Kachchh Camel Breeders Association vs Union of India And Ors

Dr. S.S. Garbyal, (Expert Member)

This Original Application has been filed by the Applicant-Kachchh Camel Breeders Association through Shri Bhikhabhai Rabari, Jangi, Bhachau Taluka, Kachachh District, Gujarat alleging that there has been a blatant violation of the provisions of Coastal Regulation Zone Notification, 2011 (hereinafter known as CRZ Notification) as well as Forest Conservation Act, 1980 by rampant clearing of the mangroves in Nani Chirai and Moti Chirai areas of Bhachau Taluka in the district of Kachchh, Gujarat by the Respondent no. 6-Deen Dayal Port Trust, (DPT). These areas are said to be locally known as Nani Beti, Hadkiya Khadi, Bhojwari Khadi, Hematwaro and others. These areas are stated to be the habitat of indigenous Kharai Camel species which live among the mangroves and are the source of livelihood for several hundred camel breeders of the region. It is alleged that the Respondent No. 6-DPT has cleared the mangroves without obtaining any CRZ clearance as well as forest clearance and that the Coastal Zone Management Authority and the Forest Department, Gujarat have not taken any concrete action to prevent the indiscriminate destruction of mangroves, despite having information and that the destruction of pristine mangroves habitat is continuing even today unabated.

It has also been alleged that the Respondent no. 6- DPT have allotted the areas falling under the CRZ - I which are under their control for extraction of salt etc., which have resulted in destruction of mangroves due to obstructions raised in the creeks without any permission of the Competent Authorities under CRZ Notification, 2011.

The applicant has stated that in a similar case of Kheti Vikas Seva Trust and Ors. Vs. State of Gujarat ( W.P. PIL No. 12 of 2011) before the High Court of Gujarat concerning destruction of mangroves by the activities of Mundra Port led to the formation of High Court Committee headed by the District Collector, Kachchh in the year 2011 and High Court of Gujarat on 7th July, 2011 had ordered that no mangroves must be cut without the due permission and mandate of Forest and Environment Department of the State. The Applicant has stated that they had sent multiple communications to the DPT as well as the District Collector, District Level Coastal Zone Management Committee and Gujarat Forest Department about the blatant destruction of Mangroves which are habitat of 400 Kharai Camels. The Authorities were urged to take immediate action against the illegal destruction of mangroves. It has further been submitted that there has been no response on behalf of the Port Trust as well as the concerned Authorities in this regard.

The Applicant has also submitted that Dr. Ashok Kumar Saxena, IFS, Principal Chief Conservator of Forest, Member Secretary, Gujarat Ecology Commission and Project Director, Integrated Coastal Zone Management Project (Gujarat) (World Bank Project) on 21st February, 2018 had written a letter to the District Collector, Bhuj, Principal Chief Conservator of Forest (HoFF) State of Gujarat and Director Environment and Member Secretary, Gujarat Coastal Zone Management Authority, Forest and Environment Department, Government of Gujarat, Gandhi Nagar informing them that there is large scale destruction of mangroves at Nani Chirai and Moti Chirai areas of Bhachau Taluka.

The Applicant has, therefore, prayed as under :

"i. Direct the official respondents to immediately stop the ongoing destruction of mangroves.

ii. Direct the Respondent No. 6 to ensure that no mangroves are cut within their premises in perpetuity as it is a CRZ-I area where it is prohibited to cut such mangroves.

iii. Direct the respondents for rehabilitation and restitution of the mangrove environment already destroyed.

iv. Direct the respondents to pay a huge environmental compensation charge for the mangroves destroyed in accordance with past precedents of this Hon'ble Tribunal.

v. Pass any other such order(s)/direction(s) as this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the present matter. "

In view of the facts and categorical statement made by the Applicant, this Tribunal had on 19th March, 2018 directed that status quo be maintained till further orders in order to stop the destruction of mangroves. The Tribunal had also ordered Joint Inspection to be conducted and a report in this regard to be filed by the Gujarat State Pollution Control Board (GPCB) and the Central Pollution Control Board (CPCB). As requested by the Respondent no. 6, the GPCB, the Shree Jyoti Salt Industries and the Shree Ram Salt Supply were impleaded as Respondent no. 7, 8 and 9.

