AI Structured Summary
Not yet generated for this judgment
Judgment
The Applicant-Society, through its President Mr. Iris Passanha, has filed this Application, alleging that the Respondent No.4, through Mr. Amandeep Bedi, has undertaken a project of construction by dumping mud and erection of structures in the No Development Zone (NDZ), in the property Survey No.95/1-A, admeasuring 10,000sq.mt. at village Cavelossim, Taluka Salcete, Goa. He alleges that this is NDZ area under the Coastal Regulation Zone (CRZ) Regulations and the project is undertaken by the Respondent No.4, destroying existing sand-dunes. He, therefore, alleges violation of CRZ Regulations and also submits that he had complained to the Village Panchayat i.e. Respondent No.1 and Goa Coastal Zone Management Authority (GCZMA)- Respondent No.3, against such illegal construction and development undertaken in NDZ area without permission of the concern Authorities. The Applicant submits that he came to know about illegality of the project and immediately filed complaint on 5.9.2014 and failure of the Authorities to take action to stop/prohibit the activities in violation of CRZ Regulations, which has given rise to the cause of action to the present Application. The Applicant has, therefore, prayed for stopping illegal business activity at the said property and directions to the Authorities to take action, including demolition of illegal structures and restoration of the area to its original positon.
The Respondent No.4 filed affidavit on 19.3.2015 and resisted the Application. It is denied that the Respondent has undertaken construction activities in the property Survey No.95/1-A. It is further denied that there is any destruction of existing sand-dunes and dumping of any mud in violation of CRZ Regulations. The Respondent No.4, submits that temporary bamboo huts made up of bamboo and other organic substances were put up as per the permissions granted by the Competent Authorities. He alleges that the present Application is filed in order to harass the Respondents and for extraneous reasons. The Respondent No.4 submits that they were given permission to erect such temporary shacks/huts, in accordance with the Tourism Policy of the State Government and necessary compliance certificate was obtained from the Village Panchayat. Subsequently, they have applied to the CRZ Authority and accordingly the site inspection was also carried out. It is further stated that the Respondents put up temporary bamboo huts in the said property on seasonal basis for last several years in the same premises without any objections from authorities or the local people. It is, therefore, prayed that the Application be dismissed.
The Respondents further submitted the copies of the permissions granted by the Village Panchayat as well as permission given by the Tourism Department dated 2nd December, 2013, which shows that the erection of temporary shacks, ten (10) in numbers, were allowed to be constructed in compliance with the Tourism Policy and with the approval of GCZMA. He has also presented a certificate from the Survey Town Planner, which shows that as per the Regional plan of Goa-2021, the plot under reference is falling in Orchard Zone. However, a small part of the plot towards sea side is shown as settlement zone in the plan-2021 and entire plot is in the CRZ.
Respondent No.1 filed affidavit on 22nd April, 2015 and submits that the Village Panchayat has issued NOC/permission for registration of the temporary shacks under provisions of the Village Panchayat Raj Act, and the Rules framed thereunder. It is further stated that the Respondent No.4 had complied with the conditions stated in the NOC granted for the year 2013-14 and temporary structures were duly dismantled and removed after the expiry of NOC period. The Village Panchayat also resisted the Application.
In the meantime, the Respondent No.4, submitted an additional affidavit on 12th September, 2015 and submitted certain documents, including 'Policy for utilization of available open plots in CRZ-III zone for the purpose of establishing hotels, beach resorts' declared by the Govt. of Goa on 10th June, 2011 and details of the Report of M/s RSI, Hyderabad, indicating CRZ-III, areas and details of the existing structures, as available on State government website. He submits that the RSI's Report, which was commissioned for identifying and delineating the vacant plots, above and above and an area of 4000 sqm. in CRZ-III areas, along the coastal line of Goa, clearly indicates that the subject land is in CRZ-III area and certain structures were existing at this plot. He further submits that this report was accepted by the State of Goa and necessary Notification was issued on 10th June, 2011, a copy of which is also placed on record. He, therefore, contends that it is the stand taken by GCZMA and State of Goa, through this report and information placed on record on their website that the land in question, is in CRZ-III zone. He further submits that the subsequent report of Expert Member of the GCZMA, which refers to existing sand dunes and therefore, classification of the property as CRZ-I, cannot sustain in the eye of Law, in view of above Notification. He further alleges that the GCZMA has failed to show any scientific and technical basis and documents to substantiate the presence of sand-dunes in that area and no mapping by GCZMA, is still on record. He, therefore, prays that the said interpretation of GCZMA of classifying the subject land as CRZ-I cannot overrule the Govt. of Goa Notification.
