National Green Tribunal
Dakshinbanga Matsyajibi Forum vs Moef on 7 July, 2022
Item No. 10 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No.92/2021/EZ
In the matter of:
DakshinbangaMatsyajibi Forum
Through its authorised signatory
Mr. Milan Das, General Secretary,
20/4, Sil Lane, Kolkata-700015
........Applicant(s)
Versus
1. Union of India
Through its Secretary,
Ministry of Environment, Forests & Climate Change,
Indira Paryavaran Bhavan, Jor Bagh Road,
Aligunj, New Delhi-110003
2. State of West Bengal,
Through the Chief Secretary,
Department of Environment,
5th Floor,Pranisampad Bhawan, Block-LB-II, Salt Lake,
Sector-III, Bidhannagar, Kolkata-700106
3. West Bengal Pollution Control Board,
Through its Member Secretary,
Paribesh Bhawan, 10A, Block-LA,
Sector-III, Bidhannagar,
Kolkata-700106
4. West Bengal State Coastal Zone Management,
Through its Chairman,
Department of Environment,
5th Floor, Pranisampad Bhawan,
Block LB-II, Salt Lake, Sector-III,
Bidhannagar, Kolkata-700106
5. West Bengal State Wetlands Authority,
Through the Member Secretary,
Department of Environment,
5th Floor, Pranisampad Bhawan,
Block LB-II, Salt Lake, Sector-III,
Bidhannagar, Kolkata-700106
6. National Coastal Zone Management Authority,
Through the Member Secretary,
Indira Paryavaran Bhavan, Jor Bagh Road,
Aligunj, New Delhi-110003
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7. District Magistrate
South 24 Parganas District,
West Bengal
8. Amlamethi Hill Resort
Through the Proprietor,
Gosaba Block, South 24 Parganas District,
West Bengal
........Respondent(s)
Date of hearing: 07.07.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Rahul Choudhury, Advocate (in Virtual Mode)
a/w Mr.Kaustav Dhar, Advocate
For Respondent(s) :Mr. Debasish Ghosh, Advocate for R-1,
Mr. Amitesh Banerjee, Sr. Advocate a/w
Mr. Nayan Chand Bihani, Advocate and
Mr. Sibojyoti Chakraborty, Advocate for R-2, 4, 5 & 7,
Mr. Dipanjan Ghosh, Advocate for R-3
ORDER
1. Mr. Rahul Choudhury, learned Counsel (in Virtual Mode) assisted by Mr. Kaustav Dhar, learned Counsel are present for the Applicant.
2. This Original Application has been filed by the Applicant on the allegation that Respondent No.8, Amlamethi Hill Resort, is in the process of construction of a resort at Amlamethi village in Gosaba Block, South 24 Parganas District, West Bengal, which is classified as CRZ-I A (Coastal Regulation Zone-I A) and which forms part of the Sunderban area and is also classified as a 'Critically Vulnerable Coastal Area' as well as being a Ramsar Site under the Ramsar Convention on Wetlands of International Importance Especially as Waterfowl Habitat. In support of his contention a comparative Google Image of 2018 and 2021 has been filed as Annexure A-2 (page no. 26 of the paper book), photograph of the alleged construction has been filed as Annexure A-3 (page no. 27 of the paper book), and a map as Coastal Regulation Zone lines and 2 boundary depicting the different categories of the Coastal Regulation Zonation has been filed as Annexure A-4 (page 28 of the paper book).
3. The learned Counsel further submits that the Applicant had sought information under Right to Information Act, 2005 from the Govt. of West Bengal and a reply has been received from the West Bengal State Coastal Zone Management Authority wherein they have replied to query no.1 by stating that 'From the available records it appears that no such project proposal was received by WBSCZMA'. The further submission of the learned Counsel, therefore, is that in the absence of permission to make construction within the Coastal Regulation Zone in a Ramsar Site, the entire construction activity of the Respondent No.8 is absolutely illegal and in violation of Environmental Laws, particularly the Coastal Regulation Zone Notifications.
4. Considering the gravity of the allegations made in the Original Application, the Tribunal called for a Report from the Respondent No.7, District Magistrate, South 24 Parganas. The Respondent No.7 was directed to physically inspect the site in question and submit his report within two weeks, particularly with regard to the satellite images shows in Annexure A-2, photograph in Annexure A-3 and the map in Annexure A-4 depicting the violations of the Coastal Regulation Zone Notification 2019.
5. The Respondent No.4, West Bengal State Coastal Zone Management Authority was also directed to conduct a physical inspection of the site in question on the above mentioned aspects noted by the Tribunal, specifically as to whether the alleged construction falls within the CRZ-1 A or not and submit its report within two weeks. 3
6. Notices were issued to the Respondents and various affidavits have been filed by the contesting respondents.
7. An affidavit dated 23.12.2021 has been filed by the West Bengal Coastal Zone Management Authority stating therein that the project of Amlamethi Hill Resort falls within the CRZ-IA (mangrove and mangrove buffer) and CRZ-IB (intertidal zone). The area lies on the waterside of Hazard line and within the Critically Vulnerable Coastal Area (CVCA). The field visit report along with coloured photographs has been filed as Annexure R/1 (colly).
