Goa Foundation vs Goa Coastal Zone Management Authority And Ors

By this order, preliminary objection raised in respect of limitation for filing of the appeal, is being considered and disposed of, in as much as , it is germen to further decision making, if we have to deal with the matter on merits. The Appellant has challenged impugned order of GCZMA (Respondent No.1) issued on 22nd Oct.,2013 and also urged for restoration of beach at Querim to its original condition by Respondent No.2, Viz.Goa State Infrastructure Development Corporation.

Undisputedly, there is river at Tiracoal,Goa. There is embankment of river on one side and opposite to other side, there is beach of Keri, which is abutting inward part of Sea. In between Keri beach, Tiracoal River beach and Keri water flows in confluence.

There is no dispute about the fact that the village Tiracoal is at a short distance from border of State of Maharashtra, particularly Vengurla Taluka (District Sindhudurg). Respondent No.2 is dealing in construction activities and development within the State of Goa. Respondent No.2 decided to construct a bridge across Tiracoal and Keri, costing about Rs.77 Crores. Respondent No.2, in fact, has constructed a small part of the bridge towards Tiracoal river side. However, no work has been yet commenced from Keri side. The work done from Tiracoal village side is also up to about 7 to10 % within the estuary.

Briefly stated, the Appellant's case is that, the work of bridge in question falls within the CRZ-I as per the approved Coastal Zone Management Plan and CRZ Notification. Respondent No.2 has not obtained approval of the MoEF as required under the CRZ notification, 2011. The permission granted by Respondent No.1 for construction work is illegal, because the construction work falls within the CRZ-I area and in violation of procedure laid down in CRZ Notification. The bridge on the southern side is being constructed in the No Development Zone (NDZ) zone, immediately on the eastern side of Querim beach which is demarcated at CRZ-I, as per the approved CZMP and CRZ notification. The bridge is being constructed without prescribed study of Environmental impact and that too, in the No Development Zone (NDZ) Querim across the river which is eco sensitive area. The northern side access in Tiracoal village is Forest land, for which there is no F.C. diversion order sought from Forest Conservative authority as per the Forest Conservation Act, 1980.

The Appellant alleges that, copies of the minutes of the GCZMA and NOC dated 22-10-2013 were obtained by him on 11-8-2014. The Appellant further alleges that, when he received knowledge of the construction on 13-7-2014, he filed complaint to the GCZMA and thereafter filed Application under RTI. The Appellant further alleges that, though the Application is not strictly within the time, set out in the NGT Act, it is still within time, from the knowledge of the work, which had commenced at the spot. So, the Appellant has sought condonation of delay in filing of the appeal.

Respondent No.1 (GCZMA) and Respondent No.2 raised preliminary objections, on the ground that, the appeal is barred by limitation and is liable to be dismissed, because, it is filed after 30 days and therefore, does not come within the ambit of Section 16 of NGT Act.

Before considering the issue of limitation, we shall first have a look at approved plan of Goa State Coastal Zone Management ( Annexure A). The plan of GCZMA dated October 22nd , 1996, reveals that, general conditions added in " Clause-A" to the extent, they are relevant and thus:

(i) X X X X

(ii) No activity that has been declared as prohibited under Section 2 of CRZ Notification, 1991 shall be carried out within the Coastal Regulation Zone.

(ii) The permissible activities shall be regulated in accordance with Section 3 and follow the norms for regulation as indicated in Section 6(2) of CRZ Notification,1991 as amended in 1994.

The Appellant made a complaint dated July 14th, 2014 to GCZMA which shows that, on July 13th 2014, the construction of bridge across the Tiracoal River was noticed by him. He, also stated in the complaint that, no permission can be given for such development in NDZ, thus, the Appellant was well aware that the area was within NDZ and the work was being done in such area before July 13th, 2014.

The documents placed on record, prima-facie show that, there are trees and there may be encroachment on forest on Tiracoal side. In other words, there could be requirement to obtain permission from

Forest Conservation Authority if the project is to be completed. What the Appellant is challenging in the present appeal is, however, CRZ permission dated 22nd Oct.2013. The impugned permission of the CRZ shows that, the GSIDC will be required to obtain all other permissions/approval, for the construction of the bridge, as required by law. In other words, without obtaining permissions of the competent authorities, the CRZ clearance cannot be effected. So also, reclamation of river in Goa is banned and therefore, Captain of Port will have to consider the proposal of NOC.

