A. Iyappan vs Chairman And Ors

One, A.Iyappan, resident of Sadraskuppam, Kalpakkam, Thirukazhukundram Taluk, Kancheepuram District filed this appeal with a prayer to set aside the order dated 3rd November, 2016 passed by respondent No.2 granting clearance under Coastal Regulation Zone (CRZ) Notification, 2011 permitting construction of marine/coastal police station at S.F.No.141, Sadurangapattinam Village, Thirukazhukundram, Kancheepuram District.

It is the case of the appellant that a peace meeting was arranged by the Revenue Divisional Officer (RDO), Chengalpattu, Kancheepuram District on 2nd May, 2015 and it was informed in the meeting that a Coast Guard Police Station would be constructed in the said village near seashore and that the people should co-operate. However, the people protested against the construction and made a detailed representation to the District Collector to stop the construction as the people who belong to fisher community, have been using the site for drying the fish-nets and for holding Masimagam festival etc. Inspite of that, construction activity started at the said site viz., in Survey No.141, 76 Sadurangapattinam Village on 02.10.2015 which is very close and hardly 30 meters away from seashore. Though it was brought to the notice of the Authorities that no such construction is permissible under CRZ Notification, 2011 on the ground that the site is hardly 10 meters away from Olive Ridley Sea Turtle nest and comes under CRZ-I and therefore no construction activity can ever take place as per the provisions in paragraph 3 (xii) of CRZ I under CRZ Notification, 2011, still the construction was taken up. Subsequently, the impugned order dated 03.11.2016 was passed by respondent No.2. As seen from the impugned order, the District Coastal Zone Management Authority (DCZMA) of Kancheepuram District forwarded a proposal for construction of marine police station at SF No.141, Sadurangapattinam Village, Thirukazhukundram submitted by respondent No.3. The order states that the Chief Wildlife Warden, Guindy Children's park, Chennai has informed vide letter dated 13.06.2017 that the proposed site is not an active nesting ground for Olive Ridley Sea Turtles and it is utilised by local fishermen for day to day activities like drying fish and the site is under active human use.

The appellant further contended that if there is a Turtle nesting ground in any area, such area is ecologically sensitive and plays a role in maintaining the integrity of the coast and classified as CRZ-I under paragraph 7 of the CRZ Notification, 2011. In the said area, Olive Ridley Sea Turtles lay eggs during every nesting season as per the figures authenticated by TREE Foundation, an NGO based in Chennai but the respondent No. 2 relying on the letter of the Wild Life Warden, Children's park, Guindy, Chennai has come to a conclusion that the proposed site for construction is not an active nesting ground of Olive Ridley Sea Turtles and no study has been undertaken in this regard with wildlife and environmental experts. In the absence of such study, the respondent No. 2 should not have come to a conclusion that the proposed site is not an active nesting ground and therefore this is a clear non application of mind. Once it is classified as CRZ-I, no construction activities are permitted as provided in para 3 (xii) under CRZ-I of CRZ Notification, 2011. Therefore, it is a totally prohibited activity and the CRZ clearance dated 03.11.2016 mentioning that the site is falling in CRZ-III is illegal. No construction should be permitted within No Development Zone (NDZ) except certain facilities essential for permissible activities. The said paragraph also provides that construction like the one allowed here in the impugned order, could be permitted in accordance with comprehensive plan prepared by the State Government in consultation with traditional coastal communities including fisher folk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State Coastal Zone Management Authority (SCZMA) to National Coastal Zone Management Authority (NCZMA) for approval by the Ministry of Environment, Forests and Climate Change (MoEF&CC) but no comprehensive plan has been prepared by the State Government and in the absence of such plan, the impugned order passed by respondent No. 2 is without jurisdiction.

During the course of hearing, relying upon a report prepared by TREE Foundation on the nesting details of Olive Ridley Sea Turtles during the 2016-17 nesting season, the appellant filed M.A. No.61 of 2017 for a direction against the respondents not to proceed with the construction of coastal police station pending disposal of the appeal. The report of the TREE Foundation indicates the date of inspection, No. of nests and eggs for each nest as well as latitude and longitude. However, learned Additional Special Government Pleader produced a letter addressed to Wild Life Warden, Guindy Children's Park by the concerned Forest Range Officer dated 10.06.2016 informing that nearby there are no nesting grounds which was concluded based on inspection and also after enquiring with the local fishermen. The learned Additional Special Government Pleader quoting the Forest Department's inspection reports, states that one nesting ground is found located beyond 1 km. from the construction site and another nesting ground is at 4 km. distance and the site where construction is proposed, is used only for drying fish and fish nets by local fisher folk and it is under heavy human interference.

