded that Sparse Mangroves were observed near intertidal regions of proposed reclaimed area. Northern boundary of study area showed healthy growth of mangroves on the banks of Ban Khadi and Ghugar Khadi. Mangrove community was dominated by Avicennia marina. Desnity of mangrove was observed to be 40-80 per 100 m2 and height was observed to be 1-1.5 m near creek banks. Tall mangroves were present near open mudflats in seaward direction. However, the particular area was not accessible due to heavy siltation. Dense growth of mangroves was observed to be at 8 kms. away from proposed development. The details of the said mangroves are also annexed at page no.111 of the said report. Based on this, it is argued Appeal No.74/2016(WZ) Page 32 of 62 by the learned counsel for appellants that the EIA study did contain the fact that the area was having large number of mangroves.
58. Thereafter, our attention is drawn to internal page no.146 of the above-mentioned EIA report, in which para no.6.4.2.1 deals with impact on marine water quality and sediment quality during operational phase and it is recorded therein that as no liquid handling is envisaged in proposed expansion, impacts on marine ecology due to accidental spillage of chemicals are remote possibility The said opinion is being assailed by the appellants.
59. Thereafter, the learned counsel for appellants has also drawn our attention to page no.50 of the paper book of the main appeal, which is the Minutes of the 27th Meeting of the Goa Coastal Zone Management Authority(GCZMA) dated 15.09.2015, in which para no.27.4 deals with the CRZ Clearance for proposed Phase-III expansion of the project in question and in this, our attention is drawn to page no.56, where-in it is recorded that "........Ecologically Sensitive Areas like corals, sea grass beds, breeding ground are absent at proposed reclamation site, hence no impacts are envisaged". It is also recorded that the representative of respondent No.6 submitted that the construction activities will be within the intertidal region, hence no major impact on water quality is envisaged.
60. Thereafter, the learned counsel for appellants has also drawn our attention to page no.79 of the paper book of the main appeal in which the CRZ Clearance has been given. Having drawn our attention to this document, it is stated by the learned counsel for appellants that these authorities have not gone for appraisal of the problem of mudflats, which is evident from their approach.
Appeal No.74/2016(WZ) Page 33 of 62
61. Thereafter, the learned counsel for appellants has also drawn our attention to page no.93 of the paper book of the main appeal, which is recommendation made by the Expert Appraisal Committee (EAC) and at page no.95 of the same, it is recorded "the proposal includes other cargoes like Steel, Gypsum, Silica sand etc. It is reported that no national park, marine parks, sanctuaries, reserve forests, wildlife habitats, biosphere reserves are located at the project site. Mudflats are present at project site, however they are biologically insensitive. ......Additionally, the PP informed the Committee that ambient air quality monitoring was carried out at 6 locations during December, 2013 - February, 2014 and submitted baseline data......"
62. Having shown above parts of the Minutes, it is argued by the learned counsel for appellants that enough measures were not taken for air pollution and that mudflats were also present, has been specifically recorded there.
63. Thereafter, the learned counsel for appellants has also drawn our attention to page no.38 of the paper book of the main appeal, in which the Environmental Clearance (EC) and the CRZ Clearances dated 14.10.2016 are found and at page 41 of which is contained condition no.(vii) that all the conditions stipulated in the earlier Clearance including the recommendations of Environmental Management Plan and Disaster Management Plant shall be strictly complied with. It was also that, this was not ensured that the conditions stipulated in the earlier clearances were met or satisfied and yet the EC and the CRZ Clearance has been given for the expansion of the project.
64. Thereafter, the learned counsel for appellants has also drawn our attention to page nos.10 & 11 of the paper book, which is a part of the Appeal No.74/2016(WZ) Page 34 of 62 main appeal, in which the report titled "Ecological Profile of Coastal Talukas Around Gulf of Khambhat" prepared by the Gujarat Ecology Commission in 2011 has been dealt with, where-in it is mentioned "A total of 19 sample plots were surveyed in coastal mudflat areas" and in para no.13 of this appeal memo, it is recorded "mudflats were not biologically inactive/insensitive in this study".
65. Thereafter, the learned counsel for appellants has also drawn our attention to page no.127 of the paper book, which is Annexure- A17, which pertains to Google Earth Image dated 15.04.2013, it shows therein that there is storage of the coal and it is argued that from this storage, emanates huge pollution in the local areas leading to various kind of ailments. No mitigation measures for meeting this malady have been considered while granting EC.
66. Thereafter, the learned counsel for appellants has also pointed out para no.4 of the affidavit of respondent No.4/GPCB, where-in it is recorded that notices were issued by the GPCB to the respondent No.6/Project Proponent in regard to this pollution.
67. Thereafter, the learned counsel for appellants has relied upon the Judgment passed by the Hon‟ble Supreme Court in the matter of Hanuman Laxman Aroskar vs. Union of India (Civil Appeal No.12251 of 2018 along-with other Civil Appeal), where-in reliance is placed on following paragraphs:-
"67. We cannot gloss over the patent and abject failure of the State of Goa as the project proponent in failing to disclose wet lands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometres as required by Form 1. The disclosure in Form 1 constitutes the very foundation of the process which is initiated on the basis of the information supplied by the project proponent. Following the disclosure in Form 1, ToR are formulated, and this leads to the preparation of the EIA report. A duty is cast upon the project proponent to make a full, complete and candid disclosure of all Appeal No.74/2016(WZ) Page 35 of 62 aspects bearing upon the environment in the area of study. The project proponent cannot profess an ignorance about the environment in the study area. The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1.
