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Judgment
This is a case where development of a beach side Resort/Hotel has been challenged by the Applicants stating violations of the provisions of the Coastal Zone Regulations, 2011. The Applicants who reside in the vicinity of the project in question have filed this Application under Section 14 and 15 of the National Green Tribunal Act, 2010 alleging the ongoing illegal Resort development in property bearing Survey Nos. 354/2, 355 and 354/7-A of Anjuna village, Bardez, Goa bearing Survey No.340/1, 353/5, 354/2, 355, 356/7 and 356/8 of village Anjuna standing in the name of Respondent No.10-M/s. Diana Buildwell Pvt. Ltd.
The Applicants claim that on 25th April 2015, they noticed hill cutting activities going on near the base of the Chapora Fort hill and ongoing construction of the road and helipad near the Fort a heritage site and falling within CRZ-I zone as per the Coastal Regulation Zone Notification, 2011.
The Applicants state that Respondent No.2 i.e. Goa Coastal Zone Management Authority (GCZMA) conducted on inspection on 14th May 2015, and found number of irregularities at the site and consequently issued directions to Respondent No.10, vide communication dated 27th May 2015, to remove the irregularities and restore the land to its original condition. It is also submitted that the Archaeology Department also conducted the site inspection and noted the illegal construction within the CRZ-I area. Applicants further refer to the Report of Goa State Biodiversity Board dated 7th May 2015 which also indicates that certain irregularities and illegalities were observed in project development being carried out by Respondent No.10. The Deputy Collector and Sub-Divisional Officer Mapusa also issued Stop Work orders on 28th May 2015.
The Applicants have averred that the irregularities and illegalities noticed in development can be classified area-wise i.e. (1) No construction/Development Zone (NDZ) of CRA-III i.e. High Tide Line to 200m from High Tide Line. (2) CRZ-III area which is from 200m to 500m High Tide Lines and (3) CRZ-I area. It is also submitted that the area falls within CRZ-III except area within 100m surrounding Chapora Fort which is classified as CRZ-I.
The Applicants state that several illegal developments like deep excavations, hill cutting and levelling of land are made without approval of the authorities and in violation of CRZ Notification, 2011. The Applicants have listed details of such infractions and violations i.e. illegal development in para 9-A of the Application which is re-produced below :-
S.
Survey
Nature of development
Distance
No.
No.
from HTL
(i)
340/1
Excavation of the entire plot (approx.
Within
200
1.5 m. depth) to lay 33 kv high
Mtr.
tension cable. The Sur.No.is within
30-40 mtr. of the HTL and has sand
dunes.
(ii)
354/2
Approx.
20
structures/
cottages
Within
200
constructed within 30-40 mtr. of the
Mts.
HTL
(iii)
354/9
Retaining wall is constructed by
Partly
within
cutting the hill upto 7-8 mtrs.
200 Mtrs. and
partly in 200-
500 Mtrs.
Construction
of
approximately
Partly
within
concrete buildings.
200 mts. And
partly in 200-
500 mts.
(iv)
355
Construction
of sewage
treatment
Within
200
plant and illegal hill cutting to lay
Mts.
sewage system pipelines.
(v)
356/7
Concrete
buildings
and
wooden
Partly
within
structures.
200 mts. And
party in
200-
500 mts.
Helipad
Within
200
mtrs.
Concrete steps towards Chapora Fort
Within
200
(CRZ-I)
Mtrs.
Barbed wire fencing
Within
200
Mtrs.
Hill cutting for construction of 6
Partly
within
Mtrs. wide road towards Chapora
200 Mtrs. and
Fort (CRZ-I)
partly in 200-
500 Mtrs.
(vi)
353/5
Excavation of land approxi-
Between
200-
Mately 45 mtr. length and depth of
500 Mtrs.
5-6 Mtrs.
(vii)
356/8
Excavation of land 7-8 mtrs. depth to
Between
200-
construct flyover/hotel building.
500 Mtrs.
It is also claimed that the temporary seasonal structure (24 wooden chalets) erected in survey No.354/2, 355 and 356/7-A of village Anjuna, which were expected to be removed by 10th June 2015, have not been removed fully.
The Applicants submit that the present construction of the hotel in between 200m to 500m can only be permitted subject to obtaining the prior clearance of the Ministry of Environment and Forest (MoEF) as per the CRZ Regulations 2011. It is submitted that certain authorised structures as of 19th February 1991, were existing at the site and any re-construction and extension of hotel would necessarily require the prior permission of the MoEF.
The Applicants submit that though the authorities have noted several irregularities and even issued Stop Work order and demolition order, the authorities were not serious in ensuring the compliance of CRZ Notification and taking stringent action on the observed violations as per Law. In fact their grievance is that the Authorities acted only when complaint was lodged by him. The Applicants submit that the cause of action first arose in this Application on 25th April 2015, when certain illegal structures and constructions were noticed by the Applicant and when subsequently, the concerned authorities confirmed such violations through their inspections and visit reports followed by directions issued to Respondent No.10, and therefore, the dispute as envisaged in Section 14 of the National Green Tribunal Act, could be raised once the alleged violations were confirmed by the authorities through their action.
The Applicants therefore, prayed :
A) To appoint an expert committee to look into the extent of damage cause to the environment due the illegal constructions carried out by Resp.No.10 and thereupon the findings of the Committee to order demolish the said illegal constructions.
B) Pending hearing and disposal of Application for and order directing Respondent Nos.2 to 9 to do all necessary work to stop the illegal construction carried out by the Respdt.No.10.
C) Ad-interim relief in term of prayer clause A and B.
D) Ad-interim ex-parte relief in term of prayer clause-C.
The Applicants filed additional affidavit dated 12 th March 2016, bringing on record new developments and construction made by Respondent No.10 in the year 2016. It is alleged that Respondent No.10 has recently constructed number of swimming pools/bathing tanks in front of the existing reconstructed cottages in CRZ-III NDZ area. It is submitted that there were existing structures for which GCZMA in the year 2011 granted NOC (No objection certificate) for re-construction with certain terms and conditions. However, Respondent No.10 has constructed certain new structures i.e. swimming pools/bathing tanks in the highly protected NDZ area within 200m of High Tide Line (HTL). It is also alleged that a new stepped access next to the helipad has been constructed. Further an access road to the existing structures is being constructed within 200m distance. A Sewage Treatment Facility is being constructed at S.No.355 within NDZ area for which no permission has been granted by authorities. Further, the Applicants submit that the reconstruction and extension of the entire hotel is without the mandatory permission which is to be obtained from MoEF, Government of India and Respondent No.10 has continued with the construction/development without the required mandatory permission of MoEF.
