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Judgment
The Colva Civil Consumers Forum, a registered society of the villagers of Sernabeti, Vanelim, Colva and Gandaulim registered under the Societies Registration Act, 1860, has moved this Application for restoration of sand dunes damaged due to illegal construction of road admeasuring 1km in length by dumping of mud across low lying agricultural paddy fields in CRZ area at Novowaddo, Sernabatim-Colva, Salcete, Goa.
According to the Applicant, there was movement of heavy machinery towards the site on 12.2.2015 and few truckloads of mud was dumped initially when the Secretary of Applicant complained to Respondent No.1 Goa Coastal Zone Management Authority (GCZMA) through SMS. The work was stopped for some time. However, the work continued at night and therefore a written complaint dated 15.3.2015 was lodged by the Applicant with Respondent No. 1-GCZMA as per a copy thereof at Annexure-'C' to the Application.
Respondent No.1-GCZMA, the Applicant submits, conducted a site inspection on 17.3.2015 and noted the following facts as per the Site Inspection Report dated 23.3.2015 and photographs annexed thereto produced at Annexure-'D' to the Application:
i) "On site it was observed that filing of paddy fields has been carried out as shown in photo 'A,B,C'.
ii) The land is being filled for purpose of construction of road which connects to a local village road and to an open property which lies between 0 to 500mts of HTL.
iii) The landfilling has dimensions of an average width of 3.00mts and height of average of 0.60mts and length of at least 0.50 to 1.00km.
iv) A concrete culvert has also been constructed as shown in phot I.
v) The landfilling and construction of a culvert is falling within 200 to 500mts of HTL.
vi) On one stretch of filing it is evident that the sand dunes and its vegetation have been cut to for landfilling as shown in Photo 'E.F.H'.
vii) No Notice Board was put up of permission and owner couldn't produce any documents, plans, approvals at the time of the inspection."
The Applicant approached the Respondent No.2 Village Panchayat and Respondent No.3- Deputy Collector, with their grievances regarding severe destruction of environment at the site vide letter dated 24.3.2015, Annexure-'E' to the Application. Respondent No.1-GCZMA issued a letter dated 31.3.2015 to the Police Inspector, Colva Police Station, Colva, Salcete, Goa communicating its observations regarding violation of the CRZ Notification-2011 and directing immediate action to stop the work at site and register FIR against the violators of law, including the operators, drivers of the earth moving equipment without naming them. The Applicant also complained to Goa State Bio-diversity Board (GSBB) whereupon GSBB along with officials of PWD, the Town and Country Planning Department inspected the site on 13.4.2015 and found that in spite of stop-work order issued by GCZMA the truckloads of mud was dumped and was being levelled by the workers as seen in the photographs Annexure-'H' to the Application. The Applicant submits that the construction of the said illegal road was carried out with intention of exploiting large stretches of paddy fields for commercial use at the cost of causing severe environment degradation and destruction of rich bio-diversity in the area. The Applicant further submits that the work referred to hereinabove was undertaken without any permission from any of the Authorities and it deserves to be halted and undone to restore environment.
Upon issuance of Notice to Respondents GCZMA, Village Panchayat, Sernabatim, Vanelim, Colva and Gandaulim, the Deputy Collector and SDO, Margao, Goa Salcete, it appears a group of persons calling to be owners of the paddy fields of Survey Nos.41/4, 30/3, 44/2, 41/5, 42/0 (part), 42/3 at village Sernabatim, Tal. Salcete, District South Goa, moved an Application-M.A.No.97 of 2015 for joining them as Interveners in the present Application for defending their interest in the present Application. M.A.No.97 of 2015 was allowed and the Applicants therein were impleaded as Respondent Nos. 4 to 9 and permitted to file their responses vide order dated 24th July, 2015. An interim direction restraining the construction activity at the said site was passed on 24th July, 2015.
