TEAM CODE: TC01

TAMIL NADU DR.AMBEDKAR LAW UNIVERSITY,SCHOOL OF EXCELLENCE IN

LAW,CHENNAI

BEFORE

HON’BLE NATIONAL GREEN TRIBUNAL,OTTERI

APPLICATION NO….. OF 2023

UNDER SECTION 14 OF THE NATIONAL GREEN TRIBUNAL ACT

IN THE MATTER OF

MR.PAKSHI …… APPLICANT

VERSUS

FISHERIES DEPARTMENT,STATE OF PERIYARNADU

AND ORS …………RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

 TABLE OF CONTENT

TABLE OF CONTENT.............................................................................................................2

TABLE OF ABBREVIATION..................................................................................................4

CASES REFERRED…………………………………………………………………………..5

STATEMENT OF JURISDICTION..........................................................................................6

ISSUES FOR CONSIDERATION……………………………………………………………7

ARGUMENTS ADVANCED...................................................................................................8

1.WHETHER THE APPLICATION FILED BY THE APPLICANT UNDER SECTION

14 OF NATIONAL GREEN TRIBUNAL ACT , 2010 IS MAINTAINABLE?

1.1. THAT THE NGT IS COMPETENT TO HEAR THE PRESENT APPLICATION

1.2. THAT THE APPLICANT HAS LOCUS STANDI TO FILE THE APPLICATION

1.3.THAT THE SUBSTANTIAL ISSUE CONCERNING THE ENVIRONMENT HAS

ARISEN

2. WHETHER FISHERIES DEPARTMENT HAS VIOLATED THE LAWS BY

COMMENCING CONSTRUCTION IN ITHUVUMPOCHA ESTUARY?

2.1.WITH REGARD TO EIA NOTIFICATION

2.2.WITH REGARD TO CRZ NOTIFICATION

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 2.3.WITH REGARD TO THE DAMAGE THAT WILL BE CAUSED IF A HARBOUR
IS BUILT WITHOUT A PRIOR PERMISSION

3.WHETHER THE PROJECT OF FISHING HARBOUR IS ENTITLED FOR

CLEARANCE?

3.1.ITHUVUMPOCHU ESTUARY IS AN IMPORTANT BIRD AREA

3.2.IT IS PROTECTED UNDER CRZ1A

3.3.CONSTRUCTION OF HARBOUR IS PROHIBITED ACTIVITY

4.WHETHER THE CONSTRUCTION OF HARBOUR WILL HAVE ANY IMPACT ON

THE KAMARAJ WETLAND?

4.1. THAT THE PROJECT AMPLIFIES EROSION NESTING SITES UNDER IMMENSE
PRESSURE

4.2THAT THE PROJECT IS OF NO BENEFICIARY

PRAYER FOR RELIEF.............................................................................................................23

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 TABLE OF ABBREVIATION

ABBREVIATION FULL FORM

NGT National Green Tribunal

CRZ Coastal Regulatory Zone

EIA Environmental Impact

Assessment

u/a Under article

Sec Section

i.e. That is

SCC Supreme Court Cases

AIR All India Report

Para. Paragraph

Vs. Versus

WPA Wildlife Protection Act

CASES
4|Page
 1. Goa Foundation vs Union of India, WRIT PETITION (CIVIL) No. 435 OF 2012
2. Amit Maru vs Moef Ors, M.A.NO.65/2014
3. Ms. Betty C. Alvares vs. The State of Goa and Ors, APPLICATION NO.63 OF 2012
4. S. Jagannath Vs. Union of India & Ors, [(1997) 2 SCC 87]
5. M. Yuvadeeban Vs. Department of Fisheries & Ors , Appeal No.14 of 2022
6. C.H. Balamohan Vs. Union of India and Ors,OA,No,536/2018

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 STATEMENT OF JURISDICTION

The Applicant in the present case has approached the Hon‟ble National Green Tribunal to
initiate the proceedings under Section 14 of National Green Tribunal Act,2010.The applicant
most humbly and respectfully submits to the same jurisdiction of the Hon‟ble National Green
Tribunal in the present matter.

SECTION 14 OF THE NATIONAL GREEN TRIBUNAL ACT, 2010

Tribunal to settle disputes. –

(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating
to environment (including enforcement of any legal right relating to environment), is involved and
such question arises out of the implementation of the enactments specified in Schedule I.
(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and
settle such disputes and pass order thereon.
(3) No application for adjudication of dispute under this section shall be entertained by the Tribunal
unless it is made within a period of six months from the date on which the cause of action for such
dispute first arose: Provided that the Tribunal may, if it is satisfied that the applicant was prevented
by sufficient cause from filing the application within the said period, allow it to be filed within a
further period not exceeding sixty days.

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 ISSUES FOR CONSIDERATION

ISSUE 1

(I) WHETHER THE APPLICATION FILED BY THE APPLICANT UNDER SECTION

14 OF NATIONAL GREEN TRIBUNAL ACT , 2010 IS MAINTAINABLE

ISSUE 2

(II) WHETHER FISHERIES DEPARTMENT HAS VIOLATED THE LAWS BY

COMMENCING CONSTRUCTION IN ITHUVUMPOCHA ESTUARY?