Considering the contradictory statements, the Regional Office, Chennai of MoEF & CC was directed to make field inspection and find out as to whether it is a nesting ground where the coastal police station is proposed to be constructed and MoEF & CC was impleaded as respondent No.4 and Wildlife Warden, Children's Park, Guindy was impleaded as respondent No. 5. Accordingly, MoEF & CC, Regional Office, Chennai submitted the Site Inspection Report dated 12.05.2017 stating that Scientist 'F' of the Regional Office along with Research Officer and Assistant Environmental Engineer, Tamil Nadu State Pollution Control Board inspected the site on 12.05.2017 during which the appellant, local villagers and a person deployed by M/s. TREE Foundation for collecting the Olive Ridley Sea Turtles eggs, were present. The inspection report states that though the appellant informed that at 15 places, the turtles laid the eggs the inspection team could not observe any such nesting sites in the said location. The team was informed that the season of egg laying was over. Therefore, no eggs were noticed. However, the team came to know that the TREE Foundation has deployed 3 persons to collect the eggs to bury them in the artificially created hatcheries and release the young ones into sea after hatching. For this purpose, they have set up a hatchery which is 30 meters away towards sea shore from the site where the construction of police station is proposed. The TREE Foundation members have shown the buried eggs during the visit of the team and the distance between hatchery from the tidal line was found to be 30 meters. When the team measured the distance between tidal line and the police station under construction, it was found to be 45 meters and the work was going on and construction upto ground floor was already completed. It was also stated in the report of the MoEF & CC that a Dutch Fort Cemetery is located about 120 meters from the tidal line and Kalpakkam Atomic Power Station is located at about 1.50 km distance towards the northern side and residences of villagers are located on both sides of the site.

The Respondent No. 2 filed reply affidavit dated 16th May, 2017 stating that as per the approved Coastal Zone Management Plan (CZMP) of Tamil Nadu under CRZ Notification 1991, the area of Sathurangapattinam is classified as CRZ-I. However, the settlement area comes under CRZ-III. As per the MoEF & CC letter dated 3rd December 2008, the coastal police stations may be treated as an activity which require foreshore facility. Respondent No.2 further states that as per CRZ Notification, 2011 vide para 3 (i) (a) those activities which are directly related to water front or directly needing foreshore facilities, are permissible activities and as per expression "foreshore facilities" means those activities such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations etc.

It was further stated by the respondent No.2 that as per CRZ Notification 2011, vide para 3 (xiv) facilities required for patrolling and vigilance activities of marine/coastal police stations are exempted from the prohibited activities and therefore construction of coastal police station is a permissible activity. However, such construction requires clearance from the concerned CZMA. Therefore, the District CZMA of Kancheepuram District has forwarded the proposal for construction of marine police station by respondent No.3 for clearance under CRZ Notification, 2011. Wildlife Warden, Guindy Children's Park, Chennai has also informed that the site is not an active nesting ground for Olive Ridley Sea Turtles and it is only used by fishermen community for day to day activities like drying fish and fish nets and found to be under active human use. The DCZMA's proposal was placed before the 91st meeting of the TNCZMA held on 24.10.2016 and it was resolved to clear the proposal and accordingly clearance was granted vide impugned order under para 3 (i) (a) of CRZ Notification, 2011. Therefore, the contention of the appellant that the construction of marine police station at the above site will result in the destruction of the integrity of the coast and habitat of the Olive Ridley Sea Turtles, is totally wrong and unacceptable.

Respondent No.3, Superintendent of Police, Coastal Security Group, Nagapattinam filed affidavit stating that during the site inspection by the MoEF & CC, the appellant was present and sought to include his views to support his claim which is contrary to the directions of the Tribunal.

However, on perusal of the report of the MoEF & CC it goes to show that there are no nesting grounds near the construction site and no eggs are found at the site. There is only a hatchery close-by which is an artificial and manmade enclosure for hatching the eggs collected elsewhere and releasing the hatchlings into the sea. Therefore, it is clear that the proposed construction is not an active turtle nesting site. As far as Dutch Fort is concerned which is an archaeological site, the same is situated about 103 meters away from the proposed coastal police station and lies outside the prohibited zone, which under the Ancient Monuments and Archaeological Sites & Remains Act, 2010 is 100 meters. Thus the costal police station does not pose any threat to the Dutch Fort which is an archaeological monument.

