National Green Tribunal
Meenava Thanthai K.R.Selvaraj Kumar ... vs State Of Tamilnadu on 28 September, 2022
Bench: K Ramakrishnan, K. Satyagopal
Item No.4 & 5:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 28 of 2020 (SZ)
WITH
Appeal No. 28 of 2020 (SZ) &
I.A. No. 115 of 2020 (SZ)
IN THE MATTER OF:
MEENAVA THANTHAI K.R. SELVARAJ KUMAR
MEENAVAR NALA SANGAM
(Registered under section 10 of the
Tamil Nadu Societies Act, in SI. No. 205 of 2015 dated 26.06.2015)
Represented by its President
M.R.Thiyagarajan
S/o Late C. Rajalingam
Office at No.48, East Madha Church Street,
Royapuram, Chennai-600 013.
... Applicant (s)
Versus
STATE OF TAMIL NADU
Through the Chief Secretary,
Government of Tamil Nadu,
Secretariat Chennai 600 009 and Ors.
...Respondent(s)
WITH
MEENAVA THANTHAI K.R. SELVARAJ KUMAR
MEENAVAR NALA SANGAM
(Registered under section 10 of the
Tamil Nadu Societies Act, in SI. No. 205 of 2015 dated 26.06.2015)
Represented by its President
M.R.Thiyagarajan
S/o Late C. Rajalingam
Office at No.48, East Madha Church Street,
Royapuram, Chennai-600 013.
... Appellant (s)
Versus
TAMIL NADU STATE ENVIRONMENTAL IMPACT ASSESSMENT
AUTHORITY
Through the Member Secretary,
Ground Floor, Panagal Maligai,
No.1 Jeenis Road, Saidapet,
Chennai-600 015 and Ors.
...Respondent(s)
Page 1 of 57
O.A. No.28/2020 (SZ):
For Applicant(s): Mr. G. Stanley Hebzon Singh.
For Respondent(s): Dr. D. Shanmuganathan for R1, R5 to R7.
Mrs. M. Sumathi for R2 & R3.
Mr. S. Sai Sathya Jith for R4.
Appeal No.28/2020 (SZ):
For Applicant(s): Mr. Ritwick Dutta.
For Respondent(s): Mrs. M. Sumathi for R1.
Dr. D. Shanmuganathan for R2 & R3.
Mr. S. Sai Sathya Jith for R4.
Judgment Pronounced on: 28th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER
ORDER
Judgment pronounced through Video Conference. Both the original applications are disposed of with directions vide separate Common Judgment.
Pending interlocutory application, if any, shall stand disposed of.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.28/2020 (SZ) & Appeal No.28/2020 (SZ), I.A. No. 115 of 2020 (SZ) 28th September 2022. Mn.
Page 2 of 57 Item No.4 & 5:- Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
(Through Video Conference)
Original Application No. 28 of 2020 (SZ)
WITH
Appeal No. 28 of 2020 (SZ) &
I.A. No. 115 of 2020 (SZ)
IN THE MATTER OF:
MEENAVA THANTHAI K.R. SELVARAJ KUMAR
MEENAVAR NALA SANGAM
(Registered under section 10 of the
Tamil Nadu Societies Act, in SI. No. 205 of 2015 dated 26.06.2015) Represented by its President M.R.Thiyagarajan S/o Late C. Rajalingam Office at No.48, East Madha Church Street, Royapuram, Chennai-600 013.
... Applicant (s) Versus
1) STATE OF TAMIL NADU Through the Chief Secretary, Government of Tamil Nadu, Secretariat Chennai 600 009
2) TAMIL NADU STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY Through the Chairman, Ground Floor, Panagal Maligai, No.1 Jeenis Road, Saidapet, Chennai-600 015,
3) TAMIL NADU STATE EXPERT APPRAISAL COMMITTEE Though the Chairman 3rd Floor, Panagal Maligai, No.1 Jeenis Road, Saidapet, Chennai -600 015.
4) TAMIL NADU POLLUTION CONTROL BOARD Through the Chairman, 76, Mount Salai, Guindy, Chennai - 600 032
5) TAMIL NADU STATE CAOSTAL MANAGEMENT AUTHORITY Through the Member Secretary Panagal Building, Saidapet, Chennai - 600 032.
Page 3 of 576) DEPARTMENT OF FISHERIES, Government of Tamil Nadu Through the Director, 3rd Floor, Integrated Animal Husbandry and Fishing Building, Nandanam, Chennai - 600 035.
7) THE DISTRICT COLLECTOR First Floor, Collectorate Thiruvallur - 602 001.
(R7 - Suo Moto Impleaded as per Order of the Tribunal dt.07.02.2020) ...Respondent(s) WITH MEENAVA THANTHAI K.R. SELVARAJ KUMAR MEENAVAR NALA SANGAM (Registered under section 10 of the Tamil Nadu Societies Act, in SI. No. 205 of 2015 dated 26.06.2015) Represented by its President M.R.Thiyagarajan S/o Late C. Rajalingam Office at No.48, East Madha Church Street, Royapuram, Chennai-600 013.
... Appellant (s) Versus
1) TAMIL NADU STATE ENVIRONMENTAL IMPACT ASSESSMENT AUTHORITY Through the Member Secretary, Ground Floor, Panagal Maligai, No.1 Jeenis Road, Saidapet, Chennai-600 015.
2) DEPARTMENT OF FISHERIES, TAMIL NADU Through the Assistant Director, Fishing Harbour Project Division No.11, Thiruvottriyur NH Road, Near New Bus Stand, Ponneri, Tiruvallur, Tamil Nadu-601 204
3) STATE OF TAMIL NADU Through the Chief Secretary, Government of Tamil Nadu, Secretariat Chennai 600 009
4) TAMIL NADU POLLUTION CONTROL BOARD Through the Member Secretary, 76, Mount Salai, Guindy, Chennai - 600 032.
...Respondent(s) Page 4 of 57 O.A. No.28/2020 (SZ):
For Applicant(s): Mr. G. Stanley Hebzon Singh.
For Respondent(s): Dr. D. Shanmuganathan for R1, R5 to R7.
Mrs. M. Sumathi for R2 & R3.
Mr. S. Sai Sathya Jith for R4.
Appeal No.28/2020 (SZ):
For Applicant(s): Mr. Ritwick Dutta.
For Respondent(s): Mrs. M. Sumathi for R1.
Dr. D. Shanmuganathan for R2 & R3.
Mr. S. Sai Sathya Jith for R4.
Judgment Reserved on: 29th August 2022.
Judgment Pronounced on: 28th September 2022.
CORAM:
HON'BLE Mr. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER HON'BLE Dr. SATYAGOPAL KORLAPATI, EXPERT MEMBER Whether the Judgment is allowed to be published on the Internet - Yes.
Whether the Judgment is to be published in the All India NGT Reporter - Yes.
COMMON JUDGMENT Delivered by Justice K. Ramakrishnan, Judicial Member O.A. No.28 of 2020 (SZ):
1. This Original Application [O.A. No.28 of 2020 (SZ)] was filed by the applicant claiming to be a protector of fishermen community and authority to represent the Meenavar Nala Sangam. When he came to know that the 6th respondent in that case viz., the Fisheries Department was about to establish a Tuna Fishing Harbour in CRZ Zone at S.F. No.7/4, 39, 40, 41, 42 & 49, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District filed this application alleging that they were trying to establish the same without obtaining necessary clearance under the EIA Notification, 2006 as well as CRZ Notification, 2011 and 2019.Page 5 of 57
2. According to the applicant, the project that is to be established by the 6 th respondent will fall under 'B' Category of Item 7 (e) (Port, Harbour, Fishing Harbour) to schedule attached to the EIA Notification, 2006 and though it is a permissible activity under the CRZ Notification requiring sea front facility also be established after obtaining prior clearance from the CZMA as per the provisions of the CRZ Notification, 2011 and also under EIA Notification, 2006. The applicant had produced the photographs showing the nature of work that is being undertaken by the 6th respondent of making alleged unauthorized construction involving reclamation and dredging activities in CRZ zone as evidenced by Annexure - A2. It was understood that the 6th respondent had proposed to construct a Tuna Fishing Harbour with 69,000 TPA in the above said area covering 30.87 Ha. within the break waters and a land side reclaimed area for building infrastructure in 15.63 Ha. The applicant produced the copy of the Project Map as Annexure - A3 with the application. The 6th respondent's activities envisages the following:-
i. Breakwaters - Northern break water 852 m and Southern Break water 1088 m.
ii. Dredging and disposal (2,00,000 cu.m.) iii. Reclamation and levelling iv. Quays (RCC bored pile) for MFVS 730 m v) Quays (RCC bored pile) for FRPs 110 m v. Internal road within the harbour complex vi. Fish Handling and auction hall for MFVs (1273 Sq.m.) vii. Tuna Fish Handling and Packing Hall (1200 Sq.m.) viii. Fish Handling and auction hall for FRP boats (258 Sq.m.) ix. Fishery Administration office 163 Sq.m. and other incidental activities."
3. It is understood that the 6th respondent applied for the Environmental Clearance (EC) before the State Environmental Impact Assessment Authority - Tamil Nadu (hereinafter referred to as 'SEIAA - Tamil Nadu') to consider the project and on receipt of the same, the project as appraised by the State Expert Appraisal Committee - Tamil Nadu (hereinafter referred to as 'SEAC - Tamil Nadu') in its 141st meeting held on 16.12.2019, evidenced by Annexure - A4 produced along with the application, where they have noted the following:-Page 6 of 57
"The SEAC noted the following :
1. The Proponent M/s. Fisheries Department has applied for Environmental Clearance "Tune Fishing Harbor" at S.F.No. 7/4 , 39 , 40 , 41 , 42 & 49, Thiruvottriyur Kuppam Village, Ennore Taluk. Thiruvallur District, Tamil Nadu.
2. The project / activity is covered under Category "B1" of Item 7 (e) "Port, Harbour, Fishing Harbour" of the Schedule to the EIA Notification, 2006.
The SEAC noted that the presentation does not include various essential impact studies and the following details
1. ToR compliance report was found to be not specific according to TOR Conditions
2. The quantification of sediment deposition and sediment erosion including the locations should be predicted and suitable environmental management plans for reducing the same should be furnished.
3. Impact in Tourism, Shoreline and Fish movement due to the proposed project needs to be studied and reported
4. Proposal for emergency response plan, risk assessment and mitigation plan for oil spill events.
5. The impact on the Ennore creek due to implementation of the Project'
6. The proponent shall explore the options of hollow structures instead of solid structure to reduce the erosion / deposition.
7. Overall the EIA report and presentation is not up to the mark. Hence, the SEAC directed the proponent and the consultant to prepare the appropriate EIA and to appear for presentation once again with aforesaid details and other environmental impact data and studies in full shape."
4. It is clear from the above that without getting necessary clearance, they are unauthorizedly proceeding with the constructions. The proposed project area will fall under critically vulnerable ecologically sensitive area classified as CRZ - I as per the CRZ Notification, 2011 and proceeding with the work without obtaining necessary clearance from the CZMA will amount to illegality. They also constructed a road unauthorizedly in CRZ area without obtaining necessary permission evidenced by Annexure - A5, Photographs. The Annexure - A6 produced by the applicant is a photograph showing the illegal dumping in the CRZ area by the 6th respondent. They also produced Annexure - A7, Photographs showing the nature of construction made by the 6th respondent including certain structures and buildings in CRZ area causing hindrance to the fishermen community in that area. Annexure - A8, Representation was made on 24.12.2019 by the applicant to the SEIAA - Tamil Nadu stating that the project proponent is proceeding with the illegal construction without obtaining necessary clearance but no action was taken by the authorities.
5. That prompted the applicant to file this application seeking the following reliefs:-
"(i) Issue directions to Respondent No. 2 to 5 to initiate appropriate action against the 6th Respondent for their illegal and unauthorized constructions, reclamation Page 7 of 57 and dredging activities of Tuna Fishing Harbor In CRZ Zone at S.F.No.7/4, 39, 40, 41, 42 & 49, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District, Tamil Nadu without obtaining the prior Environmental clearance as laid down under the Category "B"
of Item.7 (e) "Port, Harbour, Fishing Harbour" of the Schedule to the EIA Notification, 2006 and CRZ Clearance under CRZ Notification 2011.
(ii) Restrain the 6th respondent from permitting further construction and other related activities in the CRZ zone with respect to their project named Tuna Fishing Harbour.
(iii) Direct the 6th respondent to remove the entire unauthorized construction including road, buildings and other structures in the CRZ zone without obtaining any permissions under EIA Notification, 2006 and CRZ Notification, 2011 and to restore the area to its original condition.
(iv) Impose environmental Compensation upon the 6th respondent who has intentionally damaged the environment as well as marine eco system in Thiruvottriyur kuppam Village, Ennoru Taluk, Thiruvallur District.
(v) Direct the regulatory authorities to initiate penal proceedings against the officials of the 6th respondent in so far as they have critically damaged the environment.
(vi) Pass any order or orders as this Hon'ble Tribunal may deem fit, and appropriate in the facts and the circumstances of the present Application."
6. The District Collector - Thiruvallur District was Suo-Motu impleaded as additional 8th respondent as per order dated 07.02.2020.
