S. Venkateksh vs Union Of India And Ors

East Coast Road (ECR) runs along the East Coast of India. It starts from Chennai and reaches Kanyakumari. Alleging that the widening/expansion of ECR is done without any proper study or scrutiny and it will nave immense adverse impact on the coastal ecosystems, the application is filed under Section 14 of the National Green Tribunal Act, claiming the following main reliefs:

1) Direct the 2nd and 4th respondents not to widen the East Coast Road in blatant violation of the provisions of the Coastal Regulation Zone Notification 2011 (CRZ) and Environment Impact Assessment Notification, 2006 (EIA) and

2) Demolish/remove the illegally widened road and restore it to conform to the Environmental Clearance issued by the MoEF in 1994 and to prosecute respondents 2 and 4 for violation of the Environmental Clearance granted on 11.02.1994 and the EIA Notification, 2006 and the CRZ Notification, 2011.

The applicant would contend that the construction of the ECR was commenced prior to 1994 illegally and without Environmental Clearance and a Writ Petition 20950 of 1992 was filed before the Hon'ble High Court of Madras. Meanwhile, on 11.02.1994, Environmental Clearance (EC) was granted. During the period of construction, severe adverse impact on the coastal environment was caused by the increased pollution level, from the laying of the road, and reclamation, cutting down thousands of trees and other allied activities. The widening of the said road would lead further environmental pressure due to the tremendous rise in air and sound pollution caused by the increased vehicular traffic. It would also have adverse impact on the groundwater due to the ingress of the sea water. Further extension of the road would also lead to infrastructure development on either side of the road, which would also lead to adverse pressure on the ecosystem.

The ECR runs parallel to the coast within 50 to 100 mts distance in many stretches and passes through very ecologically sensitive areas, having mangroove forests, coastal evergreen forests, sand dunes, agricultural fields, tidal flats, salt pans, bird and wildlife sanctuaries. The road from Chennai to Thoothukudi via Pondicherry has a distance of 690 kms. The extension of the road from Thooothukudi to Kanyakumari is currently underway. Simultaneously stretches of the road is also being widened from its current width to four lane/six lane. On appreciation of the contentions raised in the Writ Petition No.20950 of 1992, the Hon'ble High Court directed the Ministry of Environment, Forests and Climate Change (MoEF & CC) to consider the project for environmental clearance. It was subsequent to this, the Government of Tamil Nadu applied for obtaining EC and by order dated 11.02.1994, the Environmental Clearance (EC) was granted with certain conditions. The conditions stipulated include the provision that the road should have width of 7.50 meter tar topped with 1.5 meter shoulder on each side except where the road has already been widened, where tar topping would be done in a wider width (i.e) between kilometer from 55-69, 113-116, 120-131; the trees shall not be felled; there shall be no displacement of persons for the purpose of road construction and there shall not be any industrial or hotel construction activities on the seaward side of the road.

By letter dated 28.03.1994, the MoEF & CC, stated that the intention of the Ministry in granting EC was to treat the project in the category of only "Other District Road" (ODR) and not as a National Highway or State Highway. According to the applicant, as a result of grant of EC with conditions, it was in principle agreed by the State of Tamil Nadu that there would not be any further widening of ECR and they would maintain the width of the road as permitted in the EC. It is alleged that inspite of the said conditions imposed by EC, widening is being carried out in blatant violation based on the reason of increased traffic and increase in number of accidents. It is contended that there was no detailed or proper study in respect of the widening of existing road to a 4 lane/6 lane, which would involve massive conversion of agricultural and coastal wetlands. In many stretches, the road passes through salt pans, mud flats and also sand dunes. It may be necessary to fell thousands of matured trees. Under CRZ Notification 2011, a rapid EIA report on both marine and terrestrial components, comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding, based on scientific studies and in consultation with the State Government and Union Territory Administration, by the MoEF, is necessary. Disaster Management Report, Risk Assessment Report and Management Plan are required to be submitted along with the application for Environmental Clearance. It appears that no such reports or plan was submitted and hence, the Coastal Zone Management Authority (CZMA) ought not to have even processed the application for clearance. Clearance was for widening the existing ECR of two lane to four lane from 22/300 kms to 55/800 kms for a stretch of 18.8 kms in Kancheepuram District. That 18.8 kms is only a mere fraction of the actual length of the road which falls within CRZ zone. There is ambiguity even with regard to the actual widening of the road as there are reports mentioning that the road is to be made 6 lane. The widening of the entire stretch would involve vast stretches falling in the ecologically sensitive CRZ area. The applicant would contend that the ECR passes through ecologically very sensitive areas and falls within a distance of 500 m from the High Tide Line in most areas. The widening of the road will lead to unprecedented damage to ecological features including wild life sanctuaries, sacred groves and mangroves. Mangrove forests of huge extent, which fall under CRZ I area as well as remnants of coastal evergreen forest patches near Marakkanam and Pudupet, which form the last stretches of the same, are at risk. Marakkanam and the expansive Kaliveli Tank, which are adjacent to the proposed highway, are important areas for migratory birds, Point Calimere Bird which are prone to suffer immense ecological damage. Being category CRZ-I area, no construction is allowed in this area.

The applicant further states that 76th meeting of the Tamil Nadu Coastal Zone Management Authority (TNCZMA) as revealed from the minutes, show that the road falls in CRZ and is passing through CRZ-I (B) inter tidal zone, CRZ-III and CRZ IV areas. The minutes show that on a total and deliberate misinterpretation of the provisions of CRZ Notification 2011, especially, para 8 I (ii) (g), para 8 III A (iii) (j) and para 8 III (B) (viii) of the CRZ Notification 2011, it was mentioned that the construction of roads and bridges are the permissible activities. It is clear that these provisions are regarding the situations irrelevant to the current project. ECR is falling within a distance of 500 m from HTL. Thus, it is clear that the road falls in CRZ -I. Para 4 of the CRZ Notification 2011 deals with regulation of permissible activities and clause (i) (a) under it, is an overarching clause relevant to the notification, which states that clearance shall be given for any activity in the CRZ only if it requires waterfront and foreshore facilities. The provisions of CRZ Notification makes it clear that in CRZ-I area construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water, may be allowed. Paragraph 8 provides norms for regulation of activities permissible under the Notification. Thus, it is clear that paragraph 8 III and III (A) (iii) (j) permits construction of roads and it is also contemplated that these are required by local inhabitants to be decided case to case by CZMA. ECR is mainly meant to connect the cities along the coast and there is no ground to state that the people inhabiting the coastal area needs six lane highway. The permissible activity provided in Paragraph 8 III and III (B) (viii) of the Notification shows that the roads can be built when there is no alternative lane. If widening of the road is a question, the existing road is its alternative. CRZ Notification clearly lays out what is not permissible and exceptions are provided for the same. What is not mentioned in the CRZ Notification is not permissible.

Under item 7 (f) of the Schedule to the EIA Notification 2006, expansion of National/State Highways greater than 30 kms involving additional road greater than 20 ms involving land acquisition requires fresh Environmental Impact Assessment (EIA). Though there is no land acquisition proceeding in the present case, the CZMA has casually stated that the projects already got EC dated 11.02.1994. As per CRZ Notification, those projects that require CRZ Clearance and Environmental Clearance are first to be considered by Coastal Zone Management Authority (CZMA) and then forwarded to Expert Appraisal Committee (EAC) for their consideration. There has been no consideration here before granting EC. While stating that the earlier Environmental Clearance granted on 11.02.1994 is sufficient, CZMA failed to note that MoEF had already clarified that the EC granted for the construction was treating the project as category of "Other District Road" and not as National Highway or State Highway. The widening of the existing road would lead to construction on both sides of the ECR. Such construction has already been prohibited under the conditions in the EC dated 11.02.1994. If the road is widened, there will be more constructions, which would be permitted on both sides of the ECR and it would lead to immense stress on the land during construction and the coast in these areas forms the migratory ground for Olive Ridley Turtles. Due to the heavy traffic, consequent to the widening of the road, there would be disruption in their breeding patterns, which would cause severe damages. Because of the illegal and unscientific filling of Muthukadu estuary and the Palar for construction of bridges, the estuary and river have been perpetually affected. The damages caused to these ecosystems is colossal. The widening commences near the Mayajaal multiplex complex and goes upto Mahabalipuram at various stretches. From Mahabalipuram to Pondicherry, the sites have already been widened and the process of being widened have been geo-tagged and the latitude - longitude co-ordinates and from the corresponding pictures, the trees felled are clear. No permission was obtained for cutting of the trees. There is no permission from the National Board for Wildlife. The applicant objects the project contending that there is no prior EC as provided under EIA Notification 2006 for widening of the road. The Tamil Nadu Coastal Zone Management Authority failed to appreciate that the project involves consideration of acquisition of lands and therefore, should not have granted the Clearance. The construction of the road is not an activity requiring water front and foreshore facilities and therefore, is not a permissible activity as the ECR falls within CRZ - I area. The widening of the road will lead to multi-storied constructions on the eastward side, which would lead to severe ground water depletion and salt water ingress. The project is contrary to the principles of sustainable development and will lead to serious adverse impacts on the wetlands, lakes and mangroves. The adverse impact on Cheyyur lake, Kaliveli Tank and on the migratory birds was not considered. So also, the impact on Olive Ridley Turtle nesting and the effect of the increase in light pollution were not considered. The widening is in violation of the Environmental Clearance granted in 1994. The project cannot be split into many parts and instead, there should be comprehensive assessment. In the absence of detailed studies in terms of the CRZ Notification 2011, TNCZMA should not have considered the proposal. The applicant, therefore, contended that the relief sought for as stated earlier in the application, is to be granted.

