National Green Tribunal
Satyanarayana Bolisetty vs Ministry Of Environment Forest And ... on 29 September, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.2 & 3: Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.65 of 2020 (SZ)
With
Original Application No.74 of 2020 (SZ)
IN THE MATTER OF:
Satyanarayana Bolisetty
1-54-10/4, Plot-50, HIG, Sector-I,
M V P Colony,
Vishakhapatnam Urban,
Vishakhapatnam,
Andhra Pradesh - 530 035.
...Applicant(s)
Versus
Union of India
Through the Secretary
Ministry of Environment, Forests and Climate Change
Indira Paryavaran Bhawan,
Jorbagh Road,
New Delhi - 110 003 and Ors.
...Respondent(s)
WITH
D. PAL
S/o S.R. Pal,
Aged about 52 years,
R/o Saikrishna Nagar,
Near Sambhunagar Flyover,
Alcot Gardens, Rajahmundry,
East Godavari District
Andhra Pradesh-533101 and Ors.
...Applicant(s)
Versus
STATE OF ANDRA PRADESH
Through its Chief Secretary,
1st Block, 1st Floor, Interim Government Complex,
AP Secretariat Office,
Velagapudi, Andhra Pradesh and Ors.
...Respondent(s)
Page 1 of 58
O.A. No.65/2020:
For Applicant(s): Mr. Sanjay Upadhyay.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Mrs. Madhuri Donti Reddy for R2 to R6.
O.A. No.74/2020:
For Applicant(s): Mr. Ritwick Dutta.
For Respondent(s): Mrs. Madhuri Donti Reddy for R1 to R4.
Judgment Pronounced on: 29th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. Both the original applications are disposed of with directions vide separate Common Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O. A. No.65/2020 (SZ) O.A. No.74/2020 (SZ) 29th September 2022. Mn.
Page 2 of 58 Item No.2 & 3: Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No.65 of 2020 (SZ)
With
Original Application No.74 of 2020 (SZ)
IN THE MATTER OF:
Satyanarayana Bolisetty
1-54-10/4, Plot-50, HIG, Sector-I,
M V P Colony,
Vishakhapatnam Urban,
Vishakhapatnam,
Andhra Pradesh - 530 035.
...Applicant(s)
Versus
1. Union of India
Through the Secretary
Ministry of Environment, Forests and Climate Change Indira Paryavaran Bhawan, Jorbagh Road, New Delhi - 110 003.
2. State of Andhra Pradesh Through the Chief Secretary Building #1, 1st Floor Interim Government Complex, AP Secretariat Velagapudi, Guntur Andhra Pradesh - 500 022.
3. Andhra Pradesh Forest Department Through the Principal Chief Conservator of Forests and Head of Forest Forces Aranya Bhavan, K.M. Munshi Road, Nagarampalem, Guntur-522 004 Andhra Pradesh.
4. The District Collector, East Godavari District Kd-Collectorate, East Godavari District Andhra Pradesh - 533 001.
5. District Forest Officer, East Godavari District Beside Collector's Bungalow, Madhava Nagar, Kakinada, Andhra Pradesh - 533 003.
Page 3 of 586. Andhra Pradesh Coastal Zone Management Authority Through the Chairman D.No. 33-26-14 D/2, Near Sunrise Hospital, Pushpa Hotel Centre, Chalamvari Street,Kasturibaipet, Vijayawada - 520 010.
7. Kakinada Seaport Ltd.
Through the Chairman & Managing Director 1st Floor, D No:54-14/8-36 Plot No-17, Road No:2 Bharathi Nagar, Vijayawada, Krishna District, Andhra Pradesh - 520 002.
(R7 deleted as per order of the Tribunal dated 30.04.2020) ...Respondent(s) WITH
1. D. PAL S/o S.R. Pal, Aged about 52 years, R/o Saikrishna Nagar, Near Sambhunagar Flyover, Alcot Gardens, Rajahmundry, East Godavari District Andhra Pradesh-533101.
2. TUMMALA KONDAL RAO S/o Veeranna Aged about 65 years R/o drno. 17-2-144, KondalRao street Parloipeta, Kakinada-533001
3. MUGU RAJU S/o Bhulokam Aged about 42 years 16-17-16/c, Jyothula Vari Street Dummulpeta, Kakinada.
4. KASARAPU SIVAJI S/o Mutyalu Aged about 32 years R/o Dr. No. 17/2-163/1-1, Dasannhavari Street Parloipeta, Kakinada-533001 ...Applicant(s) Versus
1. STATE OF ANDRA PRADESH Through its Chief Secretary, 1st Block, 1st Floor, Interim Government Complex, AP Secretariat Office, Velagapudi, Andhra Pradesh.
Page 4 of 582. ANDHRA PRADESH COASTAL ZONE MANAGEMENT AUTHORITY(APCZMA) Through its Member Secretary, D.No. 33-26-14 D/2, Chalamvari Street, Kasturibaipet, Vijayawada, Andhra Pradesh-520 010.
3. ANDHRA PRADESH FOREST DEPARTMENT Through the Principal Chief Conservator of Forest (HOFF), AranyaBhavan, K.M. Munshi Raod, Nagarampalem, Guntur, Andhra Pradesh-522004,
4. COLLECTOR AND DISTRICT MAGISTRATE Rama Rao Peta, Kakinada, East Godavari District, Andhra Pradesh-533 001.
5. MINISTRY OF ENVIRONMENT FOREST AND CLIMATE CHANGE Through the Secretary Indira ParyawaranBhawan Jorbagh New Delhi-110003.
...Respondent(s) O.A. No.65/2020:
For Applicant(s): Mr. Sanjay Upadhyay.
For Respondent(s): Mr. G.M. Syed Nurullah Sheriff for R1.
Mrs. Madhuri Donti Reddy for R2 to R6.
O.A. No.74/2020:
For Applicant(s): Mr. Ritwick Dutta.
For Respondent(s): Mrs. Madhuri Donti Reddy for R1 to R4.
Judgment Reserved on: 12th September 2022.
Judgment Pronounced on: 29th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Page 5 of 58 Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.
COMMON JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member O.A. No.65 of 2020 (SZ):-
1. This Original Application [O.A. No.65 of 2020 (SZ)] was filed by one Satyanarayana Bolisetty alleging destruction of mangroves in Division No.10 and 11 of Dummulapeta, Parloipeta of Kakinada District (then East Godavari District), State of Andhra Pradesh in violation of the CRZ Notification, 2011 and 2019, where this area has been classified as CRZ - I and CRZ - IA respectively.
2. According to the applicant, it will be a deemed forest as has been declared by the Hon‟ble Supreme Court in T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (1997) 2 SCC 267 and the orders of the Hon‟ble Bombay High Court and the National Green Tribunal irrespective of the nomenclature provided in the official records. If it is a deemed forest under the generic sense, then cutting and removal of trees/mangroves from that forest will require permission as per the Forest (Conservation) Act, 1980. No activity is permissible in the protected area under the CRZ Notification and it is also near to Coringa Wildlife Sanctuary. So, cutting and removal of trees/mangroves in that area is in violation of Wildlife (Protection) Act, 1972, CRZ Notification, 2011 and 2019 and the Forest (Conservation) Act, 1980.
3. It is alleged in the application that the State of Andhra Pradesh is doing some illegal destruction of 100 Acres of natural mangroves in Survey Nos.
2004, 1985/3, 1990, 374, 376 and 387 in Dummulapeta, Kakinada Municipal Council, Kakinada District (then East Godavari District) since 14.03.2020, in complete contravention of the Coastal Zone Regulation (CRZ) Notification, 2011 and 2019, and the Environment (Protection) Act, 1986, the Biological Diversity Act, among others, under the guise of the Page 6 of 58 Government Housing scheme of "Pedalandariki Illu" meaning construction of „houses for the poor‟. The illegal felling of ecologically sensitive mangroves is also in close proximity of the Coringa Wildlife Sanctuary thereby endangering the existence of the sanctuary as well in violation of the Wildlife (Protection) Act, 1972. Further, such destruction of mangroves although in violative itself, is also leading to a complete loss of livelihood for the local fisher folks who are entirely dependent on the fisheries industry based on the breeding of fish, shrimps and crabs sheltered by the pristine mangrove covers in the region. The applicant had produced the proposed layout plan showing the residential house plots in the said survey numbers and certain photographs depicting the temporal change in the density of mangroves due to destruction by the State as Annexure -A1 and A1(1) respectively.
4. It is seen from the news reports, the State Government on 14.04.2020 issued an order allocating Rs.3,500 Crore for its flagship programme "Navaratnalu - Pedalandariki Illu", which is irreversibly annihilate the only pristine and unique mangrove in the State, the Godavari Mangroves. Under the said programme, the 2nd respondent/State of Andhra Pradesh intends to provide house-sites to poor people, without having attributed any importance to the ecological value and sensitivity of the site. The said scheme, if allowed to be implemented in its present form, would directly impact around 54,000 families of the traditional fishing community, which depend upon these mangroves for their livelihoods, including protection from naturally occurring phenomenon as Tsunamis.
5. It is further alleged that it is strange that the mangroves are being destroyed despite the fact that the mangroves of this region have been considered nationally important and the Government of Andhra Pradesh in the past has initiated flagship programs to protect mangroves under the nationally acclaimed East Godavari River Estuarine Ecosystem (EGREE) Program which has been implemented along with the United Nations Development Program. The letter written by the Forest Range Officer, Kakinada Range dated 06.11.2019 with regard to the presence of coastal zones, forest land and mangroves in the Kakinada area and also the fact that it was specifically stated in the letter that „only raising and maintenance Page 7 of 58 was carried out by the Department and construction in forest area is not allowed as per the Guidelines in vogue.‟, the copy of the letter so sent to one of the members of the fisher folk community, evidenced by Annexure - A1(2).
6. The applicant is an environment conservationist and activist in Andhra Pradesh and raised several issues for protection of environment and he was now raising the issue for protection of fishermen community in that area. As per the CRZ Notification, 2011 and 2019, the area covered by mangroves will fall under CRZ- I and no activity will be possible in that area and it is highly necessary to protect the mangroves which plays a great role in protecting the marine ecosystem, apart from acting as protecting the land from natural calamities like cyclone and other disasters.
7. Further, according to the applicant, this will fall under the extended meaning of forest as evolved by the Hon‟ble Apex Court in T.N. Godavarman‟s case (cited supra). The Hon‟ble High Court of Bombay also considered the impact of protection of mangroves, apart from the Hon‟ble Apex Court and this Tribunal considering this aspect. Certain representations were made to the authorities by the fisher folk community to the District Forest Officer, Kakinada, Andhra Pradesh, evidenced by Annexure - A1(3).
8. The Annexure - A2, Photographs produced and the newspaper reports will go to show the nature of damage that has been caused to that area on account of their activity. Several representations have been sent by the stakeholders including the applicant and others against the massive destruction of mangroves in the region and the copies of the representations sent by the applicant as well as one E.A.S. Sarma, I.A.S. (Retrd.) Former Secretary, Government of India are produced as Annexure
- A3 (Series).
9. So, the applicant filed this application, seeking the following reliefs:-
"1. Direct the Respondent No.2, State of Andhra Pradesh to immediately stop the destruction of mangroves;
2. Direct the Respondent No.6, Andhra Pradesh CZMA to ensure that no further destruction of mangroves takes place;Page 8 of 58
3. Direct the Respondent No.2, State of Andhra Pradesh to restore and rehabilitate the mangrove environment already destroyed;
4. Impose a huge exemplary environmental compensation charge for the mangroves destroyed accordance with past precedents of this Hon'ble Tribunal
5. Pass any other such order(s)/direction(s) as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the present matter."
10. Vide Order dated 23.04.2020, this Tribunal considered the submissions made by the learned counsel appearing for the State of Andhra Pradesh regarding the pending of the writ petition before the Hon‟ble High Court of Andhra Pradesh as W.P. No.8221 of 2020 in respect of the same subject matter and this Tribunal adjourned the matter to ascertain the nature of writ petition filed and reliefs claimed and also the interim order (if any) to be passed in that matter.
11. The matter was again taken up on 30.04.2020 and on that day, this Tribunal had allowed the I.A. No.29 of 2020 (SZ) filed by the applicant for amendment to the Original Application in Para (1), (4), (6) & (11) and this Tribunal also considered the submissions made by the learned counsel and orders passed by the Hon‟ble High Court of Andhra Pradesh viz., Status Quo order and in that they were only challenging the scheme and this Tribunal also found that there is another writ petition filed by beneficiaries under the scheme seeking the Government to grant patta to them as W.P. No.105 of 2020. Since status quo order has been passed by the Hon‟ble High Court of Andhra Pradesh, this Tribunal did not pass any further interim order in this case. Since the prayer was to restore the damage caused to the environment and seeking environmental compensation, this Tribunal felt that the pendency of the matter before the Hon‟ble High Court will not be a bar for this Tribunal to consider the reliefs claimed in this application and to that extent, the application was admitted.
