National Green Tribunal
Thomas Rodrigues [48 Years ]S/O. Late ... vs The Deputy Commissioner, Revenue ... on 25 February, 2021
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
Item No.12:
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 71 of 2017 (SZ)
(Through Video Conference)
IN THE MATTER OF:
Thomas Rodrigues and Ors. ...Applicant(s)
With
The Deputy Commissioner,
Revenue Department, Udupi District,
Karnataka State and Ors.
...Respondent(s)
Date of hearing: 25.02.2021.
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): Sri. B. Thilak Narayanan.
For Respondent(s): Sri. Darpan K.M. for R1, R3, R4 to R7, R10, R12 to R14.
Sri. Vasanth H.K. for R2, R9 & R11.
Sri. Thirunavukarasu for KSPCB.
[1]
ORDER
1. As per order dated 06.10.2020, this Tribunal had considered the earlier order dated 15.06.2020 and also the letter received from the Deputy Commissioner and Chairman of the Committee dated 28.09.2020 and thereafter, passed the following order:-
"5. It is seen from the report of the committee that there are a lot of violations committed on account of CRZ Notification, 2011 and also EIA Notification, 2006 and also there is destruction of Mangroves and reclamation of portion of the river in Coastal Regulation Zone without getting necessary permission from the Coastal Zone Management Authority leading to diversion of the course of the river.
6. It is also seen from the report that Coastal Zone Management Authority had already initiated proceedings against the violators and they have not submitted the final outcome of the same.
7. Further, the committee has not considered the question of damage caused to the environment and also they have not assessed the environmental compensation for the degradation caused including the remedial measures to restore to its original position. This exercise will have to be done by the committee and they cannot leave it to the violators to assess the same.
8. So, the committee is directed to assess the environmental damage caused and assess the environmental compensation payable and also the remedial measures to be taken for restoring the damage caused to the environment as well. For this purpose, we grant two months time. In the mean time, party respondents are at liberty to file their objections to the committee report.
9. Learned counsel appearing for the State official respondents submitted that they did not receive the copy of the report.
10. Sri. Thirunavukarasu who is appearing for one of the members of the committee submitted that he will forward the copy of the report to the Government Pleader appearing for the State respondents."[2]
2. The case was posted to 25.11.2020 for filing further report. Thereafter, the matter has been adjourned by successive notifications and posted the case to today by notification dated 20.01.2021.
3. When the matter came up for hearing today through Video Conference, Sri. B. Thilak Narayanan represented the applicant. Sri. Darpan K.M. represented respondents 1, 3, 4 to 7, 10, 12 to 14, Sri. Vasanth H.K. represented respondents 2, 9 & 11 and Sri. Thirunavukarasu represented the Karnataka State Pollution Control Board (KSPCB) who has been designated as the Nodal Agency in this matter.
4. We have received the Joint Committee report signed by two members of the committee showing date of signature as 13.01.2021 received on 23.01.2021 which reads as follows:-
"Estimation of Environmental Compensation in OA No. 71/2017 of Hon'ble NGT (SZ), regarding indiscriminate & unscientific dredging in river Seeta of Udupitaluk & district.
Petitioners: Sri. Thomas Rodrigues and others Respondents: Deputy Commissioner &Ors.,
1. Background The Petitioners, Sri. Thomas Rodrigues &Ors have filed objections before Hon'ble NGT in OA No. 71 of 2017 (SZ) about dredging of Silica sand and soil etc in Seeta river located at Kodi and Irody village Udupi taluk and dist.
While hearing the said Original Application No 71 of 2017 (SZ), the Hon'ble National Green Tribunal (NGT), Southern Bench has passed an order dated 06/01/2020 and directed, "... It is appropriate to get a status report regarding the allegations mentioned in this petition. Accordingly, we appoint a Committee consisting of District Collector, Udupi District, Divisional Forest Officer, Kundapura, Udupi Dist., Karnataka State Pollution [3] Control Board,, the Coastal Zone Management Authority, Karnataka, Karnataka State Pollution Control Board, Department of Mines and Geology, Senior Officer from Regional office, MoEF, Bangalore, Engineer, Water Resource Department, Udupi and State Level Environment Impact Assessment Authority. KSPCB will be the nodal unit and will submit the status report regarding the allegations made and during inspection if it is found that there are any violations of the directions given by this tribunal or in violation of the prevailing laws in this regard, then they are also directed to take necessary action against the violators and submit a status and action taken report to this tribunal within two months."