It is further stated by the respondent No. 3 that MoEF&CC in its letter dated 3rd December, 2008 clarified that in view of the need to strengthen the coastal security, construction of coastal police stations may be considered as projects requiring waterfront as per CRZ Notification 2011 and in fact under Para 3 (i) (a) of the CRZ Notification, 2011 activities related/ involving waterfront or foreshore facilities, like coastal police stations are permitted in CRZ and construction of police station is very much required and vital for strengthening the coastal security. It is essential to protect the area and prevent illegal activities and this will help in strengthening the National security and in this case the added presence of Kalpakkam Nuclear Power Plant more so, mandates the establishment of the coastal police station to protect the same and also to ensure safety.

The appellant has not chosen to file any rejoinder to the reply affidavits filed by respondent Nos. 2 and 3 as well as the inspection report of the respondent No.4. The learned Additional Special Government Pleader has filed a memo enclosing a report and information received from the Principal Chief Conservator of Forests and Chief Wildlife Warden of Forest Department, Tamil Nadu dated 05.09.2017, a letter dated 22.02.2017 addressed by Executive Engineer, Tamil Nadu Police Housing Corporation Ltd. to Superintendent of Police, Coastal Security Group, DGP office, Mylapore, Chennai and the letter dated 03.12.2008 issued by MoEF & CC.

In his letter dated 05.09.2017, the Principal Chief Conservator of Forests and Chief Wildlife Warden has enclosed a note on Expert opinion on the turtle nesting pattern on the Coastal stretches of Tamil Nadu which includes the district wise title nesting linear coverage on the coast. For the District of Kancheepuram, out of a total coast length of 87.2 km. the turtle nesting length is only 18.1 km which amounts to 20.7%, the highest being in Kanyakumari District which covers almost 50% of the coastal length. Location wise and Forest division wise turtle nesting grounds with latitude and longitude details were also enclosed. The report further reveals that the Tamil Nadu Forest Department has undertaken turtle conservation plan under Tamil Nadu Biodiversity Conservation and Greening Project (TBGP) based on the data collected by District Wildlife Wardens of the coastal Forest divisions in collaboration with NGOs who are permitted to set up hatcheries after obtaining permission from the Chief Wildlife Warden and respective District Wildlife Wardens of coastal divisions and the site for hatchery need not be necessarily at the nesting site itself and could be located at a safe place where eggs collected even from a distance of 3 to 4 km. are brought and incubated. In Kancheepuram District, the data reported by field units relates mainly to the areas between Chennai and Mamallapuram, no data is reported for the areas falling between Mamallapuram and Puducherry where the site for construction of police station lies. In the letter dated 22nd February, 2017, Executive Engineer, Tamil Nadu Police Housing Corporation informed the Superintendent of Police that the portico of police station building under construction is 103.45 meters and main building entrance is 108 meters from the Dutch Fort boundary. The Executive Engineer also enclosed a copy of the G.O. dated 24.01.2013 issued by the Revenue Department, Government of Tamil Nadu transferring 0.20.0 hectare of land in Survey No.141 classified as 'Seashore Poramboke' in Sathurangapattinam Village, Thirukazhukundram Taluk to Police Dept. for construction of Marine Police Station.

Discussion and Conclusion:

After hearing the parties at length and after going through the records placed before us, it reveals that the Government of India, to strengthen the security and to keep a vigil on the vast coastal stretches of the country, sanctioned construction of marine/coastal police stations along the coast in the States having the sea coast. State of Tamil Nadu has also been sanctioned with the construction of marine/coastal stations and accordingly keeping the strategic location of Kalpakkam Nuclear Power Plant, a decision was taken to construct the police station in Kancheepuram District. The Government of Tamil Nadu, vide G.O.Ms.No.32 Revenue (LD4 (1)) Department dated 24.01.2013 based on the proposal of the District Collector, Kancheepuram, ordered transfer of an extent of 0.20.0 hectare out of the total extent of 8.90.5 hectares of land in Survey No.141 classified as 'Seashore Poramboke' in Sathurangapattinam Village, Thirukazhukundram Taluk, Kancheepuram District to the Police Department for construction of marine police station. Since the above activity is governed under CRZ notified under Environment (Protection) Act, 1986, the project proponent submitted proposals to the DCZMA, Kancheepuram for granting clearance. In turn, the DCZMA recommended the case to the TNCZMA. The matter was placed before the 91st meeting of TNCZMA held on 24.10.2016 and it was concluded that the site for construction of police station is falling in CRZ III located within 200 meters from High Tide Line (HTL) and surrounded by Bay of Bengal on the Eastern side, Sadras Road and Dutch Fort on the western side, Madras Atomic Power Station, Kalpakkam at a distance of 1.5 km. on the northern side and residences on the southern side. Total plot area is 2000 sq.m. and total built up area is 222.05 sq.m. consisting of Ground Floor of 121.59 sq.m and 100.46 sq.m. of First Floor and the total project cost is Rs.48 lakhs. While examining the proposal of DCZMA, Kancheepuram the TNSCZMA has taken into consideration that the Forest Department has informed that the proposed site is not an active nesting ground for Olive Ridley Sea Turtles and the site is being utilised by fishermen for day to day activities like drying fish and fish nets and found to be under active human use. Finally, TNCZMA recommended the project on the ground that the project comes under para 3 (i) (a) of CRZ Notification, 2011 and it is directly related to waterfront or directly needing foreshore facilities and such construction of police station comes under the 'foreshore facilities'. It was also recorded in the Minutes that facilities required for patrolling and vigilance activities of marine/coastal police stations are exempted from the prohibited activities. Therefore, based on the recommendation made in the 91st meeting of the TNCZMA, the Member Secretary of TNCZMA in the order dated 03.11.2016 granted clearance for the said project under para 3 (i) (a) of CRZ Notification, 2011 subject to the following specific conditions:

a) The proposed constructions should conform to the local town and country planning regulations.

b) Planning permission should be obtained for the proposed constructions from the local authorities concerned.

c) Construction should be carried out only for the accommodation of Police station and there should not be any other purpose such as residential quarters, guest houses etc.,

d) The police station should be a "green building" by providing solar lighting, water conservation measures, green live fencing, green belt etc.

e) Proper arrangements should be made for the disposal of solid wastes generated in the project area.

f) Adequate Rain Water Harvesting structures shall be created for water percolation and to harvest the rainwater to the maximum extent possible.

Therefore, it is clear that the TNCZMA has come to a conclusion that the site is not located in the turtle nesting area and does not fall under CRZ- I but falls under CRZ-III and moreover such activities of construction of police station is permissible since it is a foreshore facility. Under CRZ Notification, 1991, CZMP of the State of Tamil Nadu was approved by MoEF & CC on 27.09.1996 wherein the settlement area of Sathurangapattinam is classified as CRZ-III and since the CZMP under the CRZ Notification, 2011 is still under preparation, the MoEF&CC is extending the validity of the CZMP approved in 1996, from time to time. Therefore, presently the CZMP approved under CRZ Notification, 1991 is applicable to the area.

The contention of the appellant is that the site is an active turtle nesting ground and hence comes under CRZ-I and para 3 (xii) of CRZ Notification, 2011 is applicable wherein construction activities in CRZ-I except those specified in para 8 of the Notification are prohibited. It is clear that the appellant's ground is that the site is in CRZ-I since it is ecologically sensitive and maintains the integrity of the coast. The appellant also relied on the para 8 (i) I. CRZ-I (i) where no new constructions shall be permitted except those mentioned from (a) to (f). He also relied on para (8) (i) (III). CRZ-III. A. (ii) which deals with No Development Zone (NDZ) viz., area upto 200 meters from the HTL on the landward side in case of sea front and 100 meters along tidal influenced water bodies or width of the creek whichever is less which is to be earmarked as NDZ. Therefore, his contention is on both grounds i.e. the first being it falls in Turtle nesting area and hence Ecologically Sensitive and categorised as CRZ-I and the second being even if it is construed to be falling in CRZ-III, no construction is permissible in NDZ.

As per the field inspection of the Forest Range Officer who submitted his report to the Wildlife Warden, Children's park, Guindy which is a National Park, no such turtle nesting was found in the area. The Principal Chief Conservator of Forests and Chief Wild Life Warden, Tamil Nadu Forest Department also in his report on the turtle nesting pattern along the coast of Tamil Nadu, particularly with regard to the Kancheepuram District, has categorically stated that as per the survey conducted by the Tamil Nadu Forest Department, no data on turtle nesting grounds has been reported for the areas between Mamallapuram and Puducherry where the nesting location of Sadurangapattinam Village lies. The report also clearly indicates the details of latitude and longitude where nesting grounds are recorded during the survey in the coastal districts of Tamil Nadu.

Even the report of MoEF & CC, Regional Office, Chennai which was made after the field inspection, specifically mentions that they could not locate or notice or observe any turtle nesting in the said location where the police station is being constructed. However, they found a hatchery which was temporarily erected by the NGO TREE Foundation which is located about 30 meters away from the construction site. Therefore, there is no clear cut /authenticated data that shows that the site for construction of police station over a piece of land which is just an extent of about 2000 Sq.mt (approximately ½ acre), is active turtle nesting ground.