Respondent Nos. 4, 6 to 9 filed Written Statement (Pg.46) dated 4th December, 2015 as well as additional affidavit dated 20th April, 2016 (Pg.141). Broadly, Respondent Nos. 4, 6 to 9 contended that a bundh with width of 4 to 12mtr and height of about 1.5m above level of paddy fields and culvert existed since hoary past to provide passage way for the owners of the paddy fields and Coconut grove to proceed to their respective properties in village Sernabatim and they had merely done dumping of mud and rubble stones on bundh for its restoration, and the bundh had been repaired and restored in the months of March and April, 2015. They denied construction of illegal road stretching over a length of 1km by filling mud of 2m height approximately in law-lying agricultural paddy fields and destruction of sand dunes, cutting of old trees, burning of green cover, vegetation and causing serious environment damage as alleged. The Applicant rejoined the written statement filed by Respondent Nos. 4, 6 to 9.
In response to the specific case of the Applicant that there has been construction of any illegal road through the paddy fields and GCZMA had observed landfilling and construction of culvert, Respondent No.2 Village Panchayat of Sernabatim revealed in its reply dated 27th October, 2015 that nothing could be traced from the Panchayat records whereby the Panchayat had granted any licence or permission for development in the subject land in question. Thoughtfully the Village Panchayat did not offer any comment in relation to the claim of the Applicant made with reference to the environmental issues raised in the Application.
Respondent No.1-GCZMA filed reply dated 13th November, 2015 without specifically admitting, denying or explaining the facts stated by the Applicant in its Application as required under Rule 16 (2) of the National Green Tribunal (Practices & Procedure) Rules, 2011. Respondent No.1-GCZMA preferred to file an affidavit dated 13th November, 2015 for the purpose of complying with the order dated 29th May, 2015 passed by us. This order required Respondent No.1-GCZMA to file a detail affidavit along with copy of the Notification and record about mapping of the sand dunes. The order appears to have been passed with reference to the directions issued by us to GCZMA to carry out the inspection at the site in order to verify the status of sand dunes, if any, as well as road or bundh and nature thereof vide order dated 29th May, 2015. GCZMA revealed that their Expert Member had carried out site inspection on 17.6.2015 and submitted his Report dated 21st June, 2015, regarding findings/observations indicating various violations of CRZ Notification, 2011 as per the Site Inspection Report dated 21st June, 2015 at Annexure-'I' to the reply.
Respondent No.1 GCZMA contended that the existence of last sand dunes on the site which have been altered/cut to build the road was revealed in the Expert Members Report dated 21.6.2015. According to GCZMA, a new narrow concrete bridge was also found constructed in the area without any permission and besides final verification with comparison of various GE Images from 2014 onwards the following conclusions could be drawn:
(a) Colva Sernabatim dune coast is classified under the CRZ-I and Ecologically Sensitive Eco-system;
(b) Large sand dune has been cut/altered, an act prohibited under the CRZ-2011 Rules
(c) Activity of mud-filling / depositing / reclamation within CRZ limits- a violation of CRZ-2011 guidelines;
(d) Reclamation within CRZ is required prior approval from the Competent Authority;
(e) NOCs from affected plot owners not present;
(f) Culvert construction in concrete did not have prior approval.
Admittedly, there has been dumping of mud and rubble stones at the site in question. However, there is nothing to show that for such dumping of mud and rubble stones, may be under pretext of restoring the existing bund, any permission either from Respondent No.1-GCZMA or from any local authority - Village Panchayat- Sernabatim was obtained.
Controversy before us thus begs answers to the following pertinent questions:
(1) Whether Respondent Nos. 4 to 9 prove that there exists a bund having width 4 to 12mtrs stretching over a length of 1km through the paddy fields as contended by them?
(2) Whether the Applicant proves that the sand dunes were affected and required restoration by removing soil and rubble dumped?
(3) What order?
Point Nos. 1 & 2:
Respondent Nos. 4, 6 to 9 have placed before us report of Dr. Naraina P.S.Varde, Ex- Member Secretary of GCZMA dated 3rd December, 2015, Report of Civil Engineer, Sayed Peer Hirekeri dated 1.11.2015, and construction licence dated 15.1.1982 granted for construction of farm-house at village Sernabatim, Colva to Mr. Crisanto D.M. Fernandez. Interestingly, neither Mr. Crisanto Fernandez nor the Experts Civil Engineer, Mr. Hirekeri have filed any affidavits in support of the contentions of Respondent Nos. 4, 6 to 9 as revealed in the reply dated 4th December, 2015. Nonetheless, we will examine worth of this material placed before us.
