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Judgment
The Applicant has brought in question the construction activity of Respondent No.2-Chief Engineer and Ex-officio Addl. Secretary through 4th Respondent M/s Bagkiya Construction Private Ltd to construct Jetty in the guise of repairing and reinforcing the existing bund in contravention of the CRZ Notification, 2011.
He has brought in party-array 2nd Respondent - Project Proponent (PP), its Executive Engineer-3rd Respondent and the contractor 4th Respondent. 1st Respondent is the statutory authority of Goa Coastal Zone Management Authority (GCZMA). The 1st Respondent is also impleaded on accusation that it has failed to enforce the provisions of CRZ Notification, 2011 and has un-mindedly permitted illegal construction by the 2nd Respondent through 4th Respondent.
He has sought an order to stop construction activity and to order protection of bund named "Tarchem Khazan" situated along Siolim beach of river Chapora in Goa district. He has also sought further order to direct restoration of bund, repair of property damaged and protection of environment. The collateral relief is to direct Respondent Nos. 2 to 4 to pay compensation to the Applicant and others affected by such illegal activity.
Pending consideration of the Applicant of merit, interim order was also sought.
Being satisfied that prima facie case was made out, advance Notice was caused on the Respondents, who entered appearance. Each of the Respondents has filed their statement in defense to which we shall make reference as and when required. As regards the Applicant is concerned, he has brought in several facts and circumstances giving multifaceted dimension to the issues raised. The pleadings are elaborated much of which to statutory duties to be performed by the statutory authorities to implement the CRZ Notification 2011 etc.
However, for the purpose of adjudication of the dispute raised in this Application, the relevant facts to which reference can be made are as follows:
(a) It is Applicants case that in last week of November, 2015, he noticed foundation stone laid on the bund which read "Foundation stone for the work of development of riverfront and strengthening of bund alongside the river Chapora towards market Siolim, Bardez Goa". The Applicant claims that he is a tenant along with other persons and is living in the area adjoining and surrounding field to the bund. It is alleged the Respondent Nos. 2 and 3, did not take them in confidence prior to preparing the project nor 1st respondent ensured the affected parties, are heard before approving the said project. It is further alleged that the Applicant being unable to know further details of the project, he submitted an RTI Application on 4.12.2015 to PIO of the Water Resources Department to furnish copies of the Application submitted regarding the project. The Applicant's Application was transferred by PIO to the Assistant Engineer, APIO, Sub Division, Panaji, Goa under Section 66(3) of the Right to Information (RTI) Act, 2005. He has produced the power of attorney letter of the Respondents. It is alleged after expiry of thirty four (34) days, and more than forty (40) days from 8.12.2015, the Assistant Engineer, Water Resources Department furnished some information which mentions a chart appended to the letter dated 21.2.2016. Indicating the 3rd Respondent had apparently prepared the Report on 13.3.2015, and furnished letter of Ministry of Water Resources, directing respondent No.2 to undertake improvement of bund along River Chapora near Siolim market, Bardez, Goa.
(b) The Report prepared thereupon reveals the construction of RCC retaining wall with Murum for protecting 250m of the existing houses at the cost of Rs.2,50,72,646/-. The Report also stated that officers of department have inspected the bund and noticed existing bund wall for stretch of 250m along River Chapora near Siolim Market is in a very bad condition and there was imminent threat of collapse of the wall posing serious damage to the families living in existing houses along the stretch. There was also fear of damages by flood in the stretch in Monsoon, which could cause further damage. The stretch and living conditions of people.
