National Green Tribunal
Sakeer S/O. Kunhimoideen vs State Of Kerala Rep. By Its Secretary ... on 24 December, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
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Item No.
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 259 of 2016 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Mr. Sakeer,
Ponnanai Nagaram P.O,
Malappurama District,
Kerala State. .. Applicant
Vs.
1. State of Kerala,
Rep. by its Secretary,
Fisheries & Port Department,
Thiruvananthapuram.
2. The Director of Ports,
Valiyathura, Vallakkadavu,
Thiruvananthapuram.
3. The Port Conservator,
Ponnani Nagaram,
Malappurama District,
Kerala State.
4. The Ministry of Environment & Forest,
Rep. by its Director, New Delhi.
5. The Kerala State Environment Impact Assessment Authority,
Rep. by its Member Secretary, Petta P.O,
Thiruvananthapuram.
6. The Kerala Coastal Zone Management Authority,
Rep. by its Member Secretary, Pattom P.O,
Thiruvananthapuram. ... Respondent(s)
For judgment reserved on: 15.12.2020
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Date of uploading judgment: 24.12.2020
CORAM:
HON‟BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON‟BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
Whether judgment is allowed to be published on the internet:Yes/No
Whether judgment is to be published in All India NGT Reporter:Yes/No
For applicant : Nil
For Respondent(s) : . Mr. E.K. Kumaresan for R1 to R3
Mrs. Me. Saraswathi for R4
Mrs. Vidyalakshmi Vipin for R5
Mrs. Rema Smrithi for R6
JUDGMENT
Pronounced by Justice K. Ramakrishnan, Judicial Member The above case has been filed by applicant challenging the act of the respondents 1 and 2 in granting permission for conducting dredging activity vide Annexure A9 as G.O.Ms.No.26/2016 dated 17.8.2016 without obtaining Environment Clearance and without obtaining recommendations from the sixth respondent - Kerala Coastal Zone Management Authority.
2. It is alleged in the application that the applicant is a resident of Ponnani in Malappuram District of Kerala State, residing by the side of the Bharathapuzha river where the second respondent port viz., the minor port of Malappuram District is situated. The applicant is the owner of fishing boat by name "Anasmon" with Registration No.IND-KL-06-MN-4461 of 1997 model boat having 106 HP capacity, registered on 24.8.2015 under the Merchant Shipping (Registration of Indian Fishing Boats) Amendment Rules, 1988 before the Deputy Director of Fisheries at Malappuram District in Kerala State, evidenced by Annexure A-1. He had also obtained Master 3 License from the Port Department dated 24.2.2010, evidenced by Annexure A-2.
3. The first respondent passed an order, vide Annexure A-3 G.O. (Ms)No.17/2010/F & PD dated 18.3.2010, permitting the co-operative societies registered under the Kerala Co-operative Societies Act, 1969 with a valid permit issued by the Conservator of Ports, to carry out the manual dredging of sediments within the port limits, as part of channel clearing dredging, without adversely affecting the riverine bio diversity, not causing any stream bank erosion or further sedimentation at the river mouth. Ex.A- 3 Government Order was issued to remove the sediments accumulated in the port channel which was a great concern for the fishing vessels to reach the port premises. The sedimentation formed in the rivers at the bar mouth of estuary are mainly sand bars which inflict severe damage to the fishing vessels when the vessels hit those dunes when reaching the fishing harbor situated in the port premises.
4. In accordance with Annexure - A3, the third respondent allotted the manual dredging work to various co-operative societies during the year 2010 which were not formed in accordance with Annexure- A3. Subsequently, the first respondent issued Annexure -A4 G.O.(Ms) No.29/2012/F&PD dated 13.4.2012 allotting manual dredging work to various o-operative societies registered under the Kerala Co-operative Societies Act, 1969 for the subsequent year 2012-13. Again Annexure -A5 G.O.Ms.No.54/2013/ F&PD dated 16.8.2013 was issued in continuation of Annexures A3 and A4 for the year 2013-14. This was issued in order to select the co-operative societies for manual dredging in various ports for the year 2014-15. While issuing Annexures A-3 to A-5, the Government 4 had restricted the manual dredging work only to the co-operative societies registered under the Kerala Co-operative Societies Act, 1969 with the main objective that the co-operative society should handle manual dredging by which the members of the co-operative societies can earn their livelihood. This was in accordance with the official memorandum issued by the fourth respondent dated 8.11.2011 whereby the fourth respondent directed that removal of sand bar has to be done by the traditional coastal communities by manual method (i.e., sand collection in non-mechanized dinghies or small boats using baskets/buckets by human beings) evidenced by Annexure -A6 dated 8.11.2007. It is also mentioned in Annexure - A6 that the accumulation of sand bar, and the process of removal etc shall be studied by the State Government with the help of satellite imageries, GPS etc with a further direction that permits to remove sand should not be accorded in areas which are identified as eco-sensitive zones, fish migratory and breeding grounds. It should be given after taking into consideration of the local circumstances and ecological settings. The first respondent also issued circulars, directing the local communities residing near the port premises to form societies with their main objective as sand mining or dredging of port channel and several such societies were formed in Kerala State for this purpose. The Ponnani fishing harbor is situated in Bharathapuzha river before the river reaches the estuary of Arabian Sea. It is situated approximately 800 meters East from the river mouth. The port is having the length of 2.41 KM and breadth of 1.2 KM.
5. On the basis of the above said notification, respondents 1 to 3 have divided the port area of Ponnani Port into 20 zones for allotting it to various co-operative societies for sand mining under the cover of manual dredging as part of channel clearing and even beyond the fishing harbor to the 5 extreme eastern side of the boundary of the port area in Bharathapuzha river which is against the environmental laws. Annexure A-7 is the Google Map showing 17 zones fixed by the respondents 1 to 3 for allotting the area for this purpose. They are doing the sand mining in the guise of dredging without obtaining Environment Clearance as required under EIA Notification 2006 and it is also in violation of the Coastal Zone Regulation Notification and without obtaining necessary recommendation from the fifth respondent and on account of their activity, the Bharathapuzha river has been polluted and due to the indiscriminate sand mining permitted in that area, the depth of the river has been increased resulting in intrusion of saline water in the water sources available in that area that has affected the potable nature of the drinking water in their well.
6. There were several litigations filed before the High Court of Kerala with regard to the illegal sand mining under the cover of channel clearing work and pollution caused to the same. So the first respondent made an application for Environment Clearance before the fifth respondent in the year 2014 and the fifth respondent in its meeting held on 5.2.2014 vide Annexure A-8 Environment Clearance considered the application filed by the second respondent for Environment Clearance for this purpose and it was found that they have not provided the Environment Management Plan and so they have directed to provide the same while making further application after June, 2014 since the present clearance is valid only upto June, 2014. The fifth respondent had recommended the Environment Clearance only for maintenance dredging for channel clearing for the period upto 15.6.2014 on condition that future dredging if any, shall be in compliance with the CRZ norms and other environmental concerns 6 addressed through Environmental Impact Assessment studies, evidenced by Annexure A-8.
7. Item No.24 of Annexure A-8 refers to the consideration of Environment Clearance regarding Ponnani Port where survey number mentioned was S.No.13/09 of Ponnani Village in Malappuram District, for Environment Clearance in respect of 4 properties belonging to the Ponnani Port which in a dry land and not area of river channel where they are intending to do their activity. They could not carry out sand mining due to various litigations pending before the Hon‟ble High Court of Kerala at that time. But they were carrying out mechanical dredging work in the port cannel during all these times in order to clear the port channel from the estuary until the fishing harbor which is sufficient enough to clear the port channel for easy ingress and egress of the boat from the estuary to the Port.
8. Thereafter, as per Annexure A-9, G.O.(Ms) No.26/2016 (F&PD) dated 17.8.2016, the respondents 1 and 2 have permitted the Local Self Government institutions like Ponnani Municipality and some Grama Panchayats by the side of the Bharathapuzha river to carry out sand mining work in the port area which was earlier permitted to carry out by the co- operative societies. The members of the co-operative societies were asked to register with the Local Self Government Institutions as sand mining labourers to carry out the sand mining in that area so as to provide employment. The Bharathapuzha river which flows from east to west before reaching at the estuary in Ponnani is having a regulator-cum-bridge at the place called Chamravattom. It was constructed in order to avoid saline water intrusion to the upstream on account of indiscriminate sand mining 7 conducted by the Ponnani Port. Due to the existence of regulator-cum- bridge, there was no possibility of sand being flown from the upstream to the downstream beyond the regulator-cum-bridge. So sand mining is being done under the cover of dredging which is illegal. So the applicant filed this application seeking the following reliefs:
"Direct the respondents 1 to 3 to compensate the applicant at Rs.1,00,000/- (Rupee One Lakh only) for illegal sand mining carried out in the Bharatrhapuzha river coming within the territory of Ponnani Port on the strength of Annexure A5 circulars without obtaining environment clearance stipulated under the Environment Impact Assessment Notification, 2006 issued by the fourth respondent under the principle of polluter pays. Set aside the Annexure A-9 being G.O.Ms.No.26/2016 dated 17.8.2016 issued by Government of Kerala F & PD Department without obtaining environmental clearance stipulated under EIA Notification, 2006 and without obtaining recommendations from the 6th respondent."
