ORDER
1. Main question for consideration in this matter is whether the project of additional container terminal in Uran Taluka in District Raigarh, Maharashtra, by Jawaharlal Nehru Port Trust (JNPT) is violative of Coastal Regulation Zone (CRZ) notification and the clearance thereof by MCZMA and the Ministry of Environment, Forest and Climate Change (MoEF&CC) by way of EC dated 09.10.2019 is valid.
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2. Case of applicants is that the area is identified as ecologically sensitive area by the Maharashtra Coastal Zone Management Authority (MCZMA) and falls under the CRZ-1A in the concerned map where no construction is permitted. The authorities have erroneously considered the area to be CRZ IV, which is against record. While at the time grant of clearance for Container in the year 2008 situation may have been different, by way of amendment in 2011, area with mudflats have been specifically declared to be part of CRZ 1A. Further, acknowledged violations of EC conditions mentioned in EC dated 29.07.2008 and traditional fishing activities have been overlooked. Public hearing has been wrongly dispensing with.
3. Vide order dated 23.06.2021, while issuing Notice to MoEF&CC, and JNPT, four-member joint Committee comprising MoEF&CC, State PCB, MCZMA and District Magistrate, Raigarh was constituted to give a factual report in the matter. In pursuance thereof, the joint Committee has filed its report on 10.09.2021.
4. We have heard learned Counsels for the parties and considered the matter.
5. The joint Committee has recorded its observations as follows:-
"TOR 1: The Committee shall ascertain the ground factual situation in respect of expansion activities are to be undertaken in CRZ IA, where construction are prohibited and violation of EC conditions have been found established during the site investigation on 31.12.2013 Regarding issue of CRZ IA or CRZ IV
Committee noted the contention of the appellant is that the site of balance work of 4th CT falls in CRZ IA.
Committee perused the various documents like Form I submitted by the JNPT, earlier site inspection report of the
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MCZMA, minutes of the 130th meeting of the MCZMA held on 1st March, 2019 and approved Coastal Zone Management Plan under CRZ Notification, 2011.
Committee noted that Coastal Zone Management Plan (CZMP) was prepared by Authorized agency of Central Government under provisions of the CRZ Notification, 2011 identifying the High Tide Line, Low Tide Line and various CRZ classifications such as CRZ IA& IB, CRZ II, CRZ III and CRZ IV area. MoEF&CC, New Delhi approved the CZMP in 18th August, 2018 for Raigad District (JNPT area). As per the said approved CZMP, the site of triangular balance reclamation of the 4th Terminal is situated in CRZ IV area. Small part of landing point of triangular balance reclamation work is touching in CRZ IA area. Considering the approved CZMP, 2011, the Respondent No. 4 (MCZMA) in its 130th meeting held on 1st March, 2019 deliberated the said proposal of balance work and noted the site falls in CRZ IV area.
The Copy of extract of the said approved CZMP under CRZ Notification, 2011 showing the site of proposed balance work of 4th CT project is attached herewith as Annexure III
During meeting on 7th September, 2019, JNPT before the Committee clarified that the first page of Form I mentions the site as CRZ I, which is a typographic error. JNPT further clarified that, tabular description of the Form I rightly mentions that site as CRZ IV area, stating that the said project is port facility project which will be in the CRZ IV area. The JNPT officials further informed that layout of the triangular reclamation is now proposed to be revised and application is submitted to MoEF&CC for amended EC.
Regarding site inspection report dated 13.10.2013
The Committee further noted the inspection reports dated 13.10.2013 & 12.11.2013 of MCZMA members in appeal no. 19/2013, with respect to 4th CT (which is the present subject matter). As per the said reports, no work was initiated for the 4th CT at the time of inspection carried out by Members of MCZMA in the year 2013.
The Committee noted that, the construction work of the project started in 2015 and completed in 2017 as Phase-I. Balance work (Phase-II) is yet to started on site. Committee noted that at present, the approved CZMP under CRZ notification, 2011 is applicable, as per which, balance work falls in CRZ IV area. Small part of landing point of triangular balance reclamation work is touching in CRZ IA area
As per para 4(i) (a) of the CRZ Notification, 2011, "the clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities". Activities of jetty, port are
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permissible activity, as per para 4(i) (f) of CRZ Notification,
2011.
The present proposal of JNPT aims to complete the balance work of the project of 4th CT project, for which EC (dated 29th July, 2008) was granted by MoEF, New Delhi. Now, the project obtained CRZ and EC (dated 09.10.2019) for the balance works of 4th CT.