Considering limited controversy, we directed the Member Secretary, GCZMA to file detail affidavit, which was placed on record on 5-10-2015.
The GCZMA has admitted that M/s RSI, Hyderabad, was entrusted with in such work, in pursuance of the orders/directions contained in the Judgment and order passed by the Hon'ble High Court of Bombay at Goa, Panaji in the Writ Petition No.411 of 1998 (Goa Foundation vs Village Panchayat of Cavelossim & Ors) with Writ Petition No.19 of 1999 (Goa Foundation vs Village Panchayat of Calangut & Ors). The said Agency carried out the task of identification of structures existing as in 1991, as per the directions of the Hon'ble High Court. It is submitted that M/s RSI, Hyderabad has interpreted, rectified the satellite data, online to identify and delineate continuation upon plots, measuring 4000sq.m and above, using scientific technics. The said report also indicate certain minor errors, including non-identification, identification of area covered by the sand-dunes. The said report was duly hosted on the GCZMA website. Now, the GCZMA, further submits that in view of the present controversy, Dr. Antonio Mascarenhas, Expert Member of the GCZMA, conducted the site inspection on 3-11-2014. The GCZMA further submits that the Respondent No.4, had applied for permission for erection of temporary shacks, which was duly considered in GCZMA's 112th Meeting held on 28.11.2005 and it was decided to reject the permission.
The GCZMA further submits that Coastal Zone Management Plan (CZMP) for the Statement of Goa, was approved by the MoEF in the year 1996, which is valid up to 31.1.2016. In the said CZMP, the villages having sand-dunes have been identified. The GCZMA further submits that in such villages, only areas having sand-dunes have been classified as CRZ-I and rest of the areas are classified accordingly. It is further submitted that as per CZMP of State of Goa in respect of Salcete Taluka, the provisions are as under:
"the entire villages falling in Salcete, namely Utorda, Majorda, Gonsua, Betalbatim, Calva, Sernabatim, Benaulim, Varca and Cavelossi, are classified as CRZ-III except sand dunes which are classified as CRZ-I".
The GCZMA, further submits that Survey No.95/1-A, is bounded by the Arabian Sea on west and River Sal on the east located on a large undulating sand dune that extends from sea on west and river bank on the east. Therefore, the GCZMA submits that entire plot under reference bearing Survey No.95/1-A of village Cavelossim comes under NDZ.
The GCZMA, further submits that the sand dune ecosystems are ecologically sensitive and geomorphologically fragile systems and have been given sub status in the CRZ Notification as reproduced below:
Clause-7:
Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:-
(i) CRZ-I,-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-
(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries, reserve forests, wildlife habitats and other protected areas under the provisions of Wild Life (Protection) Act, 1972 (53 of 1972), the Forest (Conservation) Act, 1980 (69 of 1980) or Environment (Protection) Act, 1986 (29 of 1986); including Biosphere Reserves;
(f) Salt Marshes;
(g) Turtle nesting grounds;
(h) Horse shoe crabs habitats;
(i) Sea grass beds;
(j) Nesting grounds of birds;
(k) Areas or structures of archaeological importance and heritage sites.
It is an admitted fact that the Report of M/s RSI, Hyderabad was prepared in compliance of orders of the Hon'ble High Court and the same was hosted on the Govt. website along with all details. It is also admitted fact that the policy as published on 10th June, 2011, and notified on 16th June, 2011, gives credence to M/s RSI's report and its findings. It is also observed that the policy has overriding provisions of new CRZ Notification of 2011, as mentioned in paragraph 5 of the said policy, which stipulates necessary permission under the CRZ Notification, which needs to be taken for any activity in the designated areas of the CRZ Notification.
The present controversy can be culled out with an issue: whether the disputed land in question, is in NDZ as per the CRZ Notification, due to presence of sand dunes. As per record produced by the Respondent No.4, particularly, Form No. I and XIV, the land in question i.e. Survey No.95/1-A, of village Cavelossim, is shown as Garden land with total cultivable area of 1Ha. He has also produced an abstract of the report produced by M/s RSI, Hyderabad, wherein the land in question is shown as CRZ-III. The Zoning Certificate issued by the Town and Country Planning Department of Govt. of Go depicts that the property is an Orchard land and some part of the said property is under settlement. He has, therefore, denied and challenged the Report submitted by the Expert Member of GCZMA, classifying the said area as CRZ-I.