Dr. Naraina P.S.Varde revealed in his report that the site was inspected in relation to contents of the official survey plan and the dimensions of the bund/path as derived from the survey plan were as under:
Survey/Sub-
Nature
Length
Width
Height
division
of Access
44/1
Bund
10
>12
>1
44/2
Bund
25
6 to 12
>1
Path
50
>12
NA
43/1A
Bund
60
7 to 12
>1
43/1
Bund
123
6 to 10
>1
42/1
Path
27
5 to 7
NA
Bund
125
3 to 5
>1
He claims that there has been no illegal construction of a road by filling paddy fields levelling of sand dunes and construction of a culvert. But there has been repair and restoration of existing traditional bund or path-way by adding/compacting a thin layer of external soil material on the top of the same.
Civil Engineer, Mr. Sayed Peer Hirekeri, in his report recorded the following site observations:
SITE OBSERVATIONS
1)
AS PER THE SITE INSPECTION, AN ACCESS
WITH A WIDTH OF 3.50 TO 4.00 METERS IS
SEENRUNNINGINTHEEAST-WEST
DIRECTION OVER A CULVERT BETWEEN
S.NO.41 OF SERNABATIM VILLAGE ON
SOUTHERN SIDE AND ALONG THE BORDER
OF COLVA VILLAGE ON THE NORTHERN SIDE
AND THEN TAKES A LEFT TURN ACROSS
NORTH-SOUTH
DIRECTION
HEADING
TOWARDS THE PADDY FIELDS OF S.NO.31 &
30 AND RUNNING IN BETWEEN THE PADDY
FIELDS OF S.NO.41 ON EASTERN SIDE AND
S.NO.42 & 43 ON THE WESTERN SIDE.
2)
THE HEIGHT OF THE SAID ACCESS IS MORE
THAN 4 FEET ABOVE THE ADJOINING PADDY
FIELDS ON EITHER SIDE WHICH IS DISTINCTLY
VISIBLE ON SITE (REFER PHOTOS PIC 7, PIC8
& PIC 9 ATTACHED HEREBY).
3)
THE LAYER OF RED MUD VISIBLE ON SITE
OVER THE SAID ACCESS SEEMS TO BE
SPREAD ONLY ON TOP OF AN EXISTING
NATURALLY
RAISED
GROUND
WHICH
RESEMBLES TO A PRE-EXISTING BUND
WHICH CAN BE CLEARLY NOTICED FROM THE
SIDE VIEW OF THE SAME FROM THE PADDY
FIELDS. (REFER PIC.8 ATTACHED)
4)
A SMALL NULLAH (WATER BODY) IS SEEN
FLOWING WITHIN THE PADDY FIELDS WHICH
SEEMS TO BE A NATURAL ALL YEAR ROUND
WATER BODY RUNNING WITHIN S.NO.41 AND
ALONG THE SIDE OF THE PATHWAY/BULD,
CROSSING THE LAND THROUGH A PRE-
EXISTING CULVERT WHICH HAS BEEN RE-
CONSTRUCTED
AND
FLOWING
THE
NEIGHBORING VILLAGE OF COLVA. (REFER
PIC.10,11 & 12 ATTACHED)
5)
THE SAID NULLAH (WATER BODY) IS SHOWN
IN THE SURVEY PLAN. THERE IS ALSO A
CULVERT EXISTING OVER
THE
NULLAH
WHICH IS INDICATED IN THE SURVEY PLAN.
Interestingly, the width of passage is not matching with the width of bund/path shown in the report of Dr. Naraina P.S.Varde. It appears that during site inspection small pits were dug to depth of natural strata along the said access at interval of 15m from the culvert up to the end of path-way and a conclusion was drawn to state that there existed bund like structure in the topography, which was laid over by red mud. Nothing much can be read from the construction licence granted to Mr. Crisanto D.M. Fernandez, as regards dimensions of bund and its alleged restoration.
On the other hand, we have Site Inspection Report dated 23rd March, 2015 of Mr. Fletcher Fernandez, Technical Officer of GCZMA. -Annexure-'D', photographs and -Annexure-'H', collectively Site Inspection Report dated 29.4.2015 conducted by Village Panchayat, Sernabatim, and Site Inspection Report dated 20th May, 2015 of Goa State Bio-diversity Board (GSBB).