ISSUE 3

(III) WHETHER THE PROJECT OF FISHING HARBOUR IS ENTITLED FOR

CLEARANCE?

ISSUE 4

(IV) WHETHER THE CONSTRUCTION OF HARBOUR WILL HAVE ANY IMPACT

ON THE KAMARAJ WETLAND?

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 ARGUMENTS ADVANCED

1. THAT THE APPLICATION FILED BY THE APPLICANT UNDER SECTION 14 OF

THE NATIONAL GREEN TRIBUNAL ACT IS MAINTAINABLE.

The NGT was established on October 18, 2010, under the National Green Tribunal Act 2010,
passed by the Central Government. The stated objective of the Central Government was to
provide a specialized forum for the effective and speedy disposal of cases pertaining to
environment protection, and conservation of forests and for seeking compensation for
damages caused to people or property due to violation of environmental laws or conditions
specified while granting permissions. Under Section 14 of the NGT Act, tribunal has power to
entertain all civil cases related to substantial question with regard to the environment.
National Green Tribunal Act even empowers NGT to hear a complaint against government
decisions, policies , or orders passed against or in violation of any seven statutes mentioned in
Schedule 1 of the act, if it has violated the legal right of the applicant related to the
environment or if there is any substantial issue of the environment arising due to such
government orders. Hence , it is submitted that the application filed by the petitioner is
maintainable on the following grounds:1.1 That the NGT is competent to hear the present
application under NGT Act;1.2 That the petitioner, Mr.Pakshi has locus standi to file the
present application;1.3 NGT obliged to hear the present case as it serves as a successful road
to environmental justice;1.4That the substantial issue of environment has arised due to the
announcement made by Fisheries Department , State of Periyarnadu on May 2019.

1.1. THAT THE NGT IS COMPETENT TO HEAR THE PRESENT

APPLICATION FILED BY THE APPLICANT UNDER NGT ACT.

The Constitution of India through its directive principles of state policy (DPSP) mentions that
“it is the duty of the state to protect and improve the environment and to safeguard the forests
and wildlife of the country and bestow upon the citizens the duty to protect the environment”.
In reality the implementation of DPSPs immediately after independence was a difficult task
for the government as there were many other problems that were given priority over the
environment. To overcome the basic problems of poverty, illiteracy, and unemployment and
to provide basic healthcare facilities, environment issues were not given that much
importance. In order to increase the production in the economy more and more industries

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were set up. This has led to the degradation of environment at a large scale in India and the
priority in the last decade had gradually shifted to protection of the environment.

In 2010, the government enacted the National Green Tribunal (NGT) Act which enabled the
creation of a special green tribunal that would handle the cases concerning environmental
issues. The inspiration for this came from Article 21 of the Constitution of India which
guarantees the citizens of India a right to a clean and healthy environment. After the
enactment of the National Green Tribunal Act, 2010, India became the third country in the
world after New Zealand and Australia which has special fast-track courts and quasi-judicial
bodies that deal with environment-related cases.

India pledged to provide administrative and judicial remedies for the victims who have
suffered problems due to different pollutants and other environmental damage. The Supreme
Court of India suggested that there should be environmental courts on regional basis with
professional judges and 2 experts keeping in mind the kind of expertise needed to deal with
such issues.[1] This was emphasized by the Supreme Court as there was a need for speedy
justice for environmental protection and to reduce the burden on the High courts which were
not able to do quick disposal of cases involving environmental issues as they were
overburdened by cases.

The Supreme Court in M. C. Mehta v. Union of India observed that “Environment Court”
must be established for expeditious disposal of environmental cases and reiterated it time and
again. As a sequel to it the National Environment Tribunal Act, 1995 and National
Environment Appellate Authority Act, 19974 were passed by the Indian Parliament. But both
the Act proves non-starter. They could not cut much ice and there was a growing demand that
some legislation must be passed to deal with environmental cases more efficiently and
efficaciously. Ultimately the Indian Parliament Passed The National Green Tribunal Act,
2010 to handle all the cases relating to environmental issues.

It is a statutory tribunal which was enacted by the parliament specially for hearing the matters
concerning to environmental issues. It was a result of long procedure and the demand for such
tribunal started long back in the year 1984 after the Bhopal gas tragedy. Then the Supreme
Court specifically mentioned the need for such tribunals in the case where the gas leaked from
Shriram food and fertilizers limited in Delhi. The Supreme Court than in a number of cases
highlighted the difficulty faced by judges in adjudicating on complex environmental cases and
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 laid emphasis on the need to set up a specialized environmental court. Though the credit for
enacting the NGT Act, 2010 goes to the then Environment Minister Jairam Ramesh, it became
functional only because of repeated directions of the Supreme Court while hearing the Special
Leave Petition titled Union of India v. Vimal Bhai..

There are three important objectives of the National Green Tribunal, they are:

 The speedy and effective disposal of all the cases related to environmental protection and
other natural resources. All the previous pending cases will also be decided by the
Tribunal.

 Its main aim is to legally enforce all the rights relating to the environment.

 It accounts for providing compensation and justice to all the affected people in case of any
damage.