68. There can be no manner of doubt that Form 1 is an important ingredient in the entire process envisaged under the 2006 notification. Hence, clause (vi) of para 8 of the 2006 notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead to the cancellation of a prior EC granted on that basis. The declaration which is required of the project proponent is to a similar effect.
75. Though the EIA report adverts to the presence of forests within the study area in Goa and Maharashtra, we have to consider whether this by itself warrants the grant of an EC in-spite of the fact that there has been a patent failure on part of the project proponent to make a transparent and candid disclosure of material facts in Form 1. Information furnished in Form 1 is crucial to the preparation of the ToR by the EAC. The EAC comprises of experts. It is constituted, among other reasons, for the specific purpose of assessing the information furnished in Form 1 and preparing comprehensive ToR. There is an intrinsic link between the disclosures in Form 1 which constitute the basis for formulating the ToR and between the ambit of the EIA report required by the ToR and the final EIA report. The ToR guide the preparation of the EIA report. A failure to disclose information in Form 1 impairs the functioning of the EAC in the preparation of the ToR and in consequence, leads to preparation of a deficient EIA report.
76. The submission that the EIA report deals with the prevalence of forested areas and warrants the grant of an EC cannot be accepted for yet another reason. EACs and SEACs are conferred with the authority to reject applications for the grant of an EC at the stage of scoping itself, prior to the preparation of the ToR. The application may be rejected on the basis of the information furnished by the project proponent in Form 1. Claiming an EC as a matter of right merely because the EIA report has assessed parameters that were omitted in Form 1, bypasses the authority of the EAC and SEAC to reject an application at the preliminary stage and cannot be countenanced. The regulatory authority is required to assess the final documents submitted to it "strictly with reference to the ToR" and communicate to the EAC and SEAC any discrepancies between the EIA report and the ToR. A deficient ToR on the basis of the non-disclosure of material information in Form 1 impedes this process."
68. Having relied upon the said Judgment, it is urged by the learned counsel for appellants that since in the present case, there are information not furnished with respect to mudflats and mangroves by the respondent No.6, an appropriate ToR cannot be said to have been drawn and consequently, appropriate EIA report would also not treated to have been Appeal No.74/2016(WZ) Page 36 of 62 submitted in this. Entire process should be treated to have been adversely impacted, hence on that count, EC deserves to be set aside.
69. Thereafter, reliance is placed by the learned counsel for appellants upon the Judgment of Hon‟ble Supreme Court in the matter of Utkarsh Mandal v. Union of India [(2009) SCC OnLine Del 3836], in following paras:-
"36. The next issue concerns the failure on the part of the EAC (Mines) to deal with the objections raised at the public hearing and the effect of such failure on the grant of environmental clearance. In the first place it needs to be noted that the MoEF has constituted the EAC (Mines) as a twelve member body for evaluating the Project proposal as well as the EIA Report and advise the government on whether environmental clearance should be granted. It is in essence a delegate of the MoEF performing an "outsourced" task of evaluation. The decision of the EAC may not necessarily be binding on the MoEF but is certainly an input into the decision making process. Considering that it constitutes the view of the expert body, its advice would be a valuable input. In terms of the procedure evolved by the MoEF to deal with applications for EIA clearance, the objections at the public hearing and the response thereto of the project proponent are placed before the EAC (Mines) for evaluation and for taking a decision which will constitute the advice to the MoEF on such project proposal. The EAC is therefore performing a public law function and is expected to adhere to those very standards which law requires the MoEF to adhere to.
37. The requirement of an administrative decision making body to give reasons has been viewed as an essential concomitant of acting fairly. Given that such a decision is in any event amenable to judicial review, the failure to make known the reasons for the decision makes it difficult for the judicial body entrusted with the power of reviewing such decision as to its reasonableness and fairness. The decision must reflect the consideration of the materials available before the decision maker and the opinion formed on such material."
70. Reliance is placed on above ruling only to emphasize that in the case in hand also, the issues raised in public hearing have not been properly addressed by the EAC. We do not understand, as to why this para has been referred to as it does not appear to be of any relevance in the matter in hand.
71. Thereafter, reliance is placed by the learned counsel for appellants upon the Judgment passed by the National Green Tribunal, Principal Bench, New Delhi in the matter of The Sarpanch & Ors. vs. The Ministry of Appeal No.74/2016(WZ) Page 37 of 62 Environment and Forest through its Principal Secretary (Appeal No.03 of 2011) delivered on 12.09.2011 in para no.18, where-of it is held that a combined reading of the preamble as well as Section 20 of the National Green Tribunal Act, 2010 would reveal that this Tribunal has got vast jurisdiction to decide the environmental dispute including conservation of all the natural resources, in a given case, if it is brought before this Tribunal.
72. Thereafter, the learned counsel for appellants has drawn our attention to page nos.59 and 64 of the paper book, where-at a Map is annexed, which is said to have been prepared under CRZ Notification 1991, which according to the appellants shows that the area in question is showing the area to be in CRZ-I.
