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Judgment
The Applicants claiming to be environmentalists have initiated this Application under Section 14, 15, 16 and 17 of the National Green Tribunal Act, 2010 seeking direction to Deltin Caravel (M.V. Royale Flotel) Registration No.KWR-050 to be removed from the Mandovi River and placed outside 12 nautical miles as it is alleged to be running offshore Casino/Flotel/Hotel of Commercial area of 4400 m2. They also seek direction to Government and Ministry of Environment and Forest to declare one km buffer zone - Dr. Salim Ali Bird Sanctuary Charao Tiswadi, Goa as per Government guidelines and the Draft Notification dated 03.03.2014 issued in terms of the order of Hon'ble Supreme Court. The third direction sought is against Goa Coastal Zone Management (GCZMA)/Biodiversity Board and Ministry of Environment and Forest to seal the Off Shore Gambling Casino/Flotel/Hotel i.e Deltin Carevela which is alleged to be violating CRZ norms in NDZ. Last direction is against Goa State Pollution Control Board (GSPCB) to withdraw the consent to operate as the consent was initially taken for one namely Vessel Royale Flotel Registration No.BDR-IV-01341 and replaced by Royale Flotel Registration No.KWR-050 alleged to be result of fraud played by Respondent No.1 on GSPCB. They also seek compensation for loss of livelihood to Fishermen and damage to environment.
The Applicants had also sought interim directions against GCZMA to stay commercial activities in NDZ of CRZ by the Vessel Deltin Carevela by M.V. Royale Flotel in buffer zone of Dr. Salim Ali Bird Sanctuary Charao in Mandovi River and also, immediate withdrawal of mooring permission granted by Captain of Ports and summoning of James Braganza and Sharmila Monterio for giving permission in violation of laws.
Upon issuance of the Notice, the Respondents are duly represented. The Deltin Carevela Vessel in question and its management is arrayed as 1 stRespondent. The Chief Secretary, Government of Goa - 2nd Respondent, Member Secretary, GCZMA - 3rd Respondent, The Forest Department - 4th Respondent. They have also impleaded the Member Secretary, Biodiversity Board, Director of Fisheries, Police Inspector Marine Police Station, The Collector, North Goa, Director of River and Navigation Department, The Secretary, Ministry of Environment and Forest and several others as Respondents.
In support of the reliefs sought, the Applicants have elaborately averred several facts and circumstances but for our purpose it will suffice if we refer to certain material averments in paragraph Nos.16, 17, 18 and 20 of the petition. The substance of averments in these paragraphs is that a Vessel Flotel is floating hotel and casino with three floors and 3 DG sets of 350 KVA which is registered in the name and style "Deltin Carevela" (three floors) and is now brought through sail into buffer zone within 200 meters of Dr. Salim Ali Bird Sanctuary and in the river Mandovi. The area is in CRZ-1. The vessel is at position with geo-coordinates of 15030' 25.00"N and 73051' 20.00"E in Eco Sensitive Zone and in CRZ-1 Zone in violation of the Environment (Protection) Act, 1986 and the Coastal Regulation Zone Notification of the Ministry of Environment and Forest dated 6th January, 2011. The Flotel Vessel namely Deltin Carevela is Off- Shore Casino. Noticing that the Vessel has violated all provisions relating to environment protection and CRZ Notification to move into land water within a proximate distance of Dr. Salim Ali Bird Sanctuary, the Applicants lodged several complaints to statutory authorities (Respondents) but they have failed to take action. The Captain of Ports without seeking clarification and comment from the GCZMA and Bio-diversity Board or the Forest Department has granted permission. The permission is misused by the Deltin Carevela - Respondent No.1. The Vessel has therefore violated the statutory restrictions causing adverse effects on the bio-diversity of the area and eco-sensitive zone. The complaints filed by the Applicants dated 22nd June, 2016 and 1st July, 2016 copy of which is annexed to the petition are said to have been ignored by the authorities.