The 1st respondent originally filed reply contending that the Ministry granted Environmental Clearance on 11.02.1994, based on the outcome of the discussions by the Expert Appraisal Committee in its 8th meeting held on 13.01.1994, for construction of ECR from Madras to Cuddalore (Phase I) The clearance was subject to the conditions enumerated therein, which are deemed to be operative. In Phase II of the project, (Cuddalore to Kanyakumari) EIA report for all the 3 alternatives shall be submitted to the Ministry. Land acquisition for Phase III should be done in consultation with the sub-group of EAC. In exercise of powers conferred under Section 3 sub-section (2) claluse (i) and (v) of the Environment (Protection) Act 1986 r/w rule 5 sub-rule (3) (d) of the Environment (Protection) Rules 1986, EIA Notification dated 14.09.2006 was issued, which was amended from time to time. All projects or activities falling under the category 'A' in the schedule, require prior EC from the Ministry of Environment, Forests and Climate Change of the Central Government on the recommendations of the Expert Appraisal Committee to be constituted by the Central Government.

The project or activity under the Category 'B' requires prior EC from State Level/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall decide on the recommendations of a the concerned State or Union territory level Expert Appraisal Committee (SEAC) In the absence of duly constituted SEIAA or SEAC, the project shall be treated as category 'A' project. The following projects attract the EIA Notification 2006 as amended.

(1) All new National and State Highways.

(2) Widening of National Highways greater than 100 kms length and additional right of way more than 40 meters in the main alignment and more than a 60 meters in bypass.

(3) widening of State Highways falling in eco-sensitive areas or above 1000 m from mean sea level (MSL) and for expressways.

CRZ Notification 2011, was notified in supersession of CRZ Notification 1991 on 06.01.2011 for regulation of developmental activities along the coastal stretches and to ensure the livelihood security to the fisher communities and other local communities living in the coastal areas and to protect coastal stretches. Under the Notification, coastal stretches of 500 meters from High Tide Line (HTL) and the stretch between Low Tide Line (LTL) and HTL and water portion upto 12 nautical miles are declared as Coastal Regulation Zone (CRZ). It also declares 100 meters or width of the creek and backwater and the distance upto which tidal effect of the sea is experienced in rivers, creeks and backwaters as Coastal Regulation Zone. The CRZ Notification provides for classification of CRZ area that are ecologically sensitive and have geo-morphological features, which play a role in maintaining the integrity of the coast, which inter alia includes the mangroves, mud flats, national parks, sand dunes, etc. It 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 HTL and LTL. The CRZ Notification provides that the concerned Coastal Zone Management Authority (CZMA) can permit on a case to case basis, construction of dispensaries, schools, public rain shelter, community toilets, bridges, roads and provisions of facilities for water supply, drainage, sewerage, cemeteries and electric substation which are required for local inhabitants. The Notification also provides the procedure for clearance of permissible activities. As per the provisions, the Project Proponent is required to apply with certain specified documents to the Tamil Nadu Coastal Zone Management Authority (TNCZMA) for prior clearance, for widening the ECR. The authority would examine the documents submitted by the Project Proponent. The Notification also provides that the projects which are listed under the Notification and also attracting the EIA Notification, 2006, should be given clearance under EIA Notification subject to being recommended by the concerned State Coastal Zone Management Authority. It is contended that the proposal for seeking clearance for 4 laning from km.22/300 to 55/800 (including improvement of curved stretches, 13 numbers and junctions 7 numbers from km 55/800 to 135/500) was received from the Project Proponent, namely, Tamil Nadu Road Development Company Limited (TNRDC) vide letter dated 03.01.2014 and thereafter from SEIAA, Tamil Nadu, on 06.02.2014. The proposal was examined by the Ministry and found that the application was incomplete. Therefore, the application was returned to SEIAA, Tamil Nadu on 02.05.2014.

The 1st respondent thereafter filed an additional affidavit tendering apology for inadvertently stating earlier that the proposal of TNRDC Ltd. was returned on 02.05.2014. In fact, the application was submitted to Tamil Nadu CZMA by TNRDC Ltd., vide letter dated 03.01.2014 and they forwarded the proposal to the Ministry since it is a category 'A' project, as the proposal was highway expansion project i.e. the existing 2 way lane of ECR is converted into 4 way lane from 22.300 km to 55.800 km, certain areas of the expansion fall in CRZ -III, the improvement of 113.2 km of ECR from Kudimiyandithoppu near Chennai to Koonimedu on the outskirts of Pondicherry and so the interstate border comes within 10 kms from the project site and in Form I, the Project Proponent also mentioned that the State boundaries would be within 15 kms. The Ministry after examining the proposal, vide letter dated 11.03.2004, asked the Project Proponent TNRDC to submit soft copy of the entire documents in a single PDF format. The earlier allegation that the proposal was returned on 02.05.2014 was a mistake. The widening of the road in CRZ area is a restricted activity and requires prior clearance under the CRZ Notification, 2011. The permission to such project is required to be granted within the framework of approved Coastal Zone Management plans. The CRZ Notification, 2011 also provides that the projects which are listed under the notification and which attract EIA Notification 2006, should be given clearance under EIA Notification, subject to being recommended by the concerned State CZMA. If the proposed expansion project is in an ecologically sensitive area, it would fall under the Category 'B' of the Schedule to the EIA Notification and due to the proximity of interstate border, the general conditions shall apply and therefore, require appraisal of the project as Category 'A'.

The 3rd respondent Tamil Nadu State Coastal Zone Management Authority filed a reply with the affidavit of the Principal Secretary contending that Tamil Nadu Road Development Company Ltd., (TNRDC) (4th respondent) submitted a proposal for widening the existing ECR of 2 lane to four lane from 22/300 km to 55/800 km, of 33.50 kms of Kancheepuram District for clearance under CRZ Notification, 2011. The proposal was not for widening the road beyond Mamallapuram and therefore, there is no necessity to refer the locations like Marakkanam, Pudupet, Kaliveli Tank, Point Calimere etc. Out of the total length of 33.50 kms, only 18.70 kms is falling in CRZ between Muttukadu and Mamallapuram. The remaining length of the ECR falls outside CRZ. The entire alignment of the proposed widening is falling around 400 meters from HTL in CRZ, except in two places at Muttukadu and Kovalam where the proposed widening is passing across the Buckingham canal in CRZ I B (Inter tidal zone) and CRZ IV (Water Area). The allegation that the East Coast Road runs within 50 to 100 m. distance is not correct. The proposal was to widen the road within 45 m Right of Way and to avoid land acquisition, improvements are proposed only within the area of Right of Way.

Under paragraph 4 (i)(a) of CRZ Notification, 2011, clearance ought to be given for any activity within the CRZ, if it requires waterfront and foreshore facilities. Construction of roads and bridges is permissible activity under CRZ Notification 2011, Vide paragraph 8, I CRZ - I (ii) (g), 8 III CRZ III (A) (iii) (j) and 8 III CRZ III (B) (viii). The 3rd respondent was informed that ECR was formed in the year 1998 by interlinking and improving a series of small village roads that were connecting the fishing villages along the coast of Bay of Bengal and due to traffic congestion, travelling discomforts and safety concerns caused by the dangerous curves and other geometric deficiencies leading to frequent accidents, to mitigate the situation and to find a lasting solution, the proposal is submitted for widening the road. The project will benefit the local inhabitants also, in addition to avoiding the traffic congestion and accidents. The proposal was placed before the 76th meeting of the TNSCZMA held on 21.03.2014 and it was resolved to clear the proposal. Accordingly, clearance under CRZ Notification, 2011 was granted on 03.04.2014. That clearance was granted subject to the conditions enumerated therein. The Project Proponent informed that saplings will be planted at a spacing of 8 to 10 m apart and also furnished the list of common trees proposed for roadside plantation. Only those road projects, provided under item 7 (f) of Schedule to EIA Notification 2006, require EC. The widening of ECR is not falling under the above category and therefore it does not require EC.