73. Thereafter, the learned counsel Mr. Maulik Nanavati representing respondent No.3/GCZMA has urged that the Judgment delivered by the Hon‟ble High Court of Bombay in PIL No.87/2006 connected with other Writ Petitions, decided on 17.09.2018, shall be read prospectively and that the same would not be applicable to the State of Gujarat. The decisions taken by the GCZMA were taken prior to the Judgment of Hon‟ble High Court. Further, he has submitted that the Project Proponent has submitted a Map of the year 2004 (annexed as Annexure A-1 to the appeal) and that the State Government had prepared a CZMP Map in the year 2017, a copy of the same is not found on record. Thereafter, he has argued that the decision in the present matter regarding recommending the CRZ Clearance is taken in the year 2016. Therefore, it is apparent that the Maps, which have been relied upon by the Project Proponent, in them discrepancy lies. It is also highlighted by him that the State Government‟s Map has been prepared by the Authorized Agency and that the Map prepared by the State Government through NCSCM, extract of which has Appeal No.74/2016(WZ) Page 38 of 62 been filed by the appellants (handed over during the argument) shows the area in question to be CRZ-1A.
74. Thereafter, the learned counsel for respondent No.3/GCZMA has also drawn our attention to para no.3 of the CRZ Notification- 2011, where-in, in para no.3 Sub-Clause (i), it is recorded "Setting up of new industries and expansion of existing industries except, - (a) those directly related to waterfront or directly needing foreshore facilities (Explanation:
The expression "foreshore facilities" means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.)......". Based on above provision, it is argued by him that Port in question is a permissible activity in CRZ area as per above para no.3 of the CRZ Notification. Thereafter, he drew our attention to para no.4 of the CRZ Notification, 2011, where-in following is mentioned:-
"4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,-
(i)(a) --------------------------------------------------------------------------------------------------
(b) for those projects which are listed under this notification and also attract EIA notification, 2006, for such (S.O.1533 (E), dated the 14th September, 2006), for such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State or Union territory Coastal Zone Management Authority (hereinafter referred to as the CZMA)..............."
75. Based on above provision, it is urged by the learned counsel for respondent No.3/GCZMA that in the EIA Notification in Schedule 1 Clause 7 (e) deals with Ports, harbours, breakwaters, dredging and it is mandated that for establishing such facilities, which have ≥ 5 Million TPA cargo handling capacity, the same would be requiring prior EC. In the case in hand, the project was till Stage-2 dealing with 11.7 Million TPA, which Appeal No.74/2016(WZ) Page 39 of 62 capacity is being enhanced to 23 Million TPA, therefore, it would be covered under Schedule I 7(e) in Category „A‟, which required to be appraised by the MoEF&CC.
76. Thereafter, the learned counsel for respondent No.3/GCZMA has also drawn our attention to para no.8 of the CRZ Notification, 2011. The said provision reads as under:-
"8. Norms for regulation of activities permissible under this notification,-
(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-
I. CRZ-I,-
(i) no new construction shall be permitted in CRZ-I except,-
(a)................................................................................................
(b)................................................................................................
(c) facilities that are essential for activities permissible under CRZ-I;
...................................................................................................."
77. Based on above provision of law, it is urged by the learned counsel for respondent No.3/GCZMA that in the case in hand, the facility, for which Environmental Clearance (EC) and CRZ Clearance have been granted to the Project Proponent, are permissible under above rule but they need to be regulated. In the case in hand, the CRZ Authority has placed conditions. If the said conditions are breached, that will provide a separate cause of action. Further, it is mentioned that regarding protection of mangroves, conditions are stipulated in the permission granted. With regard to mudflats, it is urged by him that even during public hearing, it was not raised that the report of EIA regarding mudflats was incorrect. Any actions, which are recommended in EAC, the same have to be taken care of or responded by the respondent No.1/MoEF&CC. It is further urged by him that the Project Proponent has been proceeding with the work since 2016 onwards up to 2023 as there was no stay on the said Appeal No.74/2016(WZ) Page 40 of 62 activity from any Court and by now work of almost 16 hectare area has been completed out of 23 hectares.
78. Further, it is urged by the learned counsel for respondent No.3/GCZMA that no activity has been done by the Project Proponent on the Northern side of the berth while on the Southern side, conveyor belt needs to be constructed. He also proposes that strict conditions may be imposed upon the Project Proponent and that validity of the Environment/CRZ clearance would be over after 10 years.
79. During argument, we had pointed out to the learned counsel for respondent No.3/GCZMA the Minutes of Meeting of the GCZMA dated 15.09.2015, at page no.52 of the paper book, in which at para no.3 there is reference to the effect that the site was visited by the members of Technical Committee on 20.05.2015, therefore, we made a query as to whether the said Technical Committee Report would be brought on record or not? In pursuance of that query, at the time of argument, the learned counsel has sent us that report through e-mail dated 08.08.2023, where- in it is recorded that "Dwarf mangrove patches are 600 mtrs. away from rubble bund on seaward side. Hence, no obstruction in tidal water flow in mangrove is envisaged".
80. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to the Minutes of 4th Meeting of Expert Appraisal Committee held on 28th-29th March, 2016, where-in at page no.94 of the paper book, following was pointed out by him:-
"The Committee deliberated on the certified compliance report dated 2.7.2014 issued by the Regional Office of MoEF&CC, Bhopal. It is reported that most of the environmental conditions have been complied. Few conditions are reported to be partly complied, which are related with environmental monitoring data. The Committee suggested them to upload the complete information on their website. PP committed to do the same. The Committee was satisfied with the response.Appeal No.74/2016(WZ) Page 41 of 62
The Committee deliberated upon the issues raised during the Public Hearing / Public Consultation meeting conducted by the Gujarat Pollution Control Board on 18th March 2015. The issues were raised regarding noise pollution, tyre washing, permission from Village panchayat, transportation of coal; prediction of pollution level; public hearing venue; fugitive emission from road, local employment; etc. The Committee noted that issues have satisfactorily been responded by the project proponent and incorporated in the final EIA-EMP report. Gujarat Coastal Zone Management Authority vide letter no. ENV-10- 2015-171-E dated 14th March, 2016 has recommended the proposal to MoEF&CC to grant CRZ cearance for proposed Phase- Ill expansion project at Dahej by M/s Adani Petronet (Dahej) Port Ltd. It is also reported that as per CRZ map duly demarcation of HTL CRZ Boundary etc. prepare by tie National Centre for Earth Science Studies, Thiruvananthpuram, the proposed activities falls within CTZ-1 (B), CRZ
-- Ill Categories, which are permissible as per CRZ Notification, 2011. After detailed deliberations, the Committee found additional information adequate and recommended the project for environmental and CRZ clearance and stipulated the following specific conditions along with other environmental conditions while considering for accord of environmental clearance:
(i). Construction activity shall be carried out strictly according to the provisions of CRZ Notification, 2011. No construction work other than those permitted in Coastal Regulation Zone Notification shall be carried out in Coastal Regulation Zone area.
(ii). The Project proponent shall ensure that there shall be no damage to the existing mangroves patches near site and also ensure the free flow of water to avoid damage to the mangroves.
(iii). The Project proponent shall ensure that no creeks or rivers are blocked due to any activities at the project site and free flow of water is maintained.
(iv). .........................................................................................."
81. Prior to the above, the Director (Environment) & Addl. Secretary, Department of Forest and Environment of Gujarat, who is also Member Secretary of the GCZMA, has made recommendation to the MoEF&CC for CRZ Clearance dated 14.03.2016, which is annexed at page nos.79 to 91 of the paper book. In this regard, the learned counsel for respondent No.6/Project Proponent submits that the appellants‟ whole case is based upon the Google Map, which cannot be given importance. He has also questioned the conduct of the appellants regarding delay. He has also urged that the Judgment of Hon‟ble High Court in PIL No.87/2006 (supra) Appeal No.74/2016(WZ) Page 42 of 62 will not hold good in the present case because different issue was involved therein. Moreover, the issues in that pertain solely to the State of Maharashtra and hence, the same would not be applicable in the State of Gujarat.
82. Pertaining to air pollution issue raised by the appellants, the learned counsel for respondent No.6/Project Proponent has drawn our attention to para no.43 of his reply affidavit, where-in it is submitted that pursuant to the directions issued by the respondent No.4/GPCB, a comprehensive study was carried out by the National Productivity Council on the adequacy of pollution control equipment and fugitive emission management. The National Productivity Council submitted its report on 09.07.2015, which contained measures to improve the existing air pollution control measures. Thereafter, our attention is drawn to the compliance report of the recommendations of National Productivity Council, annexed at page no.475 to 481 of the paper book, which gives details of the compliances made by the Project Proponent. This compliance report makes it clear that all the compliances have been done at the end of the Project Proponent and that regarding few recommendations, the same have already been noted and the compliance of the same are in progress.
83. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to page no.102 of the paper book, which is an information addressed by the Project Proponent/respondent No.6 to the Director, Ministry of Environment and Forest for prior Coastal Regulation Zone Clearance and Environmental Clearance (Form-1) for proposed expansion of Adani Petronet (Dahej) Port Pvt. Ltd. from 11.7 MMTPA to 23 MMTPA along-with reclamation of 23 ha. back-up area and widening of existing rock bund area from 15m to 60m width. Appeal No.74/2016(WZ) Page 43 of 62
84. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to page no.117 of the paper book and it is urged by him that it is not interlinked project as it is an expansion of an existing project (port) regarding environmental sensitivity. On the same page, it is recorded that that the Mangrove in the creeks and Estuary are 12 kms. away in South and 7 kms. away in North. Thereafter, he has drawn our attention to page no.152 of the paper book, which is a part of clarification given by the Project Proponent to the appellants regarding the project in question apprising them that the Project Proponent has not destroyed any mangroves so far. The proposed expansion will result in loss of only 12 dwarf mangroves. Considering overall mangrove cover in Dahej region, this loss is insignificant.
85. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to the Final EIA report of March 2015, where-on at page no.22, the details of the project are given in tabular form and at serial no.7- in front of Ecologically Sensitive Zones is written "None at the project site". At serial no.10, it is recorded Coastal Areas rich in corals, mangroves, breeding ground of specific specifies and in front of that "None at project site". Having drawn our attention to this information, it is submitted by him that the appellants have not provided any expert opinion that because of the mangroves being there, the mudflats is found to be biologically active. Then our attention is drawn to Appendix of the said report, which is provided in soft copy at page no.2, which contains the CRZ Map showing mangroves in light green dots. But it is very difficult to make out these green dots in the background of blue dots, as to in how much area they are spread and what is their number. It is urged by the learned counsel for Project Proponent that this Map was placed before the Appeal No.74/2016(WZ) Page 44 of 62 GCZMA and MoEF and therefore, it cannot be said that there was any concealment made on the part of Project Proponent.
86. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to page no.98 of the EIA Report, where-in at para no.5.6.2.3.1 dealing with project site, it is mentioned that "The proposed project site is situated on east coast of Gulf of Khambhat and could be divided into three zones. The intertidal zone close to shore is characterized by open mudflats. Stray occurrence of mangrove species Avicennia marina was observed on northern side of existing jetty. Southern side of existing jetty is devoid of any vegetation and they are shown in Intertidal Zone". Thereafter, he drew our attention to page nos.110-111 of the same report, which contains "Sparse Mangroves were observed near intertidal regions of proposed reclaimed area. Northern boundary of study area showed healthy growth of mangroves of the banks of Ban Khadi and Ghugar Khadi. Mangrove community was dominated by Avicennia marina. Density of mangrove was observed to be 40-80 per 100 sq. mtrs. and height was observed to be 1-1.5m near creek banks. Tall mangroves were present near open mudflats in seaward direction. However, the particular area was not accessible due to heavy siltation. Dense growth of mangroves was observed to be at least 8 km away from proposed development". The details of mangroves are given in Table 5.20 as below:-
"
"Appeal No.74/2016(WZ) Page 45 of 62
87. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to page no.145 of the EIA Report, where-in para no.6.4.1.3 deals with Impacts on Ecologically Sensitive Areas, which says "Ecologically Sensitive areas like corals, seagrass beds, breeding grounds are absent at proposed reclamation site. Hence, no impacts on these ecologically sensitive marine habitats are envisaged due to proposed development. Sparse and dwarf mangroves are present on north side of existing bund and these are located away from footprint of proposed reclamation area and thus remains unaffected. However, few dwarf plants (12 nos.) fall under footprint of northern corner of land reclamation and impact on these dwarf plants is considered to be insignificant while taking into account overall mangrove cover of study area. Thick and dense mangroves are present in Ban and Ghugar creeks which are located 5 km north of APPPL jetty. Hydrodynamics of these creeks will remain unaltered due to proposed reclamation. Hence, impacts on dense mangroves are not envisaged".
88. Thereafter, our attention is drawn by the learned counsel for respondent No.6/Project Proponent to page no.141 of the paper book of the main appeal, which is comments, questions and suggestions for the public hearing on 18.03.2015 sent by the appellants to Government authorities such as Chairman-GPCB, Gujarat Forest Department and Ministry of Environment and Forest, Gujarat etc., where-in query was made with respect to the area to be disclosed where mangroves have been destroyed so far; and what is the area of mangroves that will be destroyed at the expansion. Its response is given at page no.152 of the paper book, which we have already cited above saying that no mangroves had been destroyed and that the 12 mangrove, which would be affected, is an insignificant loss. In this reply, the Project Proponent has also given details Appeal No.74/2016(WZ) Page 46 of 62 in para no.3 that 400 Hectares of mangrove plantation has been complied with in consonance with the EIA report and the details of which are given as follows:-
Phase Area Location Plantation Longitude & Latitude through Phase 1 100 Dandi Plantation by 21O 18' 53.20, GEC 72O36'14.79 Plantation by 21O18'32.60, Phase 2 50 Jakhau GUIDE 72O36'06.50 50 Bhavnagar Plantation by 21O19'17.44, 72O07'11.01 Forest department " 100 Jambusar M/s Saline Area 22O 31'7.70, 72O31'32.90 Vitalization Enterprise LTD (SAVE) 100 Jambusar M/s Saline Area 22O31'9.35, 72O31'19.67 Vitalization Enterprise LTD (SAVE) "
89. Thereafter, the learned counsel for respondent No.6/Project Proponent has urged that the Map prepared by the NCSCM, which has been filed by the appellants, shows that the area in question would fall in CRZ-1B as the same has been shown in Legends as CRZ-IB, where-in the activity in question is permissible activity.
90. As regards Issue No.1: As per this issue, we have to decide as to whether the respondent No.6/Project Proponent has made any kind of concealment, which was required to be furnished in Form No.1 specifically with respect to there being mangroves and mud flats in the area in question, when applied for EC and CRZ Clearances. In this regard, the main argument made by the learned counsel for appellants is that the respondent No.6/Project Proponent has failed to mention in Form No.1 that there were mangroves and mudflats in the area where expansion for the project was sought to be approved because of which no proper ToR Appeal No.74/2016(WZ) Page 47 of 62 could be framed by the EAC. Consequently, it was not possible for EAC to express its opinion in this regard, as to whether there would be any adverse impact by the project in question over the mudflats as well as the mangroves and consequently upon the environment.
91. The learned counsel for appellants has also drawn our attention to the Judgment of Hon‟ble Supreme Court delivered in the matter of Hanuman Laxman Aroskar vs. Union of India (Civil Appeal No.12251 of 2018 along-with other Civil Appeal), where-in, she read out para nos.67 & 68 of the said Judgment, which we have already quoted in para no.68 of this Judgment above.