Mr. Fletcher Fernandez, Technical Officer of GCZMA. in his site inspection report dated 23rd March 2015 referred to his visit to the site at 3.30 p.m. on 17th March 2015 in response to the complaint made by the Applicant. He identified the location of the site inspection as Nabowado in Colva, Salcete falling within 200 mtrs to 500 mtrs. of HTL and recorded the observations that land was being filled for the purposes of construction of road connecting an open property to local village road; and gave dimensions of the landfill of an average width of 3.00 mts. and height of 0.60 mtr and length of 0.50 mts to 1.00 km. He took photographs of the site marked 'A' to 'L' showing vegetation on both the sides of said landfilling and one concrete culvert. He particularly made reference to one stretch of such landfilling cutting a sand dune and its vegetation.
The Site Inspection Report dated 29th April 2015 conducted by Village Panchayat at Annexure 'B' to the affidavit of the Applicant records an observation that construction of Reti-mud road had been made on Bandh (made of earth or stone built to prevent flooding in area) which according to the village farmers was made to facilitate cultivation of the paddy fields. The statement of an old lady, Mrs. Sarpaneia Castro is also found recorded therein. From her statement one can gather that she used to carry basket full of rice paddy from the fields to her own on Reti-mud road made to facilitate cultivation of paddy and the farmers to carry the produce therefrom to their home. It nowhere makes any reference of concrete or its use as a road for vehicular traffic.
The Goa State Biodiversity Board conducted joint site inspection of the said site on 30-4-2015 and Deputy Collector and S.D,O. Margao, Goa Town and Country Planning Department, Department of Agriculture, Goa State Pollution Control Board, Colva Civic and Consumer Forum participated in the said joint site inspection vide report dated 20th May 2015, Annexure 'B' to the affidavit dated 23rd May 2015 of the Applicant. The team took cognizance of the site inspection carried out by Goa Coastal Zone Management Authority on 17th March 2015 and of the fact that the said site inspection report had been submitted to Goa State Biodiversity Board. Outcome of this joint site inspection culminated in recording the following observations and recommendations:
Based on the Google Earth images the dune field in the area extends to about 380 meters from the HTL, with an intervening low-lying area, probably used as a paddy field.
The area in question is entirely fertile cultivable agricultural land, evident by visible paddy stubble left after harvesting, so also from recently ploughed portions.
The area is also surrounded with thick indigenous floral assemblage which supports several Avian, Mamalian and reptilian diversity. Some of the indigenous floral species observed being Lanes coromandelica, Carissa caronda, Grewia microcosa, Tamarindus indica, Careya arbores, Ficus bengalensis, Cocos nucifera etc. and other indigenous herbaceous floral species.
During the site inspection it is also observed that there is massive destruction of morphology and ecology of sand dunes which amount to serious violation of CRZ 2011 notification. Anthropogenic activity in the form of reclamation is clearly visible in the GE image of February, March and April 2015. This activity (land filling) appears to have started after December 2014. The landfilling is done on / along the landward face of an existing sand dune. The coast parallel road is found at around 350 meters from the HTL.
The said activity has created a geographical barrier to the biological endowment and integrity of the prime ecosystem.
During the interaction with local it was evident that the area hosts non biological diversity which needs to be assessed and documented to verify the existence of species of conservation concern.
Field observations indicate that the area is very rich and forms the habitat for roosting & breeding grounds for many organisms.
Unwarranted and illegal reclamation of prime agricultural land defeats the conservation initiative of local agro biodiversity as well as defeats the objectives of the National Food Security Act, 2013.
The said reclamation will severely hamper the natural flow of water, the stagnation of water will further deteriorate the fertility and integrity of this agricultural land. The microbial activity will also be affected.
Seasonal (Monsoon) activity of several organism such as fish, pila, frogs, fresh water turtles & Tortoises will be affected to the greater extent.
Considering all the above facts the Board under the provision of Section 23 of the Biological Diversity Act, 2002, wish to submit our recommendations to the concerned authorities to kindly take necessary action to prevent further damage to the agricultural land and sand dune ecology.