The Respondent no.1-MoEF & CC in their affidavit have stated that the CRZ Notification, 2011 declares the following areas fall within the ambit of CRZ and imposes following restrictions on setting up and expansion of industries, operations or processes and the like in the CRZ :

" (i) The land area from High Tide Line (hereinafter referred to as the HTL) to 500 mts on the landward side along the sea front.

(ii) CRZ shall also apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea. Explanation:- For the Purposes of this sub-paragraph the expression tidal influenced water bodies means the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like.

(iii) The land area falling between the hazard line and 500 mts from HTL on the landward side, in case of seafront and between the hazard line and 100 mts line in case of tidal influenced water body.

(iv) Land area between HTL and Low Tide Line (hereinafter referred to as the LTL) which will be termed as the intertidal zone.

(v) The water and the bed area between the LTL to the territorial water limit (12 Nm) 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.

.....5. That the CRZ Notification, 2011 provides details for classification of CRZ areas. As per the Notification, CRZ - I are the areas that are ecologically sensitive and the geo-morphological features which play a role in maintaining the integrity of the coast, which, inter-alia, includes mangroves, mud flats, national parks, sand dunes, etc. The Notification also provides that in case mangrove area is more than 1000 sq m, a buffer of 50 m along the mangroves shall be provided. In addition, CRZ-I also includes the area between LTL and HTL.

.....7. That paragraph 4 of CRZ Notification, 2011 provides for the regulation of permissible activities in CRZ area and the relevant extracts read as follows:

" The Following activities hall be regulated except those prohibited in para 3 of the CRZ Notification, 2011:-

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

(ii) For those projects which are listed under this notification and also attract EIA notification, 2006, for such projects clearance under EIA notification only shall be required subject to being recommended by the concerned State and Union territory Coastal Zone Management Authority. "

.....8. That for the purpose of implementation and enforcement of the provisions the CRZ Notification, 2011 and compliance with the conditions stipulated there under, the powers either original or delegated are available under the Environment (Protection) Act, 1986 with the State Government and the State Coastal Zone Management Authority (SCZMAs), including the Gujarat Goastal Zone Management Authority (GCZMA) for the State of Gujarat. The composition, tenure and mandate of State/UT CZMAs, have been notified from time to time by the Ministry.

.....9.The main function of these Authorities is to enquire into the cases of alleged violation of the provisions of the CRZ Notification, 2011 and take appropriate decision under Section 5, 10 and 19 of the Environment (Protection) Act, 1986.

The Respondent no. 6 in their counter affidavit filed on 06.08.2018 submitted that they had asked the allottees to carry out the activities only for the purpose of demarcation of the boundaries so that actual corners of the plots can be demarcated and official possession on the respective plots of the land can be handed over to the Respondent nos. 8 and 9.

The Respondent no. 6-DPT has further countered that it has come on record in various inspection reports that huge earthen bunds along with internal bunds were created stage wise for creating salt pans for salt farming and the land was also levelled at several places by Respondent no. 9 and not by DPT. The DPT had only wanted activities which are necessary for demarcation of boundaries and that the DPT is not engaged in any process of salt production and salt supply and they have no reasons for levelling the grounds on its own.

The Respondent no. 6 (DPT) has submitted that the alleged destruction of mangroves by creation of mud walls has not been done by the DPT. It has been stated that Kandla Port Water Front land from Village Jungi to Village Veera extends in a length to about 110 kms and due to the acute shortage of staff and more particularly due to inaccessibility by vehicles to the some of these areas, it is practically not possible for the DPT staff to monitor these lands on regular basis. It has further been submitted that peripheral boundary length of about 100 kms in this region is disputed as to whether this land belongs to the DPT or the Government of Gujarat (Revenue Land). And as such, there has no clearly demarcated boundaries of lands belonging to the DPT and those belonging to the State Government. As a result, there exist many cases wherein the State Government has slotted lands to the salt manufacturers, which even extends to the lands belonging to the DPT. Further, due to lack of demarcation there have been many cases of illegal encroachments over DPT lands by miscreants. At the time of survey or inspection carried out by the Land Department Officials of DPT, these miscreants claim to be allottees from the State Government. The DPT had been taking up the survey and demarcation of the boundaries of DPT land and land belonging to the State Government since the Year 2009 and the DPT had requested the Office of D.I.L.R innumerable times and even the Chief Secretary, Government of Gujarat, had been requested may times to intervene in the matter. The DPT has submitted that if at all any destruction of mangroves has taken place as complained in the application, the same has been done by the encroachers who have illegally entered upon the lands belonging to DPT.

