National Green Tribunal
Zoru Darayus Bathena vs Maharashtra Coastal Zone Management ... on 15 June, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item Nos. 01 & 02 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
(By Video Conferencing)
Original Application No. 20/2021 (WZ)
Maria Thelma Suresh Poojari & Ors. Applicant(s)
Versus
Maharashtra Coastal Zone Management
Authority & Ors. Respondent(s)
WITH
Original Application No. 37/2021 (WZ)
Zoru Darayus Bhathena & Anr. Applicant(s)
Versus
Maharashtra Coastal Zone Management
Authority & Ors. Respondent(s)
Date of hearing: 15.06.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE M. SATHYANARAYANAN, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
Applicants: Ms. Gayatri J Singh, Senior Advocate with Ms. Ronita Bhattacharya
Advocate for Applicant in OA 21/2021
Ms Ronita Bhattacharya, Advocate for Applicant in OA 20/2021
ORDER
1. Both these matters involve common questions and are taken up together. The issue for consideration is compliance of conditions of the CRZ Clearance dated 16.09.2019 for providing "Infrastructural post harvesting facility to fishermen at fish landing centres at Madh-Talapsha, Chimbai, Waredi, Borli-Mandla Borya, Vijaydurg, Murbe Pachu Bunder 1 & Diwalegaon along cost of Maharashtra". The applicants earlier filed Writ Petition No. 188/2020, Maria Thelma Suresh Poojari & Ors. v. State of Maharashtra & Ors., before the Bombay High Court in the matter which was disposed of on 12.01.2021, relegating the applicants to approach this Tribunal.
2. Case of the applicants is that they are fishermen of the area. In violation of EC conditions, the Project Proponent (PP) is undertaking activities contrary to the environmental norms. Chimbai fishing village forms a natural bay opening out to the Arabian Sea. The area forms a crescent shaped barrier against the sea comprising of natural, rocky, intertidal area which absorbs the waves of the sea and prevents the waves from entering the homes of the local fishermen known as the koliwada. The bay, which has a jetty and a net mending yard for the fishermen along with a small temple which were constructed several decades ago, serves as a place for the fishermen to anchor their small fishing boats when not in use. There are no trawlers used in the area and only small-scale fishing by local artisanal fishermen is performed in the region. A thin strip of a sandy beach borders the rocky outcrop and divides the koliwadas further from the rocks and the sea. During high tide, the intertidal area and jetty is inundated with water, with the highest levels of the rocky outcrop appearing to be small islands dotting the sea. The fishermen hoist their fishing boats above the rocky area during high tide where they are anchored onto the portions of the rock and beach that do not get inundated. On the right hand side of the bay, a thicket of mangrove trees separates the village from the busier, urban areas of Carter Road, Bandra. In 2007, the Harbour Department of the State Government first launched an initiative to build a wall and a road through Chimbai fishing village with the view to connect the region to 2 Carter Road, Bandra. Due to vehement opposition to the project by the local coastal fishing community residents, the project was recalled. The opposition on the part of the local residents to the project was twofold. Firstly, destruction to the tidally influenced rocky outcrop would result in the sea water reaching beyond the levels it is restricted to due to the presence of the rocks and would in fact flood the homes in the koliwadas. Secondly, major alterations to the geomorphically sensitive features of this region would permanently destroy the ecology of the area which in turn would also affect the livelihood of the fishermen. It is further stated that for about 11 years since the 2007 decision to develop the Chimbai fishing village was reversed, there was no interference from the Respondent Government about development in the region. However, In August 2019, bulldozers and JCB crane machines were drawn into the region upon the directions of a private contractor. The officer of the Respondent No.7 Contractor, Sharpoodi Pallonji revealed to the Applicants and other local residents, who were completely taken aback upon the arrival of these machines, that he was here to perform development works upon the direction of the Respondent Fisheries Department. On 22.08.2019, posters and banners were put up indicating a purported development project would commence soon, and a Bhumi pooja to launch the project was conducted on 23.08.2019. On the same day, the Contractor commenced his work of breaking down stretches of the natural rocky outcrop in the region. These amenities already existed within the Chimbai village, and were not only unnecessary as per the views of the locals, but also had never been requested for by the fishing community. Existing facilities are more than adequate to cater to the needs of the community and it is surprising to the local communities that a contractor/developer should 3 operate at such a large scale with multiple verticals including the manufacturing of shipping vessels for oil and