It is argued on behalf of the Appellant that, first date of knowledge shall be the date where from the knowledge of illegal order be considered and therefore, it is well within time. According to the Learned Advocate Norma Alvares, the Appellant came to know, only on 13th June 2014, that the construction was started without approval of the competent authority, and therefore, the complaint was lodged on next day. Thus, July 14th 2014 is the date which triggered limitation and as such, the appeal is within limitation, since it is filed on October 13th 2014. From the record, it appears that the Appellant submitted an Application of NOC issued by GCZMA, NOC issued by Captain of Port and Site Inspection under the RTI Act, 2005. This Application was submitted on August 6 th 2014. The applicant was directed to collect the copies on payment of required fees. It appears that, all the information was received by him on 11-8-2014, after collecting the copies. Obviously, the Appellant came to know about the impugned order on 11-8-2014, even assuming that, the copy was received somewhat late, though he came to know about earlier, yet date of knowledge of the Appellant is, somewhere in midst of August,2014. Filing of the appeal in the 2nd week of October, 2014, i.e. about one year after the knowledge, is outside the limitation, provided Under Section 16 of the NGT Act.

According to Advocate Norma Alvares, technical issue of limitation should not detain the Tribunal from considering of the appeal, which can be termed as an application, because the Appellant has also sought restoration of the land at the beach of Querim to its original condition, which is a relief, that falls within the provision of Section 14(1) r/w Section 15 & 18 of NGT Act. The contentions of Learned Advocate Norma Alvares is that, the limitation of six (6) months is applicable in case of Application filed U/Sc.14(1) r/w Section 14(3) of NGT Act from date of knowledge, even if the present Application is considered as an application, instead of an appeal. So, it is argued that the application/appeal is not barred by limitation.

At this juncture, it may be noted that the Appellant is well aware of the fact that, the appeal is not well within the time, prescribed under the NGT Act. For such a reason, in Para-27 of the Appeal-memo, it is stated as below.

" Though the Application is therefore strictly not within the time set out in the NGT Act, it is still within the time stipulated once the Appellant came to know. Therefore, Appellant seeks condontion of delay in filing this appeal."

The Appellant mainly seeks setting aside, the order of GCZMA passed on October 22nd 2013. Therefore, the main purpose of the appeal is to challenge the said order. The impugned order, in fact, came within knowledge of the Appellant when copies of the relevant communication was received by him after the Application filed under R.T.I. Obviously, the Appellant ought to have made it clear, as to when did he file Application under the R.T.I. He states that, he filed such Application on 25th Sept.2014 after conducting due research. He further states that, he has pleaded for condonation of delay, if any, in the appeal. The information received by him, in any case, was said to be after said application. The record shows that the documents were furnished to him on 11-8-2014. The GCZMA issued NOC dated 22-10-2013. The GCZMA has filed affidavit that minutes of GCZMA had been up loaded on the website, in the month of November, 2013 itself.

So far as the starting point of limitation for the purpose of appeal is concerned, U/Sc.16 of NGT Act, 2010, the limitation triggers when the Appellant can be attributed knowledge in relation to the impugned order, at first time. The Appellant has come up with a case that for the first time the activity of the construction was noted on 19-8-2014.He received reply from GSPCB on 28th Aug.2014. He received reply dated 16th Sept.2014 from GSIDC.

Chief bone of contention advanced by learned Advocate General appearing for the State of Goa is that, the Appellant had knowledge of the project in question since very beginning when the issue of Tiracoal Bridge and other bridges were discussed during a meeting held on 2-1-2012 between the Hon'ble Chief Minister and other officials. He pointed out that, the construction of Tiracoal Bridge finds mention in the Chief Minister's speech of May of 2012. Thus, the project was in contemplation of State of Goa since 2012 and this was known fact to the Appellant and all the concerned members of nearby area. The Appellant, however, submitted that in the Writ Petition filed before Hon'ble High Court of Bombay at Goa (W.P. No.362 of 2010, Civil Application No.155 of 2010) was filed in respect of similar matter. It is pointed out that, in his additional affidavit dated 7th Oct.2010 the Executive Engineer (PWD) stated that " The work of the construction of that bridge would not come be recommenced until the CRZ clearance is obtained from the Ministry of Environment & Forest (MOEF)." The Hon'ble High Court accepted the said statement. On the basis of such statement the Hon'ble High Court directed that, the construction of said bridge shall not be recommenced until the CRZ clearance is obtained from the MOEF, and for a period of 7 days thereafter. That was altogether different matter pertaining to Benaulim-Sinquetim in South Goa.