The appellant relied upon the figures produced by NGO wherein it was reported that turtle nesting grounds are located on the beach of Sathurangapattinam. But he has not stated how exactly the site is falling under the nesting ground and on what basis the NGO came to a conclusion that it is a turtle nesting ground. It is a fact that in CRZ Notification, 2011 under para 7 the areas that are ecologically sensitive and the geomorphological features which play a role in maintaining the integrity of the coast such as Mangroves, Corals, Sand dunes, Mudflats, National Parks, Sanctuaries, sand Marshes, Turtle nesting grounds are classified under CRZ-I. As per the TNCZMP approved under CRZ Notification, 1991 which is valid as on date, the area of Sathurangapattinam is classified as CRZ I. However, the settlement area is classified as CRZ III and the site of construction of police station is adjacent to the settlement where fisher community is drying fish and fish nets and the entire area is under active human use as reported both by the CZMA and the inspection team of MoEF & CC and also the photographs produced by the appellant himself reveal the same fact. It is clear that the TNCZMA has considered the exact location of the construction site which is a part of the place under use by local fishermen and concluded that it falls in CRZ III and therefore as per the provision under para 3 (i) (a), those activities which are directly related to waterfront or directly relating to foreshore facilities are permissible wherein construction of coastal police station and the like is also included. Moreover, the TNCZMA also relied that under para 3 (xiv) facilities required for patrolling and vigilance activities of marine/coastal police stations are exempted from the prohibited activities and hence construction of police station is a permissible activity.

The CRZ Notification was issued by the MoEF & CC in exercise of powers conferred by the sub-Section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act 1986. The primary objective behind the issuance of Notification is ensuring livelihood security to the fisher communities and other local communities living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming.

By the notification, the coastal stretches of the country and the water area upto its territorial water limit excluding islands of Andaman, Nicobar and Lakshadweep and the marine areas surrounding these islands upto its territorial limit, are declared as CRZ areas. Restrictions were imposed on setting up / expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances, in the aforesaid CRZ as provided under the Notification. The Notification came into force on 06.01.2011.

The area covered under the regulation includes the land area from HTL to 500 meters on the landward side along the seafront and the land area between HTL to 100 meters or width of the creek, whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated, shall be governed by the distance upto which the tidal effects are experienced, which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and the distance upto which the tidal effects are experienced shall be clearly identified and demarcated in the CZMP and the land area falling between the highest line and 500 mts from HTL on the landward side, in case of sea front and between the hazard line and 100 mts line in case of tidal influenced water body and also the land area between HTL and Low Tide Line (LTL) , which is termed as the intertidal zone and the water and the bed area between LTL to the territorial water limit of 12 nautical miles in case of sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of the bank, of tidal influenced water bodies.

HTL means the line on the land upto which the highest water line reaches during spring tide which shall be demarcated uniformly in all parts of the country by the demarcating authority, so authorised by the MoEF & CC in accordance with the general guidelines issued in Annexure I of the Notification.

The following paras of CRZ Notification 2011 are relevant to the case in hand:

"3. Prohibited activities within CRZ,- The following are declared as prohibited activities within the CRZ,-

(i) Setting up of new industries and expansion of existing industries except,-

(a) those directly related to waterfront or directly needing foreshore facilities;

Explanation: The expression "foreshore facilities" means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;

(xii) Construction activities in CRZ-I except those specified in para 8 of this notification.

(xiv) Facilities required for patrolling and vigilance activities of marine/coastal police stations.

Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,-

(i) (a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities;

Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-

(i) CRZ-I,-

A. the areas that are ecologically sensitive and the geomorphological features which play a role in maintaining the integrity of the coast,-

(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;

(b) Corals and coral reefs and associated biodiversity;

(c) Sand Dunes;

(d) Mudflats which are biologically active;

(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;

(f) Salt Marshes;

(g) Turtle nesting grounds;

(h) Horse shoe crabs habitats;

(i) Sea grass beds;

(j) Nesting grounds of birds;

(k) Areas or structures of archaeological importance and heritage sites.

Norms for regulation of activities permissible under this notification,-

(i) The development or construction activities in different categories of CRZ shall be regulated by the concerned CZMA in accordance with the following norms, namely:-

Note:- The word existing use hereinafter in relation to existence of various features or existence of regularisation or norms shall mean existence of these features or regularisation or norms as on 19.2.1991 wherein CRZ notification, was notified.