The Respondent no.7-GPCB in their affidavit filed on 03rd July, 2018 has submitted that they had with the assistance of the Collector and District Magistrate, Kachchh completed the work of demolition of bunds and removal of all obstructions to the satisfaction of the complainant and in compliance of our order dated 24th May, 2018.

The Respondent no. 8- Shree Jyoti Salt Industries has submitted that the Respondent no. 6-DPT had decided to allot certain plots of land for production of salt by using tender auction and the Respondent no. 8 had submitted a bid for allotment of six (6) plots on lease for production of salt for thirty (30) years through e-auction on 29th July, 2016. The said six (6) plots are said to be situated between Village Bachau and Village Jungi and in the e-auction the Respondent no. 8 was the highest bidder. The Respondent no. 8 has disputed the position stated by the Respondent no. 6-DPT. They have stated that pursuant to the allotment order no lease deed has been executed till date nor the possession of the said parcels of land in question has ever been handed over to the Respondent no. 8. Therefore, the Respondent No. 8 states that they have never been in possession of the plots of said parcels of land in question and even the legal possession of plots in question is not with the Respondent no. 8 for want of execution of lease deed. They have further stated that when the lease deed itself is not executed and when no demarcations of plots have been made and even the formal possession of land has not been handed over, therefore, they are not responsible for any contravention as complained by the applicant in the original application.

The Respondent no. 9- Shree Ram Salt Supply has also stated on the similar lines as stated by the Respondent no. 8 that they had submitted a bid for allotment of a plot, out of six (6) plots on lease for production of salt for thirty (30) years through e-auction on 29th July, 2016 floated by the Respondent no.6-DPT. The Respondent no. 9 had received pre-acceptance letter dated 13th January, 2017 from DPT. The DPT was unable to provide the details of the boundaries/demarcation of plots. The DPT is also stated to have informed the Respondent no. 9 that the demarcation is not possible as the land in question is water logged. The DPT officials also said to have informed them that they were of view that attempt should be made to construct bunds on the line of boundaries if possible, it may help demarcation of boundary points of the allotted plot. The Respondent no. 9 has categorically stated that they have never entered into any agreement for any construction nor they have made any construction on the alleged parcels of land in question.

In view of submissions made above by Respondent nos. 8 & 9, the submissions made by the Respondent DPT that allotment of land for manufacture of salt was made by the State of Government cannot be accepted as Respondent nos. 8 & 9 had given their bid in response to the tender floated by DPT on 29th July, 2016 for allotment of plots for the production of salt. It appears that both DPT as well as State of Government had allotted lands to the salt manufacturers as there was no clear demarcation of boundaries between the land owned by the DPT and the state government which has resulted in destruction of mangroves in the area.

In pursuance of order of this Tribunal dated 19th March, 2018, Joint Inspection of the site was conducted on 13th April, 2018 by the following officials of the GPCB and CPCB and the report was filed on 27th April, 2018:

" i. Shri Pratik Bharne, Scientist D, CPCB, Regional Directorate (West), Vadodara.

ii. Shri Kedarnath Dash, Scientist C, CPCB, Head Office, Delhi.

iii. Shri K.B. Chaudhary, Regional Officer, GPCB, Kutch-East, Gandhidham.

iv. Shri Manish G. Barad, Deputy Env. Engineer, GPCB, Gandhinagar.

v. Shri Rikesh Virda, Asst. Env. Engineer, RO, GPCB, Kutch-East, Gandhidham. "

During the Inspection, It was observed as follows :

"02. Observations:

• It was observed that earthen bunds have been created stage wise for creating pans for salt farming and land levelled at several places which resulted in blocking of minor creeks i.e., obstruction of flow of sea water and destruction of the mangroves (photographs at Annexure - III).

It was also observed that mangroves are dried due to blocking of free flow of water in minor creeks and creek lets system due to creation of bunds and at some locations getting dried. Due to land levelling and creation of bunds with the help of heavy machinery, mangroves were uprooted which are buried as well as lying on land (photographs at Annexure - III)

• These activities might have affected the survival of the Mangroves in a vast area and its associated biodiversity. It was also noticed construction of earthen bunds in large area beyond the above said plots in areas towards creek (little Gulf of Kutchh).

• During the inspection, no any activities like bund making, levelling of land, manual up-rooting of mangroves were observed at visited site. Machineries were not observed, at this site.