It is also recommended that the entire illegal activity should be stopped immediately and the area may be restored to its original state before the onset of monsoon to avoid run off of reclaimed soil into surrounding agriculture land.
The Board also wishes to bring to the notice of the concerned authorities that such reclamations are happening I all parts of Goa, either for construction of roads, houses, buildings etc. Such activities should be immediately stopped to prevent depletion of agricultural land and in turn to conserve agro biodiversity.
Sand dunes act as a major barrier towards all the natural calamities such as storms, cyclones, tsunamis etc. Protecting the sand dunes will not only protect the ecology but also the coastal human habitation."
Respondent No.1 GCZMA which is a statutory authority responsible for effective enforcement of CRZ Regulations has also submitted that the face of large sand dune has been cut/altered; tampering with coastal sand dunes which is a prohibited activity under the CRZ Regulation 2011. GCZMA has mainly relied on the report dated 21.6.2013 of Dr. Antiono Mascarenhas, Expert Member to further confirm that the mud filling/depositing/reclamation activity was found at a disputed area which is located within CRZ limits and as such is a violation of CRZ Regulations. Dr. Antiono Mascarenhas besides referring to the observations made during the site inspection conducted on 17th June, 2015 had made a comparison of GE Images of December, 2014 and April, 2015 to arrive at the conclusion that face of large sand dune had been cut / altered and the mud filling / depositing / reclamation activity was noticed. As regards "Bund" Dr. Antiono Mascarenhas recorded following observations:
"10. The concept of the proponents that the reclamation is done over a pre-existing '"bundh" could not be confirmed. Evidence in this regard could not be gathered in the field. Only low, narrow dikes separating individual paddy fields ae noted in the area. As such, the width of the original '"bundh" (if present) is not known."
GCZMA has also submitted that the entire villages falling in Salcete Taluka, including Sarnabatim are classified as CRZ-III except sand dunes which are classified as CRZ-I. GCZMA has further emphasized the need of protecting the sand dunes ecosystem which is ecologically sensitive and geomorphological fragile system that acts as nature's first line of defence against the oceanic forces.
Learned Counsel appearing on behalf of Respondent Nos.1 and 3 submitted that the reports filed before the Tribunal be considered. Learned counsel appearing on behalf of Respondent No.2 submitted that the work carried out at the site did not have any permission / licence and deserves no protection of law. Learned counsel appearing on behalf of Respondent Nos. 4, 6 to 9 submits that their properties are situate beyond the paddy fields and only work of restitution of pre-existing access was carried out. He submitted that the authorities had used the word reclamation loosely without there being any mapping of the area and the existence of sand dune remains a questionable proposition. He heavily relied upon the report dated 3rd December 2015 of Dr. Naraina P.S. Varde, an Environmental Consultant. He further submitted that the principle of natural justice requires giving of an opportunity to cross-examine the witnesses, particularly the author of the Reports placed before us.
Material portion of Section 19 of the National Green Tribunal Act, 2010 reads as under :
19 Procedure and powers of Tribunal. -
(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice.
(2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.
(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872 (1 of 1872).
(4) xxx xxx xxx
(5) xxx xxx xxx
Thus, it can be seen that the Tribunal has been freed from the shackles of the Code of Civil Procedure, 1908 and given freedom to regulate its own procedure and in doing so, it has to be guided by the principles of natural justice. Pertinently, the Tribunal is also not bound by the Rules of evidence contained in the Indian Evidence Act, 1872. Any material placed before the Tribunal, therefore, has to be vetted on its intrinsic value after the opportunity is given to the other side to respond to such material by placing before the Tribunal such other material as a counter to what the material which is responded to has to say, and the Tribunal is, thus, vested with discretion to make choice between the two materials based on prudence and nothing more. It is left to the discretion of the Tribunal whether there is any need to further evaluate the merit of the said material/s with the tool of cross-examination. Cross-examination, thus, is a tool in evaluation of the merit of the material presented before the Tribunal and cannot be equated with the standards with which the merit of the material can be adjudged or with the compliance of the principle of Natural Justice.