9. Respondents 1 to 3 through third respondent filed the reply affidavit contending as follows: The application is not maintainable. The applicant is the Director of Puzhayora Manal Marketing and Processing Cooperative Society Ltd., having Registration No.M 934, Ponnani Nagaram (PO), Malappuram District which was formed on 5.3.2014 with the sole purpose of participating and carry on manual dredging. He had no complaint regarding his taking part in the dredging activities till the application was filed. Since the co-operative societies have committed some foul play in carrying out the dredging activities and involved in illegal sand mining, the Government had changed the policy of entrusting this work to the co- operative societies and decided to entrust the same to the Local Self 8 Government Departments by the impugned notification and the reason for change of policy taken by the Government has been willfully suppressed by the applicant. Further, there were more than fifty societies established. Most of them were newly established and the rivalry between the head of the societies engaged in gaining the tender for manual dredging at Ponnani Port led to various litigations which resulted in non carrying out manual dredging in that area due to the interim stay order granted by the Hon‟ble High Court of Kerala since January, 2015.
10. All these litigations were filed questioning the tender procedure and none of the writ petition had challenged or raised any environmental issue. Number of vigilance reports were placed about the illegal activities done by the co-operative societies in the manual dredging. On account of these litigations, the vital port activities were affected on account of lack of maintenance dredging in the port channels. Various port accidents were also reported due to collision of boat with the sand bars in the navigation channels of Ponnani Port which resulted in changing the policy of the Government and also deciding to entrust the same to the Local Self Government Departments instead of co-operative societies.
11. Some office bearers of the co-operative societies who were aggrieved by the notification, moved the High Court of Kerala to quash the G.O.Ms.No.26/2016 dated 17.8.2016 as W.P.(C) No.32962 & 34436 of 2016 and batch of connected cases and after hearing these cases, the Hon‟ble High Court of Kerala had dismissed these batch of writ petitions vide its common order dated 2.11.2016, permitting the Government to go ahead with the manual dredging activities through Local Self Government Departments.
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12. The persons who have failed in their attempt, set up the applicant before this Tribunal with false allegations of environmental issues to upset the government policy on manual dredging entrusted to the Local Self Government Departments. The applicant has willfully suppressed the fact of dismissal of the challenge made before the High Court in respect of the impugned notification viz., G.O.Ms.No.26/2016 dated 17.8.2016 before this Tribunal.
13. The selling price were retained by the Government itself and the activities were directed to be carried out by the Local Self Government Departments. They denied the allegation of any sand mining in that area. The respondents have applied for Environment Clearance for dredging on account of the wrong understanding of the earlier order of the National Green Tribunal, Principal Bench, New Delhi, directing Environment Clearance to be obtained for all mining activities. But subsequently as per order in O.A.No.271 & 286 of 2013 dated 17.1.2014 the National Green Tribunal had clarified that maintenance dredging in ports are exempted from Environment Clearance. Further dredging activities are also allowed under the CRZ Notification and as such there is no necessity for obtaining any Environment Clearance and the application is not maintainable. So according to the respondents there is no environmental damage caused and there is no merit in the application and they prayed for dismissal of the application.
14. Respondent No.4 filed reply affidavit only reiterating the notification, procedure for applying for Environment Clearance as provided under the EIA Notification, 2006 as amended by notification dated 15.1.2016. 10
15. The sixth respondent filed reply affidavit contending that the State Government had issued an order to remove the sediments accumulated in the port channel which was a great concern for the fishing vessels to reach the port. The sedimentation formed in the river at the bar mouth of estuary are mainly sand bars which in float severe change to the fishing vessels that hit those dunes in reaching the fishing harbor situated in the port.
16. The Port Conservator allotted the manual dredging work to various cooperative societies. Ponnani Port is coming under CRZ-I, CRZ-II and CRZ-IV which is in Ponnani Municipality. The Kerala Coastal Zone Management Authority constituted by MoEF & CC supervises the implementation of provision of CRZ Notification1991/2011 in the State. The act of illegal dredging and sand mining is a violation of the provision of CRZ Notification, 2011. Dredging activities in CRZ area required clearance from the Kerala Coastal Zone Management Authority as per Clause 3(iv)
(c) and 3(X) of the CRZ Notification, 2011. As per Clause 3(iv) (c) land reclamation, bunding of disturbing the natural course of sea water is a prohibited activity except those maintenance or clearing of waterways, channel and ports, based on EIA studies. Hence, dredging activity initially influenced water body as to be done only after conducting detailed EIA studies. As per Clause 3(X) mining of sand, rocks and other sub strata materials except (a) those rare minerals not available outside the CRZ area
(b) exploration and exploitation of oil and natural gas. So sand mining carried out in CRZ without CRZ clearance is in violation of the provisions of CRZ Notification, 1991 and 2011.
17. The fifth respondent had filed a memo, adopting the contentions in the counter affidavit raised by fourth respondent.
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18. The applicant filed rejoinder affidavit to the reply affidavit filed by the respondents 1 to 3, denying the allegations made by them. The application was for compensation filed by his brother and he signed the same as directed by the third respondent without knowing the contents, produced as Annexure A-10. When he came to know about the same, he approached the third respondent to return the application but they had not returned the same and the same was taken as a complaint before the police which was registered as Cr.No.420, 468, 469 and 471 read with 34 IPC which was produced as Annexure A-11.
19. The Principal Bench has granted exemption from Environment Clearance for dredging to be done by Government Authorities and not by the private persons. Further, they are not entitled to sell the same for commercial purpose as clearing and selling of sand without obtaining Environment Clearance is against law. The allegation that selling was done in a transparent manner through on line process is not correct and it has been given to one private concern by name M/s. Global Trading Company vide G.O.(Ms) No.71/2014/F&PD dated 15.12.2014, evidenced by Annexure A-12. The applicant also produced the final order passed in O.A.No.2712 and 286 of 2013 dated 8.8.2014, evidenced by Annexure A- 13, wherein the Principal Bench had strictly directed the respondents to obtain Environment Clearance stipulated under EIA Notification, 2006 issued by the fourth respondent. It is on that basis, they have obtained Annexure A-8 Environment Clearance on 5.2.2014 from SEIAA. But on going through the allegations in para 5 of the reply affidavit as well as Annexure A-12, the project will fall under Category „A‟ or category „B1‟ for which „public consultation‟ is required and as such the Environment Clearance for the project has to be obtained from the fourth respondent. 12 So according to him, the violation committed are actionable against the respondents 1 to 3 and he had prayed for allowing the application.
20. This Tribunal, on the basis of the directions, issued by the Hon‟ble High Court of Kerala in W.P.No.16729 of 2017 dated 19.5.2017 had taken up the matter in Court-I of this Bench and after hearing both parties, observing that dredging operation for maintenance of port, river etc, did not require Environment Clearance as per amendment to EIA Notification, 2006 dated 15.1.2016, permission was granted for dredging either manual or otherwise for the purpose of maintenance and restrained the respondents 1 to 3 from selling the dredging sand to any third parties until further orders.
21. This was challenged by respondents 1 to 3 before the High Court of Kerala by fling W.P.(C).No.20379 of 2017 and the order was stayed by the Hon‟ble High Court. Thereafter, this Tribunal on 13.2.2020 considered the pleadings and also the subsequent proceeding before the Hon‟ble Apex Court where the order of stay granted by the High Court of Kerala was challenged before the Apex Court by the applicant herein and the Hon‟ble Apex Court had stayed the interim order of stay granted by the High Court.
22. Though the dredging was permitted for the purpose of maintenance, the sale of the same was not permitted by virtue of the order of the Apex Court, staying the interim order granted by the High Court of Kerala.
23. This Tribunal, in order to ascertain the present situation and also violations if any, of any environmental laws, constituted a joint committee comprising of Senior Officer from the MoEF & CC, Regional Office, Bengaluru, SEIAA, Kerala, Director of Mines, Geology and Director of 13 Ports, Kerala and Kerala State Coastal Zone Management Authority to consider the allegations made in the application and inspect the area in question and submit a detailed status as well as take action, if there is any violation found in doing the dredging as permitted under the notification and Environment Clearance granted for the purpose of Ponnani Port and if there is any illegality committed in mining over the above the permitted quantity in the guise of dredging and if it is to put to commercial use, the committee was directed to identify those persons and take appropriate action against them in accordance with law, including imposition of Environment Compensation for illegal mining.
