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Judgment
The present Application was originally registered as Writ Petition No. 362 of 2010 before Hon'ble High Court of Bombay, Bench at Goa, which was transferred to this Tribunal by the order of Hon'ble Division Bench of High Court dated 17th October 2013. Through this Application, the Applicants seek to challenge and stop the construction of a bridge over river Sal connecting Benaulim village and Sinquetim at Navelim village at Salcete undertaken as project of State Government, Goa.
In the present Application, State of Goa is Respondent No.1. The Executive Engineer, P.W.D. which is executing the work is Respondent No.2. The Goa Coastal Zone Management Authority (GCZMA) is Respondent No.7 besides other Respondents.
The Applicants case is that there was a tender notice issued for this project on 5-2-2009 with an estimated cost of Rs.8.45 crores. The Applicants claim that the proposed bridge location is covered under CRZ Notification 1991 and as per the provision of the said Notification, this project requires CRZ clearance from Ministry of Environment and Forest (MoEF), Government of India, as the capital cost of the project is more than Rs.5 crores. The Applicants further submit that the banks of the river Sal, wherein the proposed bridge is being constructed, are ecologically sensitive as they are covered with mangroves and are classified as CRZ-I area as per the said Notification. The Applicants have also raised contention that the project in question is not required as there are alternative bridges existing in the nearby areas and the local residents have opposed construction of this bridge. The Applicants submit that though the Respondent No.7 i.e. GCZMA has given "in principle" approval for the project on 5-8-2008, it was mentioned that no filling of Khazan land would be permissible and the mangroves affected would have to be compensated. The Applicants would contend that there is no concept of "in principle" approval in the eye of law and any such approval has to be in consonance with the applicable rules and regulations.
The Hon'ble High Court was pleased to direct vide Order dated 7th October 2010 passed in Civil Application No.155 of 2010 filed by the Applicants in the present case, that the work of construction of the bridge shall not be recommenced until CRZ clearance is obtained from the Ministry of Environment and Forest (MoEF), Government of India till passing of seven (7) days thereafter. The Applicants further submit that they were informed by the Advocate for the Respondents that the Respondent No.7 i.e. GCZMA, as per the recommendations of MoEF, have granted CRZ clearance. The Applicants claim that the necessary procedure prescribed in Regulation 4.2 of CRZ Notification 2011 for clearance of the permissible activities under the said Notification has not been complied with in the present case. The Applicants submit that the documents which are essential for such consideration, as per the Regulation 4.2, including Rapid EIA Report, CRZ map, project lay out superimposed on the above map etc. which are very crucial for proper appraisal of any project, have not been submitted by the project proponent yet the Respondent No.7 has granted the clearance without following due process of law and therefore the (Environment Clearance) EC is illegal. The Applicants have therefore, prayed for following reliefs:
(a) For a declaration that the construction of the proposed bridge over river Sal between Benaulim - Sinquetim in villages Navelim and Benaulim at Salcete Taluka undertaken by the Respondents 1, 2 and 10 is illegal, arbitrary and contrary to public interest.
(b) For a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction thereby commanding/ directing the Respondents 1, 2 and 10 not to proceed with the further construction of the proposed bridge over river Sal between Benaulim - Sinquetim in villages Navelim and Benaulim at Salcete Taluka.
Respondent No.2 Public Works Department, State of Goa which is constructing the bridge and is the main contesting party, have filed the first Affidavit on 3rd May 2010 through the Executive Engineer. The Respondent No.2 states that the first tender for the construction of bridge was issued on 6-3-2008 and was again re-issued on 5 th February 2009 and further the work order was issued to the Contractor on 5th August 2009. He states that the preliminary work at site had started in August 2009 itself and till May 2010 about 20 per cent of the work was completed.
Respondent No.2 filed another Affidavit on 7th October, 2010 and submitted that as per the order of Hon'ble High Court dated 3rd May 2010, the department approached MoEF for obtaining CRZ clearance. The Expert Appraisal Committee (EAC) of MoEF could consider the project for appraisal only on 21st September 2010 and after the discussion, the Committee raised following points :
(i) Clarification on the CRZ classification as per the approved CZMP.
(ii) Superimpose the layout showing the proposed facilities on the HTL/LTL map prepared by an authorized agency.
(iii) Submit the details of mangroves present in the proposed site, along with types, density etc. and likely to be removed for the project. Submit the details of mangrove plantation.
It is observed that subsequently the Hon'ble High Court on 7th October, 2010 directed that the work of construction on bridge shall not be recommenced until CRZ clearance is obtained from MoEF and for a period of seven (7) days thereafter.