The 4th respondent, the Project Proponent filed a reply contending that the 4th respondent is a joint venture of Tamil Nadu Industrial Development Corporation (TIDCO) and TIDEL Park and they are carrying out various road infrastructure works of the Government of Tamil Nadu. The dispute is on the widening of ECR from km. 22/300 to km 135/500 measuring about 113.2 km and not the entire stretch of ECR. The Government of Tamil Nadu decided to widen the ECR and acquired lands for the expansion of the road between the year 1995 and 1996.

The ECR was formed after obtaining EC dated 11.02.1994. In the year 2000, the Government of Tamil Nadu decided to improve the facilities in the stretch of ECR from km 22/300 to km. 135/500, so that world class amenities could be provided to the road users. By G.O.Ms.No.26, Highways (HV2) Department, dated 11.02.2000, the Government of Tamil Nadu handed over the stretch of road to the 4th respondent, as concessionaire, for 30 years with conditions. The 1st respondent by letter dated 22.03.2000 and 06.06.2000 permitted the State to widen ECR by laying bituminous hard shoulders of 1.75 m on each side of the road upto Mahabalipuram and brick/paver block/gravel shoulder for the remaining reach. Pursuant to the permission granted in G.O.Ms.No.215 Highways (HV2) Department dated 13.12.2000, the Government approved the Concession Agreement to be entered with the 4th respondent to improve, operate and maintain the stretch of ECR from KM 22/300 to KM 135/500 for 30 years. The 4th respondent entered into Concessionaire Agreement with the State Government on 22.12.2000.

The 4th respondent developed the then existing road into a scenic world class road with various amenities. The Tamil Nadu Highways Act, 2001 was enacted by the State Legislature to regulate the roads in the State, other than the National Highways. With a view to fix building and control lines of such roads, the State Highways Authority was constituted under the Highways Act, 2001. ECR is the first ODR, declared as State Highway on 14.08.2001. On 15.07.2013, the State Government accorded administrative sanction for widening the ECR as 4 lane road from KM 22/300 to KM 55/500, including improvements at 13 curved stretches and 7 junctions. The widening work of ECR was sanctioned only for the stretch from KM 22/300 to KM 55/500 measuring 33.2 km and no other part of ECR is widened into 4 lane road. Out of this extent, only 18.70 km of the road falls within the CRZ. The proposal for clearance under CRZ Notification, 2011 was submitted to the 3rd respondent. It was scrutinised by the TNCZMA by placing it before its 76th meeting, cleared the proposal subject to certain conditions and approved the proposal. By proceeding dated 03.04.2014, the 3rd respondent cleared the proposal for widening 18.7 kms. length falling within the CRZ and issued the notification. The 4th respondent would contend that their application dated 17.02.2014 to the State Level Environment Impact Assessment Authority (SEIAA), Tamil Nadu, for Environmental Clearance under EIA Notification 2006, for widening the ECR from KM 22/300 to KM 55/500, was exempted, as it is only a State Highway expansion project. Still, the 4th respondent was directed by the first respondent to ensure certain conditions while executing the work. The widening of the road by a stretch of 33.5 km is being carried out after obtaining necessary orders and clearance. The competent authorities under the respective Notifications have granted clearance/approval. For cutting trees, permission has been obtained from the Revenue Department, by the proceedings of the Revenue Divisional Officer dated 29.05.2014 and 24.06.2014. The 4th respondent has transplanted 51 trees so far and for every single tree cut, they have planted 10 numbers of saplings. The widening of the road is being done only within the State Highway boundary, which was acquired before 1985. The widening is actually for the benefit of the public. The allegation that the road falls within 50 to 100 m distance from the HTL is incorrect. Any person, who travels along ECR can find that the coastal line is almost one kilometre away from the road. The road does not pass through ecologically sensitive area, bird and wildlife sanctuaries. Vide letter dated 22.03.2000 and 06.06.2000, 1st respondent has given permission to widen ECR. In view of the subsequent orders, the conditions in EC granted on 11.02.1994 has been modified. Before commencing the widening work, 4th respondent has again obtained Clearance on 07.04.2014 and the SEIAA, Tamil Nadu exempted the project from getting EC, as it is only widening of the existing State Highway. The nature of the road changed after coming into force of the Tamil Nadu Highways Act, 2001, as the competent authorities declared ECR as a State Highway. It is not a safe road and Mahabalipuram has grown into a suburban area of Greater Chennai City with increased traffic flow from Chennai, which in turn lead to increase in number of accidents due to insufficient road width and due to the absence of median. It was under such circumstances, widening of ECR, with central median, was found absolutely essential to save the valuable human lives. 45 meter width of land required for expansion has already been acquired in the year 1995 and no further land is to be acquired. Therefore, none of the salt pans, mud flats and sand dunes are affected. Expansion of the existing road is not a prohibited activity under the CRZ Notification, 2011. Exemption of EC was granted, considering each and every aspect including the latest amendments of EIA Notification. The development of infrastructure on either side of the road is monitored and controlled by Chennai Metropolitan Development Authority and Town Planning Authority. In case of any violation of building permission or approved plan, legal action would be taken in accordance with law. It is therefore, contended that the application is only to be dismissed.

An additional affidavit was filed by the 4th respondent dated 25.01.2016. The facts stated in the reply affidavit of the 1st respondent are incomplete. The 4th respondent has stated that its proposal dated 03.01.2014 seeking clearance for 4 laning ECR from KM 22/300 to Km 55/500 including improvement of 13 stretches and 7 junctions was submitted to the 6th respondent and not to the 1st respondent. The 6th respondent forwarded the proposal to the 1st respondent, on the ground that the project attracts the general conditions to the Schedule in the EIA Notification, 2006. It was, thereafter, decided by the 4th respondent to confine its project between Kudimiyandi Thoppu - KM 22/300 to Mahabalipuram KM 55/800 and by letter dated 17.02.2014, the 4th respondent informed the 6th respondent that they are withdrawing the application for Environmental Clearance. The 4th respondent has also informed the 1st respondent by letter dated 02.03.2014, that it had withdrawn its original proposal and requested not to take further action. The very application dated 03.01.2014 for Environmental Clearance is thus withdrawn as it was not necessary. In the interregnum, the 4th respondent submitted a fresh application dated 17.02.2014 to the 6th respondent under EIA Notification 2006, seeking EC. After scrutinising the application in the light of amendments issued to the EIA Notification, 2006, the 6th respondent decided that the project of the 4th respondent does not require clearance under EIA Notification. The 6th respondent directed the 4th respondent to ensure certain conditions to be complied with while the project is executed. Further, the 4th respondent contended that even assuming that the 3rd respondent can only make recommendations to MoEF and SEIAA, as the stretch of the road between Kudimiyandi Thoppu and Muttukadu lies outside the purview of the CRZ Notification 2011, it will not require clearance. After the widening, each carriage way will be 7.25 mts with centre median of 2 meters and the total width will be 23.50 meters, which is well within the permissible limit. Hence, there is no merit in the Original Application.

The 6th respondent, the Member Secretary of SEIAA filed a reply affidavit contending that EIA notification 1994 came into existence in 1994, before which, obtaining Environmental Clearance was not mandatory. Therefore, with respect to the project in question, it cannot be stated that the construction was illegal. Any project activity undertaken is bound to have impact on land, water, Air and Ecosystem.

The Environmental Clearance dated 11.02.1994 is not available in the office of the 6th respondent. By letter dated 07.04.2014 sent to the General Manager of the 4th respondent, it is clarified that as per the amendment issued by the Ministry of Environment Forests and Climate Change, vide S.O.3067 (E) on 01.12.2009, S.O.1533 (E) dated 14.09.2013 and amendment issued vide S.O.2559 (E) dated 28.08.2013, and S.O.1533 (E) dated 14.09.2013 Environmental Clearance is required only for State Highways and State Highway Expansion projects in hilly terrain and or Ecologically sensitive areas. The project in question does not fall in the above category and therefore, EIA was not required to be done. However, certain instructions were issued by the SIEAA, Tamil Nadu.

Learned Senior counsel appearing for the applicant and the respective respondents were heard.