7. The 6th respondent filed counter affidavit denying most of the allegations made in the application. It is further contended that the Thiruvallur District is having 28 km coastal boundary and 77 fishermen villages are located on the coastal stretch. There are about 116 Mechanized Fishing Vessels (MFVS) and about 4,500 country crafts / out board motorized boats (OBMS) are registered boats in the district, but there is no fishing harbour in Thiruvallur District. Therefore, all the 116 Mechanized Fishing Vessels (MFVS) and about country crafts / out board motorized boats (OBMS) are being operated from the Chennai Fishing Harbour. The Chennai Fishing is the only fishing harbour available for Chennai, Thiruvallur and Kancheepuram districts. There is huge congestion in Chennai Fishing Harbour and both Mechanized Fishing Boats and FRP boats are facing operational difficulties. The Chennai Fishing Harbour is under the control of Chennai Port Trust. The Government of Tamil Nadu is implementing various schemes to reduce the fishing pressure in seashore waters and also exploit the possibilities of under exploited deep sea fishing and activities, among fishermen to create job opportunities and improving their socio-economic status. Promoting deep sea fishing is one among them, which attracts more revenue through exports to other countries. Construction of Tuna Fishing Harbour will have sufficient infrastructure facilities to handle Tuna and other deep sea varieties which Page 8 of 57 will enhance the export of fishery products and also proposal to decongest the existing Chennai fishing harbour. For this purpose, the Government has accorded administrative sanction, vide G.O. (D) No.373 Animal Husbandry, Dairying and Fisheries (FS-1) Department dated 22.12.2014 to carry out the techno-economic feasibility studies of the project. Accordingly, required surveys and all physical and numerical modelling studies were carried out based on the available wave parameters and previous cyclones. Based on the studies, it was found that the proposed site is feasible for construction of Tuna Fishing Harbour and prepared detailed project report (DPR) and the stakeholders' meeting was held on 02.06.2015 as part of the DPR. The Anna University, Chennai had prepared the Coastal Zone Regulation Map showing all the details of Coastal Regulation Zone categories and their ecological sensitivity. The Anna University has reported that the size proposed for the construction of Tuna Fishing Harbour falls within the permissible area of CRZ norms and the site is not ecologically and environmentally sensitive as per CRZ Notification, 2011 and Environmental Impact Assessment Notification, 2006. The necessary District Level Coastal Regulation Zone (CRZ) clearances were obtained from the District Level Coastal Zone Management Authorities headed by the District Collector, vide their letter no. CRZ - 29 / DEE / TNPCB / CHN / DCZMA / 2016 dated 27.10.2016. Thereafter, the State Level CRZ Clearances were obtained from the Tamil Nadu Coastal Zone Management Authority (TNCZMA), headed by the Principal Secretary, Ministry of Forests and Environment, Government of Tamil Nadu vide their proceedings No.P1/2204/2016 dated 10.03.2017. After obtaining CRZ clearances, Online application was submitted to Tamil Nadu State Environmental Impact Assessment Authority (TN-SEAA) on 22-08-2017 for Environmental Clearances (EC) and the presentation on the project was made to State Expert Appraisal Committee during their 100th meeting held on 20.12.2017 and 21.12.2017. The Tamil Nadu State Environmental Impact Assessment Authority (TN SEIAA) considered the proposal in its 266th meeting held on 22.01.2015 and issued the Terms of Reference (ToR) to carryout Environmental Impact Assessment (EIA) and public hearing meeting vide their No. SEIAA-TN/F.No6440/SEAC - C / 7 (e) ToR - 301 / 2017 dated 22.01.2018.
Page 9 of 57The detailed Environmental Impact Assessment (EIA) study was carried out by the Centre for Environmental Studies, Annamalai University, Parangipettal, Cuddalore District and public hearing meeting was conducted on 25.07.2019 by the Chennai District Collector. The public from local area have attended over whelmingly expressed that the project would help to improve their livelihood and socio-economic status and they have produced the copy of the minutes of public hearing meeting along with the counter. The online application was submitted on 01.10.2019 for environmental clearances to TN-SEIAA and made presentation on 16.12.2019 before the State Expert Appraisal Committee (SEAC) during its 141st meeting and received the minutes of the meeting, in which it has been directed to represent again after submitting further details. The same have been attended and resubmitted to SEAC on 17-02- 2020 and waiting further reply from them. The Construction of Fishing Harbour is a permitted activity in CRZ - IB, which is called inter tidal zone, that is the zone between high tide level (HTL) and low tide level (LTL), as per CRZ Notification 2019. In Clause 5.1.2(i) Land reclamation for ports and harbours; 5.1.2 (ii) Activities related to water front or directly needing foreshore facilities such as ports and harbour, Jetties, quays, Wharves, erosion control etc. are permitted activities. The basic purpose of getting CRZ Clearance is that although the permitted activities are being carried out in coastal zone, it should not be done in ecologically sensitive area like Mangrove area and turtle nesting area and also for getting environmental clearance for permitted activities is that it should not affect the biodiversity of the location, spoil the environment by causing any means of pollution and not affecting the lifestyle of locals etc. 90% of the processes have been completed for getting environmental clearances and they have already obtained required CRZ Clearance for the project. They denied the allegation that they are doing reclamation, construction of buildings and roads in an illegal manner and they have not started the work and they will start the work after obtaining necessary permissions and being the Government project of public importance during the pendency of the application for Environmental Clearance (EC), they may be permitted to continue the work, as they have followed the procedure and norms in obtaining CRZ and Environmental Page 10 of 57 Clearance (EC). No road was constructed in CRZ area by the Fisheries Department. There is street called Kasi Koil Battai in Town Survey No.22 of the Thiruvottriyurkuppam which is being used. So, it is totally false that the Fisheries Department had constructed the road in CRZ area. The Fisheries Department is casting tetra pods in the shore and placing granite stores on the existing two groynes, which will not affect the ecosystem and did not damage the ecosystem as alleged. The construction of fishing harbour was proposed after carrying out all required technical studies and analysis. So, they prayed for accepting their contentions and dismissal of the application.
8. The 5th respondent filed counter denying most of the allegations made in the application except those are admitted by them. They contended that on 06.10.2016, an environmental clearance was issued to PWD to construct series of 19 groynes from Ennore to Ernavoorkuppam by the 2 nd respondent and the present impugned site falls nearby the project area reflected in the clearance. On 02.12.2016, the Assistant Director of Fisheries, Thiruvallur at Ponneri, Tiruvallur District submitted a proposal, seeking clearance under CRZ Notification 2011, for the construction of a Tuna Fishing Harbour of fish handling capacity of 69,000 Tons Per Annum at the same site with the facilities proposed by the Project Proponent which were already extracted in the earlier paragraphs as mentioned in the application filed by the applicant, as such we are not extracting the same. As per the approved Coastal Zone Management Plan (CZMP), the impugned site is falling in CRZ-II, CRZ-I (B) (inter-tidal zone) and CRZ-IV. The allied facilities such as fishermen gear sheds, mending sheds, rest sheds, boat repair shop, restaurant, dormitory, security / guard house, radio communication tower, public toilet, water supply facilities, pump house, drainage and sewerage including effluent treatment plant, storm water drains, etc. have also been proposed. The District Coastal Zone Management Authority (DCZMA) for CMDA areas resolved to recommend the above project to the Tamil Nadu State Coastal Zone Management Authority subject to the following conditions:
"a) The unit shall comply with the recommendation as stated in the Marine Impact Study Report and Disaster Management Report as conducted by Center for Page 11 of 57 Environment, Health and Safety, Faculty of Engineering & Technology, Annamalai University.
b) Evidence, based on the erosion study conducted by the National Center for Sustainable Coastal Management (NCSCM) should be produced, confirming that the project site is not falling in the High Eroding Coast. (the applicant furnished the information)
c) The unit shall ensure that adequate safety precautions are provided for the ammonia storage / handling area in the proposed ice plant. Also, automatic water sprinkler arrangement shall be installed to ensure water spraying in the event when the concentration of ammonia exceeds the work place environment.
d) The unit shall utilize the dredged sand to reclaim land for establishing the landside infrastructure.
e) The unit shall not generate trade effluent at any stage of the fish packing facility.
f) The unit shall provide ETP of adequate capacity for the combined treatment of sewage and effluent proposed from vessel washing from dining hall, fish box cleaning, etc. and the treated effluent shall be utilized for gardening.
g) The unit shall ensure that the R.O. rejects generated from desalination plant is let into sea at a distance recommended from competent authority to ensure no marine impact is created due to discharge of R.O. rejects.
h) The solid waste generated in the premises shall be disposed scientifically.
i) The unit shall establish the facility only after obtaining CRZ clearance and Consent to Establish of the Board."
9. Thereafter, the proposal was placed before the 93th meeting of the Tamil Nadu State Coastal Zone Management Authority held on 27.02.2017 and the authority resolved to clear the proposal and it was communicated to the Fisheries Department vide Proceedings No.P1/2204/2016 dated 10.03.2017, subject to the following conditions in addition to the conditions imposed by the DCZMA for CMDA areas viz., "a. It should be ensured that there should not be any adverse impact on coastal eco-system due to the dredging activity and the dumping of dredged materials and proper mitigation measures should be evolved.
b. The design of breakwaters should be based on the bathymetry and modelling studies.
c. Shoreline evolution should be monitored periodically through reputed institutions and remedial measures need to be planned to prevent further erosion, if any, on the adjacent coastal areas due to the construction of breakwaters. Only those facilities which are integral to the Fishing Harbour shall be provided in CRZ areas and those which are not integral to may be located outside the CRZ areas.
d. A detailed report on the details of solid waste (Bio-degradable / non- degradable etc.,) generated and a proper plan for segregation at source shall be formulated. Organic Waste Converter (OWC) of adequate capacity shall be provided to dispose the biodegradable waste. Further other solid waste such as plastics may be collected and disposed for re-use. The local body may also be involved in the above task.
e. The Fishermen community shall be adequately educated on the segregation of solid waste for proper management of the solid waste.
f. Hygiene should be given priority and well maintained toilets should be provided.
g. Specific areas for Office buildings and Fishermen Associations should be earmarked and no encroachments should be allowed in future for outsiders / associations.
h. Action shall be taken for the setting up of a Police Station, well in advance.
i. Adequate parking facilities shall be provided.
j. Adequate mitigation measures to be taken to prevent the oil spillage and its adverse impact.
Page 12 of 57k. Proper monitoring in the management system to be prepared for handling Ammonia in the Ice Plants.
l. The ecologists should be included organisms. The impact on the corals, marine organisms, turtle nesting etc., due to the above constructions, in long run, should be evaluated and monitored through a panel of experts, in which, m. Afforestation garden to the fishermen in the Harbour area shall be taken in consultation with the Forests Department.
n. No drawal of ground water in CRZ areas is permitted. o. The proposed activity shall not cause hindrance to the nearby human settlements / authorized structures and fishing activities.
p. Clearance under EIA Notification 2006 should be obtained from the SELAA."
10. Representation was received from the applicant, dated 26.12.2019 and the same was forwarded to the District Environmental Engineer, Tamil Nadu Pollution Control Board, Arumbakkam, Chennai, vide this office letter dated 13.01.2020 for taking action and to send remarks. The Government of Tamil Nadu constituted District Coastal Zone Management Authorities (DCZMA) for all the Coastal districts vide G.O.Ms.No. 163 Environment and Forests Department dated 09.06.1998 and the District Environmental Engineer of the Tamil Nadu Pollution Control Board is the Convener of the District Coastal Zone Management Authority to take appropriate action in this regard. To take action on violation under the CRZ Notification, as discussed in the 79th meeting of the TNSCZMA, dated 18.08.2014, it was resolved that all the District Collectors, District Coastal Zone Management Authorities, CMDA, Corporation of Chennai are responsible for identification of violations and to take action on the violators, by following the procedures, laid down under the Environment (Protection) Act, 1986. The Joint Committee was appointed by this Tribunal with certain members and they have directed to submit the report. The fish handling capacity of the project is more than 10,000 Tons per Annum (i.e. 69,000 Tons per Annum), and it requires further Clearance from the State Environment Impact Assessment Authority (SEIAA) under Environment Impact Assessment Notification (EIA), 2006. They have already granted the clearance as required under the CRZ Notification following the procedure. So, they prayed for accepting their contentions and passing appropriate orders.
11. As per order dated 07.02.2020, this Tribunal appointed a Joint Committee comprising of (i) District Collector - Thiruvallur District, (ii) Tamil Nadu Pollution Control Board, (iii) SEIAA - Tamil Nadu and (iv) a Senior Page 13 of 57 Officer from the SCZMA - Tamil Nadu to inspect the area in question and submit a factual as well as action taken report, including the violations (if any) found. In the meantime, this Tribunal directed the 6th respondent to maintain the Status Quo until further orders.
12. The Joint Committee has filed the report which was considered by this Tribunal by order dated 21.07.2020 extracted in Para (5) of the order which reads as follows:-
"1.0 Orders of the Hon'ble Tribunal The Petitioner Meenava Thanthai K.R. Selvaraj Kumar, Meenavar Nala Sangam prayed to the Hon'ble National Green Tribunal, to initiate appropriate action against the 6th respondent Department of Fisheries, Government of Tamil Nadu for their illegal unauthorized constructions, reclamation and dredging activities of Tuna Fishing Harbour in CRZ Zone at S.F.No.7/4,39,40,41,42 &,49, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District, Tamil Nadu without obtaining the prior Environmental clearance as laid down under the Category "B" of Item.7(e) "Port, Harbour, Fishing Harbour" of the Schedule to the EIA Notification, 2006 and CRZ Clearance under CRZ Notification 2011."
The petitioner alleged that Department of Fisheries, Government of Tamil Nadu is establishing a Tuna Fishing Harbour in CRZ Zone at S.F.No.7/4,39, 40,41,42 & 49, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District without obtaining necessary clearance and also Coastal Regulation Zone Clearance as required under EIA Notification 2006 and CRZ Notification 201l.