8. One affidavit dated 21.12.2021, has been filed by the District Magistrate, South 24 Parganas, stating therein that a field inspection was carried out on 07.12.2021 with regard to the Amlamethi Eco-Tourism Projects and it was found that the schemes were in on-going stage. River embankment protection scheme have been taken up by the Bali-I, Gram Panchayat for the protection of embankment at the project area. The project has already created 1.26 lakh man-days under MANREGAS by employing local rural people and will cause further livelihood generation.
9. The Report further mentions that there are nineteen (19) wooden cottages under construction; those are situated on round-shaped high land surroundings the water bodies on all sides; same type of two (02) cottages are completed; there are sixteen (16) numbers of high lands located in between water bodies in northern side and five (05) numbers are seen towards south-west side; there are few water bodies seen here and there in a planned manner; the river embankment is seen surrounding the resort besides the River Bidya, approximate distance of the resort from the river is 30 feet 4 and distance between resort and main Mangrove forest is more or less 1200 meters width from the middle of the Bidya River; the brick made blocks are seen in large numbers for the protection of river embankment; 56 numbers of wooden bridges are seen moving from one resort cottage to another cottage through the river embankment and there is one active saw-mill.
10. The Inspection Report further mentions that the resort comprising several small manmade Islands have a number of Watch Tower- cum-Furnished wooden Cottages. The Islands are connected with small wooden and Iron bridges. All watch towers are well supported by Iron poles with R.C.C. basement. The said construction didn't abide The Coastal Regulation Zone Rules, February, 1991, Environment Protection Act, 1986 and CRZ notification issued by the Government of India in 2011 and 2018. The area is within High Tidal Zone and under CRZ-I.
11. This Report does not show what action has been taken by the District Magistrate in the face of blatant environmental violations and violations of the Coastal Regulation Zone Rules since the area falls in CRZ-IA. The site inspection was carried out on 07.12.2021 and the affidavit was sworn on 21.12.2021. What action has been taken by the District Magistrate as Chairman of the District Coastal Zonal Management Authority, in the last 14 days was not stated in the affidavit.
12. The Tribunal therefore directed the District Magistrate, South 24 Parganas to file his personal affidavit within one week showing what action had been taken.
13. Two affidavits dated 31.12.2021 & 05.01.2022 have been filed by the District Magistrate, South 24 Parganas. Paragraph 6, 7, 8, 9 & 5 10 of the affidavit dated 31.12.2021 are extracted herein below for proper appreciation of the case:
"6. That the steps in compliance of the solemn order of the Hon'ble Tribunal has been initiated on 24.12.2021 vide Memo No. Misc/5046/1/2021 itself by passing necessary direction to the Sub-Divisional Officer, Canning, Stating that:
(A) All the ongoing construction including schemes under MGNREGA taken up by Bali-I Gram Panchayat in area under Amlamethi Hill Resort area is immediately stopped. This shall be enforced by the local police station as per direction issued by the Hon'ble NGT vide reference ordre.
(B) The entire area under Amlamethi Hill Resort, falling under CRZ-
I zone must be restored into its original condition by removing all constructions including concrete, brick, iron, wooden and other building materials within 15 days.
(C) Plantation of mangroves to be done in the landward area upto 100 meters from shoreline covering the entire length of project area where mangrove had been affected dueto construction. Schemes for such fresh plantation need to be prepared and submitted by BDO, Gosaba immediately for necessary approval.
(D) A fine of such amount as assessed by the competent authority to be deposited by Bali-I Gram Panchayat, Gosaba for violation of CRZ Notification and damaging the environment.
It is most humbly submitted that the Hon'ble Tribunal may, if it so considers, form a committee comprising of senior officials from the concerned Departments to assess the environmental damage in violation of the CRZ Notification at the alleged construction site of Amlamethi Hill Resort.
7. That the solemn order of the Hon'ble Tribunal has been duly communicated to the Superintendent of Police, Baruipur Police Station, South 24 Parganas vide Memo No. Mis.5054/1/2021 dated 24/12/2021, to ensure that all construction works in Amlamethi Hill Resort is stopped immediately and the said order of the Hon'ble NGT is enforced.