Respondent No.2 further filed an Affidavit on 29th November 2011 and submitted that the MoEF had reverted their Application back to the GCZMA and subsequently, GCZMA have approved their proposal and granted CRZ clearance vide letter dated 24th August 2011 for construction of the bridge. The Respondent No.2, therefore submitted that construction of the bridge is in the public interest to improve connectivity in the area and they have obtained all the necessary permissions including CRZ Clearance and therefore, the Respondents have prayed for dismissal of the Application.
In the meantime, Respondent No.10 has filed Affidavit indicating that the Contractors of the P.W.D. are carrying out construction of the bridge as per the work order given to them and they do not have any direct role in the litigation.
The matter was heard in detail in this Tribunal after transfer thereof. During the hearing on 10th March, 2014, we wanted to know effect of such change in project design on the status of the project. We also wanted to know the compliance of the CRZ clearance including status of the mangroves, reclamation, and free flow of water and removal of dumped soil/debris. We had, therefore, directed the GCZMA to submit the status report and also the proposed action plan.
The Member Secretary, GCZMA filed an Affidavit on 10th March 2014 whereby he submitted that GCZMA has granted the CRZ clearance to the said project on 24th August 2011 with certain terms and conditions. The GCZMA also submitted site visit report of the visit dated 23rd April, 2014 and 15-5-2014. The report shows that the Civil Work of the bridge is under construction and 80 per cent of the bridge portion is completed and only superstructure work i.e. deck slab is yet to be completed. The report mentions that only five (5) mangroves have been cut at the site. The report also states that no violation of CRZ Notification 2011 or the conditions stipulated in the approval dated 25th August 2011 was noticed during the inspection. The water flow is cleared and there is no obstruction as the debris has been cleared for the smooth flow of the water. Respondent No.7 also submitted an action plan for restoration of the mangroves which includes the selection of the site, the type of mangroves to be planted and the time frame.
Considering the submissions of the contesting parties and also, the documents placed on record, we are of the considered opinion that following issues need to be addressed for disposing the present Application.
1) Whether the Respondent No.2 has started the construction of the bridge prior to the mandatory CRZ clearance as per the CRZ Notification 1991 and/or CRZ Notification 2011 ?
2) Whether the GCZMA has followed the norms and regulations while granting the CRZ clearance dated 24th August, 2011 ?
3) Whether the construction activities of the bridge have caused environmental impacts/damages with particular reference to the dumping of debris, obstruction in the river flow, mangrove cutting etc. if yes, whether adequate remedial measures have been adopted by the Respondents?
Re : Issue No.1 :
Admittedly, the first tender notice for the construction of the bridge was issued on 6-3-2008 which was re-issued on 5th February 2009. It is claimed by the Respondent No.2 that while publishing the tender notice dated 6th March 2008, estimated cost of the project was less than Rs.5 crores and therefore, as per the provisions of CRZ Notification 1991, necessary clearance from the GCZMA was obtained, vide their letter dated 5th August 2008. Subsequently, the cost of the project (bridge) got escalated due to several reasons and subsequent notice dated 5th February 2009 was for the estimated cost of about Rs.8.45 crores. The contention of the Applicant is that so called permission of GCZMA dated 5th August 2008 mentions "in principle" approval and do not show any clearance from the authority. We have gone through this permission which is as under:
Ref.No.GCZMA/S/07/35/471 Date 05/08/2008
To,
The Principal Chief Engineer,
Public Works Department,
Altinho-Panaji-Goa
Sub : 1. Construction of bridge across river Sal Alongwith road at Navelim and Benaulim Villages, Salcete Taluka.
Construction of bridge across river Sal Alongwith approach road at Varea and Telaulim villages.
Construction of bridge across river Sal alongwith approach road at Cavelossim and Assolna village, Salcete Taluka.
Ref : 1. Letter No. PWD/SDII/WDVI(R/S)/F/679/07-08 dated 07-03-2008 from Asstt. Engineer-II Works Division VI(R/S), Fatorda Margao-Goa.
Letter No. PWD/SDII/WDVI(R/S)/F/678/07-08 dated 07-03-2008 from Asstt. Engineer-II Works Division VI(R/S), Fatorda Margao-Goa
Letter No. PWD/SDII/WDVI(R/S)/F.WF/07-08/680 dated 07-03-2008 from Asstt. Engineer-II, Works Division VI(R/S), Fatorda Margao-Goa.
Sir,
The proposals submitted by Public Works Department for the construction of bridges (referred above) were discussed during the 40th Goa Coastal Zone Management Authority (GCZMA) meeting held on 08-05-2008 and GCZMA has decided to accord in principle approval for aforestated project, subject to the condition that no filling will be permissible of the Khazan areas and the mangroves area if affected have to be suitably compensated and afforestation programme conducted by the respective agency. The detailed construction plans should be submitted to this office for verification and pre & post construction environmental management and mitigation plan should be prepared and observed.