(c) Having received such details, the Applicant applied to 1st Respondent under the RTI Act, 2005 about consent/sanction/clearance if any, granted to PP. It is averred that 1st Respondent has permitted construction activity which is illegal and would damage the bund which has sluicegate. The Applicant and other tenants complained on 23.2.2016 to 1st Respondent that they were tenants and protection of the field near bund was essential. The Bund is a protection wall as well as gate to control flow of water during emergency. That, the area was harbouring fish and the tenants of Tarchem Khazan had a right to carry on day today activity under the Tenancy Law, which cannot be interfered by any activity. It is alleged during 1st Respondent addressed a letter dated 2.3.2016 to 3rd Respondent to provide clarification on points of the complaint submitted by the Applicant on 23.3.2016. No action was taken necessitating issue of Notice through his Counsel on 12.3.2016 to stop illegal activity of construction. Even on receipt of Notice, the Respondents did not act, but the Applicant was furnished with some information under the RTI Act, which revealed that the 1st Respondent GCZMA in its 120th Meeting had resolved and granted NOC dated 30.10.2015 to the Applicant. The Applicant was shocked and surprised as the grant of NOC was on incomplete Application submitted by the Respondent Nos. 2 and 3, it was vague and did not disclose details of the project, nor it contain other required details, which are relevant for consideration as to whether the project was permissible under the provisions of CRZ Notification, 2011.
(d) Having narrating these factual aspects, contention of the Applicant is that the Respondent Nos. 2 and 4 have commenced construction of large scale structures totally damaging the bund and constructing jetty in contravention of the mandatory provisions of CRZ Notification, 2011 and other Environmental Laws.
(e) That the construction activity proposes construction of thirty six (36) pillars in the river, which will disturb the aquatic life and imbalance the soil consistency and create havoc in the area. There has been no direct study of the consequences of construction of thirty six (36) pillars and likely damage to marine life in the vicinity due to alteration of the bund.
(f) It is alleged, that the proposed bund is at the behest and also, at the instance of vested interests and the owners of Casinos. The proposed jetty is planned to house and dock Casinos passing the area. Such activity will change the scenario totally and create place as harbour for the Casinos which is illegal activity. The proposed construction activity will effect fields of the Applicant and other tenants in and around Tarchem Khazan.
Other ground raised by Applicant is that at the time of submitting the Application cost of the project was shown as Rs. 2.5 Crore, but subsequently, it has been increased to 9.80Crore. Again on 7.5.2015 cost of the project is increased substantially by order dated 12.12.2015. This not only reveals burden on the exchequer but also a substantial change in the scope of the project itself. From the proposed expenditure, it could be understood that the project now envisaged is five times bigger than for which NOC was obtained from the 1st Respondent.
In short, it is alleged that the construction activity will endanger and totally affect agricultural fields of the Applicant and tenants; and further will cause permanent damage to the Mangroves, Marine life in and around the area, as also cause severe impact on ecology. He has also stated in his Application that one Expert Member of GCZMA, Mr. R.M. Dhume in his inspection report dated 24.7.2015 had clearly observed and emphasized the requirement of rapid Environment Impact Assessment (EIA). The Respondents have totally ignored the said requirement and have proceeded to start construction of jetty.
After admission of this Application, this Tribunal by order dated 31.5.2016 had directed inspection of the place by the 1st Respondent and to submit report.
In pursuance to that order GCZMA-1st Respondent has filed affidavit through one Mr. Vikas S.Naik-Gaunekar, in which it is averred that GCZMA carried out inspection by the Expert Member along with Member Secretary of GCZMA and representatives of Water Resources Department, as also the Applicant. The inspection report and opinion of the Expert Member was placed in 130th Meeting of GCZMA held on 21.6.2016, to decide as to what course can be taken. After detailed discussions, GCZMA resolved to direct the Water Resources Department to depute representative during next Meeting of the authority for detail technical presentation with regard to construction activity in pursuance to the permission granted by GCZMA and also to request the Director of the National Institute of Oceanography to depute representative/Expert in the field. Accordingly, 131st Meeting was held on 1.7.2016, in which the representative of Water Resources Department made detailed presentation, before GCZMA. GCZMA thereafter decided to direct the Chief Engineer, Water Resources Department to take up the work of strengthening and repair on priority basis in phase one and forwarded the said inspection report dated 16.6.2016, submitted by the Expert Member to the Water Resources Department and further directed all the recommendations given in the site inspection report to be considered as advisory and same shall be given due consideration and implemented by the Water Resources Department and Irrigation Department together during construction of the project.
By this affidavit 1st Respondent took stand that it has re-examined the project and after taking opinion of the Experts from the National Institution of Oceanography and the Expert Members of its own, found certain things to be done to safeguard evil of the project, but they did not reconsidered or cancel Environment Clearance (EC) granted.