They also refer to the noting of GSPCB and the permission given to the Flotel by Captain of Ports wherein it is recorded that the Flotel is not running casino, suppressing the fact that there were six gaming section of casino and casino machinery was already installed in the Vessel. They rely on the noting of Mr. Nandan Prabhudesai, GCZMA dated 5th July, 2016 and the inspection report of GSPCB on 29th June, 2016 conducted by Mr. Bento Thomas and Mr. Kamlesh Kavlekar. They rely on the Report dated 5th July, 2016 to show that they have recorded six rooms casino section where casino machines were installed. It is alleged that despite all these materials having made available to the Respondents, on 24th June, 2016 the Respondent No.1 sent a message consequent to casino activity was suspended by Respondent No.1 during inspection.
Referring to the documents on record, they submit that Vessel was granted license initially based on Panjim Jetty next to Captain of Ports/Fisheries Dept had Registration No. M.V. Royal Deltin Carevela Flotel Registration No.BDR-IV-01341 that was the Vessel with casino machines installed two floors. It is now replaced by vessel M.V. Royale Flotel Deltin Carevela Registration No.KWR-050. In short, their contention is that license obtained for another vessel is being applied as license for the Deltin Carevela which has different registration number.
Referring to the guidelines issued by Ministry of Environment and Forest on 9th February, 2011 declaring Eco-Sensitive Zone around National Parks and Wildlife Sanctuaries as 10 kms buffer zone, they contend that particular guideline in Draft Notification has already been published on 3rd March, 2014 keeping 1 km as buffer zone for Dr. Salim Ali Bird Sanctuary extending over 1.78 sq.kms but due to casino lobby and involvement of some politician, the Department decided conducting public hearing. It is clear that they are now seeking enforcement of the guidelines of the Environment (Protection) Act in the eco-fragile zone being which is within 10 kms limit of Dr. Salim Ali Bird Sanctuary. With regard to impact on the environment, it is averred that the Vessel Deltin Caravel being within 200 meters of Dr. Salim Ali Bird Sanctuary is causing havoc to the flora and fauna of the ocean and the river. Ban imposed by the Government for any commercial activity is not being enforced. They also rely on certain case laws wherein this Tribunal and Constitutional Courts have issued mandates.
Amongst Respondents, first Respondent is the contesting Respondent who has in its Statement of Objection/Reply, refuting the allegations made in the Application inter alia has raised following specific defense:
(A) That the Application be rejected at the threshold as there is no violation committed by this Respondent of any environmental law particularly the Environment (Protection) Act, 1986, Bio Diversity Act, 2002 or Coastal Regulation Zone Notification dated 6th January, 2011. The Application is also devoid of merits for the reason the main grievance is of alleged non-compliance to the "Draft Notification" of the MoEF dated 3rd March, 2014 since it is no longer a law being in form of Draft Notification describing Eco-Sensitive Zone near Dr. Salim Ali Bird Sanctuary.
(B) That the MoEF has issued and published a Final Notification dated 24th February, 2015 in respect of Dr. Salim Ali Bird Sanctuary notifying an area upto river bank abutting the Dr. Salim Ali Bird Sanctuary on the three sides of the said Sanctuary and to the extent of 100 meters on the eastern side towards Chorao Village from the Sanctuary in the State of Goa as the Eco-Sensitive Zone. Factually the Vessel of the Respondent No.1 is approximately 300 meters on the southern side of the River Mandovi and as such is in compliance with the said Notification. They rely on the Inspection Report at page-115 of the Application which shows that the Vessel is at any rate 200 meters away from the Bird Sanctuary. The Vessel is, therefore, said to be moored outside the buffer zone/Eco-Sensitive Zone declared by law.
Thus, it is contended that in absence of any challenge to the Notification dated 24th February, 2015 the positioning of the Vessel in terms thereof cannot give rise to any cause of action under the Draft Notification referred to by the Applicants in their Application.
(C) That the Applicants have misled the Tribunal on relevant facts for the reason that the 1st Respondent vessel "M.V. Royal Flotel" has not been fraudulently registered twice. In this behalf, they contend that the 1st Respondent is wrongly described whereas 'Deltin Caravela' is vessel which is owned by 'High Street Curises and Entertainment Pvt. Ltd.' a Private Limited Company duly registered under the provisions of Companies Act. The said Company is the owner of the Vessel Deltin Caravela and thus Deltin Caravela cannot be identified as a legal entity to proceed against. On this ground only the Application needs to be rejected for non-description of the 1st Respondent.