The following points arise for consideration:

Whether the widening of the existing ECR of 2 lane into 4 lane from Kms 22/300 to 55/800 KM needs Environmental Clearance under EIA Notification, 2006?

Whether the widening of the said road needs Clearance under CRZ Notification and if so, whether there is any valid Clearance obtained?

Whether the widened portion of the road is to be demolished / removed as claimed by the applicant?

What are the reliefs and directions to be granted?

Point No.1:

The arguments of the learned Senior Counsel appearing for the applicant is that for Phase I of ECR Project from Madras to Cuddalore, Environmental Clearance was granted on 11.02.1994 on conditions and one of the conditions is that for the purpose of re-alignment wherever necessary, there should not be any acquisition of home-stead land and EIA report for the new alignment stretches shall be submitted to the Ministry and EC granted is deemed to be operative only after the issuance of Government Order by the Government of Tamil Nadu accepting the above conditions. It was pointed out that the State of Tamil Nadu, thereafter addressed the Ministry of Environment Forests and Climate Change on 08.04.1994 stating that the conditions provided in the EC are accepted. It was argued that prior to the said acceptance by the letter dated 08.04.1994, the Ministry of Environment and Forests, by letter dated 28.03.1994 had declined the request of the State Government to treat the ECR as National Highway/State High Way and reiterated the position that it is "Other Districts Road" and not National Highway /State Highway. Learned counsel also pointed out that as per the EIA Notification 2006, Environment Clearance (EC) is mandatory and no EC was obtained under EIA Notification, 2006 and therefore, the expansion of the road is illegal and the extended portion of the road is bound to be demolished/removed and the land should be restored to its original position.

Learned counsel also argued that the State Government and the 4th respondent had accepted the position that EC is necessary for the project and in fact, the 4th respondent filed an application on 17.02.2014 for EC and subsequently, on a mis-interpretation of the provisions, got accord from the State Level Impact Environment Assembly Authority (SIEAA), Tamil Nadu to the effect that in view of the amendment issued, vide S.O.3067(E) dated 01.12.2009, State Highway expansion projects, except those in hilly terrain (above 1000 m AMSL) and in ecologically sensitive areas alone need E.C and the widening of the ECR sought for, has been excluded from the purview of EIA Notification, 2006 and hence, EC is not needed. Learned counsel, therefore, argued that for want of EC, the 4th respondent is not entitled to expand ECR and even though the road was extended, subsequent to the modification order passed by the Tribunal, it is made clear that no equity could be claimed and therefore, the 4th respondent is bound to demolish / remove the extended portion of the road.

Learned counsel appearing for the 1st respondent, Ministry of Environment, Forests and Climate Change (MoEF & CC) argued that under Item 7 (f) of Schedule to EIA Notification 2006, all State Highway Projects and State Highway expansion projects in hilly terrain (above 1,000 m AMSL) and or ecologically sensitive areas warrant EC. By letter dated 06.02.2014, the 6th respondent forwarded the proposal to the Ministry treating the project as Category A for the reason that (i) the project is Highway expansion project (i.e) existing 2 way lane of ECR is to be converted into 4 way lane from KM 22/300 to KM 55/800; (ii) certain areas falls under CRZ III; (iii) the improvement of 113.2 km of ECR from Kudimiyandithoppu near Chennai to Koonimedu is on the outskirts of Pondicherry (iv) hence, the interstate border comes within 10 km from the project site, and in Form I, the Project Proponent mentioned that the State boundary is within 15 km. Learned counsel also argued that no EC was granted for the project.

The learned counsel appearing for the 4th respondent argued that the application is to be dismissed on the ground of limitation. The application was filed only on 24.09.2015 whereas the cause of action for the dispute arose on 13.12.2000, on which date, the State Government by G.O.Ms.No.215, had approved the Concession Agreement to be entered into between the 4th respondent and the State Highways Department, wherein the 4th respondent was given the right to improve, manage, operate and maintain the select stretch of ECR for 31 years including the period for implementing the improvement works pursuant to the Concession Agreement, and it was agreed to handover ECR for a length of 113.2 km from Sholinganallur road junction to outer limits of Pondicherry (KM 22/3 to KM 135/5) and therefore, the application is to be dismissed as barred by limitation.

Learned counsel also argued that under Section 14 (3) of NGT Act, an application has to be filed within a period of 6 months from the date of the cause of action for such dispute first arose and in fact, in the present case, the cause of action had arisen in the year 2000, when the Concession Agreement was entered into and as this Tribunal can condone the delay of only 60 days as provided under the proviso to sub section 3 of Section 14, it is to be found that the application is barred by time. Learned counsel argued that though there is a prayer for restoration of the land, after demolition or removal of the widened road, it cannot be treated as an application under Section 15 and therefore, the application is to be dismissed.

Learned counsel further argued that in any case, in view of the amendment to Item 7 (f) of Schedule to the EIA Notification, no EC is necessary for the project and the widening of the road was only limited to a stretch of 33.2 km and it does not attract the EIA Notification, 2006 and therefore, the contention of the applicant is to be rejected.

Though the learned counsel appearing for the 6th respondent had taken up an argument based on the bar of limitation, there is no pleading in the reply filed by any of the respondents to the effect that the Original Application is barred by time. Even if there is no plea on the bar of limitation, it is for the Tribunal to decide whether the application instituted is within the period of limitation as provided under NGT Act, 2010 or not. The relief sought for is to restrain the widening of ECR in violation of the provisions of CRZ Notification 2011 for want of valid Clearance and the provisions of EIA Notification 2006 for want of Environmental Clearance. The application is filed within the period of limitation as provided under Section 14 of NGT Act. Hence, we hold that application is not barred by time.

The application is filed for a direction to the respondents not to widen the road in violation of the provisions of CRZ Notification, 2011 as well as EIA Notification 2006 and also for restoration of land to its original position after demolition/removal of the illegally widened portion of the road. The widening of the road was not completed when the Original Application was filed and in fact, though no interim relief was originally granted by the Tribunal in the Original Application, at a later period, finding that the 4th respondent is proceeding with the work and the applicant pressed for an interim order, after hearing all the parties, the Tribunal on 10.10.2015, passed an interim order directing 4th respondent not to carry on any activity beyond the stretch of the road as covered under Exs.B4 & B5, the proceedings of Tamil Nadu CZMA dated 03.04.2014 and the letter of SEIAA dated 07.04.2014, respectively. The relevant portion of the order shows that the applicant had contended that no clearance is obtained either under EIA Notification 2006 or CRZ Notification 2011, but the 4th respondent brought to the notice of the Tribunal that clearance had already been obtained from the TNCZMA under the said Ex.B.3 and also applied for EC to State Level Environment Impact Assessment Authority (SEIAA), Tamil Nadu which pointed out under Ex.B.4 that this is only an expansion project not warranting EC and subsequent to the grant of EC in 1994, several orders were issued by the Ministry. Therefore, SEIAA was impleaded as a respondent and it is recorded that MoEF is to be heard before resolving the dispute. By order dated 21.01.2016, recording that the project Proponent who had made an application for EC on 03.01.2014, had chosen not to disclose it in the reply filed before this Tribunal, for the reasons best known to them, and the SEIAA by order dated 07.04.2014 having come to the conclusion that the said project proposed by the Project Proponent does not require EC, has chosen to impose conditions and the authority to grant clearance under CRZ Notification 2011 is the MOEF & CC or TNSEIAA and TNCZMA had power only to recommend but not to grant clearance and therefore, the Project Proponent cannot be allowed to proceed with the expansion work. Thus, it was directed that "no further constructional activities shall be carried on by the project proponent until further orders." Thereafter, by order dated 11.02.2016, a detailed order was passed after hearing the parties. As per the plea of the first respondent, only new National Highways and State Highways, widening of National High ways greater than 100 kilometers length and additional Right of Way of more than 40 meter in the main alignment and more than 60 meter in bypass, widening of State Highways falling in eco-sensitive areas or above 1000 m mean sea level and expressways require Environment Clearance under EIA Notification 2006 and the State Government by exercising its power under Section 3 of the Tamil Nadu State Highways Act 2001, issued a Notification vide G.O. Ms.No.250, dated 16.12.2003 declaring the stretch between Thiruvanmiyur to Mahabalipuram as a State Highway and therefore, it is no longer an ODR and that Notification has not been challenged. Recording that as per the amended EIA Notification, 2006, expansion of State Highways not coming within the purview of EIA Notification, 2006 does not require EC. Prima facie satisfying that the applicant is not entitled to any interim order insofar as it relates to the ECR stretch between KM 22/300 to KM 55/800 i.e. 33.5 km.from Akkarai to Mahabalipuram, the Tribunal vacated the status quo order dated 21.01.2016, and the 4th respondent, Project Proponent was permitted to carry on the constructional activities to an extent of 33.5 kms upto Mahabalipuram in public interest. Learned counsel appearing for the 4th respondent has also made available photographs showing completion of the widening of ECR.