Yours faithfully,
Sd/-
(Michael M.D'Souza)
Member Secretary (GCZMA) & Director/Ex-officio Jt. Secy.(STE)
It is interesting to note here that the said letter do not refer to any final decision taken by the Authority and just refers to "in principle" approval. We do not know the authority and scope of such "in principle" clearance. The cost of the work order issued in August 2010 to contractor was more than 5 cr. and no formal CRZ clearance, as mandated under CRZ Notification, 1991, was available at that point of time. Be that may as it is, the Hon'ble High Court on 7-10-2010 directed that the work of the construction on bridge shall not be re-commenced until CRZ clearance is obtained from the MoEF. As per contentions of the Respondent No.2, nearly 20 per cent work was completed as on 3rd May 2010. Considering the above, we do not have hesitation to hold that Respondent No.2 commenced the construction of bridge activity without the necessary CRZ permission. We also take a note of the orders of the Hon'ble High Court in the Civil Appeal No.218 of 2011 dated 8th October 2011 wherein the request of petitioners for grant of interim relief was rejected, having regard to the fact that the construction of the bridge was needed in the Public Interest and the same was delayed thereby resulting in cost escalation. The issue No.1 is accordingly answered in Affirmative.
Re : Issue No.II
The GCZMA had granted the "in principle" approval to the said project on 5-8-2008 which has been dealt in the earlier paras. Subsequently, as per the orders of Hon'ble High Court, the Respondent No.2 had approached MoEF for grant of the clearance. Expert Appraisal Committee (EAC) of MoEF considered the project in its meeting held on 21st September 2010. We have gone through the minutes of the Expert Appraisal Committee carefully and note the observations of the Committee.
"This is complaint against the project that the constructions are proposed in CRZ-I(i) area-mangrove. There was a court case against the project (362/2010). The petitioner has withdrawn the case.
During the discussion, the following points emerged:
i) Clarification on the CRZ classification as per the approved CZMP.
ii) Superimpose the layout showing the proposed facilities on the HTL/LTL map prepared by an authorized agency.
iii) Submit the details of mangroves present in the proposed site, alongwith types, density etc. and likely to be removed for the project. Submit the details of mangrove plantation.
In view of the foregoing observations, the Committee deferred the proposal and shall be considered after the above observations are addressed and submitted for reconsideration."
Subsequently, CRZ Notification 2009 was superseded by the CRZ Notification 2011. The MoEF vide letter dated 2nd May 2011 returned the project file to GCZMA to take a decision on the file as the project then needed clearance from SCZMA as per CRZ Notification 2011. We have also gone through the minutes of 60th Meeting of GCZMA held on 14th July 2011 and the relevant minutes are as under:
"Case No.5.4
Proposed construction of bridge with approach road on Sal river at Benaulim-Sinquetim bridge.
Decision: Approved, the said proposal has been approved earlier. The matter was referred to MoEF following Court Orders. MoEF has resubmitted the matter to GCZMA for a decision at their end as per the CRZ Notification 2011. It was decided to approve the proposal and refer the same to SEAC for its consideration."
The Applicants submit that as per the regulation 4.2 of the CRZ Notification, 2011, there is an elaborate procedure and documentation required for considering, even the permitted activities, for CRZ clearance. The Applicants claim that the State CRZ Authority has not followed the stipulated procedure while granting the clearance dated 24th August 2011. We have gone through the documents and could not ascertain ourselves whether the queries raised by MoEF were complied with by the Respondents and further, whether the due compliance etc. were made by the Respondents before Appraisal was done by the GCZMA. We also note that the GCZMA's Affidavits have not countered such a claim or objection raised by the Applicant. We could see that even the permission granted on 24th August 2011, does not refer to any such communications or submission of the queries subsequent to the MoEF- EAC meeting. In absence of such documents/record, we are constrained to note that the due process has not been followed while granting the CRZ clearance for this particular project by the GCZMA. However, we are not inclined to quash its CRZ clearance dated 25-8-2011, granted to the construction of the bridge in question at this stage primarily for three reasons :
i. Hon'ble High Court in its order dated 8th December 2011 in Civil Application No.218 of 2011 in this matter has not entertained the claim for interim relief by the Applicant while noting that the project is of construction of a bridge needed in public interest and the same has been delayed thereby resulting in cost escalation.
ii. As per the visit reports of GCZMA, the only superstructure work i.e. deck-slab had remained to be constructed as in May 2014. This essentially indicates that the foundation work and also the other activities in CRZ area were already completed and therefore, this is a "fait accompli" situation.
iii. The Applicants remained absent in the proceedings before the Tribunal and such prayer has not been pressed by them.