Hence the jurisdiction of this application can be justified through the above objectives,
because the sole reason to establish National Green Tribunal was to hear and provide effective
remedy in cases relating to environmental protection, conservation of forests and other natural
resources and enforcement of any legal right relating to the environment. The Tribunal’s
orders are binding and it has power to grant relief in the form of compensation and damages
to affected persons.

Over the years the National Green Tribunal has emerged as a critical role player in regulating
environmental issues ranging from waste management to deforestation. It helps in reducing
burdens on higher courts as it specifically deals with environmental cases that were decided
by the civil courts earlier.It settles cases with lesser expenses and is less formal and a faster
way of settling cases is also followed by the tribunal.It ensures whether the Environment
Impact Assessment process is strictly observed.

Due to all these factors, people prefer filing application in National Green Tribunal and they
are entitled to justice . And NGT has been a saviour in obtaining a fair judgement as it has
been working towards the strict emphasis of Environment Impact Assessment.

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 The present application is filed under Section 14 of NGT Act , 2010 which empowers NGT to
handle all the civil cases relating to environmental issues and questions that are linked to the
implementation of laws listed in Schedule I of the NATIONAL GREEN TRIBUNAL Act.
These included the following.

1. The Water (Prevention and Control of Pollution) Act, 1947;

2. The Water (Prevention and Control of Pollution ) Cess Act, 1947;

3. The Forest ( Conservation ) Act, 1980;

4. The Air ( Prevention and Control of Pollution) Act, 1981;

5. The Environment (Protection) Act, 1991;

6. The Public Liability Insurance Act, 1991;

7. The Biological Diversity Act, 2002;12

This Act confers on the Tribunal, the jurisdiction over all civil cases where a substantial
question relating to environment (including enforcement of any legal right relating to
environment) is involved and such question arises out of the implementation of the
enactments specified in Schedule I to the Act.Thus , 28 different jurisdictions spread across
Sections 14 , 15 and 16 of the NGT Act can be invoked by a person who falls within the
ambit of Section 18[2] of the act.

We may refer to a recent judgement of the Tribunal in the case of Goa Foundation vs Union
of India 1, where the Bench of the Tribunal discussed the preamble and objectives of the NGT
Act. Referring to the scope of jurisdiction of Tribunal, the Tribunal held as under:

To analyse the rival contentions, we must examine the interpretation and impact of the
relevant provisions and the scheme of the NGT Act.The NGT Act was enacted to provide for
establishment of tribunal for effective ad expeditious disposal of cases related to
environmental protection and conservation of forests and other natural resources including
enforcement of any legal right relating to environment and giving relief and compensation for
damages to persons and property and for matters connected therwith or incidental thereto.The

1
WRIT PETITION (CIVIL) No. 435 OF 2012

11 | P a g e
 very Preamble of this act is the sufficient indicator of the jurisdiction that was to be vested in
the Tribunal.

The issue relating to environmental protection and conservation was one of paramount
pillars . amongst others, of the adjudicatory process by the Tribunal.It was expected to
dispose of the cases relating to above matters expeditiously. This is the first indicator of the
legislative intent which provides that a case could relate to environmental protection ,
conservation of forests and other natural resources or even enforcement of legal rights relating
to the environment and other matters thereto. This jurisdiction of the tribunal and access to the
people stands further expanded by the use of the words for matters connected therewith or
incidental thereto. The legislature in its wisdom has used these two expressions which can
only be construed liberally and to provide greater dimension to the mode of access to a person
claiming redress of his grievances as well as adjudication by Tribunal.

The tribunal must satisfy itself as to the essential and pre–existing facts of the case in relation to
its jurisdiction. Once a person brings his case related to the environment and it arises from the
implementation of 31 of the enactments stated in Schedule 1 of the NGT Act and the application
is filed within the time limit, the Tribunal will have to exercise its jurisdiction and pass
appropriate orders as contemplated under the provisions of the NGT Act.
As can be seen, the Parliament intended to confer wide jurisdiction on the NGT so that it can deal
with the multitude of issues relating to the environment which were being dealt with by the High
Courts under Article 226 of the Constitution or by the Supreme Court under Article 32 of the
Constitution. The Tribunal is also expected to proceed with such matters with the understanding
that environment and environmental principles are part of Article 21 of the Constitution. The
jurisdiction of NGT under Sections 14 and 15 can be invoked by a victim of pollution for the
restoration of environment or for compensation to the victim, and the said issue is not shown in
the instant matter [Muslim Kassar Vikas Sangthan (Reg.) v. Delhi Development Authority].
Hence, it is humbly that the NGT is competent to hear the present application.

1.2. APPLICANT HAS LOCUS STANDI TO FILE THE APPLICATION

Another distinguishing feature of the environmental forum is on the aspect of locus standi which was
made as wide as is available to the High Courts and the Supreme Court. Thus,any party or
organization who may be interested in the subject matter is permitted to approach the NGT. 16.7
The provisions of the NGT Act and the NGT Rules demonstrate that myriad roles are to be
discharged by the NGT, as was encapsulated in the Law Commission Report, the Preamble and
the Statement of Objects and Reasons

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Section 2[j] of NGT Act , states that person includes;

i. An individual
ii. A Hindu undivided family
iii. A company
iv. A firm
v. An association of persons or body of individuals whether incorporated or not
vi. Trustee of a trust
vii. Every artificial juridical person

Section 18 specifies who can move application/appeal before the Tribunal. It includes, among
others, 18(2)(d) “any person aggrieved including any representative body / organization” and the
locus standi is not limited only to the aggrieved party.