According to the petitioner, it is under CRZ I under the CRZ Notification, 2011 and without getting prior permission any activity in that area is illegal. The petitioner also produced the minutes of the meeting of the State Level Expert Appraisal Committee dated 16/12/2019 which dealt with that project for appraisal and observed that the presentation and EIA report submitted by the project proponent is not proper and they will have to submit a fresh EIA report on the basis of the directions given by them and necessary presentation will have to be made by consultant to satisfy the state level expert appraisal committee to consider the project.
The Petitioner also submitted substantial evidence in the form of photographs taken at the site showing the nature of activities being carried out in that area.
In order to ascertain the present status of the project, Hon'ble National Green Tribunal, Southern Zone, Chennai vide Paragraph 9 constituted a Joint Committee comprising of District Collector, Thiruvallur, Tamil Nadu State Pollution Control Board, State Environment Impact Assessment Authority and Senior Officer from the Tamil Nadu State Coastal Zone Management Authority to inspect the area in question and submit the factual and action taken report including any violations found before the Tribunal within a period of one month.
The Hon'ble National Green Tribunal, Southern Zone, Chennai also directed State Environment Impact Assessment Authority (SEIAA) to act as the nodal agency for co-ordination and also for providing necessary logistics for this purpose. The copy of the order is enclosed as Annexure I. 2.0 - Composition of the Committee The joint committee was constituted comprising the following members as directed by the Hon'ble National Green Tribunal.
1. Dr. R. Sivacoumar Member, State Environment Appraisal Committee (SEAC), Tamil Nadu
2. Shri. M. Malaiyandi Joint Chief Environmental Engineer (Monitoring), Tamil Nadu Pollution Control Board, Chennai Zone
3. Shri. D. Eswaran Assistant Conservator of Forests, Department of Environment, Chennai
4. Shri. M. Muthukaluvan Revenue Divisional Officer, Chennai North 3.0 Joint Inspection of the Committee The Joint Committee has inspected the project site of TUNA Fishing harbour of the Department of Fisheries, Government of Tamil Nadu located at Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District in the presence of Thiru Murugesan, Executive Engineer, Department of Fisheries on March 17, 2020.
Page 14 of 57The joint committee held discussion with Department of Fisheries, Government of Tamil Nadu and visited in and around the project site to ascertain the factual information as per the court directives and took photographs of the salient features of the project site to get the first hand information about the site (Plate 1) 4.0 Assessment of the Joint Committee During the time of inspection, the committee observed the following:
1. The Fishing Harbour (Fish handling capacity - 69,000TPA) and its components such as Breakwaters, Quays, Internal roads, Fish Handling and Auction Hall Packing Hall etc. are proposed in CRZ IV (towards sea side),CRZ I (B) (between LTL & HTL- inter tidal zone) and CRZ II (towards landside) at new town survey number. 2712 (old SF.No.7/4, 39, 40, 41, 42 & 49), Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District.
2. The Fisheries Department, Government of Tamil Nadu obtained CRZ clearance from the Tamil Nadu State Coastal Zone Management Authority vide Proceeding.No.Pl/220412016 dated 1010312017 for the construction of Tuna Fishing Harbour of fish handling capacity of 69000 TPA at Thiruvottiyur Kuppam Village, Ennore Taluk, Thiruvallur District under CRZ Notification 2011 and the same is attached as Annexure II.
3. As the project falls under the Category "B" of Item. 7(e) "Port, Harbour, Fishing Harbour" of the Schedule to the EIA Notification, 2006, the public hearing was conducted on 2510712019 by the TNPCB and Executive Engineer, Fisheries Department informed, application filed to the SEIAA for Environmental Clearance under the EIA Notification2006 is in progress.
4. Two approach roads of roughly 17.2m of width are existing at the north and south directions of the project site as shown in Plate 2.
5. A temporary office shed (with air conditioning) measuring approximately 3m x 10m was built inside the project site as shown in Plate 3.
6. During the time of inspection by the Joint Committee, one silo made up of Mild Steel (MS) with capacity of 100 MT for storing the cement, blue metal jelley of size 1/4" & 1/2" and mixer machine for the preparation of mortar for making gryones are present inside the project site as shown in Plate 4.
7. Three break water structures of l50m each existing at the site, of which 2 were extended from the initial existing projection of 150m. The break water structure in the southern direction of the project site is extended up to 400m (proposed is 1088m) from the initial projection of 150m and another existing break water structure of 150m was extended up to 320m (proposed is 852m) in the northern direction as shown in Plate 5.
8. During the time of inspection, no open and bore wells are existing inside the project site.
9. There is one sewage carrying open drain (nullah) flowing through the project site and untreated sewage is mixing with the sea inside the project site as shown in Plate 6.
10. There are no permanent stones available for showing the high tide and low tide line within the project site erected by the Director of Environment, Government of Tamil Nadu.
11. At the time of inspection, no construction/dredging/reclamation activities related to fishing harbour were carried out within the project site. Also, the 6th respondent Fisheries Department, Government of Tamil Nadu has not constructed any permanent structures pertaining to fishing harbour except the extension of break water as stated above."
13. Thereafter, on that day, the Additional Advocate General who appeared for the 6th respondent submitted that the application for Environmental Clearance (EC) is pending before the SEIAA - Tamil Nadu. The learned Additional Advocate General submitted that since the application was pending, no decision was taken by the SEIAA - Tamil Nadu in the pending application and this Tribunal directed the SEIAA - Tamil Nadu to consider the application and pass appropriate orders in the application pending for Environmental Clearance (EC) submitted by the 6th Page 15 of 57 respondent and pendency of this application will not prevent from exercising their statutory powers in accordance with law.
14. The matter was taken up on 14.09.2020 and on that day, this Tribunal had considered the another Joint Committee report received on 14.09.2020 and extracted in Para (7) of the order which reads as follows:-
"The Petitioner Meenava Thanthai K.R. Selvaraj Kumar, Meenavar Nala Sangam prayed to the Hon‟ble National Green Tribunal that to initiate appropriate action against the 6th respondent Department of Fisheries, Government of Tamil Nadu for their illegal unauthorized constructions, reclamation and dredging activities of Tuna Fishing Harbour in CRZ Zone at S.F.No.7/4,39,40,41,42 & 49,Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District, Tamil Nadu without obtaining the prior Environmental clearance as laid down under the Category "B" of Item.7(e) "Port, Harbour, Fishing Harbour" of the Schedule to the EIA Notification, 2006 and CRZ Clearance under CRZ Notification 2011."
It is alleged in the petition that Department of Fisheries, Government of Tamil Nadu is establishing a Tuna Fishing Harbour in CRZ Zone at S.F.No.7/4,39,40,41,42 &49, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District without obtaining necessary clearances and also Coastal Regulation Zone Clearances as required under EIA Notification 2006 and CRZ Notification 2011.
According to the petitioner, it is under CRZ I under the CRZ Notification, 2011 and without getting prior permission any activity in that area is illegal. The petitioner also produced the minutes of the meeting of the State Appraisal Committee dated 16/12/2019 which dealt with that project for appraisal and observed that the presentation and EIA report submitted by the project proponent is not proper and they will have to submit a fresh EIA report on the basis of the directions given by them and necessary presentation will have to be made by consultant to satisfy the appraisal committee to consider the project.
The Petitioner also submitted substantial evidence in the form of photographs taken at the site showing the nature of activities going on in that area.
In order to ascertain the present status of the project, Hon‟ble National Green Tribunal, Southern Zone, Chennai in its order dated 07.02.2020 vide para-9 constituted a Joint Committee comprising of District Collector, Thiruvallur, the Tamil Nadu State Pollution Control Board, State Environment Impact Assessment Authority and Senior Officer from the Tamil Nadu State Coastal Zone Management Authority to inspect the area in question and submit the factual and action taken report including any violations found before the Tribunal within a period of one month.
The Hon‟ble National Green Tribunal, Southern Zone, Chennai also directed State Environment Impact Assessment Authority (SEIAA) to act as the nodal agency for co- ordination and also for providing necessary logistics for this purpose.
As per the above said directions of the Hon‟ble NGT (SZ), the joint committee filed its first inspection report during March, 2020.
2.0 Orders of the Hon'ble Tribunal The Hon'ble National Green Tribunal order dated 21/07/2020 has directed that
11. "On going through the report, we find that no environment compensation has been assessed, and whether any damage has been caused to the environment / coastal area has not been mentioned. So, we feel it appropriate to direct the committee to assess the environment compensation as well and the question as to whether it has to be awarded or not can be considered by this Tribunal after hearing both sides on that aspect later.
13. The committee is directed to submit further report as directed within a period of one month from today to this Tribunal i.e, on or before 14.09.2020 through email or by e-filling at [email protected]. "
The copy of the order is enclosed as Annexure I. 3.0 Joint Inspection of the Committee The Joint Committee comprising of the following members have again inspected the project site of TUNA Fishing harbour by the Department of Fisheries, Government of Tamil Nadu located at Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District in the Page 16 of 57 presence of Thiru Murugesan, Executive Engineer, Department of Fisheries on September 09, 2020.
1. Dr. R.Sivacoumar Member, State Expert Appraisal Committee (SEAC), Tamil Nadu.
2. M.Malaiyandi Joint Chief Environmental Engineer (Monitoring), Tamil Nadu Pollution Control Board, Chennai Zone.
3. D.Eswaran Assistant Conservator of Forests, Department of Environment, Chennai.
4. V Ravi Revenue Divisional Officer, Chennai North, Chennai District.
The joint committee held discussions with Department of Fisheries, Government of Tamil Nadu and inspected the project site to verify if any further constructions has been carried out after the previous inspection of the committee and took photographs.
4.0 Assessment of the Joint Committee During the time of inspection, the committee observed the following in addition to the observations submitted by the committee in the earlier report to the Hon'ble National Green Tribunal, Southern Zone, Chennai.
1. Two more temporary sheds were found at the project site as shown in the Photographs.
2. Two gigantic grins were seen at the site one near the northern approach road and the other one at the southern break water facility.
3. Many Solid gryones weighting 4 MT were seen inside the project area as well all along the shore line in the southern direction.
4. No construction/dredging/reclamation activities related to fishing harbour were carried out within the project site.
5.0 Conclusion and Recommendation of the Joint committee In order to assess the damage caused by the Department of Fisheries, Government of Tamil Nadu to the environment / coastal area before obtaining Environmental Clearance (EC) from the SEIAA of Tamil Nadu and its consequent compensation resulting from the damages caused, the Joint committee is of the opinion that, it needs to be carried out by reputed institute/organizations working in these field."
15. Thereafter, this Tribunal had passed the following orders:-
"8. It is mentioned in the report that in order to assess the damage caused to the environment on account of the work done by the Department of Fisheries of Government of Tamil Nadu to the Environment/Coastal area without obtaining environmental clearance from State Environment Impact Assessment Authority (SEIAA) of Tamil Nadu and its assessment of consequent compensation resulting from the damage caused, the Joint Committee opined that it needs to be carried out by a reputed institute/organisation working in these fields.
9. The learned counsel appearing for the applicant submitted that, in view of the objections filed by the applicant, if the department is permitted to carry out their work, it will not be possible for the committee to assess the compensation for the purpose of enabling this Tribunal to decide the matter in accordance with law.
10. The learned Advocate General appearing for the State Department submitted, since the monsoon is fast approaching and the project will have to be proceeded with as necessary clearances have already been obtained from the concerned authorities, they may be permitted to proceed with the work subject to this Tribunal enquiring in to the question of damage, if any, caused to the environment and imposition environmental compensation if any, required after getting the further report of the committee and they have no objection even deputing any other expert agency along with the committee to assist them and get the necessary data for this Tribunal to decide the matter in accordance with law.
11. It is an admitted fact that there were some activities done by the Fisheries Department namely, 6th respondent for the purpose of proceeding with the proposed project without getting the necessary Environmental Clearance under EIA Notification 2006.Page 17 of 57
12. The learned Additional Advocate General submitted that as per the counter statement of 5th respondent, it is clearly mentioned that on 06.10.2016, an environmental clearance was issued to Public Works Department (PWD) to construct series of 19 Groynes from Ennore to Ernavoorkuppam by the 2nd respondent and only they are carrying out that work alone.
13. They also mentioned in the counter statement that the Coastal Zone Management Authority also granted necessary clearance under CRZ Notification 2011, for this purpose. But the allegation in the application was that they are proceeding with the construction work of the project without getting necessary environment clearance especially when the application filed by them for that purpose was pending with the authority and this Tribunal has only taken cognizance of the application in respect of the work being carried out without obtaining necessary clearance which is required for that project.
14. Even for the construction of the road etc., or making preparations for the project as per EIA Notification, 2006, prior environment clearance is required. If any work has been done in violation of the EIA Notification, 2006 then, this Tribunal is entitled to go into the question regarding the nature of damage caused to the environment, on account of this violation and also fixing the liability of the payment of environmental compensation if any, caused on the person/department responsible for the same.
15. Since, the committee members have mentioned that they don‟t have the expertise to assess the environmental damage and they wanted assistance of an expert agency, we feel that it is necessary to include an expert in remote sensing for the purpose of identifying the area prior to the activities and what is the natureand extent of the damage caused and also what is the amount required for restoring the same to its original position as these details will have to be taken into account by this Tribunal for proper disposal of this case.
16. So, for that purpose we include an expert from the Institute of Remote Sensing, Anna University, Chennai as additional Member in the committee so that, the committee can with the help of the expert collect data regarding the prior position of the area. Time series satellite data from July, 19 till date can be procured for appearing the appropriate period of commencement of construction and to what extent this has been done and the committee is directed to assess the environmental compensation based on the available data and submit the further report to this Tribunal.