24. The fifth respondent had filed the report along with certain documents which was received by this Tribunal on 15.2.2020 which reads as follows:
"No.C3-5093/2013/DP Dt.5.2.2014 ENVIRONMENTAL MANAGEMENT PLAN OF DREDGING IN PORTS Quantity - as per annual dredging plan subject to the limits fixed by EIA study by competent institutions and the requirements as per the size of the ships frequently coming to the port wharf. The quantity is also assessed in terms of the infrastructure capacity to dredge, store and transport in the port in an environment friendly manner by considering the number and capacity of such jetties, yards ad registered boats capacity. Restriction/banning dredging for one month to two and a half months during fish breeding season corresponding to the trawling ban declared by the Government. In addition to this, the permit holders and the Director of Ports shall jointly decide the breeding season, spawning season of fishes and 14 other bio diversity in the port limits when disturbance would affect the fecundity, survival of the young ones, etc and thus minimizes or stops the manual dredging activity for specific periods/weeks/months in specific zones or in the entire port limit.
Jetty - by using wooden planks and coconut stem, without inspecting the stream bank certified by an expert team. From the jetty, there should be an already built wide road to evacuate the dredged material without causing heavy noise, dust, conjustion.
No washing of dredged material on river banks or within the coastal zone. No big trucks permitted to transport the dredged materials. The unloading of dredged material in the jetty and loading on to trucks should not cause damage to the river bank or cause shore bank erosion and heavy machinery causing noise pollution or dust pollution shall not be used at the river bank for loading or unloading.
No motorized boats, only non-mechanised wooden boats permitted which are registered under Harbour Crafts Rules and Registration number prominently displayed on both sides of the boats.
70m - no dredging zone from banks & 20 m for islands 500m - no dredging from any bridge Every zone has natural or already built jetty with adequate back up land behind the jetty for storing the dredged material without flowing to the river or causing stream bank erosion or sliding of the dredged material or polluted water back to the river, due to natural slope or natural drainage channels.
15Cost of mitigation, if any, will be recovered from the permit holder. Aichi bio diversity targets awareness creation will be done - two targets per month, training to all society members There are 13 tender conditions in the 2013 manual dredging tender pertaining to environmental aspects which will be strictly followed ad a monthly compliance report obtained from all permit holders by the Port Conservator.
Tender evaluation based on environmental performance criteria with more marks for items 5,7,9 & 10 in Form 3 of the tender evaluation. Co operative societies constituted by the traditional manual dredging workers permanently residing within 10 km radius alone are eligible as per norms. The office and area of operation of the cooperative society as per its bylaw should be within 10 km radius of the port limits, since it is likely that local permanent resident will have more stake and interest in the conservation and preservation of the environment and biodiversity. Environment aspects and impacts register is maintained in the port by the Port Conservator and updated on weekly basis.
Periodic measurement of water quality, tidal changes and other meteorological parameters in the ports and their display. Environment cell in Port Department with emphasis on greening port premises zero waste, energy from renewable sources such as solar. Separate e-governance software for manual dredging for full online booking system, online payment from customers directly to the bank account of the permit holder and online permit issue.
16All canoes/boats will be entered in the software module on a daily basis with respect to capacity of dredged material brought, registration number, number of crew, number of grips per day of the boats etc to cross check quantity in addition to vehicle passes issued sat each jetty. One should not have any environmentally sensitive or bio diversity rich areas, mangroves etc. Zones in the river should not be near to thickly populated areas, conventional husk retting, fishnet areas, local fish catching centre, fish processing places etc. One jetty of approved design, safe and accessible for inspection, for one zone.
The online e-governance module will enter the names of traditional manual dredging workers who constitute the permit holding co-operative society and each day the system will have an attendance of actual workers who dredge. From this, the total quantity dredged can be estimated additionally by calculating per person dredged quantity averages. This is to ensure that the beneficiaries are local stakeholders who permanently reside in the immediate vicinity of the dredging activity who are likely to have higher interest and stake in the preservation of their local environmental components.
Only the member of the society are permitted in the manual dredging and related works within the port limits. If non members are engaged for the work after getting the permit and the cooperative society acts as an employer then the permit will be cancelled without notice. Then it is likely 17 that the local residents who constitute the cooperative society will carry out dredging in an environmentally responsible land sustainable manner. Manual dredging is permitted only for the purpose of channel clearing dredging and without adversely affecting the environment, riverine biodiversity not causing any steam bank erosion or further sedimentation at the river mouth.
Executive Summary: Dredging in Ponnani Port Ponnani is a notified port owned and operated by Government of Kerala dredging either mechanized or manual, is resorted to deepen the shipping channel. As per GO.(Rt) No.576/2011/F&PD dt. 20.8.2011administrative sanction was accorded for carrying out he environmental impact assessment study on manual dredging at Ponnani and Azhikkal Ports and for entrusting the work to CWRDM for Rs.7,72,100/-. Accordingly, Director of Ports, Trivandrum issued work order to CWRDM, Kozhikode, as per Lr. No.C4-6009/09/F&PD dt. 26.8.2011. The expert team of CWRDM visited Azhikkal & Ponnani Port and conducted the environmental study on manual dredging and interviewed and discussed the matter with officials, manual dredging labourers, local public etc as part of their study and final report submitted on 3.9.2012. The report was submitted to Government vide Lr.No.C3/ 6009/09/F&PD dt. 2.11.2012.
The main recommendations land conclusions of the study report regarding Ponnani Port are given below:
Manual dredging of sand from port limit of Ponnani is to be implemented in a phased manner. The area feasible for dredging can be broadly divided 18 into two portions along the central line. The region can be further divided into different zones.
A total bank on dredging should be imposed for a period of 2 ½ months. The bank will start from the 1st of ban on trawling and will extended till 31st August. The permissible quantity of sand which can be removed is 42,300 Tons only per month.
Ponnani estuary is rich in marine and estuarine fish varieties. Hence, dredging may be carried out in a phased manner which will ensure the free movement of migratory fishes in the undisturbed area and will cause the minimum damage of e breeding place of the migratory fishes. A non dredging zone of 5-m width along the river on either bank may be earmarked to ensure the safety of the river banks and bathing hats. Similarly, a non dredging zone of 20 metre around the periphery of every island may be earmarked to ensure the existence of these island. To ensure better control by the Port Department over the dredging activities, it is recommended that all the dredging societies should be deployed into single at a time. This will also help the port authority to control the unauthorized, illegal mining activities practiced in this area. Besides this will ensure equitable distribution of advantageous and disadvantageous among all the dredging societies.
To ensure minimal damage to the infrastructure particularly to the roads, vehicles with heavy axle load should be prohibited in to the Kadavus. Suitable penalties may be imposed on societies for any violation. Quantity of land that can be dredged from the port limit is required to be reassessed after three years."19
25. They have also produced the proforma submitted for Environment Clearance, the minutes of the meeting of SEIAA and the Environment Clearance dated 7.5.2014 granted by SEIAA to the port for the purpose of dredging wherein one of the conditions mentioned was that the future dredging shall be in compliance with CRZ norms and other environmental concerns addressed through EIA studies.
26. Pursuant to the order dated 13.2.2020, the joint committee had submitted its report which reads as follows:
"REPORT OF THE JOINT COMMITTEE CONSTITUTED BY HON‟BLE NGT ( SZ) IN THE OA NO. 259 OF 2016 IN THE MATTER OF SHRI SAKEER VERSUS STATE OF KERALA RELATING TO DREDGING CARRIED OUT IN PONNAI MINOR PORT SITUATED IN BARATHAPUZHA RIVER, MALAPURAM, KERALA. 1.0. PREAMBLE In the OA No 259 of 2016, filed by Shri Sakeer Vs State of Kerala , the Hon‟ble National Green Tribunal (SZ), issued an Order dated 13.02.2020 with the following directions:
"15. In order to ascertain theses facts which is required for the purpose of disposal of the matter effectively. So, under these circumstances, we constitute a joint committee, comprising 1) Senior Officer from the MoEF &CC, Regional Office Bengaluru, 2) SEIAA, Kerala, 3) Director of Mines and Geology, 4) Director of Ports Kerala, and 5) Kerala Coastal Zone Management Authority to consider the allegations made in the petition and inspect the area in question and submit a detailed status report and also the action, if there was any violation in doing the dredging, as permitted under the notification and Environment Clearance granted for this purposed to Ponnai Port and if any illegality has been done on account of illegal mining over and above the permitted quantity, in the guise of dredging and if it is put to commercial use, then the committee shall identify those persons and take appropriate action against those persons, including imposing Environment Compensation for illegal mining and submit a factual as well as action taken report to this Tribunal."