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8. That the Sub-Divisional Officer, Canning Sub-division, vide Memo No. 1862/1(4)/SDO/CNG dated 27.12.2021 sent a letter to the Pradhan Bali-I Gram Panchayat, Gosaba Development Block regarding action against violation of CRZ Notifications by Amlamethi Hill Resort with a direction to ensure following immediately:
i. All the ongoing construction including schemes under MGNREGA taken up by Bali-I Gram Panchayat in area under Amlamethi Hill Resort area is immediately stopped. ii. The entire area under Amlamethi Hill Resort, falling under CRZ zone must be restored into its original condition by dismantling and removing all constructions including concrete, brick, iron, wooden and other building materials within 15 days. The entire cost for the aforementioned works will be borne by the own funds of the Panchayat.
iii. Plantation of mangroves to be done in the landward area up to 100 meters from shoreline covering the entire length of project area where mangrove had been affected due to construction.
Schemes for such fresh plantation need to be prepared and submitted by BDO, Gosaba immediately for necessary approval.
9. That the action as per direction of the Hon'ble Tribunal has already initiated at ground level by the district administration and the construction made in violation of CRZ Notification 2011 and falling under CRZ-I Zone are being dismantled and removed in compliance of the direction issued by the deponent vide letter dated 24.12.2021. That the report submitted by the Block Development Officer, Gosaba along with Photographs of the ongoing dismantling of constructions taken on 27.12.2021 vide Memo No. 3221 dated 27.12.2021, which states that the construction works in Amlamethi Hill Resorts falling under CRZ-I Zone in Bali-I Gram Panchayat has been stopped and dismantling of construction works has also started as reported by the said Gram Panchayat.
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10. That the Superintendent of Police, Baruipur Police District has submitted a report vide Memo No. 1916/Legal Cell dated 31.12.2021, which states that the order of the Hon'ble National Green Tribunal as communicated was sent to O/c Gosaba P.S. vide Memo No. 1902/Legal Cell dated 28.12.2021 for strict compliance. O/c Gosaba also directed to keep sharp vigil over the matter.
Accordingly, O/c Gosaba P.S. enquired into the matter locally and stopped the construction work of Amlamethi Hill Resorts. As per instructions sharp and close vigil over the site is being kept from the end of Gosaba P.S."
14. In the affidavit of 05.01.2022, all that has been stated is that a sum of Rs. 17, 33, 417 (Rupees Seventeen Lakh Thirty-Three Thousand Four Hundred Seventeen) has been sanctioned for plantation of mangrove at the Amlamethi Hill Resort falling under the CRZ-I. This affidavit however did not disclose whether the amount of penalty has been determined and recovered from the Project Proponent or not.
15. The Tribunal therefore constituted a Committee comprising of the following members: -
(i) Senior Scientist from Central Pollution Control Board;
(ii) Professor C. R. Babu or any other Scientist suggested by him from Centre for Environmental Management of Degraded Ecosystems (CEMDE), New Delhi,
(iii) Senior Scientist from West Bengal Pollution Control Board;
(iv) Dr. Tapas Kumar Gupta, Chief Technical Advisor, West Bengal Pollution Control Board;8
(v) Principal Chief Conservator of Forests (Wildlife) or his representative not below the rank of Chief Conservator of Forests, Govt. of West Bengal;
(vi) Senior Official from State Coastal Regulation Zone, Govt. of West Bengal;
16. The Committee was tasked to inspect the site within three weeks and assess the damage caused to the environment and also compute environmental compensation, cost of restitution/remedial measures and penalty to be recovered from the project proponent/proponents and also suggest remedial measures to restore the area to its original shape.
17. Mr. Amitesh Banerjee, learned Senior Counsel assisted by Mr. NayanBihani, learned Counsel for the State Respondents submitted that Amlamethi Hill Resort does not exist and therefore, the Respondent No.8 has wrongly been impleaded in the array of respondents. He further submitted that this fact was not verified by the Applicant at the time of filing the original application and therefore, the Applicant has not come to the court with clean hands and has filed the original application on false claims.
18. We have considered the submissions of the learned Senior Counsel however, we find that the photographic evidence which is on record as well as the affidavit of the District Magistrate, South 24 Paraganas confirms that the construction which has been made at the site in question falls within the CRZ-IA which is not permissible at all as CRZ-IA falls in an ecologically sensitive area.
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19. One personal affidavit dated 22.02.2022 has been filed by District Magistrate, South 24 Paraganas.
20. In the affidavit of District Magistrate, photographs have been filed from page no. 353 to 357 which show that the structures which were constructed over the islands have been removed and the bridges have also been removed but the debris and the circular artificial islands still existed at the site. We also noticed that the trees which were being planted by certain persons shown in the photographs were not mangrove trees, rather they were palms trees thus compromising the natural forest habitat of the area. The photographs show certain artificial islands and artificial dykes which have been created to beautify those islands. These certainly are not dykes created for protection of villages naturally existing in the Sundarban mangrove forest. These artificial dykes and enclosing the islands therefore required to be removed.