The Hon'ble High Court, at Goa (Panaji) has observed that: an issue of sand dunes while passing while passing an Interim Order in the Writ Petition No.427 of 1998, dated 11.2.199 in (The Goa Foundation vs Diksha Holdings Pvt. Ltd & Ors) and has referred to Cluase-35 of Chapter-III of the CZMP for Goa, which reads as under:
"3.5 SAND DUNE VEGETATION:-
Sand dunes play very important role in stabilization of beach by avoiding erosion and act as wind and were barrier. The growth of the sand dunes depends upon rainfall and moisture present in the substratum. The distribution of sand dunes is mainly governed by tidal influence, temperature, rainfall, wind, etc. sand dune flora of Goa comprised of 67 species belonging to 62 genera and 23 families. Gramineae represented by 15 species and was dominant. The dominant sand dune species were Ipomea pescaprae, spin fix suqrrosus ssus and launea pinnafifida
N.B.: The above observations are compiled from various studies made by Dr. Untawale of N.I.O.
Now, coming to the Agenda of GCZMA meeting held on 28.1.2015, certain project/activity in question were deliberated as under: "
Case No.12.1
NOC for erection of temporary huts (10nos.) in Survey No.95/1A at Cavelossim Villge, Salcete Taluka by Mr. Amardeep Singh Bedi.
Background: The project proponent to erect temporary huts (10 nos.) in the property bearing Sy.No.95/1A at Cavelossim Village, Salcete-Goa. The proponent's name is reflected in Form I and XIV. The proposed dimension of the huts is 9x45mts.
Site Inspection: The site was inspected by Dr. Antonio Mascarenhas, Expert Member of GCZMA on 03/11/2014. The site inspection report indicates that the proposed site falls within 200mts. From the HTL. During the site inspection it is observed that there exists huts and shack at the site. There exists a huge dune.
After deliberation, the Authority has taken following decision:
17
Mr. Amardeep Singh Bedi, Sy. No.95/1A at Cavelossim Village, Salcete-Goa
After detailed discussion and due deliberations and on considering the report of the site inspection conducted on 03/11/2014 by Dr. Antonio Mascarenhas, Expert Member of the GCZMA, the authority decided to reject the said proposal in Survey No.95/1A, at Cavelossim, SalceteGoa considering existence of large dune in the area under reference.
The affidavit filed by Member Secretary in response to challenge to observations of the Expert Member of GCZMA, mentions that the site in question was inspected by Dr. Antonio Mascarenhas, on
11.2014 and the visit report indicates that there is a large sand dune.
As already referred to above, the sand dunes are important ecological features of the coastal areas and have distinct features. The dunes are broadly classified in two categories that is (1) Transgressive and (2) Retentive. Further, as per information hosted on the Website of Goa State Council for Science and Technology. The sand dunes can be further classified in zones, namely (1) Embryonic Dune, (2) Mid-Shore Done and (3) Hind-Shore Done. A mere observation of GCZMA record, referred to above, indicates that there is no description or mention of relevant features of alleged sand done, in terms of its ecological importance and significance. It would have been more appropriate if the GCZMA could have brought on record more scientific information about alleged sand dune, in view of already existing and also previous permissions granted by the Tourism Department and the Village Panchayat. It is also not clear whether the said sand dune is able to handle the tress of development without damaging ecological and environmental integrity.
It is also relevant to refer the orders of this Tribunal in Application No.3 of 2014, (Aleixo Pereira vs State of Goa & Ors) vide Judgment dated 17. 12.2014, and present status of compliances, as are reproduced, as reported by GCZMA in the minutes dated 28.1.2015:
Sr No
Direc tion
Brief Particulars of Direction
Compliance and present status
Remarks
1
17(iii)
Xxx
Xxx
Xxx
2
17(iii)
Xxx
Xxx
Xxx
3
17(iii)
GCZMA, shall immediately carry out a rapid survey to tentatively identify the sand dunes present in the villages with CRZ-I areas in the coastal areas of Goa and locate them on map, within a period of four (4) weeks and shall not issue any permission in such areas until detail survey conducted by NIO, is completed.
Such rapid survey is practically imposed to complete within 4 weeks' time period being a comprehensive exercise. GCZMA has already issued work order to the NIO-Goa for comprehensive preparation of CZMP for the State of Goa which also includes identification & mapping of sand dune and same will take around 18 months. However, it is proposed to prepare a database of sand dunes after examining the past report of Expert Member since January 2014 and to place the same on record, if feasible.