The Regional Office of Ministry of Environment, Forest and Climate Change (MoEFCC), Bengaluru has been made as Nodal Agency. Accordingly, the nominations have been sought from the concerned department and nominations have been received. 2.0 PRELIMINARY MEETING In compliance of above mentioned order, the Regional Office, Ministry of Environment, Forests and Climate change (MoEF & CC), Bangalore, vide letter No F. No. EP / 12.7 / Misc/ Courtcase/ 2018-19 dated 02.06.2020 has requested the 20 concerned Departments / Authorities to nominate Senior official for the Committee to complete the task as assinged by the Hon‟ble NGT. A reminder was also sent on 15.06.2020.
On receipt of the nominations, a brief on the issues raised by the petitioner were prepared, sent to Members on 06.07.2020 and members were requested to provide the relevant details such as dredging carried out in Ponnai minor port situated in Barathapuzha river, details on Environmental Clearance, CRZ details of area and clearance, relevant Government orders, court cases etc. The tentative visit of the committee was scheduled thrice in the August, 2020 and October, 2020, however, due prevailing COVID lockdown / containment zone restrictions, monsoon conditions etc,. the physical inspection could not be conducted. In view of the above, a preliminary meeting was convened through VC on 14.08.2020. The Joint Committee examined the ToRs given by the Hon‟ble NGT and suggested the members to provide required documents such as background documents regarding the Ponnai minor port including the details of port establishment, date of commencement of port operation, relevant Environment/CRZ clearances, dredging carried out in so far along the location [section/ chainage wise details], relevant Government orders, court cases, details on usage / sale of dredged sand, present status of dredging activities in the port, Ground water quality in the vicinity, salinity intrusion etc,. EC for dredging activities, CRZ details of area and clearance accorded if any.
3.0 INSPECTION BY JOINT COMMITTEE Visit to M/s Ponnani Port was made on 11.11.2020 by the Joint Committee. Following members have attended:
1. Dr. Jayachandran K , Member, SEIAA, Kerala
2. Dr. Manoj, A. K, Geologist, District Office, Mining and Geology, Malapuram
3. Captain Aswini Pratap, Port Officer, Port Department, Kerala
4. Shri. E.Thirunavukkarasu, Scientist „E‟ Integrated Regional Office, MoEFCC, Bengaluru.
5. Dr. Prabhu, Scientist „C‟ Regional Office, MoEFCC, Bengaluru.
Also Shri Subhesh Thothyil, Assistant Geologist and Smt Amritha V, Assistant Geologist, Mining and Geology Department, Malapuram, Kerala were present. There was no dredging activity on the day of inspection. The Committee, after inspection of the port, discussion with the officials of Ponnai Port and also examination of the relevant documents, has sought additional documents/ information viz, map showing port boundary and dredging area along with dimensions of length, width and depth, replenishment rate of sand in the port area/ channel and the quantity of sand dredged, details on dredging activity, photograph and video clip on dredging, average numper of boats used for dredging, details on ground water quality around the Barathapuzha river, prior and after dredging etc,.
The Port Officer has submitted most of the information and sought about two weeks time for the submission of the remaining documents/information. In view of the above, the Joint Committee has recommended to seek four weeks time from Hon‟ble 21 NGT for submission of the report. Hon‟ble NGT vide order dated 19.11.2020 granted time till 15.12.2020 for the submission of the Report. On receipt of the remaining information from the Port, another virtual meeting of the Joint Committee meeting was held on 02.12.2020. Following members have attended:
1. Dr. Jayachandran K , Member, SEIAA, Kerala
2. Dr. Manoj, A. K, Geologist, District Office, Mining and Geology, Malapuram
3. Shri P. Kalaiarasan, Environmental Engineer, Directorate of Environment and Climate Change, Thiruvananthapuram
4. Captain Aswini Pratap, Port Officer, Port Department, Kerala
5. Shri. E.Thirunavukkarasu, Scientist „E‟ Integrated Regional Office, MoEFCC, Bengaluru.
6. Dr. Prabhu, Scientist „C‟ Regional Office, MoEFCC, Bengaluru.
4.0 ABOUT DREDING ACTIVITY BY M/S PONNAI PORT, PONNAI Ponnai fishing harbour / Ponnani minor port is situated at Lat.10 47'N and Long.75°55' E, in southern side of Barathapuzha river, before the river reaches the Arabian Sea. According to the Port Officer, the port is having a length of 2.41 km and a width of 1.2 km and was established about 50 years ago.
Fig 1: Ponanai Port location and boundary Maintenance dredging is carried out in Ponnani Port essentially for maintaining the navigability in the basins and channels of the Fishing Harbour. The Bharathapuzha River which meets the Arabian Sea after a long travel carries lot of silt and sand and is deposited in the estuary where the fishing harbour situates. There is a Ferry boat jetty at Padinjarekkara, opposite to the Ponani port/Fishing harbour . Therefore, it is inevitable to upkeep the entire zone of fishing harbour alive since over 500 boats are cruising to the fishing harbour on daily basis. Government designed manual method in maintenance dredging was to promote the livelihood of the poor coastal community in the coastal area of Ponnani numbering over 700 families. The development of Ponnani Port is flourishing since a container terminal construction is underway by M/s Malabar Ports private limited. During the years from 2010- 2014, the dredging was given to Co-operative Societies and from 2016 onwards it is being given to Local Self Government Department(SLGD) . The dredged material is being sold through the SLGD. The details are given below:
In 2010, when the manual dredging started, only three co-operative societies participated in the manual dredging, which then steadily rose and in the year 2013 there were more than 50 societies, and majority of them were newly established. The rivalry between the head of the societies in gaining the tender for manual dredging at Ponnani Port led to various litigations and the result was manual dredging could not be carried out because of the interim stay orders of Honourable High Court of Kerala since January 2015.
The Co-operative societies were entrusted with selling rights of dredged materials and hence they dredged the sand from the places where they gain commercial benefits. The 22 Port had warned and fined Co-operative societies number of times for dredging outside the port channel, which they did for their commercial benefits. Various boat accidents were also reported in this period because of collision with sand bars in the navigation channels of Ponnani Port. The above facts and circumstances forced the hands of the Government and it decided to oust the co-operative societies from manual dredging to put an end to all the illegal activities being carried on by these cooperative societies in the name of dredging the port channels.
The Government took a new policy decision on manual dredging in the channels and entrusted the same to the Local Self Government Department instead of the societies, vide the G.O.(Ms) No.26/2016 dated 17.08.2016 The other important change is that the Government is to keep the selling rights of the dredged material and cleaned sand through transparent online system. This ignited the leaders of the co-op societies to unite against the Government and they moved to the Honble Kerala High court to quash the said Government Order G.O.(Ms) No.26/2016 dated 17.08.2016, which is subject matter of W.P.No.32962 & 34436 of 2016 and a batch of connected cases. After hearing the batch of cases in detail, the Honourable High Court dismissed the batch of writ petitions by its common order dated 2.11.2016 and allowed the Government to go ahead with manual dredging activities through Local Self Government Department. The erstwhile co-op societies, having failed before the Hon‟ble High Court, are obviously opening another front and have set up the Applicant before this Honble Tribunal with false allegations of environmental issues solely to upset the Government policy on manual dredging, and trying to take march over the orders of the Honble High Court. The very prayer in the Application reveals the true intention of the Applicant and his cohorts. The Applicant has sought to set aside the very same G.O.(Ms) No.26/2016 dated 17.08.2016 issued the by the Government, which the Hon‟ ble High Court had upheld by its common order dated 2.11.2016. This fact is also suppressed by the Applicant.
No mining activities were never allowed and only maintenance dredging in the navigation channels in port limits were allowed and are to be performed. It is further submitted that the Port had applied for EC on a wrong understanding of an earlier order of the Honble NGT (PB) directing the EC was required for all mining activities. Subsequently, in O.A. 271 & 286 of 2013, by order dated 17.01.2014, Hon‟ble NGT(PB) clarified that maintenance dredging in ports are exempted from EC.
5.0 DELIBERATIONS OF THE COMMITTEE Hon‟ble National Green Tribunal in the order dated 19.08.2020 directed the Joint committee to look into the following:
(i) consider the allegations made in the petition and inspect the area in question and submit a detailed status report
(ii) the action, if there was any violation in doing the dredging, as permitted under the notification and Environment Clearance granted for this purposed to Ponnai Port 23
(iii) if any illegality has been done on account of illegal mining over and above the permitted quantity, in the guise of dredging and
(iv) if it is put to commercial use, then the committee shall identify those persons and take appropriate action against those persons, including imposing Environment Compensation for illegal mining and submit a factual as well as action taken report to this Tribunal.