12. In order to ascertain the genuineness of the allegations made in the application, this Tribunal appointed a Joint Committee comprising of (i) Senior Officer from the Regional Office, MoEF&CC, Chennai, (ii) Senior Officer from Andhra Pradesh Coastal Zone Management Authority, (iii) Senior Officer nominated by the Principal Chief Conservator of Forest and Head of Forest Forces/Chief Wildlife Warden, (iv) District Collector, East Godavari District (Presently Kakinada District) and (v) District Forest Page 9 of 58 Officer, East Godavari District, Kakinada to inspect the area in question and also directed them to consider the following aspects:-
a. Whether the area in question was a mangrove forest subject to the provisions of the Coastal Regulation Zone Notifications, 2011 and 2019 requiring any clearance for any project;
b. Whether any clearance from MoEF&CC or Forest Department is required under the Forest (Conservation) Act, 1980;
c. Whether any permission from the Chief Wildlife Warden is required for commissioning the project, as according to the applicant it is adjacent to Coringa Wildlife Sanctuary.
d. Ascertain the anterior position of the area in question by verifying the forest cover map maintained by the Forest Survey of India prepared through satellite images for a period of six months prior to the filing of the application e. If any violation is found, they were directed to mention the nature of violation and also the nature of damage caused to environment and assess the environmental compensation required for restoration of damage caused to environment, including restoration of mangroves in that area.
f. Verify the satellite image of forest cover prepared by the Forest Survey of India for a period of six months prior to the filing of the application and compare the same with the present condition in order to ascertain the extent of damage, if any, caused either to forest cover or mangroves and assess environmental compensation.
13. The Regional Office, MoEF&CC, Chennai was designated as the nodal agency for coordination and also for providing necessary logistic for this purpose.
14. This Tribunal also observed that construction (if any) done will be subject to the result of this application. If ultimately it is found by the Joint Committee that there is any violation of any of the environmental laws by the State Government and the officers concerned who were responsible for the destruction, they are liable for the consequences, including Page 10 of 58 demolition of the building and payment of environmental compensation apart from restoration of damage caused to the mangroves.
15. The 5th respondent in O.A. No.65 of 2020 (SZ) has filed the counter contending that the construction of housing colony for the poor under the scheme "Pedalandariki Illu" and permission for such constructions and others, if any, does not pertain to the Forest Department, especially the 5th respondent. The land situated in Kakinada Urban Mandal which is the subject matter in the application is not a notified forest land and it is not under direct administrative control of the Forest Department. So, no interference of the Forest Department was sought for and no activity has been taken by the 5th respondent during the period as mentioned by the applicant. The Forest Department never encouraged the cutting of mangrove trees as contended by the applicant and has always been protecting and conserving the forest area including mangroves in reserve / protected forest areas under various schemes like APDRP and UNDP, etc. For the last 5 years, mangroves have been raised in an extent of 159.00 Ha. and 1,00,000 Nos. of mangrove seedlings have been raised in the division. The Forest Range Officer, Kakinada vide Rc. No.01/2019, dated 27.04.2020 has reported that the land which was mentioned in the application situated in Dummulapeta, Kakinada Urban Mandal and it is not a notified reserve / protected forest land and also it is not in the direct administrative control of the Forest Department. The allotment of the said lands to the poor and conversion as residential plots is not within the purview of the Forest Department. As reported by the Divisional Forest Officer, Wildlife Management, Rajahmundry, the said area is situated at a distance of 02.76 kms. from the boundary of Coringa Wildlife Sanctuary. On the basis of the representation received from the applicant and others, the same was entrusted to the Forest Range Officer, Kakinada to inquire and report. The Forest Ranger Officer, Kakinada has reported that the said representation was forwarded to the Tahsildar, Kakinada (Rural) vide FRO, Kakinada Rc.No.01/2018 dated 04.04.2020 for taking necessary action at their end, as the subject matter pertains to the Revenue Department and the same was acknowledged by the Tahsildar, Kakinada Rural on 07.04.2020. The mangrove forest which are in the notified Page 11 of 58 reserved or protected forest under the control of the Forest Department, no destruction of mangroves were noticed recently. They have sent their replies to the representation received and the Forest Department never encouraged cutting of mangroves and always protecting and conserving the forest area, including mangroves in reserve/protected area implementing various schemes. So, they prayed for accepting their contentions and passing appropriate orders.
16. The 4th respondent filed counter affidavit contending that the application is not maintainable. The materials available on record and also the state of affairs on ground on the issue which relates to utilization of Government land in Kakinada City for the purpose of allotment of house sites and the consequential development of Infrastructure meant for the social and comfort living of the people. The Government of India has launched Pradhan Mantri Awas Yojana (Urban) Mission on 25th June 2015 which intends to provide housing for all in urban areas by the year 2022. The Government of Andhra Pradesh aimed to implement this mission under the flagship program of "Navaratnalu - Pedalandarak Illu" program so as to distribute 25 lakhs house site pattas to all the eligible poor beneficiaries (weaker sections) residing in Rural and urban areas of the State in saturation mode irrespective of caste, creed or religion. Accordingly, for this programme, the Government issued G.O. Ms. No.5l0, Revenue (Lands-l) Department, dated 30.12.2019 instructing to utilize the Government lands which were alienated in favour of private individuals/ private organizations /Government organisations/ Government Departments/ public sector undertakings/ State Government Corporations, which were not utilized for the intended purpose or violated the conditions of alienation etc., besides the lands acquired by various departments for any public purpose but not put into use for the said purpose. The Government in their G.O. Ms. No.57, Revenue (Assn.I) Department, dated 16.02.2015 has authorized the District Collectors to resume the unutilized Government lands on the grounds of violation of conditions or non-utilization of the allotted land which were earlier alienated to various departments / private individuals. The Government of India has declared the Kakinada town as smart city. The population of Page 12 of 58 Kakinada town is around 4 lakhs. There are so many poor people living without shelters/houses. After comprehensive enquiry and verification has been done to identify eligible beneficiaries (weaker sections) for sanction of house sites, nearly 31,505 eligible beneficiaries in Kakinada urban Mandal have been identified for this purpose. A detailed inventory on availability of Government lands, unutilized vacant departmental lands from all the sources has been made and land audit has been conducted with all departments to reconcile the stage of these lands. As the surroundings of the Kakinada are mostly urbanized, it is very challenging to acquire huge extent of lands. It is also not affordable to go for land acquisition, as the rates in the surroundings are very high and it is not advisable to go for acquisition of land in huge extents in cities/towns based on certain aspects. On the representations of the public representatives, the District and Divisional level officers have identified and found that there is a land measuring Ac.116.81 cents in T.S. No.376 (part), 37511, l985 (part) and 2004 (part) etc., of Suryaraopeta Village, Kakinada Urban Mandal of Port Department which is kept vacant and unutilized since long time. As per the Town survey Field Register (TSFR), the above lands are classified as Ayan-Poramboke and during the year 1978, these lands were transferred to Port Department for expansion of Kakinada port and port-based industries. The Port Department has not taken any action to develop these lands since 1978-1979. The proposed lands are also very nearer to the developed town. So, the revenue authorities have identified these lands for providing house sites to the eligible beneficiaries under "Navaratnalu Pedalankariki Illu" scheme, as there is no sufficient Government land in the vicinity to cater the need of the beneficiaries. It was mainly stated in the application that the action of the respondents in deforesting the Mangrove Forest and development of lands in survey No.374, 376, etc., of Dummulapeta, Kakinada Urban Mandal for providing house sites under "Navaratnalu Pedalankariki Illu"
scheme is in contrary to the guidelines issued for containment of COVID- 19 epidemic and contrary to Coastal Regulation Zone Notification, 2011 and requested the Tribunal to direct the respondents to stop the activities including deforestation of Mangroves and to protect ecological balance and marine life and families depended on them. The land in question does Page 13 of 58 not belong to Forest Department and so the question of deforesting of mangrove forest does not arise. The Port Department is also not utilizing the land for its bonafide purpose and the port authorities are allotting these vacant lands to the private individuals on lease basis. As per the revenue records, i.e. Town Survey Field Register (TSFR), the lands are classified as Ayan-poramboke belonging to the Port Department. Developing the subject lands into housing colony, not at all affects the livelihood of the fishermen and there is a canal existing for the fishermen to have ingress and egress into the sea. Most of the subject land is located adjacent to the developing town area and are highly susceptible for encroachments and very difficult to protect. It is also becoming burden to the Government/Port Department to protect these lands from unauthorized encroachments. The land is located in Kakinada Urban Mandal and very much away from the Sea Shore and the Coringa Wildlife Sanctuary which is situated in Tallarew Mandal. Similarly the Mangroves forest is also located in Tallarevu Mandal only and perhaps, the applicant must not have known these facts and must have on assumptions only, filed the present application, alleging endangering the existence of the wildlife Sanctuary and violation of Wildlife (Protection) Act, 1972 etc. As the Government has announced the launch date of distribution of house sites to weaker sections on Ugadi i.e. 25th March, the development works in the subject lands were in progress upto 24th March i.e. announcement of lockdown with effect from 25th March 2020. The Port Department is also not utilizing the land for its bonafide purpose and the port authorities are allotting these vacant lands to the private individuals on lease basis. They denied the allegation of ecological destruction caused on account of their act and affecting the fishermen community. The A.P. Maritime Board, Kakinada informed that 183 number of allotments were given to the various agencies such as M/s. GMR, since 1980 and also Housing programme has been taken-up in the said lands by the Housing Department (APTIDCO). The port based industries have been established and the development of the area has been done right upto the shoreline which includes office buildings, godowns, wharfs and industrial establishments. The Municipal Corporation, Kakinada has also provided water facility for the said establishments and there is a build-up area of Page 14 of 58 50% and they have no dispute regarding the importance of mangroves and its impact on environment. None of the observations made in the decision relied on the applicant are not applicable to the facts of this case. Since the land is not notified /protected forest, the same will not come under the purview of the Forest (Conservation) Act, 1980 which was evidenced from the letter given by the DFO, Wildlife Management, Rajahmundry, in which, they have mentioned that the Coringa Wildlife Sanctuary is situated 2.76 Km away from the area. This area is covered by various constructions and developments. So, the allegation that this area is feasible breeding ground for fishes etc. is not correct, on the ground, there is no mangrove forest in that land as alleged by the applicant. Further, a creek of 120 feet width is existing on ground and without disturbing the creek, a tentative layout as per G.O. Ms. No.94 dated 31.01.2020 was formed, without touching /disturbing the creek for allotment of house sites to the urban poor under "Navaratnalu Pedalankariki Illu" scheme. This is being done on the basis of the sanctioned master plan of Kakinada Municipal Corporation, as the entire land is classified as port land and not a forest land as alleged by the applicant. They prayed for granting leave for filing further affidavit if any required.
17. As directed by this Tribunal, the 6th respondent filed counter affidavit contending that the MoEF&CC, Government of India, New Delhi have approved the CZMP of Andhra Pradesh on 28.02.2019 as per the CRZ Notification, 2011. The CRZ Notification, 2011 was amended by the MoEF&CC, New Delhi vide G.S.R 37 (E) dated 18.01.2019, with a condition to consider the amendments be applied only after updating the Coastal Zone Management Plan (CZMP). Until the revision of CZMP, the appraisal of the projects shall be taken up as per the provisions of the CRZ Notification, 2011 only. The Government of Andhra Pradesh has assigned the updating of CZMPs as per CRZ Notification, 2019 to M/s. National Center for Sustainable Coastal Management (NCSCM), Chennai, which is an authorized agency approved by the Government of India and it is in progress. The Andhra Pradesh Coastal Zone Management Authority (APCZMA) appraising the projects / activities / building proposals requires CRZ Clearance under the provisions of the Coastal Regulation Page 15 of 58 Zone (CZR) Notification, 2011 only. For Revision of Coastal Zone Management Plans, paragraph (V) of the CRZ Notification, 2011 states that "1. Whenever there is a doubt the concerned State or Union territory Coastal Zone Management Authority shall refer the matter to the National Center for Sustainable Coastal Management who shall verify the CZMP based on latest satellite imagery and ground truthing. 2. The rectified map would be submitted to MoEF for its record." The District Collector, East Godavari District (presently Kakinada District) submitted a letter to APCZMA on 05.06.2020 (Annexure II) for CRZ Clearance for development of site to issue housing pattas to the urban poor section under Navaratnalu Pedalandariki Illu Scheme at TS Nos. 2004, 1985/3, 1990, 387, 376P and 374, Kakinada, East Godavari Dist, Andhra Pradesh, as the Port Land allotted to an extent of 116.82 Acres (47.27 Ha.) to Kakinada Municipal Corporation. A letter was addressed to the applicant by APCZMA on 02.07.2020 evidenced by Annexure - III requesting to submit the complete application as per the paragraph 4.2 (i) of CRZ Notification, 2011. The State of Andhra Pradesh submitted the proposal along with documents on 06.04.2021, evidenced by Annexure - IV and the application was rejected vide letter dated 23.04.2021, evidenced by Annexure - V as the proposed activity falls in CRZ - A and CRZ - 1B and is not permissible as per CRZ Notification, 2011. A letter dated 01.05.2021 & 26.05.2021, evidenced by Annexure - VI and requested to APCZMA to consider their proposal for conversion of land use from CRZ-IA & CRZ-IB to CRZ-II, in view of the surrounding developments on all sides of the proposed site i.e. Port Department Buildings, Godowns, Godowns in the leased Port side, existing Housing Colony consisting of 2720 houses on western side, existing Railway Track, existing drain network, existing drain network, existing container freight stations, existing 100 feet wide ADB road and etc., as there is provision for Revision of Coastal Zone Management Plans, paragraph (V) of ANNEXURE - I of CRZ Notification, 2011. The proposal was placed before the APCZMA meeting held on 02.06.2021. After detailed discussions, the Authority noted that Court cases were filed against this project. The committee decided to wait till the orders of the Tribunal and the same was informed to the applicant vide letter dated 18.06.2021, evidenced by Annexure - VII. As far the recommendations of CRZ the monitoring agency to monitor the compliance with the terms and conditions of the Page 16 of 58 CRZ clearance granted by SIEAA is the Andhra Pradesh Pollution Control Board as per the G.O. Ms. No.120 dated 01.11.2018. They prayed for accepting their contentions and passing appropriate orders.