In compliance to Hon'ble NGT order, the Member Secretary, Karnataka State Pollution Control Board (KSPCB) constituted a committee vide Office Memorandum (OM) No. PCB /SEO/MIN/NGT/2019-20/5756 dated 31-01-2020 consisting of the following members:
Sl.No Name & Designation Details 1 The District Collector, Udupi District Chairman 2 Divisional Forest Officer, Kundapura Division, Udupi Member 3 The Zonal Senior Environmental Officer, Member
Karnataka State Pollution Control Board, Mangaluru 4 Senior Officer from Regional Office, Ministry of Environment, Member Forest & Climate Change, South Zone Office, Kendriya Sadan,4th Floor, E & F Wings, 17th Main Road, 2nd Block, Koramangala, Bengaluru -560 034 5 State Level Environment Impact Assessment Member Authority(SEIAA) Karnataka, (Ecology & Environment), Department of Forest Ecology and Environment, Government of Karnataka, Room No. 709, 7th Floor, 4th gate, MS building, Bengaluru-560 001 6 Karnataka State Coastal Zone Management Authority, Room Member No. 448, 4th floor, II gate, M S Building, Bangalore-560 001 [4] 7 Department of Mines and Geology, Khanija Bhavan, Race Member Course Road, Bangalore 8 The Engineer, Water Resource Department, Udupi Dist. Member 9 Environmental Officer, KSPCB, Udupi Member Convener The Joint Committee inspected the site, examined the matter in details and submitted the report before Hon'ble Tribunal. Considering the reports submitted by the committee, the Hon'ble NGT, vide order dated 15/06/2020 and dated 6/10/2020 directed as follows (Annexure 1 & 2):
"...So, the committee is directed to assess the environmental damage caused and assess the environmental compensation payable and also the remedial measures to be taken for restoring the damage caused to the environment as well. For this purpose, we grant two months' time".
"... a senior scientist from the Central Pollution Control Board Regional Office, Bengaluru and a Senior Officer from National Institute of Ocean Technology (NIOT), Chennai are included as additional members of the Joint Committee constituted by this Tribunal as per order dt 06/01/2020 for the purpose of carrying out the directions given by us as per order dt 15/06/2020".
Accordingly, the following officials were nominated from the CPCB and NIOT as additional members to the Joint Committee:
Sl.No Name & Designation Details
1 Dr. Vijaya Ravichandran, Scientist G, National Expert
Institute of
Member
Ocean Technology , Chennai
2 Smt. Sowmya D, Scientist D, Central Pollution Expert
control Board,
Member
Regional Directorate (South), Bengaluru 2.0 Online meeting of the Committee with expert members:
[5]The joint committee conducted the meeting with the expert members through online on November 12, 2020 for discussing the environmental damage caused due to dredging in Seeta River and estimation of environmental compensation.
During the meeting, it was brought to the notice of the Committee that Hon'ble NGT (PB) while examining the illegal sand mining cases from riverbeds in different states, in OA no. 360/2015 (13 clubbed cases) had constituted a Committee to look in to the assessment of Environmental compensation. The Committee had presented the final report to the Hon'ble NGT titled as, "Recommendations of scale of compensation to deal with the cases of illegal sand mining" dated 30 th January 2020, wherein the framework for assessing the value of ecological damage due to illegal sand mining was developed. Though in the present case of OA No. 71/2017, it was only sand dredging and the dredged sand was not sold, the Committee decided to adopt the same methodology, since the authorities concerned have dredged the river beds without any clearances from either CRZ authorities or MoEF and CC and there are no other methodologies available for such cases. The Committee agreed to the above and requested the expert members to provide the methodology. The minutes of the said meeting is enclosed at Annexure 3.
Experts submitted the methodology to the committee on 27.11.2020 vide Annexure-4. However, amount of rupees per ton of the sand removed and cost of restoration of the dumped site was to be decided and as such, another meeting was held under the Chairmanship of the Deputy Commissioner, during which time, Dept. of Mines and Geology was asked to furnish the rate to be charged for the dredged material and also to get the quality analysis of the material dredged. Proceedings of the meeting are enclosed as Annexure-5.
In the meantime, Dept. of Mines and Geology has submitted the rate of sand to the Committee vide letter dated 14.12.2020 and based on this, the estimation of environmental compensation is done as below:
Estimating Environmental Compensation:
Methodology: As reported in the earlier paragraphs. the environmental compensation for capital dredging is calculated based on the method described in the final report on [6] "Recommendations on scale of compensation to deal with the cases of illegal sand mining" dt 30/01/2020 submitted to the Hon'ble NGT, Principal Bench, New Delhi in the matte of OA 360/2015, National Green Tribunal Bar Association vs Virendra Singh (State of Gujarat). The Approach 1: Direct compensation based on the market value of extraction, adjusted for ecological damage is adopted in the present case as follow:
Compensation Charge (Rs) = D * (1+RF+DF) Where, D = Z * Market value of the material per MT or M3 X = Permitted quantity of material extraction in MT or M 3 Y = Total quantity of material extracted in MT or M3 Z= Y - X; excess material extracted in MT or M3Z/X = Excedance in extraction Deterrence factor (DF) = 0.3 if Z/X = 0.11 to 0.4 0.6 if Z/X = 0.41 to 0.7 1 if Z/X >= 0.71 Risk factor (RF) = 0.25, 0.50, 0.75, 1.00 as per the extent of severity of damage andecological fragility of the river basin Severity of Mild Moderate Significant Severe Impact Risk level 1 2 3 4 Risk Factor 0.25 0.50 0.75 1.00 Severity of impact: Severity of impact of illegal mining case to be categorised as mild or moderate or significant or severe for various components of the river and highest value to be used.