• It was informed by Deendayal Port Trust (DPT) officials that the land admeasuring to 3500 acres viz. (Plot No. 2-1000 Acres to Shree Ram Salt Supply, Plot No. 3 to 6 (3 X 500 acres; 1 X 1000) acres to Shri Jyoti Salt industries) allotted on lease for 30 years for salt production purpose on as is where is basis. The allotment letters were issued on 21.02.2017. Further, it was informed that for the demarcation of the land/plot for giving possession, DPT issued letter (dated 19.06.2017) to both allotee (Shree Ram Salt Supply and Shri Jyoti Salt Industries) to construct a bund along the line of boundary, so that actual boundary points can be demarcated and possession of the land can be handed over. It was informed by DPT officials that the possession letters to the above allottee have not been issued till date.

• DPT informed that as per one of the tender condition (clause 4.26 (A)), all the requisite clearances should be obtained by the allottee and the construction of plots will only be allowed after all such certifications/clearances from various departments are obtained.

However, it was surprising to know that DPT has not properly noticed/monitored any developments in this area and only asked for requisite approvals from allottee (which were to be obtained from statutory authorities) after visit of Officials of Regional Office, GPCB, Kutch-East. The GPCB visit was carried out on 22.02.2018 based on the similar complaint from the Applicant (Shri Bhikabhai Vaghabhai Rabari, President, Kachchh Camel Breeders Association). Thus, DPT has not properly monitored the tender condition regarding obtaining statutory permissions.

• Based on representation of Kachchh Camel Breeders Association, sub-committee was constituted by District Collector & Chairman, District Level CRZ Committee (DLC), Kutch, for site inspection. The Sub-committee headed by Deputy Conservator of Forest (DCF), Kutch (East) Division visited the site on 14.03.2018 and submitted the report to District Collector & Chairman, District Level CRZ Committee.

• As per the said sub-committee report, since the area covers of mangroves, i.e., CRZ I-A, any activity without prior permission on habitat alterations or removal of mangroves is a case of clear violation of CRZ Notification 2011 and amendment thereof.

• As per the said sub-committee report all the above activities resulted in destruction of mangroves habitats and removal of mangroves in an area of about 750 acres. Out of which, 250 acres area can be categorized as moderately dense mangroves and balance 500 acres can be classified as moderately dense mangroves and balance 500 acres can be classified as open mangrove (sparse mangrove). It was also observed by the sub-committee that total impact could be several folds of the lease areas.

• The recommendations of the said sub-committee are as follows:

o To stop all the activities immediately in the said area.

o To restore the free flow water in the creeks/creek lets by removing all earthen bunds/roads.

o Since area falls under CRZ category I-A, all the leases should be cancelled with immediate effect and legality should be followed.

o The restoration plan needs to be prepared for the impacted and surrounding areas and effective implementation should be followed.

• Further, based on report of the said sub-committee, District Collector & Chairman, District Level XRZ Committee, issued Advisory Note (28.03.2018) to DPT which is provided as Annexure-IV. The Report has also been submitted to Gujarat Coastal Zone Management Authority (CGZMA), Gandhinagar for further action in this regard.

The DPT is advised for:

o To stop all prohibited activities immediately in CRZ area and restore the pre-conditions by removing bunds and obstruction made to stop the free flow of water.

o To stop carrying out any activity in and around the inter tidal areas which are affecting the mangroves, blocking of the creeks, disturbing the natural flow of tidal waters and commenced without obtaining prior clearance from the competent authority are in violation of the provision of the CRZ notification.

o To cancel all such leases with immediate effect which falls under CRZ category 1-A area.

o To stop any activity in CRZ -1 (A) area, which is classified as ecologically sensitive area as per CRZ Notification.

o To prepare restoration plan for the impacted and surrounding areas including its effective implementation plan and submit within fortnight.

• As per the order (19.03.2018) of Hon'ble NGT, PB, New Delhi there should be status quo maintained till further order. By not clearing the blocking of minor creek for free flow of the water, mangroves are drying in some area, therefore, restoration activity to ensure free flow of water in creeks needs to be allowed on priority basis."

Further, it has been concluded in the inspection report as follows:

" 3.0 Conclusion

• The Substantial work of bunding, blocking of minors creeks, destruction of mangroves, in area took place without obtaining prior CRZ clearance which is a violation of CRZ Notification 2011 & amendment there off. During the inspection, no any activities like bund making, levelling of land, manual up-rooting of mangroves were observed at visited site.