21. The Chief Secretary, Govt. of West Bengal has filed an affidavit mentioning therein that the Committee of the following members
(i) Mr. M.V. Rao, I.A.S., Additional Chief Secretary, P & R.D. Department; (ii) Mrs. Roshni Sen, I.A. S., Member Secretary, West Bengal Pollution Control Board (Convenor of the Committee); (iii) Mrs. TriptiSah, I.F.S., Senior Environment Officer, Environment Department and Additional Director, IESWM; An Officer not below the rank of JointSecretary to be nominated by the Principal Secretary, Finance Department,has been constituted by him and the Committee was required to 10 inspect the site and submit its report to the Environment Department by 12.02.2022.
22. Mr. Rahul Choudhury, learned Counsel for the Applicant in the course of hearing also stated that in view of the affidavit which has been filed by the State Respondents, it is not necessary to file any rejoinder affidavit.
23. An affidavit dated 27.04.2022 has been filed by Respondent No.3, West Bengal Pollution Control Board stating therein that the Committee constituted by the Tribunal visited the site in question on 18.02.2022 and on 25.03.2022 along with the local experts and District Administration and it was found that all artificial Dykes enclosing the island had been removed. Soil and water samples were collected from the site for detailed analysis for preparation of management plan for restoration of the site.
24. The Committee assessed and calculated the Environmental Compensationamounting to Rs.12,51,780/- (Rupees Twelve lakhs fifty-one thousand seven hundred eighty only) and damage to Ecologically Sensitive Areas (ESAs) in the project site at Rs.1,25,178/- (Rupees One lakh twenty-five thousand one hundred seventy-eight only). Thus, total compensation determined by the Committee was Rs.13,76,958/- (Rupees Thirteen lakh seventy-six thousand nine hundred fifty-eight only).The Committee recommended that the amount of Rs.13,76,958/- (Rupees Thirteen lakhs seventy-six thousand nine hundred and fifty-eight only), be imposed on Pradhan, Bally-I Gram Panchayat as Environmental Compensation, for carrying out construction work at the site violating the prevailing 11 Coastal Regulation Zone (CRZ) Notifications of the Ministry of Environment, Forest and Climate Change (MoEF&CC).
25. The Committee also suggested the remedial action as follows: -
i) Complete removal of dismantled material and solid waste from the site.
ii) Soil to be utilized to strengthen embarkment which will help in increasing the storage capacity of rain water.
iii) The sites can be restored as conservatory of low salinity loving mangroves and associated species.
iv) Rainwater harvesting to be made an integral part of the restoration work.
26. Along with this affidavit, a Final Report along with Action Plan has also been filed as Annexure-R. The relevant extract of the Final Report reads as under:-
"Inspection of the site and assessment of the damage caused to theenvironment The Committee members visited the site on 18/02/2022 and met subsequently on 19/02/2022 for further discussion. The Committee submitted the Interim Report to the Hon'ble National Green Tribunal and requested for some more time for preparation of detailed Report.
In the affidavit of the West Bengal Coastal Zone Management Authority, sworn by the Member Secretary, West Bengal Coastal Zone Management Authority, it has been stated that as per the Ministry of Environment, Forest and Climate Change (MoEF&CC) approved Coastal Zone Management Plan 2011 (CZMP) on 1:25000 scale, the site falls within CRZ-1A (mangrove and mangrove buffer) and CRZ-1B (intertidal zone). The area lies on the waterside of hazard line and within the Critically Vulnerable Coastal Area (CVCA).
The Inspection Report of the District Fishery Officer, Brackish Water, South 24 Parganas, submitted by the Assistant Director of Fisheries, Brackish Water, South 24 Parganas, also mentioned several small manmade islands connected with wooden and iron bridges. All the watch towers were supported by iron poles with RCC basement. The 12 said construction didn't abide The Coastal Regulation Zone Rules, 1991 under Environment Protection Act, 1986 and Coastal Regulation Zone (CRZ) Notification, 2011 and 2018. The area is within High Tidal Zone and under CRZ-I. The 3rd meeting of the Committee was held on 10/03/2022 at the Conference Room of West Bengal Pollution Control Board, located at Paribesh Bhawan, 10A, Block LA, Sector - III, Bidhannagar, Kolkata -
700 106, to decide further course of action with respect to the Direction, dated - 23/02/2022, of the Hon'ble National Green Tribunal, in the matter of DakshinbangaMatsyajibi Forum vs Union of India &Ors. (O.A. No.-92/2021/EZ).
After detailed discussion the Committee decided that for preparation of Ecological Restoration Plan, once again the site need to be visited alongwith the local experts as suggested by Prof. C. R. Babu, namely:
i. Dr. Krishna Ray (Assistant Professor, Department of Botany, West Bengal State University, Kolkata-700106. ii. Dr. Sandip Basak (Principal, Sarat Centenary College, Dhaniakhali, Hooghly, WB-712302.
Thus, the Committee Members visited the site again on 25th March 2022 alongwith the Local Experts and District Administration. It was observed all the artificial dykes enclosing the islands have been removed. Soil and water samples were collected from the site for detailed analysis for preparation of management plan for restoration of the site.