To the East Coast Project from Madras to Cuddalore (Phase I), Environmental Clearance (EC) was granted on 11.02.1994, much prior to the issuance of EIA Notification, 2006. EC was granted as provided under the Environment Impact Assessment Notification dated 27.01.1994.

Paragraph 2 of the said Notification provides that any person who desires to undertake any new project in any part of India or the expansion or modernization of any existing industry or project listed in the Schedule I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi and the application shall be made in the proforma specified in Schedule II of the notification and shall be accompanied by a project report which shall include an Environmental Impact Assessment Report, Environment Management Plan and details of public hearing as specified in Schedule IV, prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. Items 21 and 22 of Schedule I relates to Highway project and tarred Roads, which read as follows:

"21. Highways Projects except projects relating to improvement work including widening and strengthening of roads with marginal land acquisition along the existing alignments provided it does not pass through ecologically sensitive areas such as National Parks, Sanctuaries, Tiger Reserves, Reserve Forests.

Tarred Roads in the Himalayas and or Forest Areas."

Environmental Clearance was required to the projects/activities mentioned in the list provided in Schedule I.

Environmental Clearance Regulations 2006 (in short EIA Notification 2006) was published in the Gazette on 14th September, 2006. Under paragraph 2 of the said EIA Notification 2006, before any construction work or preparation of land by the project management except for securing the land is started by any project or activity averred under Schedule I, Environmental Clearance is required from the Ministry of Environment, Forests and Climate Change. The matters falling under category 'A' in the Schedule require prior environmental clearance from the Central Government in the Ministry of Environment and Forests and for matters falling under the category 'B' in the Schedule from State/Union Territory Environment Impact Assessment Authority (SEIAA). Such clearance is mandatory for all new projects or activities listed in the Schedule to the notification, for expansion, modernization of existing projects or activities listed in the schedule to the notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the schedule, after expansion or modernization, and for any change in product-mix in an existing manufacturing unit included in the schedule beyond the specified range.

Paragraph 4 of the said Notification provides that concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be revoked. Misleading and wrong information will cover false information, false data, engineered reports, concealing of factual data and false recommendations or decisions.

Item 7 (f) of EIA Notification, 2006 as then stood, deals with Highways both National and State. Column 2 is with regard to the project or activity and Column 3 relate to category A projects/activities and column 4 relate to category B projects/activities. Column 5 relate to Conditions if any. Column 5 of item 7 (f) provides that General Conditions shall apply. Column 4 of item 7 (f) as then stood, reads:

"(i) New State Highway projects and

(ii) expansion of National/State Highways greater than 30 kilometers involving additional Right of Way greater than 20 meter involving land acquisition."

By Notification S.O.1737(E) dated 11.10.2007, column 4 was substituted as follows:

(i) New State Highways and

(ii) Expansion of State Highways greater than 30 km involving additional Right of Way greater than 20 m involving land acquisition."

But the only change was that 'expansion of National Highway' which was there originally was removed, evidently as it was included in column 3. By Notification S.O.195 (E) dated 19.01.2009, column 4 of item 7 (f) was again amended and after the amendment, it reads:

"(i) All State Highway Projects and

(ii) State Highway Expansion Projects in hilly terrain and or in ecologically sensitive areas."

Likewise, by Notification S.O.No.3067 (E) dated 01.12.2009, column 4 of item 7 (f) was again amended and after amendment, which even now subsists, it reads:

(ii) State Highway expansion projects in hilly terrain (above 1000 m AMSL) and or ecologically sensitive areas."

General Conditions provides that any project or activity specified in Category 'B' will be classified as Category 'A', if located in whole or in part within 5 km from the boundary of; (i) protected areas notified under the Wildlife (protection) Act, 1972; (ii) critically polluted areas as identified by the Central Pollution Control Board from time to time; (iii) Notified eco-sensitive areas and (iv) inter-state boundaries and international boundaries.

Therefore, the question is whether the impugned project as such requires Environmental Clearance under EIA Notification 2006 or not. It cannot be disputed that the Environmental Clearance is necessary only for the projects mentioned in Schedule to the Notification. The relevant item in the schedule relating to the project is admittedly item 7(f). After the amendments as noted earlier, Environmental Clearance (EC) is mandatory to all New National Highways, Expansion of National Highways greater than 30 KM involving additional right of way involving land acquisition and passing through more than one State to the extent provided therein treating them as category A projects. Admittedly, the proposed project is not a New National Highway or expansion of National Highway. Under column No.4 of Item 7 (f), EC is necessary for a New State Highway project. EC is necessary, if the project is relating to a State Highway expansion project in hilly terrain (above 1000 m AMSL) and or at ecologically sensitive area.

Though the learned counsel appearing for the applicant vehemently argued that in view of rejection of the request of the Government of Tamil Nadu to treat the ECR as a highway, reiterating that it can be treated only as "Other District Road", it cannot be treated as a State Highway, we cannot agree with the said submission. When the said request was submitted to the Ministry by the State Government, the State Government had not enacted the Tamil Nadu State Highways Act, 2011. Under the said Act, it is for the Government of Tamil Nadu to declare a State Highway. It is in exercise of the power vested under Section 3 of the State Highways Act 2011, Tamil Nadu Government issued GO Ms.No.250, Highways (HN2) dated 16th December 2003 declaring the stretch in the ECR between Thiruvanmiyur and Mahabalipuram as State Highway. By virtue of the said G.O. the character of ECR, which originally stood as ODR, is altered to a State Highway. The EIA Notification 2006 does not empwoer the Ministry of Environment and Forests, or the Central Government to declare any road as a State Highway. The State Highways are to be declared by the respective State Governments. When the State Government under exercise of the powers provided under Section 3 of Tamil Nadu State Highways Act 2011, by notification dated 16.12.2003, declared the ECR as Highway, we have no hesitation to hold that ECR is now a State Highway. If that be so, EC would be necessary for the project only if the expansion of the State High way project is in hilly tarrain (above 1000 m AMSL ) and or in an ecologically sensitive area. The applicant has no case that the impugned expansion of the road is in hilly tarrain (above 1000 m AMSL). But the learned counsel would argue that a part of the ECR is in an ecological sensitive area.

The argument is that atleast a portion of the ECR from Sholinganallur to outer limits of Pondicherry lies along CRZ I as provided under CRZ Notification, which is ecologically sensitive area. True. If the project falls under CRZ I A, it could be said that it is an ecologically sensitive area as provided under CRZ Notification. But to attract the CRZ I A, the area must be ecologically sensitive and having geo-morphological features which play a role in maintaining the integrity of the coast like Mangroves, Corals and coral reefs and associated biodiversity; sand dunes; mudflats which are biologically active, National Parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972, the Forest (Conservation) Act, 1980 or Environment (Protection) Act 1986 including biosphere reserves, Salt Marshes; Turtle nesting of rounds, Horse shoe crabs habitats, Sea grass beds, Nesting grounds of birds, and areas or structures of archaeological importance and heritage sites.

Learned counsel appearing for the applicant argued that it has been specifically pleaded that the coast in this area forms the migratory ground for Olive Ridley Turtles and due to the construction of the road and heavy traffic that would flow, it would cause disruptions on their breeding pattern and so, it is an eco-sensitive area. The project is only an expansion of existing road within the land which was acquired prior to 1994, and there cannot be any ecologically sensitive or geo-morphological features which play a role in maintaining the integrity of the coast within that area. Therefore, the project area will not come under CRZ -I A. It would come only under CRZ-I B as certain stretches lie Low Tide Line (LTL) and High Tide Line (HTL) and hence attract CRZ I (B) only. The area between Low Tide Line (LTL) and High Tide Line (HTL) is not provided as an ecologically sensitive area under CRZ Notification, 2011 as distinct from CRZ I (A). There is no notification issued under Section 3 or Section 5 of Environmental (Protection) Act, 1986 declaring the area as an ecologically sensitive area. There is no case for the applicant that there is any such declaration, that the area is ecologically sensitive. Therefore, the project does not attract any of either column 3 or 4 of Item 7 (f) of Schedule I under the EIA Notification, 2006. Therefore, we have no hesitation to hold that the widening of the disputed ECR is not in violation of EIA Notification 2006 and the activity does not require EC.