gas drilling and transportation. The proposed project, if actually planned to benefit the fisherfolk community, should have been planned on the basis of mapping the amenities available in Chimbai and the required facilities needed in the area, which was not done and the local community was not consulted prior to the development and sanctioning of the project. The locals are not even aware when the project was sanctioned. It is further stated that such amenities, as proposed in the project, were uncalled for in the region, which already had space for the parking/anchoring of all the small scale fishing boats in Chimbai, had a net mending yard, and an existing jetty, which was being used regularly by the locals of the area. It was only the existing net mending area that could benefit from some repairs but no additional constructions were necessary at all. The existing jetty and net mending yard could benefit from "upgradation" but the boat yards and ramp were added to this project without reason. The scale of these new proposed amenities were entirely disproportionate to the needs of the local community and were to be avoided at all costs due to the fragility of the geomorphic features of the intertidal rocky areas and the mangroves in the regions. The purpose of the project is only to permit upgradation of existing facilities as per the demands of the local fishermen community. However, the proposed project is being constructed:
a. In direct opposition of the demands and requirements of the local fishermen b. In excess of "upgradation" of existing facilities, it involves new, disproportionate and excessive constructions beyond what the fisherfolk require.4
3. It is further stated that through this project, large scale development to benefit vested interests for private commercial tourist boating and trawlers and potentially property development is being sought to be introduced in the hitherto untouched area of Chimbai. Indeed, the Respondent Contractor is a developer responsible for gargantuan projects across the country, and is not one ordinarily used for allegedly "small scale" projects which the present project has been positioned to be. Debris is being dumped on the site of construction which is predominantly CRZ IB areas. Further, debris is also being dumped on the mangrove clusters near the site which is CRZ IA areas. Clause 7(i) A read with clause 8 of the CRZ Notification 2011 and the judgment dated 17.09.2018 of the Hon'ble Bombay High Court in PIL 87/2006, prohibit construction/development work within 50 m of mangrove forests and inter-tidal areas between the HTL and LTL which are ecologically sensitive. Contractor has made sheds for his officers and has parked his JCB machines right next to the mangrove patch recorded in the Plan. As such Specific Conditions No VII and VIII are being breached by the Respondent Contractor as he is damaging and causing destruction to the mangroves adjacent to the site of the project. Since such construction work is not permitted in CRZ IB areas as per the provisions of the CRZ Notification 2011, in the absence of a specific direction permitting breaking up and excavation of the rocky outcrop in the CRZ clearance, any such construction work cannot be permitted. Tidal flow of water being dangerously obstructed in a permanent, irreversible manner due to the breaking up of the natural rocky outcrop, will endanger the lives of the local fisherfolk. Due to 5 extension and widening of the jetty, the tidal flow of water has been blocked and now forms a whirlpool of sorts during high tide that makes it very difficult for the boats to navigate into the bay. Number of pipes in the foundation of the extended jetty to permit the tidal flow of water are far fewer in number and frequency than the pipes present in the original, pre-existing jetty. Therefore, specific condition no XI of the CRZ clearance is clearly being breached due to the construction activities of the Respondent Contractor. Clause 3
(iv) of the CRZ Notification of 2011 prohibits land reclamation, bunding or disturbing the natural course of sea water, unless done for a specific set of activities which are notified exceptions to this prohibition. The exceptions, which are specified in Sub-clauses (a)-
(d) of Clause 3(iv) are also qualified as being those which can be constructed "without affecting the tidal flow of water." No study on the effect of this voluminous blockage and consequent displacement of water on the rest of the coast line has been done by the Respondent Authorities. Most of the details required to be considered for a CRZ clearance, such as the Environment Management Plan, the details of the work initiated, the construction related waste disposal and energy usage, the clearance simply records "N/A" in the columns which should contain the details required to be assessed by the SEIAA prior to granting any clearances. such a callous approach adopted by the Respondent Authorities is a breach of the CRZ notification of 2011, and that the CRZ clearance dated 16.09.2019 did not seek to permit the destruction of the coastal areas in Chimbai village through breaking and excavation of the CRZ IB areas and destruction