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How a CRZ violation is leading to a small revolution in Karnataka

Baad, a village near my village of Kagal in coastal Karnataka, hosts a fair every year at the Shri Kanchika Parameshwari temple. As children, the joy of going to this fair was unparalleled. During the fair, the yakshagana, a folk dance, used to take place in a big field near the temple. Instead of paying to watch this dance, my friends and I used to play a game of dappanduppi with mud stones. These memories remain as fond connections to our childhood.

In 2008, while I was completing the final year of my BA studies, I came to hear that this field had been sold and that a big resort would come up there. Many questions about why the owners would want to sell such a prosperous field, where farmers would grow rice and peanuts during the monsoons and vegetables during the summer months, plagued me.

satellite image of Nayak Hospitalities
Satellite image of the Nayak Hospitalities compound

Nayak Hospitalities (“NH”) was the buyer and as a result of the purchase, farmers’ fields, some public wells, and even a cremation yard, was acquired. Public access to a beach was also blocked. The loss of the wells affected the supply of drinking water to three villages – Baad, Jeshtapura, and Gudeangadi. After NH built a wall of about 15 to 20 metres height around the occupied land, fresh breeze from sea stopped blowing into the village. The villagers, who were also worried about the dangers posed by the crumbling of the wall during the rainy season, complained to the panchayat on two occasions and asked for the height of the compound wall to be reduced, but the panchayat did not take any action.

As an Enviro-Legal Coordinator with the Centre for Policy Research (CPR)-Namati Environmental Justice Program, my job is to inform people about the law, and work with them to solve the various environment-related problems they face. I had helped conduct training programmes on awareness of the Coastal Regulation Zone Notification, 2011 (“CRZ Notification”) in Baad and surrounding areas. This led to discussions about the violations caused by NH and a decision to work together in collecting information, evidence, and pursuing remedies with the local authorities. Collection of information is central to the way we try to resolve problems. That way, if a similar problem arose in the district, a solution based on this case could be used.

Collection of information

The project had obtained clearance from the Ministry of Environment, Forests and Climate Change in December, 2010. Under this letter, permission had been granted to construct the resort on survey numbers 4 to 9, 11 to 13, 17, 19 to 21, 23, and 26 of Baad and survey numbers 14, 16, 18, and 19 of Gudeangadi. It also contained 12 specific conditions and 14 general ones but we observed that many of them had not been complied with.

Nayak Hospitalities compound area
Nayak Hospitalities compound area
  1. Construction on land in excess of permission given: The project had permission to construct on 5.26 ha, but ended up constructing on 9.67 ha. The land includes public property such as government wells, a cremation yard, a temple’s field, and also access to the beach.
  2. Construction in No Development Zone: Under the CRZ Notification, no new construction is allowed in the zone known as CRZ-III. However, the compound wall has been constructed in the 0-200m No Development Zone of CRZ-III.
  3. Access restricted: The lack of access to the three government wells located on NH’s property is leading to shortage of drinking water for the villagers living in the area.
  4. Non-permissible installation: The installation of a pumpset in the NDZ of CRZ-III is not a permissible activity. However, pumpsets have been installed on the NH site. This has reduced ground water in the region.

Advocating with authorities

I discussed strategy with the villagers and identified the relevant authorities. A letter was sent to the Regional Director (“RD”) of the Karnataka Coastal Zone Management Authority (KCZMA) office at Karwar. After a site inspection, the RD noted some violations and sent a report to the KCZMA and a notice to the proprietors of NH.

site inspection by regional director envrionment
Site inspection by Regional Director

Since no relief followed, the villagers and I decided to send letters to all relevant authorities including the District Commissioner (“DC”), Executive Officer (“EO”), and the Panchayat Development Officer (“PDO”). Site inspections were carried out and once again, notices were issued against NH. Upon request by the villagers, the panchayat on five separate occasions, gave notice to NH to reduce the height of the compound wall. This too had no effect. Finally, an order by the DC led to a reduction of the height of the wall from 15-20 meters to 6 feet. This was a small victory after two years of hard work.

Not a small victory

The victory was not absolute since the villagers still did not have access to the common land and the government wells. We used provisions in the Karnataka Land Reform Act, 1961, Panchayati Raj Act, 1993, and the Environmental Protection Act, 1986 and wrote letters to the DC, the EO, and the PDO. If any action had been taken pursuant to these letters perhaps a solution might have had been possible. The letters get transferred from one government department to another and my job then becomes to trace the status of the compliant. This is a waste of time, money, and energy.