(D) It is further averred that the Company has its place of business registered at Bayside Mall, 2nd Floor, opp. Sobo Central Mall, Tardeo Road, Haji Ali, Mumbai. The Vessel was first registered with the Maharashtra Maritime Board, Mumbai under the Registration No.BDR-IV-01341 and subsequently as being decided to move its position and ply the vessel outside Maharashtra, and the 1st Respondent obtained No Objection from Maharashtra Maritime Board, Mumbai and moved to Inland Water in the State of Karnataka. It applied and obtained registration of the Vessel from the Department of Ports & Inland Water Transport, Government of Karnataka under Registration No.KWR-050. This factual position is twisted by the Applicants to raise imaginary grounds with oblique motives. The Vessel is not being run under two different registration numbers. Upon registration of the vessel with the State of Karnataka, the registration granted by Maharashtra Maritime Board, Mumbai is of no consequence. Thus, there is no illegality. The 1st Respondent has also obtained permission for sail of the Vessel with eight rooms, gaming area, a library, restaurant, jacuzzi and spa. It has obtained requisite permission under environmental laws and consent to operate under the Water Act as well as Air Act from the competent authorities including permission under Hazardous Waste Rules, 2008 from Goa State Pollution Control Board. They produce copy of the same to substantiate their contention.
(E) It is further averred that the vessel is provided with required paraphernalia to support the operation of the vessel without causing any harm to eco-system or biodiversity in terms of consent to operate. The vessel is not permitted to generate more than 10 KLD of sewage and sullage on a daily basis. The 1st Respondent is fitted with Sewage Holding Tank with a capacity of 40 KLD which is four times the capacity of sewage generation and sullage on a daily basis. The 1st Respondent has Sewage Treatment Plant aboard the vessel. However, as the Sewage Treatment Plant of the Public Work Department at Tonca-Goa requires large quantity of sewage and sullage for its efficient functioning, a system has been devised by GSPCB pursuant to the directions of this Tribunal whereby the sewage is collected and transported to Public Work Department, Sewage Treatment Plant following several steps. The 1stRespondent has described various steps that are being followed, amongst which it is matter of interest to note that as per GSPCB guidelines the Operator of the Vessel informs the office of GSPCB that they intend to discharge sewage from the Sewage Holding Tanks into the Sewage Service Vessel. After such Notice is given, the officials of GSPCB and the Caption of Ports seal the discharge point of the Sewage Holding Tanks. Then the officials of GSPCB and Caption of Ports visit the Vessel and in their presence the sewage and sullage is pumped out from the Sewage Holding Tanks into the Sewage Service Vessel. The 1st Respondent claims to have purchased a Sewage Service Vessel at a cost of Rs.18,68,000/-. Referring to this factual information, it is contended that the sewage and sullage so transported was taken,under the supervision of the Board officials, through such arrangements to the Jetty where Night Soil Tankers are already stationed. At the Jetty, the sewage and sullage from the Sewage Service Vessel is pumped into the Night Soil Tankers. The Night Soil Tankers carry sewage and sullage by road to the Public Work Department Sewage Treatment Plant at Tonca-Goa which is about 5-6 kms away from the Jetty. In this manner, full-proof system is involved to avoid discharge of sewage into river where the vessel is moored.
(F) They further contend that the cruise owned by 1st Respondent is licensed to carry commercial activity of running hotel, casino and other facilities. They rely on the permission granted by the Competent Authority and Captain of Ports in this behalf.