As far as Respondent Nos. 2 and 3 are concerned, they have filed common affidavit in reply. They have denied all the averments made in the Application, which allege illegality of the project and non-compliance to the statutory conditions. In para-2, they have referred to the order of this Tribunal which directs them to furnish detail report to the Authorities and keep this work on hold for some time. In para-3, they have revealed scale and nature of the project. The averments disclose that PP intends to carry out development of riverfront along River Chapora and permission was sought from the Respondent No.1, which 1 st Respondent has granted. It is averred that the Applicant had asked certain questions in the RTI Application to which the Respondent Nos. 2 and 3 have replied, furnishing relevant information. Therefore, the allegations made in the Application that detail information of the project is withheld is factually incorrect. They have also taken up preliminary objection regarding maintainability of the Application on the ground that none of the reliefs sought in the Application falls within provisions of Ss. 14 and 15 of the National Green Tribunal Act, 2010, as the Tribunal has jurisdiction to entertain the Application/dispute of civil nature, substantial question relating to environment, including enforcement of any legal right relating to environment is involved during implementation of enactments specified in Schedule-I, whereas, in the present Application, no such substantial question of law has arose for adjudication. Similarly, they have contended that Section 15, does not permit grant of relief as the Applicant is seeking consequential relief, trying to benefit from alleged impact on environment. They have also taken question of locus of the Applicant and seek dismissal of the Application.
We have heard Applicant's Counsel and the Respondents, amongst whom contesting Respondents are the Respondent Nos. 2 and 3.
It is not brought in controversy that there is protective bund known as "Tarchem Khazan in Survey No.169/1 of village Siolim, having stretch of 250m along River Chapora. The bund has a sluice-gate and is meant for control of water movement between River Chapora and the fields. The Applicant claims to be one of the tenants amongst many in the vicinity of the said bund, where he is engaged in agrarian activity. He claims that the bund is meant for control of creek water ingress in the nearby agricultural fields and thus, it should be a protective bund. It is alleged that before undertaking the project, Respondent Nos. 2 and 3 had not taken tenants, including the Applicant, who are likely to be affected by any project, in confidence.
His grievance is that construction activity in the guise of reinforcing and maintaining the bund is a pretext for developing the riverfront and to create place for harbouring the Casinos and other commercial vessels for commercial exploitation of river resources. He has quoted and referred to the letter from the Minister of Water Resources of the State directing Respondent No.2 to take immediate improvement of the bund along River Chapora. According to him, it is a political gimmick for extraneous consideration with least interest to project the rights of the tenants.
We have taken into consideration several allegations made in the Application, which includes reference to increase in the project expenditure from 2.50Crores to 12Crores and stages at which the project is in progress.
The main grievance of the Applicant is that there is no CRZ/Environment Clearance obtained for the project and the bund being in NDZ area as defined under the CRZ Notification, 2011, no construction activity should be undertaken without necessary permission.
In this regard, it is his say that reinforcing of the bund was a misleading project report, whereas, the construction of jetty involves erection of more than 36 pillars in the area. Thus, clearance CRZ angle as per CRZ notification 2011is mandatory for such a huge project.
We have taken into consideration all the aspects, including legal issues raised in the Application, with regard to the alleged project. However, it is not in dispute that protective bund has been in existence in the River Chapora, which is acting as preventive bund to prevent inundation of adjoining areas during monsoon and other natural calamities. Defense taken by Respondents clearly indicates that the project does not envisage destruction of bund or its closure. It points to reinforcing the bund and in that process, there is an inclusion of another project called riverfront development project. Therefore, these two construction activities appear to have been merged into one project undertaken by 2nd and 3rd Respondents through the contractor-4th Respondent. The question is whether project requires NOC and whether it also requires EC/CRZ clearance?