The NH project is still inconvenient for the villagers in Baad and Gudeangadi and though their problems are not yet fully resolved, there is still hope. Through these two years, there has been immense support from the villagers of Baad and Gudeangad in working together to resolve the problems that they face. They now also have a pretty good understanding of the law and are in a position to seek remedies to their problems in the legal system. By working to get justice in this case, the villagers have also become more aware about the importance of the environment and common resources. This manner of legal empowerment has also helped them solve other small CRZ violations.

vinod photo

Vinod Patgar is an Enviro-Legal Co-ordinator with the Centre for Policy Research – Namati Environmental Justice Program.

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Litigation Specialised

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A railway line through a forest belt – environmental impact assessments and forest rights

CommunitiesAndLegalAction_KanchiKohliSarita tai was worried about the construction of a railway line between the iron ore mine and the railhead located 30 kilometres from the village she worked at. At least 15 kilometres of this railway line would cut through an important part of the central forest belt. She called me with many questions: What was the process for taking permissions for using forestland for railway lines? Had this process been completed? What was the role of the gram sabha? What if the forest rights of people had not been fully recognised yet?

Some of these answers came easy but the others required the study of some recent circulars and directions of the environment ministry, the tribal affairs ministry, and the National Green Tribunal (“NGT”).

EIAs for railway lines

Surprising as it may seem, the railway line and its related infrastructure are not in the list of projects that need to go through the procedure laid out in the EIA Notification, 2006 issued under the Environment Protection Act, 1986. We have long tried to find the logic behind it, but without success. Railway projects simply do not require an environment impact assessment and a public consultation for an environmental clearance.

If the railway line is separated from the other components of the project like it was in the case of the mine that Sarita tai was worried about, it could easily avoid the environment impact assessment process. The mine had been up and running for the last year and the proposal for the railway line was only mooted much after the environment clearance was procured for the mine.

Forest diversion and the felling of trees

All non-forest use requires the user agency to seek prior approval under the Forest Conservation Act, 1980. There is a detailed procedure under Section 2, which remains away from public eye and only within negotiations between forest department officials; the Ministry of Environment, Forests and Climate Change (“MoEFCC”); and the user agency.

Until recently, no activity related to a project could be carried out for any non-forest use until the entire procedure, which includes a two-stage approval by the MoEFCC and an order by the government of the state where the forest is located, was completed. Felling trees would be illegal without it.

But during the last year, the MoEFCC has allowed the felling of trees to be carried out after a project receives “Stage 1 approval”, that is, the approval of the MoEFCC. This approval often contains conditions including additional studies related to hydrology, impact on wildlife, identification of compensatory afforestation land and others that have a bearing on whether the forest diversion should be approved or not. But in the case of linear projects such as railways, highways or transmission lines, the MoEFCC has attempted to be create a “simplified procedure.”

In a set of guidelines issued on May 7, 2015 and subsequently updated on August 28, 2015, the ministry said that to allow for the speedy execution of these projects, the in-principle approval will be enough to allow for both tree cutting and commencement of work if all “compensatory levies” and a wildlife conservation plan are ready.

Sarita tai was livid. The last time she had seen an in-principle approval, it listed 27 important conditions including that of redoing some important assessments. What is the point going through the remaining procedure for this project if the work can commence and trees can be cut, she asked. It defeats the entire purpose of any safeguards or conditions levied.

train_jungleI agreed and told her that these guidelines had been challenged before the NGT. In January 2015, the NGT first restrained the felling of trees after Stage 1 approval, but subsequently reviewed the order in the light of an affidavit submitted by the MoEFCC. In its direction, the NGT concluded that the while tree felling and commencement of work might be allowed for linear projects it would be treated as an order under Section 2 of the FCA and therefore can be challenged before the NGT. This is important to understand because the NGT had previously ordered that only those orders issued finally by state governments activating forest diversions could be brought before it. Till then no commencement of work or tree felling could be allowed.

The MoEF’s May 7 and August 28, 2015 guidelines lay down that while the “simplified” procedure for the speedy execution of linear projects remains in place an “aggrieved person” now has the option to approach the NGT with an appeal against this order.