Any person may raise an environmental dispute irrespective of his being personally affected due to
the act of the wrong doer/polluter or violator of environmental Law/Norms. The only barrier is
that such a person shall not file the Application with malafide intentions. Secondly, he shall not
be totally alien. In other words, if it is demonstrated that the Applicant is a person interested in
protection of environment, or at least restitution of environment, then prima facie, he has locus
standi to maintain the Application.

We may point out that the expression 'person aggrieved' is used only in context of Section 16 of the
NGT Act, 2010. Obviously, when any Appeal is required to be filed, then it has to be filed by a
'person aggrieved'. But, an Application can be entertained at the behest of any person, who is
interested in protection, restitution or otherwise securing maintenance of environment. In any
case, mere technical approach in such a case will not be appropriate. The person even though he
has a legal grievance pertaining to probable adverse impact on environment, or probable adverse
impact on environment, is entitled to approach the Tribunal, with such an Application, inasmuch
as Section 14 (1) (2) of the NGT Act, 2010 will have to be read along with Section 15 and
Section 20 of the NGT Act, 2010. He/she will come within ambit of Section 2(1) (j) of the NGT
Act.

In 'Goa Foundation & Anr vs Union of India & Ors' (In Misc Application No.49 of 2013,
Application No. 26/2012) decided on July, 18th, 2013, five(5) Members Bench of the Principal
Bench, headed by the Hon'ble Chairperson, it is held that:

"Aggrieved is a person who has suffered a legal grievance, against whom a decision has been
pronounced or who has been refused something. This expression is very generic in its meaning
13 | P a g e
and has to be construed with reference to the provisions of a statute and facts of a given case. It is
not possible to give a meaning or define this expression with exactitude and precision."
In Amit Maru vs Moef Ors 2, it was held “that when there is a sufficient cause of action an
application cannot be dismissed on the grounds of locus standi.”

In Ms. Betty C. Alvares vs. The State of Goa and Ors 3,A complaint regarding various instances
of illegal construction in the Coastal Regulation Zone of Candolim, Goa was made by a personal
of foreign nationality. Her name was Betta Alvarez.And her complaint was challenged on the
grounds of maintainability. The Tribunal in bold terms stated that even assuming that the
Applicant – Betty Alvarez is not a citizen of India, the Application is still maintainable as she had
filed several other writ petitions and contempt applications before she filed the present
application, in which she had asserted that the Respondents had raised some illegal constructions
by way of which they were encroaching the sea beaches along with governmental
properties.Betty by her application sought the demolition of such illegal construction. When
despite finding substance in the complaints of Ms. Betty Alvarez the concerned authorities did
not take the requisite action, the Petitioner approached the High Court.In order to answer the
issue about locus standi, the court impressed on a plain reading of Section 2(j) of the National
Green Tribunal Act, 2010, the very act by which the Tribunal has come into being. Interpreting
this section, the Tribunal found that the word ‘person’ deserves to be construed in a broad sense
to include an individual, whether a national or a person who is not an Indian citizen. The Court
noted that going into the details of Betty’s nationality is not required.The Court laid down in very
bold terms that once it is found that any person can file a proceeding related to the environmental
dispute, Ms. Betty’s application is maintainable without regards to the question of her nationality.
It is well-settled principle that Judgment of a co-ordinate Bench must be duly respected by
another Bench. This basic jurisprudential discipline shall be maintained to follow principle of
'stair desists'. Here the applicant is a Ornithologist , he has a special interest in this case with
respect to the welfare of the birds which would be harmed if the construction of a harbour
happens in the Ithuvumpocha estuary. Hence, it is humbly submitted that the applicant has locus
standi to file the application before National Green Tribunal in the present matter.

1.3.SUBSTANTIAL ISSUE CONCERNING THE ENVIRONMENT HAS ARISEN

There has been lots of opposition and agitation among environmental groups and artisanal fisher
welfare group,since the Government of Nationalisthan issued a grant of 350 crore rupees to 10
states to set up harbour . And it had resulted in application before National Green Tribunal when
the Fisheries Department of State of Periyarnadu commenced the construction of the harbour
without obtaining clearance under Environmental Impact Assessment,2006 and CRZ
Notification,2011. The Tribunal is empowered to hear all civil cases related to substantial
questions with regard to the environment.
The term ‘substantial question relating to environment’ is defined under the act shall include an
instance where:-
(1) There is a direct violation of a specific statutory environmental obligation by a person by
which:-
a. The community at large other than an individual or group of individuals is affected or likely to