We have before us the word of Member Secretary of the Goa State Biodiversity Board on one hand and of Dr. Naraina P.S. Varde an Environmental Consultant - and Civil Engineer Mr. Hirekeri on the other i.e. observations of public authority saddled with the responsibility to advice the State Government subject to the guidelines issued by the Central Government relating to the conservation of biodiversity and to perform such other functions as may be necessary to carry out the provisions of the Biological Diversity Act, 2002 on one hand, and opinion of Dr. Naraina P.S. Varde Environmental Consultant, a professional engaged by Respondent Nos. 4, 6 to 9 (Interveners) to make a factual report to counter the allegations made in the Application on the other hand. Perusal of the report and photographs annexed thereto clearly show the vegetation around Bund/pathway referred to as a continuous traditional access inspected by Dr. P.S. Varde during his site visit on 27th November, 2015. The report only speaks of he having traversed the entire area in question. Nowhere, it referred to any actual physical survey done by him with reference to the survey plan at the site. Before any conclusions were drawn by Dr. P.S. Varde that there has been no leveling of a sand dune, he ought to have ascertained whether sand dune existed at the site in question or not and only in relation thereto, he could have opined thereafter whether there was a leveling of sand dune or not. He also did not comment as to the nature of vegetation around the site in question to answer the pertinent question regarding pre-existence of a sand-dune. As against this, the opinion of the Member Secretary, Goa State Biodiversity Board, based on joint inspection made in presence of several local authorities, as aforesaid reveals reference to description of the flora in the vicinity as well as identification of the sand dunes and injury caused to it with reference to GE imagery of February, March and April 2015 as observed in para 3 and 4 of his observations referred to hereinabove.
Sand dunes are nature's creations which commonly begin as piles of sand accumulation in the lee of beach debris such as piles of seaweed, clumps of salt marsh straw, and host of human refuse and often act a host for growth of vegetation. Identification of the sand dune with reference to the vegetation is reflected in the reports of i) Mr. Fletcher Fernandez, Technical Officer, ii) Dr. Antiono Mascarenhas, Expert Member Goa Coastal Zone Management Authority and iii) the Member Secretary, Goa State Biodiversity Board. On touchstone of preponderance of probabilities, there is nothing to discount these reports and these reports clearly outweigh the conclusions drawn by Dr. P.S. Varde. We, therefore, do not find any merit in the submissions made on behalf of Respondent Nos.4 to 9. Obviously the work carried out by these Respondents of landfilling is completely illegal and un-authorized and most importantly offending to the environment. Respondent Nos. 4 to 9 have thus failed to prove existence of bund as contended by them. However, the Applicant succeeds in proving damage to sand dune/s. The Point Nos. 1 and 2 are answered accordingly.
The Member Secretary, Goa State Biodiversity Board has recommended halt to the landfilling in the said area and its restoration to its original state. For restoration, to be precise, it is necessary that the help of Experts in the field be taken. Hence the following order:
O R D E R
We constitute a committee headed by the Member Secretary, Goa Coastal Zone Management Authority comprising of the Member Secretary, Goa State Biodiversity Board and the Chief Town Planner, Town and Country Planning Department to ascertain dimensions of the original Bund/pathway of paddy fields at village Navo Vaddo, in Sernabatim-Colva, Salcete-Goa, with reference to the land survey conducted by the Directorate of Settlement and Land Records of Margao, Goa in the year 1970-71 and further to ascertain the extent of sand dune/s destruction due to dumping of soil and mud within three months.
GCZMA shall on ascertaining the factual situation as aforesaid, take measures to restore the sand dunes by removal of the mud and soil etc. dumped on it and such other necessary scientific measures.
Expenses incurred for this exercise shall be borne by the Respondent Nos. 4 to 9 and Respondent Nos. 4 to 9 shall initially deposit costs of Rs.2 Lakhs (Two Lakhs) each with the Registry, NGT, (WZ) Bench Pune within a month and defray further expenses incurred by the GCZMA and/or Committee appointed by us as aforesaid for the work assigned to them.
Amount of Rs. 50,000/- (Fifty Thousand only) be paid to the Applicant as litigation costs from the amount/costs deposited with the Tribunal as aforesaid and the balance be employed for defraying the expenses incurred by GCZMA Committee appointed by us as aforesaid including restoration of environment as directed herein.
Application No. 44/2015, thus, stands disposed off.