TOR 2: The committee shall look into the issues raised by the Applicant in respect of EC granted to JNPT, by the MoEF&CC, GoI
Considering the observations in the Hon'ble NGT order dated 23.6.2021 in Appeal no. 9/2021(I.A. 18/2021) and hearing extended to appellants, following issues of appellants are summarized and findings of the Committee as tabulated as follows:
| Sr No. |
Issues of appellants |
Findings of the Committee |
| 1 |
Issue of Public hearing exemption for the phase-II balance work project by the EAC |
As per the minutes of meetings of EAC, EC for the project 4th CT was granted by MoEF, New Delhi in year 2008. Present project involves construction of balance works of the said project. During the meeting dated 07.09.2021, JNPT representatives informed to committee that JNPT requested the EAC for exemption of the public hearing. Committee felt that the EAC, might have exempted the public hearing, taking into consideration that proposed project involves construction of balance work for which EC was already granted by MoEF in year 2008. |
| 2 |
Appeal states that, JNPT has violated the condition of previous Environment Clearance. The compliance report dated 10th July, 2019 of the Regional Office, Nagpur of the previous EC dated 29th July, 2008 noted general condition no. (ii) was found not complied with, while general condition no. (v), (vii) and (xiii) were found partially complied with. |
Committee noted that the EAC, New Delhi deliberated on the compliance report dated 10.7.2019 issued by MoEF&CC, Regional Office (West Central Zone) Nagpur. As per the compliance report, general conditions no. ii was not found complied, while General condition no. v, vii and xiii were found partially complied. From the minutes, it is observed that project proponent presented the action taken report before EAC. Committee noted that compliance status was discussed by the EAC. |
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3 Issue of impact on the Committee noted that the balance work of 4th CT traditional fisheries project will likely impact the traditional fishing in the and livelihood of local area. Intertidal fishing is the main livelihood of the fisherfolks. local fisherfolks. JNPT need to take into consideration that traditional fishing practices of
Appellants claims local fisherfolks should not be hampered due to that as per the letter project, in order to safeguard the livelihood of local dated 2nd July, 2012 fisherfolks. MCZMA in its 130th meeting has of Commissioner, prescribed a condition to that effect which states Fisheries to Konkan that JNPT to ensure that fishermen activities should Commissioner, NoC not be hampered. Specific condition no. (xv), (xvi) and from Commissioner (xxi) pertaining to marine ecology / biodiversity also Fisheries should be binds the JNPT for commitment towards protection obtained for projects of coastal resources and fisheries. to be undertaken in
Coastal areas. As per Committee felt that JNPT shall proactively obtain the the said letter, JNPT suggestions of the Commissioner, Fisheries for should obtain No safeguarding the local traditional fishing in the area Objection Certificate and other related measures with view to safeguard (NoC) from the the livelihood of the local fisherfolks. Department of
Fisheries for the 4th
Committee noted that scope of the committee is CT project. limited to project of balance work of 4th CT work. However, considering the repeated insistence & requests of applicants/ villagers, the committee visited the site of 330 m jetty (near Nhava creek) by boat. Villagers raised serious concerns about the impact of the said jetty & bundharas constructed in Nhava creek, on free natural flow of tidal water in Nhava Creek. Villagers stressed that free flow in the Nhava creek is utmost necessity so that boats of the local fisherfolks could navigate through the creek to enter in the sea for fishing.
Committee taking into consideration above
concerns raised by the local fisherfolks, noted that the JNPT should ensure the free flow of tidal water into the Nhava creek for safe navigation of fisherfolks boat in the creek and also ensure tidal water reaches to mangrove vegetation & biodiversity in the creek. It is felt that this will help in sustenance of fishing practices of local fisherfolks in the area. At the end, the Committee noted that at present, the balance project (Phase II) work of 4th CT is not yet commenced on the site. JNPT officials informed that layout of balance reclamation work is revised and accordingly, application for amendment in EC is submitted to MoEF&CC, New Delhi. Committee noted that while deliberating the amended application for revised reclamation, the concerned Authorities need to look into aspect of impact of revised reclamation on traditional fishing of local fisherfolks. EIA report for revised application need to cover a detailed chapter on impact of reclamation on local traditional fisheries/ fisherfolks and remedial measures/R&R issues if any, hydrodynamic modeling studies to comprehend tidal flow pattern around the area. NoC from the Commissioner Fisheries may be insisted, with a view to safeguard the local fishing and livelihood of fisherfolks."
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6. Main contention of the applicants is that the area falls in CRZ-IA where such project is not permissible. Further, having regard to adverse impact on free flow of tidal water, navigation by fisherfolks boats will be obstructed.
7. We have considered the submissions and are of the view that the concerns of the applicants need to be addressed and subject to this being done, the project may proceed.
8. With regard to area falling in CRZ-IA, we accept the report which is backed by the Coastal Zone Management Plan (CZMP), duly approved by MoEF&CC on 18.08.2018. As per report, a small part of landing point of the reclamation work touches CRZ-IA area. The project should not cover such area in view of mandate of law. The MCZMA may clearly demarcate the area of CRZ-IA which is part of the project so that the project is confined to CRZ-IV area since CRZ-IA which is ecological sensitive area where the project is not permitted, as already observed and righty pointed out by the applicants as well as the Committee.
9. With regard to the impact on traditional fisheries by the local fisherfolks, we accept the view of the Committee that free flow of tidal water into the creek has to be ensured to enable navigation of boats to sustain fishing practices. We direct the MCZMA and the MoEF&CC to incorporate these conditions in the EC by way of an addenda and also direct the PCB to incorporate such conditions in the consents. We direct the Project Proponent to ensure that free flow of tidal water be maintained and the project be designed and operated in a manner so as not to adversely affect such free flow and fishing practices.
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The application is accordingly partially allowed in above terms by upholding the impugned EC subject to above conditions. If any grievance survives, it will be open to the aggrieved party to take remedy in accordance with law.
I.A. No. 72/2021 also stands disposed of.
Adarsh Kumar Goel, CP
Sudhir Agarwal, JM
Dr. Nagin Nanda, EM
Dr. A. Senthil Vel, EM
Dr. Vijay Kulkarni, EM
February 21, 2022
Original Application 46/2021(WZ)
(Earlier Appeal No. 09/2021 (WZ))
(I.A. No. 72/2021)
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