of mangroves which protects the shoreline in the area. CRZ 6 Notification prohibits all new expansion and setting up of industries within CRZ areas. CRZ notification of 2011 only permits a certain extent of repair work and reconstruction of the dwelling units existing facilities used by fisherfolk under Clause 3(1)(e), However, the present project does not seem to only repair/maintain/upgrade existing facilities, but chooses to create new, colossal structures without the consultation or approval of the local community in contravention of the CRZ clearance dated 16.09.2019 whilst ignoring the ecological harm caused by the scale of such development. A perusal of the said Environment Management Plan, which was also prepared in October 2018, after the work order for the project had been issued by the Fisheries Department, shows complete non-consideration of the serious and irreversible ecological destruction on the protected CRZ areas in Chimbai caused by the project. The plan thereon admittedly uses the tidal pattern predictions not of Chimbai, but of Apollo Bunder, Colaba to estimate the impact of the project on the tidal flow of water. Chimbai and Colaba are on two different sides of the coast of Mumbai as evident from the Google earth satellite images. It is obvious that the tidal patterns in Apollo Bunder cannot be relied upon to estimate the impact of the tidal flow of the Arabian Sea upon the bay in Chimbai fishing village. The impact of the tidal patterns is a crucial aspect to the present project, as it is not only the local fishermen's ability to anchor their boats in the shallow waters in the bay that will be compromised due to the destruction of the rocky outcrop in the region, but also the homes of the local fisherfolk in the koliwada will be susceptible to flooding during high tide and monsoons. On one side of the bay is a cluster of 7 mangroves forming a forest protected as CRZ IA areas. Between the rocky intertidal areas and the developed land is the Chimbai fishing village, or the Koliwada, which is considered to be CRZ Ill areas - which are those lands that are relatively undisturbed and do not belong to CRZ-I and CRZ-II areas and are not substantially built up. Clause 8 (III) of the CRZ Notification demarcates the CRZ Ill land upto 200m of the landward side of the High Tide Line to be a No Development Zone where no construction work is permitted. An exception to this prohibition of development and construction work as stipulated under Clause 8 (111)0 1) is "construction/reconstruction of dwelling units of traditional coastal communities in accordance with a comprehensive plan prepared by the State Government in consultation with the traditional coastal communities.."
4. We have heard learned Counsel for the applicants at length and perused the documents to which our attention has been drawn, particularly the EC conditions as well as the violations alleged by the applicants. We have reproduced the averments in the application above in extenso. Our attention has also been drawn to the Environment Management Plan (EMP) mentioning the impact on various aspects of environment and the mitigation measures required. It will suffice to reproduce here the summary and conclusions from the EMP:
"Summary and Conclusions:
"Construction of new infrastructure facilities proposed by Department of Fisheries requires prior CRZ clearance under CRZ notification 06th January, 2011.
The proposed activities will be located at Chimbai, Tal Andheri, Dist. Mumbai Suburban of Maharashtra state.8
The department is proposing to provide widening and extension of existing solid jetty, Boat Yards, Net Mending Sheds, Guide Pole and Solar Street Light etc. Basic raw materials for construction work will be sourced from nearby marker places.
The proposed project will meet its water and energy requirement by piped water supply and MSEDCL respectively.
There is no effluent generation, waste water generated will be disposed in septic tank, hazardous waste such as empty containers and used batteries will be given to MPCB authorized recyclers and solid waste to authorized recycler.
Baseline data collection has been done in winter 2017 to understand ambient air quality, water quality, soil quality, noise level, biological and socio-economic status of study area.
Study area of 7 km area around site is taken as to establish baseline environment. Study area consists of the total area 153.93 Km2, whereas water bodies cover 81.85 Km2, built-up land covers 50.96 Km2, Vegetation covers 11.66 Km2, Airport covers 5.14 Km2. Baren/unculturable Wasteland/scrub land covers 2.5 Km2, vegetation/mangroves cover 1.82 Km2. Classes like, agriculture crop land, mining area do not exist in the study area Soil of the study area is sandy in nature. AAQM data for PM2.5, PM10, S02, NOX and CO near Chimbai and it is observed that all parameters are within the prescribed limits of CPCB limit. Water quality near Chimbai village shows that microbial count in marine water near Chimbai village was higher it may be due to open defecation and improper sewage disposal in the area. Noise status of the area is found crossing the EPA limit which is due to heavy urbanization.