Computation of Environmental Compensation, Cost of restitution / remedial measures and penalty to be recovered from the project proponent / proponents The Hon'ble National Green Tribunal in its Order dated 06/01/2022 has directed the committee to compute environmental compensation, cost of restitution / remedial measures and penalty to be removed from the project proponent/ proponents and also suggest remedial measures to restore the area to its original shape. The Committee discussed in details for assessment of Environmental Compensation with reference to the following guidelines.
Reference : Supplementary Report of Committee constituted to assess Environmental Compensation for the alleged violations by the Seventh Respondent in the Original Application No.136 of 2016 (SZ) filed before the Hon'ble National Green Tribunal, Southern Zone, Chennai (Annexure I) 13 A. Environmental Compensation based on the guidelines issued by CPCB On the basis of the guideline issued by the Central Pollution Board for calculating Environmental Compensation, as has been directed by the Hon'ble National Green Tribunal in several other similar cases, the Committee proposes to impose Environmental Compensation as given below.
The methodology and the formula for calculating environmental compensation based on the guidelines issued by Central Pollution Control Board (CPCB) is given below:
Environmental Compensation formula :
EC = PI x N x R x S x LF Where EC = Environmental Compensation PI = Pollution Index of the industry sector N = Number of days of violation took place R = A factor in Rs for EC S = Factor for scale of operation LF = Location factor i. The industrial sectors have been categorized into Red, Orange and Green based on their pollution index in the range of 60 - 100, 41 - 59 and 21 - 40 respectively. It was suggested that the average pollution index of 80, 50 and 30 may be taken for calculating the environmental compensation for Red, Orange and Green categories of Industries respectively.
ii. N, number of days for which violation took place is the period between the day of violation observed / due date of directions compliance and the day of compliance verified by PCB/ SPCB/ CPCB.
iii. R, is a factor in rupees, which may be minimum of 100 and maximum of 500.
iv. S, is based on small/ medium/ large industries categorization which may be 0.5 for micro or small, 1 for medium and 1.5 for large units.
v. LF (location factor), is based on the population of the city/ town and location of the industrial unit. For the 14 industrial unit located within the municipal boundary or upto 10 km distance from the municipal boundary of the city/ town, the following factors may be used.
Sl.No. Population Location Factor
(million) (LF)
1 1 to < 5 1.25
2 5 to < 10 1.5
3 10 and above 2
Note - LF will be 1 in case unit is locate > 10 k.m. from the municipal boundary and LF is presumed as 1 for city / town having population less than one million for notified ecologically sensitive areas, for beginning, LF may be assumed as 2.
The input values for the present Amlamethi project case may be assessed as given below.
i. The pollution index PI is taken as 50 (Orange category) ii. In the absence of any other date of observation / reporting of violation, the date of filing the O.A. in the Hon'ble National Green Tribunal that is 01/10/2021 is taken as the date of reporting of the violation. Similarly in the absence of any rectification / compliance order, the date of issuance of Direction by District Magistrate (DM) South 24 Parganas, for stoppage of work, 24/12/2021 is taken as the date of confirmation. Thus, the number of days of violation N is taken from 01/10/2021 to 24/12/2021 and it works out to 85 days.
iii. R is taken as 100 as the project has been stopped midway after initial construction.
iv. The project is considered as medium as its S value is taken as I. v. LF is taken as 1.5 as the project is situated in a Critically Vulnerable Coastal Area (CVCA) EC= PI x N x R x S x LF = 50 x 85 x 100 x 1 x 1.5 = Rs.6,37,500/-
B. Environmental Compensation imposed by the Hon'ble National Green Tribunal (SZ) in O.A. 49/2019 15 In the paras of 22 and 23 of the order dated 16/12/2020 passed by the Hon'ble National Green Tribunal (SZ) in O.A. No.- 49 of 2019 (SZ), the Hon'ble NGT has observed the following:
22. The dictum laid down in the decision reported in Ganga Goyal Vs. Union of India 2018 (18) SCC 257 as such is not applicable to this fact of the case as in that case the entire project was completed without getting environmental clearance (EC) and other clearances and so the Hon'ble Apex code had fixed. The environmental damages of Rs.100 crores or 10% of the project cost whichever is higher. But in this case, it is only in the preliminary stage and the project cost is only Rs.40 crores.
23. So, considering the circumstances, we feel that taking 0.5% of the project cost and imposing that amount as environmental compensation will be sufficient instead of adopting the compensation fixed by the committee on the basis of the number of days violation alone and that will meet the ends of justice.
The committee has noted that as per the above formula, considering 0.5% of the project cost as Environmental Compensation, in the present Amlamethi project case, the Environmental Compensation works out to be as given below :
Environmental Compensation = 0.5% of the project cost.