O.A. No.74 of 2020 (SZ):-
18. This Original Application [O.A. No.74 of 2020 (SZ)] was filed by a group of persons who are supposed to be a resident of that area belonging to the fishermen community and engaged in fishing activities for their livelihood.
19. The 1st applicant is a member of the Democratic Fishers Workers Forum of Andhra Pradesh. They also raised similar issues raised by the applicant in O.A. No.65 of 2020 (SZ) regarding the nature of importance of mangroves, conservation of which is the necessity of protecting the marine environment and damage caused to the mangrove patch in the disputed area on account of the reclamation activities undertaken by the State of Andhra Pradesh for the purpose of providing land for landless for construction of houses. They also produced certain articles based on research conducted by some associations titled as "Sea-level rise and coastal vulnerability: An assessment of Andhra Pradesh Coast, India through remote sensing and GIS", evidenced by Annexure - A1 and another research paper titled as "A Systematic Review of Coastal Vulnerability Assessment Studies along Andhra Pradesh India: A Critical Evaluation of Data Gathering, Risk Levels and Mitigations Strategies", evidenced by Annexure - A2. A map showing the area likely to be inundated in the next 20 - 30 years along the Kakinada Coast on account of destruction of marine ecology, evidenced by Annexure - A3. To establish the claim of the applicants regarding the existence of mangroves in that area, the impact of destruction of mangroves on coastal ecosystem and impact on marine life, apart from indirectly affecting the livelihood of the fishermen community. They also mentioned in the application that on account of the proposed project, Dummulapeta, Parlovpeta, Yetimoga, Kotta Kakinada, Fishing Harbourpeta, Jagannaickpur and Old Bus stand peta in Kakinada Urban and U. Kothappali Mandal (Uppada) in Kakinada Rural will be affected.
They also mentioned about the dependability and impact of existence of Page 17 of 58 mangrove and destruction of mangrove forest respectively in detail. They have produced the Coastal Zone Management Plan prepared by the State of Andhra Pradesh in respect of the area in question to establish that the area where the activities are being undertaken falls under CRZ-IA of the CRZ Notification, evidenced by Annexure - A4. They also alleged that the close proximity of Coringa Wildlife Sanctuary was declared as critically vulnerable coastal area by the MoEF&CC under Para (3) of the CRZ Notification, 2019 and they have produced the representations submitted by them as Annexure - A5 and photographs showing the status of felling and clearing the mangroves as Annexure - A6 and latest satellite images showing the mangrove area which has been cleared as Annexure - A4.
20. According to the applicants, the mangrove forest will be deemed forest on the basis of the principles of forest as evolved by the Hon‟ble Apex Court in T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (1997) 2 SCC 267. The applicants also relied on the dictum laid down in S. Jagannath Vs. Union of India & Ors. (1997) 2 SCC 87, Krishnadevi Malchand Kamathia & Ors. Vs. Bombay Environmental Action Group & Ors. (2011) 3 SCC 363 and also another decision of the Hon‟ble Bombay High Court and M.C. Mehta (Badkhal and Surajkund Lakes Matter) Vs. Union of India (1997) 3 SCC 713 for the purpose of projecting the importance of the mangroves and the impact due to destruction on marine ecology and marine livelihood. They also relied on the decision reported in Ramdas Janardan Koli & Ors. Vs. Secretary, MoEF&CC & Ors. (O.A. 19 of 2013 [WZ]) for the purpose of applying the „Precautionary Principle‟ and „Polluter Pays‟ principle for imposing compensation for the damage caused to the environment.
21. Since no action was taken from the side of the authorities and since they were proceeding with the matter despite representations made, the applicants was compelled to file this application seeking the following reliefs:-
"(i) Direct the Respondents to stop felling / clearing of mangroves as well as reclamation activities in the area in question.
(ii) Direct that action be initiated against those who started the felling and construction in violation of the CRZ Notification.Page 18 of 58
(iii) Direct that the entire area be restored to its original condition by applying the polluter pay principle.
(iv) Direct that the restoration should be done under the supervision of an expert committee comprising of national level institution which has expertise on restoration of ecology.
(v) Direct for payment of compensation to the fisherfolk who have suffered terrible losses in terms of their livelihoods due to the clearing of mangroves und reclamation of creek.
(vi) Direct for an assessment of coastal vulnerability of the Andhra Pradesh Coast and that no project should be permitted until such an exercise is undertaken by a national level institution which has expertise in this regard and the same be placed before this Hon'ble Tribunal in a time bound manner.
(vii) Pass any other orders as this Hon‟ble Tribunal may deem fit in facts and circumstances of the present case."
22. Vide Order dated 24.03.2020, while admitting the matter, this Tribunal had directed the Joint Committee appointed by this Tribunal in O.A. No.65 of 2020 (SZ) to consider the issue involved in this case as well and posted the case along with O.A. No.65 of 2020 (SZ) for joint consideration.
23. The 2nd respondent filed counter affidavit in O.A. No.74 of 2020 also contending that the CZMP Map in respect of 2011 notification was approved by the Ministry on 28.02.2019 as per the CRZ Notification, 2011. The CRZ Notification, 2019 will apply only after the CZMP of 2019 is prepared and until the revision of CRZ, the appraisal of the project shall be taken up as per the provisions of the CRZ Notification, 2011 only. The preparation of CZMP for the State of Andhra Pradesh was entrusted to National Centre for Sustainable Coastal Management, Chennai and it is under process. The SCZMA is considering the projects, activities and building proposals requiring CRZ Clearance under the provisions of the CRZ Notification, 2011 only and the enforcement of the recommendation of the CRZ and in monitoring of the same was granted by the SEIAA and DEIAA is the Andhra Pradesh Pollution Control Board as per G.O. Ms. No.120 dated 01.11.2018. They have not received the application seeking CRZ Clearance and however, as per the CRZ Notification, the project is impermissible, if it falls in CRZ - IA as the area is ecologically sensitive. So, they prayed for accepting their contentions and passing appropriate orders.
Page 19 of 5824. The 4th respondent filed counter affidavit more or less raising the same contention raised in O.A. No.65 of 2020 (SZ), as such we are not repeating the same. They also prayed for accepting their contentions and passing appropriate orders.
25. Pursuant to the direction of the Tribunal, the Joint Committee has filed the report dated Nil, e-filed on 28.02.2021, received on 17.03.2021 was considered by this Tribunal vide Order dated 18.03.2021 and extracted in Para (2) of the order which reads as follows:-
"Joint Committee Report on O.A. NO. 65 and 74 of 2020(SZ) filed before the Hon‟ble National Green Tribunal, Southern Zone, Chennai.
1. Introduction Vide order dated 30.04.2020 in O.A. No. 65 of 2020, the Hon‟ble NGT (SZ) has constituted a joint committee comprising of (1) Senior Officer from the Regional Office of MoEF&CC, Chennai (2) Senior Officer from Andhra Pradesh Coastal Zone Management Authority (3) Senior Officer nominated by the Principal Chief Conservator of Forest and Head of Forest Forces/Chief Wildlife Warden (4) District Collector, East Govdavari District and (5) District Forest Officer, East Godavari District, Kakinada to go into the question as to whether the area in question was a mangrove forest subject to the provisions of Coastal Regulation Zone Notifications 2011 and 2019 requiring any clearance for any project, whether any clearance from MoEF & CC or Forest Department is required under the Forest Conservation Act, 1980 and whether permission from the Chief Wildlife Warden is required for commissioning the project as according to the applicant it is adjacent to coringa Wildlife Sanctuary. In order to ascertain the anterior position of the area in question, the committee is directed to verify the forest cover map maintained by the Forest Survey of India prepared through satellite images for a period of six months prior to the filing of the application and if any violation is found they are directed to mention the nature of violation and also the nature of damage caused to environment and assess the environmental compensation required for restoration of damage causd to environment, including restoration of mangroves in that area. The committee shall verify the satellite image of forest cover prepared by the Forest Survey of India for a period of six months prior to the filing of the application and compare the same with the present condition in order to ascertain the extent of damage, if any caused either to forest cover or mangroves and assess environmental compensation.(Copy of the Order dated 30.04.2020 in O.A. No. 65 of 2020 is at Annexure- I). Thereafter vide order dated 29.05.2020 in O.A. No. 74 of 2020, the Hon‟ble NGT (SZ) has directed the same committee to submit a consolidated report in both cases. (Copy of the order dated 29.05.2020 in O.A. No. 74 of 2020 is at annexure-Ii) As per the above directions of the Hon‟ble NGT, Chennai, a joint committee was formed duly comprising of the following officers:
(i)
(ii) Dr. C. Palpandi, Scientist-C from Ministry of Environment, Forests andClimate Change, Chennai
(iii) Dr. K. Prijilal, Research Officer, from Ministry of Environment, Forestand Climate Change, Chennai
(iv) Shri D. Muralidhar Reddy, IAS, District Collector, East GodavariDistict
(v) N. Nageshwara Rao, IFS, Conservator of Forrest, Rajahmundry
(vi) Shri B. Sunil Kumar Reddy, IFS, District Forest Officer, East GodavariDistrict
(vii) Shri A. Ramaro Naid, Environmental Engineer, APCZMA, Kakinanda.
Accordingly, the Joint Committee has inspected the site along with thepetitioners as well as respondents on 10.12.2020.
2. Observations of the Joint Committee.
(i) During the visit the District Administration presented the reasons for selecting the specific site for housing for poor "Peddalandarik Illu"program, which is at annexure-III
(ii) The area is question i.e. the proposed housing site is about 2.923 km awa from the Coringa Wild Life Sanctuary and is about 2 km distance from Kumbabhishekam Fishing Page 20 of 58 Harbour.
(iii) During the visit, it was observed that the land was levelled with additional soil/gravel taken from outside the area. Which has changed the natural texture of mud as seen in the photo taken during the site visit (annexure-IV)
(iv) It was also observed that mangroves and other trees such as Prosopis plant were started to regenerate at some locations, which indicates that earlier these species may be there.
(v) It is also noticed that due to levelling/landfill the flow of the stream has been obstructed. Due to this mangroves and other trees got damaged in that location. As requested by the Joint Committee the district administration has agreed to remove the obstruction,
(vi) At present no construction was started in the proposed site except levelling.
(vii) Several Industries like Concor India Ltd. Gujarat State Petroleum Corporation Ltd, Indian Coastal Guard and APTIDCO Housing Project are adjoining to this Dummulapeta proposed Housing site.
Ascertain the anterior position of the area in question with respect to existence of mangroves by analyzing satellite imagery obtained from Forest Survey of India for a period of 6 months prior to the filing of the application and compare with present conditions and ascertain the extent of damage if any and assess environmental compensation if required.
As per the recent Forest Survey of Indi Satellite Imagery (available datacollected and updated during 2017-2019). Forest cover map and forest typemap along with the distance analysis map were taken and is at annexure-V With respect to Forest Cover Map, the area in question falls under Nonforest and Open forest (All lands with tree cover including mangrove cover0of canopy density between 10% to 40%) as per the recent Forest Survey of India Satellite Imagery the area in question falls under Non Forest. Thearea in question is 2.92 km away from the Coringa Wildlife Sanctuary asper GIS Based Decision Support System For Comparing the present condition, the Committee used the Google earth image dated 14.02.2020 with 28.10.2019 since data in FSI satellite image was updated during 2017-2019 only and it found that some destruction were occurred in the green cover. The comparative map highlighted with Yellow Square is at annexure-VI. The historical map from 27.05.2005 to till date is also reveals that there were some green patches was there as evident from annexure-VII.
Whether the area in question was a mangrove forest subject to the provisions of Coastal Regulation Zone (CRZ) Notification 2011 and 2019 requiring any clearance for any project As per the CRZ,Map 2011, the area in question is in CRZ-IA. The CRZ map- 2011 is annexure-VIII As per CRZ Notification 2011, CRZ-IA areas are ecologically sensitive and the geomorphologic features which play a role in the maintaining the integrity of the coast.
(a) mangroves, in case mangrove area is more than 1000sq mts. A buffer of 50 meters along the mangroves shall be provided. (b) Corals and coral reefs and associated biodiversity; (C) Sand Dunes; (d) Mudflats which are biologically activities; ((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.
As per CRZ notification 2011, no new construction shall be permitted in CRZ-I except the following:
(a) Project relating to Department of Atomic Energy; (b) pipelines conveying systems including transmission lines;(c) facilities that are essential for activities permissible under CRZ-I;(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian meteorological Department; (e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL ; (f) Development of green field airport already approved at only Navi Mumbai.
This district administration informed that they have initiated the process of change in the CRZ category of the said land from CRZIA to CRZ II Page 21 of 58 Whether any clearance from MoEF&CC or Forest Department is required under the Forest Conservation Act, 1980.
As per EIA Notification 2006, Townships and Area Development projects covering an area of greater than 50 ha will come under category B projects and required Environmental Clearance from SEIAA. During the site inspection the joint collector/member to the committee informed that the area of this project is 47.275 ha only. During the site inspection the District Forest Officer/member to the committee informed that the land is not a Notified Forest Land as per the record. The status of the land as per revenue records is Ayan Porambokhu.