2
M.A.NO.65/2014

3
APPLICATION NO.63 OF 2012

14 | P a g e
be affected by the environmental consequences; or
b. the gravity of damage to the environment or property is substantial; or
c. the damage to public health is broadly measurable;
(2) The environmental consequences relate to a specific activity or a point source of pollution.
In the present matter before NGT, the Fisheries Department of State of Periyarnadu has failed to
obtain Environmental Clearance under relevant provisions before commencing the construction
of the harbour , thereby has violated specific statutory environmental obligation through which ,
there has been damage caused to the Bird Sanctuary in Kamraj Wetlands and Olive Ridley
Nesting regions. And has also increased the probability of harbouring pollution which would have
severe negative impacts on the biodiversity and ecological stability of such region. Harbour
operations can cause significant damage to water quality—and subsequently to marine life and
ecosystems, as well as human health. These effects may include bacterial and viral contamination
of commercial fish and shellfish, depletion of oxygen in water, and bioaccumulation of certain
toxins in fish.Major water quality concerns at ports include wastewater and leaking of toxic
substances from ships, stormwater runoff, and dredging.
Nexus between the dispute raised before the Tribunal for determination and the environment has
to be direct. When the framers of law use the expression
'substantial question relating to environment', it clearly conveys the legislative intent of ensuring
that the disputes determinable by the Tribunal have to relate to environment and not allied fields
thereto. In the case of Goa Foundation (supra), the Tribunal clearly held that the disputes arising
for decision or settlement before the Tribunal should arise out
of substantial question relating to environment. The violation must be with regard to environment
and it is not a generic term used by the Legislature enabling the Tribunal to expand its jurisdiction
beyond the true construction of Section 14 of the NGT Act. The character of the proceeding is
clearly not in reference to the relief that the Tribunal could grant, but upon the nature of the right
violated and the appropriate relief which could be claimed.

In the case of Kehar Singh v. State of Haryana, 2013 (1) All India NGT Reporter, Delhi 556,
the Tribunal held as under:

The NGT Act is a specific Act with a specific purpose and object, and therefore, the cause of
action which is specific to other laws or other objects and does not
directly relate to environmental issues would not be 'such dispute' as contemplated under the
provisions of the NGT Act. The dispute must essentially be an environmental dispute and
must relate to either of the Acts stated in Schedule I to the NGT Act and the 'cause of action'
referred to under Sub- section (3) of Section 14 should be the cause of action for 'such
dispute' and not alien or foreign to the substantial question of environment. The cause of
action must have a nexus to such dispute which relates to the issue
of environment/substantial question relating to environment, or any such proceeding, to
trigger the prescribed period of limitation. A cause of action, which in its true spirit and
substance, does not relate to the issue of environment /substantial question relating to
environment arising out of the specified legislations , thus , in law cannot trigger the
prescribed period of limitation under Section 14[3] of the NGT Act.Hence , it is humbly
submitted that the application is maintainable as the substantial question concerning
environment has been raised.
ISSUE 2. WHETHER FISHERIES DEPARTMENT HAS VIOLATED THE LAWS BY
COMMENCING CONSTRUCTION IN ITHUVUMPOCHA ESTUARY?

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It is most humbly submitted that fisheries department has violated the laws by commencing
construction in ithuvumpocha estuary.

Coastal ecosystems, particularly estuaries and their adjacent regions, are dynamic ecosystems and
biologically productive in nature. The survival of marine and coastal fora and fauna is
significantly dependent upon coastal offshore and onshore habitats. Hence, sandy beaches
adjacent to estuary behave as unique and rare wildlife habitats which are subjected to a variety of
changes. Changes in coastal geomorphology and associated coastal processes alter the habitat
behaviour and its importance. Marine turtles, whose lifecycles are intricately linked to both
offshore and onshore coastal habitats, since their survival is dependent on the well-being of these
habitats. Sea turtle nesting beaches around the world are facing major threats due to coastal
erosion that happens due to the tsunami and hurricane is a major threat when any construction
takes place there like harbours.4
The olive ridley turtle is the most abundant of the five species of sea turtles found along the
Karaikal - Nagapatinam coast of India. Further, in the study area migrating olive ridleys are
reported prior to October–November and after the April– May nesting season. 5 The Olive Ridley
turtles, are legally protected under Schedule I of the Wildlife Protection Act, 1972. 6 The species
is listed as vulnerable under IUCN. Which itself is enough to state that the commencing of
construction without prior permission is invalid.

2.1 WITH REGARD TO EIA NOTIFICATION 2006

The Union Ministry of Environment and Forests (MEF), Government of India, under the
Environmental (Protection) Act 1986, disseminated an EIA notification making Environmental
Clearance (EC) mandatory for expansion or modernisation of any activity or for setting up new
projects listed in Schedule 1 of the notification. The notification makes it mandatory for various
projects such as mining, thermal power plants, river valley, infrastructure (road, highway, ports,
harbours and airports) and industries including very small electroplating or foundry units to get