The Total Project Cost is Rs.2503.56 lakhs (breakup is given below) a. Landscaping and beautification = Rs.900.9 lakhs b. Construction of Wooden Foot Bridge for connecting the islands = Rs. 700 lakhs.
c. Construction workshed for livelihood activities for SHG @ Rs.44.99 lacs, No. of schemes 20 = Rs.899.8 lakhs. d. Cost of Intermediate Road embankment = Rs.2.86 lakhs EC = 0.5% x Rs. 2503.56 lakhs = Rs.12,51,780/-
Thus, the maximum of Rs. 6,37,500/- and Rs. 12,51,780/-, calculated as above, which is Rs.12,51,780/-, may be considered as Environmental Compensation.
C. Assessment of damage, if any, to Ecologically Sensitive Areas (ESAs) in the project site :
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In the affidavit of the West Bengal Coastal Zone Management Authority, it has been stated that the site falls within CRZ-1A (mangrove and mangrove buffer) and CRZ-1B intertidal zone). The area lies on the waterside of hazard line and within the Critically Vulnerable Coastal Area (CVCA). Thus, the project site lies within Ecologically Sensitive Area. Hence, additional compensation of 10%, in lieu of destruction of Ecologically Sensitive Areas, is considered in the present case.
Hence, Additional Compensation = 10% of Rs. 12,51,780/-
= Rs.1,25,178/-
Thus, Total Compensation = Rs. 12,51,780 + Rs.1,25,178 = Rs.13,76,958/-
The Hon'ble National Green Tribunal in the Order dated 23.02.2022 recorded that the Respondent No. 8, Amlamethi Hill Resort, has wrongly been impleaded in the array of respondents. Instead, the Applicant, Pradhan, Bally-I Gram Panchayat, Satyanarayanpur, Gosaba, South 24 Parganas is to be impleaded.
Thus, the Committee recommends that Rs.13,76,958/- (Rupees Thirteen Lakhs Seventy Six Thousand Nine Hundred and Fifty Eight), may be imposed on Pradhan, Bally - I Gram Panchayat as Environmental Compensation, for carrying out construction work at the site violating the prevailing Coastal Regulation Zone (CRZ) Notifications of the Ministry of Environment, Forest and Climate Change (MoEF&CC).
• Recommendation of remedial measures to restore the area to its original shape The Committee Members visited the site once again on 25th March 2022 alongwith the local experts as suggested by Prof. C.R. Babu, namely, Dr. Krishna Ray and Dr. Sandip Basak, and the District Administration. It was observed that all the artificial dykes enclosing the islands have been removed. Soil and water samples were collected from the site for detailed analysis for preparation of management plan for restoration of the site.
The 4th meeting of the Committee was held on 11/04/2022 at the Conference Room of West Bengal Pollution Control Board, located at Paribesh Bhawan, 10A, Block LA, Sector - III, Bidhannagar, Kolkata - 700 106, for detailed discussion for preparation of the 17 Ecological Restoration Plan. Accordingly, the comprehensive Ecological Restoration Plan has been prepared as follows."
27. Theobservations made by the Committee are extracted herein below:-
"Observations:
Bali-I Gram Panchayat, Amlamethi (18th February 2022) Based on the field observations made by the Committee, the discussions held with District Administration officials and local communities, the following significant observations were made:
1. There were two sites (Site 1 & Site 2) of about < 5 Ha each divided by an embankment (Fig.1) connecting perpendicularly to the main bund on the creek side. A jetty was constructed towards the front side (Creek). Both the sites were representing ecological similarity to the natural remnant mangrove (Fig. 2, 2a & 2b).
2. There were 20 earthen islands in the said site no.1 with RCC/CC lining and 2-3 RCC/CC rings were also constructed along all the islands probably to avoid erosion. We were told that the water surrounding islands was rain water. All the 20 islands were covered by ornamental carpet grass of unknown species and were being irrigated at the time of the visit. There were many ornamental plant species such as Palm, Nerium, Bougainvellea etc. planted on the islands (Fig. 1a). The only one island was visited from the embankment without any support. However, all other islands were inaccessible."
28. The observations of the experts on the basis of their visit to the site on 25.03.2022 is extracted herein below: -
"Observations of the experts on the basis of their visit to the site on 25th March 2022
1. The present site conditions revealed that two land sites of approx. <5 Ha area were found to be separated by an elevated earthen embankment and protected by elevated bund from front side (at present being pitches with bricks from riverfront side).
2. Site 1 and 2 were levelled, no construction material was seen at the site. A depression with some accumulated water was seen.18
3. At site 2, circular land masses, separated by an earthen embankment surrounded by irregular water bodies was observed.
4. The chronological satellite data (Google Earth) were observed to ascertain the ecological history of the sites. The map of 2002 revealed that the sites were mangrove cleared site and construction started since 2019 (Fig. 3, 3a & 3b).