Sl River Impact Impact (sub Severity of Risk level Risk factor component Category) Impact 1 Morphology Instability of Bed degradation [7] channel Channel adjustment geometry Bank erosion 2 Hydrology Ground water Change of groundwater level table in adjacent area Change in Variation in flow river flow Energy 3 Ecology Loss of Disturbance to flora local Disturbance to ecological fauna community 4 River Instabilityto Damage to structures Hydraulic Hydraulic Structureand structure its surrounding 5 Any Other The estimation of environmental compensation in the present case consists of following components:
i) Environmental compensation for dredging carried out in 535 metre length in Seeta river without obtaining necessary clearances under the CRZ Notification, 2011 and EIA Notification 2006.
ii) Environmental compensation for dumping of 47,155 M3 of dredged materials to fill up part of the Seeta river and reclaiming about 5.9 acres of land in the CRZ (ecologically sensitive Mangrove buffer zone and fish breeding) area.
iii) Restoration cost of the 5.9 acres of reclaimed land a. Removal of dredged materials stored at 5.9 acres b. Removal of bund constructed around stored dredged material c. Cost of restoration of mangrove Environmental Compensation estimation for dredging in River Seeta andreclaiming 5.9 acres of the river:
(i) Quantity of Material extracted due to dredging and Deterrence factor: As per the report from Executive [8] Engineer (EE), Ports and Fisheries Division, Udupi, the dredging was carried out in 535 metre stretch of river Seeta during 14/04/2017 to 21/02/2018. During the period, 47,155 M3 or 80,163 MT of dredged material was removed from the river bed.
As per the report of MoEF and CC, "The dredging was carried out to create a navigation channel as navigation was not possible during low tide. And it was not for removal of silts/ sediments to restore the original depth of the channel. Therefore, it may fall under Capital dredging. Accordingly, it required prior EC under the EIA Notification, 2006 and its amendments. Hence, there is violation of the provisions of the EIA Notification 2006 and its subsequent amendments by the authorities".
As the prior EC under the EIA Notification, 2006 was not obtained, the entire quantity of 47,155 M3 of material removed from the river bed is considered as excess quantity of extraction (Z) and Deterrence factor (DF) as 1.
i) Amount per MT of sand:
As per Karnataka Minor Mineral Concession Rules, 1994, rate of sand per MT is Rs:- 30/-(Rupees thirty only) as provided by Dept. of Mines and Geology (Annexure 6). is used as conversion factor for M3 to MT of sand.
ii) Severity of the impact and Risk factor (RF):
The risk factor reflects the severity of the ecological damage at the field site and accounts for the extent of severity of damage using a four point scale of mild, moderate, significant and severe risk based on the ecological fragility of the river basin.
Considering the ecological sensitivity and influence on morphology of the river and bar formations in the mouth factor, following severity of impact, risk level and risk factor are assigned:
Sl River Impact Impact (sub Severity Risk Risk component Category) of Impact level factor [9] 1 Morphology Instability of Bed degradation Nil channel Channel adjustment Significant 3 0.75 geometry caused due to dumping of dredged material in 5.6 acres in CRZ I-
A Bank erosion Nil 2 Hydrology Ground water Change of ground Nil level water table in adjacent area Change in Variation in flow energy Mild 1 0.25 river flow - caused due to dumping of dredged material in 5.6 acres 3 Ecology Loss of Disturbance to flora Severe 4 1 local - Removal of Mangrove ecological plants inCRZ I-A community Disturbance to Severe 4 1 fauna - Destroying 5.9 acres of fish breeding area in CRZ I-A 4 River Instabilityto Damage to Nil structures Hydraulic Hydraulic Structure structure and its surrounding 5 Any Other For estimation of environmental compensation, the highest factor of severity ofimpact and risk factor i.e., 1 is considered.
iii) Environmental Compensation Charge (Rs) = D * (1+RF+DF) = 47,155*1.7 * 30 * (1+1+1) =Rs. 72, 14, 715/-
[10]Restoration cost:
The following measures are suggested for restoration of 5.9 acres of reclaimed landin Seeta River:
a) Removing and disposing the stored dredged material with suitable methodand restore the area back to river.
a. Removal of the bund and road constructed around the stored dredgedmaterial.
b. Restoration of the mangrove plantation. Accordingly, the cost of restoration is estimated as follows:
a. Cost of removal of dredged material dumped at 5.9 acres The total quantity of dredged material dumped for reclaiming 5.9 acres of river is 47,155 M3. As per the approved rates by Superintendent Engineer, Ports and Inland Water Transport Department, vide letter dated 01/08/2019, the rate for dredging all types of soils, pebbles, soft rocks etc (Sl.No. 4) is Rs. 234/- per cubic meter (Annexure 7).