Forest rights and linear projects

I knew that Sarita tai would also ask about the recognition of the rights of forest dwelling communities who have historically either lived or used the forest that is sought to be diverted. The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 mandates the recognition of individual and community forest rights of tribal and other forest dwelling communities.

On August 3, 2009, the MoEFCC issued an important circular, which, among other things, clarified that no diversion of forest land for non-forest use would take effect unless the process of recognition of rights had been completed. It also said that the consent of the gram sabhas would be required before the diversion process can be given effect. This has also been re-iterated and confirmed by the Ministry of Tribal Affairs (“MoTA”), which oversees the implementation of the FRA.

In the villages that Savita tai was working in, several of the community forest rights claims were still pending final approval and the grant of individual rights had been contentious as people had only received rights over a part of the forest land that had been claimed. In their view, their rights over the forests were yet to be recognised. So the first question that came to our mind was whether the forest diversion and tree cutting could have come into affect if the recognition of rights was pending. The gram sabha (village assembly) had confirmed that their consent had not been sought.

This issue had been a bone of contention between the MoTA and the MoEFCC since 2013. While the MoEFCC had claimed through their February 5, 2013 circular that the requirement of the gram sabha consent could be dispensed for linear projects, the MoTA, the nodal ministry, said that the MoEFCC had no authority to make such an interpretation. All projects, linear or non-linear, had to be treated equally regarding forest diversions and consent provisions.

These different interpretations continue to operate and the MoEFCC has been approving proposals for forest diversion and allowing for tree felling for linear projects, interpreting that a gram sabha nod was not required, especially in cases where there has been an assurance from the state government that either the rights under FRA have been recognised or are in the process of being so.

A worrying scenario

Thus, with no requirement of EIAs once a railway line is segregated from other aspects of a project; tree felling permitted after in-principle approvals; and tentative interpretations for gram sabha consent; the situation did not seem very encouraging to Sarita tai and the affected people that she was working with. They could however, still petition the concerned ministries. No doubt, the fate of the project and the forest dependent people could still lie in bureaucratic interpretations and the application of mind by expert committees.

With no court action on the anvil immediately and the affected communities clearly aligned to question both the FCA guidelines and the dilution of the consent provisions; its anyone’s guess whether the railway line will be built or not. But it once again raises questions about why any project, which has a far-reaching impact on forests, wildlife, and people, should be granted exemptions from basic environmental scrutiny and  stringent safeguards. Meanwhile, people like Sarita tai have to grapple with many interpretations of the law on a case-by-case basis.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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How we used the law to reclaim the inter-tidal area at Bavdi Bander

VimalKalavadiya_CPRNamatiThe Kutch district in Gujarat, one of the largest in India, has a coastline of 405 kilometers and inter-tidal area of about 200 kilometers. For generations, communities in the district have engaged in agriculture, pottery, animal husbandry, weaving, fishing, and salt production. The last two occupations directly depend on the sea and the shoreline and have always co-existed in designated parts of the inter-tidal belt.

In recent years however, commercial expansion, especially of salt production, has contested for the space otherwise occupied by small and artisanal fisherfolk. The “bunding” and “drawl” of water for large saltpans has also had an impact on the livelihoods of fisherfolk who seasonally cultivate prawns.

Conflict at the fishing harbour

One such instance came to light in the case of Bavdi bander, a fishing harbour in the Mundra block of the district. Neelkanth, a large salt production company, procured a lease for salt production on the bander. It then started to bund, by reclaiming the sea using stones and soil, more than one kilometer of the inter-tidal area to create saltpans to divert and collect seawater for the production of salt.

Exactly where Neelkanth had carried this out, a fishing community would spend 7 to 8 months every year, fishing with small boats or on foot (known as pagadiya fishing). They used the tidal area for parking their boats but once the bund was built, they had to keep their boats far in to the sea and further away from the coast line and so faced difficulties in the transfer of the fish catch from the boats on to the harbour where it would be sorted and dried before being sold. This was not all. The construction of the bunds also destroyed approximately 20 hectares of mangroves.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

Fishing boats parked in the inter-tidal area at Bavdi Bander. Photograph courtesy Kanchi Kohli.

The biggest revelation of all unfortunately, came to light only after the impact of bunding had already played out. Neelkanth did not have the clearance required under the Coastal Regulation Zone (CRZ) Notification, 2011.