As per the CRZ map, 2011 the area in question is in CRZIA, CRZ clearance was required but townships and area development projects are not permissible in CRZIA area.
Whether permission from the Chief Wildlife Warden is required for commissioning the project as according to the applicant it is adjacent to Coringa Wildlife Sanctuary.
According to EIA notification 2006, the list of projects or activities requiring prior environmental clearance is given in Sl. No. 8(b)- Townships and Areas developing programme needs prior clearance if it covers an area more than 50 ha. and or built-up area 150000sqmts. But, the area in question involves only 116 acres, thus may not required Environmental Clearance. As per the clarification given in File NO.6-60/2020 WL Part (1) of GOI, MoEF&CC (wild life division). Dated I6.07.2020, for projects not requiring EC clearance, Wildlife clearance may not be insisted. Therefore no wildlife clearance is required for this project.
3. Environmental Compensation As per the Forest Cover Map, the area in question falls under Non Forest Land Open Forest (ALL lands with tree cover (including mangrove cover) of canopy density between 10% and 40%). Therefore, the Committee was not able to access the exact density of Mangrove prevailed there. Out of 116 Acres, the work has been taken up on 58 acres. As per the Committee‟s analysis mangroves cover up to an extent of 30% of the filled up area may have been affected. In view of this, the Committee is recommending that the district administration may take up mangrove plantation in alternate land for an extent of equivalent to the affected area adjacet to Coringa Wildlife Sanctuary.
4. Conclusion As per the CRZ, Map 2011 the area in question is in CRZ-IA. Townships and Area Development projects are not permissible in CRZ-IA area. The district administration mentioned during the field visit that there is a proposal to change the CRZ category of the said land from CRZ IA to CRZ II. The district administration should not proceed with further development of the township in the said area till the necessary permissions from the competent authorities are obtained"
26. Thereafter, this Tribunal had passed the following order:-
"4. It is also mentioned in the report that there is no work going on at present at the site and Learned Counsel appearing for the State respondents also submitted that by virtue of the status-quo order passed by the Hon‟ble High Court of Andhra Pradesh which is enforce, no work is being carried out in that area. However, considering the circumstances we feel some more time can be granted to the parties to file the objections to the Committee report and also complete the pleading so that the matter can be heard in detail on that date. Since the Committee as prima-facie found that there exists mangroves and there was destruction but they have not assessed the environmental compensation but only observed that the Government can be directed to take remedial measures for re- rejuvenation of mangroves and other trees in that area considering the eco-sensitiveness of that area, we feel that that alone is not sufficient. Considering the nature of damage alleged to have committed, they must quantify the damage caused to the environment taking into account the amount required for re-rejuvenation of the mangroves and loss of green cover and restoration of the same in that area to protect the environment. So, the Committee is directed to assess the environmental compensation as well and liability etc can be considered by this Tribunal at the time when the main matter will be considered. The Committee is directed to submit further report assessing the environmental compensation for the loss that has been caused on account of alleged destruction of the green cover including the mangroves taking into account the amount required for restoration of the Page 22 of 58 damage to the environment and submit further report on or before 26.04.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF alongwith necessary hardcopies to be produced as per Rules.
5. The Committee is also directed to consider the vulnerability study of these areas as has been sought to be assessed by the applicant in O.A. No. 74 of 2020 while submitting the further report. The committee is at liberty to hire the experts, if any, required for this purpose."
27. The applicants filed their objections to the Joint Committee report alleging that though they found that there are violations of CRZ Notification, they have not assessed any compensation. But they have only calculated the cost of restoration alone which is also meagre. Further, they have not applied the principle laid down in Indian Council for Enviro-Legal Action Vs. Union of India & Ors. (1996) 5 SCC 281, Ansari Kannoth Vs. State of Kerala & Ors. (2011) 1 KLT 1043, Kerala State Coastal Zone Management Authority Vs. State of Kerala, Maradu Municipality & Ors. (2019) 7 SCC 248, Ratheesh K.R. Vs. State of Kerala 2013 SCC Online Ker 14359 = (2013) 3 KLT 840, Piedade Filomena Gonsalves Vs. State of Goa (2004) 3 SCC 445 and Vaamika Island (Green Lagoon Resort) Vs. Union of India (2013) 8 SCC 760, wherein the Hon‟ble Courts have categorically held that violators will have to be proceeded against in accordance with law, apart from demolition of the illegal construction, environmental compensation also has to be imposed, whenever constructions or activities made in CRZ - I in violation of the CRZ Notification and it should not be likely taken by the authorities. They wanted an independent agency to be appointed having expertise on mangrove organism and compensation also will have to be fixed on the basis of the principle evolved by the CPCB for past violation. They also produced certain articles in respect of valuing the role of mangroves in storm damage reduction in coastal area of Odisha, mangrove management for climate adaptation and sustainable development in coastal zones, a journal by Jeffrey Chow and some other journals in support of their case.
28. The Joint Committee has filed the further report dated Nil, e-filed on 11.08.2021 and extracted in Para (2) of the order dated 18.01.2022 which reads as follows:-
Page 23 of 58 Page 24 of 5829. The applicant filed their objection to the second Joint Committee report, wherein they have mentioned that the compensation assessed by the Joint Committee is not proper. They have not taken into account the importance of the impact of mangroves while considering the destruction caused. They have only taken the carbon credit value for the purpose of assessing the compensation and assessed the compensation at Rs.33 Lakhs and cost of restoration was assessed to a tune of Rs.12,78,036/- which Page 25 of 58 appears to be not proper and far less when comparing to its impact and they also relied on certain journals as to how the same will have to be done as has been contended by the applicant in O.A. No.74 of 2020 (SZ).
30. As directed by this Tribunal by order dated 25.08.2022, the District Collector - Kakinada District has filed an action taken, wherein it was mentioned as follows:-
"Action taken report filed by the District Collector, Kakinada before the Hon'ble National Green Tribunal (SZ), Chennai in O.A. No.65 of 2020 with O.A. No.74 of 2020, order dated 25.08.2022.
In this regard, I submit hereunder the brief history of the case.
1. The Government of Andhra Pradesh have announced a flagship program Navaratnalu - pedalandariki Illu for distribution of 25 Lakhs house site pattas to all the eligible beneficiaries residing in Rural and Urban areas and the Government vide G.O.Ms.No.Sl0, dated 30. 12.2019 Revenue (LANDS-1) Department, A.P. have authorized the District collectors of the respective districts to resume the unutilized Government lands for providing house sites to the houseless poor.
2. The then District Administration has identified and resumed an extent of Ac.116.81 Cts of land in T.S.Nos.2004, 1985/3, 1990, 387, 376 P and 374 which was earlier allotted to port Department as it was remained unutilized. The resumed land was allotted to Kakinada Municipal Corporation for providing house sites to eligible beneficiaries under the flagship programme Navaratnalu - Pedalandariki Illu Scheme.
3. The extent of Ac. 116.81cts of land was handed over to Municipal authorities on 21.07.2020 for housing to the houseless families. Due to the court cases, the development works have been stopped in the last week of April, 2020.
4. At this stage, the present OAs filed against proposed housing were questioning the developmental works in the proposed land alleging that it will adversely affect the Mangroves and Green cover in the area on the plea that the Ecological balance will be effected.
5. The Hon'ble National Green Tribunal (SZ) vide orders dated 3O.O4.2O2O in OA No.65/2020 has constituted a joint Committee comprising of (1) Senior Officer from the Regiona-l Office of MoEF& CC, Chennai (2) Senior Officer from Andhra Pradesh Coastal Zone Management Authority (3) Senior Officer nominated by the Prinicipal Chief Conservator of Forest and Head of Forest Forces / Chief Wildlife Warden (4) District Collector, East Godavari District and (5) District Forest officer, East Godavari District, Kakinada to go into the question as to whether the area in question was a mangrove forest subject to the provisions of Coastal Regulation Zone Notifications 2011 and 2019 requiring any clearance for any project, whether any clearance from MoEF& CC or Forest Department is required under the Forest Conservation Act, 1980 and whether permission from the Chief Wildlife Warden is required for commissioning the project.
6. The Joint Committee has inspected the land in question on lO.l2.2O2O and submitted it's report. In the report, the Committee among other things observed as follows
a) After comparing the Google earth images dated 14.O2.2O2O and 28.10.2019 it is found that some destruction was occurred in the green cover and it is also revealed from the Historical map from 25.05.2005 till date that there were some green patches and the same are levelled.
b) The area in question is in CRZ- 1A as per the CRZ map 2OlL As per the CRZ Notification 2011 no new construction shall be permitted in CRZ- I except certain pipe lines laying, installation of whether radar. CRZ clearance is required as the area is in CRZ- IA. But area development projects are not permissible in the area of in CRZ-1A.
c) As Eco Sensitive Zone (ESZ) has not been notified, no wildlife clearance is required for the project. As per the Forest cover map, the area falls under non forest and open forest (all lands with tree cover (including mangrove cover) of canopy density between 10% to 40%)
7. The Hon'ble National Green Tribunal in order dated 18.03.2021 in OA No.65/2020 (SZ) with OA No.74/2O2O (SZ) ordered to consider the vulnerability study of these areas and submit further report by hiring experts. Accordingly a Joint Committee was formed on O4.O5.2O2L with authenticated persons i.e., with two professors of JNTU, Kakinada, DFO, Social Forestry Division, Principal, SIFT (State Institute of Fisheries Technology), Kakinada, Joint Director, Fisheries, Kakinada and one Advocate and Founder President, Maitreyi Women's organization, Kakinada.
8. The Joint Committee has inspected the land in question on 11.05.2021 and submitted its report observing that 18 acres of mangroves is disturbed and calculated environmental compensation as per carbon sequestration method as Rs. 33 lakhs and also Page 26 of 58 cost of raising mangroves over alternate non forest land as Rs. 15.33 lakhs total Rs.48.33 lakhs.
9. At this stage, pursuant to the orders of the Hon'ble National Green Tribunal, I have inspected the land in question on 05.09.2022 and I have noticed as follows.
a) The land in question is towards landward side of the existing Port (ADB Road) Road leading from Rajanagaram to Kakinada Port and also the site is in the limits of Kakinada Municipal Corporation.
b) The green patches removed in the present case are developed on the landward side of the existing 100 feet ADB road. There are developed structures on the eastern side of the lands in question between the sea coast and the lands in question can be seen in the subject lands' The lands are situated in between railway track and ADB road' In fact the sea coast is 5O0 meters away from ADB road on the eastern side and the area between the sea coast and the present lands is covered by several concrete structures relating to various industries
c) Pursuant to the directions given by the Honble High Court in WP No.822l/2020 dated 23.04.2020 all the developmental activities in the subject lands have been stopped and no construction activity is going on.
d) As per the CRZ map 2011, the area in question is in CRZ -1A. As per the CRZ Notification 2019 under clause 5'2 CRZ section (ii) construction of buildings for residential purpose shall be permitted only on landward side of the existing road. Since the land in question is situated at a distance of 5O0 meters from the sea coast towards the landward side of the existing ADB road and as there are several concrete structures of various industries are existing on the eastern side of the land in question between the existing ADB road and the sea coast. My predecessor authorities have submitted a proposal to the Member Secretary, AP Coastal Zone Management Authority, Vijayawada in file no.ALN/7-/2019-SA(E2) dated 29.05.2020 for according clearance as it is intended for provision of house sites to weaker sections.
e) As per the CRZ notification 2019 under clause 5.2 CRZ section (ii), construction of buildings for residential purpose shall be permitted only on landward side of the existing road or on the landward side of the existing authorized fixed structures.
Since the land in question is more than 500 meter away from HTL on the landward side and likely to fall under CRZII as per the CRZ Notification 20 19. Hence proposals were submitted for clearance by then authorities.
f) Now, all the developmental activities are stopped pursuant to the orders of the Hon'ble High Court in WP No.a22l 1 2020 dated 23.4.2O2O. No construction activities are running in the subject lands.
g) All necessary steps will be taken as per the orders of the Hon'ble National Green Tribunal for restitution of the damage caused (restoration of the stream) as recommended by the Joint Committee.
It is respectfully submitted that pursuant to the orders of the Hon'ble National Green Tribunal, all activities have been stopped in the land in question and the proposal for sanction of housing in the subject lands has been withdrawn and the beneficiaries are accommodated in another locality and no construction activities are running in the subject lands.
In obedience to the orders of the Hon'ble National Green Tribunal, Joint Committee was already formed and the Committee proposed environmental compensation and the same is submitted before the Hon'ble National Green Tribunal. All necessary steps will be taken as ordered by the Hon'ble Tribunal for re-rejuvenation and restoration of mangroves."
31. Heard the learned counsel appearing for the applicant and respondents in both the cases.
32. The learned counsel appearing for the applicants in both the cases argued that it is clear from the Joint Committee report that the area falls under CRZ - IA as large scale mangrove plants are there and they have taken only the carbon sequestration for the purpose of assessing the compensation and the cost of restoration assessed is also not proper considering the extent of damage that has been caused. Further, they have relied on the several decisions for the purpose of establishing the Page 27 of 58 importance of the mangroves and prohibition of such activities in CRZ - I area as per the CRZ Notification and the views of the authorities of several journals which talks about the methodology for assessing the value of mangroves and considering all these aspects, the amount calculated are not proper and it has to be revisited by appointing an appropriate Expert Committee on this aspect. Further, the contention of the State Government that it is not a CRZ - IA but CRZ - II/III is not correct, in view of the Joint Committee report and also the statement submitted by the APCZMA. Further, observation of the District Collector that they are trying to convert CRZ - IA to CRZ - II, as there are lot of developments happened and as per the master plan, several developments have taken place between the sea and the project area and it was divided by a road which was formed long prior to coming into the force of CRZ Notification, 1991 is not sustainable and the State Government has no authority to change the categorization of CRZ area as claimed by the District Collector. So according to them, the compensation awarded is not proper and further studies will have to be conducted.