The estimated cost for removal of dredged material stored at 5.9 acres is, 47,155* 234=Rs. 1, 10, 34,270/- (Rupees one crore ten lakhs thirty four thousand and two hundred seventy only) b. Cost of removal of bund constructed As per the cost estimate of the river protection work carried out near Kodikanyana Bridge, provided by Minor Irrigation and Ground water Department, Sub Division, Udupi vide letter dated 04/03/2020, the quantity of new embankment provided is 6930 M3 (Annexure 8). The schedule of rates for the year 2018-19, Minor Irrigation Circle, Mysore for removal and hauling of all kinds of soil/soft rocks as per Item No. 52a is Rs 186/- per cubic meter (Annexure 9).
The estimated cost of removal of bund is, 6930*186= Rs. 12, 88,980/- (Rupees twelve lakhs eighty eight thousand and nine hundred eighty only).
c. Cost of restoration of mangroves [11] The Dept of Forest, Kundapura has estimated the cost of rebuilding the mangroves in the region where Dept of Minor Irrigation has built the bunds across the river is equal to Rs. 5, 27,200/- (Rupees Five lakhs twenty seven thousand and two hundred only).Enclosed Annexure-9.
4. Total cost of Environmental Compensation:
Sl Environmental Amount (Rs)
damage/Restoration
1 Environmental damage cost 72, 14, 715/-
2 Restoration cost of the 5.9 acres of
reclaimed land
2a Cost of removal of dumped dredged 1,10,34,270/-
material
2b Cost of removal of bund constructed 12,88,980/-
2c Restoration cost of mangrove 5,27,200/-
Total Rs.
2,00,65,165/-
The estimated environmental damage cost is Rs. 72, 14, 715/- (Rupees seventy two lakhs fourteen thousand and seven hundred fifteen only). The estimated restoration cost is Rs. 1, 28, 50,450/- (Rupees one crore twenty eight lakh fifty thousand four hundred and fifty only). Total cost of environmental compensation is Rs. 2, 00, 65,165/- (Rupees two crores sixty five thousand one hundred sixtyfive only).
5. Recommendations:
1. The total cost of environmental compensation estimated is Rs.
2,00,65,165/-
(Rupees two crores sixty five thousand one hundred sixty five only).
2. Out of this, the estimated environmental damage cost due to dredging and reclaiming 5.9 acres of river is Rs. 72, 14, 715- Rupees seventy two lakhs fourteen thousand and seven hundred fifteen only).
3. The estimated restoration cost is Rs. 1, 28, 50,450/- (Rupees one crore twenty eight lakh fifty thousand four hundred and fifty only).
[12]4. Public Works, Ports and Inland Water Transport Department (Dept. of Ports and Fisheries, Udupi) and Minor Irrigation Department, Udupi may be liable for paying the environmental compensation and restoration cost.
5. The detailed restoration plan and ToR for restoration of the region may be prepared by KSCZMA and Department of Forests and the restoration work be supervised.
6. A detailed study of the flora and fauna in region including water quality parameters shall be undertaken prior to the restoration and post restoration for 2-3 years to ensure that the ecological parameters of the region are restored. The KSCZMA may get the study done through the qualified and accredited agencies with necessary ToR framed for the purpose.
In case of any such future activities, it should be under taken strictly in compliance with prevailing Rules and Regulation including conducting EIA studies, obtaining ECand CRZ clearance etc., as applicable."
5. The learned counsel appearing for the applicant submitted that he had not received the copy of the report and he wanted some time to go through the same and make their submissions if any to this Tribunal in this regard.
6. So under such circumstances, we feel that an opportunity can be given to the applicant to file their objection to the committee report, but not a longer date as the matter is of the year 2017.
7. The parties are at liberty to file their objections, if any, to the committee report to this Tribunal on or before 16.03.2021 by e-filing in the form of Searchable PDF/OCR Supportable PDF and not in the form of Image PDF along with necessary hardcopies to be produced as per Rules and also by [13] serving copies to the counsel appearing for the respondents and the case is being posted to 22.03.2021 for consideration.
8. For consideration of report and objections, if any to the report, post on 22.03.2021.
Sd/-
...........................................J.M. (Justice K. Ramakrishnan) Sd/-
......................................E.M. (Shri. Saibal Dasgupta) O.A. No.71/2017, 25th February, 2021. Mn.
[14]