I. CRZ-I,-

(i) no new construction shall be permitted in CRZ-I except,-

(a) projects relating to Department of Atomic Energy;

(b) pipelines, conveying systems including transmission lines;

(c) facilities that are essential for activities permissible under CRZ-I;

(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;

(e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL;

(f) development of green field airport already approved at only Navi Mumbai;

III. CRZ-III,-

A. Area up to 200mts from HTL on the landward side in case of seafront and 100 mts along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as "No Development Zone (NDZ)",-

(i) the NDZ shall not be applicable in such area falling within any notified port limits;

(ii) No construction shall be permitted within NDZ except for repairs or reconstruction of existing authorized structure not exceeding existing Floor Space Index, existing plinth area and existing density and for permissible activities under the notification including facilities essential for activities; Construction/reconstruction of dwelling units of traditional coastal communities including fisher folk may be permitted between 100 and 200 metres from the HTL along the seafront in accordance with a comprehensive plan prepared by the State Government or the Union territory in consultation with the traditional coastal communities including fisher folk and incorporating the necessary disaster management provision, sanitation and recommended by the concerned State or the Union territory CZMA to NCZMA for approval by MoEF;

(iii) however, the following activities may be permitted in NDZ:

(a) agriculture, horticulture, gardens, pasture, parks, play field, and forestry;

(b) projects relating to Department of Atomic Energy;

(c) mining of rare minerals;

(d) salt manufacture from seawater;

(e) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II;

(f) facilities for regasification of liquefied natural gas subject to conditions as mentioned in subparagraph (ii) of paragraph 3;

(g) facilities for generating power by non conventional energy sources;

(h) Foreshore facilities for desalination plants and associated facilities;

(i) weather radars;

(j) construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads, provision of facilities for water supply, drainage, sewerage, crematoria, cemeteries and electric sub-station which are required for the local inhabitants may be permitted on a case to case basis by CZMA;

(k) construction of units or auxiliary thereto for domestic sewage, treatment and disposal with the prior approval of the concerned Pollution Control Board or Committee;

(l) facilities required for local fishing communities such as fish drying yards, auction halls, net mending yards, traditional boat building yards, ice plant, ice crushing units, fish curing facilities and the like;

(m) development of green field airport already permitted only at Navi Mumbai".

It is clear from the above that the construction of coastal police station is not a prohibited activity in CRZ but it is a regulated activity and grouped under waterfront or directly needing foreshore facility and therefore clearance is permissible as per Para 4. (i) (a). It is obvious that when waterfront or directly needing foreshore facilities which include construction of police station in the settlement area of Sadurangapattinam Village is a regulated and permissible activity there is no question of treating it as NDZ. Further, under Para 3. (xiv) it is specifically stated that facilities required for patrolling and vigilance activities of marine/coastal police stations are exempted in CRZ area. Under Para 8. I. CRZ-I,- (i) (c) facilities that are essential for activities permissible under CRZ-I are permitted. Under Para 3.

(i) (a) construction of coastal police station is a permissible activity. Nowhere it is stated that it is a prohibited activity. It is true that in Para 3. (xii) construction activities in CRZ-I are prohibited except those specified in para 8 of the CRZ Notification, 2011. But as stated above, under Para 8. I. CRZ-I, - (i) (c) no new construction shall be permitted in CRZ-I except facilities that are essential for activities permissible under CRZ-I which are listed in the Notification. As clearly stated in Para 3 (i) (a) construction of coastal police station is a permissible activity.

However, it may be a fact that in the nearby area Olive Ridley Sea Turtles may be coming to the shore during the breeding season and laying the eggs but there is no authentic data to show that at this particular stretch which is already under active human interference and located close to the fishermen settlement where the construction is coming up, the turtles are establishing the nests and laying eggs every year. The Forest Department in collaboration with NGOs is collecting the eggs and artificially hatching and releasing the hatchings into the sea. In fact, the Department has undertaken ' Turtle Conservation Plan' under 'Tamil Nadu Bio Diversity Conservation and Greening Project'. The NGOs have set up hatcheries with the permission of the Chief Wildlife Warden and respective District Wildlife Wardens and the site for hatchery which is artificially created during the nesting season, is not necessarily be located at the nesting site itself but at a safer place where even eggs collected from a distance upto 3 to 4 km can be brought and incubated. In fact creation of artificial hatcheries and releasing the hatchings into the sea will help in ensuring that the hatchlings are not subjected to killing by the predators such as dogs, birds etc. Moreover, the appellant could not produce any specific and authenticated record or data that the site of construction over an area of half acre is clashing with the nesting ground and will cause irretrievable damage to the coastal integrity. In fact the site is already under active human use and located close to the settlement which as per the approved TNCZMP has been categorised under CRZ III. As per the inspection report of the Range Officer of the Forest Department as well as report filed by the Principal Chief Conservator of Forests and Chief Wildlife Warden as well as inspection report of MoEF & CC do not mention anything about the ecological sensitivity and whether such activity of construction of police station is going to affect the habitat and breeding of the Olive Ridley Sea Turtles. There is no reason to disagree with the reports of Forest Department.