5.1 ALLEGATIONS MADE IN THE PETITION 5.1.1 Government of Kerala has issued various orders permitting co-operative societies [from 2010-2014] and local authorities [ 2016] to carry out manual dredging within port limit. This has led to illegal sand mining. The Bharathapuzha river or Ponnani river as it is called in the lower reaches, is the second longest west flowing river that drains into the Arabian Sea in Kerala State. It rises in the Eastern slopes of Anamalai hills of the Western Ghats at an elevation of 2,250 m above MSL and flows in the North-Westerly direction in Pollachi taluk of Coimbatore district in Tamil Nadu State. The total length of the river from its origin to out fall is about 209 km and drains a total area of 6,186 sq km. The Bharathapuzha basin receives copious rainfall during the South West monsoon and it lies in the rain shed region of the Western Ghats. The rainfall varies from 2,000 to 2,800mm in the hilly region to 3,000mm in the coastal region. According to the port, the rate of replishment of sand in the river after every monsoon varies from 50 cm to 150 cm and dredging was carried out in an area of 334276 sqm hence, the average total sand that need to be dredged every year is 637553.39 MT and total for eight years from 2010 comes around 5100427 MT. However, no documentary evidence on the rate of replenishment has been produced, the Committee therefore considered the minimum rate of relinishment of 50 cm and calculated the sand to be dredged. Accordingly, the average total sand that need to be dredged every year is 255721 MT and total for eight years from 2010 comes around 2557210 MT. As per the records, produced, the following are the quantity dredged from the year 2010 to till date. The total sand dredged comes around 1302260 MT only:
Table 1: Deatailes of Sand dredged till Oct, 2020 SL. No Year Sand dredged, MT
1. 2010 52350
2. 2011 255869
3. 2012 373248
4. 2013 177172 5. 2014 0 6. 2015 0 7. 2016 0
8. 2017 34873
9. 2018 16226
10. 2019 134124
11. 2020 112358 24 TOTAL 1302260 In view of the above, the Joint Committee concluded that it was maintenance dredging only and not sand mining. However, the major port area falls within the Coastal Regulation Zone and Coastal Zone Management Plan (CZMP) 1996 was operative while carrying out the dredging and the site in question was categorised as CRZ I (mud flats) partially. Eventhough the dredging for port activity is permissible under CRZ Notifications 1991 and 2011, the Port department not submitted any application to obtain the CRZ clearance from Kerala Coastal Zone Management Authority. 5.1.2 Port divided in to 20 zones for allotting to various Societies, not in the channel, extreme eastern side of the port boundary, where they can obtain huge deposits of high quality sand under the cover of dredging.
As regards the contentions of the applicant that drediing carried out not in the channel and in extreme easter side of the port boundary, the port has informed that there is a Ferry boat jetty at Padinjarekkara, opposite to the Ponani port/Fishing harbour . Therefore, it is inevitable to upkeep the entire zone of fishing harbour alive since over 500 boats are cruising to the fishing harbour on daily basis. Accordingly, the dredging within the port limit as given in the Fig 2. is being carried out. No dredging beyond the port boundary on easternside as alleged by the applicant has been carried out.
Fig 2: Dredging Zone The committee also noted from the Google Earth Imageries of prior dreding [2010] and latest in 2020 that lot of sand bars/ land masses present in the eastern side of the port in the river beyond port boundary and hence it appears to be no dredging beyond the port limit. Google earth maps of 2010 [prior to dredging] and 2020 [latest] are produced below:
Fig: 3 Google Earth map showing land masses between Port and Chamravaatom Bridge in January,2010.
Fig: 4 Google Earth map showing land masses between Port and Chamravaatom Bridge in April,2010.
5.1.3 Mining in more than 50 ha, becomes Category A project however, no EC has been taken, only EC taken for maintenance dredging till 15 June, 2014.
The Committee noted that it was dredging only and not sand mining, and hence the contention of the applicant that that the project requires EC for sand mining is not valid. However, it attract the provision relating port and harbour. Following are the provisions relating to requirement of EC for port, harbour and dredging activity under the amendment issued vide S O 3067 (E) dated 01.12.2009 to the EIA Notification, 2006:
Sl.No. Project Activity Category with Thershold Conditions if any 25 A B 7 (e) "Ports, ≥ 5 million TPA "General Condition shafl harbours, break of cargo apply.
< 5 million
waters, handling
TPA of cargo
dredging capacity
handling
Note: 1. Capital dredging
(excluding
capacity
inside and oubide the
fishing
and/or ports/
porb or harbors
harbours)
harbours
channels are included;
≥10,000 TPA
of fish
handling 2. Maintenance dredging
capacity is exempt provided it
formed part of the
original proposal for
which Environment
Management plan
(EMp) was prepared and
environmental clearance
obtained.,
It can be seen according to the above, the maintenance dredging is exempted from the requirement of prior EC provided it formed part of the original proposal for which Environment Management Plan (EMP) was prepared and environmental clearance obtained. However, in this case, since the port has established about 50 years ago, prior to the EIA Notification, 1994 & 2006 and no EC was mandated at that time of establishment and hence no EMP was prepared.
The Joint Committee searched for relevant notifications or Office Memorandums issued by the Impact Assessment (Policy ) Division of MoEFCC but could not get specific regulation/ guidelines on the exemption of maintenance dredging/ the requirement of EC for such projects. However, it was noted that Honble NGT (Principal Bench) vide Order dated 14.01.2014 in M.A. No. 803 of 2013 in Original Application No 286 of 2013 in the matter of Hasan M. Vs. State of Kerala & Ors, clarified that maintenance dredging in ports are exempted from EC The Committee further noted that EC was granted by SEIAA vide No. 229/SEIAA/KL/529/2014 dated 07.05.2014 which was valid till June 2014. The Port officer has informed that the Port had applied for EC on a wrong understanding of an earlier order of the Honble NGT (PB) directing the EC was required for all mining activities. Subsequently, in O.A. 271 & 286 of 2013, by order dated 17.01.2014, the NGT(PB) clarified that dredging being done for the purposes of clearing the channels in the port are exempted from EC. Following are the relevant portion of the Orders:
Order dated 27.09.2013 of Hon‟ble NGT (Principal bench) in M.A. No. 803 of 2013 in Original Application No 286 of 2013 in the matter of Hasan M. Vs. State of Kerala & Ors.: 26
" Notice on M.A. No. 803 of 2013 as well for the same date. In the meanwhile,no sand mining activity would be carried on without obtaining Environmental Clearance from Ministry of Environment and Forests (MoEF) and/or SEIAA, as the case may be."
Order dated 17.01.2014 of Hon‟ble NGT (Principal bench) in the same matter:
"Learned counsel appearing for the Respondents submits that the Interim Orders passed by the Tribunal dated 27th September, 2013 have affected dredging operations, which they ought not to prohibit dredging for the purposes of clearing ship channels in the Port. Submissions made by the Respondents appear to be correct and reasonable and, therefore, we modify the interim Orders to the extent that they shall not apply to dredging being done for the purposes of clearing the channels and such works shall not be covered by our Interim Orders."
Copies of the Orders are enclosed at Annexure- I & II.
Further, Ministry issued an amendment to EIA Notification, 2006 vide SO 141 (E) dated 15.01.2016 which also exempts requirement of EC for certain activities including "Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management". However, this notification was suspended by Hon‟ble NGT vide its order dated 11.12.2018 in Excecutive Application No. 55 of 2018 in OA No. 520 of 2016. Ministry again vide S.O 1224 (E) dated 28.03.2020 has issued another amendment to EIA Notification exempting various activities including maintenance dredging from the purview of EC.
5.1.4 The area falls in CRZ, but no CRZ clearance has been obtained. As per the approved Coastal Zone Management Plans (CZMPs), majority of the ponnani port [ 500 m from High Tide line of Sea and 100 m from the High Tide line of River] falls within CRZ area.
According to the clause 2 (viii) of CRZ Notification, 1991 Which was in force during the year 2010, the maintenance or clearing of water ways, channels and ports or for prevention of sandbars or for tidal regulators is permissible activity with prior approval.
The CRZ Notification, 1991 WAS suprecedded by CRZ Notification, 2011 from 06.01.2011. As per of the clause 3(iv)(c) of CRZ Notification, 2011 "maintenance or clearing of waterways, channels and ports, based on EIA studies" is permissible activity. The clause 4.2(i) of the Notification further stated that the project proponents shall apply forprior clearance under CRZ notification to the concerned State or the Union territory Coastal Zone Management Authority. Ponnani Port area lies in Map No 47 of the CZMP, 1996 and Map No. 49 of CZMP, 2011. The copy of CZMP 2011 is enclosed at Annexure- III. Though the dredging is permissible activity under both CRZ Notification, 1991 and CRZ Notificaiton 2011, but carried out without clearance from KCZMA/Ministry, it amounts to violation.
275.1.5 The mining resulted saline water intrusion, Applicant is residing near Barathpuzha river and his well water become saline.