• GCZMA should examine the matter of execution of lease deed of the said plots and liability which may arise due to violations of provisions of CRZ Notification 2011. As the possession letters are not yet given by the DPT to allottees (salt industries), it is opined that the responsibilities lie with DPT for such activities and violations. Gujarat Coastal Zone Management Authority (GCZMA) should take appropriate action.

• There is urgent need of investigation by GCZMA for the destruction of mangroves for salt pan preparations and the duration of such activities carried out in surrounding area (Bhachau Taluka), violating provisions of CRZ Notification.

• The constructed earthen bunds as well as blocking of minor creeks are restricting/blocking of the flow of tidal water to the mangrove areas which resulted into drying off/loss of mangroves, therefore, blockings/bunds to be removed on priority, so that mangrove area gets water and survive.

• Restoration plan needs to be prepared for the impacted and surrounding areas and effective implementation should be envisaged with appropriate monitoring mechanism by GCZMA. "

On 28th April, 2018, it was noted that obstructions caused in the creeks have resulted in depletion of the water in the areas where mangroves were growing and if this position continues, destruction will be complete. Besides, if the water is not allowed to pass through the creeks, it will destroy all the mangroves and the area will be exposed to reclamation which may be the intention of the vested interests. The Gujarat State Pollution Control Board (GPCB) assisted by the District Magistrate was directed forthwith to visit the spot and remove all obstructions from the creeks to ensure flow of water to the area where mangroves exist. The GPCB was asked to report compliance within ten (10) days from 24th May, 2018.

Learned Counsel appearing for the State of Gujarat has stated that they have lodged several FIRs for encroachment in the area.

In view of the submissions made above, it is amply clear that there is no demarcation which are existing on the ground between the land belonging to the DPT and the revenue land with the result there has been several instances of encroachments in the revenue land as well as land belonging to the DPT and the people have taken advantage of the situation that was prevailing on the ground and the salt pans have been created by constructing bunds across creeks which has caused death of mangroves.

Mangroves are special class of trees which grow in estuaries and intertidal regions along the creeks and coasts. Mangrove forests are among the most productive ecosystem on earth and serve many important functions including water filtration, prevention of coastal erosion, carbon storage, and timber and biodiversity protection. They play extremely important role as windbreaks in coasts which protect coasts during cyclones and tsunamis. Because of dense root systems the mangroves trap sediments which help in stabilizing coastlines and prevent erosion from waves and storms. Mangroves are also the nursery grounds for several fish species and other marine fauna. Therefore, mangroves work as system that keeps coastal zones healthy and vibrant. It is because of these extremely important roles that mangroves play it is incumbent upon everyone concerned to conserve and protect the mangroves. Other than Sunderbans and Andaman & Nicobar Islands there are few locations in our country where mangroves thrive and Kachchh Coastline is one such location and, therefore, Gujarat Forest Department and Gujarat Coastal Zone Authorities have special responsibility to conserve and protect the mangroves in Gujarat coastline wherever they occur.

We, therefore direct as follows:

(i) There shall be no obstruction of any kind in the creeks and free and continuous flow of estuarine water in the creeks will be ensured.

(ii) The Forest Department, Government of Gujarat, GCZMA and Revenue Officials will jointly inspect the area to find out the persons who were responsible for obstruction of the creeks and take action in accordance with law including recovery of environmental damage and cost of restoration of mangroves damaged. This may be done within a period of one (1) month from today.

(iii) If there has been any activity which is in violation of CRZ Notification, 2011, the GCZMA will immediately take action in accordance with law.

(iv) If there has been any activity in the mangroves area which are in contravention of the Forest (Conservation) Act, 1980 or any other law, the Forest Department will immediately take action in accordance with law.

(v) There shall be no salt manufacturing activity in CRZ - 1 area without following the due procedures provided under law/notification. If such activity are found the GCZMA will take action immediately to stop forthwith and initiate appropriate proceedings.

(vi) The quantum of damage caused to the mangroves shall be assessed by the GCZMA in accordance with laid down procedures and the same shall be recovered from the persons responsible for the same within a period of one month from today.

(vii) The Forest Department, Government of Gujarat will take immediate action to restore the mangroves which are damaged within a period of six (6) months from hence.

With the abovementioned directions, this Original Application No. 111/2018 is disposed of. The Miscellaneous Application No. 20/2019 does not survive for consideration as the main application itself is disposed of.