17. We have not issued any interim order of injunction restraining them from doing proceeding with the work.
18. We have only recorded the undertaken given by the learned Additional Advocate General that they will not precede with the work of the project without getting the necessary environment clearance from the authorities.
19. So under such circumstances, we don‟t think that there is any necessity for us to pass any interim order regarding the proceeding with the project as such. However, the right of the applicant to challenge the environmental clearance in accordance with law is left open.
20. The Registry is directed to communicate this order to Anna University, to depute an expert from Institute of Remote Sensing under their University to assist the committee appointed by this Tribunal for the things mentioned above and also the committee members, so as to enable them to comply with the direction of assessing environmental compensation and submit a further report in this regard."
16. The applicant filed response to the earlier Joint Committee report received in 11.09.2020, wherein they have reiterated the contentions raised by them in the application. The construction of existing breakwater without prior Environmental Clearance (EC) would be highly detriment to the marine ecology of the area and these aspects were not properly considered by the authorities. The impact of the constructions was also not considered. They denied the allegation that there existed road but in fact, these roads were constructed for this purpose which is clear from the documents and photographs already produced.
Page 18 of 5717. The applicant also filed rejoinder to the reply submitted by the 6 th respondent denying the allegations and also the admissions made by them that they have not obtained necessary clearance from the SEIAA - Tamil Nadu under the EIA Notification and even the CRZ Clearance granted was subject to obtaining clearance under the EIA Notification, 2006 and any work done against such condition will amount to violation as has been observed by the Hon'ble Apex Court Common Cause Vs. Union of India 1 and the Alembic Pharmaceutical Limited Vs. Rohit Prajapathi 2 . So, the prayer for continuing with the work cannot be permitted. Further, the SEAC - Tamil Nadu has considered the proposal in its 153rd Meeting held on 04.06.2020 where they have merely accepted the response of the project proponent and recommended the project for granting the Environmental Clearance (EC) without applying its mind and they will be challenging the same before the appropriate forum in accordance with law. So, they prayed for accepting their contentions.
18. The Joint Committee also filed a further report dated Nil, e-filed on 05.03.2021 which reads as follows:-
"4.0 Assessment of Status Report by IRS. Anna University Accordingly, the Institute of Remote Sensing(IRS), Anna University, Chennai has prepared the report for the period between July 2019 and September 2020 using Time series satellite Data and furnished the report under title "Assessment of status in the vicinity of Tuna Fish Landing site at Ernavur, Thiruvottriyur kuppam Village, Ennore Taluk, Thiruvallur District, Tamil Nadu".
In the report, it was concluded that A silo and one temporal structure has been erected around June 2019.
Activities such as strengthening of groynes and other permanent structures are not seen till June 2019.
The groynes A and C, supposedly the part of proposed Tuna Fish landing harbour are strengthened after June 2019, whose lengths had been increased by 235m and 153m by Feb2020.
Production of tetra pods using the silo must have been started around June 2019.
The seaward distance of the coastline from the HTL varies between 5.40m to 67.2m at different points as depicted in the Map 2 of the IRS, Anna University.
No evidence of other construction activity found during the field visit.
The copy of the report is enclosed as Annexure-II.
5.0 Assessment of Environmental Compensation The Executive Engineer, Fishing Harbour project Division, Department of Fisheries, Government of Tamil Nadu vide his letter dated 10109/2020 (Copy enclosed as 1 (2017) 9 SCC 499 2 2020 SCC Online SC 347 Page 19 of 57 Annexure-Ill) has reported that the Fisheries Department has stopped all the activities of Tuna Fishing Harbour on07102/2020.
As directed by the Hon'ble National Green Tribunal, the Joint Committee opined that the Environmental compensation (EC) has to be calculated from the date of commencement of construction activity to the date of stoppage of construction activity by the Fisheries Department.
The Hon'ble National Green Tribunal (NGT), Principal Bench in the matter of O.A No.593/2017 (wP (CNIL) No.37512012, Paryavaran Suraksha Samiti & Anr. vs. Union of India & ors. has directed the central Pollution control Board (CPCB) to arrive methodology for assessing Environmental Compensation(EC) and action plan to utilize the fund. Accordingly the GPCB has formulated the methodology for assessing Environmental compensation (EC) to be levied on industrial units in Chapter -I in which it is reported that the following cases can be considered for levying Environmental Compensation(EC).
a) Discharges in violation of consent conditions, mainly prescribed standards / consent limits.
b) Not complying with the directions issued, such as direction for closure due to non installation of OCEMS, non-adherence to the action plans submitted etc.
c) Intentional avoidance of data submission or data manipulation by tampering the Online Continuous Emission / Effluent Monitoring systems.
d) Accidental discharges lasting for short durations resulting into damage to the environment.
e) Intentional discharges to the environment - land, water and air resulting into acute injury or damage to the environment.
f) Injection of treated/partially treated/untreated effluents to ground water.
In this case, the 6th respondent Department of Fisheries, Government of Tamil Nadu has extended the break water structures in the Southern & Northern direction of the project site from the existing groins and formation of roads by violating the condition no "p) Clearance under the EIA Notification 2006 should be obtained from the SEIAA" of CRZ clearance obtained from the Tamil Nadu State Coastal Zone Management Authority vide Proceeding No.PV2204l2016 Dated 10/0312017. Hence the committee decided to assess the Environmental Compensation (EC) as per the following CPCB methodology as directed by the Hon'ble Nation Green Tribunal(SZ).
Environmental Compensation Formula EC:PIxNxRxSxLF where EC-Environmental compensation, PI-Pollution index of industry sector, N-Number days of violation took place, R-A factor in Rs for EC, S-Factor for scale of operation, LF- Location Factor Note:
i) The industrial sectors have been categorized into Red, Orange and Green based on their pollution index in the range of 60-100, 41-59 and 21-40 respectively. It was suggested that the average pollution index of 80, 50 and 30 may be taken for calculating the Environmental compensation for Red, Orange and Green Categories of industries respectively.
ii) N, number of days for which violation took is the period between the day of violation observed/ due date of directions compliance and the day of compliance verified by PCB/SPCB/PCC.
iii) R, is a factor in rupees, which may be a minimum of 100 and maximum of
500. It is suggested to consider R as 250, as the Environmental Compensation in cases of Violation.
iv) S could be based on small/medium/large industries categorization which may be 0.5 for micro or small, 1 for medium and 1.5 for large units.
v) LF, could be based on the population of the city/town and location of the industrial unit. For the industrial unit located within municipal boundary or up to 10 Km distance from the municipal boundary of the city/town, following factors (LF) may be used.
Page 20 of 57Calculation of Environmental Compensation to the 6th respondent as per the CPCB Guidelines 5.0 Recommendation:
The 6th respondent, Department of Fisheries, Government of Tamil Nadu had obtained CRZ clearance from the Tamil Nadu State Coastal Zone Management authority vide Proceeding Dated.10.03.20l7 under the Coastal Regulation Zone Notification, 2011 and subsequently obtained Environmental Clearance from the Tamil Nadu State Environmental Impact Assessment Authority (SEIAA) vide Proceeding Dated.05/08/2020 under the EIA Notification, 2006.
Nevertheless, the Fisheries Department has extended the existing groins and formed the temporary roads without obtaining the Environmental Clearance under the EIA Notification, 2006 as the establishment of Tuna Fishing Harbour is a public welfare scheme and delay in execution will affect the general public in getting their basic rights in time and also escalation in project cost."
19. The Joint Committee also filed a further report dated Nil, e-filed on 23.03.2021 more or less reiterating the same facts narrated in the report e-
filed on 05.03.2021 which was extracted above, but they have produced certain annexure as the report prepared by Indian Institute of Remote Sensing, Anna University and letter received from the Fisheries Department mentioning that the SEIAA has granted Environmental Clearance (EC) vide their Letter No. SEIAA-TN/F.No.6440/EC/7(e)/75/ 2020 dated 05.08.2020.
Page 21 of 5720. The 6th respondent has filed objection to the Joint Committee report alleging that none of the factors relied on by them for assessing compensation on the basis of the guidelines issued by the Principal Bench of National Green Tribunal, New Delhi in O.A. No.593 of 2017 is applicable to the facts of this case and the compensation of Rs.99,90,0000/- assessed by the Joint Committee is not proper and fair and none of the activities have affected the environment resulting any environmental degradation warranting imposition of environmental compensation. They also relied on certain observations made by some of the participants in the public hearing who welcomed the project at the earliest. So, they prayed for accepting their contentions and exonerating them from payment from compensation.
21. The 6th respondent also filed the same counter again along with certain photographs and e-filed the same again on 02.08.2022.
Appeal No.28 of 2020 (SZ):-
22. This Appeal was filed against the Environmental Clearance (EC) granted to this project vide their Proceedings Letter No.SEIAA- TN/F.No.6440/EC/7(e)/75/2020 dated 05.08.2020, evidenced by Annexure - A1 under Section 16 r/w Section 18 of the National Green Tribunal Act, 2010 by the appellant who is none other than the applicant in O.A. No.28 of 2020 (SZ).
23. It was alleged in appeal memorandum that the Environmental Clearance (EC) granted is an ex-post facto clearance which is not permissible under the EIA Notification, 2006 or under the Environment (Protection) Act, 1986. Further, the fact that the project proponent had started the work without obtaining necessary Environmental Clearance (EC) and the appellant also produced Annexure - A2/CRZ Clearance dated 10.03.2017 where there was stipulation to obtain clearance under the EIA Notification for the project before proceeding with the work. When the 2nd respondent who is the 6th respondent in O.A. No.28 of 2020 (SZ) started certain work in the area evidenced by Annexure -
Page 22 of 57A3/Photographs, they filed an O.A. No.28 of 2020 and this Tribunal ordered Status Quo on 07.02.2020, evidenced by Annexure - A4/Order.
24. The appellant also produced the Annexure - 5/Order dated 14.09.2020 of the Tribunal in O.A. No.28 of 2020, where this Tribunal had directed the Committee to assess the environmental damage and cost of restoration etc. They have submitted misleading facts in Form - I and they have not mentioned only some of the existing polluting units within the area of 10 Km and the appellant had produced the Annexure - A6 showing the existing units and also produced Annexure - A7/Form - I Application submitted by the project proponent. The baseline studies were conducted two years prior to the grant of ToR for the project during 3rd February to 27th April, 2016 and the ToR for the project in question was granted on 22.01.2018, wherein they have been directed to conduct baseline studies, but no subsequent study was conducted for this purpose and this is against the decision of the Tribunal in Sarpanch Gram Panchayat Tiroda Vs. Ministry of Environment Forest and Climate Change & Ors. and T. Mohana Rao Vs. Ministry of Environment Forest and Climate Change & Ors. of this Tribunal. The ToR dated 22.01.2018 issued to the project proponent was produced as Annexure - A8. They have not complied with the ToR conditions on certain aspects regarding the biodiversity study, impact on biodiversity due to infrastructure development, anticipated threat to the underwater habitat due to dredging, effect on the traditional fishing beach due to harbour construction, why the existing harbour facilities should not be enhanced instead of going for a new project, chance of plummeting Tuna population leading to degradation of the critical marine habitat due to the increased construction and the location of the disposal point shall be arrived in consultation with the NIOT and the Wetland and Coastal Zone Authorities by obtaining their approval. But in the EIA Report, the same were not specifically answered, evidenced by Annexure - A9/Relevant paragraphs of the EIA Report prepared during February 2018. Further, the SEAC - Tamil Nadu in the meeting held on 16.12.2019 viz., 141st Meeting, they have found that the EIA Report prepared were not proper and it was not up to the mark for the following reasons:- "1. ToR compliance report found to be not specific according to ToR conditions. 2. The quantification of sediment deposition and Page 23 of 57 sediment erosion including the locations should be predicted and suitable environmental management plans for reducing the same should be furnished. 3. Impact in tourism, shoreline and fish movements due to the proposed project needs to be studied and reported 4. Proposal for emergency response plan, risk assessment and mitigation plan for oil spill events 5. The impact on the Ennoore creek due to implementation of the project 6. The proponent shall explore the options of hollow structures instead of solid structures to reduce the erosion/deposition 7. Overall the EIA Report and presentation not upto the mark.
" evidenced by Annexure - A10/Minutes of the 141st Meeting of the SEAC - Tamil Nadu. Thereafter, the project proponent filed further EIA Report but it was not in tune with the directions issued and they have relied on certain studies purportedly conducted by the IIT Madras on shoreline management and they also produced certain answers to the queries without conducting further study, evidenced by Annexure - A11. Without considering the non-compliance of the ToR conditions and also non-compliance of the directions issued by the SEAC - Tamil Nadu in its 141st meeting, the SEAC - Tamil Nadu without application of mind, in its 153rd Meeting held on 04.06.2020 recommended the project for issuance of Environmental Clearance (EC) with certain conditions, wherein they have directed to conduct further studies on biodiversity and other aspects and without getting an opportunity to peruse the same, they have recommended the project, based on which, the impugned Environmental Clearance (EC) was granted by the SEIAA - Tamil Nadu. Further, the baseline data considered was more than three years old at the time when the public hearing was conducted and the Environmental Clearance (EC) application was filed which in fact against the O.M. dated 08.06.2022 issued by the MoEF&CC, including the earlier O.Ms. dated 28.08.2014 and 29.08.2017 in this regard. Further, the subsequent EIA Report prepared on the basis of the directions of the SEAC - Tamil Nadu in their 141st meeting was not placed before the public for their comments, as it was new details that had been collected and the public hearing conducted with unacceptable baseline data had vitiated the public hearing and the SEIAA - Tamil Nadu ought to have directed to conduct the further public hearing on this aspect and non-compliance of the same vitiates the proceedings.Page 24 of 57
25. It is further alleged in the appeal memorandum that the Environmental Clearance (EC) was granted without application of mind and without considering the impact of the project and without complying with the directions in the ToR and further directions issued by the SEAC - Tamil Nadu and without getting an opportunity to consider the studies to be conducted in the recommendation made by the SEAC - Tamil Nadu while recommending the project and it will go to show that the entire procedure adopted was not proper.