The Respondent No.9- Village Panchayat filed reply dated 23rd October, 2015, revealing the facts pertaining to the structures in question and contended that the Panchayat had not indulged in any illegality and will abide by the order of this Tribunal. Respondent No.9- Village Panchayat submitted that the Panchayat had granted construction licence (i) for re-construction of structures (subject to existing plinth) in the properties bearing Survey No.340/1,354/2,355,356/7(p), 356(5) of village Anjuna on 24.11.2011 and renewed it for further period of two (2) years vide order dated 29.12.2014,(ii) for re-construction and extension of hotel property existing on 7.9.2013, in Survey No.340/1,354/2,355,356/7(P), 356/8 and 353/3 of village Anjuna and permission/NOC dated 15.10.2014 for erection of twenty four (24) temporary seasonal structures in the properties bearing Survey Nos. 354/2,355 and 356/7-A of village Anjuna. Thus, according to Respondent No.9- Village Panchayat the construction carried out by the Respondent No.10 was duly approved/sanctioned by the Panchayat as Local Authority with condition that they had to take prior permission from CRZ for the same. Respondent No.9-Village Panchayat further revealed that the Town and Country Planning Department informed the Panchayat that in course of site inspection of the said property carried on 13.5.2015, five (5) additional structures within 200m of HTL, construction of helipad, stepped access at foot hill of Chapora Fort and barbed wire fencing with cement poles at the boundary of the said property was found developed by the Respondent No.10, without taking technical clearance from the Town & Country Planning Department and further requested the Panchayat to take appropriate action in the matter.
Based on these observations, Respondent No.9- Village Panchayat added issued stop-work Notice dated 1.6.2015 to the Respondent No.10 and asked Respondent No.10 to respond to it. The Respondent No.10, Village Panchayat added requested it to withdraw the stop work Notice vide replies dated 19.6.2015 and 20th August, 2015. The Town & Country Planning Department, thereafter, the Panchayat reveals held joint inspection of the property on 4.9.2015 and noticed that all five (5) structures in question with barbed wire fencing, cement concrete poles and helipad were found removed in joint site inspection. Respondent No.9-Village Panchayat submits that the Respondent No.10 wrote a letter dated 21.9.2015, enclosing therewith a compliance report issued by the Goa Coastal Zone Management Authority (GCZMA) and the Director of Archives and Archeology department and requested Village Panchayat to withdraw stop work Notice dated 1.6.2015. A compliance report dated 7.9.2015 issued by the Director of Archives and Archeology department, the Director of Archives and Archeology department added, reconfirmed the fact that the Respondent No.10 has stopped hill-cutting, removed Kaccha Road and barbed wire fencing thereby complied with the directions dated 26.5.2015.
Respondent No.10 placed his case before us with the reply dated 28th September, 2015. Respondent No.10-M/s Diana Buildwell Pvt. Ltd- the Project Proponent (PP) contended that after obtaining necessary permissions and approvals, the properties bearing Survey Nos.340 /1, 350/2, 355, 356/7A, 356/8 and 353/5 of village Anjuna-Caicua, with running beach Resort, was purchased by it from Sterling Hotel Resort (I) Ltd vide sale-deed dated 11.5.2007; and after obtaining necessary permissions for re-construction of existing cottages forming part of the Resort complex (22 cottages as on January 1,1991)/ approvals from GCZMA (NOC for re-construction dated 30th June,2011) and the Town & Country Planning Department (dated 21.10.2011), construction licences from Respondent No.9- Village Panchayat (licence dated 24.11.2011) and approved plans (approved by Respondent No.9- Village Panchayat and Respondent No.4- Town & Country Planning Department), the Respondent No.10 displayed the Board citing out details of the said permissions at the site of hotel at the end of April, 2012 and commenced re-construction of twenty two (22) existing structures in or about May, 2012 by dismantling existing structures. The Respondent No.10 submitted that the Application dated 12.10.2011 was moved for seeking permission to re- construct or extend the project within part of the said property from distance of 200-500m from HTL, before the GCZMA vide Application dated 12.10.2011 and this Application was accompanied by Environment Impact Assessment (EIA) report obtained by the Respondent No.10 from an authorized agency, namely; Aditya Environmental Services P. Ltd. GCZMA-Respondent No.10 added, informed it that if the additional built-up area was falling beyond limitation of 20,000sq.m the project would be required to be considered by the Ministry of Environment and Forest (MoEF) and thereupon the Respondent No.10 reduced built-up area of the project to 19800sqm. And submitted revised proposal for consideration of GCZMA to suggest that the proposal did not come under the purview of EIA Notification, 2006. The Respondent No.10 submits that GCZMA upon considering the recommendations of Goa State Environmental Impact Assessment Authority (SEIAA) issued no objection to re-construct all the existing Resorts/Hotels in Survey Nos. 340/1, 353/3, 354/2355, 356/17 -Part,354/8 and 353/5 of village Anjuna subject to certain terms and conditions mentioned in the letter dated 26.2.2013 (Annexure-R-7). Subsequently, Respondent No.10- Diana Build-well P. Ltd submits that it obtained permissions/approvals from Respondent No.4- Town & Country Planning Department and Respondent No.9- Village Panchayat and commenced work of construction in the month of October, 2013.
The Applicant filed additional affidavit dated 12 th March, 2016, bringing on record new developments and construction made by the Respondent No.10 in the year 2016. It is alleged that the Respondent No.10 recently constructed the number of Swimming Pools/Bathing Tanks in front of existing re-constructed cottages in CRZ-III- NDZ area, within 200m of HTL. The Applicants submitted that there were existing structures for which GCZMA in the year 2011 granted NOC with certain terms and conditions. The Applicant further submits that a new stepped access next to helipad and access road to the existing structures and Sewage Treatment Plant (STP) were being found constructed in NDZ area for which no permission had been granted by the Authorities.
