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Judgment
In this Appeal the Appellants have challenged the Environmental Clearance dated 28.07.2017 granted to M/s Competent Automobiles Pvt. Ltd. by the Ministry of Environment & Climate Change (MoEF & CC), to establish a hotel on the land bearing survey Numbers 130/1 to 130/5, 130/7, 131/1, 132/2, 136/1 (Part 1), 137/3 (Part) and 129/1 and measuring 78506.80 sq. mt. of Arrossim Village, South Goa District.
It has been alleged that no cumulative impact study was done as there are number of guest houses & hotels nearby and one under construction by the name Goa Inn. And due to large number of hotels there is severe problem of water logging in the area.
Appellants have stated that there has been misrepresentation regarding existence of sand dunes. It has further been alleged that there have also been misrepresentation regarding existing road as existence of 10 mt. wide road has been stated in the EIA report whereas width of road does not exceed 4.5 mt.
Appellants have alleged that there has been misrepresentation of facts in Form I and IA so much so that site was shown in Karnataka which is about 200 km. away and existence of 6 water bodies and two storm water drains were not disclosed. Appellants have stated that EIA for the project has been conducted on the basis of irrelevant considerations.
Following prayers have been made:-
(a) That by order of this Hon'ble Tribunal, the Tribunal may be pleased to quash and set aside the Impugned Clearance dated 28.07.2017 granted by the Respondent No. 4 to the Respondent No. 1 to establish their hotel project at the proposed site.
(b) That pending the hearing and disposal of this appeal, this Hon'ble Tribunal may be pleased to stay the effect and operation of the Impugned Clearance dated 28.07.2017 and further to restrain any and/or all the Respondents, their officials, officers, employees, attorneys, agents and generally any person acting through them, for them and/or under their instructions, authorization and/or orders, from undertaking any acts and/or doing anything in and/or in relation to the said properties, including grant of any permissions, approvals, N.O.C's, clearances and/or licenses and/or commencing any activity in the said properties on the basis of the Impugned Clearance dated 28.07.2017.
It has been brought to our notice that SLP (Civil) No. 6229 of 2007 and 5400 of 2007 were filed before the Hon'ble Supreme Court of India and by its order dated 19.11.2007, the Hon'ble Supreme Court had directed GCZMA to file a report in respect of the plot owned by the Petitioner; its proposal to construct a hotel and the environmental impact it will have if the plot is used for such project. Accordingly, site was inspected by the GCZMA. The report filed by the GCZMA reads as follows:-
The GSPCB analysis of the EIA report indicates that there will be no adverse impact on the environment of the area if the said plot is utilized for construction of hotel. The GSPCB analysis recommends the following:
(i) The sand dunes existing within 500 metres of the HTL should be protected and should not be tempered with in any form.
(ii) Accommodation to the construction workers should be planned in such a way that they do not cause nuisance to the local residents and damage to their properties. Proper hygienic conditions should be maintained at the site.
(iii) As recommended in the EIA report a detailed hydro-geological study should be carried out before starting the construction work of the resort to ensure that there is no impact on the ground water table.
It is seen from the record made available that MoEF & CC had granted Environmental and CRZ Clearance on 28.07.2017 for the project "Development of Hotel (Beach Resort) at survey No. 129/1, 130/1, 130/2, 130/3, 130/4, 130/5, 130/7, 131/1, 132/1, 132/2, 136/1 & 137/3 at Arrossim Village of Mormugao Taluka District South Goa" by M/s Competent Automobiles Ltd., as per the recommendation made by EAC (Infra-2) after detailed deliberations. It has been stated therein that project falls under CRZ Zone III and the distances of the proposed development from HTL is 200 mt. to 500 mt.
This project was earlier considered by the GCZMA, subsequently to its approval by Town & Country Planning (TCP) Dept. on 13.11.2008 after considering the EIA report submitted by the Project Proponent. It was then sent to the Member Secretary National Coastal Zone Management Authority, MoEF on 08.12.2008.
The Proposal was thereafter considered by MoEF in the light of the provisions under CRZ Notification 1991/2011, on the basis of the mandatory documents enclosed with the application viz., the Questionnaire, EIA, EMP and the additional clarifications in response to the observations of the EAC constituted by the Competent Authority in its meeting held on 12th -14th March, 2009, 20th - 22nd July, 2009, 27th - 28th August, 2009, 21st - 23rd December, 2009, 27th -29th January, 2010 and 25th - 26th March, 2010. The MoEF accorded necessary CRZ Clearance on 11.04.2013 for the project as per the provisions of CRZ Notification 2011 and its subsequent amendments, subject to strict compliance of 28 specific conditions, 14 operational phases and 5 general conditions.
The Appellants had also filed an Appeal 5/2016 before Western Zonal Bench of NGT challenging the letter/communication dated 04.11.2015 issued by Scientist E of MoEF declaring the amendments in the CRZ Clearance dated 11.04.2013, which were as follows:-
(a) In the subject the word "CRZ clearance" shall be substituted with "clearance under CRZ Notification 1991/2011 and EC under EIA Notification 2006".