There are 7 known species of sea turtles out of which 5 species are reported to inhabit Indian coastal waters and islands, which are the Olive Ridley (Lepidochelys olivacea), Green (Chelonia mydas), Hawksbill (Eretmochelys imbricata), Loggerhead (Caretta caretta) and the Leatherback (Dermochelys coriacea) turtles. Except for loggerhead turtle, all other 4 species are known to nesting along coast of the main land and bay islands of India. Olive Ridley Turtles nest both on the east coast and west coast as well as islands and also Srilanka, Bangladesh and Pakistan offshore of islands. Olive Ridley sea turtle population in Orissa is of global significance since it is one of the major mass nesting rookeries in the world. The habit of Olive Ridley Sea Turtles is widespread and not confined to a particular locality. They migrate from their breeding grounds which may be separated by several thousand km. The available data indicates that the Orissa coast is the most after sought breeding grounds for Olive Ridley Sea Turtles in the world and Tamil Nadu Coast forms part of the migratory corridor from Srilanka to Orissa. Olive Ridley Sea Turtles prefer a site as their nesting habitat which should be relatively undisturbed and away from human intervention. Thus it is clear that the Olive Ridley Sea Turtle species is not endemic and it is not an endangered species and confined only to Sathurangapattinam of Tamil Nadu Coast.

The Principal Bench, NGT in Application No.74 of 2014 in the order dated 2nd September 2016 had an occasion to go into details about the habitat and nesting habit of Olive Ridley Sea Turtles while dealing with establishment of Vizhinjam Port in Kerala and concluded that the site chosen for establishing the Port will not result in any serious threat to the survival of the turtle as a species as the Olive Ridley Sea Turtles are known to migrate periodically over large distances across oceans. It is appropriate to refer to the relevant paras of the judgement which are as follows:

"89. India has a coastal line of about 8000 KM starting from the states of Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Kerala, Andhra Pradesh, Orissa, West Bengal, Andaman and Nicobar Islands and the Lakshadweep. Apart from sustaining fishing grounds, India's coastal waters and beaches provide foraging and nesting sites for a variety of marine species, including sea turtles. Five species of sea turtles are known to inhabit Indian coastal waters and islands, which are the Olive Ridley (Lepidochelys olivacea), Green (Chelonia mydas), Hawksbill (Eretmochelys imbricata), Loggerhead (Caretta caretta) and the Leatherback (Dermochelys coriacea) turtles. Except the Loggerhead, the remaining four species nest along the Indian coast.

Threats to marine turtles in India are many, and varied. Some of the major threats include unplanned beach development (including ports, lighting, tourism and plantations), by-catch mortality (in trawl nets and gill nets), weak enforcement of fisheries and Protected Area regulations and, to a limited extent, killing of turtles for meat and the poaching of eggs (World Wildlife Fund-India Study Report of 2013 titled "Marine turtles along the Indian Coast-Distribution, status, threats and management implications")

The coastal state of Odisha; on the eastern coast of India, experiences one of the world's largest mass nestings of Olive Ridley turtle during the months of October to April. Three of the world's major mass nesting beaches for this species are located in Odisha, supporting a nesting population of probably more than half a million Olive Ridleys, making this one of the most critical conservation areas for this species globally. (Swaminathan Committee Report on CRZ, 2005). This report has also referred to a new nesting site of Olive Ridley turtle site in Payyoli beach, North Kerala.

According to WWF study referred to above, Kerala which has a 580 KM of coastline, shows turtle nesting across nine coastal districts of Kerala, of which seven locations show higher nesting numbers between 2005-2011. All these locations are in districts, other than Thiruvanathapuram. The UNEP-CMS also carried out survey between 2003 and 2004, in the North Kerala along Kannur and Kasargod coast, previously reported to be important nesting habitats of sea turtles (Bhupathy, 2007). No turtle mortalities were recorded during the survey, and reports from fishermen revealed only occasional stranding. Nest depredation by humans and predation by dogs/wild animals was reported to be unknown. The locations are known to have some confirmed and unconfirmed reports of nesting.