According to the Applicants, re-construction and expansion of entire hotel s without valid permission from MoEF.
Respondent No.10 Diana Buildwell P. Ltd contended that the present Application fails to disclose 'cause of action' and is barred by limitation, as prescribed under the National Green Tribunal Act, 2010. In response thereto, the Applicants submit that cause of action first arose for filing the present Application on 25th April, 2015, when certain illegal construction activities were noticed by the Applicants and when subsequently concerned Authorities confirmed such violations through their inspection and visit reports followed by the directions issued to the Respondent No.10.
The Respondent No.10 denied building of any road or helipad near the Fort and hill-cutting, as alleged by the Applicants. The Respondent No.10- submitted that temporary chalets, barbed wire fencing, temporary labour sheds, helipad, steps access were removed as per the directions of the Authorities.
The pleadings placed before us, therefore, raises following points for our consideration are:
1) Whether the Application is barred by Limitation/
2) Whether NOCs/Clearances issued by GCZMA can be regarded as CRZ clearance under the CRZ Notifications?
3) Whether construction of STP, Rainwater Harvesting Tank (RWHT)/Bathing tanks, helipad, stepped access, barbed fencing etc. violate restrictions imposed under the CRZ Notification, 2011 and, if Yes, what action?
Before we dwell upon the issues, we find that the following facts are undisputed.
- Government of India in the Ministry of Environment and Forest (MoEF) has approved the Goa Coastal Zone Management Plan, as per the CRZ Notification, 1991, for the State of Goa on 22nd September, 1996. This plan is valid even today under the provisions of CRZ Notification, 2011, in view of the extensions given by the MoEF to the said plan. The Chapora Fort and area within 100m of the fort, in village Anjuna, Tq. Bardez has been classified as CRZ-I. Similarly, the sand dune have also been classified as CRZ-I.
- The CRZ Notification, 2011 has imposed certain restrictions in the CRZ-III areas, more elaborately detailed in para VIII of the CRZ Notification, 2011. The area up to 200m from the HTL in CRZ-III zone, on the landward side in case of seafront, is required to be earmarked as No Development Zone (NDZ) and specific restrictions are applicable in this CRZ-III-NDZ area. In area between 200 to 500m on the landward side in CRZ III zone, certain activities are permissible with specific conditions.
- The CRZ Regulation stipulates the Regulation of permissible activities in the CRZ area and also the procedure for clearance for permissible activities in para 4 of this Notification. The prohibited activities within the CRZ are listed in para 3 of this Notification.
- It is not disputed that Respondent No.10 purchased a property which had 22 existing structures within the 200m from HTL i.e. CRZ-III-NDZ area. GCZMA granted NOC to Respondent No.10 for reconstructing those 22 existing structures on 30th June 2011 subject to condition that there should not be increase in the existing FSI, plinth and density.
As far as area between 200m to 500m, the revised Application by Respondent No.10 to re-construct and extend the hotel was moved on 26 th February, 2013 and GCZMA issued CRZ Clearance for the proposed re-construction/extension of the hotel. Thereafter, on 28th March, 2014, GCZMA clarified that the clearance granted to the project is valid for five (5) years from the date of issue of clearance for commencement of construction and operation, making it clear that the clearance is valid up to 25 th February, 2018.
Learned Counsel appearing on behalf of the Respondent No.10 argued that the CRZ Clearance having been granted on 26th February, 2013 and the Board displaying grant of Clearances/ Permissions/ Approvals being put at the site in October, 2013 followed by commencement of the construction, triggered the period of limitation, the first cause of action having been arose on 26th February, 2013. He submitted that the Applicant No.1 is busy Body and as such, have complete and full knowledge of the project and it cannot be denied that he being resident of village Anjuna, that while commuting every day, he could view construction activity and its progress; and inspite of such clear knowledge he had chosen to file the complaint to GCZMA only in April, 2015. Learned Counsel Mr. Pereira appearing on behalf of the Respondent No.10 further submitted that MoEF/SEAC/SEIAA, being Statutory Authorities are necessary parties and having them not made parties, the Application must fail. He further submitted that the prayer under Section 15 of the National Green Tribunal Act, 2010 for compensation/restitution/restoration can be considered by the Tribunal only after hurdle of Section 14 of the said Act is crossed on determination of environmental damage. In view of the settled position taken by this Tribunal in M.A.No.74/2015, Original Application No.10/2014 (Lakhan Musafir Vs Sardar Sarovar Narmda Nigam Ltd & Ors).
Learned Counsel Mrs. Norma Alvares appearing on behalf of the Applicants submitted that they are not questioning merit of NOCs/Permissions/Clearances given by GCZMA for the project, but raising issue about competency of GCZMA to issue such NOC/Permission/Clearance on the premise that the project requires Clearance/Approval from MoEF as per the provisions of CRZ Notification,2011 and as such, NOC/Permission/Clearance issued by GCZMA in the present case has no force and construction activities done in pursuance thereto bring in its wake environmental damage, which warrants restoration. She further submitted that the dispute in the present controversy arose only when the local villagers noted illegal developmental activities in CRZ-I, Chapora Fort and other developments like landscaping, steps access construction, Rainwater Harvesting Tanks(RWHT) and hill cutting around 25th April, 2015; and thereafter the Authorities had inspected the said site, noticed illegalities and issued directions.
At the outset, the Application as placed before us reveals that there is no challenge to any NOC/Permission/Clearance except raising a contention that the construction in question is in violation of CRZ Notification, 2011 and seeks demolition of such constructions or developments. In substance therefor the Applicants state that the constructions/ developments carried has no sanction in the eye of law. The NOCs/ Permissions/Clearances are granted by GCZMA an Authority not competent to grant/issue such NOCs/Permissions/Clearances under CRZ Notification, 2011, and prayed for demolition of such constructions raised in pursuance thereto i.e. for restoration of environment damaged due to such constructions/developments.
