Coastal Regulation Zone Disputes before the National Green Tribunal

14 July 2017
Coastal Regulation Zone Disputes before the National Green Tribunal
PART 9 OF A SERIES ON ‘COASTAL REGULATION’ BY DEBAYAN GUPTA OF THE CPR-NAMATI ENVIRONMENT JUSTICE PROGRAM

India’s long coastline of close to 8000 kilometres covers nine states and five union territories.  Not only is it home to wetlands, several species of fish, reptiles, crustaceans, corals, mangroves, it also supports the livelihood of around 3300 fishing villages.

An important law that seeks to regulate and manage this diverse stretch, is the Coastal Regulation Zone (CRZ) Notification. A Notification was first issued in 1991, under the Environmental Protection Act (EPA), 1986 that regards 500 metres from the High Tide Line (HTL) all along the coast as CRZ. Certain changes were made to the Notification of 1991 and a new Notification was issued in 2011. The amended law of 2011 continues to enable the concerned Coastal Zone Management Authorities (CZMAs), District Level Coastal Committees (DLCCs), and the Ministry of Environment Forests and Climate Change (MoEFCC) to protect and conserve these areas.

A breach of this notification can be challenged before the National Green Tribunal (NGT), both as an appeal as well as seeking remedies on the grounds of it being a substantial question related to the environment. Since its establishment in 2010, the NGT is the primary judicial body for all adjudication under the CRZ.

Since 2012, the principal and zonal benches of the NGT have heard numerous cases concerning violations of the CRZ law. The CPR-Namati Program has attempted to identify the more common disputes, limiting it to three sets of disputes. These have been elaborated upon and substantiated with the help of seven judgments from the NGT, below:

Determining the regulatory authority for certain activities in the CRZ area

One set of disputes which were argued before the NGT is determining whether the State Coastal Zonal Management Authority (SCZMA) is the appropriate regulatory authority for the coastal zones.  

The case which best highlights the NGT’s position in this regard is that of Alexio Arnolfo Pereira v. State of Goa (2014 SCC OnLine NGT 6655). In 2013, the State of Goa passed the ‘Tourism Policy for construction of temporary seasonal structures, beach shacks, huts and others 2013-2016’, which is commonly known as the ‘Shack Policy’. This policy was challenged by Alexio Arnolfo Pereira, a resident of Goa, as being contrary to the provisions of the CRZ Notification of 2011. Pereira stated:

  • The CRZ Notification empowers the Goa Coastal Zone Management Authority (GCZMA) to regulate activities in the CRZ areas.
  • He also argued that the Tourism Department of Goa, under the guise of the Shack Policy, was usurping the regulatory powers of the Goa Coastal Zonal Management Authority (GCZMA) by granting permission for shacks/huts on the beaches for tourism purposes.

Thus, the questions before the NGT were: i) whether the temporary seasonal structures in the CRZ areas would require the GCZMA’s permission or not, and ii) whether the current practice for granting No Objection Certificates was as per the CRZ Notification, 2011 or not? Though the NGT decided that the Shack Policy was correct since it did necessitate the organisers of the temporary structures to take necessary permissions from the GCZMA, there were still innumerable shacks in the area which had been set up without any necessary permissions. 

Similarly in Kamburam Dharma Paripalana Araya Samajam vs. Kozhikode Corporation and Others ( (22.09.2015 - NGT) : MANU/GT/0160/2015)), the petitioners, a society representing traditional fisher folk brought forth a complaint against certain indiscriminate and illegal constructions on the Kamburam beach. The contention was that since the total investment in the project was in excess of Rs. 5 crores, the project would thus need clearance not only from the Kerala Coastal Zonal Management Authority (KCZMA) but also from the MoEFCC. This argument was advanced on the basis of the 1991 Notification. The 2011 Notification however had no such provision, and as per the 2011 Notification, permission of the MoEFCC would only be required in cases where the built up area of the project exceeded 20,000 square metres. Thus, the petition was dismissed since the constructions had been done only after taking the necessary permissions from the appropriate authority, i.e., the KCZMA.

Another such situation arose when, in the case of Libertina Fernandes v. Goa Coastal Zonal Management Authority (2015 SCC OnLine NGT 61), the appellant’s main contention was that the GCZMA had no authority to direct the demolition of a property, which was admittedly constructed in the CRZ. The contention in the case was that the Village Panchayat was the competent authority to direct demolition of the property by following the course of action contemplated under the Goa Panchayat Raj Act, 1994. The permissions for the property had been taken in the years 1986-1987 under the Goa, Daman and Diu Village Panchayat (Regulation of Building) Rules, 1971. These rules allowed the Village Panchayat to issue regulations only in case of a non-permanent building, the cost of which did not exceed Rs. 20,000. The disputed building, however, was made of steel and concrete and the cost ran into crores. The NGT was of the opinion that the 1971 Act and the CRZ Notification, 2011 are not necessarily conflicting legislations and can operate simultaneously. This is because the object and purpose of the Acts were quite different. Since the construction was in the CRZ area, permission of the GCZMA was required under the law. The absence of any such permission was seen a blatant violation of the CRZ law and the property was ordered to be demolished.

Developmental Activities vs. Livelihoods Rights of Coastal Communities

The second kind of dispute, which emerged from the thicket of NGT decisions, pertained to a clash between historical livelihood use of coastal areas by communities and developmental activities on the coast.