The broad conclusion is that number of turtles nesting along the Kerala coast is very less and the records maintained are very few. Major part of the coast (more than 50%) has already been converted into artificial coast preventing turtles to visit such coastal area. There is, once in a while, rare sightings of olive turtles hatchlings and sighting of turtles. Tourist inflow in to the few pocket beaches has already reduced turtle sighting. In any case there is no endemic species of turtles which occurs only in Kerala coast. Setting up of port at Vinzhijam is not expected to cause a threat to the survival of any of the turtle species recorded to have been sighted in Thiruvanthpuram district. The presence of regular nesting and on a large scale of Olive Ridley Sea Turtles is reported and confirmed in Orissa Coast and not at Kerala coast. Though conservation of species of turtle and species of fishes occurring is important from the point of view of documenting species distribution across coastal length of India, the question that needs to be answered is whether the proposed port project of the strategic nature, should be given up on account of this.

The applicants/appellants have failed to show the presence of any RET (rare/endangered/threatened) animal or plant species restricted to this area. Nor have they been able to show that any of the plant or Animal species is endemic to the project area. Merely saying that some animal species are there does not carry any weight as it is but natural that the area must be having population of animals. But that is true for all other places. Construction of the port shall have some impact on the occurrence and abundance of species living there but while deciding about a developmental project, the pros and cons of its impact on the environment are determine and preparation of EIA/EMP is the steps in that direction.

Sustainable development principle requires us to balance the two. The entire east coast of India particularly Odissa, Andhra Pradesh, Tamil Nadu and Andaman Nicobar islands are known for extensive presence of the five main species of turtle known to occur in India. Kerala only has occasional sighting through catches and nestings. There is no endemism of the species in Kerala. Besides the port in the first phase will be less than 1Km and will eventually go up to less than 3KM in coastal length.

We are unable to convince ourselves that the construction of the port at the proposed site will result in serious threat to the survival of the turtle as a species though what may happen is the shifting of the turtle from the areas to other more favourable nesting beaches and sites particularly because the turtle is known for migrating periodically over large distances across the oceans."

One more point raised by the appellant is that since there is a Dutch Fort located nearby which is an archaeological monument and heritage site which comes under CRZ-I, the construction is not permissible. However, as reported by the MoEF&CC after conducting filed inspection, the distance from the Dutch Fort is about 120 meters from the tidal line and the Executive Engineer in his letter dated 22nd February, 2017 clearly stated that the construction site is at a distance of 108 meters from the main building and 103.45 meters from the portico of the building. In any case, it is beyond 100 meters as prescribed under Ancient Monuments and Archaeological Sites and Remains Act, 2010 and construction of police station in no way going to affect the archaeological monument and in fact it may help in strengthening the surveillance and security in the area, more so in the context of attacks by terrorists witnessed in the recent past elsewhere along the Indian coast as argued by the learned Additional Special Government Pleader. One cannot ignore the fact that highly sensitive Kalpakkam Nuclear Power Plant, located on the east coast is just about 1.5 Km away from the police station under construction and it requires constant surveillance and protection. National security and security of vital installations along the coast cannot be compromised under any circumstances.

We have to differentiate as to what type of activity is undertaken and for what purpose. We are conscious of the fact that ecological integrity of coast has to be preserved but here it is a case of construction of a police station over a small piece of land which is already under use by the local fisher community and even after construction they are left with more than 8 hectares of poramboke land in Sy. No. 141 for their day to day use as the total extent of land is 8.90.5 hectares in Survey No.141 classified as 'Seashore Poramboke' out of which only 0.20.0 hectare is given for construction of police station. Neither it is a commercial activity nor a private project and neither going to affect the ecology of coast nor the livelihood of the fisher community in the area. Here, one has to consider the nature of activity and area earmarked for construction and locality. Neither the site is falling nor located near to any Reserved Forest or Mangrove Forest or National Park or Sanctuary. The area is already under high level of human interference where the settlements have come up long back and fishermen are using the site day and night for various activities particularly for drying the fish and fish nets and for conducting Masimagam Festival etc. Moreover, there is no specific and authenticated report that this site is critical in affecting the pattern of migration of Olive Ridley Sea Turtles on the east coast and construction of police station is going to endanger them. As per the approved CZMP under CRZ Notification, 1991, the vast stretches of Tamil Nadu coast are included under CRZ-I but as stated above, the nesting sites of Olive Ridley Sea Turtles are not uniform and the pattern of nesting varies from district to district. New CZMP under CRZ Notification, 2011 is yet to be finalised and notified.

Considering all the above facts we come to a conclusion that the construction of the marine/coastal police station is not in violation of CRZ Notification, 2011 and we are not inclined to grant the prayer of the appellant for quashing the CRZ Clearance dated 3rd November, 2016. The appeal is dismissed. M.A.No.61 of 2017 stands closed. No order as to costs