An examination of Ss.14 and 15 of the National Green Tribunal Act, 2010, reveals that they operate in distinct fields. Under Section 14 of the said Act, the Tribunal deals with the disputes arising from substantial question relating to environment and arising out of implementation of the Enactments specified in Schedule-I of the Act, whereas, the Tribunal has to deal with the issues concerning:
(a) relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);
(b) for restitution of property damaged;
(c) for restitution of the environment for such area or areas, as the Tribunal may think fit. in the Application under Section 15 of the NGT Act.
It is the case of the Applicants that after noticing excavation being carried out near the beach and close to the Chapora Fort on 25th April, 2015, they were prompted to move the Authorities and as such, a substantial question relating to cumulative impact of entire development of the project on environment arose in their mind and subsequent to the said inspection carried out by GCZMA and directions issued, they were prompted to move an Application for restoration of environment and damage caused due to such constructions and prayed for demolition of such constructions. Section 15 (3) of the National Green Tribunal Act, 2010 prescribes the period of five (5) years for moving an Application for restitution/restoration of environment from the date of its cause of action for such relief first arose, assuming that accrual of cause of action is to be reckoned from grant of NOC/Permission/Clearance dated 26th February, 2013 by the GCZMA and commencement of construction in or abound October, 2013, the Application for restoration of environment is not barred by limitation, much less, from the date of noticing construction/development activity, namely; hill-cutting near Chapora Fort on 25th April, 2015. Hence, Point No.1 is answered negatively.
Issue No. 2
Chief bone of the contention raised by the Applicants is that NOCs/Clearances purportedly issued by GCZMA, particularly, CRZ Clearance dated 26th February, 2013, read with communication dated 20th March, 2014, is non-est, as GCZMA is not empowered to issue such CRZ Clearance under the CRZ Regulations, 2011.
Before dealing with this issue, it would be necessary to refer to both these documents in order to understand the conspectus of the litigation. It is an admitted fact that the proposed development envisaged by Respondent No.10 is in the CRZ-III area between 200m to 500m from the high tide line (HTL). The communication dated 26th February 2013 refers to the subject as "Proposed re-construction of the existing Resort/Hotel in survey Nos. 353/5, 354/2, 355, 356/17(Part), 356/8 and 353/5 beyond 200m of Anjuna Village, Bardez Taluka". Thereafter, it refers to the re-construction of the existing Resort/Hotel in plot Survey No. 340/1, 353/5, 354/2, 355, 356/17(Part), 356/8 and 353/5 beyond 200 m. of HTL at village Anjuna. The Communication also refers to the approval by the Goa SEIAA in its meeting dated 13th February 2013.
Thereafter, the GCZMA issued a Communication dated 28th March, 2014 regarding the extension of validity and the operative part of this communication is as follows :
"With reference to your letter No.NIL dated 04/02/2013 on the above subject mentioned, with a request of extension of permission, I am to inform you that as per the Regulation No.4.2(IV) of the CRZ Notification shall be valid for the period of five years from the date of issue of the clearance for commencement of construction and operation. As such, the clearance granted vide this Office letter No. GCZMA/N/12-13/14/1477 dated 26/02/2013 is valid upto 25/02/2018.
This is for your kind information and further needful action".
Learned counsel Mrs. Norma Alwares, highlighted that it is clear from the conjoint reading of both these communications that the GCZMA has issued these communication, which as per the GCZMA are purported to be CRZ clearance issued under para 4.2 of the CRZ Notification, 2011. She elaborately emphasised the provisions of para 4 and particularly para 4.2 to contend that the GCZMA is not the competent authority to grant any CRZ clearance but is only a recommendatory body. She contended that the Applicants have set the procedure for such clearance in motion by submitting revised Application for less than 20,000 m. built up area. As per para 4.2(ii) of CRZ notification 2011, GCZMA was required to make recommendations either to MoEF/SEIAA, if the Project attracts EIA Notification 2006 and if such project is not attracting the EIA Notification, then the recommendation should have been sent to MOEF. She argued that the GCZMA in utter disregard to these statutory provisions has granted the CRZ clearance itself. She further submits that in the year 2014, the para 4.2(ii)(b) of notification has been amended and SEIAA has been designated as authority for grant of CRZ clearance for the projects not covered by the EIA Notification. However, she contends that while issuing such clearance in February 2013, GCZMA was not competent to issue such communication, even if the SEIAA has looked into it.
Countering this argument, learned Sr. counsel Mr. Pareira for Respondent No.10 highlighting the procedure laid down in para 4.2(ii) submits that the project proponents are duty bound to apply in prescribed format to the GCZMA with the necessary documents for seeking prior CRZ clearance. Other aspects of the procedure are entirely within the domain of Regulatory Authorities including GCZMA, SEIAA and MoEF. He submits that as a project proponent, they do not have any say in this procedural aspect and they had bonafide belief that GCZMA, being Regulatory Authority under the CRZ Notification, is competent to issue the CRZ clearance. He submits that what is envisaged in para 4.2(ii) is that the project in CRZ area needs to be holistically considered both from CRZ considerations as well as for environmental impacts. He contends that in the instant case, both these issues have been thoroughly looked into by concerned Regulatory Authorities i.e. GCZMA and Goa SEIAA. He further contends that the MoEF in order to streamline the procedure and expedite the same has authorised the SEIAA to deal with CRZ clearance for the projects not attracting the EIA Notification, 2006. He emphasises that the present project has been appraised by both Goa SEAC and Goa SEIAA and they have approved the project. He, therefore, submits that even if, para 4.2(ii)(b) is to be applied today, the SEIAA is the competent authority and therefore as the Goa SEIAA has already approved this project, there is no irregularity or illegality in this regard.
While advancing another limb of argument on this issue, Learned counsel Mrs. Norma Alwares also relied on part 8(i)(III)(B)(i) of notification, wherein development of vacant plots in designated areas for construction of hotel/resort for tourists/visitors subject to the guidelines as Annexure III of CRZ Notification, 2011 are permissible. A plain reading of Annexure III would refer to guidelines for development of beach Resort/Hotel in the designated area of CRZ-III and CRZ- II for occupation of tourists or visitors with prior approval of Ministry of Environment and Forest. She, therefore, contends that in view of particular provision in para 8, the MoEF is the competent authority to grant clearance for proposed resort/hotel. She also submits that though the GCZMA communication dated 26th February, 2013 refers to re-construction but in fact, even as admitted by the Applicants and the Town Planning department, complete demolition of the existing structures is planned for re-development and extension of the Resort/project. She refers to communication from the Town Planning department dated 6th March, 2013 (page 164) to submit that this is re-construction and extension of hotel/swimming pool by the Respondent No.10. She also refers to the approved drawing which is at page 163 of the file to indicate that several small existing structures will be demolished to construct the main building. She also relied on the internal noting of the Town Planning department to show that there will be demolition of the existing structures and construction of a new structure with significant increase in the built up area and also an extension.