(b) In para 9 in specific Conditions (i) Construction phase, (ii) which reads "Necessary prior environmental clearance under Environment Impact Assessment Notification, 2006, as applicable shall be obtained from the State Environment Impact Assessment Authority (SEIAA), Goa" stands deleted.
The NGT, Western Zonal Bench set aside the amendments issued by the MoEF and the Appeal was disposed of on 09.01.2017 with following directions:-
Letter or communication No. F-16-1/2009-IA-III dated 4th November, 2015 issued by Scientist-E of MoEF declaring the amendments as referred to hereinabove is set aside.
The MoEF shall pass on the complete record of the case including form-1 and form-1A to EAC within a week and EAC shall be at liberty to consider any other information or data along with the record sent by the MoEF for the purpose of appraisal of the project referred to the hereinabove. The Project proponent- Respondent No. 1 Company will be at liberty to give presentation in the matter and EAC may seek such other clarification from the project proponent necessary for appraising the said project as per EIA Notification, 2006 in accordance with law.
The EAC upon appraisal of the project shall make its recommendations either for grant or rejection of the said project to the MoEF and MoEF shall take decision thereon in accordance with law as expeditiously as possible preferably within 90 (ninety days).
Copy of the decision taken by the MoEF in the matter either for grant or rejection of the EC to the project in question shall be furnished to the appellants.
Meanwhile a complaint was also filed before the Water Resources Department, Gogol, Margao, Goa stating that there are two large Storm Water channels (Haadi) and many water bodies i.e. Ponds in Sy. No. 129/1, 130/1, 2, 3, 4, 5 & 7, 131/1, 132/2, 136/1 and 137/3 at Arrossim Village, belonging to M/s Competent Automobiles Pvt. Ltd. The site was inspected by the Executive Engineer, along with the representatives of Cansaulim Arrossim Cuelim Consumer Forum on 12.02.2013. In the report submitted by the Assistant Engineer on 13.04.2015, presence of two haadis drain/ storm water Channels and 6 Ponds, at the survey numbers mentioned above, was confirmed. It has also been stated in the report that if the construction activity is permitted in the plot the pond would be destroyed. It was further stated that the Village Panchayat, vide letter VP/CAC/11/12/Constn/14-15/1010 dated 16.02.2014, had withdrawn the NOC given by it for the project. Subsequently the Water Resources Department, Govt. of Goa issued NOC on 05.09.2014 to M/s Competent Automobiles Pvt. Ltd., the project proponent with following conditions:-
The nallahs and the water bodies in the said property should not be altered or altered as presently existing on site.
The low lying field which act as detention basins should be maintained.
Constructions should not obstruct the discharges in the nallah and connectivity to flows should be maintained.
The level of the basement should be above high tide level and should not disturb the ground water lable in the area.
Approval of all other authorities applicable should also be obtained.
In compliance of the directions issued by Western Zonal Bench of NGT, on 09.01.2017 the project was taken up by EAC (Infra-2), in its 15th meeting on 12.04.2017. The Minutes of the meeting of EAC reads as under:-
The Committee deliberated upon the additional information submitted by the project proponent vide letter dated 20.03.2017 also available on the website. The committee noted that earlier a clearance was accorded to the project on 11.04.2013 but the nature of the clearance was disputed. The Committee also observed that the MoEF&CC on 24.08.2015 has clarified that the same is an Environmental and CRZ clearance but the NGT setting the EC aside has again asked the EAC to consider the case. The EAC heard the project proponents and was given to understand that there is reduction in the project size and while retaining the earlier layout for which the clearance was already obtained, the number of rooms has been reduced.
After detailed deliberations, the Committee found additional information adequate and recommended the project for environmental and CRZ clearance and recommended retention of earlier conditions also and stipulated the following specific conditions along with other environmental conditions while considering for accord of environmental and CRZ clearance.
The conditions stipulated at Annexure XIV to the EIA amended notification of 09.12.2016 shall be followed.
The treatment system shall be based on SBR technology.
The approval of the CGWA shall be taken before any dewatering for basements and /or abstraction of ground water.
All fixtures appliances and energy saving devices shall be indigenously manufactured use of foreign make goods should only be provided when indigenous goods are not available and with the permission of the Board of Directors.
An Impact assessment based marine biodiversity management plan for sub-tidal, intertidal, coastal, marine and estuarine habitats shall be drawn up to the satisfaction of the State Biodiversity Board and implemented through the project cycle. The management plan would include a robust monitoring and conservation plan for all components of the marine biota including corals and coral communities, Molluscans, sea grasses and sea weeds, marine mammals draft management plan shall be submitted.