26. So, according to them, the Environmental Clearance granted has to be set aside and they filed this seeking the following reliefs:-
"(i) Quash the impugned Environmental Clearance dated 05.08.2020 issued by the Tamil Nadu SEIAA to the Tamil Nadu Fisheries Department for the proposed Tuna Fishing Harbor, Thiruvottriyur Kuppam Village, Ennore Taluk, Thiruvallur District, Tamil Nadu.
(ii) Direct the State Government to initiate prosecution against the Project Proponent for under Section 19 of the Environment (Protection) Act, 1986 for having commenced with the project related activities without obtaining prior Environmental Clearance under the EIA Notification, 2006.
(iii) Direct the project proponent to place all additional studies purportedly undertaken with respect to the TOR issued by the SEIAA vide letter dated 22.01.2018 before the public for fresh public consultation
(iv) Direct the project proponent to conduct a proper cumulative and carrying capacity study of the Ennore region, in light of the fact that several heavy industries are already existing in the said area and that any new project should be based on the outcome of such study
(v) Pass any other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case. "
27. The 2nd respondent filed counter contending that the appeal is not maintainable. According to them, the Environmental Clearance (EC) was granted after considering all the aspects strictly following the procedure provided under the EIA Notification. When the SEAC - Tamil Nadu in its 141st Meeting directed the 2nd respondent to conduct further studies, they have submitted their detailed explanation answering para-wise compliance of the ToR issued and only after satisfaction of the same, the SEAC - Tamil Nadu in its 153rd meeting recommended the project with certain conditions/studies which the project proponent is prepared to comply/conduct. Even in the public hearing conducted on 25.07.2019, most of the persons who appeared in the public hearing had welcomed the project and none had objected the same. So, there was no necessity for conducting the further public hearing and the technical issues will Page 25 of 57 have to be considered between the SEAC/SEIAA - Tamil Nadu and the project proponent and if the SEAC - Tamil Nadu is satisfied, they are entitled to recommend the project with certain conditions or additional conditions, if they feel that is required for protecting the environment which the project proponent is bound to comply with. They have also given the reasons and the necessity for going for the present project considering the inconvenience expressed by the fishermen community for parking their mechanized and other boats and they further contended that they are prepared to comply with any of the conditions imposed by the Tribunal. The Environmental Clearance (EC) granted need not be set aside for any of the reasons stated by the appellant which are unsustainable in law. So, they prayed for dismissal of the appeal.
28. The 1st respondent filed counter affidavit contending that they received a proposal from the 2nd respondent for this project for issuance of ToR and the same was placed before the 100th Meeting of the Expert Appraisal Committee held on 20.12.2017 and 21.12.2017 and the SEAC - Tamil Nadu had recommended the ToR for preparation of EIA Report and also for conducting the public hearing. The project proposal was placed in the 266th Meeting held on 22.01.2018 and the SEIAA - Tamil Nadu issued the ToR for preparation of EIA Report along with public hearing in addition to the certain conditions vide Letter No.SEIAA-TN-F.No.6440/SEAC- C/7(e)/ToR-301/2017 dated 22.01.2018. The 2nd respondent had applied to the SEIAA-TN on 27.09.2019 through Online Parvesh Portal vide SIA/TN/MIS/43388/2015 for issuance of Environmental Clearance (EC) for the project and submitted the hardcopy of the EIA Report along with the minutes of the public hearing to SEIAA - Tamil Nadu on 13.12.2019. The proposal was placed in the 141st meeting of the SEAC - Tamil Nadu held on 16.12.2019 and based on appraisal, the Expert Appraisal Committee had requested certain additional details to be furnished by the project proponent and the project proponent had furnished the reply to the SEIAA on 17.02.2020. In the meantime, the appellant herein filed Original Application as O.A.No.28 of 2020 before this Tribunal alleging certain violations and as per the directions of the Tribunal, the project area was inspected by the Joint Committee appointed by this Tribunal on Page 26 of 57 17.03.2020 and inspection report was filed. The proposal was again placed before the SEAC - Tamil Nadu in their 153rd Meeting held on 04.06.2020 and based on the presentation made by the project proponent and the documents furnished, they decided to recommend the project to grant Environmental Clearance (EC) with certain conditions. The project proposal was placed before the SEIAA - Tamil Nadu in their 382nd meeting held on 23.06.2020 and after considering all the aspects, they decided to defer the matter pending disposal of the Original Application No.28 of 2020. But later, the Tribunal by order dated 21.07.2020 in O.A. No.28 of 2020, directed the SEIAA - Tamil Nadu to consider the application and pass appropriate orders in accordance with law and the pendency of the application should not be a ground for not exercising their powers vested under the statutes. Accordingly, the project was placed in the 387th meeting of SEIAA held on 05.8.2020 and on that day, after considering all the documents including the orders passed by the Tribunal in O.A. No.28 of 2020, decided to issue Environmental Clearance (EC) by Proceedings dated 05.08.2020 subject to certain conditions recommended by the SEAC - Tamil Nadu and also with further conditions that the Environmental Clearance (EC) granted was subject to the outcome of the pending O.A. No.28 of 2020 before this Tribunal. All the aspects were considered and the Joint Committee also considered the nature of work alleged to be done and submitted the report and according to them, the Environmental Clearance (EC) was granted after considering all the aspects and there is no necessity to set aside the same.
29. The appellant filed rejoinder to the reply submitted by the 2nd respondent denying the allegations and reiterating the contentions of non-compliance of the statutory requirements giving details in a tabular form and also reiterated the contentions of non-application of mind by the SEAC and SEIAA - Tamil Nadu for in respect of non-compliance of the ToR conditions and not submitting the proper report before the SEAC - Tamil Nadu as directed in their 141st meeting and non-conducting the public hearing a fresh on the basis of the further details submitted.
Page 27 of 5730. The 2nd respondent filed further reply to the rejoinder submitted by the appellant reiterating their contentions and compliance of the conditions imposed and further mentioned that they have not committed any default or violation. Further, the data collected by the accredited agency was further compared with the further samples taken and as such, there was no further pollution or impact being caused on account of their proposed activity. They also mentioned about the detailed studies conducted by them and impact of the same and the conditions in the ToR and their compliance and reply mentioned in the EIA Report in detail by showing the pages in the EIA Report and submitted that they have fully complied with the same and it is only on the basis of the satisfaction, that the Environmental Clearance (EC) was granted.
31. Since both these cases are interconnected, this Tribunal felt that both these cases can be disposed of by a common Judgment.
32. Heard the learned counsel appearing for the applicant/appellant and respondents in both the cases.
33. The learned counsel appearing for the applicant/appellant in both these cases argued that O.A. No.28 of 2020 (SZ) was filed at a time when the project proponent viz., Fisheries Department (6th respondent in O.A. and 2nd respondent in Appeal) had attempted to carry out some work in connection with the establishment of Tuna Fishing Harbour in the disputed site and this Tribunal had ordered Status Quo and the Tribunal also appointed a Joint Committee and the Joint Committee had submitted the report where in the disputed land, certain constructions were found to be made. According to the appellant, the road itself was formed by the project proponent as part of their project without obtaining necessary clearance. Even the CRZ Clearance did not permit them to lay any road in that area and there was a condition imposed that they can start the project only after obtaining the Environmental Clearance (EC) under the EIA Notification, 2006. So, the violations committed by them has to be taken note of by the Tribunal and appropriate environmental compensation has to be directed to be paid by the project proponent as far as O.A. No.28 of 2020 is concerned.
Page 28 of 5734. As regards the appeal is concerned, the application for Environmental Clearance (EC) was considered by the SEIAA - Tamil Nadu as though it is a fresh application without considering the fact that certain violations have been committed by the project proponent by starting the work without obtaining prior Environmental Clearance (EC) which is required under the EIA Notification, 2006 for the project. Further, the baseline data were collected long prior to the submission of application of Environmental Clearance (EC) and the ToR was issued nearly after two years after the collection of baseline data and the EIA study and the public hearing was conducted after three years of collecting the baseline data and the Environmental Clearance (EC) application along with the Final EIA Report was filed much thereafter. Further, the Draft EIA Report was prepared within a short span of time and it was presented before the public domain which itself will go to show that there was no possibility of conducting proper evaluation for preparing the EIA Report on the basis of the ToR issued. So, as per the Office Memorandums issued by the MoEF&CC during 2014, 2017 and 2022, the baseline data collected can be used within a period of three years of its collection and thereafter, the same cannot be used for any purpose including the public hearing and consideration of Environmental Clearance (EC), if the public hearing and the Environmental Clearance (EC) application filed after three years of collection of the baseline data. In this case, the baseline data was collected during February and April 2016 and the public hearing was conducted and Environmental Clearance (EC) application along with the final EIA Report was filed after three years of collection of baseline data and as such, the appraisal of the project with the above baseline data is vitiated and this aspect has not been considered either by the SEAC or SEIAA - Tamil Nadu as well.
35. The learned counsel appearing for the appellant further argued that the SEACC - Tamil Nadu while considering the EIA report submitted in its 141st meeting directed the project proponent to conduct further EIA Study on certain aspects and observed that the EIA Report prepared was not up to the mark and it is thereafter, the project proponent had submitted a presentation along with certain studies conducted by them supposed to Page 29 of 57 be an EIA study on the basis of the subsequent directions given by the SEIAA - Tamil Nadu and that was considered by the SEAC - Tamil Nadu in their meeting. But when new particulars were furnished which were not there in the earlier EIA Report, then the public has got a right to know about the same and without conducting further public hearing on that aspect, vitiates the entire proceedings, as has been observed by the Hon'ble Apex Court in several decisions including the Hanuman Laxman Aroskar Vs. Union of India & Ors.3 and by this Tribunal in Sarpanch Gram Panchayat Tiroda Vs. Ministry of Environment Forest and Climate Change & Ors. and T. Mohana Rao Vs. Ministry of Environment Forest and Climate Change & Ors. and these aspects were not considered by the SEAC or SEIAA - Tamil Nadu.
36. Further, in the subsequent meeting conducted by the SEAC - Tamil Nadu, after submitting the presentations in their 153rd meeting, they have recommended the project without application of mind and without considering the fact that none of the studies directed to be conducted were conducted by them and with the insufficient datas, they have recommended the project with certain specific conditions to the project proponent to carry out the certain studies as directed by them as per the decision of the SEAC - Tamil Nadu in their 141st meeting. That shows that though the SEAC - Tamil Nadu was not satisfied with the report submitted, they have mechanically recommended the project without getting an opportunity to evaluate the further study (if any) conducted by the project proponent on the basis of the specific recommendations made are sufficient or not. A reading of the reply submitted by the project proponent to the queries raised by the SEAC - Tamil Nadu in their 141st meeting in respect non-compliance of ToR conditions relying on the studies said to have been conducted by the project proponent will go to show that those studies were not conducted at all and sufficient details required by the SEAC - Tamil Nadu had not been furnished by the project proponent and the impact of the project has not been properly assessed, including the impact of the project on the socioeconomic aspects of the fishermen community in that area.
3(2019) SCC Online SC 441 Page 30 of 57
37. So, according to the learned counsel appearing for the appellant that the entire procedure adopted is not proper and against the procedure laid down in EIA Notification, 2006 and as such, the Environmental Clearance (EC) granted has to be set aside.
38. On the other hand, the learned counsel appearing for the SEIAA - Tamil Nadu submitted that the Environmental Clearance (EC) was granted after conducting proper evaluation as provided under the EIA Notification, 2006 and as amended from time to time and there was no necessity for conducting further public hearing as claimed by the appellant, as even in the Draft EIA Report, most of the aspects have been mentioned which is required for the purpose of projecting the issue before the public to get their views on the project and most of the persons who attended the meeting had welcomed the project and none of them have opposed the project as well. Further, the clarifications / studies directed were all of technical in nature and it is a matter between the SEAC/SEIAA - Tamil Nadu and the project proponent and nothing to do with the public for further consultation and as such, further consultation is not required in this case. The SEAC - Tamil Nadu when recommended the project had issued further specific conditions regarding the studies to be conducted and that shows the application of mind of SEAC - Tamil Nadu in evaluating the project and the SEIAA - Tamil Nadu also granted the Environmental Clearance (EC) on the basis of the recommendations made incorporating these recommendations/ conditions apart from imposing further specific and general conditions to be carried out by the project proponent. So, according to them, the Environmental Clearance (EC) granted is proper and does not call for any interference.