33. On the other hand, the learned Additional Advocate General and the Standing Counsel appearing for the State of Andhra Pradesh argued that there was a road dividing the sea and the project area which came into effect prior to 1991 CRZ Notification and lot of developments have taken place and most of the species that were claimed to be mangrove plants are not falling under the mangrove species and as such, it cannot be said that the entire area has been covered by the mangroves. Further, the general observations made in the articles relied on by the learned counsel appearing for the applicants regarding the methodology for valuing the services of mangroves are not as such applicable to the place in dispute and without assessing those aspects, it is not proper for this Tribunal to blindly accept the observations made in the journals relied on by the learned counsel for the applicants for assessing compensation. Though lot of developments have taken place and this area has been granted to the Andhra Pradesh Maritime Board for their purpose and even they were allotting those areas for other purpose on lease basis, as such, the vigour of CRZ Notification was not applicable in that area and the activities referred Page 28 of 58 to in the value methodology of mangrove ecosystem cannot be extended to this area on account of the change of activities in that area. An Expert on this field was co-opted by the Joint Committee and with his assistance that they have assessed the compensation, which according to them, is excessive. Further, they have no intention to do anything in CRZ area and they are going for alternate site and they will improve the mangrove ecosystem in that area so as to protect the interest of the environment and they will abide by any directions issued by this Tribunal. The learned Additional Advocate General further submitted that they will abide by any directions issued by this Tribunal, as the State is committed to protect the environment.
34. We have considered the pleadings, report submitted by the Joint Committee, objections filed by the applicants and the submissions made by the learned counsel appearing for the parties and written submissions submitted by the applicant in O.A. No.65 of 2020.
35. The common points that arose for consideration are:-
a. In view of the writ petitions pending before the Hon‟be High Court of Andhra Pradesh, whether the Tribunal can proceed with the matter and the jurisdiction of the Tribunal is ousted? b. Whether there was any violation committed by the State of Andhra Pradesh against the provisions of the CRZ Notification, 2011/2019 while carrying out their activity in the disputed area?
c. Whether there was any mangrove forest existed in that area and whether there was any damage caused to the mangroves in that area and if so, what is the extent of damage caused? d. If there is any damage caused to the mangroves and the marine ecosystem on account of the act of the State Government, what is the quantum of compensation payable as environmental compensation and what is the quantum of amount to be fixed for restoration of the damage caused to the mangroves in that area?Page 29 of 58
e. What is the nature of further directions to be issued applying the „Precautionary Principle‟ and „Sustainable Development‟ to protect the environment and marine ecology?
f. Relief and costs.
POINTS:-
36. Grievance in both these cases was regarding the existence of mangrove patch in Survey Nos. 2004, 1985/3, 1990, 374, 376 and 387 of Dummulapeta, Kakinada Municipal Council, Kakinada District (then East Godavari District) having an extent of 116.82 Acres which was intended to be utilized for the purpose of granting patta to the landless under the scheme of "Pedalandariki Illu" by the State of Andhra Pradesh and the action of the State machinery in reclaiming the area which falls under CRZ
- IA of CRZ Notification, as ecologically sensitive area and damage caused to the mangrove forest existed in that area and seeking for restraining them from proceeding further with the project in that area and also for recovery of environmental compensation and direction to restore the damage caused to the environment by replantation of the damaged portion of the mangrove area with other reliefs.
37. The case of the respondents was that it was already a developed area divided by a road formed prior to coming into the force of CRZ Notification, 1991 and the entire green area shown in the satellite images did not represent that all are mangrove species but it is a mixed with other species as well and as such, it cannot be said to be a mangrove forest. Further, the State of Andhra Pradesh has launched a scheme by name "Pedalandariki Illu" on the basis of the scheme launched by the Hon‟ble Prime Minister of India as Pradhan Mantri Awas Yojana (Urban) Mission for providing house to the houseless and make the people of India having houses by end of the year 2022 and for that purpose, they have directed the concerned District Collectors for identifying the Government lands which were earlier assigned to several private parties and also for Government institution and other institution including the acquired land which were kept unutilized for the purpose for which it was given and kept idle and those persons to whom assignments were made had committed violations Page 30 of 58 to take steps to repossess those land and utilize the same for this purpose and accordingly, an extent of 116 Acres which was earlier given to the Andhra Pradesh Maritime Board which was kept vacant and not utilized by them was decided to be taken back for the purpose of the scheme.
38. Further, they have denied the existence of mangroves in this area and they also denied earlier that it was falling under the CRZ - IA as claimed by the applicants, apart from denying the various allegations made in the application. They also mentioned that there are two writ petitions filed as W.P. No.8221 of 2020 challenging the scheme and allotment of this area for that purpose by certain persons who are interested in protecting the environment, whereas the writ petition as W.P. No.105 of 2020 was filed by certain beneficiaries who are going to be benefited by the scheme launched for issuing direction to the authorities to grant patta to the landless.
39. It is an admitted fact that the Hon‟ble High Court of Andhra Pradesh in W.P. No.8221 of 2020, had granted a Status Quo order and that order is still in force and on account of the same, this Tribunal has not passed any interim order in this case. On perusal of the allegations made in the writ petition and the reliefs claimed, wherein in W.P. No.8221 of 2020, they have challenged the scheme itself and the G.O. issued by the State of Andhra Pradesh for repossession of the lands which were earlier assigned for some purposes and the later, writ petition (W.P. No.105 of 2020) was filed for a writ of mandamus directing the authorities to grant the patta as envisaged by the scheme. But the allegation in both these applications was relating to damage caused to the environment, destruction of mangroves and to recover compensation for the damage caused to the environment and direction to restore the damage caused to the environment by replanting the mangroves to its original position. Such reliefs were not claimed in the writ petitions.
40. Further, under Section 14 and 15 of the National Green Tribunal Act, 2010, the Tribunal can entertain the original applications, if any substantial question of environment has been raised by the parties which requires the Page 31 of 58 interference of this Tribunal for protecting the environment and issue necessary directions applying the principles of „Sustainable Development‟, „Polluter Pays‟, „Precautionary Principle‟ and „Intergenerational Equity‟ as envisaged under Section 20 of the National Green Tribunal Act, 2010, then the Tribunal can entertain the application, if there is no possibility of conflicting decision being rendered by the Hon‟ble High Court and this Tribunal in the same issue which is pending for consideration before the different forums.
41. Section 14, 15 & 20 of the National Green Tribunal Act, 2010 reads as follows:-
"14. Tribunal to settle disputes. -
(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I. (2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
15. Relief, compensation and restitution. -
(1) The Tribunal may, by an order, provide,-
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.
(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991 (6 of 1991).
(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.
(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.
(5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.
20. Tribunal to apply certain principles:-
The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle."Page 32 of 58
42. The dictum laid down in the State of Andhra Pradesh Vs. Raghu Ramakrishna Raju Kanumuru (MP) [Civil Appeal No.4522 - 4524 of 2020], wherein the Hon‟ble Apex Court has held that when a similar issue is pending before the jurisdictional Constitutional Court viz., the Hon‟ble High Court, then the National Green Tribunal cannot entertain any application under the National Green Tribunal Act, 2010 in respect of the same issues which were pending before the Constitutional Court so as to avoid conflicting decisions and causing confusion to the authorities as to which directions will have to be followed by them and it was also observed in the decision that the Constitutional Court having territorial jurisdiction over the area will have supervisory jurisdiction over the National Green Tribunal under Article 226 and 227 of the Constitution of India and the decision of the jurisdictional High Court in relating to the same issue falling within the jurisdiction of the National Green Tribunal will be binding on the National Green Tribunal.
43. There is no dispute regarding the proposition laid down by the Hon‟ble Supreme Court in this regard, but the facts of this case and the case pending before the Hon‟ble High Court of Andhra Pradesh are different and as such, the dictum laid down in that decision is not applicable on the basis of the facts in this case and the Tribunal can proceed with the matter and the learned Additional Advocate General who is appearing for the State of Andhra Pradesh also submitted that the issues pending before this Tribunal and the Hon‟ble High Court of Andhra Pradesh are different and however, any decision passed by the Tribunal will be subject to further orders to be passed by the Hon‟ble High Court of Andhra Pradesh as well.
44. This Tribunal while admitting the matter also expressed its opinion that this Tribunal is not going into the question regarding the selection of the place and the nature of the scheme launched by the Government, but this Tribunal is only considering the ecologically sensitiveness of the area and its impact on environment and the necessity to protect the mangroves (if any) existed in that area so as to protect the marine environment and if any damage caused, the nature of reliefs as provided under Section 14 & 15 of the National Green Tribunal Act, 2010 have to be granted or not. So, we Page 33 of 58 are only considering those aspects alone in this matter and as such, to that extent, the applications are maintainable before this Tribunal.
45. In order to ascertain the allegations made in the application, this Tribunal had appointed a Joint Committee and the Joint Committee submitted its first report received on 17.03.2021 which was already extracted in earlier paragraph, made their conclusions as follows:-
"Conclusion As per the CRZ, Map 2011 the area in question is in CRZ-IA. Townships and Area Development projects are not permissible in CRZ-IA area. The district administration mentioned during the field visit that there is a proposal to change the CRZ category of the said land from CRZ IA to CRZ II. The district administration should not proceed with further development of the township in the said area till the necessary permissions from the competent authorities are obtained"
46. It is further mentioned in the report that as per the Forest Cover Map, the area in question falls under non-forest and open forest (All lands with tree cover [including the mangrove cover] of canopy density between 10% and 40%). Therefore, the Joint Committee was not able to assess the exact density of the mangrove prevailed there. It was further mentioned in the report that out of 116 Acres, the work has been taken up on 58 Acres and as per the committee‟s analysis, mangrove cover up to the extent of 30% of the filled up area might have been affected and they wanted only the District Administration to take up the mangrove plantation in alternate land for an extent of equivalent to the affected area adjacent to the Coringa Wildlife Sanctuary. As per the second Joint Committee report received on 13.08.2021, they have assessed the environmental compensation to the tune of Rs.33 Lakhs for the damage caused taking the carbon sequestration method and also assessed Rs.12,78,036/- towards the cost of restoration of raising mangroves for an extent of 18 Acres.
47. The applicants in both these cases have filed their objection to the same and they also mentioned that the quantum of compensation assessed is not proper.
Page 34 of 5848. It is clear from the Joint Committee report and also from the report submitted by the APCZMA and the District Collector - Kakinada District in the latest report received on 12.09.2022 that as per the CRZ Notification, 2011, the area in question will fall under CRZ - IA and no new construction shall be permitted in CRZ - I, except certain laying of pipeline, installation of weather radar etc., for which, the CRZ Clearance is required. Further, the development projects are not permissible in that area.
49. It is also seen from the counter statement of the 6th respondent that though the District Collector, East Godavari District (presently Kakinada District) submitted an application to the APCZMA on 05.06.2020 for CRZ Clearance for development of site to issue housing pattas to the urban poor section under Navaratnalu Pedalandariki Illu Scheme in T.S. Nos. 2004, 1985/3, 1990, 387, 376P and 374 of Kakinada, East Godavari Dist, Andhra Pradesh having an extent of 116.82 Acres to Kakinada Municipal Corporation, the same was rejected by the authorities vide their letter dated 23.04.2021, as the proposed activity falls in CRZ - IA and CRZ - IB and is not permissible as per CRZ Notification, 2011. It is further seen from the counter that the proposal submitted by the authorities for conversion of land use from CRZ-IA & CRZ-IB to CRZ-II narrating the nature of development happened and the ground reality, no decision has been taken in this regard, in view of the pendency of this application.
50. The importance of mangroves was considered by the Hon‟ble Bombay High Court in Bombay Environmental Action Group & Anr. Vs. State of Maharashtra & Ors.1, wherein (on the basis of the extracts made in the application in that case) the definition of mangrove was observed as follows, "Mangroves are intertidal (growing between the high tide and low tide line) evergreen forests growing on the soft marshy lands of a creek, estuary or a bay in the tropical and sub tropical regions. The expression 'mangrove' does not apply to a single species of plants, but to a complete ecosystem which is a conglomeration of several species of flora, fauna and biotic features in an area, and their interaction with each other. Mangroves are a peculiar habitat because they are found on the boundary between the land and the sea. They are found almost entirely in the tropical and sub tropical regions, that is, between 30 degrees north and 30 degrees south latitude, and are an extension of the tropical rain forests towards the sea. They are found largely in the estuarine regions where a river meets the sea, the 1 2018 SCC Online Bom 2680 = (2019) 1 Bom CR 1 Page 35 of 58 intertidal regions of shallow bays and creeks. As extensions of the tropical rain- forests in to the sea, mangroves are functionally as important as the tropical rain- forests. Moreover, they are additionally important for the protection of the seashores from erosion, wave action, high-winds and cyclones. Mangroves being intertidal forests are equal to tropical forests, however their importance is not merely in their forest value but due to their strategic location between the land and the sea. Mangroves are the life line of any coastal area and perform invaluable protective functions for the environment. "
51. They also reiterated the role played by the mangroves on the basis of the allegations made in the application which was not disputed in that case as follows:-
"A] The mangroves play important role in protecting sea shores from erosion, high winds and cyclone;
B] Mangroves are strategically located between the land and sea and therefore, their importance is not merely in their forest value. The mangroves act as a buffer between the land and sea and play a very important role in fighting tidal erosion. The presence of mangroves does away with the need for expensive sea walls. The loss of mangroves endangers the stability of the land;
C] The mangroves facilitate reclamation of land from the sea; D] Sometimes mangroves act as flood control by absorbing excess water from the sea;
E] Similarly, mangroves protect the land from storms and hurricanes; F] Apart from the fact that mangroves act as natural sewage water filter systems, the same act as natural pollution coastal checks. They absorb natural waste;
G] The presence of mangroves on the fringes of the city like Mumbai which has one of the lowest open space ratios in the world ensures that some open spaces are kept open, H] The mangroves are breeding grounds for a number of marine organisms, such as shrimps, crabs and fish. The presence of mangroves keeps the fish relatively free from industrial and other pollution; and I] The mangroves are also centres of biodiversity and are the most productive ecosystems. In Maharashtra, they house panthers, otters, jackals, wild cats, reptiles and birds of numerous varieties. It is pointed out that Thane creek is a home to about 1.5 million birds of 206 different species."