https://www.researchgate.net/publication/358125483_Coastal_erosion_a_threat_to_sea_turtle_nesting_habitat_
east_coast_of_India/link/622b1d96a39db062db934087/download
5
http://environmentclearance.nic.in/DownloadPfdFile.aspx?
FileName=EOPV5QuOyQ2HJ2I5LseW5hryGdz9ifOE1nVD7PXg+EKKhfF5M82Aml/LxE8ouOnHS/
40odflgXowt4buWwNPf7OExpp94iRGemRJwl64L+Y+kaw14P/
YAvwPDV5YsHt1&FilePath=93ZZBm8LWEXfg+HAlQix2fE2t8z/
pgnoBhDlYdZCxzXNvGkdT0PfxJ9apij6yL62ZFKt1dJH0iU9WqhwaUl+neRXWVM2qbBpfVMv1ec/gq0=
6
Wildlife protection act,1972
16 | P a g e
environment clearance, but here the harbour construction started without prior acknowledgement
from the state government.
In the EIA notification 2006 in the schedule 1, they have clearly mentioned the list of projects or
activities requiring prior environmental clearance under which in 7(e) they have mentioned
ports and harbour should have got prior clearance from the EIA, but in this case, they have just
applied for the clearance for which the status is unknown and before receiving the prior consent
the state government has started the construction of harbour in ithuvumpocha estuary.
All new projects or activities listed in the Schedule to the EIA Notification 2006, as applicable
shall require prior environmental clearance.7 In this case it is stated that they only, In January
2020, the fisheries department filed an application seeking environmental clearance under the
EIA (Environment Impact Assessment) Notification, 2006 and CRZ Notification, 2011. 8 And
there is no proof of clearance being granted.

2.2 WITH REGARD TO CRZ NOTIFICATION 2011

The Central Government, with a view to ensure 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, does hereby, declare the coastal stretches of the
country and the water area up to its territorial water limit, excluding the islands of Andaman and
Nicobar and Lakshadweep and the marine areas surrounding these islands up to its territorial
limit, as Coastal Regulation Zone) and restricts the setting up and expansion of any industry,
operations or processes and manufacture or handling or storage or disposal of hazardous
substances as specified in the Hazardous Substances.
In the notification point 3 clearly states the Prohibited activities within CRZ, in which subpoint 7
says that- Port and harbour projects in high eroding stretches of the coast. 9 To note the
Beach/costal area sand is constantly subjected to wind and wave born erosion, which is a natural
process of a healthy costal area. Any permanent structure built in close proximity to the coastal
area is always prone to erosion, and thus any developmental initiative near sand dunes or turtle
nesting beaches should adhere to conservative set back requirements. This set back distance
should be greater at shorelines with more dynamic cycles of erosion and accretion. If property
and lives are threatened by erosion or storms, they should be moved away from the sea if at all
7
https://parivesh.nic.in/writereaddata/ENV/FAQecs.pdf
8
Fact sheet
9
http://www.indiaenvironmentportal.org.in/files/CRZ-Notification-2011.pdf
17 | P a g e
possible; armouring and shelterbelt development, which are expensive and have uncalculated
ecological damages, should be the last priority.10
2.3 WITH RESPECTS TO THE DAMAGE THAT WILL BE CAUSED IF A HARBOUR
IS BUILT WITHOUT A PRIOR PERMISSION.