The committee wanted to compare the ground water quality in the region prior and after dreding so as to arrive a conclusion whetehr his well water has become saline only due to dredging activity. However, the data on the ground water quality prior to the commencement of dredging are not available with the any of the department like Ground water authority, irrigation department etc. The Committee is the view that the areas adjacent to such river where tidal influence is present, will affect by salinity in long run naturally hence the claim of the applicant can not be entertained. The Port has to periodically monitore the ground water quality in and around the port and submit the report to State Ground Water Authority, Kerala SPCB.
5.1.6 Bharathapuzha river which flows from east to west before reaching at the estuary in Ponnani, is having a regulator -cum-bridge at a place called 'Chamravattom', which is further 2 K.M. east of the Ponnani Port. This regulator- cum-bridge was constructed in order to avoid saline water intrusion to the upstream on account of indiscriminate sand mining conducted by the Ponnani Port. Further, because of this regulator - cum-bridge,there is no possibility of the sand being flown from the up steam to the down stream beyond the regulator. In such circumstance, it can be understood that the sand mining activity under the cover of sand mining activity proposed to be conducted by the Ponnai Port through Local Setf Gavemment institutions is only digging of the area resulting sea water intrusion.
The Committed noted that the Chamravattom regulator cum bridge which is about 6.5 Kms from the estuary, inaugurated in May 2012. The Bharathapuzha basin receives copious rainfall during the South West monsoon and it lies in the rain shed region of the Western Ghats. The rainfall varies from 2,000 to 2,800 mm in the hilly region to 3,000 mm in the coastal region. This project has dual goals of irrigation and reducing the distance by road between Kozhikode and Kochi by 38 km. The bridge is a regulator cum bridge. The shutters of the regulator cum bridge is closed in summer in a bid to maintain water level in the river so as to ensure drinking water consumption as well to prevent the intrusion of sea water to the upstream of the river. But in monsoon the shutters are fully open as heavy flow from the river occurs towards the sea and the sediments are being carried in the flowing water and is deposited in the estuary.
In view of the above, the contention of the applicant that there is totally no flow from upstream of the river to the sea can not be accepted.
Whether there was any violation in doing the dredging, as permitted under the notification and Environment Clearance granted for this purposed to Ponnai Port In view of the deliberation at point 5.1.2 above, the Joint Committee opined that the dredging is not in violation of EIA Notification,2006 and its amendments/ Environment Clearance.
5.2 Whather any illegality has been done on account of illegal mining over and 28 above the permitted quantity, in the guise of dredging. The Committee taking into consideration of the rate of replishment of sand in the river, the quantity dredged so far, concluded that it was maintenance dredging only and not sand mining. However, the Committee recommends that a third party audit through acreedited agency on the sand dredging shall be carried out every year and report be submitted to the Mines and Geology Department.
5.3 Whether the dredged sand has been put to commercial use? then the committee shall identify those persons and take appropriate action against those persons, including imposing Environment Compensation for illegal mining Port Officer has informed that the dredged sand is beng sold by the SLGD through online as permitted by the Honble High Court of Kerala. The orders produced before the Joint Committee have been examined and noted that Hon‟ble NGT in the present matter (OA 259 of 2016) vide order dated 22.05.2017 issued following interim order on sale of dredged sand:
" In these circumstances, while permitting the dredging operations for maintenance, we direct the respondents not to sell the dredged sand to any third party until further orders. We also make it clear that the dredged material has to be securely kept in the Port premises duly ensuring that it does not fall back/slide in the dredged area, particularly in the ensuing monsoon."
Hon‟ble High Court of Kerala in WP 20379 of 2017 vide order dated 13.10.2017 ( Annexure- IV) has issued following Order:
" This Court does not find any statutaroy mandate or prescriprions , insofar as keeping the sand secure: without sale being effect. IT could only lead to further blocking of the water channger: with the sand slinding back intoi the water. In such circumstance, this Court finds that Ext. P8 order to the extent it requires the sand to be kept without sale is totally without jurisdiction.This Court having held that portion of the order challenged before this Court being totally without jurisdiction, the writ petition is maintainable and on the same reasoning the order to that extent has to be set aside."
In view of the above, the Joint Committee opined that no action is warrented regarding the sale of dredged sand. The only violation noted by the Joint Committee is violation of CRZ Notification. As per the S O 3903 (E) dated 30.10.2019, the Kerala CZMA is responsible for enforcement and monitoring of CRZ Notificaiton in Kerala. Following are the relevant functions of KCZMA:
"5. The Authority shall, for the purposes of protecting and improving the quality of the costal environment and preventing, abating and controlling environmental pollution in the Coastal Regulation Zone areas in the State of Kerala, take the following measures, namely:--
..................
(v) the Authority shall inquire into cases of alleged violation of the provisions of the said Act or the rules made thereunder; and review the cases involving 29 violations or contraventions of the provisions of the said Act and the rules made thereunder;
(vi) the Authority shall inquire or review cases of violations or contraventions of the said notification suo-moto, or on the basis of a complaint made by any individual or body or organisation;
(vii) the Authority is authorised to file complaints under section 19 of the said Act;
(viii) the Authority shall take such action as may be required under section 10 of the said Act, to verify the facts of the cases before it.;"
In view of the above, the Committee felt that for the dredging activity carried out without CRZ clearnce, the KZCMA may take suitable action. 6.0 CONCLUSION AND RECOMMENDATIONS After detailed deliberation, the Joint Committee has made the following conclusion and Recommendations:
i. The average total sand that need to be dredged every year is 255721 MT considering the rate of replenishment as 50 cm /year and total quantity to be dredged from 2010 to till date comes around 2557210 MT. As per the records, produced, the total sand dredged comes around 1302260 MT only. It may therefore be concluded that it was maintenance dredging only and not sand mining.
ii. The Committee noted that it was dredging only and not sand mining and hence the contention of the applicant that that the project requires EC for sand mining is not valid.
iii. The committee also noted from the Google Earth Imageries of prior dreding [2010] and latest in 2020 that lot of sand bars/ land masses present in the eastern side of the port in the river beyond port boundary and hence it appears to be no dredging beyond the port limit.
iv. The Since the sale of dredged sand is permitted by Hon‟ble High Court of Kerala by setting aside the Order of Hon‟ble Tribunal, the committee felt that no action is warrented regarding the sale of dredged sand.
v. Though the dredging is permissible activity under both CRZ Notification, 1991 and CRZ Notificaiton 2011, but it was carried out without clearance from KCZMA/Ministry, it amounts to violation. Action need to be taken by KCZMA under CRZ Notificaiton.
27. The third respondent had filed the report dated 27.11.2020 which was received by this Tribunal on 4.12.2020 reads as follows: 30
"It is humbly submitted that the Hon'ble Tribunal passed an interim order on 22.5.2017 directing that the dredged material has to be securely kept in the port premises duly ensuring that it does not fall back/slide into the dredged area particularly in the ensuing monsoon.
It is humbly submitted that the applicant herein challenged the interim order passed by the NGT dt. 22.5.2017 before the Hon'ble Supreme Court by filing Civil Appeal No.11109/2017. By order dated 8.9.2017, the Hon'ble Supreme Court dismissed the SLP. The State of Kerala challenged the interim order dt. 22.5.2017 before the Hon'ble High Court by filing W.P.(C) No.20379/2017. The Hon'ble High Court passed an interim order on 20.6.2017 whereby the order passed by the NGT was stayed for a period of 3 weeks. The applicant in the OA challenged the order dated 20.6.2017 passed by the Hon'ble High Court in W.P.(C) No.20379/2017 by filing SLP (Civil) No.19720/2017. The Hon'ble Supreme Court passed an interim order on 11.8.2017 staying the operation of the impugned order dated 20.6.2017 passed by the Hon'be High Court until further orders. But by order dated 22.9.2017 the Hon'ble Supreme Court disposed of the SLP directing the petitioner/applicant to raise all contentions before the Hon'ble High Court including the issue of jurisdiction. Thereafter, the writ petition was finally heard by the Hon'ble High Court and by judgment dated 13.10.2017, the Hon'ble High Court allowed the writ petition and set aside the order dated 22.5.2017 passed by NGT.
It is humbly submitted that the said application was listed on 7.12.2017 before the predecessor Lordship afterward the application listed before Hon'ble Tribunal on 2.6.2020 and this Hon'ble Tribunal has passed an order on 2.6.2020 on the premises that the order dated 22.5.2017 was 31 affirmed by the Hon'ble Supreme Court. It is seen that the judgment passed by the Hon'ble High Court and the order passed by the Hon'ble Supreme Court was not brought to the notice of the NGT while passing order dated 2.6.2020.