52. Further, it is more sensitive organism and any change in the existing ecosystem will affect the growth of the mangrove itself which in turn affects the marine ecosystem as well.
53. Further, in the decision cited (supra) after considering the wide meaning given to forest by the Apex Court, observed that "the land covered by mangroves irrespective of its ownership is a forest within the meaning of Forest (Conservation) Act, 1980 and the embargo imposed by Section 2 of the Forest (Conservation) Act, 1980 and the directions issued by the Hon‟ble Apex Court will apply with all the force to mangrove areas. It will apply to mangrove areas irrespective of the fact that the lands are privately owned and a prior approval from the Central Government is required for doing any non-forest activity Page 36 of 58 within the area of mangroves, as required under Section 2 of the Forest (Conservation) Act, 1980."
54. Further, it was also observed in the decision relying on Clause 3 of the CRZ Notification, 1991 that the areas that are ecologically sensitive and important, such as national parks, marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty historical heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time and area between the Low Tide Line and the High Tide Line will be treated as CRZ area under the CRZ Notification, 1991. That a buffer zone of 50 meters was also fixed by the Central Government by Notification dated 27.09.1996 that all mangroves within the area of 1000 Sq.M. would be classified as CRZ area with buffer zone of atleast 50 meters. Subsequently, an amendment was made to this on 19.01.2000 that 50 meter buffer zone around the mangroves of area 100 Sq.M. above will not required on the land ward side provided a road abutting such mangroves was constructed prior to February 1991.
55. In CRZ Notification, 2011, the CRZ - I was defined in Clause 7 as follows:-
"7. Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-
(i) CRZ-I:-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds; (j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites.
B. The area between Low Tide Line and High Tide Line; "
Page 37 of 5856. So, it is clear from the definition of CRZ Notification, 2011 that mangroves having area of 1,000 Sq. M. will fall under the CRZ - I and a buffer zone of 50 M along the mangroves have to be provided. Certain categories of activities were permitted in the same. The importance of mangroves was considered by the Hon‟ble Apex Court in S. Jagannath Vs. Union of India & Ors.2
57. Further, the Hon‟ble Bombay High Court in the decision referred to above also relied on the decision of the Association for Environment Protection Vs. State of Kerala3, Nature Lovers Movement Vs. State of Kerala4, M.C. Mehta Vs. Kamalnath5 and other cases observed that in such case principle of „Doctrine of Public Trust‟ will have to be applied in order to protect the environment. Further, the Hon‟ble Bombay High Court also relied on the role of Ramsar Convention in protecting the mangroves in its 8th meeting held at Spain in November 2002 and in the Resolution VIII.32, mangrove ecosystem was discussed and explained as follows:-
"ROLE OF RAMSAR CONVENTION
57. The 8th meeting of the contracting parties (which includes India) to the Convention on Wetlands at Ramsar in Iran in the year 1971, was held in Spain in November 2002. In the said meeting, a resolution was passed as regards the mangroves which reads thus:
"Resolution VIII.32: Conservation, integrated management, and sustainable use of mangrove ecosystems and their resources
1. RECOGNIZING the major importance of the wide range of ecological goods and services provided by mangrove ecosystems, including their vital role in acting as spawning and nursery areas for many species of economic importance, and the economic, social and environmental importance of mangroves for, inter alia, fishing, biodiversity, coastal protection, recreational activities, education, and coastal and shelf water quality;
2. ALSO RECOGNIZING that the survival of a large number of local communities and indigenous peoples depends upon the productivity and health of mangrove ecosystems;
3. RECOGNIZING FURTHER that mangrove ecosystems are important for regulation of natural processes and maintaining biological diversity in the coastal zones of the countries in which they occur, and that many species, notably, inter alia, fish, molluscs, crustaceans, migratory and resident water birds, and aquatic mammals, as well as threatened species, are ecologically dependent upon mangroves and their surrounding areas;
4. AWARE that healthy mangrove ecosystems, in conjunction with their associated coral reefs, sea grass beds, and intertidal flats, can play an important role in mitigating climate change and sea-level rise, including through carbon sequestration and the buffering of sea- level rise and storms, particularly in view of the current extent of coral bleaching and Intergovernmental Panel on Climate Change (IPCC) predictions of future increase in coral bleaching, as is recognized in document COP8 DOC. 11 and Resolution VIII.3;
5. CONCERNED that, despite this widely-recognized importance of mangrove ecosystems, the area of mangrove ecosystems continues to decrease in many countries as the result of destruction and degradation through human activities that use mangroves and 2 (1997) 2 SCC 87 3 (2013) 7 SCC 226 4 (2009) 5 SCC 373 5 (1997) 1 SCC 388 Page 38 of 58 their surrounding areas, or that disrupt the flow of freshwater or tidal flows to mangrove ecosystems, without appropriate planning, management and control mechanisms;
6. AWARE of the increasing availability of knowledge about practices related to the sustainable use of mangrove ecosystems by the ancestral communities of users and that experiences and technical knowledge about the conservation and sustainable use of these ecosystems should receive wide dissemination at the national and global levels;
7. TAKING NOTE of the need to strengthen at the global level the mechanisms for exchanging good practices and technical knowledge about mangrove ecosystems and to benefit from those exchanges, while at the same time promoting and strengthening these activities among local communities, with the cooperation, where appropriate, of local people and national or international organizations with knowledge or interest in the sustainable use of the biological diversity of mangrove ecosystems;
8. AWARE that Contracting Parties to this Convention have concluded through Action 6.2.3 of its Strategic Plan 1997-2002 that mangrove ecosystems are under- represented in the List of Wetlands of International Importance, and that guidance on the identification and designation of mangrove ecosystems has been adopted by this meeting of the Conference of the Parties (Resolution VIII.11);
9. RECOGNIZING that mangrove ecosystems are dependent on ecological processes and influenced by socio- economic processes that occur in river basins and the wider coastal zones in which they occur, and that their capacity to continue to provide their values and functions depends upon sustainable land-use management at the wider scale, as is recognized by Resolution VII.18 concerning river basin management and the guidance adopted by this meeting concerning site-based management planning (Resolution VIII.14), water allocation and management (Resolution VIII.1), and integrated coastal zone management (Resolution VIII.4);
10. RECALLING Resolution VII.21, which specifically refers to mangrove ecosystems as an integral part of intertidal wetlands which have been lost and degraded due to unsustainable activities; and
11. ALSO RECALLING the Annex to Resolution VIII.11 which refers to the principal factors causing loss and damage to mangrove ecosystems worldwide as a result of unsustainable exploitation practices, such as habitat destruction, hydrological changes, pollution, and unsustainable aquaculture;
THE CONFERENCE OF THE CONTRACTING PARTIES
12. REQUESTS Contracting Parties with mangrove ecosystems in their territories to review, and as appropriate to modify their national policies and strategies that could have harmful effects on these ecosystems, and to implement measures to protect and restore their values and functions for human populations, recognizing their rights, uses and traditional customs and the maintenance of biodiversity, and to cooperate at the international level to agree regional and global strategies for their protection;
13. ALSO REQUESTS the Contracting Parties with mangroves ecosystems in their territories to promote their conservation, integrated management and sustainable use within the context of the national policies and regulatory frameworks, and in accordance with environmental and strategic assessments of the activities that could affect, directly or indirectly, the structure and function of the mangrove ecosystems;
14. EXHORTS relevant Contracting Parties to update information on mangrove ecosystem cover and their conservation status, as well as the forms and levels of their use, and to provide this information to the Ramsar Bureau and the Convention's Scientific and Technical Review Panel (STRP) so as to assist their work as called for in Resolution VIII.8 concerning status and trends in wetlands;
15. ALSO EXHORTS those Contracting Parties with mangrove ecosystems within their territories to exchange information relating to their conservation, integrated management, and sustainable use, especially where this involves the full participation of local communities and indigenous peoples;
16. REQUESTS the Ramsar Bureau and the STRP, as resources permit, and the Contracting Parties to contribute to the initiatives concerning the transfer of environmentally sound technologies for the sustainable management of mangrove ecosystems, and to make this available to the users;
17. ALSO REQUESTS Contracting Parties with mangrove ecosystems within their territories, including those of their dependent territories, according to their capacities and internal regulations, to designate mangrove ecosystems that fulfill the criteria for their inclusion in the List of Wetlands of International Importance, in order to create a coherent national and international network of designated Ramsar sites as called for in the Strategic Framework and Vision for the List of Wetlands of International Importance (Resolution VII.11), and in doing so to emphasize particularly those Ramsar sites which are important for local communities and indigenous peoples in terms of their subsistence and cultural values;
18. ALSO REQUESTS all relevant Contracting Parties to recognize the importance of mangrove ecosystems for migratory and non-migratory birds, and to designate such areas as Ramsar sites that qualify under Criteria 4, 5, and 6 of the Strategic Framework adopted by Resolution VII.11, in order to contribute to the establishment of coherent flyway-scale networks of Ramsar sites, in line, as appropriate, with the Joint Work Page 39 of 58 Plan of the Ramsar Convention, Convention on Migratory Species, and African-Eurasian Migratory Waterbird Agreement (AEWA) as endorsed by Resolution VIII.5 and other conventions or related agreements;
19. ENCOURAGES all relevant Contracting Parties to take into account in their management planning for Ramsar sites with mangrove ecosystems, applying the New Guidelines for management planning for Ramsar sites and other wetlands and other guidance adopted by this meeting (Resolutions VIII.1, VIII.4, and VIII.14 ), the ecological and socio-economic factors that occur in river basins and coastal zones to which they are related, and to ensure that their wider land-use planning and management does not adversely affect their mangrove ecosystems, such as through the introduction of pollutants, modification of water flows, sediment inputs, and exotic species;
20. ALSO ENCOURAGES all relevant Contracting Parties to recognize fully the important role mangrove ecosystems can play in mitigating climate change and sea-level rise, especially in low-lying areas and Small Island Developing States, and to plan their management, including required adaptation measures, so as to ensure that the mangrove ecosystems may respond to impacts caused by climate change and sea-level rise;
21. URGES all relevant Contracting Parties to identify the factors degrading their mangrove ecosystems and to seek to restore such ecosystems, using the guidance on this matter adopted by this meeting (Resolution VIII.16), so that they can deliver their range of values and functions; and
22. REQUESTS the Ramsar Bureau to make all possible efforts to secure financial resources and advance technical cooperation for promoting the conservation, integrated management, and sustainable use of mangrove ecosystems and their resources through appropriate existing partnerships and agreements with international and regional organizations."
58. So, it is clear from the above decision that the role played by mangroves in protecting the marine ecosystem is invaluable and it is too sensitive in nature and it will not survive in eco-sensitive system which is not conductive for its existence and destruction of the same will have great impact on marine ecology.
59. Further, in the decision reported in S. Jagannath Vs. Union of India & Ors. (1997) 2 SCC 87, the Hon‟ble Apex Court has considered the importance of the role played by mangroves in protecting the marine environment and the necessity to conserve and preserve the mangroves. Further, the construction in CRZ areas without clearance was seriously viewed by the Hon‟ble Apex Court in the decision reported in Kerala State Coastal Zone Management Authority Vs. State of Kerala, Maradu Municipality & Ors. (2019) 7 SCC 248.
60. The Hon‟ble High Court of Kerala in Ansari Kannoth Vs. State of Kerala & Ors. (2011) 1 KLT 1043 also observed that even though the implementation and enforcement of the CRZ Notification vested with the State, if they did not take any action, then that will not ousted the jurisdiction of the MoEF&CC to take appropriate action to protect the environment and mangrove forest in this regard.
Page 40 of 5861. Further, under CRZ Notification, 1991, the CRZ - I was defined as :-
"CRZ-I:-
(i) Areas that are ecologically sensitive and important, such as national parks /marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals/coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty/historical/heritage areas, areas rich in genetic diversity, area likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.
(ii) Area between the Low Tide Line and the High Tide Line."