She further relied on the communication of the Goa SEAC dated 31st October 2011 (page 156) wherein the Goa SEAC has elaborately dealt with this issue. She relied on para (a) and (b) of this communication which is re-produced below:
a) The proposed site is located in between 200-500 mts. From the HTL and falls in the CRZ-III zone of Anjuna village, Bardez taluka. As such, the proposed developmental activity (i.e. reconstruction of existing Resort/Hotel) warrants NOC from the CRZ Authority concerned (MoEF / MoEF / NCZMA) at the first instance, subject to recommendation from the GCZMA as per CRZ Notification, 2011.
b) The PP proposes to reconstruct the existing Resort/Hotel by increasing its original plinth area in CRZ-III zone. As such, the proposed activity comes under the purview of Hon'ble High Court directives / legal intervention in respect of W.P. No. 422 of 1998 with W.P. No.99 of 1999. However, it is inferred that the said proposal, being a reconstruction of Resort / Hotel and that too with excess plinth area, does not qualify to be categorized as a project falling under "development in open plot in CRZ-III zone for construction of hotels / beach resorts as per Hon'ble High Court directions / judgment (refer 32(P) of the High Court directives).
As such, it is submitted that:
Either Hon'ble High Court may please be informed about the aforesaid site-specific development activity proposed in CRZ-III zone and obtain suitable opinion on this matter so as to make it applicable to all such similar cases, likely to be addressed/considered by the GCZMA in future.
Or the said proposal may please be forwarded to the MoEF for suitable comments/observations/consideration in light of the CRZ Notification, 2011.
She further submits that once the issue of CRZ clearance is clear, Goa SEIAA also suggested action to be taken for the EIA Clearance. The Goa SEIAA has accordingly appraised the project and as per para 'C' of that communication noted that the proposal is not for new hotel construction but for reconstruction of existing hotel/Resort and as such, SEIAA recommended it to be considered favourably with a request to GCZMA to appraise the same as per the provisions of CRZ Notification, 2011. She, therefore, contends that the Goa SEAC and Goa SEIAA were of the considered opinion that the proposal is to be cleared in view of the provisions of CRZ Notification, 2011 by MoEF and, therefore, asked GCZMA to appraise the same as per provisions of CRZ Notification, 2011.
Countering this argument, learned Sr. Counsel Mr. Pareira submits that the provisions of para 8 of notification are limited to vacant plots and after due consideration, the GCZMA has considered it to be a reconstruction as there were existing structures on the plot. He categorically submits that in view of the appraisal by the GCZMA, the Goa SEAC/Goa SEIAA both the environmental as well as coastal zone issues have been thoroughly appraised and at this stage, after near three years, the decision of both the authorities shall not be reviewed for legality by the Tribunal, as if in Appeal proceedings. Such considerations would then be effectively dealt with in the Appeal proceedings which are hopelessly time barred. He submitted that what is legally impermissible directly, cannot be done indirectly. He laid emphasis on the principle of sustainable development enunciated in Section 20 of the National Green Tribunal Act, 2010. He further submits that the project is environmentally benign and sustainability of the project has been appraised by the concerned authorities and in fact, the Respondent No.10 is willing to take any other constructive environmental measures as directed by the Tribunal.
Learned Counsel Mrs. F.M. Mesquita appearing for all Government Respondents, elaborately explained the procedure adopted by the GCZMA and submitted that only after the approval/appraisal by the Goa SEAC/Goa SEIAA, they have granted this clearance. She also submits that being a regulatory authority, the GCZMA has powers to regulate the permissible activities and the Regulation also includes issuance of permission. She also submits that this particular case cannot be considered under para 8 which is distinctively confined to development of open vacant plots for resorts, as there was an existing resort even prior to 1991 and therefore, the area is already used for Tourism purposes. She, therefore, contends that the Application in such instance need not be sent to MoEF.
We have given our considered thought on the issue involved. The alleged CRZ clearance is granted in February 2013 which was amended by communication of March 2014 and as such we would like to make it clear that we are not dealing with the present issue as would be dealt within an Appeal proceeding. What we are confronted with is the material proposition advanced by learned counsel Mrs. Norma Alwares that such development requires CRZ clearance from MoEF under the provisions of para 4.2(ii) read with para 8 of the CRZ Notification.
In this regard, it is an admitted fact that there was a Resort existing on the said property (200m to 500m) prior to 1991 and Respondent No.10 proposed to demolish the entire existing structure and construct a new building for the Resort. From submissions on record, the built up area will be increased from 7266.25m to 15,463.98m. The CRZ Notification has rightly identified the vacant plots as virgin areas and kept it on higher pedestal of environmental sensitivity amongst the areas under CRZ-III areas. The legislature intention to be more cautious while allowing the development of Resorts at the vacant plots in order to conserve the pristine CRZ-II area. In the instant case, the existing resort seems to have existing built up 7000 sqm indicating that the Resort activity had an extensive environmental footprint in terms of tourist's accommodation, restaurants, traffic and transport etc. These structures are proposed to be demolished and new construction of about 18,000 sqm would come in the said property. Obviously, this is a significant expansion of the resort by demolishing the existing structure. However, in our considered opinion, this cannot be considered and deemed as development on a vacant plot. The CRZ Notification, 2011, para 8 clearly deals with development of Resorts on vacant plots. And therefore, we hold that this material yardstick of development of resort on vacant plot cannot be applied in the present case.
The Hotel projects and construction projects have been distinctively dealt in CRZ Notification, 2011 and also have been separately enlisted in subsequent classification of the industry published by the MoEF/CPCB on 29th February 2016. In view of such environmental consideration, we are of the view that though the hotel/Resort development is essentially construction activity but as far as the pollution and environmental aspects are considered, they need to be treated on different yardstick as evident from the provisions of CRZ Notification, 2011 and classification of industries.