39. The learned counsel appearing for the project proponent submitted that as regards the O.A. No.28 of 2020 (SZ) is concerned, there is nothing survives, as the grievance of the applicant was that the project proponent had commenced the work without obtaining necessary CRZ Clearance and Environmental Clearance (EC). The allegation that they did not obtain CRZ Clearance is not correct as even from the averments made in the application, the grant of CRZ Clearance was mentioned and the Page 31 of 57 applicant also relied on the conditions imposed in the CRZ Clearance that the project proponent has to obtain Environmental Clearance (EC) as required under the EIA Notification, 2006, but the CRZ Clearance granted was not challenged before any forum. Further, the baseline data was collected on the basis of the standard SOP issued by the MoEF&CC during 2015 and further details were collected and studies were conducted on the basis of the ToR issued and in order to avoid the delay, detailed studies were conducted by the project proponent even simultaneously when they applied for Environmental Clearance (EC). The datas were collected properly and even if any directions issued for collection of further baseline data, it will not be possible to ascertain the situation which was in existence at the time when the studies were conducted. Further, even in the public hearing conducted, there was no objection regarding the establishment of the project but they have raised only other issues regarding the grant of employment etc. which the project proponent had answered and convinced the people who had attended the public hearing. All other datas that were collected and mentioned in the subsequent EIA Report were only technical matters which the SEAC/SEIAA - Tamil Nadu wanted and nothing more. Further, they have given detailed answers on the basis of each queries relating to the ToR condition and compared the same with the studies conducted by them in the EIA Report and only after convincing with the same, the SEAC - Tamil Nadu has recommended the project with certain conditions and the SEIAA - Tamil Nadu has issued the Environmental Clearance (EC) accepting the recommendations incorporating those recommendations in the Environmental Clearance (EC) granted and the project proponent is prepared to conduct those studies and implement the recommendations of the consultant agency on those aspects. Further, it is a project which is intended to protect the interest of the fishermen community in that area and most of the fishermen in the Thiruvallur District on the coastal zone will be benefited by the project. There is no onshore or offshore dredging which has got any impact on the environment. There was no much fish breeding in that area and as such, the establishment of the unit is not going to affect the fish population in that area and these things have been elaborated in the EIA Report and the Page 32 of 57 answers submitted by the project proponent subsequently. So, there is no necessity to set aside the Environmental Clearance (EC) and if the Tribunal feels that further studies (if any) to be conducted, the project proponent being the Government instrumentality committed to protect the environment especially coastal environment and working for the benefit of the fishermen community will carry out the same and all necessary protection will be given for protecting the coastal environment in that area. Further, as per the Joint Committee report, there was no work related to the project was carried out and no permanent structures were made in that area. The road was in existence earlier which was used by the local fishermen and it was not laid down by the project proponent as part of the project which is evident from the observations made by the Joint Committee and considering the public interest and being a welfare project intended to protect the interest of the fishermen community, there is no necessity impose any environmental compensation and that only cause loss to the public exchequer and nothing more. So, they prayed for dismissal of both the original application as well as the appeal.
40. We have considered the pleadings, report submitted, submissions made by the learned counsel appearing for the parties and written submissions submitted and also perused the documents available on record.
41. The points that arose for consideration in O.A. No.28 of 2020 (SZ) are:-
a. Whether there was any violation of environmental laws committed by the Project Proponent/6th respondent in carrying out their Tuna Fishing Harbour project in the disputed area?
b. If so, what is the nature of violations committed and its impact on environment?
c. If there is any damage caused to the environment or serious violations committed, then what is the quantum of compensation to be imposed on the Project Proponent/6th respondent viz., the Fisheries Department?Page 33 of 57
d. What is the further directions (if any) to be issued applying the "Precautionary Principle" and "Sustainable Development" to protect the environment?
e. Relief and costs.
42. The points that arose for consideration in Appeal No.28 of 2020 (SZ) are:-
a. Whether the Environmental Clearance granted in favour of the 2nd respondent is liable to be set aside for any of the reasons stated in the appeal memorandum?
b. If this Tribunal felt that there is no necessity to set aside the Environmental Clearance, then what is the nature of further directions to be issued by the Tribunal to be carried out by the 2nd respondent/project proponent?
c. What are all the further directions (if any) to be issued by the Tribunal to be followed by the project proponent as well as the SEIAA - Tamil Nadu applying the "Precautionary Principle" and "Sustainable Development" to protect the environment?
d. Relief and costs.
POINTS in O.A. No.28 of 2020 (SZ):-
43. As regards the O.A. No.28 of 2020 (SZ) is concerned, the grievance of the applicant was that the project proponent had started the project without obtaining necessary Environmental Clearance (EC) and CRZ Clearance. Even in the application, it was mentioned that the CRZ Clearance was granted in 2017 but there was a clause in the CRZ Clearance granted that clearance under the EIA Notification, 2006 has to be obtained. It is also seen from the allegations made in the application itself that the application for Environmental Clearance (EC) was pending with the SEIAA - Tamil Nadu from 2015 onwards but they have not obtained the Environmental Clearance (EC) so far.
Page 34 of 5744. It is also seen from the Joint Committee report that there was an attempt on the part of the project proponent viz., 6th respondent in O.A. No.28 of 2020 who is the 2nd respondent in Appeal No.28 of 2020 to proceed with the project as is evident from the report of the Joint Committee. This Tribunal even at the time of admitting the matter, ordered status quo of the project until further orders and when they obtained the Environmental Clearance (EC), this Tribunal modifies that order and permitted the project proponent to proceed with the work in accordance with the Environmental Clearance (EC) leaving open the right of the applicant/appellant to challenge the Environmental Clearance (EC) granted before the appropriate forum and any work done will be subject to the outcome of the appeal (if any) filed against the Environmental Clearance filed.
45. So, the only question that has to be considered is whether there was any violation committed and what is the nature of violation committed and whether any environmental compensation to be imposed and if so, what is the quantum of compensation to be imposed.
46. In the first report of the Joint Committee, the following things were noted:-
"One silo made up of Mild Steel (MS) with capacity of 100 MT for storing the cement, blue metal jelley of size ¼" and ½" and mixer machine for the preparation of mortar for making groynes were present inside the project site. They also given the photographs showing these aspects. Three break water structures of 150m each existing at the site, of which, two were extended from the initial exiting projection of 150m. The break water structure in the southern direction of the project site was extended upto 400 m (proposed is 1088 m) from the initial projection of 150 m and another existing break water structure of 150 m was extended up to 320 m (proposed is 852m) in the northern direction as shown in the picture. There is one sewage carrying open drain (Nallah) flowing through the project site and untreated sewage is mixing with the sea inside the project site."
47. Further, it was specifically mentioned in the report that there was no permanent stone available for showing the High Tide Line and Low Tide Line within the project site erected by the Director of Environment, Government of Tamil Nadu and no construction/dredging/reclamation activities related to Fishing Harbour were carried out within the project site. They have not constructed any permanent structure pertaining to Fishing Harbour except the extension of the break waters as stated above.
Page 35 of 5748. In the report (e-filed on 05.03.2021) submitted by the Joint Committee, they have assessed the environmental compensation on the basis of the formulae evolved by the CPCB viz., EC = PI x N x R x S x LF to the tune of Rs.99,90,000/- (Rupees Ninety Nine Lakhs and Ninety Thousand only) and they also made certain recommendations in Point (5.0) which reads as follows:-
"5.0 Recommendation:
The 6th respondent, Department of Fisheries, Government of Tamil Nadu had obtained CRZ clearance from the Tamil Nadu State Coastal Zone Management authority vide Proceeding Dated.10.03.20l7 under the Coastal Regulation Zone Notification, 2011 and subsequently obtained Environmental Clearance from the Tamil Nadu State Environmental Impact Assessment Authority (SEIAA) vide Proceeding Dated.05/08/2020 under the EIA Notification, 2006.
Nevertheless, the Fisheries Department has extended the existing groins and formed the temporary roads without obtaining the Environmental Clearance under the EIA Notification, 2006 as the establishment of Tuna Fishing Harbour is a public welfare scheme and delay in execution will affect the general public in getting their basic rights in time and also escalation in project cost."
49. They also filed the third report received on 23.03.2021 producing the photographs and Google images of the buildings and also the report of the Institute of Remote Sensing, Anna University, Chennai. It is further seen from the reports that there existed a road even earlier, even as per the revenue records and as such, the contention of the applicant that the road was laid by the project proponent for this purpose has not been established.
50. The CPCB formulae as such cannot be applied in this case and considering the nature of the project and also the nature of work undertaken by them before getting Environmental Clearance (EC) not of much impact but they have done some work before getting the Environmental Clearance (EC), we feel that the principles laid down in Goel Ganga Developments India Private Limited Vs. Union of India through Secretary, Ministry of Environment, Forest & Climate Change & Ors.4 and Alembic Pharmaceutical Limited Vs. Rohit Prajapathi5 can be considered for this purpose instead of applying the CPCB formulae. It is seen from the counter statement that the project is Rs.4 Crore. So, taking 3% (Three percent) of the project cost, the compensation payable will come to Rs.12,00,000/- (Rupees Twelve Lakhs only) which we feel 4 (2019) 9 SCC 288 5 2020 SCC Online SC 347 Page 36 of 57 will be sufficient for the purpose of meeting the ends of justice. So, the Fisheries Department is directed to pay the environmental compensation of Rs.12,00,000/- (Rupees Twelve Lakhs only) to the SCZMA - Tamil Nadu within a period of 3 (Three) months and the SCMA - Tamil Nadu is directed to utilize the amount for the purpose of improving the shoreline management and also for improving the coastal marine protection/conservation after preparing a plan in consultation with the Department of Environment, Climate Change and Forest, State of Tamil Nadu and an Expert Agency in this regard and utilize the amount for this purpose in a scientific manner.
51. In view of the detailed discussions and observations made above, we feel that the Original Application [O.A. No.28 of 2020 (SZ)] can be disposed of by giving following directions:-
a. The Project Proponent/6th respondent in O.A. No.28 of 2020 (SZ) had committed some violation of proceeding with the project though not having much impact and gravity without obtaining necessary Environmental Clearance (EC) though they obtained CRZ Clearance in the year 2017 and the application for Environmental Clearance (EC) was pending from 2015.
b. Considering the nature of violation, the 6th respondent in O.A. No.28 of 2020 is directed to pay the environmental compensation of Rs.12,00,000/- (Rupees Twelve Lakhs only) to the SCZMA - Tamil Nadu within a period of 3 (Three) months and if the amount is paid, they are directed to utilize the amount for the purpose of improving the shoreline management and also for improving the coastal marine protection/conservation, after preparing a plan in consultation with the Department of Environment, Climate Change and Forest, State of Tamil Nadu and an Expert Agency in this regard and utilize the amount for this purpose in a scientific manner. c. If the amount is not paid within time specified, then the SCZMA - Tamil Nadu is directed to recover the amount from the 6th respondent in accordance with law.Page 37 of 57
d. The 6th respondent is directed to strictly comply with the condition imposed in the CRZ Clearance and the Environmental Clearance (EC) granted while proceeding with the work subject to the further orders to be passed by the Tribunal in Appeal No.28 of 2020 (SZ).
52. The points are answered accordingly.
POINTS in Appeal No.28 of 2020 (SZ):-
53. In this appeal [Appeal No.28 of 2020 (SZ)], the grant of Environmental Clearance (EC) to the project in dispute was challenged on the ground that the baseline data collected were more than three years at the time when it was presented before the public hearing and the application for Environmental Clearance (EC) submitted.
54. The further contention of the appellant was that the SEAC - Tamil Nadu was not satisfied with the EIA Report and they wanted to prepare a further report on certain aspects and it is on that basis, further report was prepared and after the preparation of the further report, no public hearing was conducted thereby opportunity for the public to know the contents of the further EIA Report which was a fundamental principle for the public consultation in respect of the project which was denied to them. Further, the ToR conditions were not properly considered and the reply given by the project proponent also will go to show that there was no proper study conducted on the basis of the ToR issued. There was no quantification of sediment deposition and sediment erosion conducted. The impact of tourism shoreline and fish movement due to the proposed activity were also not considered and properly addressed. Further, the violation aspect has not been considered and it will amount to ex-post facto clearance and moreover, it cannot be treated as a regular application for fresh project.
Page 38 of 5755. The appellant relied on decision reported in M/s. Electrotherm (India) Limited Vs. Patel Vipulkumar Ramjibhai & Ors.6, T. Mohana Rao Vs. Director, MoEF&CC, Government of India 7 and Sarpanch Gram Panchayat Tiroda & Ors. Vs. MoEF&CC & Ors. (Appeal No.03 of 2021)8.
56. On the other hand, the contention of the project proponent was that all aspects have been considered by the authorities and proper studies have been conducted and being a public welfare scheme, protecting the interest of the fishers, there is no necessity for further public hearing. Further, whatever studies required have been conducted and the queries made by the Expert Appraisal Committee was answered by the project proponent by giving detailed statements and only after satisfaction, the same has been considered and the SEAC - Tamil Nadu has recommended the project with certain condition and the SEIAA - Tamil Nadu has granted the Environmental Clearance (EC). There is no illegality committed and whatever studies directed by SEAC - Tamil Nadu will be conducted by the project proponent and for that purpose, the Environmental Clearance (EC) need not be set aside as claimed.
57. The case of the SEIAA - Tamil Nadu was that the fact that certain aspects and clarification sought and further studies were directed shows the application of mind of the SEAC/SIEAA - Tamil Nadu and public hearing was conducted in accordance with law and other aspects are only technical matters to be considered between the SEAC/SEIAA - Tamil Nadu and the project proponent and the public has no role in the same and there is no necessity for a further public hearing required in this case. Further studies were directed to be conducted while recommending the proposal shows the proper application of mind by the SEAC - Tamil Nadu. So, there is no necessity to set aside the Environmental Clearance (EC) as claimed by the appellant.
6 (2016) 9 SCC 300 7 2012 SCC Online NGT 40 8 2011 SCC Online NGT 10 Page 39 of 57
58. As regards the violation aspect is concerned, while considering the allegations made in O.A. No.28 of 2020 (SZ), this Tribunal had considered those aspects and imposed environmental compensation of Rs.12,00,000/- (Rupees Twelve Lakhs only) to be payable by the Project Proponent/Fisheries Department. Further, the Joint Committee report in that case will go to show that there was no much impact on account of the work done by the project proponent before getting the Environmental Clearance (EC) and no permanent structures were made and no road was formed as alleged in the Original Application No.28 of 2020 (SZ). So, under such circumstances, it cannot be said that the project work had progressed to a substantial level which is likely to affect the impact assessment study so as to treat this as an ex-post facto clearance as claimed by the appellant.