It came to light by accident. On January 22, 2013, a committee constituted by the Ministry of Environment and Forest was visiting the area. Set up on September 14, 2012 to review the violations of the Adani Port and the Special Economic Zone located 45 kilometres away from the Bavdi bander, its members also decided to visit the bander to investigate claims about compensatory mangrove plantations in the area. Representatives of the Gujarat Coastal Zone Management Authority (GCZMA), local fish traders, and representatives of the Machimar Adhikar Sangharsh Samiti (a fishing union of the area) also accompanied the committee members.

They saw the large bunds that had been built into the sea. The people living at Bavdi bander complained that the bunding created obstacles to the natural flow of the sea water during periods of high and low tide. They also aired their difficulties related to the parking of their boats and how all this was severely affecting their livelihood. On the committee’s recommendations, the Principal Secretary of the Department of Environment of Forests in the Government of Gujarat issued a show cause notice on February 27, 2013. But the action ended there and the bunding continued unabated.

A different kind of salt satyagraha

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

On the left, a view of the bund built on the inter-tidal area. Photograph courtesy Kanchi Kohli. On the right, a view from the bund showing mangroves and the temporary settlements of fisherfolk. Photograph courtesy Bharat Patel.

In need of a remedy, some fisherfolk from the area approached the High Court of Gujarat. It took several hearings and over 18 months for a final judgment to emerge from the Court only on August 27, 2015. The District Collector had told the Court on April 10 that the lease for the salt pan had not been renewed. If any bunding activity did happen therefore, the District Collector could take action.

While the case was pending in court, there were some developments at the harbour and Neelkanth had continued its activities unabated. Some time in late 2014, the people of Bavdi, not clear about how the case would proceed, approached the Centre for Policy Research-Namati Environment Justice Program, which had been working in Kutch to understand the impact on livelihood caused by problems related to non-compliance with the law in coastal areas.

Bharat Patel and I work with the programme and we realised that the people of Bavdi knew that even though an illegality had occurred, which was affecting their livelihood, they had not received a remedy. While recording the nature of the problem, we also came to know that the owner of the Neelkanth salt company was trying to secure another permission on the same land, this time in the name of one of his relatives.

With some help from us, they came to know from the website of the Gujarat Costal Zone Management Authority (“GCZMA”) that this was indeed the case. The minutes of a GCZMA meeting held on April 10 this year record that Neelkanth had applied for CRZ clearance in the name of Vasta Govind Chavda. This was for the same area where the bunding had been done, for which the show cause had been issued and a court case was pending.

From the minutes, the fisherfolk realised that the GCZMA had asked the proponents to submit a revised application so that their CRZ clearance can proceed. We saw this as an opportunity and decided to petition the GCZMA to not grant this approval because an illegality had already occurred and because the matter was pending before the Gujarat High Court.

Before they submitted the application to the authority, they discussed the importance of backing their claim with evidence. They had to prove that the place for which CRZ clearance was being sought already had an illegal salt pan and that the matter was sub judice. They relied on Google Maps to plot the area, backed it up with photographs, and also copies of notices that had already been issued to Neelkanth. Only when they had this in hand did the representatives of the affected community draft a letter to the GCZMA demanding that approval be denied. It also explained the relation between Neelkanth and Vatsa Govind. This letter was sent to the Chairman and members of the GCZMA on April 8.

At its very next meeting, on May 15, the GCZMA took a decision that favoured the fishing community. Vatsa Govind’s proposal was rejected because the area in question was rich in biodiversity with dense mangrove patches and sand dunes. The company therefore, had to submit a fresh application for a CRZ clearance for a different area.

Meanwhile, the sea has reclaimed the bund that was created illegally. With the saltpan lying vacant, the tidal water has gradually brought back the boats, the fish catch, and the spirit of the people.

Vimal Kalavadiya works with the CPR-Namati Environment Justice Program. This article has been written with inputs from Bharat Patel who is also associated with the programme.

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Litigation Specialised

After the de-allocations – What happens to the clearances given to coal blocks, now up for auction again?

ItCommunitiesAndLegalAction_KanchiKohli made news last year when the Supreme Court of India “de-allocated” 214 coal blocks. The process of the allocation, the Court held, was illegal and arbitrary. Not all of them were operational, but where they were, the owners had to stop operations. While 42 of them got a six-month reprieve and four were “saved”, the remainder had to halt any mining operations with immediate effect.