It is humbly submitted that subsequent to order dated 2.6.2020 the Hon'ble Tribunal has passed an order on 24.8.2020 and posted the case to 19.11.2020 and further reposted to 15.12.2020 by way of notification. It is humbly submitted that the third respondent herein seeking review of the order dated 2.6.2020 and produce the order/judgment passed by the Ho'ble High Court as the Hon'ble Supreme Court before the NGT. It is therefore prayed that this Hon'ble Tribunal to consider the order passed in W.P.No.20379 of 2017 passed by the Hon'ble High Court and by judgment dated 13.10.2017, the Hon'ble High Court allowed the writ petition and set aside the order dated 22.5.2017 passed by Hon'ble Tribunal."
28. The third respondent also filed an additional report dated 16.12.2020 received on the same date which reads as follows:
ADDITONAL REPORT FILED BY THE 3RD RESPONDENT It is submitted that the 3rd Respondent herein filed an additional Report as stated as follows :-
1. It is submitted that this Hon'ble Tribunal directed to file additional report in support of CRZ violations.
2. It is submitted that in the present application there is no CRZ violation, the 3rd respondent did not find that there is any illegality in the work being carried out by the 5 th respondent in so far as CRZ clearance had already been issued by the competent authority.
3. It is submitted that the work was done prior to grant of clearance was dredging, which was highly required for the harbour activity to prevent danger to the fishermen community.32
4. It is submitted that at any rate, entire work was done after submission of the application. That apart, this is a major project of the Government of Kerala and necessary clearance had been obtained for the entire project from the competent authorities and that apart, the entire work had to be completed within short time frame.
5. It submitted that the Meeting has been convened by the Kerala Coastal Zone Management Authority Science and Technology Department dated 27 December 2012, had discussed the development of Ponnani Port under Additional agenda item No.53. 4. 6 bearing file No. 1974/ A2 /2012/KCZMA/S&TD. It states that the port is proposed to be developed towards south of Bharathapuzha River near Ponnani lighthouse. On the Northern side of the project site,Tirurpuzha River Joins with Bharathapuzha River and together drains into the Arabian Sea. The Port is proposed to be developed on predominantly reclaimed the land of about 82 HA(203 Acres) in Phase 1 and 206.1 HA (510 Acres) in Phase 1A(cumulative) which will be the master plan.An area of approximately 12.14 Ha(30 acres) of unsurveyed coastal land belonging to GoK has been allotted to MPPL for development of Ponnani Port and remaining land will be reclaimed land.
6. It is submitted that the outcome of the meeting has considered the agenda, KCZMA decided to recommend to MoEF the project for clearance and request reconsideration. (Page 14 & Page 17 in Annexure 1).
7.It is submitted that as per the MOEF & CC notification dated 15th January 2016, exception of certain cases from the requirement of environmental clearance granted in which dredging and desilting of dams Reservoirs weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management. Hence, the 3rd respondent carried out dredging only for the purpose of maintenance of port for the purposes of clearing ship channels in the port.
(Annexure 2).
8.It is respectfully submit that according to the Joint Committee report (Pg.11-12,Para 5.1.6) concluded that it in view of deliberation at point 5.1.2 in the joint committee report opined that dredging is not in violation of EIA Notification,2006 and its amendments /Environmental clearance. Therefore, according to the Committee report there is no violation in dredging of sand for maintenance.
9. Therefore it is prayed that this Hon'ble Tribunal record the above Additional facts in the report and pass such further and other orders may deem fit and proper in this circumstances of the case and thus render justice.
33
29. When the case came up for hearing, there was no representation for the applicant. We have heard Mr. E.K. Kumaresan, counsel appearing for respondents 1 to 3, Mrs. Me. Saraswathy, counsel appearing for fourth respondent, Mrs. Vidhyalakshmi Vipin, appearing for fifth respondent and Mrs. V.K. Rema Smrithi appearing for sixth respondent.
30. The learned counsel appearing for the respondents 1 to 3 submitted that by virtue of the subsequent orders passed by the Hon‟ble High Court of Kerala, there is nothing survives in the matter, since there is no Environment Clearance required for doing dredging for maintenance of the port area in order to clear the obstruction caused due to the sediment collection in the form of sand dunes under EIA Notification, 2006 as amended in 2016. Further, the Hon‟ble High Court, while disposing the writ petition, set aside the interim order passed by this Tribunal restraining the respondents 1 to 3 from selling the dredged material for commercial purpose. Further, there is no violation of any CRZ Regulation and as such nothing survives in the matter.
31. On the other hand, the learned counsel appearing for the MoEF & CC submitted that there is no Environment Clearance required for doing dredging as part of maintenance of port area and the river etc by virtue of the EIA Notification, 2006, as amended by Notification dated 15.1.2016. But they have contended that since it falls within the CRZ zone, though it is permissible, clearance from the Coastal Zone Management Authority is required.
32. The learned counsel appearing for the Kerala State Coastal Zone Management Authority also submitted that though Environment Clearance is not required by virtue of EIA Notification, 2006, as amended by 34 Notification dated 15.1.2016, CRZ clearance is required, though it is permitted activity within CRZ area and the port authorities have not applied for the same. As such, they have committed violation of the CRZ Notification, 1991 and 2011.
33.The points that arise for consideration are:
(i)Whether the applicant is entitled to get any compensation, as claimed?
(ii)Whether the applicant is entitled to get any of the reliefs claimed in the application including restraining the port authorities from carrying the dredging activity as part of maintenance as claimed by him?
34. POINTS: The grievance in this application is that respondents 1 to 3 have denied the opportunity of doing manual dredging in the port area by issuing the impugned Notification dated 17.8.2016 i.e., Annexure -9 by entrusting this work to the Local self Government Departments. Further, since it has been given to the persons who are not having expertise in doing manual dredging and on account of illegal sand mining being done by such persons in the guise of dredging, intrusion of saline water has caused contaminating the well in the property of the applicant, thereby the potability of the water has been affected and he claimed a compensation of Rupees One Lakh. Further, he had also claimed that since the activity requires Environment Clearance and also recommendation from the Coastal Zone Management Authority, without obtaining the same, the dredging done by the port authorities is not legal. So he wanted to restrain them from doing the same without obtaining necessary clearance.
35. As per order dated 22.5.2017, this Tribunal had permitted the dredging activity by the port as part of their maintenance as it was 35 observed that as per the amended EIA Notification dated 15.1.2016, no Environment Clearance is required for this purpose. But, however, restrained the port authorities from selling the same for commercial purpose and directed to secure the same in the port premises itself ensuring that it did not fall back in the dredged area, particularly in the ensuing monsoon.
36. This order was challenged by the State of Kerala before the Hon‟ble High Court of Kerala by filing W.P.(C) No.20379 of 2017 and the Hon‟ble High Court of Kerala granted interim stay of that order.
37. The applicant had challenged the interim order passed by the Hon‟ble High Court of Kerala in W.P.(C) No.20379 of 2017 dated 20.6.2017 before the Hon‟ble Apex Court by filing Special Leave to Appeal © No. 19720 of 2017.
38. Apex Court by order dated 11.8.2017 stayed the interim order granted by the High Court. But, later by order dated 20.9.2017 disposed of the matter, permitting the applicant to file an application before the Hon‟ble High Court itself in the writ petition for variation of the order dated 28.6.2017 and to raise all the contentions raised by them including the jurisdiction of the High Court to entertain the writ petition against the order of the National Green Tribunal, Southern Bench.
39. Thereafter, the Hon‟ble High Court had extended the interim stay until further orders as per order dated 9.8.2017. Later, the Hon‟ble High Court had disposed of the writ petition, setting aside the order passed by this Tribunal to the extent of restraining the port authorities from selling dredging sand. The Hon‟ble High Court had not gone into the question as to whether there was any violation of CRZ Notification etc, as such 36 contentions had been raised before the National Green Tribunal at that time and that may be reason the Hon‟ble High Court had not considered that aspect. So there was no final order passed by the Hon‟ble High Court, while disposing of the W.P.(C).No.20379 of 2017 regarding the question as to whether Coastal Regulation Zone Clearance is required for carrying out dredging even in respect of maintenance purpose under the CRZ Notification 1991 and 2011. So the disposal of the writ petition by the High Court, setting aside the order to the extent of restraining the port authorities from selling the dredging material will not restrain the Tribunal from considering this question while disposing the application finally. 40 The question as to whether Environment Clearance is required for doing dredging as part of maintenance of the port area is no longer res integra, as the National Green Tribunal had later clarified the same that no Environment Clearance is required for that purpose. Further, in view of the EIA Notification, 2006 as amended by notification dated 15.1.2016, mandate of obtaining Environment Clearance for this purpose was exempted under the Schedule IX to the EIA Amended Notification and also the entry itself has been extracted by the Joint Committee in their report and also by the MoEF in their counter statement. Further, the Hon‟ble High Court of Kerala while disposing the writ petition has also held that in view of the amended EIA Notification dated 15.1.2016, Environment Clearance is not required for that purpose. So the contention of the applicant that Environment Clearance is required for dredging is not sustainable and the same is liable to be rejected.