59. Further, in the decision reported in Electro Steels Limited Vs. Union of India & Ors.9, the Hon'ble Apex Court has come to the conclusion that in appropriate case and exceptional cases, the authority can grant even ex- post facto clearance applying the principle of „Doctrine of Proportionality‟ as found by the Hon'ble Apex Court in Lafarge Umiam Mining Private Limited Vs. Union of India10. So under such circumstances, we do not think that there is any necessity to set aside the Environmental Clearance (EC) granted on the ground that it was an ex-post facto clearance and the SEAC and SEIAA - Tamil Nadu have not considered this aspect, especially when along with the representations sent by the applicant, the Joint Committee report was also produced before the SCZMA - Tamil Nadu and the SEIAA - Tamil Nadu and they were aware of the same and it is only after that the Environmental Clearance (EC) was granted.
60. Further, it is seen from the documents and the file produced by the SEIAA - Tamil Nadu that the application for Environmental Clearance (EC) was filed as early as 2015 for issuance of ToR and the study and public hearing was conducted and the application for Environmental Clearance (EC) applied in 2019 along with the EIA Report and that was pending with the authority. So under such circumstances, we feel that 9 2021 SCC Online SC 1247 10 (2011) 7 SCC 338 Page 40 of 57 this can be taken as an application seeking ex-post facto application for setting aside the Environmental Clearance (EC) as claimed by the appellant.
61. The other ground raised by the appellant was that the baseline data were collected three years prior to the public hearing and also three years prior to filing the Environmental Clearance (EC) application and such data should not have been relied on by the SEAC and SEIAA - Tamil Nadu in view of the Office Memorandum issued by the MoEF&CC vide their O.M. No. J-11013/41/2006-IA-II(1) (Part) dated 22.08.2014, where it was specifically mentioned as follows:-
"(iv) Extension of Validity of TORs beyond the outer limit of three years for all projects or activities and four years for River Valley and HEP projects shall not be considered by the Regulatory Authority. In such cases, the project proponent, will have to start the process de novo and obtain fresh TORs in case the proponent is still interested in pursuing the clearance for the project. Re-use of old baseline data (provided it is not more thani3 years old) for the purpose of preparation of fresh EIA and EMP report will be considered subject to due diligence by the EAC/SEAC which may make appropriate recommendations including the need for revalidation. Baseline data older than 3 years will not b€ used for preparation of EIA / EMP report. In any case, the PH shall have to be conducted afresh in such cases
v) Instances have also come to the notice of this Ministry wherein, though the EIA / el4p report is submitted by the proponent within the validity period of TORs, the case remains pending for want of additional information from the proponent, State Government, etc., as sought by the EAC / Ministry. This Ministry has already decided vide OM No.J-
LLO/3/5/2009-IA-II (Part) dated 30.10.2012 that such cases will be delisted in case such information is not received within six months. In some cases the proponents been requesting for re-listing of their projects after the requisite information has been submitted after considerable lapse of time. For such cases, it has been decided that they could be considered provided the date of public hearing is not more than 3 years old and the data used in preparation of EIA / EMP report is not more than 3 years old. In case these conditions are not met, the proponent will have to start the process de novo after obtaining fresh TORs."
62. The appellant had given the details of the data of baseline collected and the public hearing conducted and date of Environmental Clearance (EC) application as follows:-
Event Date
The Data for EIA was collected February to April, 2016 [EIAReport Para 3.1]
from
The date of Public Hearing 25-7-2019
Date of EC Application 13-12-2019
Page 41 of 57
63. There is no dispute regarding this aspect as well. The Office Memorandum relied on by the learned counsel for the appellant viz., O.M. No. J-11013/41/2006-IA-II(1) (Part) dated 29.08.2017 reads as follows:-
"OFFICE MEMORANDUM Subject: Terms of Reference for EIA/EMP studies for the projects/activities requiring Environmental Clearance under the EIA Notification, 2006 - Extension of validity period - regarding.
In order to streamline the process and provide greater clarity in issuing Terms of Reference (ToRs) for undertaking EIA/EMP studies for the projects/activities requiring Environmental Clearance under the EIA Notification, 2006, the following decisions have been taken with immediate effect:
(i) The validity of ToRs for projects/activities (except for River Valley and HEP Projects), for submission of EIA/EMP reports shall be three years.
(ii) The validity of ToRs for River Valley and HEP Projects, for submission of EIA/EMP report shall be four years.
(iii) The above validity period can be extended by the concerned Regulatory Authority for a maximum period of one year without referring the proposal to the EAC/SEAC concerned, provided an application is made by the applicant before expiry of the validity period, together with an updated Form-1 and proper justification and there is no change in terms and conditions of the ToRs. After the lapse of validity, such extension will need EAC/SEAC consideration.
(iv) Thus, an outer limit of validity of ToRs shall be 4 years for all the projects/activities and 5 years for River Valley and HEP Projects.
(v) The ToRs will specifically mention the date of expiry of validity.
(vi) Extension of validity of ToRs beyond the outer limit of four years for all projects/activities, and five years for River Valley and HEP projects, shall not be allowed/considered by the Regulatory Authority.
(vii) The baseline data used for preparation of EIA/EMP reports may be collected at any stage, irrespective of the request for ToR or the issue thereof. However, such a baseline data and the public consultation should not be older than 3 years, at the time of submission of the proposal, for grant of Environmental Clearance, as per ToRs prescribed.
(viii) Public consultation shall be conducted during the validity of the ToRs. The public consultation conducted after the expiry of ToRs shall not be accepted by the Regulating Authority.
(ix) In case the proposal for Environmental Clearance along with EIA/EMP reports based on the ToRs prescribed, is not submitted within the validity period of ToRs, and/or not complying with the above conditions, the process shall be started de novo. The already collected baseline data may be re-used, provided it is not more than 3 years old and duly recommended by EAC/SEAC in their due diligence.
(x) In case, any proposal for ToR is delisted for want of additional information within the time period, as stipulated by the Ministry, the same can be listed again after the requisite information is submitted.
2. This Office Memorandum is issued in supersession of the earlier OMs of this Ministry as under:
i) No. J-11013/ 41/2006-IA-11 (I) dated 22.03.2010;
ii) No. Z-11012/1/2013-IA-1 (Part) dated 19.11.2013;
iii) No. Z-11012/1/2013-IA-1 (part) dated 12.12.2013;
iv) No. J-11013/ 41/2006-1A-11 (I) dated 22.08.2014;
v) No. J-11013/ 41/2006-IA.II (I) dated 08.10.2014;
vi) No.J-11013/41/2006-IA.11(1) dated 07.11.2014; and
vii) No. J-11015/109/2013-1A.11(M) dated 12.01.2017
3. This issues with the approval of the competent authority."
64. The same was reiterated in the Office Memorandum issued in 2022 as well. Further, the Office Memorandum issued in 2022 cannot have any retrospective operation as well.
Page 42 of 5765. This was dealing with the extension of validity period while considering this aspect in Clause - 7, it was mentioned as follows:-
"The baseline data used for preparation of EIA/EMP reports may be collected at any stage, irrespective of the request for ToR or the issue thereof. However, such a baseline data and the public consultation should not be older than three years, at the time of submission of the proposal, for grant of Environmental Clearance, as per the ToRs prescribed."
66. So, it is clear from this that on the basis of the ToR issued, if the EIA Report was not prepared and public consultation was not done and the Environmental Clearance (EC) application was not filed within the validity period of ToR issued in such circumstances, it was considered that such baseline data for public consultation should not older than three years. But in this case, the ToR was issued in 2017 but the public consultation was conducted within a period of validity of the ToR and there was no extension sought for preparation of the EIA Report. It is on the basis of the ToR, the Draft EIA Report was prepared and it was on that basis, public hearing was conducted. So, under such circumstances, it cannot be said that the baseline data collected for the purpose of preparation of EIA Report having more than three years cannot be used on the basis of the Office Memorandum issued. The Office Memorandum will have to be considered on the basis of the circumstances in which it was issued and the purpose for which it was issued and that will have to be strictly interpreted and the circumstances mentioned in the O.M. is not applicable to the facts of this case and as such, the baseline data collected prior to three years of public hearing and submissions of the Environmental Clearance (EC) application is not applicable to the fact of this case.
67. Further, the baseline data was collected between the 3rd February and 27th April, 2016. The ToR was recommended by the SEAC in their 100th meeting held on 20th - 21st December, 2017 and the ToR was issued by the SEIAA - Tamil Nadu on 22.01.2018. The draft EIA Report was prepared during February 2018 and the public hearing was conducted on 25.07.2019 and the application for Environmental Clearance (EC) after public hearing was submitted on 13.12.2019. It is clear from this that the Page 43 of 57 public hearing and the application for Environmental Clearance (EC) were made within the validity period of the ToR issued as per the letter of the SEIAA dated 22.01.2018. So, there is nothing wrong in SEIAA - Tamil Nadu while considering the baseline data collected for the purpose of considering the Environmental Clearance (EC), as those things were collected within the validity period of the ToR issued and not beyond that period.
68. The other contentions raised by the appellant was that the EIA Report prepared by the project proponent along with the Environmental Clearance (EC) application when appraised by the SEAC - Tamil Nadu in the 141st meeting came to the conclusion that the EIA Report was not in terms of the ToR issued and they directed the project proponent to prepare the EIA Report on the basis of the directions as per their minutes dated 16.12.2019 and thereafter, the project proponent had submitted their report along with their answers to the questions on 17.02.2020 and the SEAC - Tamil Nadu in their 153rd meeting considered the same, but they recommended the project without getting proper EIA Report as directed by them and imposed Condition No.11 that detailed marine biodiversity plan to be prepared report to be based on study on the impact of the project activities on intertidal biotopes, corals, and coral communities, molluscs, sea grasses, sea weeds, etc.
69. Further, there was no further public hearing conducted on the basis of the fresh report submitted relying on the decision reported in M/s. Electrotherm (India) Limited Vs. Patel Vipulkumar Ramjibhai & Ors.11 and also T. Mohana Rao Vs. Director, MoEF&CC, Government of India12 is also not sustainable.
70. It is true that after the public hearing and preparation of the final EIA Report, the application for Environmental Clearance (EC) submitted by the project proponent was considered by the SEAC - Tamil Nadu in their 141st Meeting held on 16.12.2019 and after appraisal, they have mentioned that the study does not include the following aspects viz., 11 (2016) 9 SCC 300 12 2012 SCC Online NGT 40 Page 44 of 57 "The SEAC noted that presentation does not include various essential impact studies and the following details:- 1. ToR compliance report was found to be not specific according to ToR Conditions 2. The quantification of sediment deposition and sediment erosion including the locations should be predicted and suitable environmental Management plans for reducing the same should be furnished. 3. Impact in Tourism, Shoreline and Fish movements due to the proposed project needs to be studied and reported 4. Proposal for emergency response plan, risk assessment and mitigation plan for oil spill events. 5. The impact on the Ennoore creek due to implementation of the project. 6. The proponent shall explore the options of hollow structures instead of solid structures to reduce the erosion / deposition. 7. Overall the EIA report and presentation is not up to the mark."
71. Thereafter, directed the project proponent and consultant to prepare an appropriate EIA Report and appear for presentation once again with aforesaid details and other environmental impact datas and studies in full shape. For this, the Fisheries Department had submitted the Annexure - A11/Letter answering the questions issued by the SEAC - Tamil Nadu for preparation of further EIA Report which reads as follows:
Page 45 of 57 Page 46 of 57 Page 47 of 5772. After this, the proposal was considered by the SEAC - Tamil Nadu in their 153rd meeting held on 04.06.2020 and on that day, they considered the project and recommended the project with certain conditions and one of the condition imposed was as follows:-
"11. A detailed marine biodiversity management plan shall be prepared through the NIOS or any other institute of repute on marine, brackish water and fresh water ecology and biodiversity and submitted to and implemented to the satisfaction of the State Biodiversity Board and the CRZ authority. The report shall be based on a study of the impact of the project activities on the intertidal biotopes, corals and coral communities, molluscs, sea grasses, sea weeds, sub-tidal habitats, fishes, other marine and aquatic micro, macro and mega flora and fauna including benthos, plankton, turtles, birds etc. as also the productivity. The data collection and impact assessment shall be as per standards survey methods and include underwater photography."
73. It is on that basis the Environmental Clearance (EC) was granted by the SEIAA after incorporating all these recommendations with other general and specific conditions. So, the dictum laid down in M/s. Electrotherm (India) Limited Vs. Patel Vipulkumar Ramjibhai & Ors. and T. Mohana Rao Vs. Director, MoEF&CC, Government of India (cited supra) are not applicable to the facts of this case.
74. In M/s. Electrotherm (India) Limited‟s case, when expansion for Environmental Clearance (EC) was applied, the public hearing was exempted and that was deprecated by the Hon'ble Apex Court and directed the MoEF&CC to revisit the issue and directed to conduct public hearing on the expansion project and if the public hearing reflects in favour of the expansion of the project, then it will be hold good. But considering the fact that the expansion activity has already started and started functioning, they did not order closure of the unit and it was mentioned that it will be subject to the public hearing and further appraisal by the MoEF&CC and that was not the case in this case. Here, the public hearing was conducted on the basis of the draft EIA Report prepared on the basis of the ToR issued and thereafter, the final EIA Report was prepared and submitted for consideration of granting Environmental Clearance (EC) and others matters are only a matter of technical issues between the project proponent and the SEAC/SEIAA - Tamil Nadu and that is nothing to do with the project which is likely to affect the public as major issue regarding the socioeconomic aspect and other aspects have been mentioned in the draft EIA Report which was Page 48 of 57 placed before the public domain and the public hearing and views of the public were collected and on that basis, final EIA report was prepared by the project proponent.