All but 4 of the de-allocated ones have, as on April 1, 2015, entered into a process of auctions where either the current lease holders or someone else could emerge the highest bidder. Following the passing of the Coal Mines (Special Provisions) Act, 2015 in March 2015, the Ministry of Coal had published the details of the auction process. All these coal blocks may soon have new owners.

Given the changed circumstances, there is doubt among communities and activists about what is likely to happen next and how they should prepare for it. For example, for those who had prepared a legal challenge on environmental irregularities, where do remedies now lie? How should they prepare? To the affected communities, the impacts, unresolved illegalities, and the environmental and social liabilities of the coal blocks that are up for auction remain just as relevant.

Questions asked about clearances to coal blocks

Many of these coal blocks, whether or not they had started operations, had received “clearances” from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) after completing the necessary procedures. These approvals were challenged in courts, on the streets, and through petitions before the executive. For instance, when the Supreme Court delivered its judgment, a challenge to the forest clearance granted to the Mahan coal block in Madhya Pradesh was pending before the National Green Tribunal.

Similarly, the public hearing of the Parsa coal block in Chhattisgarh had been completed in the face of stiff opposition. Questions had also been raised about whether due process had been followed for impact assessment and public hearings. The NGT had quashed the approval for forest diversion given to the the neighbouring coal bloc in Parsa East Kanta Besan and had sent the matter back to the MoEFCC for re-examination. The stay on the mining and transportation of the already dug up area was lifted by the Supreme Court soon after.

The affected villagers and campaign groups had also pointed out that the presence of an elephant habitat near the mining site was not disclosed and that the mandatory site inspection was done in a casual manner. Questions were also raised about the circumstances under which the environment ministry had, under directions from the empowered group of ministers, approved the project.

What happens to the matters before the Green Tribunal?

Mahan and a few other coal blocks, whose environment or forest diversion approvals had been challenged before the National Green Tribunal (“NGT”), were included in the Supreme Court’s de-allocation list. What did this mean? Did the appeals become infructuous? The NGT on September 26, 2014, while hearing the two cases filed against the Mahan coal block (Appeal No.18 of 2014 and Appeal No.34 of 2014) and also the PEKB coal block, held “the cause of action raised by the Appellant does not subsist any longer.” They also held that that the rights and contentions in relation to the “forest clearance” would be transferred to the third party who would get the coal block.

While dismissing another case challenging the environment clearance given to a BALCO coal block (Appeal No. 46 of 2012), on October 9, 2014, the NGT upheld the right of appeal in accordance with law. This meant that if the environmental clearance is transferred to another allottee, it does not take away the right of a legal challenge both on procedural lacunae and on the merits of assessment. This is yet to be tested before the tribunal but the order is in place.

MoEFCC Clarification

Both the EIA Notification and the process laid out under the Forest Conservation Act, 1980 for forest diversion allow for transferring the approval to another project authority, during the course of assessment or even after approvals are granted. For instance Section 11 of the EIA notification says, A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written “no objection” by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases.”

On March 23, 2015, there was an additional clarification to Section 11 of EIA notification through an amendment. This allowed for the transfer of environment clearance on the terms above, in case “an allocation of coal block is cancelled in any legal proceeding; or by the Government in accordance with law”.

As on date, the environment clearances of 29 coal blocks have been transferred. Some of these are for approvals granted as far back as in 2000. The approval for  the captive underground coalmine village of Milupara Kondkel in Raigarh, Chhattisgarh is one such. It now stands transferred from Monnet Ispat to Hindalco. The most recently granted environmental approval that has been transferred is for the Ganeshpur Opencase mine in Latehar in Jharkhand. Here, the transfer is from Tata Steel to GMR Chhatisgarh Energy Ltd. Tata Steel had received the approval in January 2014, about seven months before the Supreme Court ruling.

For any affected community and for any of us working on the environment or the social and environmental impacts of coal blocks, this is an important space to watch. Many coal blocks where approvals are pending or where mining operations have not been initiated, are not yet on the radar of re-allocations and other revised regulatory approvals. A lot is likely to be tested in and outside of courts where communities and community-based organisations are involved in legal action.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.