92. After full consideration made by the Hon‟ble Supreme Court, following directions are given, which are contained in para no.147 of above-mentioned Judgment:-
" (i). The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment;
(ii). The EAC shall carry out the exercise under (i) above within a period of one month of the receipt of a certified copy of this order;
(iii). Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;
(iv). Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down Appeal No.74/2016(WZ) Page 48 of 62 appropriate conditions concerning air, water, noise, land, biological and socio- economic environment;
(v). The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards bearing in mind international best practices governing greenfield airports;
(vi). We grant liberty to the State of Goa as the project proponent and the MoEFCC, as the case may be, to file the report of the EAC before this Court in the form of a Miscellaneous Application so as to facilitate the passing of appropriate orders in the proceedings; and
(vii). No other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order."
93. No counter argument has been made from the side of learned counsel for respondent No.6/Project Proponent in this regard, as to why the above cited Judgment would not be applicable in the present case.
94. If we apply the principle of law laid down above by the Hon‟ble Supreme Court in Hanuman Laxman Aroskar's case, it is apparent that in Form No.1, the Project Proponent has not specifically mentioned about there being 12 dwarf mangroves and mudflats in the region where both the clearance were being sought, which is apparent from the information furnished by them in Form No.I, annexed at page nos.270 to 301 of the paper book.
95. Thereafter, the learned counsel for appellants has also drawn our attention to Page No.273 of the paper book, in which at serial no.1.2 information relating to Clearance of existing land, vegetation and building was asked for, reply is given by the Project Proponent "No" and in front of that, details thereof is recorded "Area proposed for reclamation is devoid of vegetation or civil structures". The learned counsel for appellants states that in this Column the information, which was required to be furnished by the Project Proponent, is that there existed 12 dwarf mangroves and mudflats since the same has not been indicated, it would amount to Appeal No.74/2016(WZ) Page 49 of 62 concealment in Form No.I. We find that at page no.119 of the paper book are the Proposed Terms of Reference for EIA studies, which were extended from the side of learned counsel for respondent No.6/Project Proponent, relevant portion of which is quoted herein below:-
"Appeal No.74/2016(WZ) Page 50 of 62
"
96. In the EAC, after consideration of the proposal, it had added following more in those Terms of Reference, which are at page nos.123 to 125, which are as follows:-
Appeal No.74/2016(WZ) Page 51 of 62
"Appeal No.74/2016(WZ) Page 52 of 62 Appeal No.74/2016(WZ) Page 53 of 62
"
97. From the above ToRs, we find that from the side of Project Proponent at serial no.6 at page no.119 of the paper book ToR dealing with Marine environment studies was included. It is the study, which was required to be done relating to the Mapping of Ecologically Sensitive flora and fauna viz. mangroves, corals and sea-grasses within 10 km. radius of the port area. At serial no.6 of the same page, ToR for study relating to the Primary ecology was required to be done within 10 km. radius both marine and terrestrial, which certainly would cover the study related to the mudflats in our estimation. Therefore, it is evident that even if there was no specific mention made of the mangroves and the mudflats in Form No.I as stated by the learned counsel for appellants, which is found to be true as well by us, we find that in ToR proposed by the respondent No.6/Project Proponent, the study on these two points i.e. mangroves and mudflats being there, was part of the scope of EIA study by the Consultant, which was engaged by the Project Proponent for preparing the EIA study report.
98. We would like to highlight here that when we go through the EIA report, we find that in the EIA Report, at page no.98 in Point No.5.6.2.3.1, it has been clearly mentioned that the project site is situated in intertidal zone close to shore, which is characterized by the open mudflats. Stray Appeal No.74/2016(WZ) Page 54 of 62 occurrence of mangrove species Avicennia marina was also observed. Regarding these facts, opinion has also been expressed in the EIA Report at page no.145 at point no.6.4.1.3 saying that sparse and dwarf mangroves, which were found present on northern side of existing bund, they were located away from footprint of the proposed reclamation area and thus remains unaffected. However, few dwarf plants (12 nos.) were found to fall under footprint of the northern corner of land reclamation and the impact on these dwarf plants was considered to be insignificant. This would show that the EIA contained a study on these points of mudflats as well as mangroves and it was of the opinion that there was no adverse impact going to be there on mudflats or the mangroves, which were found to be there. Therefore, simply because there was non- mentioning of these two mudflats and mangroves in Form No.I, would not be of any great significance.
99. As regards the Judgment of Hon‟ble Supreme Court in Hanuman Laxman Aroskar's case, we find that even in that case, the information which was not found to have been furnished in Form No.1, that was not held to be sufficient for quashing the EC, rather the study was ordered to be done in respect of the deficiencies found about furnishing the information from the side of Project Proponent, which was ordered to be done and for the time being, the project was kept on hold by placing the EC under suspension and subsequently, the EC was allowed after the said study had been conducted, proposing whatever was found necessary by them to be done at the end of the Project Proponent. In the case in hand, we find that despite the fact that the information in detail was not mentioned in Form No.I pertaining to mudflats and mangroves being there but EIA does contain the study on the above two subjects and it has expressed opinion that there is no serious impact going to be there of the Appeal No.74/2016(WZ) Page 55 of 62 project in question upon the mudflats and the mangroves. Hence, we do not find any further need of study to be conducted in this regard. Therefore, we decide this issue accordingly.