5. Surface Soil (0-15 cm) and water samples were collected from different random points of the said sites as well as the water sample from the riverfront. All the samples were analysed for salinity, pH, organic carbon, phosphate, nitrate-N, ammonia-N by Dr. Krishna Ray at her laboratory at West Bengal State University.
Following Tables showing results of water and silt analysis:
Table (i): Salinity range of the sediments of site 2 is comparatively less (1.4-8.7 dS/m) than that of the site 1 (6.4- 10.8 dS/m) and pH ranging between 6-8.
Sampling points' co-ordinates Sediment Electrical Electrical pH sample no. Conductivity in Conductivity (0-15 cm) mS/cm (dS/m) in PPT Side1 1 2203'29.43"N 88044'17.08"E 2 6.481 3.534 7.74 2203'31.19"N 88044'17.24"E 3 7.298 4.013 7.78 2203'32.53"N 88044'16.31"E 4 7.944 4.395 8.41 2203'31.92"N 88044'14.74"E 5 10.859 6.15 3.09 2203'31.27"N 88044'13.76"E 6 6.351 3.459 7.91 2203'30.78"N 88044'15.52"E 7 8.333 4.626 6.36 2203'30.50"N 88044'12.69"E 8 8.355 4.639 6.45 2203'29.60"N 88044'12.31"E 9 8.122 4.501 7.47 2203'29.47"N 88044'13.93"E 10 7.799 4.309 7.91 2203'29.08"N 88044'15.22"E 1 10.029 5.645 7.02 Side 2 2203'33.56"N 88044'17.67"E 2 1.466 0.735 8.11 2203'34.85"N 88044'16.28"E 3 3.628 1.906 7.01 2203'36.03"N 88044'17.39"E 4 4.264 2.263 7.92 2203'35.33"N 88044'14.50"E 8.723 4.859 6.22 Table (ii): Observed salinity of the water bodies of site 2 was comparatively less (6.5 dS/m) than that of the site 1 (23.36 dS/m). Water sample from riverfront was around 40 dS/m.
Water Electrical Electrical pH
sample conductivity Conductivity
no. in mS/cm in PPT
(dS/m)
Side 1 1
19
23.99 14.4 7.77
2 23.44 14.4 7.75
3 36.12 22.3 7.35
4 36.03 22.3 7.41
Side 2 1 6.511 3.5 7.35
2 6.473 3.5 7.36
River in 1 38.8 25.4 7.95
front
2
39.98 25.5 7.97
Table (iii): Observed nitrate-N was quite higher than usual mangrove habitats (probably due to agricultural run-off or origin of soil). Organic carbon was also high. Soil was found deficient in ammonia-N and plant available P, in fact similar to mangrove habitat.
Sampling points' co-ordinates Sediment Organic Ammonia-N Nitrate-N Plant
sample no. Carbon (%) (NO3-N) (NO3-N) available P
(0-15 cm) (mg/Kg) (mg/Kg) (PO4-P)
(mg/Kg)
Side 1 1
2203'29.43"N 88044'17.08"E 1.0318017 0 0 0
2203'31.19"N 2 1.701805 0.034277 8.801189 1.857729
88044'17.24"E
2203'32.53"N 88044'16.31"E 3 1.477148 0.696863 4.948743 1.371123
2203'31.92"N 88044'14.74"E 4 1.032126 0 20.5993 0.580389
2203'31.27"N 88044'13.76"E 5 2.32819 3.32772 0 0
2203'30.78"N 88044'15.52"E 6 2.267346 1.008669 7.115744 5.38562
2203'30.50"N 88044'12.69"E 7 2.293088 3.659014 24.93331 2.101031
2203'29.60"N 88044'12.31"E 8 2.018508 1.300986 22.52553 3.500023
2203'29.47"N 88044'13.93"E 9 1.997446 1.203547 15.54297 1.12782
2203'29.08"N 88044'15.22"E 10 2.663615 0.6384 3.986629
Side 2 1
2203'33.56"N 88044'17.67"E 1.6355 0.229155 21.08086 5.38562
2203'34.85"N 88044'16.28"E 2 1.764989 0.463009 43.71398 3.864977
2203'36.03"N 88044'17.39"E 3 1.270434 0 23.48864 0.154608
2203'35.33"N 88044'14.50"E 4 1.08673 1.242522 0 7.9403
Table (iv): Other parameters of water.
Water Ammonia-N Nitrate-N Plant
sample (NH4-N) (mg/l) (NO3-N) available
no. (ppm) (mg/l) (ppm) P (PO4-P)
20
(mg/l)
(ppm)
Side 1 1
1.279 0.4776 0.154947
2 0 0
3 2.59 0 0.004579
4 0.397 0
Side 2 1 0 0 0
2 0 0 0.173741
River in 1 0.1 0.397 0.161
front
2 0 0.30 0.129
29. The Report also contains the Action Plan which reads as under: -
"Action Plan:
1. Complete removal of dismantled material and any other solid waste from the site.
2. Existing soil from both the sites may be utilized to strengthening of embankment which will also increase the storage capacity of rain water.