62. In CRZ Notification, 2011, the CRZ - I was defined as follows:-
"(i) CRZ-I,-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds;
(j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites. B. The area between Low Tide Line and High Tide Line"
63. In CRZ Notification, 2019, the CRZ - I was defined as follows:-
"CRZ-I areas are environmentally most critical and are further classified as under:
CRZ-I A:
(a) CRZ-I A shall constitute the following ecologically sensitive areas (ESAs) and the geomorphological features which play a role in maintaining the integrity of the coast viz.:
(i) Mangroves (in case mangrove area is more than 1000 square meters, a buffer of 50 meters along the mangroves shall be provided and such area shall also constitute CRZ-I A);
(ii) Corals and coral reefs;
(iii) Sand dunes;
(iv) Biologically active mudflats;
(v) 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), Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 0f 1986), including Biosphere Reserves;Page 41 of 58
(vi) Salt marshes;
(vii) Turtle nesting grounds;
(viii) Horse shoe crabs‟ habitats;
(ix) Sea grass beds;
(x) Nesting grounds of birds;
(xi) Areas or structures of archaeological importance and heritage sites.
(b) A detailed environment management plan shall be formulated by the states and Union territories for such ecologically sensitive areas in respective territories, as mapped out by the National Centre for Sustainable Coastal Management (NCSCM), Chennai based on guidelines as contained in Annexure-I to this notification and integrated with the CZMP.
CRZ-I B: The intertidal zone i.e. the area between Low Tide Line and High Tide Line shall constitute the CRZ-I B."
64. In all these notifications, the CRZ - I was supposed to be treated as a vulnerable ecologically sensitive areas and development of those areas were prohibited except for certain purpose provided under the said notification.
65. The mangrove area covered with more than 1,000 Sq.M. was treated as CRZ - I and CRZ - IA and treated as an ecologically sensitive area where the developmental activities, except those permitted under CRZ Notification are prohibited. The construction activities in these areas is not a permissible activity and the application for the CRZ Clearance for clearing this area was rightly rejected by the APCZMA as referred to in their counter statement, as it falls under the CRZ - IA under the CRZ Notification and the activities sought for is not a permissible activity there.
66. The recommendation made by the Joint Committee that a direction be given to the District Administration to develop mangrove in an alternate area cannot be accepted, in view of the importance and role played by the mangrove forest to protect the marine ecology and marine aquatic life apart from providing road between the mangrove forest and sea against the erosion and cyclone affect and avoid disasters being happening during the cyclone and monsoon.
67. We do not agree with the observation of the Joint Committee that alternate site can be developed for this purpose so as to allow the utility of this area for the proposed project. So, we feel it is appropriate to direct the State of Page 42 of 58 Andhra Pradesh not to carry out the proposed project in CRZ - IA area, as covered by the CRZ Notification, 2011 and 2019 and as mapped in the CZMP prepared under CRZ Notification, 2011 and to be prepared under CRZ Notification, 2019.
68. Once the area was declared to be a CRZ - IA as per the CRZ Notification and certain activities prohibited were carried out by the State of Andhra Pradesh for the purpose of proposed scheme viz., Navaratnalu Pedalandariki Illu in violation of the CRZ Notification, then they are liable to pay compensation for the violation committed, apart from the cost of restoration for restoring the damage caused to the mangrove by replanting the same.
69. It is also admitted by the respondents in their counter statement and also noted in the Joint Committee report that there is a creek passing through this area and on account of the filling up, the flow of the creek has been obstructed which ultimately reaches the sea.
70. Further, it is also seen from the report that there is already a road formed prior to 1985 before coming into the force of CRZ Notification, 1991 and it is not known as to whether there were any provision made for free flow of seawater during tidal effect to enable the mangroves to survive in that area. May be the existence of mangroves earlier in some place nearby would have been damaged on account of such obstruction of the salty water.
71. So under such circumstances, a direction also will have to be issued to remove the obstruction caused to the creek on account of the reclamation process undertaken by the State of Andhra Pradesh through the District Administration or Municipal Corporation for the purpose of preparing the land for allotment of lands to the landless / homeless for construction of houses under the scheme „Navaratnalu Pedalandariki Illu‟.
72. So, we direct the District Collector - Kakinada District to take steps to remove the obstruction caused to the free flow of water in the creek and also direct the District Administration through the Public Works Department to provide as many box type vents as possible in the road that Page 43 of 58 is in existence between the sea and the so called alleged developed area and the mangrove area, so as to enable the seawater to come to promote the growth of mangroves and conserve and preserve the mangrove forest in that area.
73. We are not going into the question as to whether the Environmental Clearance is required for this purpose, as we are of the view that the project itself cannot be permitted in that area, in view of the fact that it falls under CRZ - IA and also in view of the fact that the application for CRZ Clearance was rejected by the APCZMA. Further, the clearance from the National Wildlife Board also will arise only if the project requires EC as per the Office Memorandum issued by the MoEF&CC and also as per the provisions of the EIA Notification, 2006 as amended from time to time. Moreover, we are also not going into the question as to whether the clearance from the Forest Department is required as observed by the Hon‟ble High Court of Bombay for cutting and removing the mangrove/trees, as we are of the view that no interference with the mangroves is permissible considering its importance and the necessity for conserving, preserving the same to protect the marine environment. Further, normally when the Forest Clearance is granted, they will consider the question as to whether this will fall under the permissible category and even if it is a permissible activity, they will only suggest for afforestaion of equivalent land or such land required for this purpose and assess compensation for that purpose, but that will not protect the necessity of conserving and preserving the mangrove which play a great role in protecting the marine ecology, as cutting and removing mangroves and developing that area and trying to implement the same in another area will not be feasible considering its eco-sensitive nature of the micro organism that mangroves are, as any slight change in conducive environment for their existence will have great impact of their very existence itself and destruction of mangroves will have great impact on marine ecology.
74. There is no dispute regarding the fact that once the ecosystem has been affected on account of the act of the persons who are engaged in such activity, then they are liable to pay the compensation for the violations Page 44 of 58 committed and they are also liable to pay compensation for the damage caused to the environment and they are liable to restore the same to its original position as well and that amount also will have to be taken into consideration for the purpose of assessing compensation. For that purpose, evaluation will have to be made regarding the nature of impact caused to the environment and the ecological services which were lost on account of such damage etc. will have to be taken into consideration for assessing the compensation. The Joint Committee has only considered the carbon sequestration methodology for the purpose of assessing the compensation taking into that mangroves in 18 Acres have been disturbed and calculated the compensation to the tune of Rs.33 lakhs. Further, they also assessed the compensation for restoration by raising mangrove over alternate non-forest land to tune of Rs.12,78,036/- and we have deprecated and rejected the recommendation of raising mangrove over alternate non- forest land considering its importance and they have assessed the total compensation of Rs.48.33 Lakhs which we feel that it is inadequate considering the importance and the area covered.
75. The applicants have produced certain articles which were dealt with the economic value of mangroves, wherein they have stated as follows:-
"As noted above, mangroves provide a wide range of vital ecosystem services, which have an equally wide range of value. Economists generally decompose the total economic value of ecosystems into direct use, indirect use and non-use values. Direct use values refer to consumptive and non-consumptive uses that entail direct physical interaction with the mangroves and their services [34] such as outputs of fish, fuel wood, recreation, and transport. Indirect use values include regulatory ecological functions [34], which lead to indirect benefits such as flood control, storm protection, nutrient retention, nursery grounds for different species, and erosion control. Nonuse values include existence and bequest values of mangroves Methods for valuing ecosystem services vary depending on the nature of the service. For ecosystem functions that produce marketable goods and services, prices are used in several alternative methods. The first is the production function approach (PF), which is based on the notion that the ecological function is an input to the production process and its value is measured by its effect on the productivity of marketed outputs [35]. PF measures the value as the change in consumer surplus (CS) and producer surplus (PS) that result from the change in the quantity or quality of the environmental good [17,36]. The net factor income approach (NFI) measures the value of the environmental service as the change in PS by subtracting the cost of other production inputs from total revenue of the marketable good. The market prices (MP) method assigns the total revenue derived from the marketable goods and services as the value of the ecosystem service that generated them. However, MP estimates are often upward biased since the cost of other production inputs are neglected [17]."Page 45 of 58
76. They have considered the ecological mangrove functions, economic goods and services, type of value, and commonly applied valuation methods as follows:-
77. They have also given the various methodology for calculation as follows:-
"3. Methods The goal of this paper is to use meta-analysis to assess the factors that potentially have a role in determining the annual per hectare value of mangrove forests. The most prominent advantage of meta-analysis is that it overcomes the problem of researcher subjectivity that characterizes literature reviews, whereby researchers often subjectively decide which studies to include and set aside others that they consider to be "weak".
Instead, meta-analyses provide a statistical framework that incorporates evidence from the entire literature in a way that enables superior summarization and interpretation. Consequently, hundreds of meta-analysis applications have been carried out in the last few decades in the medical and social sciences [45,46].
Meta-regression analysis (MRA) is particularly useful for the purpose of examining the findings of empirical studies in economics. MRA involves a dependent variable drawn from each study, in addition to independent variables that encompass the range of factors underlying differences among the studies such as method, design and data [45,46]. Following Woodward and Wui [27], Brander et al. [17], Ghermandi et al [29] and Chen [28], we estimate the base semi-logarithmic model of the following form in matrix notation:
ln(y) c Xmm Xvv Xd d where c is the constant term, the dependent variable is the natural log of the annual per hectare mangrove values in 2010 US$, the β vectors represent the vectors of coefficients of the respective X matrices and μ is the vector of residuals, assuming well-Page 46 of 58
behaved error terms. The independent variables encompass study characteristics, Xv, mangrove characteristics, Xm, and Xd, GDP per capita. Variable definitions and summary statistics are displayed in Table 2.Page 47 of 58
78. They also given various data to be collected for the purpose of estimating the ecological loss due to the destruction of mangroves and they gave their conclusions as follows:-
"Conclusions In this paper, we have provide an overview of the mangrove evaluation literature through a meta-regression analysis, the first in the wetlands literature that focuses specifically on mangrove forests. Like wetland studies, the literature on mangrove economic valuation is diverse in terms of types of ecosystem services, valuation methods, and location and consequently has produced a wide range of values. To assess how study characteristics and mangrove site characteristics have influenced economic valuations, we regressed annual per hectare values on different explanatory variables that encompass characteristics of the studies and the study sites, as well as GDP per capita. Since the data had several outliers, we also ran a robust regression to account for extreme values and weigh them accordingly. In addition, we ran a weighted robust regression (weighing studies equally rather than observations) to allow for possible correlation across observations. Finally, we investigated the cross effects between service type and GDP per capita since each service may be valued differently based on the socio-economic conditions of the hosting country.
According to the weighted robust regressions, we find that employing the CVM and RC methods results in higher values than other methods of valuation, with the CVM being the highest. Other factors that have a positive effect are protection of the site and GDP per capita, the latter being a common finding among previous wetland meta-analyses. In the model without the interaction effects, indirect use and nonuse values are higher than direct use values, with nonuse values the highest. In this model, we also find that having a foreign exchange component in the value results in higher valuations. Including cross effects results in values in the Middle East and Africa being higher than elsewhere, while coastal protection and carbon sequestration have the lowest values and nonuse values the highest. Also, the coefficients of the interaction terms show that coastal protection and carbon sequestration are more highly valued, and nonuse values and forestry are less valued in countries with higher per capita GDP. The unexpected result of the negative sign of the nonuse cross term is attributed to the high estimates reported for Egypt, which has a lower than the average GDP per capita of countries in our dataset. A final result is that mangroves exhibit decreasing returns to scale as evidenced by the fact that marginal value was found to be lower than average value.
We estimated transfer errors of the models to gauge their performance for the purpose of a benefits transfer. The result was that there were slight differences between the models since all transfer errors are between 35% and 54%, a range that is within the lower end of previous estimates in the literature.
A recommendation is that primary studies provide more comprehensive information pertaining to several aspects. The first is the state of the environmental health of mangrove forests. While some studies do make this information known, this is not always the case and like any natural resource, the ecological functioning and economic values of mangrove forests are largely dependent on their environmental health and soundness. The second is the type of management of the resource such as fisheries and forestry, which is not always clarified in the original studies. The yields of fisheries and forests are affected by the form of management [51,64], thereby necessitating the inclusion of pertinent management information in any evaluation study. Finally, we recommend that if papers evaluate physically quantifiable goods, like fish or timber, they include the physical quantities of these goods. This facilitates comparing the productivity of mangrove forests across countries and independently of the method of valuation."
79. The articles relied on by the applicant in O.A. No.74 of 2020 produced along with their objections also gives similar aspect and in one of the article viz., the mangrove management for climate adaptation and sustainable development in coastal zones, authored by Jeffrey Chow, they have taken the view that damage caused to the mangrove forest will have impact on climate change and presence of mangroves are sufficiently resilient to climate change and the geological evidence suggest that Page 48 of 58 mangroves are adopted to previous changes in climate and sea level and they also considered that the mangroves plays a great role in carbon sequestration and emission to protect the environment against the global warming and also considered the ecosystem services and climate change adaptation and the effect of stabilization of mangroves and its preservation in several areas where it has been adopted and how it had improved the protection of climate change and also these articles gives an indication regarding the necessity for preservation and conservation of mangrove and if possible to improve its area by providing more mangrove forest.
80. The various articles relied on by the applicant which were produced along with their objections to the Joint Committee report in O.A. No.74 of 2020 which we are not reproducing will go to show the ecological services that is being provided by the mangroves and its value in protecting the environment including the climate change and global warming and necessity for its conservation, preservation and protection and the impact of destruction of mangroves resulted in disasters and increase in global warming which has been accepted at international level in the conventions held at Spain in November 2022 which were considered by the Hon‟ble High Court of Bombay in the decision reported in Bombay Environmental Action Group & Anr. Vs. State of Maharashtra & Ors.6 and the relevant portion of which were extracted in the earlier paragraphs of this Judgment.