Water Resources Department, Govt. of Goa intimated M/s Competent Automobiles Co. Pvt. Ltd. on 22.07.2015 that the NOC granted on 05.09.2014 was kept in abeyance. Subsequently, the Executive Engineer of the Water Resources Dept., Govt. of Goa informed the project proponent on 21.10.2015 that they are in receipt of an order, mentioned in Letter of V.P. No. VP/CAC/11/12/Constn./14-15/1010 dated 16.10.2014, whereby Village Panchayat had withdrawn NOC granted to the project proponent. This order was passed by the Additional Director of Panchayat-I, Margao which prevailed over the earlier communication dated 16.10.2014 of Secretary of Village Panchayat Cansaulim Arrossim Cuelim. In the light of above the NOC which was kept in abeyance was withdrawn by the Water Resources Department on 21.10.2015. The contents of the letter reads as under:-
"This is to inform that, NOC granted to you vide reference 1 (NOC No. 5/15/CE-WRD/EO/489, Dated 05.09.2014) was kept in abeyance by this office vide reference 2 (This Office Letter No. WRD/WDII/ADM/F.343/320/15-16, dated 22.07.2015). Now this office is in receipt of Judgement mentioned at 3 (Judgment No.: P.A. No.MAR-1/106/2014, Dated 17.06.2015 above passed before the Addl. Director of Panchayat -I, Margao, which prevails over the earlier communication dated 16.10.2014 of Secretary of Village Panchayat Cansaulim-Arrossim-Cuelim.
In light of the above, based on the said judgement, the NOC kept in abeyance vide reference 2 stands withdrawn".
The Learned Counsel for respondent Project Proponent has submitted that in Form IA the site of the project was mentioned as Latitude 150 20.166 N and Longitude 750 53.727 E which was a typographical error. This location is somewhere in Karnataka as submitted by the Appellant. The Counsel for the Project Proponent submits that correct location is 150 20' 09'' to 150 20' 11'' and 730 53' 35'' to 730 53' 45''. They have also submitted that the correct location has been mentioned at many other places and the satellite maps annexed show the correct location and Co-ordinates. It is to be noted that the actual site had been inspected by officials of MoEF and that of GCZMA.
Project Proponent has submitted that as far as water bodies and storm water drains are concerned, their existence at the site was confirmed and Water Resources Department of Govt. had already given NOC with a condition that Project Proponent would not alter the storm water drains and water bodies.
Besides, the report of GCZMA dated 03.03.2018, submitted before the Hon'ble Supreme Court has noted that a detailed hydro geological study has ruled out any adverse impact on ground water on account of the hotel project.
The Learned Counsel for Project Proponent submits that the allegation regarding sand dunes are untenable because MoEF's site inspection report dated 25.03.2010 records a specific undertaking given by the Project Proponent not to utilise the sand from the dunes. The report dated 03.03.2008 submitted by the GCZMA to Hon'ble Supreme Court, also stipulates that the sand dunes be not tampered with.
As regards the misrepresentation alleged by the Appellant with respect to the existing road, the Learned Counsel for the Project Proponent submits that site inspection report dated 25.03.2010, submitted by MoEF records the undertaking given by the Project Proponent that the Project Proponents have agreed to provide the road on the northern side and also give land for its widening on the northern side.
With respect to non-disclosure of information regarding other plots of the Project Proponent as alleged by the Appellant, the respondent has submitted that they do not intend to utilise the said plots, and if necessary, they will apply for fresh EC with respect to the same.
A reference has been made by the counsel for the appellant to the case of Hanuman Laxman Aroskar Vs. Union of India (Civil Appeal No. 12251 of 2018) decided on 29th March, 2019 and submitted that in the instant case the project proponent has not given complete details in form- 1, as required under law. The case of Hanuman Laxman (Supra) was considered. In fact situation of the case related to category-A project for a proposed greenfield International Airport and commercial /industrial and allied development near Mopa in the State of Goa. The site was in close proximity to the interstate boundary and the area required was reduced during project appraisal; the project proponent had failed to disclose that 5467 trees were required to be felled; there was suppression and misrepresentation of material facts, for instance the original statement mentioned that only a few trees were required to be felled whereas subsequently an application was filed seeking permission to fell 55000 trees etc. In the instant case no such suppression or misrepresentation of material facts have been made. A look to the sequence of events in the present case goes to show that a thorough consideration by the Authorities concerned as the process envisaged under the Notification of 2006 had been followed. Thus the case of Hanuman Laxman is of no help to the appellant.
It is therefore clear from the submissions made and materials placed on record by the Respondents that the Project has undergone sufficient scrutiny at every level, at State as well as at the level of MoEF, and all concerns of the Appellants have been addressed. We, therefore, hold that there is no merit in the present Appeal and it deserves to be dismissed. We, however, direct that the Project Proponent will comply with various conditions given in the EC and CRZ clearance fully and also that they would abide by the undertakings given by them with respect to water bodies; sand dunes at the site and also regarding road on the northern side of the boundary.
Accordingly, this Appeal is dismissed with no orders as to cost.