(G) However, with regard to allegation that the Vessel of 1st Respondent situates within the Eco-Sensitive Zone from Dr. Salim Ali Bird Sanctuary and the Vessel has changed its location from next to Panaji Jetty to the present location which is within Eco-Sensitive Zone from Dr. Salim Ali Bird Sanctuary, is denied. They contend that the Vessel is located on the southern side of Dr. Salim Ali Bird Sanctuary, Ribandar stretch of Mandovi River. In terms of the Final Notification dated 24th February, 2015 issued by MoEF in respect of Dr. Salim Ali Bird Sanctuary, Ribandar stretch of River Mandovi, the extent of Eco-Sensitive Zone on the Northern, Southern and Western boundaries of Dr. Salim Ali Bird Sanctuary is upto the shore/bank of River Mandovi. On the Eastern side, the extent of Eco-Sensitive from Dr. Salim Ali Bird Sanctuary has been extended to the extent of 100 meters. The longitudes and latitudes of the Vessel indicates that it is on the Southern side of Dr. Salim Ali Bird Sanctuary. It is approximately 300 meters from the Northern bank of River Mandovi which forms the Southern side of Dr. Salim Ali Bird Sanctuary and the Vessel is located well beyond the Eco-Sensitive Zone by virtue of the Notification dated 24th February, 2015.
(H) They further contend that on the date when the matter was heard by the Tribunal, the Vessel which was initially given a mooring position at Latitude 15030'22.0" North and Longitude 50038'4" East Location. This location was directed to be changed by the Captain of Ports in consultation with the Government of Goa vide Permission dated 15th June, 2016 and presently the Vessel is at location which is sanctioned and authorized by Respondent No.14 in consultation to the Government of Goa. Thus, the facts alleged by the Applicants have varied and base on the present location no cause of action survives.
(I) They further contend that they have obtained casino licence and other requisite permissions which are not questioned and challenged by the Applicants, therefore a vague petition seeking direction to remove the Vessel from its present position is required to be dismissed with an exemplary cost.
We have given due consideration to all the points urged upon both parties i.e. Applicants and contesting Respondent.
Elaborated narration of facts and circumstances in the Application and reliefs sought by the Applicants should be such as to raise a 'dispute' on a substantial question of law, relating to environment its protection, its degradation and such dispute shall directly or indirectly be in a prescribed or envisaged preferred to in Schedule-I of the National Green Tribunal Act, 2010. Necessarily, we need to examine the facts and circumstances for ascertainment as to whether there is any substantial question relating to environment, if so whether grounds urged in the Application and defense taken by the Respondents substantiate necessity for adjudication of the dispute. In the instant case, we have extracted substance on the grounds in the Application and the defense of the contesting Respondent.
From the facts so narrated as grounds what emerges is that the Respondent No.1 is a Vessel with commercial activity and a Casino. It has cruised into inland water of Porvorim Bardez Goa and it has moored therein offering Casino and other gambling activities. They have seriously questioned its right to be moored into the present location to offer Casino and other entertainment activities which are detrimental to the ecology and are in violation of Eco-Sensitive Zone. Thus, the Applicants seek to raise a dispute about the legality of the permission, if any granted to the 1st Respondent to sail its Vessel into the inland water at River Mandovi for its commercial activity. They have thus sought withdrawal of the Vessel from the present location and ban its entry into Eco-Sensitive Zone on assertive contention that it is in a proximate distance to Dr. Salim Ali Bird Sanctuary a protected area. They have described inaction on the part of other Respondents - Statutory authorities as silent spectators breaching public trust doctrine in giving permission to such Vessel.
The relevant facts pleaded by the Applicants to bring home the point that the Vessel has no legal permission to be in its present location as it is in prohibited area under Eco-Sensitive Zone within the approximate distance of Dr. Salim Ali Bird Sanctuary. They contend that the 1st Respondent has played fraud on the Department concerned including the Government.
For instance, they contend that the Vessel was initially granted license based on Panjim Jetty next to Captain of Ports with Registration No. M.V. Royal Deltin Carevela Flotel Reg No.BDR-IV-01341. 1st Respondent has misused the said registration and obtained fresh registration as M.V. Royal Flotel Deltin Carevela with Reg No.KWR-050 with eight hotel rooms, six casino machine rooms and two Suits with one restaurant and one spa and three floors. They contend that such act is fraudulent and the registration obtained for particular one Vessel is being used for another Vessel which has different accommodation and a Casino.