Findings of socio-economic study in Chimbai and data collected from Government agencies were assessed to check socio-economic status of the region. The area is urban in nature and has good sex ratio and literacy. The area has good transportation facility, infrastructure, education, and banking and health facilities etc. Major source of income in the area is employment.
Environmental impact matrix evaluation has been done for land environment, air environment, water environment, solid and hazardous waste management, biological environment socio-economic environment with & without control measures. Proposed facilities will have negative impacts if proper mitigation measures are not taken. Details impacts and mitigation measures for four stages of projects cycle namely Construction, Commissioning, Operation & Decommissioning phases are described in chapter-4. Detailed Environmental monitoring program covering all four stages of project cycle has been presented in chapter 6, along with EMP budget and schedule for compliances.
The Environmental Management Plan is prepared giving roles and responsibilities throughout the EMC for implementation of EMP.9
The proposed project of Department of Fisheries, GoM will have low adverse impact with due implementation of control measures as suggested. Continued vigilance with budgetary support is required from the industry in order to implement the EMP."
5. Learned Counsel fairly stated that as far as construction of jetty is concerned, the same has already been completed. However, in the name of providing post harvesting facilities to fishermen, serious violations of environmental norms are taking place and are apprehended. Particular reference has been made to the EC conditions requiring protection of mangroves, not obstructing the free tidal flow, not disturbing the drainage pattern and natural course of water. There has to be restricted construction activities consistent with the CRZ Regulations, avoiding unnecessary constructions. Mitigation measures envisaged in the EMP have to be scrupulously followed having regard to the fact that the area is covered by CRZ-1B where constructions will be incompatible with the protection of the eco systems - including biological and marine environment. Anticipated adverse impact of construction activities on water, air, vegetation and the aquatic life needs to be fully mitigated. This requires constant supervision. While laying down conditions for grant of EC, the mechanism provided for overseeing the mitigation measures and compliance of EC conditions is not credible and violations have already taken place.
6. We have given due considerations to all the aspects highlighted and need for protection of environment, having regard to the sensitive area where the project is to be executed. Taking an over-all view of the matter, while not stopping the project as such and applying the 'Sustainable' and 'Precautionary' principles of environment law, we direct constitution of seven-member Monitoring Committee comprising nominees of MoEF&CC, CPCB, MCZMA, SEIAA, Maharashtra, State PCB, 10 PCCF(HoFF), Maharashtra and the area District Magistrate. Proceedings of the Committee will be steered by the nominee of MoEF&CC. The Member Secretary, MCZMA will be the nodal agency for coordination and compliance. The Committee will be at liberty to take assistance of any other Expert, Institution or individual. The applicants or any other stakeholders will be at liberty to make their representations to the said Committee. The Committee may also interact with the stakeholders from time to time. The Committee will be free to visit site as and when required and also to conduct proceedings online if physical meetings are not found viable. The minutes of the meeting for monitoring may be placed on the website of the MCZMA. Mandate of the Committee will be strict compliance of abatement measures as per EMP and compliance of CRZ/EC conditions. If any grievance survives, the aggrieved parties will be at liberty to take their remedies in accordance with law. The Committee may continue monitoring till completion of the project.
7. Though we have not considered it necessary to issue notice to the respondents since we are not stopping the project but requiring strict compliance of mitigation measures as per EMP and conditions of EC/CRZ clearance, the respondents are at liberty to move this Tribunal if they are aggrieved by the above order.
The applications are disposed of.
A copy of this order be forwarded to MoEF&CC, CPCB, MCZMA, SEIAA, Maharashtra, State PCB, PCCF(HoFF), Maharashtra and the area District Magistrate by e-mail for compliance.
Adarsh Kumar Goel, CP 11 Sudhir Agarwal, JM M. Sathyanarayanan, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM June 15, 2021 Original Application No. 20/2021 (WZ) DV 12