Though it was contended that there is violation of the conditions of EIA Notification as the original EC granted in the year 1994 was violated, the case is not that while constructing the ECR, there was any violation. The only allegation is that by subsequent widening of the constructed ECR, there is violation. The argument is that the EC granted provides for realignment and fresh EIA report is to be submitted to the Ministry. First of all, when EIA Notification 2006 came into force on 14th September 2006 in supersession of EIA Notification 1994, what is to be complied thereafter is under the provisions of EIA Notification 2006. When 2006 Notification does not provide for EC to a project, one cannot insist that as EIA Notification provides EC, EC is to be taken. Added to this, MoEF by letter dated 6th June, 2000, has clarified the point as follows:

"Reference is invited to your faxed letter of 5th June, 2000 addressed to Hon'ble Minister of Environment & Forests regarding the subject mentioned above. The contents of the above cited letter have been examined. As you may be aware, the EIA notification 1994 was amended on 10th April, 1997 exempting from the provisions of the EIA notification 1994 projects relating to improvement of highways including widening and strengthening of roads with marginal land acquisition along the existing alignment provided these do not pass through ecologically sensitive areas. Subsequently, it was clarified that marginal land acquisition means land acquisition not exceeding a total width of 20 metres on either side of the existing alignment put together. A copy of the circular is enclosed. In respect of improvement of works such as straightening of curves, etc, the limit of 20 metres width regarding land acquisition would also apply to land acquisition for stretches proposed in lieu of existing curves, etc.

In view of the above, notwithstanding stipulations under any existing clearances issued by this Ministry prior to 10th April, 1997, the projects covered under the provisions mentioned above need not be referred to this Ministry for Environmental Clearance under the provisions of the EIA Notification 1994."

For the reasons aforesaid, we cannot agree with the said submission also. Therefore, we find that EC was not necessary for widening the impugned stretch of ECR, as it is not an expansion project of State Highway involving hilly tarrain (Above 1000 m ASML) and or ecologically sensitive area. The point is answered accordingly. 38. Point Nos.2 to 4:

The Coastal Regulation Zone Notification was issued on 06.01.2011.The Notification was issued by the Ministry of Environment and Forests 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 object 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 Coastal Regulation Zone (CRZ) areas. Restrictions were imposed on setting up / expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazard 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 High Tide Line (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 Coastal Zone Management Plans (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 High Tide Line (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 Ministry of Environment and Forests in accordance with the general guidelines issued in Annexure I of the Notification.

The prohibited activities within CRZ are provided in para 3, of the Notification which include (i) setting up of new industries and expansion of existing industries, except those covered under sub-clause (a) to (e), (ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests in S.O.594 (E) dated 28.07.1989, S.O.966 (E) dated 27.11.1989 and GSR 1037 (E) dated 05.12.1989 except those provided in sub clause (a) and (b), (iii) setting up and expansion of fish processing units including warehousing except hatchery and natural fish drying in permitted areas, (iv) land reclamation, bunding or disturbing the natural course of sea water except those provided in clause (a) to (d) therein, (v) setting up and expansion of units or mechanism for disposal of the wastes and effluents except those provided in sub clause (a) to (c) , (vi) discharge of untreated waste and effluents from industries, cities, or towns and other human settlements, (vii) dumping of city or town wastes including construction debris, industrial solid wastes, fly ash for the purpose of land filling and the like, (viii) Port and harbour projects in high eroding stretches of the coast except those projects classified as strategic and defence related in terms of EIA Notification, 2006, identified by MoEF based on scientific studies and in consultation with the State Government or the Union Territory Administration, (ix) reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities, (x) mining of sand, rocks and other sub-strata materials except those provided in sub-clause (a) and (b) therein, (xi) drawal of ground water and construction related thereto within 200 mts of HTL, expect those provided in sub clause (a) and (b) therein, (xii) construction activities in CRZ I except those specified in para 8 of the notification, (xiii) dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purpose and (xiv) facilities required for patrolling and vigilance activities of marine/coastal police stations.

Construction of a road or expansion or widening of an existing road, are not included in the prohibited activities as provided in para 3 of the Notification.Para 4 of the notification deals with regulation of permissible activities in CRZ area. The following activities shall be regulated except those prohibited in para 3 above.

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

(b) for those projects which are listed under this notification and also attract EIA Notification and also attract EIA Notification, 2006 (S.O.1533 (E), dated 14th September, 2006) for such projects clearance under EIA Notification only shall be required subject to being recommended by the concerned State or Union Territory Coastal Zone management Authority (hereinafter referred to as the CZMA);

(c) Housing schemes in CRZ as specified in paragraph 8 of this notification;

(d) Construction involving moe than 20,000 sq. mts built-up area in CRZ-II shall be considered in accordance with EIA notification, 2006 and in case of projects less than 20,000 sq. Mts built up area shall be approved by the concerned State or Union Territory Planning authorities in accordance with this notification after obtaining recommendations from the concerned CZMA and prior recommendations of the concern CZ MA shall be essential for considering the grant of environmental clearance under EIA notification, 2006 or grant of approval by the relevant planning authority.

(e) MoEF may under a specific or general order specify projects which require prior public hearing of project affected people.

(f) construction and operation for ports and harbours, jetties, wharves, guays, slipways, ship construction yards, breakwaters, groynes, erosion control measures;"

Claluse (ii) of para 4 provides the activities which shall require clearance from MoEF. It reads:

"The following activities shall require clearance from MoEF, [after being recommended by the concerned CZMA] namely:-

(a) [those activities listed under category 'A' in the EIA notification, 2006 and permissible under the notification:]

(b) Construction activities relating to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as, slipways, jetties, wharves, quays; except for classified operational component of defence projects. Residential buildings, office buildings, hospital complexes, workshops of strategic and defence projects in terms of EIA notification, 2006.;

(c) Construction, operation of lighthouses;

(d) Laying of pipelines, conveying systems, transmission line;

(e) Exploration and extraction of oil and natural gas and all associated activities and facilities thereto;

(f) Foreshore requiring facilities for transport of raw materials, facilities for intake of cooling water and outfall for discharge of treated wastewater or cooling water from thermal power plants. MoEF may specify for category of projects such as at (f), (g) and (h) of para 4;

(g) Mining of rare minerals as listed by the Department of Atomic Energy;

(h) Facilities for generating power by non-conventional energy resources, desalination plants and weather radars;

(i) Demolition and reconstruction of (a) buildings of archaeological and historical importance,[(b)]* heritage buildings; and buildings under public use which means buildings such as for the purposes of worship, education, medical care and cultural activities;

(j) [construction of memorials / monuments and allied facilities by the concerned State Government in CRZ-IV

(A) areas in exceptional cases, with adequate environmental safeguards, subject to the following, namely:-

(A) The concerned State Government shall submit justification for locating the projects in CRZ area along with details of alternate sites considered and weight age matrix on various parameters including environmental parameters to State CZMA who will examine the project and make recommendation to the Central Government (MoEF) for grant of Terms of Reference (ToRs) for preparation of an environmental impact assessment report by the State Government;

(B) On grant of ToRs by the Central Government, the concerned State Government shall submit the draft Environmental Impact Assessment Report (EIA) with Environmental Management Plan (EMP). draft Risk Assessment Report with Disaster Management Plan (DMP) including on-site and off-site emergency plan and evacuation plan during emergency, to the State Pollution Board for conduct of public hearing for the proposed project in accordance with the procedure laid down under the Environmental Impact Assessment notification;

(C) The concerned State Government shall submit final EIA, EMP, Risk Assessment and DMP after addressing the relevant issues raised by the public during the public hearing, to State CZMA for their examination and recommendation to MoEF."

Para 4.2 provides the procedure for clearance of permissible activities. It reads:

"(i) The project proponents shall apply with the following documents seeking prior clearance under CRZ notification to the concerned State or the Union territory Coastal Zone Management Authority;-Form-I (Annexure-IV of the notification);

Rapid EIA Report including marine and terrestrial component except for construction projects listed under 4(c) and (d) Comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory Administration;

Disaster Management Report, Risk Assessment Report and Management Plan;

CRZ map indicating HTL and LTL demarcated by one of the authorized agency (as indicated in para 2) in 1:4000 scale;

Project layout superimposed on the above map indicated at (e) above;

The CRZ map normally covering 7km radius around the project site.