The proposed construction of resort has been considered by SEIAA/SEAC and as per their report, the built up area is less than 20,000 sq.m and hence, the project do not attract Environment Clearance Regulation, 2006. As per own showing of GCZMA, the CRZ clearance has been granted as per para 4 of the Notification. As this proceeding is not Appeal proceedings, we are not dealing with the merit or reasonability of such decision, but are dealing with an issue of competence of the authority to grant CRZ clearance under para 4 of CRZ Notification. The close scrutiny of para 4(ii) read with para 4.2(ii) would manifest that as per the amendment dated 28th November 2014, the delegation of powers to grant the clearance has been substantially amended. The relevant paras are reproduced below for clear understanding:
4.(ii) : The following activities shall require clearance from MoEF, after being recommended by the concerned CZMP.
(a) Those activities listed under category (A) of the EIA Notification, 2006, and permissible under the said Notification.
4.2(ii) : The concerned CZMA shall examine the above documents in accordance with the approved CZMP and in compliance with CRZ Notification and make recommendations within a period of sixty days from date of receipt of complete application.-
(a) MoEF or State Environmental Impact Assessment Authority (hereinafter referred to as the SEIAA) as the case may be for the Project attracting EIA Notification 2006.
(b) MoEF for the projects not covered in the EIA Notification, 2006 but attracting para 4(ii) of the CRZ Notification.
(c) SEIAA, for the projects specified under paragraph 4(i) (except with respect to item (d) thereof relating to building projects with less than 20,000 sq.mts. of built-up area) and for the projects not attracting EIA notification, 2006.
Para 8(i)(III)(B) which deals with hotels and beach Resort project which reproduced below :
8(i)III(B) : Area between 200 mts. To 500 mts.-
The following activities shall be permissible in the above areas:
(i) Development of vacant plot in designated areas for construction of Hotels or beach Resorts for tourists or visitors subject to the conditions as specified in the Guidelines at Annexure III;
It would be manifest from the plain reading of these provisions that only, either MoEF or SEIAA, are competent to issue the CRZ clearance. In the instant case, the resort activities, having less than 20,000 sq.mtr. built up do not attract EIA Notification 2006. And therefore, this project falls in 4.2(ii)(c), wherein SEIAA is the competent authority to grant CRZ clearance, as amended in 2014 for such clearance under para 4 of the Notification. However, we would like to observe that during the grant of such clearance or for that matter, GCZMA was not vested with such powers to issue CRZ clearance.
In the instant case, we have taken a judicial note of the fact that Respondent No.10 has submitted the revised proposal for less than 20,000 sqm built up area and the same was appraised by GCZMA and submitted to Goa SEAC. The SEAC and SEIAA appraised the project and by communication dated 26th February, 2013 informed that the project was appraised during the 6th Goa-SEIAA Meeting held on 7th February 2013 and further recommended the project for appraisal of the same as per the provisions of CRZ Regulation, 2011.
Based on above discussion, one thing that can emerge is that the project of Respondent No.10 was appraised by GCZMA, Goa SEAC and Goa SEIAA and therefore, it can be reasonably construed that both the environmental as well as coastal impacts of the proposed developments have been appraised by the authorities. What emanates from the entire chronology is that the GCZMA has mis-intercepted the provisions of para 4.2(ii) and has taken the mantle to issue the CRZ clearance themselves and have usurped the power to grant CRZ clearance which vested in Goa SEIAA. Hence, issue No.2 is answered negatively.
For such procedural lapse, we however, do not find fault with the Respondent No.10 as this was not the result of any such specific submission or information provided by the project proponent. They had applied to the authorities and have presented their project as per the legal requirement. It is also to be noted that the hotel development was allowed in February 2013 and subsequently required permissions including Town Planning department were obtained by the project proponent. It is also noticed that the project of construction is in advance stage nearing completion. Under these circumstances, we are inclined to apply the principle of sustainable development in the instant case Nonetheless, even if, Respondent-10 would have pleaded for approval at GCZMA level, the authority has to independently appraise the same as per law. However, as abundant precaution to ensure that the proposed project is environmentally benign, we are inclined to direct Goa SEIAA to consider the project and environmental impacts including the CRZ aspects, considering the present construction activities, if necessary by site inspection and issue necessary clearance, if they find it appropriate.
Issue No.3:
Before we deal with this issue, it would be pertinent to understand topography of the project site in question. The project location is abutting Arabian Sea in the West. Survey No.354/2 is facing the Arabian Sea and accommodates the old existing chalet structures (22 in number) for which permission for reconstruction was granted by GCZMA in the year 2011. Survey No.355 is within the CRZ-III- NDZ area. Part of survey No.354, 356, 352 and 353 are beyond 200m and its juxtaposition is clear through the map of Directorate of Settlement & Land Record Panaji dated 24th June 2015 which is at page 55 of record. As mentioned in above paras, the violations of non-compliances as alleged by the Applicants can be grouped in three (3) zones, namely within 100m from Chapora fort which is CRZ-I area, secondly within the CRZ-III NDZ area and CRZ-III beyond 200m area. The main allegations are related to unauthorised construction and development in NDZ area, development of helipad and road in CRZ-I and hill cutting and road in CRZ-I and hill cutting in CRZ-III beyond 200m besides issues related to landscaping stepped access etc.
It is manifest from the provisions of CRZ Notification that no development can be carried out in CRZ-III NDZ area, save and except permissible activities.
It will be pertinent to refer to the Inspection Report of the authorities to understand the nature and scale of the violations observed by the authorities. GCZMA conducted inspection through its Expert Member and a Technical Officer on 14th May, 2015 and the facts have been mentioned in para 13 above. Subsequently, GCZMA carried out inspection through its Technical Officer on 28th August 2015 who observed as under :
The M/s. Dyna Buildwell has removed all the huts/cottages/structures and has grown plants in that space where the Huts/Cottages were constructed.
The kuchcha road and the helipad has been removed by the M/s. Dyna Buildwell.