100. As regards Issue No.(ii): As per this issue, we have to decide as to whether the project in question lies in CRZ-1A and accordingly, whether EC and CRZ Clearances could have been given in that area. In this regard, it is argued by the learned counsel for appellants that in the CRZ Notification, 2011 in para no.7(i)-CRZ-I (A) laid down that the areas, where the biologically sensitive mudflats are lying, would be falling in CRZ-IA area, where-in as per the provision under para no.8 of the EIA Notification- 2011, no new construction shall be permitted, except the facilities that are essential for activities permissible under CRZ-I. Based on above, it is argued by the learned counsel for appellants that because there are found to be mudflats and mangroves in the area in question, it would be treated to fall in CRZ-IA area and hence no EC/CRZ Clearance could have been given to the Project Proponent by the MoEF&CC/respondent No.1 in the case in hand and therefore, the said Environmental Clearance and CRZ Clearances need to be quashed.
101. Per contra, from the side of respondent No.3/GCZMA and respondent No.6/Project Proponent, it is submitted that in the CRZ Notification, 2011 in para 3 (Prohibited activities within CRZ) read-with para 4(Regulation of permissible activities in CRZ area) and para 8 Sub- Clause I. CRZ-I or (i) (c), this activity being foreshore facility is permissible activity, which needs to be regulated and accordingly, the MoEF&CC has granted EC and CRZ Clearance, subject to several conditions, which have adequately taken care of the mangroves as well as mudflats not being impaired adversely because several conditions have been placed upon the Project Proponent to be complied with. Further, in case any of the Appeal No.74/2016(WZ) Page 56 of 62 violations made of these conditions, the Project Proponent would be liable to be proceeded against appropriately.
102. We are convinced from the argument made by the learned counsel for respondent No.6/Project Proponent and the respondent No.3/GCZMA that the area in question would lie in CRZ-IB, which is the area falling between LTL and HTL, except the patch of mangrove, which is said to contain 12 dwarf mangroves, the said area having patch of 12 dwarf mangroves would be treated to be CRZ-IA area where no construction or any kind of developmental activity is permissible as per CRZ Notification, 2011.
103. From the side of learned counsel for appellants, reliance is placed on the Judgment of Hon‟ble Bombay High Court in PIL No.87/2006 (Bombay Environmental Action Group & Anr. vs. The State of Maharashtra & Ors.) and other connected Writ Petitions, relevant paragraphs of which we have already cited above while dealing with the argument of learned counsel for appellants. In rebuttal, from the side of respondent No.6/Project Proponent, it is said that in para 2 of the said Judgment, it is very clearly stated that the petition seeks a declaration that the areas covered by mangroves in the State of Maharashtra in addition to those covered by mangroves forest, should be declared as mangroves protection area and that the said matter was confined to the issue pertaining to the State of Maharashtra. He also said that the whole Judgment, if read in totality, would indicate that the issue/problem pertained to the State of Maharashtra specifically, which has been dealt with appropriately by the Hon‟ble High Court and it is in that context that the Hon‟ble High Court has held that all mangroves irrespective of the area would fall in CRZ-I as per both CRZ Notifications 1991 and 2011 and that the buffer zone of 50 mtrs., in case of mangrove area of less than 1000 mtrs. will not be a part Appeal No.74/2016(WZ) Page 57 of 62 of the CRZ-I. This Judgment does not appear to have dealt with the CRZ- IA & CRZ- IB area distinctly. Therefore, in the case in hand, its application in totality does not appear to be reasonable. We have already noted above that the area where the mangroves are found to be there, shall certainly be CRZ-IA area, where construction or any developmental activity cannot be permitted. But in the case in hand, we find that the project was brought into existence long back prior to the present Phase-III. Two phases have already been carried out and it is the third phase, expansion of the same is going to take place in the impugned EC and the CRZ Clearances. It is also not to be forgotten here that the project in question is a project of national importance as well as public need.
104. In response to the argument of learned counsel for appellants, from the side of respondent No.6/Project Proponent, reliance is placed on National High Speed Rail Corporation Ltd. vs. State of Maharashtra & Ors.[(2022) SCC OnLine Bom 6701 : (2023) 2 Bom CR 208], where-in a prayer was sought to quash and set aside the communication dated 20.12.2018, pursuant to which Maharashtra Coastal Zone Management Authority (MCZMA) had refused to grant permission to the petitioner to cut/fell mangroves falling within Coastal Regulation Zone-I deferring the proposal of the petitioner for carrying out work in respect of the Mumbai- Ahmedabad High Speed Railway Project. The MCZMA in its Meeting dated 20.12.2018 held that "it noted the Hon'ble High Court order dated 17th September, 2018 in PIL 87/2006 passed by Hon'ble High Court of Mumbai. Since proposed activities were situated in 50m mangrove buffer zone area, the Authority suggested that the project proponent may approach Hon'ble High Court of Mumbai seeking relief from the above said order dated 17th Sep. 2018. Further, the CZMP under CRZ Notification, 2011 for Thane & Palghar was yet to be finalized and approved by the Appeal No.74/2016(WZ) Page 58 of 62 MoEF&CC, New Delhi. Therefore, the matter was deferred." In this matter, the Hon‟ble High Court directed the MCZMA to permit the petitioner to execute Mumbai-Ahmedabad High Speed Rail Project including the area falling in mangrove area and the buffer zone area in view of the public importance of the project, subject to the following conditions:-
(i). The petitioner is directed to comply with all the conditions imposed in the clearances/permissions granted by the Respondent authorities;
"(ii). LA responsible officer of the petitioner files an undertaking before this Court within a period of 10 days of the uploading of this order binding the petitioner (a) that the petitioner will undertake compensatory plantation of 110000 mangrove saplings, (b) shall strictly comply with the conditions as imposed in the permissions/clearances granted by the various authorities including the MoEF and CC, MCZMA, Chief Conservator of Forests (Mangroves Cell), Forest Department and other authorities that have granted permissions/clearances, and (c) that the petitioner will obtain any further approvals / permissions that may be necessary for executing the Project and to comply with the conditions therein."