The CRZ map indicating the CRZ-I, II, III and IV areas including other notified ecologically sensitive areas;

No Objection Certificate from the concerned State Pollution Control Board of Union territory Pollution Control Committees for the projects involving discharge of effluents solid wastes, sewage and the like.;

(ii) The concerned CZMA shall examine the above documents in accordance with the approved CZMP and in compliance with CRZ notification and make recommendations within a period of sixty days from date of receipt of complete application,- MoEF of State Environmental Impact Assessment Authority (hereinafter referred to as the SEIAA) as the case may be for the project attracting EIA notification, 2006;

MoEF for the projects not covered in the EIA notification, 2006 but attracting para 4(ii) of the CRZ notification;

(iii) MoEF of SEIAA shall consider such projects for clearance based on the recommendations of the concerned CZMA within a period of sixty days.

(vi) The clearance accorded to the projects under the CRZ notification shall be valid for the period of five years from the date of issue of the clearance for commencement of construction and operations.

(v) For Post clearance monitoring -

(a) it shall be mandatory for the project proponent to submit half-yearly compliance reports in respect of the stipulated terms and conditions of the environmental clearance in hard and soft copies to the regulatory authority(s) concerned, on 1st June and 31st December of each calendar year and all such compliance reports submitted by the project proponent shall be published in public domain and its copies shall be given to any person on application to the concerned CZMA.

(b) the compliance report shall also be displayed on the website of the concerned regulatory authority. vi) To maintain transparency in the working of the CZMAs it shall be the responsibility of the CZMA to create a dedicated website and post the agenda, minutes, decisions taken, clearance letters, violations, action taken on the violations and court matters including the Orders of the Hon'ble Court as also the approved CZMPs of the respective State Government or Union territory."

Therefore, in cases where projects or activities are not prohibited under para 3, but require clearance from MoEF as they are regulated projects or activities, the clearance is to be granted as provided under para 4.2. For the clearance, the Project Proponent has to apply seeking prior clearance under CRZ Notification to the concerned State or Union Territory Coastal Zone Management Authority (CZMA) along with Form I, as provided in Annexure IV of the Notification; rapid EIA report including marine and terrestrial component except for construction projects listed in sub-clause (c) and (d) of para 4 (i);

Comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union Territory Administration; Disaster Management Report, Risk Assessment Report and Management Plan; CRZ map indicating HTL and LTL demarcated by one of the agency (as indicated in para 2) ; project layout superimposed on the above map and no objection certificate from the concerned State Pollution Control Board or Union Territory Pollution Control Committee for the projects involving discharge of effluents, solid wastes, sewage and the like as provided in para 4.2 (i). On receipt of the materials, the concerned CZMA shall examine the documents in accordance with the approved CZMP and in compliance with CRZ Notification and make recommendations within a period of sixty days from the date of receipt of complete application. The MoEF or SEIAA , as the case may be, for the projects attracting in EIA notification 2006 and MoEF, for the projects not covered in the EIA notification but attracting para 4(ii) of the CRZ notification, on receipt of the recommendation, the MoEF or SEIAA, as the case may be, shall consider such projects for clearance based on the recommendations of the concerned CZMA within a period of 60 days and has to grant or refuse the clearance. The clearance, so accorded shall be valid for a period of five years from the date of issue of clearance for commencement of the construction and operation. Therefore, it is clear that the clearance under CRZ Notification 2011 is to be granted for the projects or activities, which are regulated under para 4, either by MoEF or by SEIAA. If the projects or activities are not covered by EIA notification 2006, clearance can be granted only by the MoEF and in other cases, either by MoEF or SEIAA as provided under EIA Notification, 2006. Such clearance is to be granted by the MoEF or SEIAA on the recommendations of the concerned CZMA.

The arguments of the learned counsel appearing for the applicant is that in the light of the said provisions, the clearance obtained by the 4th respondent is not issued by the competent authority but by the State CZMA and therefore, there is no valid clearance under CRZ Notification, 2011. The argument is that the State CZMA can only make recommendation and cannot grant the clearance and the impugned clearance in question was granted not by either MoEF or SEIAA but by the State CZMA and therefore, it is insufficient to carry on with the project and the work carried out without clearance under CRZ Notification is, illegal and is liable to be removed.

The clearance was granted by the Member Secretary of Tamil Nadu CZMA Dr.H.Mallleshappa, I.F.S. by the proceedings dated 03.04.2014. It reads:

PROCEEDINGS OF THE MEMBER SECRETARY, TAMIL NADU STATE COASTAL ZONE MANAGEMENT AUTHORITY & DIRECTOR OF ENVIRONMENT, CHENNAI 600 015 PRESENT : DR. H. MALLESHPPA., I.F.S.

Proc. No. P1/512/2014 dated 03.04.2014

Sub: CRZ - Widening of the existing ECR of two lane to four lane from 22/300 km to 55/800 km for 18.7 kms proposed by TNRDC of Kancheepuram district - Clearance under CRZ Notification 2011 - orders issued regarding

Read: From Tamil Nadu Road Development company Ltd., lr. No. TNRDC/ ECR/ GM (P&O)/ 018/2014 dated 26.02.2014.

Minutes of the 76th meeting of Tamil Nadu State Coastal Zone Management Authority held on 21.03.2014.

From Tamil Nadu Road Development Company Ltd., lr. No. TNRDC/ECR/GM(P&O)/028/2014 dated 1st April 2014.

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ORDER:

The Tamil Nadu Road Development Company Ltd., (TNDRC)., Chennai have submitted a proposal for Widening of the existing ECR of two lane to four lane from 22/300 km to 55/800 km for 18.7 kms proposed by TNRDC of Kancheepuram district for clearance under CRZ Notification 2011.

2) The Total length of the road of widening is about 33.50 kms and the out of which about 18.7 kms road is falling in CRZ. Total project cost in CRZ is Rs.98.40 crores. The road is passing through CRZI (B) inter tidal zone, CRZ-III and also CRZ IV. In the process of widening the existing road, it is also proposed by the applicant to expand the 5 minor bridges and 6 culverts and also to construct a new major bridge adjacent to the existing major bridge., Project stretch has a 2 land carriageway of 7.0m wide with paved shoulder of 1.75m on either side and beyond the paved shoulder, earthen shoulder exists for about 1.0m width. As the project road has around 45m Right of Way and to avoid land acquisition, the improvements are proposed within the existing Right of Way. The Ministry of Environment and Forests, GoI have issued Environmental Clearance for the ECR in lr. No. J-21012/33/92-IA-III dated 11th February 1994.

3) As per CRZ Notification 2011 vide para 8 ICRZI(ii)(g)., 8 III CRZ(A) (iii)(j) and 8 III CRZ III (B) (Viii)., construction of roads and bridges is permissible activity. Further improvement of existing roads is not a prohibited activity in CRZ and as per para 5 (x) of CRZ the developmental activities shall be regulated by the State CZMA within the frame work of approved CZMP.

4) The proposal was placed before the 76th meeting of the Tamil Nadu State Coastal Zone Management Authority held on 21.03.2014 and the State Coastal Zone Management Authority resolved to clear the proposals on receipt of village level cadastral maps showing the details of widening of roads in CRZ areas with survey numbers. The TNDRC have furnished in the reference 3rd cited the details of survey numbers which are falling in CRZ in respect of the road, consolidated village map superimposing the proposed road alignment with survey numbers and also connected village maps showing the road alignment with survey numbers.

5) Accordingly, as resolved in the 76th meeting of the State Coastal Zone Management Authority, Clearance is hereby issued under para 8 ICRZ(ii) (g)., 8 III CRZ III(A) (iii)(J)., 8 III CRZ III(B) (viii)., and para 5(x) of CRZ Notification 2011 for the above said widening of existing East Coast Road subject to the following Conditions:

The constructions of bridge should be carried out in such a way that they should not affect the hydraulic free flow of water.

Adequate Green belt plantation along the road should be undertaken in consultation with Forests Department. There shall be no extraction of ground water.

No liquid or solid waste shall be generated and disposed off in CRZ.

All activities should be in conformity with the provisions of the CRZ Notification 2011.

Sd/- Dr. H. Malleshappa.,

Member Secretary,

Tamil Nadu State Coastal Zone Management Authority"

Incidentally, the said Dr.Malleshappa was also the Secretary of SEIAA at that time. In fact, the reply for SEIAA in the Original Application was filed by the same Dr.Malleshappa as a Member Secretary of SEIAA.

The argument of the learned counsel appearing for the 4th respondent is that on 26.02.2014, the 4th respondent applied to Tamil Nadu Coastal Zone Management Authority (TNCZMA) for grant of clearance under the CRZ Notification 2011. Under the CRZ Notification 2011, the Project Proponent has to apply for clearance to the concerned State or Union Territory Coastal Zone Management Authority as provided under para 4.2 (i). Therefore, being the Project Proponent, the 4th respondent has submitted his application to the proper authority.