The M/s. Dyna Buildwell has complied with the direction issued by GCZMA in terms of it letter bearing No.GCZMA/ N/ ILLE/ Compt/15-16/21/410 dated 25th May, 2015.
The Goa State Bio-diversity Board also submitted a report of the site inspection dated 13th May, 2015 and have reported that hill cutting and land-filling has been carried out to facilitate construction of road leading uphill to a helipad. Rampant cutting of existing flora of hilly terrain has been carried out. A small area was excavated for building a swimming pool. The area around helipad has been widely cut into terraces with provision made for planting large number of exotic ornamental plants and actually some already planted. Significantly, the report also indicates presence of indigenous herbaceous floral species including sand-dune flora. The report also lists out large number of indigenous flora species.
Though the initial inspection was carried out by a team comprising the Expert Member of GCZMA it is not clear why the same team has not carried out the inspection for the better understanding of the compliances. Be that as it may, it is observed from the report of the Technical Officer that all the issues raised during the visit on 14th May, 2015 have not been addressed by the GCZMA. However, the report specifically refers to removal of certain structures for M/s. Diana Buildwell Ltd. i.e. Respondent No.10.
The Town and Country Planning Department also carried out inspection on 13th May 2015 which records that five (5) numbers of additional structures are constructed within 200m without any technical clearance. It also mentions that some portion has been levelled with landscaping which appears to be helipad. Further, a stepped access is developed at the foothill of Chapora fort and also barbed wire fencing has been erected with cement poles on the boundary of the plot.
The Department further noted that excavation for basement of the banquet hall has been carried out as per approved plan.
The Archaeology department also carried out inspection and by letter dated 7th September, 2015 reported the compliances of directions issued to Respondent No.10 by order dated 26th May 2015. It is submitted that Respondent No.10 was directed to stop hill cutting, remove road and barbed wire fencing with cement poles falling within 100m from Chapora fort. It is further submitted that the gravel from the road and barbed wire fencing along with cement poles has been removed and hill cuttings has been stopped. However, incident of soil erosion was noticed at the base of the hill.
Learned counsel Mr. Norma Alwares, relying on these violations detected by the authorities and subsequently acted upon, claimed that Respondent No.10 is continuing with major violations and drew our attention to the stepped access and landscaping developed by the Respondent No.10 (photographs are at page 306 and 307) and to the helipad area and landscaping done near the alleged sand dune vide photographs at page 222 and 223. The construction of retaining wall and other development particularly at Survey No.355 which is in NDZ, were pointed out by the learned counsel through photographs on record. She also has drawn our attention to the structures titled as Rain Water Harvesting Tank (RWHT) which she alleges to be private swimming tanks/pools, particularly for the reason of its size, aesthetics and construction material used. She claims that the RWHT are not permitted by the GCZMA and cannot be allowed in NDZ area.
Countering such allegations, learned Sr. Counsel Mr. Pareira submits that all the inspection Reports relied upon are carried out without due notice to the Respondents and principle of natural justice were not followed. He submits that the authorities acted with alarming speed upon a complaint from the Applicants received by them. He also claims that proper scientific and technical assessment has not been done by the GCZMA while issuing the directions which in fact was subsequently acknowledged in the final directions. As far as RWHT, he submits that they are constructed as per the conditions of the Town Planning department for rain water harvesting purpose, which is environment friendly. He submits that there is no hill cutting and only ground plus one structure is being constructed strictly as per the permissions. Regarding construction of road in S.No.354/2 and S.No.340/1, he submits that the same existed prior to 1991 and they are only strengthening the same in order to get proper access from the village road.
Learned Sr. Counsel Mr. Pareira further makes a statement that a Rain Water Harvesting Tank (RWHT) will not be used as swimming tank under any circumstances and further no development over and above the pre-existing structures, will be carried out on S.No.355. He also makes statement that S.No.355 will be restored to its original condition. He further submits that the barbed wire fencing, stepped access and construction material dumped for road development near Chapora fort have been removed. In view of compliance reported by Authorities, he contends that there is no further cause for action which requires Tribunal's consideration.
We have gone through the entire documentation and also perused the reports of authorities. We will deal with the issues in sequential manner for different class of areas under the CRZ Notification.
CRZ-III-NDZ AREA : It is not disputed that there were 22 structures existing prior to 1991 and GCZMA issued permission for reconstruction of the same. However, from the record, particularly, plan attached at page 161, we notice that the RWHTs have not been approved and only reconstruction was allowed by the GCZMA. In any case, the permission of the GCZMA is conditional one which clearly mentions that there should not be increase in plinth or FSI or density. The construction of such RWHT is therefore, an additional built up and increase in plinth and increase in therefore, is in clear violation of CRZ Regulations. Further a mere look at the photograph makes us to wonder whether these are Rain Water Harvesting Tanks in reality. These tanks are tiled with high end glazed tiles, have unique large size and have been designed for aesthetic look, rather than conventional water storage tanks. At the same time, these RWHT are aligned with the existing structures in such a manner that would abundantly make it clear that they are developed as private swimming pools for the occupants of the rooms. We have reasonable apprehension that these RWHT are camouflaged to be the RWHT but in fact, they are the private swimming pools. And therefore, we have no hesitation to hold that these Rain Water Harvesting Tanks are illegal and unauthorised and have been constructed by abusing the process of law.
As far as car parking in the plot S.No.340/1, and road being developed for existing structure from the village road leading to sea is concerned, the Applicant argues that they were not allowed by the Town Planning department. Whereas, according to learned Sr. Counsel Mr. Pareira, the road as well as parking was approved by the Town Planning department through subsequent amendments of permission. However, no such records are produced before us. We have noticed some observations of TCP in the noting on record regarding road, but no submissions have been made either by GCZMA or TCP in this regard. Hence, issue No.2 is answered negatively
Therefore, we are of the considered opinion that the authorities of GCZMA and Town Planning have to re-examine the proposed parking at SN 340/1 and access road, in view of the provisions of CRZ Notification and take a call on a permissibility of road as well as parking area in S.No.340/1 and 354/2. Till the time, the authorities take a decision on such permissibility; no work on both these projects can be allowed to continue. In case the authorities take a negative call on such proposal, the Respondent No.10 will be liable to restore the land to its original condition.