Harbours are categorised as Red Category, since harbours cause various kinds of air, water and
noise pollution. In this case also a harbour construction has begun on the ithuvumpocha estuary
will definitely deplete the existing biodiversity of the estuary. The guidelines issued by the Union
environment minister in 2011 concerning eco-sensitive zones prohibits the establishment of any
activity causing pollution, discharge of effluent and solid waste in waterbodies or terrestrial area
in an eco-sensitive zone of a protected area11, from which we can clearly get that construction of
harbour without prior clearance is invalid.
Industrial projects located in any of the following notified ecologically fragile/sensitive areas
would require prior environmental clearance irrespective of the type of project: - Religious and
historic places, Archaeological monuments, Scenic areas, Hill resorts, Beach resorts, Coastal
areas rich in mangroves, corals, breeding grounds of specific species, Estuaries, Gulf areas,
Biosphere reserves, National parks and sanctuaries, National lakes and swamps, Seismic zones,
Tribal settlements, Areas of scientific and geological interest, Defence installations, especially
those of security importance and sensitive to pollution, Border areas (international), Airports.
Here the fisheries department has only applied for the clearance and the status of the same is still
unknown but they have started the construction which is illegal.
ISSUE 3: WHETHER THE PROJECT OF FISHING HARBOUR IS ENTITLED FOR
CLEARANCE?
It is most humbly submitted that the project of fishing harbour is not entitled for clearance.
3.1.ITHUVUMPOCHA ESTUARY IS AN IMPORTANT BIRD AREA:
The ecologically sensitive and significant Kamarajar wetlands is not limited to the area declared
as a bird sanctuary and that the Ithuvumpocha estuary is an integral part the wetland ecosystem. 12
Birdlife international and Bombay Natural History Society (BNHS) have declared the entire area
comprising of the Ithuvumpocha Estuary and the Kamarajar lake as an important bird area
(IBA).13 In fact, the BNHS team that declared this area as an Important Bird Area comprised of
the eminent Ornithologist Mr. Asad Rahmani. In fact Islam & Rahmani (2008) recommended that
the Ithuvumpocha Estuary and the Kamarajar lake be declared as Ramsar site. The map prepared
10
https://kslab.weebly.com/uploads/5/7/7/0/57708927/chaudhari_swapnil_casuarina_2009.pdf
11
https://www.newindianexpress.com/cities/chennai/2022/mar/05/ngt-stalls-construction-of-twin-fishing-
harbours-in-kaliveli-estuary-forms-committee-to-study-impact-2426546.html
12
M. Yuvadeeban Vs. Department of Fisheries & Ors , Appeal No.14 of 2022
13
https://drive.google.com/file/d/13IYD67SzEtGqY0bvaDcai9VyE3cs_UQH/view
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under the NWIA encompasses the entire wetland system including the Ithuvumpocha estuary.14
The Ithuvumpocha estuary, the creek and the Kamarajar tank together have been marked as a
“wetland of international importance” by the MoEF & CC and a total area of 7500 Ha has been
marked. In scientific literature, reference to “Kamarajar” does not mean only the lake but the
entire wetland, including the estuary. The Wildlife Institute of India in its report titled “coastal
and marine protected areas in India: Challenges and Way forward” 15 has identified Kamarajar as
“Important coastal and marine Biodiversity areas of Peninsular India”. The map of the area to be
protected at marks the entire system.
Therefore, for proper appreciation of the issues involved in this case, it is important to first
understand that this is a single wetland system that is impacted by any change in hydrology,
pollution etc and its unique biodiversity is extremely vulnerable to increased motorised fishing
traffic, coastal erosion and other impacts that will be caused by the proposed harbours,
breakwater etc.
3.2.IT IS PROTECTED UNDER CRZ 1A:
Estuary is an eco-sensitive zone and it falls under CRZ – IA, where Olive Ridley turtle nesting
sites are located which is also notified by the Government of PeriyarNadu and if that be the case,
this type of activity is not permissible in that area.
Further, it is also situated near the Kamarajar Bird Sanctuary which was declared as a protected
area under the Wildlife (Protection) Act, 1972. The project site is not just an inter-tidal area but a
salt marsh, biologically active mudflat protected under CRZ 1A. 16 Further if there is a Turtle
nesting ground in any area, such area is ecologically sensitive and plays a role in maintaining the
integrity of the coast and classified as CRZ-I under paragraph 7 of the CRZ Notification, 2011. 17
In the said area, Olive Ridley Sea Turtles lay eggs during every nesting season. Once it is
classified as CRZ-I, no construction activities are permitted as provided in para 3 (xii) under
CRZ-I of CRZ Notification, 2011. Therefore, it is a totally prohibited activity. 18 Violation of the
CRZ Notification, will have great impact on coastal environment as has been observed by the
Hon'ble Apex Court in S. Jagannath Vs. Union of India & Ors.19
Harbours are categorised as Red Category, since harbours cause various kinds of air, water and
noise pollution. The guidelines issued by the Union environment minister in 2011 concerning
eco-sensitive zones prohibits the establishment of any activity causing pollution, discharge of
14
Annexure 1
15
https://wii.gov.in/images/images/documents/GIZ/Reference.pdf

16
M. Yuvadeeban Vs. Department of Fisheries & Ors , Appeal No.14 of 2022
17
CRZ Notification, 2011
18
S. Venkatesh v. Corporation of Chennai, 139/2015
19
[(1997) 2 SCC 87]
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effluent and solid waste in waterbodies or terrestrial area in an eco-sensitive zone of a protected
area.
The subject locations chosen for the fishing harbours are extremely bio diverse and ecologically
sensitive and important areas. The site selection is without consideration of these factors and
based on the government’s decision to locate harbours at these sites even prior to impact
assessment or the other necessary studies is ought to precede such decision making. The fisheries
department can construct harbours at legally, ecologically permissible and environmentally
benign locations in accordance with the law but cannot claim a vested right to locate harbours at
the present locations.
The governing principle today is the principle of eco-centrism and is essential that the area be
preserved as it is and form any anthropogenic pressures. It is a matter of grave concern that North
PeriyarNadu is significantly climate vulnerable and there is an urgent need to protect its beaches
and coastal wetlands which are critical climate buffer.
There are very few areas like the Kamarajar wetland complex which supports biodiversity of this
magnitude and performs such significant ecological functions. The wealth of this ecosystem lies
in protecting it and ensuring its conservation and not its exploitation for construction of harbours.
Harbours can be constructed at other locations but the biodiversity of the region cannot be
replicated elsewhere. It is of utmost importance to protect and preserve such biodiversity
hotspots.
It is an Important Bird Area (IBA), identified by the International Union for Conservation of
Nature (IUCN) and the National Wetland Conservation and Management Programme. So,
building a harbour inside this region is nothing but a call for disaster.20
The appellant further contended that
3.3.CONSTRUCTION OF HARBOUR IS PROHIBITED ACTIVITY:

Restrictions on activities within wetlands. -

(1) The following activities within the wetlands shall be prohibited, namely:-
(i) reclamation of wetlands;
(vi) any construction of a permanent nature except for boat jetties within fifty metres from the
mean high flood level observed in the past ten years calculated from the date of commencement
of these rules.
Construction of a harbour or reclamation of a wetland are prohibited activities. 21 The
construction of a “boat jetty” is a permitted activity under the Wetland Rules but the subject
20
Priya Davidar, Indian scientific researcher, conservation biologist, scholar, and author.
21
Rule 4 of the Wetland Rules
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project is not a construction of a “boat jetty” but that of a harbour.
The district where the harbour is to be constructed is largely artisanal and has only 10 registered
trawlers, which are berthed at harbours in adjacent districts, and as such there was no need for the
harbour.22 The demand for a fishing harbour is mainly for large mechanised fishing vessels or
trawlers and the respondent are attempting to hide behind artisanal fishermen to push through the
subject fishing harbours, for which no need exists in the these districts at present.
4. WHETHER ESTABLISHMENT OF THE PROJECT WILL HAVE ANY IMPACT ON
THE KAMARAJAR WETLAND?
4.1 PROJECT AMPLIFIES EROSION NESTING SITES UNDER IMMENSE
PRESSURE:
The subject coastline of the estuary is an eroding coastline of more than 1 meter a year. 23 It is
submitted that the erosion caused by hard structures on the coast and its devastating impact has
been dealt with in detail by this Hon’ble Tribunal in Application No. 4 of 2013, judgment dated
11.04.2022.24Google earth imagery of the Poompuhar fishing harbour of the years 2011,2014
(before the harbour) and 2015 (harbour comes into existence) and 2021 will demonstrate the
extent of serious erosion that will be triggered by such hard structures that interfere with the
littoral drift.25
Once the big fishing vessels are allowed to dock inside the backwaters and begin operations, there
will be oil spills and discharge of effluents into the waterbody, which would hamper the
productivity of nutrient-rich waters.
The beaches and coastline associated with the area are already notified nesting sites of the
vulnerable olive Ridley turtles. All these nesting sites are under immense pressure due to the
construction of the harbour.
The project also requires dredging and dumping rubble on existing mudflats for construction,
which would disrupt a large part of the ecosystem. Mudflats thrive when wave action is low and
nutrients are thus easily absorbed and cycled rather than washed away downstream. They provide
niches for countless organisms such as girdled horn snails and lug worms. Attracted by this buffet
of invertebrates, over 160 species of waders and waterfowl call this estuary home, making it an
important wintering site for several weary, globally-threatened avian travellers. Dredging the
sandbar and adding training walls will obliterate this region’s only line of defence against strong
ocean currents, and this could drastically reduce its productivity. Ditto for seagrass ecosystems,
which act as nurseries for marine fauna.

22
Moot proposition para 6
23
Moot proposition, para 10
24
C.H. Balamohan Vs. Union of India and Ors.
25
Annexure
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4.2 PROJECT IS OF NO BENEFICIARY
Aside from the damning ecological consequences, the project also leaves a large proportion of
indigenous fisherfolk in peril. The harbour is to be constructed is largely artisanal and has only 10
registered trawlers, which are berthed at harbours in adjacent districts, and as such there was no
need for the harbour.26 The fishing community is not limited to the higher caste deep sea faring
trawl fishermen. Artisanal fishermen with small boats and inland fisherfolk who depend on the
estuary, will not benefit from these fishing harbours and local fishing livelihoods will be
impacted.
Further inland are over 60 villages of people primarily from marginalised backgrounds, who
desperately rely on the mudflats for traditional oyster and crab farming. Dredging the mudflats
will hurt their livelihoods, yet their voices remain unheard, drowned out by the few fishing
villages close to the harbours who might benefit from the project.27
Getting entangled in fishing nets, propeller hits are the major causes for turtle mortality. Increased
fishing traffic, especially large motorised fishing vessels will lead to increased turtle mortality. 28
Increase in traffic will spell death knell for turtles that come ashore to nest and migrate along this
coast.
Eco-sensitivity of a coastal landscape includes impact on marine fauna,especially on marine
megafauna like whales and dolphins which are globally threatened and are all schedule 1 species.
They are also protected by international laws such as the Convention on Migratory species. The
waters near Kamarajar estuary are a cetacean29 (whales and dolphins).
Harbours can be constructed elsewhere, but wetland complexes like the Kamarajar, which is the
second largest in Periyarnadu after Pulicat, need to be protected and preserved from further
anthropocentric pressures. Wetlands are fast disappearing and along with it, habitats for birds and
association flora and fauna. There is an urgent need to adopt an eco-centric approach and protect
these fragile, ecologically significant and biodiverse areas from destruction.

26
Moot proposition, para 6
27
Annexure
28
M. Yuvadeeban Vs. Department of Fisheries & Ors , Appeal No.14 of 2022
29
Moot proposition, Para 2
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 PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT
THIS HON‟BLE COURT MAY BE PLEASED TO ADJUDGE AND DECLARE THAT:

 The application filed by the applicant is maintainable.

 The Fisheries Department of State of Periyarnadu has violated many provisions by

commencing the construction of harbour in Ithuvumpocha estuary.

 The project of fishing harbour is not entitled for clearance.

 The construction of harbour will have many sever effects on Kamaraj wetland

AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT IT MAY

DEEM FIT IN THE INTERESTOF JUSTICE, FAIRNESS, EQUITY AND GOOD
CONSCIENCE

FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY BOUND

SHALL FOREVER PRAY.

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