105. Similarly, the learned counsel for respondent No.6/Project Proponent has relied upon the Judgment passed by the Hon‟ble High Court of Bombay in the matter of Tata Power Company Limited and Anr. Vs. Union of India through the Ministry of Environment, Forest & Climate change & Ors. [(2022 SCC OnLine Bom 540 : (2022) 3 Bom CR 421 : (2022) 5 AIR Bom 616], where-in Petitioners have sought a direction to the respondent authorities to allow Petitioners to implement the project for 220 KV transmission line between Kalwa and salsette pursuant to the permissions granted under the provisions of Environmental (Protection) Act, 1986, Forest (Conservation) Act, 1980 and the Notification issued under the provisions of EPA, 1986. The said power line was to pass over an area consisting of mangroves and would also fall within 50 mtrs. Mangroves buffer zone. In this case also, the authorities were directed to convey the petitioners to execute the proposed construction of 220 KV Kalwa Salesette Transmission Line (Upgradation of old 110 KV Appeal No.74/2016(WZ) Page 59 of 62 Transmission Line in Mumbai) in mangrove area and its buffer zone in view of the public importance of the project, subject to petitioners complying with the conditions imposed in the clearances/permissions granted by the respondent authorities and the undertakings mentioned.
106. Based on above citations, the learned counsel for respondent No.6/Project Proponent has vehemently argued that the project in question is also of great public importance, which is for public good or public interest including the economy of the nation. Therefore, such project should not be curtailed for small infraction of the environmental norms because we have to take into consideration the principle of the Sustainable Development and we have also to ensure that the economy should also grow. This project was initiated long back and that no hurdle was faced at the initial stages while the project was being carried on in the same area where it is being expanded as on date. It is also made clear that almost 90% work has already been completed and the small part of it is left to be performed, therefore, the whole project would result in huge economic loss not only to the Project Proponent but also to the economy of the nation. Therefore, in this background, it is prayed that this appeal should be rejected.
107. We may also have to take into consideration the point, as to whether the existence of mudflats in the area in question would render this area to fall in CRZ- IA and consequently, would lead to the consequence that no developmental work can be permitted in that area. In this regard, our view is that in that area not only the Project Proponent is proceeding with the expansion of its project but other projects are also going on side by side. Even if we get it studied by some expert body that the mudflats, which are argued to be biologically active by the appellants, is the correct position, and consequently, the said area should be placed in the category of CRZ- Appeal No.74/2016(WZ) Page 60 of 62 IA, we should not stop the activity of development/expansion, which has been permitted to the Project Proponent because we have already held that the project is of national importance and that the same should not be interfered with at this advance stage.
108. The learned counsel for appellants has vehemently argued that no specific study was got conducted in the case in hand, in order to ascertain, as to whether the mudflats in the area were biologically active/inactive and the opinion, which has been expressed in the EIA study is only based on conjuncture there being no scientific proof.
109. In order to address the alleged fear of the appellant and to be doubly sure, as to whether any significant damage is being caused by the project to the ecology of the local area, we deem it appropriate that a study may be undertaken with regard to the adverse impact of the expansion project on the mudflats and mangroves at this belated stage, by an expert body such as National Institute of Oceanography (NIO)/ National Institute of Ocean Technology (NIOT)/ National Centre for Sustainable Coastal Management (NCSCM) and in case any damage is found probable to be caused to the local environment, whether any remedial measures need to be taken by the Project Proponent, may also be suggested. This study should be conducted at the earliest within a period of six months from the date of uploading of this order and report thereof shall be submitted to this Tribunal with a copy to be served upon the appellants and at that stage, the appellants, if find any lacunae in that report, may approach us asking further relief, if required. This issue is decided accordingly.
110. As regards Issue No.(iii): As per this issue, we have to decide as to whether there is found to be any air pollution on account of storage and handling of coal in the area in question, in this regard, we are of view that Appeal No.74/2016(WZ) Page 61 of 62 we have already dealt with in this regard above holding that Project Proponent has made compliances of the recommendations made by the National Productivity Council, therefore, nothing further needs to be done in this regard and we find that adequate care has been taken. This issue is decided accordingly.
111. As regards Issue No.(iv): We reject this appeal with the directions that the Project Proponent shall get study done from NIO/NIOT/NCSCM in regard to the adverse impact of expansion of the project upon the mudflats and the mangroves in the area in question and in case any suggestion/recommendations are made by the expert body, the same shall be implemented within next six months. This study shall be got completed within a period of six months from the date of uploading of this Judgment.
112. All pending applications, if any, also stand disposed of. No order as to cost.
Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM November 23, 2023 Appeal No.74/2016(WZ) P.kr.
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