3. Both the sites were already separated from the mudflat with an embankment and normal tidal flushing and associated sediment dynamics essential for mangrove plantations was presumed to be lacking at these sites. Since both the sites were seen having rain water and also sediments of both sites were showing not too high salinity, these sites shall be restored as conservatory/arboretum of low salinity loving mangroves and associate species (IUCN threatened/near threatened categories).Due to further non instrusion of tidal water, the salinity of these sites may be further reduced.
4. Some ideas may also be obtained from the successful camp-
site plantations developed by West Bengal Forest Department at Bonnie camp, Dobanki camp, Lothian Eco camp, Kalash camp etc. at Sundarban Biosphere Reserve where native mangroves species have been restored back 21 Therefore, following mangrove and associate species can be planted to both the sites with the objective to establish conservatory for native mangrove species. • Heritierafomes (Sundari) (locally Critically endangered, globally Endangered) • Phoenix paludosa (Hental, mangvoe date-palm) (Near Threatened) • Nypafruticans (Golpata) (locally rare) • Intsiabijuga (Tree legume, little known timber yielding mangrove associate species) (Near Threatened) • Xylocarpusgranatum (Dhundul) • Xylocarpusmekongensis (Pasur) • Excoecariaagallocha (Gewa) • Avicennia marina (Peyera Bain) • Avicennia officinalis (Karanj Bain) • Brownlowiatersa (Lata Sundari, mangrove associate species of medicinal importance) (Near Threatened) At natural habitats of Sundarbans, all these species are observed to flourish at 3-5 dS/m sediment salinity range. The salinity of both the sites may further be lowered by systematic rain water harvesting. Native grass species such as Paspalumvaginatum, Sporobolusvirginicum, Myriostachiawithiana and mangrove fern Acrostichumaureum, mangrove associate species Acunthusvolubilis may also be planted around the water-bodies which may also help in keeping the sediment salinity at 3-5 dS/m along with rain water harvesting at these site.
5. Two remnant of mangrove vegetation on both the sides of Jetty may also be merged by planting lower intertidal native grass species i.e. Porteresiacoarctata (Dhani) at the mud flat region of riverfront along with plantation of some of the existing native species from both the patches. It will create a protected biological shield for the embankment as well as the neighbouring human settlements.
6. The District Authority may be directed to execute the Ecological Restoration work through the State Forest Department. Necessary expert opinion may be taken form 22 Dr. Faiyaz A. Khudsar, Dr. Krishna Roy and Dr. S.K. Basak as recommended by Prof. C.R. Babu, of Centre for Environmental Management of Degraded Ecosystems (CEMDE), University of Delhi, Delhi-110007.
7. Rainwater harvesting will be an integral component of the proposed restoration work.
8. The site specific cost of restitution may be decided by the executing agency i.e. State Department depending on the site situation."
30. Along with this Report, a large number of photographs have been filed by way of evidence which need not be reproduced hereso as not to burden the judgment.
31. The Chief Secretary, Govt. of West Bengal in his affidavit dated 25.04.2022 has also submitted a reportcontaining photographs showing the site Before Dismantling and After Dismantling.The present status of the site as on 21.04.2022 has also been given which is as under: -
23 24 25
32. Mr. Amitesh Banerjee, learned Senior Counsel further submits that since all the remedial action has been taken for restoring the environment to its original status and Environmental Compensation as well as damage to Ecologically Sensitive Areas having been determinedtherefore, the observations made in the order of the Tribunal dated 23.12.2021 against Perumal Ulaganathan, District Magistrate, South 24 Parganas be deleted.
We accept the submission of the learned Senior Counsel and delete the personal observations made against Mr. Perumal 26 Ulaganathan, District Magistrate as contained in part of paragraph 9 from the words "It is surprising how so much ..................dealing with the situation", part of paragraph 10 from the words "because prime facie .................of the District Magistrate" and also paragraph 12 be deleted.However, having said that we warn the Mr. Perumal Ulaganatha, District Magistrate, South 24 Parganas to be careful in future.
33. So far as recovery of Environmental Compensation and cost ofrestoration of damage caused to Ecologically Sensitive Areas is concerned the same shall be recovered by the State Administration and West Bengal Pollution Control Board in accordance with law.
34. We further direct that the area in question be fully restored back to its original form in accordance with the Action Plan suggested by the Committee and maintained accordingly to ensure the balance of the ecosystem.
35. The District Magistrate, South 24 Parganas, the West Bengal Pollution Control Board and the Forest Department will keep a strict vigil in the area and ensure that such blatant violations do not recur in future.
36. With the aforesaid directions, the Original Application No.92/2021/EZ is disposed of.
37. There shall no order as to costs.
.....................................
B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM July 07, 2022, Original Application No.92/2021/EZ MN 27