41. As regards the compensation claimed is concerned, though the applicant had stated that due to illegal mining done in the guise of 37 dredging, there was saline water intrusion in the well, affecting the potable nature of the well water of the applicant, there was no evidence adduced on the side of the applicant by producing analysis report so as to prove that the water quality in the well has been contaminated by intrusion of saline water into the well. The Joint Committee in its report opined that there was no possibility of intrusion of saline water in the well of the applicant affecting the water quality of its potable nature. So under these circumstances, the applicant is not entitled to any compensation as claimed and the claim for compensation is liable to be rejected.
42. As regards CRZ clearance is concerned, the decision of the Hon‟ble High Court of Kerala will not prevent this Tribunal from going into the question while disposing the application finally as that aspect has not been considered by the Hon‟ble High Court of Kerala while setting aside the interim order passed by this Tribunal to the extent of restraining the port authorities from selling the dredged material outside.
43. It is seen from the reply affidavit filed by the Kerala Coastal Zone Management Authority viz., sixth respondent that though it is a permissible activity in CRZ area but CRZ clearance is required from the authorities and if it is not obtained, that will amount to violation. It is also mentioned in the reply affidavit that the second respondent - port authorities have not applied for any clearance under the CRZ Notification 1991 and 2011.
44. Further, the decision relied on by the third respondent in S. DILEEP VS. UNION OF INDIA (W.P.(C).No.31642 of 2019 dt. 18.12.2019) also will not be helpful to the third respondent as that was a case where port has applied for both Environment Clearance and CRZ Clearance and they were granted later. In the mean time, they have done the dredging as a 38 preparatory for proceeding with the project work. So under these circumstances, the Hon‟ble High Court has come to the conclusion in that case that there was no violation and dismissed the writ petition. But that was not the case here.
45. It is seen from the Joint Committee Report that when port was established, CRZ Notification 1991 or EIA Notification, 1994 had not been enacted. There was no law governing for obtaining prior Environment Clearance at that time and as such there was no need for obtaining any Environment Clearance for the third respondent for establishing Ponnani Port and as such there was no necessity for obtaining CRZ Clearance as well at that time. But thereafter, CRZ Notification 1991 and EIA Notification, 1994, 2006 as amended by Notification dated 15.1.2016 and CRZ Notification 2019 have come into force. So by virtue of EIA Notification 2006 as amended in 2016 obtaining of Environment Clearance for the purpose of dredging as part of maintenance was exempted.
46. But even as per the documents produced by the third respondent when Environment Clearance was granted during the period 2014, there was a condition that they will have to obtain CRZ Clearance and Environment Impact Assessment will have to be done in future in doing dredging. That will go to show that irrespective of the Environment Clearance, they will have to obtain CRZ clearance for doing dredging which they have not obtained. Clause 3(iv) (c) of the CRZ Notification 2011 deals with the prohibited activity in CRZ area. The relevant portion of the prohibition, as we are concerned, is dealt with in Sub Clause (iv) which reads as follows:
39
"Land reclamation, bunding or disturbing the natural course of seawater except those,-
a.required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbors, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, road on reclaimed surface and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification. Provided that such roads shall not be taken as authorized for permitting development on landward side of such roads till existing High Tide Line. Provided further that the use of reclaimed land may be permitted for roads, mass rapid or multimodal transit system, construction and installation, on landward side of such roads of all necessary associated public utilities and infrastructure to operate such transit or transport system including those for electrical or electronic signal system, transit stopover of permitted designs, ex et for any industrial operation, repair and maintenance."
46. So that shows that though it is a permitted activity, that can be done only with the permission of the Coastal Zone Management Authority under the Notification. The third respondent has no case that they have obtained CRZ clearance for the purpose of dredging. The Coastal Zone Management Authority also has categorically stated that it was not obtained.
47. Further, Clause (x) of the CRZ Notification, 2011 reads as follows:
"Mining of sand, rocks and other sub-strata materials except-
a)those rare minerals not available outside the CRZ area 40
b)exploration and exploitation of oil and natural gas which also shows that though mining of sand, rocks and other sub-strata materials are prohibited but those minerals not available outside the CRZ area and exploration and exploitation of oil and natural gas were permitted but that can be done only after getting clearance from the authorities.
Clause (iv) of CRZ Notification 2011 deals with the projects for which CRZ clearance will have to be given by MoEF & CC and by State Coastal Zone Management Authority etc.
48. From the combined reading of these provisions and also the Joint Committee Report, it is clear that CRZ Clearance is required for doing dredging even for maintenance purpose and not obtaining the same will amount to violation. So the submission made by the counsel for the third respondent that there was no violation of CRZ clearance as they were doing dredging as part of maintenance, is not sustainable and the same is liable to be rejected.
49. Further, this Tribunal had occasion to consider the question regarding dredging in TIRUMALASETTI SRINIVAS VS. GOVERNMENT OF INDIA & ORS (O.A.No.47 of 2017 and O.A.177 of 2017 dt. 14.12.2020) wherein also this Tribunal had found that a detailed study is required before allowing dredging and no sand mining in the guise of dredging is permissible. A detailed study regarding the sand availability, dredged material or silt available has to be conducted by a scientific body and only thereafter, after getting necessary permission such things can be carried out by any authority.
50. So under these circumstances, we feel that the application can be disposed of by giving certain directions:
41
(i)The applicant is not entitled to get the relief of restraining the third respondent from doing dredging without obtaining Environment Clearance.
(ii) The applicant is not entitled to get the relief of compensation as claimed for the reason mentioned by this Tribunal in the earlier part of the judgment.
(iii) The third respondent has committed violation of CRZ Notification, 1991 and 2011 as they have not obtained necessary clearance from the Coastal Zone Management Authority as required under the said notification and as such the Kerala Coastal Zone Management Authority is directed to take appropriate legal action against those persons who have committed violation in accordance with law, after giving them proper opportunity of hearing and pass appropriate order in accordance with law.
(iv) The third respondent and State of Kerala are directed to appoint a permanent committee of Experts for conducting environment impact study as required under the CRZ Notification 1991 and 2011 and 2019 before undertaking work of dredging and thereafter the same will have to be done under the supervision of the Expert Body so appointed only after getting necessary CRZ clearance from the authorities and also after complying with the guidelines given by the MoEF & CC viz., Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Gudelines for Sand Mining issued in January, 2020 by MoEF & CC as has been observed by this Tribunal in TIRUMALASETTI SRINIVAS VS.
GOVERNMENT OF INDIA & ORS (O.A.No.47 of 2017 and O.A.177 of 2017 dt. 14.12.2020).
So the application is disposed of as follows:
42
(i)The applicant is not entitled to get the relief of restraining the third respondent from doing dredging without obtaining Environment Clearance.
(ii) The applicant is not entitled to get the relief of compensation as claimed for the reason mentioned by this Tribunal in the earlier part of the judgment.
(iii) The third respondent has committed violation of CRZ Notification, 1991 and 2011 as they have not obtained necessary clearance from the Coastal Zone Management Authority as required under the said notification and as such the Kerala Coastal Zone Management Authority is directed to take appropriate legal action against those persons who have committed violation in accordance with law, after giving them proper opportunity of hearing and pass appropriate order in accordance with law.
(iv) The third respondent or State of Kerala are directed to appoint a permanent committee of Experts for conducting environment impact study as required under the CRZ Notification 1991 and 2011 and 2019 before undertaking work of dredging and thereafter the same will have to be done under the supervision of the Expert Body so appointed only after getting necessary CRZ clearance from the authorities and also after complying with the guidelines given by the MoEF & CC viz., Sustainable Sand Mining Management Guidelines, 2016 and Enforcement and Monitoring Gudelines for Sand Mining issued in January, 2020 by MoEF & CC as has been observed by this Tribunal in TIRUMALASETTI SRINIVAS VS.
GOVERNMENT OF INDIA & ORS (O.A.No.47 of 2017 and O.A.177 of 2017 dt. 14.12.2020).
(v) The parties are directed to bear their respects cost. 43
(vi) The Registry is directed to communicate this order to the Chief Secretary, State of Kerala, Director of Ports, Port Conservator and Kerala Coastal Zone Management Authority by e-mail immediately for implementation of the directions issued by this Tribunal and the recommendations made by the Joint Committee in Clauses 6 and 7 of the report before undertaking dredging activity.
With the above directions and observations the application is disposed of.
.........................................J.M. (Justice K. Ramakrishnan) .........................................E.M. (Sri. Saibal Dasgupta) O.A.259/2016 24.12.2020 kkr