In this regard, our attention is necessarily drawn to the relevant provisions covered under the CRZ Regulation, 2011. The provisions of Regulation 4 envisages as follows:
Regulation of permissible activities in CRZ area- The following activities shall be regulated except those prohibited in para 3 above,-
(i)(a) clearance shall be given for any activity within the CRZ only if it requires waterfront and foreshore facilities;
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Thus, it is seen that Clearance under the CRZ Notification, 2011 is required and it would be given for any activity within CRZ Notification only if it requires waterfront and offshore facility. Since, both the activates i.e. protective bund and the jetty are waterfront projects, Regulation 4(a) would apply. But, the question is what procedure is to be followed. The procedure described by the Regulation 4(2) of the CRZ notification 2011 is:
4.2 Procedure for clearance of permissible activities.- All projects attracting this notification shall be considered for CRZ clearance as per the following procedure, namely:-
(i) The project proponents shall apply with the following documents seeking prior clearance under CRZ notification to the concerned State or the Union territory Coastal Zone Management Authority,-
(a) Form-1 (Annexure-IV of the notification);
(b) Rapid EIA Report including marine and terrestrial component except for construction projects listed under 4(c) and (d)
(c) Comprehensive EIA with cumulative studies for projects in the stretches classified as low and medium eroding by MoEF based on scientific studies and in consultation with the State Governments and Union territory Administration;
(d) Disaster Management Report, Risk Assessment Report and Management Plan;
(e) CRZ map indicating HTL and LTL demarcated by o n e o f t h e authorized agency (as indicated in para 2) in 1:4000 scale;
(f) Project layout superimposed on the above map indicated at (e) above;
(g) The CRZ map normally covering 7km radius around the project site.
(h) The CRZ map indicating the CRZ-I, II, III and IV areas including other notified ecologically sensitive areas;
(i) No Objection Certificate from the concerned State Pollution Control Boards or Union territory Pollution Control Committees for the projects involving discharge of effluents, solid wastes, sewage and the like.;
(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;
Therefore, as per CRZ Notification till it was recently amended the procedure referred to above, had to be followed. However, in view of recent amendment (28th November, 2014) to CRZ Notification, 2011, Clause-(c) has been added, which reads as follows:
(c) SEIAA, for the projects specified under paragraph 4(i) (except with respect to item (d) thereof relating to building projects with less than 20,000sq.mts of built-up area) and for the projects not attracting EIA Notification, 2006.
Therefore, it depends on the nature of the project.
If the project is covered under the CRZ and not attracting EIA Notification, 2006, then Clearance has to be given by the State Environment Impact Assessment Authority (SEIAA). In the instant case, PP does not claim, it has followed the above said procedure or applied for the clearance in the manner prescribed, nor has it got any EC/Clearance from SEIAA for the project in question. In the circumstances, the project is deemed to have sanctioned illegally and any further activity will be impermissible in view of the above provisions of CRZ notification. For the aforesaid reasons, we find that grant of permission by GCZNA is legally not permissible and hence, the said permission is quashed.
However, we notice that the construction of retaining wall of the bund is complete, but the jetty is yet to be constructed. Hence, unless and until the PP obtains Clearance following due procedure, referred to above, it cannot proceed with the project in question for construction of jetty and carry on riverfront development. For the aforesaid reasons, we are inclined to accept the request of the Applicant for restraint on the project activity by the Respondent Nos. 2 and 3, but mainly on different grounds, as referred to above. Hence, we restrain construction activity of the jetty and riverfront development of Respondent Nos. 2 and 3 unless they obtain required permission, as referred to above and till such permissions are obtained there shall be no construction activity. The authorities of GCZMA and SEIAA shall also examine the technical details of the retaining wall in view of the apprehensions raised by Applicant and may pass appropriate orders if required.
While parting with the judgment, we are constrained to record our serious concerns over the regulatory affairs of the GCZMA which is legally mandated to safeguard and protect the pristine coastal environment of Goa. This Tribunal in Application No.03/2014 (Alexo Arnolfo Parraira vs State of Goa & Ors) has issued elaborate directions to GCZMA to ensure strict compliance to CRZ regulations 2011, and we regret to note that in spite of several directions from this Tribunal from time to time, we do not find compliance by GCZA resulting into irregularities. Such actions of the GCZMA not only affect the development projects, but more importantly affect the environment as such projects are cleared without necessary appraisals.
The Application is accordingly disposed of. No order as to costs.