The Affidavit of Member Secretary of GCZMA shows that, permission of GCZMA was granted to the project of bridge in question I.e Bridge between river Tiracol and Keri as per communication dated 22nd May, 2011. His affidavit shows that, the proposed bridge from Keri to Tiracol is of 13 Mtrs and comprises of 10 (Ten) Piers. Out of them, 2(Two) Piers will be erected in the NDZ area towards Keri side and 2 (Two) Piers will be erected within in the NDZ area towards Tiracol side.The total area of land occupied on Keri side will be only of 21 Sq.Mtrs under the Piers and rest of the bridge will be suspended in the air above NDZ area, which would not involve any environmental degradation at all.

His affidavit further purports to show that, the construction of bridge is exempted under the EIA Notification from procedure to seek permission. Moreover, the CRZ Notification gives authority to the GCZMA and the Notification itself exempts the construction activities of the bridge from the CRZ Clearance.

The "exemption" is applicable to project in question, if it is so looked from the stand point of view of CRZ Notification. The CRZ Notification is issued with an object to regulate certain activities in the area between HTL & LTL and to protect the interest of fishermen, Sea water, islands, to conserve and protect the coastal status so on and so forth. The word "To Regulate" implies power to grant or reject any permission sought for. The regularity authority prima-facie has the powers to deny the permission if the Application does not satisfy parameters required for a particular regulations, in the present case CRZ norms or the EIA norms. It has also legal authority to grant such permission, if the norms are fulfilled. The very fact that MOEF referred the matter to the CRZ authority in similar case, in spite of directions of the Hon'ble High Court to consider the application, is indicative of the fact that the authority already with the GCZMA. The expression "Regulate" is clear from the dectums in "Maharashtra State Board of Secondary and Higher Secondary Education Vs. Paritosh Bhupesh kumar Sheth, (1984) 4 Supreme Court Cases 27, K.Ramanathan Vs. State of Tamilnadu & Another, (1985) 2 Supreme Court Cases 116, Asa Ram Vs. District Board, AIR 1959 Supreme Court 480.

A question may arise, as to why we are inclined to discuss the above legal position. This is because the Appellant has come up with a case that, the respondent No.2 ought to have approach MOEF and mere CRZ Clearance could not be sufficient. According to the Appellant, the Respondent No.2 by-passed the important stages of scoping, public consultation, Screening and appraisal, which are essential for decision making by the MOEF. The Appellant alleges that, the Respondent No.2 purposefully avoided the public hearing, in order to deprive the Appellant and public members to raise objections to the project, in order to avoid grievances by way of conducting public hearing. This being the main thrust of the contention in the appeal, we have taken prima facie review of the CRZ notification, in order to show that there may not be such ill-intention of the respondent No.2 to avoid public hearing while applying to the CRZ authority, for grant of permission to seek Clearance for the project of the bridge in question. The Appellant had knowledge that construction activities was going on when he visited the site, allegedly on 13th July, 2014. Thirty (30) days period from 13-7-2014 elapsed on 13th August, 2014. Even assuming that, the Appellant received knowledge of the EC after getting the relevant documents on 11-8-2014, yet, the appeal filed on 13th Oct.2014, is surely after the period of 30 days, from the date of such knowledge. The averment made in Para-14 of the appeal-memo goes to show that, the copy of the minutes of GCZMA meeting held on 15-10-2013 were down loaded from the web site of the authority as Annexure-I.

Reply to the complaint filed by the Appellant was received from the GCZMA on 26-8-2014, merely annexing approval. Even considering all these documents, the appeal filed on 10th Oct.2014, is barred by limitation, because it is filed, after 30 days, as prescribed period under Section 16 of NGT Act, 2010.

There can be no doubt that, the delay can be condoned as provided under Section 16, if "Sufficient Cause" is shown by the Appellant and the extension of such period can be up to 60 days further." Thus, there is outer limit of 90 days provided by Section 16 of NGT Act, for filing of the appeal. Unfortunately, in the present appeal, the Appellant has not filed any separate Application for delay condonation. The Appellant has not given any "Sufficient cause" for the delay. The delay is not explained at all. The Appellant has not shown as to why the delay is caused after the initial prescribed period of thirty (30) days and why explanation of such delay under proviso appended to Section 16, is required to be granted, as an exemption or by way of special reason. In the absence of such special case made out, the Tribunal cannot assume that, there exited some "Special Reasons " "Special cause" for the Appellant to file appeal after a period of 30 days, which is prescribed under Section 16 of the NGT Act,2010.