Considering the directions of the Hon'ble NGT it is proposed to request the Hon'ble NGT to extend this time limit up to finalization of new CZMP for the State. However, in the meantime applications to be examined on case to case basis and no temporary structure to be permitted on sand dune. Necessary compliance report may be filed before the Hon'ble NGT.
4
17(iv)
Xxx
Xxx
Xxx
5
17(v)
GCZMA, shall carry out study to assess the carrying capacity of different beaches in State of Goa, for providing such shacks and other temporary structures, in environmentally sustainable manner to protect the coastal environment, based on the 'precautionary principle' in next six (6) months and based on findings of this study, the permissions for the year 2015- 2016, only shall be granted.
GCZMA has already prepared guidelines in the matter. It is proposed to allot the said task of carrying the said study to the same. Sub Committee of the GCZMA.
The importance of coastal sand dunes is well documented. Coastal sand dunes are common in different parts of the world. These are natural structures which protect the coastal environment by absorbing energy from wind, tide and wave action. Sand dunes have been considered as a specific ecosystem due to several common environmental features. Coastal sand dunes constitute a variety of microenvironments due to substrate mobility and physical processes. Plants establishing on coastal sand dunes are subjected to several environmental fluctuations which affect their growth, survival and community structure. The most important factors include temperature, desiccation, low moisture retention, soil erosion, sand accretion, soil salinity, salt spray, changes in organic matter and pH. CSDs are dynamic but fragile buffer zones of sand and vegetation where the following three characteristics can be found: large quantities of sand; persistent wind capable of moving the sand; suitable locations for sand to accumulate. The Ecological roles and functions of coastal dunes include: essential store of sediments, protecting the land behind them from storm erosion and potential sea level rise; filter for rainwater and groundwater and in some situations, provided aquatic habitats such as dune lakes; protection of islands from storm surges, hurricanes and erosion; trapping of the windblown sand and prevention of sand being blown further inland by the vegetation; habitats for specially adapted plants, birds, and animals - several of which are now rare or endangered; a range of unique landforms and processes which have intrinsic value and are of scientific interest; and nesting sites for sea turtles and birds.
The Tribunal has issued clear directions to the GCZMA to carry out rapid survey tentatively identify sand dunes present in the villages with CRZ-I areas in coastal areas of Goa and locate them on the map within a period of four (4) weeks and shall not issue any permissions of such areas until detail survey is conducted by the National Institute of Oceanography (NIO) is completed. This particular direction is very relevant as it was stated that the GCZMA had already issued work order to NIO, including identification and mapping of sand dunes in the State. Unfortunately, it is observed from the record that GCZMA has not complied with such directions, neither the contentions of Respondent-4 regarding criteria for identification of sand dune has been addressed adequately by the GCZMA, particularly, when the land use records showing the land as orchard, and only the observations of the expert member is the basis of such identification. We are therefore, of the considered opinion that if GCZMA had carried out such mapping survey, and hence the present controversy could have been avoided.
Now, considering peculiar position, under the facts and circumstances mentioned above and more particularly, presence of contradictory information on the Govt. website in the present case, we do not find any intentional error or non-compliance on the part of Respondent No.4 in erecting shacks/temporary huts, prior to the orders of the Tribunal, making it mandatory to obtain CRZ clearance separately. Now, the GCZMA has already considered such Application of the Respondent NO.4 and has refused the permission in its 112th Meeting held on 26.1.2015 and with the subsequent demolition/removal of the shacks/huts, we are of the considered opinion that present controversy should end at this stage only.
However, we direct the GCZMA to immediately notify the objective criteria of identification of sand dunes, may be in consultation with MoEF, if required, within four (4) weeks, so as to remove such confusion and objections from the stakeholders or the affected parties. A copy of such objective criteria shall be placed on record of the Tribunal. GCZMA shall undertake such sand dunes identification work in hand and not to deal with such matter in piecemeal manner or on crisis management mode. It will be prudent that integrated and holistic approach be taken by the GCZMA to avoid such controversy and allegations. We also direct the GCZMA to immediately give public Notice informing the importance of such sand dunes, including identification criteria and features of the sand dunes, so that general public will be informed about ecological importance of such sand dunes and identification thereof. Such information shall be also published on the GCZMA's own website, which we hope now must have been hosted in terms of the Judgment referred to above.
We also make it clear that the Respondent NO.4, is at liberty to seek permission for erection of shacks/temporary huts, in compliance with CRZ Notifications, in case suitable land is available at the disputed property, which the Authorities may consider on its own merits, without any prejudice.
The Application is, accordingly, disposed of. No costs.