In CRZ-I Area, the hill cutting, particularly near the Chapora Fort, the Department of Archaeology has already reported stoppage of road development work but restoration work is pending. Similarly the hutments and the barbed wire fencing have been removed. As regards to stepped access, helipad and the landscaping, the authorities have taken certain actions. However, it is not clear whether the restoration work has been completed. It is, therefore, necessary that the GCZMA shall carry out necessary inspection through its Members and if required inviting other subject Experts and ensure that the restoration of the area shall be completed expeditiously.
In CRZ-III area, beyond 200 mtr from HTL, the main allegation is regarding retaining wall and hill cutting. TCP is on record through their site inspection dated 13.5.2015 that they have granted permission for ground + one floor permission for the hotel and construction is as per approved plan. We do not have any reason to further deal with this issue.
Hon'ble Apex Court in "Intellectuals Forum, Tirupathi vs State Of A.P. & Ors in Appeal (civil) 1251 of 2006" on 23 February, 2006, decided on 23/02/2006 has elaborately dealt on sustainable development, principle of state responsibility to protect environment and principle of public trust. Some of the relevant paras are reproduced for ready reference:
"The responsibility of the state to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of "state responsibility" for pollution emanating within one's own territories [Corfu Channel Case, ICJ Reports (1949) 4]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant Clause of this Declaration in the present context is Paragraph 2, which states: "The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area".
In summary, what we have observed in the instant case is that Respondent No.10 has carried out several developments and constructions in NDZ area in blatant violation of the CRZ notification and there is no regulatory enforcement by the GCZMA. It is also observed that so called clearance granted by the GCZMA is cryptic and do not clearly indicate even the scope of project. Neither this clearance is hosted on website in the public domain nor has any condition been stipulated for publicity to said clearance. This Tribunal has time and again directed the GCZMA to host all the complaints, inspection reports, clearances, directions etc. on its own website as mandated by the notification of MoEF constituting the GCZMA. However, in spite of such specific directions, particularly in Application No.3/2014, (Alexio Pareira Vrs. State of Goa & Ors. disposed of on 17th December 2014)", we have noticed its non-compliances by the GCZMA.
The actions of Respondent No.10 in carrying out development in NDZ area particularly RWHT, development in plot No.355, helipad stepped access need to be seriously looked into. Violations are also observed in CRZ-I area by construction of road, access and fencing. The CRZ Notification is aimed to conserve the pristine coastal environment. No doubt, the Tourism Industry in Goa has to play an important role in socio-economic development of the State but the Environmental Protection and coastal preservation cannot be ignored. It must be realised that unless serene and pristine coasts of Goa are protected, the Tourism Industry in Goa will not survive. Goa is blessed with a unique coastal eco-system with aesthetic beauty which is exploited for tourism purposes, but what is missing is an ecological consideration while exploiting the tourism potential, and turn its beaches, sand dunes and coastal flora and fauna often get a raw deal.
In the case of Indian Council for Enviro Legal Action Vs. Union of India and others (1993 (3) SCC 579), the Hon'ble Supreme Court has observed that:
"A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that the Parliament enacted the Anti-Pollution Laws, namely the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and Notification issued thereunder contains provisions which prohibit and / or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibits certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which, will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affect the existing quality of life but the non-enforcement of the legal provisions often result in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations."
In view of the above discussions, we pass the following directions:
The Respondent No.2-Goa Coastal Zone Management Authority shall place the case of the Respondent No.10 for reconstruction and extension of the proposed resort / hotel with its recommendations, both positive and/or negative, before Goa SEIAA for taking its decision in the matter of grant of CRZ Clearance to the proposal for reconstruction and extension of resort/hotel referred to hereinabove within four (4) weeks.
The Respondent No.1-State of Goa, the Respondent No.2-Goa Coastal Zone Management Authority, the Respondent No.3 Dy. Collector & Sub-Divisional Officer, Bardez, Sub Division, Mapusa, Goa shall ensure the demolition of Rain Water Harvesting Tanks and other illegal structures referred to herein situate in NDZ area falling in the property owned and possessed by the Respondent No.10 M/s. Diana Buildwell Ltd. within eight (8) weeks.
The Respondent No.2-GCZMA shall appoint a Committee of its Experts including a Representative of Bio-diversity Board to assess the damage caused to the environment by unauthorized and illegal construction of helipad, stepped access and prepare a plan for its restoration and give tentative costs for such restoration within eight (8) weeks.
The Respondent No.2-GCZMA shall execute such plan within next three (three) months.
The Respondent No.2-GCZMA and Respondent No.4-Town & Country Planning Department, Goa shall re-examine the issue of development of road and parking in S.No.354/2 and 340/1 of village Anjuna Bardez, Goa within next one month and there shall be no construction/development at the said site till the issue is re-examined as aforesaid, and if such permission is not granted, the Respondent No.10-M/s. Diana Buildwell shall restore the said land to its original condition at his own cost.
Entire costs of restoration and restitution as envisaged above shall be borne by Respondent No.10-M/s. Diana Buildwell Ltd. and Respondent No.10 M/s. Diana Buildwell Ltd. shall tentatively deposit Rs.5 crores (Rs. Five crores) in the escrow account of Collector, North Goa, within eight (8) weeks and the amount deposited shall be utilized by the Collector, North Goa for restoration and restitution work with the assistance of Respondent No.2-GCZMA.
The Respondent No.10-M/s. Diana Buildwell Ltd. shall pay additional amount of Rs.10 lakhs (Rs. Ten lakhs) to the Collector, North Goa within eight (8) weeks which shall be spent on Coastal Protection, sanitation facilities in the Coastal area for tourists in consultation with Respondent No.2-GCZMA.
Respondent No.2-GCZMA shall deposit an amount of Rs.5 lakhs (Rs. Five lakhs) as the costs of the Application in escrow account of the Collector, North Goa, within four (4) weeks which shall be spent for activities, such as Coastal Protection and sanitation facilities in Coastal area.
No completion or occupation certificate shall be granted in respect of the properties developed by Respondent No.10 M/s. Diana Buildwell Ltd. till the directions at clause Nos.2, 6 and 7herein are complied with.