Re : Issue No.3 :
Admittedly, the proposed project is of construction of a bridge over river Sal connecting Benaulim village and Sinquetim at Navelim village at Salcete by Respondent No.2. It is matter of record that the work order of the said project was issued to the Contractor on 5-8-2009 and work started immediately thereafter. Subsequently, there was an order for not starting the work without necessary CRZ clearance from MoEF, issued by Hon'ble High Court which was valid till to 8-10-2011. As per the visit reports submitted by GCZMA in June 2014, the entire sub structure work is completed and superstructure work i.e. deck-slab is yet to be completed, thereby about 80 per cent of the bridge portion is completed. The petitioner has placed on record several photographs indicating the dumping of debris/soil in the water course in the CRZ area affecting free flow of water, which is an essential requirement for survival and growth of mangroves, which are visible in photographs. We have also raised our concerns on this issue and had sought a report from GCZMA whether the alleged dumping of soil/debris has been removed, in order to clear water flow. Further, the material dumped surrounding the pillar has been removed or not? We have perused the reports submitted by Member Secretary, dated 23-4-2014, 15-5-2014 and 20-6-2014 along with some photographs. It is seen from the documents available that the construction activities are now in full swing and the large area along the Bridge alignment is being used for construction activities. We have also noted that the report of the MCZMA claims that the debris is completely removed manually and there is a clear flow of water and the same is unobstructed. However, such observations are not supported either with the layout of such dumped material location/s, area and quantities of such dumping, the period and quantity of such removal of debris, location of re-dumping of the debris, effect of dumping on ecology and particularly the mangroves, prior status of the areas used for supporting the construction activities along with the river channel etc. The report is also not indicating any CRZ demarcation map of the area in question. In absence, of such critical information the Tribunal is faced with the difficult and challenging task of assessing the environmental impacts. GCZMA, being a specialized body having the benefit of Experts available with Authority was expected to conduct such inspections more scientifically and using latest analytical and computational tools including Google maps etc. We have also noted that prior to specific directions of this Tribunal, there is no record indicating any compliance monitoring done by the GCZMA, subsequent to the clearance granted by them on 24-8-2011. The GCZMA has now come up with an Action Plan for restoration of mangroves at Sinquetim Bridge.
We are constrained to take a serious view of the change in stand taken by Respondent No.2. We note that when the matter was before Hon'ble High Court, a consistent stand was taken by the Respondent-2 that four (4) lane motorable road is the requirement of area in the public interest. However, this stand was suddenly changed as referred in Affidavit of Respondent No.2 dated 17-4-2014, wherein it is now stated that the work of the Bridge was put on hold since April 2012 on instruction of state Government and further it was decided to alter the structural design of the said bridge, making the bridge usable only for two wheelers and pedestrians. It is necessary to record that though the use of bridge is changed, there is no change in structure design, since already the foundation work is over. This essentially means that the environmental fort print of the project remains unaltered. We could see from the record that though CRZ clearance is allegedly received on 25-8-2011 and Hon'ble High Court had declined to stay the construction on 8-10-2011, the work is still pending. It is noted that such pendency or delay of work has resulted into accumulation of debris, silt etc. in CRZ area.
As mentioned above, in the absence of any information on quantification of the area effected by the dumping of debris, quantity of debris etc. that has not been assessed by the GCZMA., it is necessary to ask MoEF to verify the actual work done regarding removal of debris and compliance of CRZ notification. Further, we are of the opinion that the Action Plan prepared by GCZMA, in consultation with the experts shall be implemented by the Respondent No.2. Considering the above facts and documents placed on record and also the visit reports of GCZMA, we have no hesitation to hold that the construction practices of the Respondent No.2 while constructing the bridge in question, are not environmental friendly and the debris/soil dumped by them in the CRZ area has caused environmental damages. This answers the issue No.(III).
In the result, instant Application is partly allowed with following directions :
1) Regional office or any authorized officer of MoEF shall conduct inspection of the site in question and verify the removal of debris, cutting of mangroves, and compliance of CRZ notification, 2011, within four (4) weeks. In case of non-compliance suitable action be taken in next four (4) weeks and a report be filed to this Tribunal on or before 31-12-2014. GCZMA to immediately inform Regional Office, MoEF about this order.
2) The Respondent No.2 i.e. Goa Public Works Department shall prepare the environmental responsibility policy framework as per Ministry of Environmental and Forest (MoEF) Circular dated 19-5-2011 in next six (6) months to avoid such environmental non compliances.
3) The GCZMA shall ensure the implementation of the Action Plan submitted on 16th July 2014 to be implemented by Respondent No.2 by December 2014. Dr. Antonio Mascarenhan, Scientist, NIO, Goa shall supervise such implementation and submit a compliance report to this Tribunal in January 2015. The Respondent No.2 and GCZMA shall facilitate his monthly visits to the site and report preparation by providing all necessary support and infrastructure. He shall be paid honorarium of Rs. 25,000/- (Rs. Twenty five thousand) by Respondent-2 for this assignment.
Accordingly, the Application is disposed of. No costs.