For instance, in Ramdas Janardan Koli and Others v. Secretary, MoEFCC and Others ((27.02.2015 –NGT):MANU/GT/0056/2015)), the traditional fishermen from villages situated in the Uran and Panvel Talukas of Raigad district sought compensation from the City & Industrial Development Corporation of Maharashtra Ltd (CIDCO), Jawaharlal Nehru Port Trust (JNPT) and Oil and Natural Gas Company (ONGC). Their claim was that the widening and deepening of the sea for an additional fourth berth in the JNPT area was impairing the regular tidal water exchanges and in turn affecting the egress and ingress of the fishermen’s traditional boats to the sea through a creek near the JNPT. Further, land reclamation in the area had led to removal of mangroves and this large scale destruction of mangroves had reduced the breeding of fish in the area. Both of these affected their traditional right to catch fish and on this basis the fisher folk claimed compensation. The NGT came to the conclusion that the JNPT, CIDCO and ONGC were responsible for damaging the environment and affecting the livelihood of the fishermen in that area, and ordered the organisations to pay an amount of Rs. 95,19,20,000 to 1630 families.

In Wilfred J. v. MoEFCC ((02.09.2016 - NGT) : MANU/GT/0113/2016)), the MoEFCC issued an Environmental Clearance (EC) and CRZ clearance for the Vizhinjam International Deepwater Multipurpose Seaport on 3 January 2014. This clearance order was challenged in four different petitions. The petitioners ranged from people concerned about the environment, and social workers to local fishing communities and individual fisher folk. The petitions were clubbed and heard collectively. The proposed site for the seaport was south of the Vizhinjam fishing harbour. The coastal and offshore waters of the area was used by the fishermen in the district. These fishermen had been using the existing harbour to venture out safely into the sea during the rough monsoon months for almost 40 years. The establishment of the port thus threatened the basis of their livelihood.  With respect to the the CRZ clearance, the main contention of the appellants was that the site where the port was to come up was ‘an area of outstanding natural beauty’ as per the Kerala Coastal Zonal Management Plan of 1995, and was thus classified as CRZ-I (ecologically sensitive areas and other geomorphological features which are important to maintain the integrity of the coasts are classified as CRZ-I) under the 1991 Notification. The NGT however recognised that the 2011 Notification had superseded the 1991 Notification. They thus examined the 2011 Notification, and observed that the categories of classification as referred to by the appellants had been specifically excluded from the 2011 Notification. The appeal was thus dismissed. The NGT however recognised the importance of strict compliance to the EC and CRZ Clearances and an expert committee was set up to guarantee that the project proponents ensure compliance.

The nature and extent of permissible activities within the No Development Zone

The scheme of the CRZ Notification is such that it demarcates the area upto 500 metres from the coast into four distinct zones. Of these, in CRZ III (areas which have not been substantially built up, are relatively undisturbed and do not fall under CRZ-I or II, are earmarked as CRZ-III), the area of 200 metres from the High Tide Line on the landward side is the No Development Zone (NDZ) (Clause 8 (III) (A) of the CRZ Notification of 2011). The third set of disputes is related to activities in the NDZ where only repairs and reconstructions of existing structures are usually permitted. Further, it is stated that the repairs and reconstructions must not exceed the authorised floor space index, plinth area and density (Clause 8 (III) (A) (ii) of the CRZ Notification of 2011). For traditional coastal communities, however, the construction and reconstruction of dwelling units is permitted between 100 and 200 metres of the NDZ (Clause 8 (III) (A)(ii) of the CRZ Notification of 2011).

In the cases of Kashiram Jairam Setye v. Anil Hoble (2015 SCC OnLine NGT 117) and Marie Christine Perdriau v. Goa Coastal Zonal Management Authority and Others (2015 SCC OnLine NGT 23), the legality of certain structures constructed within the NDZ were challenged before the NGT. In Kashiram’s case, the initial permission granted for the purposes of the re-roofing and re-tiling was instead used to carry out expansions and set up a bar and restaurant. The bar and restaurant were in turn polluting a nearby river by way of sewage discharge. In Marie Christine’s case, the GCZMA had granted permissions to repair and renovate a particular structure in the NDZ area. The case of the applicants was that the structure did not exist before 1991 and that the permission was being misused by one of the respondents to set up a resort. In both these cases, the NGT was of the opinion that the constructions were in violation of the CRZ Notification since they had been set up for commercial purposes, which is not permissible in the NDZ.

Conclusion

The three kinds of disputes point out that:

  • The NGT has recognised that the CRZ Notification empowers the SCZMAs to regulate the nature and extent of permissible activities within the CRZ. To that effect, it has ensured that the authority bestowed upon the SCZMAs is not replaced by any other authority.
  • While the NGT has not restricted or reversed large-scale land use change within the CRZ, it has emphasised that the projects must adhere strictly to compliance norms and not affect the livelihood rights of coastal communities.
  • The NGT has also made it clear that heavy penalties can stem from non-compliance of conditions and safeguards specified in the clearance conditions.
  • With respect to permissible construction activities within the NDZ of the CRZ III, the NGT has not allowed constructions for commercial purposes.

The previous pieces in this series can be accessed below:

To learn more about the National Green Tribunal, read this piece by Shibani Ghosh, here.

The views shared belong to individual faculty and researchers and do not represent an institutional stance on the issue.