By now, it is well settled that, the period of limitation cannot be extended beyond the prescribed period under special enactment. The NGT Act is special enactment and therefore, the period of limitation prescribed under a particular provision, cannot be extended by applying general provisions of the other enactment. In case of "Medha Patkar Vs. MOEF & Ors " (Appeal No.1 of 2013) Hon'ble Principal Bench of NGT,Delhi held that the period of limitation is not extendable beyond the period provided under Section 16 of the NGT Act,2010.

So also, in Raza Ahmad Vs. State of Chhattisgarh & Ors., it is held that:

"The Tribunal must adopt a pragmatic and practical approach that would also be in consonance with the provisions of the Act providing limitation. Firstly, the limitation would never begin to run and no act would determine when such limitation would stop running as anyone of the stakeholders may not satisfy or comply with all its obligations prescribed under the Act. To conclude that it is only when all the stakeholders had completed in entirety their respective obligations under the respective provisions, read with the notification of 2006, then alone the period of limitation shall begin to run, would be an interpretation which will frustrate the very object of the Act and would also cause serious prejudice to all concerned. Firstly, the completely frustrates the purpose of prescription of limitation. Secondly, a project proponent who has obtained environmental clearance and thereafter spent crores of rupees on establishment and operation of the project, would be exposed to uncertainty, dander of unnecessary litigation and even the possibility of jeopardizing the interest of his project after years have lapsed. This cannot be the intent of law. "

From the above observations, it is quite clear that, the limitation available under Section 16 (1) cannot be extended, nor any sufficient cause is shown to grant such extension and therefore, appeal is barred by limitation. Therefore, objection raised by the respondents is legal and valid.

Alternative contentions of Learned Advocate Norma Alvares is that, the Application also seeks restoration of land and therefore, it would come within the ambit of Section 14 (1) of the NGT Act, 2010. We find it difficult to contingent the argument in as much as basically the subject matter is appeal against CRZ Clearance granted to the Respondent No.2 by GCZMA authority. The Appellant did not raise any "Substantial question" relating to enforcement of any legal right relating to environment as contemplated under Sub Section (1) of Section 14 in the appeal-memo. The wording of Section 14 of the NGT Act clearly indicate that, the Tribunal shall have jurisdiction over all civil cases, where substantial question relating to environment is involved. In the present case, assuming that this Tribunal has jurisdiction to decide the civil cases, where the dispute arises, in regard to implementation of enactment specified in Schedule-I, then also the period of limitation is of six (6) months from the date on which the cause of action for such dispute first arose. The distinguishing features of Section 14 (3) and Section 16 (1)(a)(j) may be understood with due reference to the words implied by the Legislature, while drafting both these provisions. It is pertinent to note that, Section 16 of the NGT Act, deals with the appellate jurisdiction of the Tribunal, especially that provides for period of Thirty (30) days from the date on which the order or decision or direction or determination is communicated to him, to prefer an appeal. Whereas, Section 14(3) states that, no Application for adjudication of dispute under this section shall be entertained by the Tribunal, unless it is made within the period of six (6) months from the date on which the cause of action for such dispute first arose. In other words, the Legislature intended to make difference between expression "Cause of action" for such dispute and the date on which the order or decision was communicated. Secondly, the dispute can be filed only when it relates to a substantial question in respect of enforcement of any "Legal rights relating to environment". Whereas an appeal would lie against an order or directions or determination of any question. In the appeal-memo, the Appellant has not described that, he raises any particular dispute relating to environment of legal right, and the Application falls within the ambit of Section 14(1) and therefore, the limitation under Section 14(3) of the NGT Act is applicable. The simple case of the applicant is that, the impugned order passed by the GCZMA is illegal, incorrect and improper. The Appellant alleges that, the decision making authority is MOEF and not the GCZMA and therefore, the impugned order is illegal, which is therefore impugned on ground of basic legality. It is for such reasons, including violations of EIA notification and conditions of CRZ that the impugned work of the bridge in question is under challenge in the appeal. As stated before, even if, the response to the RTI Application is considered as triggering point and then also the appeal under Section 16 of the NGT Act is barred by limitation.

In the result, the preliminary objection is upheld and hence the appeal is held as barred by limitation. The appeal is accordingly dismissed. No costs.

Considering the fact that prima facie there appears certain material, which indicate violation of CRZ, we grant liberty to the Applicant to file Application or any petition as may be permissible under the Law to challenge the impugned project/ CRZ order non-compliance and for that two (2) weeks the Status quo is continued, as per the statement made by the learned Advocate General.