The application was considered by the TNCZMA in its 76th meeting under agenda item No.6. The minutes of the meeting produced by the applicant shows that only 18.7 kms of the proposed widening of existing ECR of two lane to four lane from 22/300 kms to 55/800 kms, falls in CRZ area. It is also recorded that the proposed widening was within the 45 mts Right of way, already available to the Project Proponent and thereby, there is no need for any land acquisition. It is also specifically recorded that the widening of the road proposed is only within the existing Right of Way. Recording that vide para 8 I CRZ I (ii)(g), 8 III CRZ III (A) (iii) (j) and 8 III CRZIII (B) (viii) construction of roads and bridges is a permissible activity and further, the improvement of an existing road is not a prohibited activity under CRZ and under para 5 (x) of CRZ Notification, the developmental activities can be regulated by the State CZMA, it was stated as follows:

"The Authority may consider

(a) The proposed activities should not cause coastal erosion and alter the beach configuration. The shoreline changes shall be monitored continuously.

(b) Chemical waste generated and the sewage generate, if any, should not be discharged into the sea and shall be properly handled.

(c) The waste water generated shall be collected, treated and reused properly.

(d) The proponent shall implement the oil spill mitigation measures without fail.

(e) Disaster Management Plan shall be implemented and Mock drills must be carried out properly and periodically."

Based on this, the authority resolved to clear the project subject to the conditions, which are as follows:

"The Authority resolved to clear the above proposals subject to the following specific conditions;

a) The village level cadastral maps showing the details of widening of roads in CRZ areas with survey numbers shall be furnished.

b) The constructions of bridge should be carried out in such a way that they should not affect the hydraulic free flow of water.

c) Adequate Green belt plantation along the road should be undertaken in consultation with Forests Departments.

d) There shall be no extraction of ground water.

e) No liquid or solid waste shall be generated and disposed off in CRZ. "

True. As per para 4.2 (ii) of CRZ Notification, the concerned CZMA has to examine the documents submitted along with the application for clearance in accordance with the approved CZMP and in compliance with CRZ Notification and make recommendations within a period of 60 days from the date of receipt of complete application. Thereafter, the MoEF or SEIAA, as the case may be, shall consider such project for clearance based on the recommendations of the concerned CZMA. Therefore, the recommendation of the CZMA has to be considered by SEIAA and based on the recommendations, the clearance for the project has to be granted by the SEIAA. We find that in the case on hand, instead of SIEAA, the clearance was granted by the Member Secretary, Tamil Nadu Coastal Zone Management Authority (TNCZMA) Dr.H.Malleshappa. It is pertinent to note that the said Member Secretary of TNCZMA was also the Member Secretary of SEIAA, Tamil Nadu. Therefore, the clearance under the CRZ Notification 2011, based on the recommendations of CZMA, should have been given by the very same Dr.H.Malleshappa, in his capacity as Member Secretary of SEIAA but not as Member Secretary of TN CZMA. But for that fault committed by TNCZMA or its Secretary, the Project Proponent cannot be find fault with. The Project Proponent can only file the application in accordance with the provisions of CRZ Notification, 2011. The Project Proponent submitted the application before the appropriate authority. As per the CRZ Notification, the TNCZMA has to consider the application with the materials and recommend approval of the project. Thereafter, the SEIAA has to grant the clearance based on the said recommendation. The TNCZMA, approved the project instead of recommending it. Thereafter, the Member Secretary of SEIAA, who was also the Member Secretary of TNCZMA at that time, cleared the same. The proceedings have been drawn as if it was cleared by the TNCZMA. For that error apparently not intentionally by the TNCZMA or the SEIAA, the Project Proponent cannot be held responsible. Once clearance was obtained, the respondent No.4 proceeded with the project work and has now completed the same. In such circumstances, for the failure of the Member Secretary of SEIAA, Tamil Nadu, to issue a proper clearance under CRZ Notification in his capacity as the Member Secretary of SEIAA, issued the clearance in his capacity as Member Secretary of the TNCZMA. The said Member Secretary should have been careful, as he is expected to be thorough with the procedure provided in CRZ Notification. In any event, this type of apparent errors should not have been committed. But, on the facts and circumstances of the case, we do not find it necessary to interfere with the clearance issued under CRZ Notification, as the clearance, in fact, was given by the very same Member Secretary, though by mistake, it was shown as in his capacity as the Member Secretary of CZMA, which is the recommendatory authority, instead of the SEIAA, who is the authority to grant the clearance under CRZ Notification. Moreover, we do not find any adverse environmental impact or violation of the provisions of CRZ Notification, 2011 in permitting the 4th respondent to complete the construction of the project. Though the learned counsel appearing for the applicant vehemently argued that the widening of the road would adversely affect the breeding pattern of Olive Ridley Turtles, an endangered species, on the facts, we cannot agree. First of all, apart from the allegation that the coast in these area form the migratory grounds of Olive Ridley Turtles, there is no specific case of a particular part of the coast, within 18.7 kms of the road portion falling in CRZ Notification, 2011, forming the migratory ground of Olive Ridley Turtles. Moreover, the ECR is in existence from 1994. So also, plying of vehicles and the traffic is in existence for the last several years. Therefore, the light emanating from the vehicles causing disturbance is not a phenomenon that would occur on the widening the existing road. It has been in existence for the last several years. The widening of the road is only within the already acquired land, over which, a Right of Way already exists. Therefore, on the facts, we find that there is no necessity to have any reservation on the question of adverse impact of Olive Ridley Turtles.

We find no other material or reason to hold that the widening of the existing East Coast Road is detrimental to the provisions of the CRZ Notification, 2011.

The 4th respondent had submitted the details of steps taken during the execution of widening of the existing two lane road into four lane, which are as follows:

"1. Provision for planting 7600 trees along the road has been made and will be done immediately after completion of the project.

Transplantation of 51 trees have been carried out in the stretch from Km 36/000 to Km 39/000, and the tree have been restored to their natural growth.

The process of planting shrubs in the center median will be carried out.

Noise barriers will be provided at appropriate locations particularly in the areas where the alignment passed through inhabited areas where the noise levels exceeds the permissible standards.

Non-conventional energy lighting system will be provided at all major intersections.

Water harvesting structures will be erected at 500mtr. Intervals along the road as vertical drains in order to minimize surface run off.

Hot mix plant has been erected at more than 500 m away from the inhabitants and also on the barren land to avoid adverse impact on the human beings.

IRC guidelines are being followed for widening and upgradation of road.

IRC guidelines are being followed by providing signages, service roads, bus-bays, pedestrian crossings, etc."

It is clear from the materials placed that the very purpose of widening of the existing road was necessitated due to the curves on the road, causing accidents and loss of many human lives. In fact, this aspect was considered by this Tribunal in the order dated 11.02.2016.

The relevant portion of the order reads:

" We have also taken note of the public interest involved in this case and it is an admitted fact that the major portion of the work has already been done. The learned counsel for the project proponent Mr.Abdul Saleem has brought to the notice of the Tribunal that there is increase of fatal accidents on ECR because of incomplete work. Therefore, by taking note of the public interest and also the above legal position, we are prima facie satisfied that the applicant is not entitled to any interim order insofar as it relates to the ECR stretch between22/300 km to 55/800 km that is 33.5 km from Akkarai to Mahabalipuram only."

In the facts and circumstances of the case, we hold that the applicant is not entitled to get any direction to respondents 2 and 4 not to widen the ECR as proposed or to demolish/remove the widened portion of the road or to restore it to the original position. At the same time, we find it necessary to issue the following directions in order to avoid any adverse impact on the CRZ as well as environment:

The 4th respondent shall complete the planting of trees along the road immediately, as it is submitted by the 4 th respondent, the work of the widening of the road has already been completed. Preference should be given for planting broad leaved indigenous tree species with large crown suitable to the locality, to reduce the impact of noise and light pollution. Such planting shall be completed within a period of two months and a report shall be filed by the respondent No.4 before the Tribunal.

The report shall also indicate the present status of the 51 trees which have been already transplanted.

The planting of shrubs in the centre median shall be carried out without delay.

Noise barriers shall be provided at the appropriate locations especially in the areas where the alignment passes through inhabited area where the noise level already exceeds the permissible limit and a report shall be filed within two months.

Erection of water harvesting structures at 500 m intervals along the road shall be completed within a period of two months and a report shall be filed.

6.The trees of such nature, which would obstruct the lights of the vehicles towards sea side, should be planted all over the seaward side of the road without any gap. Such plantation should be completed within two months and a report shall be filed before the Tribunal.

The Original Application is disposed of accordingly, but with no order as to costs.