81. So, under such circumstances, we feel that the compensation assessed by the Joint Committee is not sufficient to meet the damage caused and we feel that we can assess the interim compensation of Rs.5 Crore payable by the State of Andhra Pradesh for the damage caused and the further studies will have to be conducted for assessing its value by appointing a Committee in this regard which may include the nature of restoration process, the area which is covered by the mangroves earlier on the basis of the Forest Map imageries taken etc.
82. Further, it is also brought to our notice that earlier a study was conducted by East Godavari Estuarine Ecosystem Foundation in respect of availability of mangrove forest in the State of Andhra Pradesh including 6 2018 SCC Online Bom 2680 = (2019) 1 Bom CR 1 Page 49 of 58 the disputed area and the nature of destruction and what is the methodology to be provided for the purpose of restoring the mangrove forest in the State and the steps to be taken for preservation, conservation and protection of the existing forest and also improve the mangrove forest cover in areas which is possible to control the global warming and disasters that are likely to be caused on account of the flood, cyclone and also to improve the breeding facility and improve the economic situation of the traditional fishermen community in that area.
83. In view of the detailed discussions and observations made above, we feel that the Original Application can be disposed of by giving following directions:-
a. The State of Andhra Pradesh is restrained from carrying out the construction of project in CRZ - I A area in the disputed place as per the CRZ Notification, 2011 and 2019 and as earmarked in the CZMP prepared on the basis of the CRZ Notification, 2011.
b. No attempt must be made by the authorities to convert the land use which is likely to affect the existence of mangroves and its protections so as to develop that area for other development purpose which in fact is prohibited under the CRZ Notification, 2011 and 2019 considering the impact and role played by mangroves in protection of environment apart from providing indirect and direct benefits to the society and mankind.
c. The State of Andhra Pradesh through its District Collector is directed to remove the obstruction caused to the creek which is passing through the proposed project area under dispute so as to ensure the free flow of seawater in the creek to enable the sustenance of mangroves in that area.
d. The State of Andhra Pradesh through its concerned instrumentalities viz., Public Works Department & the Kakinada Port Authorities are directed to provide as many box type vents as possible in the road that has been constructed by the Port Authorities under ADB funded project between the sea and the land prior to coming into the force of CRZ Notification, 1991 in this area so as to provide access to Page 50 of 58 the saline water for the mangroves that is being in existence beyond the road on the land ward side as seen from the Forest Cover Map prepared by the Forest Department to protect the mangrove forest in that area.
e. The State of Andhra Pradesh is directed to pay an interim compensation of Rs.5 Crore only for the damage caused to the mangroves in the existing area covering an extent of nearly 18 Acres and this will be subject to the further compensation to be assessed by the committee appointed by this Tribunal and this amount has to be paid to the APCZMA which they can utilize for the purpose of protecting the coastal environment including protection, conservation and preservation of the existing mangroves in the coastal area in the area in dispute and other areas and also utilize the same for increasing the mangrove forest cover in the coastal zone so as to enhance resilience to the disasters like climate change, flood erosion and cyclonic effects and the amount must be paid within a period of 6 (Six) months and if it is not paid, then the APCZMA is directed to recover the same from the State instrumentalities in accordance with law.
f. In order to assess the environmental compensation and the amount required for restoration of the damage caused to the mangroves, we appoint a Committee comprising of (i) a Member from the NCZMA;
(ii) a Member from the SCZMA - Andhra Pradesh; (iii) a Member from M.S. Swaminathan Research Foundation having expertise in mangrove ecosystem and marine ecosystem; (iv) a Member from the East Godavari Estuarine Ecosystem Foundation who had conducted the study in that area earlier; (v) a Member from the Salim Ali Centre for Ornithology and Natural History, Coimbatore and (vi) a Member from the National Centre for Sustainable Coastal Management, Chennai to ascertain the total area of mangroves which was in existence on the basis of the study (if any) earlier conducted by any of the institutions like M.S. Swaminathan Research Foundation or East Godavari Estuarine Ecosystem Foundation and also on the basis of the Forest Cover Map that has been prepared by the Forest Department in respect of this area and Page 51 of 58 thereafter, assess the compensation for the destruction caused to mangroves and its impact on environment taking into account its direct and indirect value base, its significance in protection of environment, role in mitigating impacts of climate change, coastal zone protection and economic growth that is likely to be obtained by its existence and loss of ecological services lost on account of such destruction and also identity methodology for restoration of the mangroves to its original position and expenses required for restoration, including the agency under whose supervision the restoration work will have to be carried out and after assessing the amount, then submit a report to the Chief Secretary to Government, State of Andhra Pradesh within a period 6 (Six) months. On receipt of the report, the State of Andhra Pradesh is directed to pay the additional compensation (if any) assessed by the Committee to the APCZMA within a period of 6 (Six) months and if the amount is not paid, then APCZMA is directed to recover that amount from the State Government in accordance with law and utilize the amount for conservation, protection and preservation of mangrove forest in that area and other areas and also for developing new mangrove forest wherever feasible and possible to protect the marine environment as directed by the Tribunal in O.A. No.160 of 2020 (SZ).
g. If such report is filed, then the State of Andhra Pradesh is directed to pay the compensation assessed to the APCZMA within a further period of 3 months and carry out the restoration process as suggested by the Committee under the supervision of the agency suggested by the committee and also undertake the maintenance of the plantation that has been made for a period of 5 years and to ensure its survival rate not less than 85% so as to preserve and conserve the mangrove forest that has been developed to protect the environment.
h. The committee is also directed to prepare a plan for the entire 58 Acres, where the forest cover was found including the mangrove forest for conversion into a mangrove forest and if so, they may also suggest the methodology by which it can be converted into a full- fledged mangrove forest to improve the coastal environment in that Page 52 of 58 area and if such methodology is suggested, then the same is also directed to be carried out by the State of Andhra Pradesh in its letter and spirit.
i. Any revision of existing CRZ areas during preparation of Coastal Zone Management Plan on the basis of the CRZ Notification, 2019 cannot be considered mechanically and without considering the intertidal zones, the extent of mangrove forest available in that area, its impact as service being rendered by the mangrove including protection from global warming. They must conserve and preserve the same instead of destroying the marine environment and other ecosystems in the area.
j. The orders passed by the Tribunal in respect of implementation of the scheme is subject to the further orders to be passed by the Hon‟ble High Court of Andhra Pradesh in the pending writ petitions viz., W.P. Nos.8221 of 2020 and 105 of 2020.
84. The points are answered accordingly.
85. In the result, both these Original Applications [O.A. Nos.65 & 74 of 2020 (SZ)] are allowed in part and disposed of with the following directions:-
(I) The State of Andhra Pradesh is restrained from carrying out the construction of project in CRZ - I A area in the disputed place as per the CRZ Notification, 2011 and 2019 and as earmarked in the CZMP prepared on the basis of the CRZ Notification, 2011.
(II) No attempt must be made by the authorities to convert the land use which is likely to affect the existence of mangroves and its protections so as to develop that area for other development purpose which in fact is prohibited under the CRZ Notification, 2011 and 2019 considering the impact and role played by mangroves in protection of environment apart from providing indirect and direct benefits to the society and mankind.Page 53 of 58
(III) The State of Andhra Pradesh through its District Collector is directed to remove the obstruction caused to the creek which is passing through the proposed project area under dispute so as to ensure the free flow of seawater in the creek to enable the sustenance of mangroves in that area.
(IV) The State of Andhra Pradesh through its concerned instrumentalities viz., Public Works Department & the Kakinada Port Authorities are directed to provide as many box type vents as possible in the road that has been constructed by the Port Authorities under ADB funded project between the sea and the land prior to coming into the force of CRZ Notification, 1991 in this area so as to provide access to the saline water for the mangroves that is being in existence beyond the road on the land ward side as seen from the Forest Cover Map prepared by the Forest Department to protect the mangrove forest in that area.
(V) The State of Andhra Pradesh is directed to pay an interim compensation of Rs.5 Crore only for the damage caused to the mangroves in the existing area covering an extent of nearly 18 Acres and this will be subject to the further compensation to be assessed by the committee appointed by this Tribunal and this amount has to be paid to the APCZMA which they can utilize for the purpose of protecting the coastal environment including protection, conservation and preservation of the existing mangroves in the coastal area in the area in dispute and other areas and also utilize the same for increasing the mangrove forest cover in the coastal zone so as to enhance resilience to the disasters like climate change, flood erosion and cyclonic effects and the amount must be paid within a period of 6 (Six) months and if it is not paid, then the APCZMA is directed to recover the same from the State instrumentalities in accordance with law. (VI) In order to assess the environmental compensation and the amount required for restoration of the damage caused to the mangroves, we appoint a Committee comprising of (i) a Page 54 of 58 Member from the NCZMA; (ii) a Member from the SCZMA -
Andhra Pradesh; (iii) a Member from M.S. Swaminathan Research Foundation having expertise in mangrove ecosystem and marine ecosystem; (iv) a Member from the East Godavari Estuarine Ecosystem Foundation who had conducted the study in that area earlier; (v) a Member from the Salim Ali Centre for Ornithology and Natural History, Coimbatore and (vi) a Member from the National Centre for Sustainable Coastal Management, Chennai to ascertain the total area of mangroves which was in existence on the basis of the study (if any) earlier conducted by any of the institutions like M.S. Swaminathan Research Foundation or East Godavari Estuarine Ecosystem Foundation and also on the basis of the Forest Cover Map that has been prepared by the Forest Department in respect of this area and thereafter, assess the compensation for the destruction caused to mangroves and its impact on environment taking into account its direct and indirect value base, its significance in protection of environment, role in mitigating impacts of climate change, coastal zone protection and economic growth that is likely to be obtained by its existence and loss of ecological services lost on account of such destruction and also identity methodology for restoration of the mangroves to its original position and expenses required for restoration, including the agency under whose supervision the restoration work will have to be carried out and after assessing the amount, then submit a report to the Chief Secretary to Government, State of Andhra Pradesh within a period 6 (Six) months. On receipt of the report, the State of Andhra Pradesh is directed to pay the additional compensation (if any) assessed by the Committee to the APCZMA within a period of 6 (Six) months and if the amount is not paid, then APCZMA is directed to recover that amount from the State Government in accordance with law and utilize the amount for conservation, protection and Page 55 of 58 preservation of mangrove forest in that area and other areas and also for developing new mangrove forest wherever feasible and possible to protect the marine environment as directed by the Tribunal in O.A. No.160 of 2020 (SZ). (VII) If such report is filed, then the State of Andhra Pradesh is directed to pay the compensation assessed to the APCZMA within a further period of 3 months and carry out the restoration process as suggested by the Committee under the supervision of the agency suggested by the committee and also undertake the maintenance of the plantation that has been made for a period of 5 years and to ensure its survival rate not less than 85% so as to preserve and conserve the mangrove forest that has been developed to protect the environment.
(VIII) The committee is also directed to prepare a plan for the entire 58 Acres, where the forest cover was found including the mangrove forest for conversion into a mangrove forest and if so, they may also suggest the methodology by which it can be converted into a full-fledged mangrove forest to improve the coastal environment in that area and if such methodology is suggested, then the same is also directed to be carried out by the State of Andhra Pradesh in its letter and spirit. (IX) Any revision of existing CRZ areas during preparation of Coastal Zone Management Plan on the basis of the CRZ Notification, 2019 cannot be considered mechanically and without considering the intertidal zones, the extent of mangrove forest available in that area, its impact as service being rendered by the mangrove including protection from global warming. They must conserve and preserve the same instead of destroying the marine environment and other ecosystems in the area.
(X) The orders passed by the Tribunal in respect of implementation of the scheme is subject to the further orders to be passed by the Hon‟ble High Court of Andhra Pradesh Page 56 of 58 in the pending writ petitions viz., W.P. Nos.8221 of 2020 and 105 of 2020.
(XI) Considering the circumstances, parties are directed to bear their respective costs in the respective original applications. (XII) The Registry is directed to communicate this order to the members of the Committee constituted by this Tribunal and also to the Chairman - Andhra Pradesh SCZMA, Principal Chief Conservator of Forest (HoFF) and Chief Wildlife Warden, State of Andhra Pradesh, Special Chief Secretary to Government, Department of Environment, Forest, Science and Technology and the Chief Secretary to Government, State of Andhra Pradesh for their information and compliance of directions.
(XIII) The committee as well as the Andhra Pradesh SCZMA and the Chief Secretary to Government, State of Andhra Pradesh are directed to file their periodical reports regarding the compliance of directions and submissions of the report once in six months till the entire recommendations are complied with by the respective departments to be suggested by the Committee constituted by this Tribunal for this purpose. (XIV) As and when the reports are filed, the Registry is directed to place the same before the Bench for consideration and also for issuing necessary further directions (if any) required in this regard.
(XV) We appreciate the efforts taken by the learned counsel appearing for the applicants in both the cases, though appearing as lawyer for the applicants and also the learned Additional Advocate General and the Standing Counsel appearing for the State of Andhra Pradesh in assisting the Tribunal in arriving at a just conclusion and directions to be issued to protect the coastal environment by developing mangrove forest in that area.
Page 57 of 5886. With the above observations and directions, both these Original Applications are disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O. A. No.65/2020 (SZ) O.A. No.74/2020 (SZ) 29th September 2022. Mn.
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