We have examined this issue and bestowed our concern. As could be seen from the undisputed facts, the 1 st Respondent claims having obtained all required permissions and consents in the name of M.V. Royale Flotel got it registered under the Inland Vessels Act, 1917 first from the Maharashtra Maritime Board, Mumbai who gave Registration No.BDR-IV-01341. Subsequently, they have applied to the Department of Ports & Inland Water Transport, Government of Karnataka, Karwar Port and obtained Registration No.KWR-050. The Vessel is presently being run with this registration number. From the documents filed by 1st Respondent, we are satisfied that Registration No.BDR-IV-01341 is registration number issued by Maharashtra Maritime Board, Mumbai and the Vessel has been merely re-registered on territorial jurisdictional aspect in the Department of Ports and Inland Water Transport, Government of Karnataka as is required under the provisions of Inland Vessels Act, 1917. Thus, we do not find that there is any fraudulent conduct or any fraud played by the 1st Respondent. Either way, the averments in the Application itself is that Vessel in respect of which registration has been granted had a provision for Casino.
Now with regard to main allegation that the Vessel is in Eco-Sensitive Zone being in the vicinity of Dr. Salim Ali Bird Sanctuary, the 1st Respondent has brought out that the Vessel had sailed in the inland water of River Mandovi and as per permissions granted by the Competent Authorities i.e. Captain of Ports had moored at a location which is near to Dr. Salim Ali Bird Sanctuary. They contend that the Vessel is on the Southern side of Dr. Salim Ali Bird Sanctuary, Ribandar stretch of Mandovi River. The said location does not violate any of the provisions of the Final Notification dated 24th February, 2015 issued by Ministry of Environment and Forest in respect of Dr. Salim Ali Bird Sanctuary because the extent of Eco-Sensitive Zone on the Northern-Southern and Western boundaries of Dr. Salim Ali Bird Sanctuary is upto the Shore/Bank of River Mandovi. On the Eastern side, the extent of Eco-Sensitive Zone from Dr. Salim Ali Bird Sanctuary has been extended to an extent of 100 meters. The longitudes and latitudes of the said Vessel indicates it is on the Southern side of Dr. Salim Ali Bird Sanctuary which is approximately distance of 300 meters from the Northern Bank River Mandovi which forms the Southern side of Dr. Salim Ali Bird Sanctuary. The Applicants have not disputed this factual aspect but we are satisfied that the location of the Vessel is at location which is beyond the Eco-Sensitive Zone specified in the Final Notification dated 24th February, 2015. Therefore, we are constrained to discount the contention of the Applicants that the present location of the 1st Respondent Vessel is in Eco-Sensitive Zone as notified by MoEF in its Draft Notification dated 3rd March, 2014, because the Notification dated 3rd March, 2014 is only in its draft form and no final notification has been issued, whereas by virtue of Final Notification dated 24th February, 2015 Eco-Sensitive Zone has been defined and we have to adjudge the issue applying Notification dated 24th February, 2015 and not the Draft Notification.
On this ground the petition fails.
The second issue is about grant of permissions to the Vessel by Statutory Authorities viz. Respondent No.3 - GCZMA, Respondent No.4 - Forest Department, Respondent No.5 - Bio Diversity Board, Respondent No.9 - The Director of River and Navigation Department and the permission granted by Captain of Ports. There is no need to spend time in this issue for the reason except making a reference to those permissions and orders, the Applicants have not challenged any of the consents/permissions granted by the Authorities nor it has questioned the jurisdiction of the Captain of Ports to permit sailing of the Vessel into the Mandovi River to be moored in the present location.
Lastly, it is seen that even though the Applicant made allegation about location of the Deltin Carevela in a distance approximate to Dr. Salim Ali Bird Sanctuary allegedly in Eco-Sensitive Zone, by virtue of the order passed by Captain of Ports during the hearing of this matter, the Vessel has been removed from that position in which it was admittedly positioned to a position beyond the Eco-Sensitive Zone covered under both the Notifications referred to above. Therefore, the cause of action is dissipated rendering the relief sought in the Application is infructuous.
In the circumstances, we find no merit in the Application. The Application No.92/2016 is disposed of with no order as to costs.