75. The dictum laid down in Hanuman Laxman Aroskar Vs. Union of India & Ors.13 Sarpanch Gram Panchayat Tiroda & Ors. Vs. MoEF&CC & Ors. (Appeal No.03 of 2021)14 and Samantha Vs. Union of India15 are not applicable to the facts of this case.
76. There is no merit in the submission that the EIA Report was prepared in haste and the baseline datas were collected prior to the ToR issued was also not having any substance, because the MoEF&CC had issued Office Memorandum, wherein they have issued standard ToR enabling the project proponent to prepare the EIA Report in order to avoid delay in preparing EIA Report even prior to the filing of the application for formal ToR as required under the EIA Notification, 2006 and they need only to collect further details on the basis of the additional ToR issued over and above the standard ToR issued in the Office Memorandum by the SEAC and SEIAA - Tamil Nadu and on that basis, they will have to prepare and conduct further studies and prepare the EIA Report.
77. On the basis of the same, when feasibility report was prepared for the purpose of considering the feasibility of the project for getting approval from the Government was utilized by the project proponent for preparation of the EIA Report within the validity period of the ToR and as such, the contention of the appellant that the baseline data collected prior to the issuance of the ToR should not have been issued and should not have been considered is without any basis and the same are rejected.
78. But there is some force in the submission made by the learned counsel appearing for the appellant that when the SEAC - Tamil Nadu had directed the project proponent to conduct further studies on certain aspects having some impact on marine ecology viz., quantification of 13 (2019) SCC Online SC 441 14 2011 SCC Online NGT 10 15 2014 All India NGT Reporter 1 SZ 1 Page 49 of 57 sediment deposition and sediment erosion including location should be predicted and suitable EMP for reducing the same should be furnished. Proposal for emergency response plan, risk assessment and mitigation plan for oil spill event, the impact on Ennore Creek due to implementation of the project. The project proponent shall explore the option of hallow structure instead of solid structure to reduce the erosion / deposition. Further, they have not conducted the biodiversity study and the biodiversity management plan as required in the ToR. Onshore and Offshore sediment impact also will have to be considered as per the ToR but that was not done in this case. Instead of preparing a fresh study on that aspect, they have only given the answers to the report referring the same in the EIA Report. But a perusal of the EIA Report will go to show that those aspects were not reflected in the EIA Report submitted.
79. Further, even at the time when the project was recommended by the SEAC - Tamil Nadu after considering the replies, they directed the project proponent to conduct a detailed marine biodiversity management plan prepared through NIOT or any other institute of repute on marine. Brackish water and freshwater ecologically and biodiversity and submitted to and implemented to the satisfaction of the State Biodiversity Board and the CRZ authority. The report shall be based on the study of the impact of the project activities on intertidal biotopes, corals, and coral communities, molluscs, sea grasses, sea weeds, sub-tidal habitats, fishes and other marine and aquatic micro, macro and mega flora and fauna including benthos, plankton, turtles, birds, etc. as also the productivity. The data collection and impact assessment shall be as per standards survey methods and include underwater photography. Further, recommendation No. 12 says marine ecology shall be monitored regularly also in terms of the seaweeds, sea grass, mudflats, sand dunes, fishes, echinoderms, shrimps, turtles, corals, costal vegetation, mangroves and other marine biodiversity components including all micro, macro and mega flora and faunal components of marine biodiversity.
Page 50 of 5780. So, it is clear from this that a biodiversity study ought to have been conducted and the study conducted by the Fisheries Department and the consultant on that aspect was not to the satisfaction of the SEAC - Tamil Nadu. Once such study is conducted, then it ought to have been brought to the appraisal of the SEAC - Tamil Nadu to ascertain as to whether that is sufficient or not so as to impose any further condition to protect environment even as per the Clause 7 and 8 of the EIA Notification, 2006 for the purpose of appraisal. Such an opportunity was denied to the SEAC - Tamil Nadu. So, under such circumstances, we feel that instead of setting aside the Environmental Clearance (EC), we feel that the same can be suspended only to the extent of commissioning the project and proceeding with the project in respect of onshore and permitting the project proponent to proceed with the work will be sufficient and that will meet the ends of justice.
81. In view of the detailed discussions and observations made above, we feel that the Appeal [Appeal No.28 of 2020 (SZ)] can be disposed of by giving following directions:-
a. The claim of the appellant that the baseline data collected prior to the ToR and the consideration of the project after three years of the collection of baseline data which will vitiate and not conducting the public hearing after further details submitted by the project proponent as directed by the SEAC - Tamil Nadu in its 141st meeting will vitiate the issuance of Environmental Clearance (EC) are rejected for the reasons discussed above in the Judgment. b. There is no necessity to set aside the Environmental Clearance (EC) as claimed by the appellant, but suspending the Environmental Clearance (EC) to the extent of directing the project proponent not to commission the project but permitting to undertake the project work in onshore area only till such time further studies are completed and further conditions are to be imposed, if any, by the SEIAA - Tamil Nadu will be sufficient and for that purpose, following directions are issued:
i. The project proponent is directed to conduct a study of sediment deposit and sediment erosion including predicting Page 51 of 57 the locations and suitable environment management plan for reducing the same on the basis of the ToR issued and the directions issued by the SEAC - Tamil Nadu in their 141st meeting.
ii. The project proponent is also directed to conduct a study on impact of spillage of fuel or engine oil, lubricant from the construction site and source of other pollution and impacts and suitable precautionary methods to be taken to avoid pollution and trap the spillage should be conducted. iii. A detailed marine biodiversity management plan prepared through NIOT or any other institute of repute on marine, brackish water and freshwater ecologically and biodiversity and must be submitted to and implemented to the satisfaction of the State Biodiversity Board and the CRZ authority. The report shall be based on the study of the impact of the project activities on intertidal biotopes, corals and coral communities (if any) in the area, molluscs, sea grasses, sea weeds, sub-tidal habitats, fishes and other marine and aquatic micro, macro and mega flora and fauna including benthos, planktons, turtles, birds, etc. as also the productivity. The data collection and impact assessment shall be as per standards survey methods and include underwater photography in tune with the recommendations made by the SEAC - Tamil Nadu while recommending the project.
iv. The study must be conducted by the project proponent and prepare a biodiversity management plan and in consultation with biodiversity board and the CRZ authority.
v. After conducting studies and getting report through accredited agency, then the same shall be placed before the SEAC - Tamil Nadu for consideration and on receipt of the same, the SEIAA- Tamil Nadu shall place the same before the SEAC - Tamil Nadu and they shall consider the sufficiency or otherwise of the same and on that basis, if any, further conditions are to be imposed to protect the marine environment then they shall impose the same and recommend Page 52 of 57 the project or pass appropriate findings and forward the same with recommendation / findings to the SEIAA - Tamil Nadu and on receipt of the same, the SEIAA - Tamil Nadu shall appraise the same and take appropriate decision imposing additional conditions or otherwise on the basis of the findings of the SEAC - Tamil Nadu and incorporate the same in the Environmental Clearance (EC) granted.
c. The project proponent is directed to complete the studies within a period of 6 (Six) months and on submission of the report by the project proponent, the SEAC / SEIAA - Tamil Nadu are directed to complete the process of further appraisal as directed by this Tribunal within a further period of 3 (Three) months and issue necessary further conditions or modifications or findings in accordance with law.
d. Once the SEIAA - Tamil Nadu imposed further conditions, then the project proponent is directed to carry out those conditions as well while proceeding with the project.
e. The Environmental Clearance (EC) granted will be subject to the further orders to be passed by the SEAC and SEIAA - Tamil Nadu as directed by this Tribunal.
82. The points are answered accordingly.
83. In result, both the Original Application as well as the Appeal are allowed in part and disposed of with the following directions:-
(I) O.A. No.28 of 2020 (SZ):
a. The Project Proponent/6th respondent in O.A. No.28 of 2020 (SZ) had committed some violation of proceeding with the project though not having much impact and gravity without obtaining necessary Environmental Clearance (EC) though they obtained CRZ Clearance in the year 2017 and the application for Environmental Clearance (EC) was pending from 2015.
Page 53 of 57b. Considering the nature of violation, the 6th respondent in O.A. No.28 of 2020 is directed to pay the environmental compensation of Rs.12,00,000/- (Rupees Twelve Lakhs only) to the SCZMA - Tamil Nadu within a period of 3 (Three) months and if the amount is paid, they are directed to utilize the amount for the purpose of improving the shoreline management and also for improving the coastal marine protection/conservation, after preparing a plan in consultation with the Department of Environment, Climate Change and Forest, State of Tamil Nadu and an Expert Agency in this regard and utilize the amount for this purpose in a scientific manner.
c. If the amount is not paid within time specified, then the SCZMA - Tamil Nadu is directed to recover the amount from the 6th respondent in accordance with law.
d. The 6th respondent is directed to strictly comply with the condition imposed in the CRZ Clearance and the Environmental Clearance (EC) granted while proceeding with the work subject to the further orders to be passed by the Tribunal in Appeal No.28 of 2020 (SZ).
(II) Appeal No.28 of 2020 (SZ):
a. The claim of the appellant that the baseline data collected prior to the ToR and the consideration of the project after three years of the collection of baseline data which will vitiate and not conducting the public hearing after further details submitted by the project proponent as directed by the SEAC - Tamil Nadu in its 141st meeting will vitiate the issuance of Environmental Clearance (EC) are rejected for the reasons discussed above in the Judgment.
b. There is no necessity to set aside the Environmental Clearance (EC) as claimed by the appellant, but suspending the Environmental Clearance (EC) to the extent of directing the project proponent not to commission the project but permitting to undertake the project work in onshore area only till such Page 54 of 57 time further studies are completed and further conditions are to be imposed, if any, by the SEIAA - Tamil Nadu will be sufficient and for that purpose, following directions are issued:
i. The project proponent is directed to conduct a study of sediment deposit and sediment erosion including predicting the locations and suitable environment management plan for reducing the same on the basis of the ToR issued and the directions issued by the SEAC - Tamil Nadu in their 141st meeting.
ii. The project proponent is also directed to conduct a study on impact of spillage of fuel or engine oil, lubricant from the construction site and source of other pollution and impacts and suitable precautionary methods to be taken to avoid pollution and trap the spillage should be conducted.
iii. A detailed marine biodiversity management plan prepared through NIOT or any other institute of repute on marine, brackish water and freshwater ecologically and biodiversity and must be submitted to and implemented to the satisfaction of the State Biodiversity Board and the CRZ authority. The report shall be based on the study of the impact of the project activities on intertidal biotopes, corals and coral communities (if any) in the area, molluscs, sea grasses, sea weeds, sub-tidal habitats, fishes and other marine and aquatic micro, macro and mega flora and fauna including benthos, planktons, turtles, birds, etc. as also the productivity. The data collection and impact assessment shall be as per standards survey methods and include underwater photography in tune with the recommendations made by the SEAC - Tamil Nadu while recommending the project.
iv. The study must be conducted by the project proponent and prepare a biodiversity management plan and in Page 55 of 57 consultation with biodiversity board and the CRZ authority.
v. After conducting studies and getting report through accredited agency, then the same shall be placed before the SEAC - Tamil Nadu for consideration and on receipt of the same, the SEIAA- Tamil Nadu shall place the same before the SEAC - Tamil Nadu and they shall consider the sufficiency or otherwise of the same and on that basis, if any, further conditions are to be imposed to protect the marine environment then they shall impose the same and recommend the project or pass appropriate findings and forward the same with recommendation / findings to the SEIAA - Tamil Nadu and on receipt of the same, the SEIAA - Tamil Nadu shall appraise the same and take appropriate decision imposing additional conditions or otherwise on the basis of the findings of the SEAC - Tamil Nadu and incorporate the same in the Environmental Clearance (EC) granted.
c. The project proponent is directed to complete the studies within a period of 6 (Six) months and on submission of the report by the project proponent, the SEAC / SEIAA - Tamil Nadu are directed to complete the process of further appraisal as directed by this Tribunal within a further period of 3 (Three) months and issue necessary further conditions or modifications or findings in accordance with law.
d. Once the SEIAA - Tamil Nadu imposed further conditions, then the project proponent is directed to carry out those conditions as well while proceeding with the project. e. The Environmental Clearance (EC) granted will be subject to the further orders to be passed by the SEAC and SEIAA - Tamil Nadu as directed by this Tribunal.
(III) Considering the circumstances, parties are directed to bear their respective costs in the respective cases.
Page 56 of 57(IV) The Registry is directed to communicate this order to the SEIAA - Tamil Nadu, State Biodiversity Board, Chairman - SCZMA, Director of Fisheries, Additional Chief Secretary to Government, Department of Environment, Climate Change and Forest and the Chief Secretary to Government, State of Tamil Nadu for their information and compliance of direction.
(V) The SEIAA - Tamil Nadu is directed to take back the file (relating to the issuance of EC) produced before the Tribunal at the earliest.
84. With the above observations and directions, both the Original Application and the Appeal are disposed of accordingly.
85. In view of the disposal of the Appeal, pending interlocutory application [I.A. No.115 of 2020 (SZ)] is also disposed of accordingly, as no further separate orders are required in this regard.
Sd/-
Justice K. Ramakrishnan, JM Sd/-
Dr. Satyagopal Korlapati, EM O.A. No.28/2020 (SZ) & Appeal No.28/2020 (SZ), I.A. No. 115 of 2020 (SZ) 28th September 2022. Mn.
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