M/s. Sardessai Engineering Works And Ors vs Goa Coastal Zone Management Authority And Ors

This Applicant filed Writ Petition No. 653/2011 in the Hon'ble High Court of Bombay Bench at Panaji (Goa) challenging order dated 18.07.2011 purportedly passed by the Respondent directing him to restore 10 mts. land allegedly reclaimed by dumping clay in River Zuari. The Writ Petition was transferred to this Tribunal by order dated 20.09.2012 passed by the Hon'ble High Court. The Writ Petition was thereafter converted into the form of an Application.

Though the Applicant challenged validity and legality of the MoEF Notification dated 09.04.2010. By order dated 13.12.2012, we directed the Applicant to examine whether a separate Writ Petition can be filed, if he so desires, challenging validity and legality of MoEF Notification dated 09.04.2010. The said prayer stands deleted

The main relief sought by the Applicant, after deleting the prayer pertaining to challenge to the legality and validity of the MoEF Notification referred to above, boils down to challenge to the order dated 18.07.2011 passed by the Respondent.

To maintain the homogeneity of this Judgment, it suffices to advert briefly to the facts which give rise to the present application. The Respondent issued a show cause notice under Section 5 of the Environment (Protection) Act, 1986 to the Applicant calling upon him to show cause as to why the encroached river bed of river Zuari to the extent of 10 mts., reclaimed by him as a result of dumping of clay in that part, be not cleared and restored. The show cause notice was issued on the basis of a complaint filed by one Shri Surendra Sardessai on 03.05.2007 to the Respondent. The Applicant filed reply dated 26.05.2007 in pursuance to the show cause notice. The Applicant denied truth into the allegation that land to the extent of 10 mts. was reclaimed. The Applicant alleged that the land is part and parcel of Survey No. 30/1. The Applicant further alleged that the land is owned by M/s Sardessai Engineering Works and was granted for the purpose of building a Shipyard. The Shipyard was built somewhere in or about 1971. The land was granted by the Captain of Ports vide license issued in 1971. The Applicant is running the Shipyard over an area about 9000 sq. mtrs. since 1971 on the river front. The Applicant is running business of manufacturing and repair of barges in the dockyard. The Applicant further alleged mala-fides to complainant Shri. S. Sardessai.

The Respondent refuted material contentions of the Applicant and came to the conclusion that the Applicant has grabbed a part of river Zuari by reclaiming area to the extent of 10 mts. The Respondent directed to remove reclaimed area and restore river bed to its original condition. The Applicant challenges the said order dated 18.07.2011 on various grounds.

The Applicant raised a preliminary issue regarding legality of the impugned order. The Counsel for the parties agreed that the legality of the order in question may be considered on the basis of preliminary objection. Therefore, by order dated 13.03.2013, this Tribunal directed that the preliminarily question of law raised by the Applicant shall be decided first and if need be, further opportunity of hearing may be granted to the parties to make submissions to the application on merits.

The preliminary question of law raised by the Applicant is that the constitution of the sub-committee of the Respondent and the decision rendered by only five (5) Members who attended the meeting dated 25.05.2011 is illegal and as such the impugned order is liable to be set-aside.

We have heard Learned Counsel for the parties in extenso. We have also gone through the affidavit filed by Mr. Levinson. J. Martins, on behalf of the Respondent and the documents annexed thereto. The impugned decision was taken in the course of meeting of the Respondent which was held on 23.05.2011. It appears that the Respondent had passed similar order dated 25.03.2010 against the Applicant. That order was challenged by the Applicant vide Writ Petition No. 390/2010. The Hon'ble High Court of Bombay at Goa granted stay to the said order and directed the Respondent to issue afresh show cause notice and hear the Appellant/Applicant. Accordingly, the Respondent issued notice afresh. A representative of the Applicant was heard by the sub-committee of the Respondent. The Respondent in its 59th meeting held that the Applicant illegally reclaimed the land from river Zuari and as such passed the impugned order.

There is no dispute about the fact that the impugned decision was taken in the 59th meeting of the Respondents' sub-committee. There is no dispute about the fact that the meeting was attended by only five (5) Members. Thus, it is an admitted fact that the five (5) Members' Committee took the decision in question.

The short question which arises for determination is as stated below:

"Whether the formation of sub-committee by the Respondent is legal and proper and whether the impugned decision is rendered illegal and inoperative for want of required quorum?"

Before we proceed to examine legality of the constitution of the sub-committee and the legal requirement of the quorum needed for arriving at any decision of the Respondent. It is worthwhile to locate the source of quasi-judicial power available to the Respondent under the CRZ Notification. By order dated 19.04.2010, the MoEF constituted the Goa Coastal Zone Management Authority (GCZMA) in exercise of powers conferred by sub-sections (1) and (3) of Section 3 of the Environment (Protection) Act, 1986. Perusal of the Government gazette dated 19.04.2010 reveals that the GCZMA as constituted by the MoEF comprised of twelve (12) Members. It is pertinent to note that it was for the Respondent to deal with inquiries into cases of alleged violation of the provisions of the CRZ and Coastal Zone Management Plan (CZMP). The said Authority was also empowered to take action on basis of the complaints and to issue directions under Section 5 of the Environment (Protection) Act, 1986. Rule XI of the MoEF order dated 09.04.2010 reads as follows:-

"xi. The Authority shall ensure that atleast 2/3 Members of the Authority are present during the meetings."

(Emphasis supplied)

The use of words " at least" in the above Rule reflects intention of the Legislative authority. It shows that the quorum is mandated for decision making process of the Respondent.

Since there were twelve (12) Members of the Respondents' Authority, it was essential to ensure presence of atleast eight (8) Members during meetings for decision making purpose. The Learned Counsel for the Respondent argued that there is no quorum fixed under the MoEF order dated 09.04.2010 and therefore the impugned decision cannot be branded as "illegal" only due to absence of 2/3 Members.

What appears from the MoEF order dated 09.4.2010 is that the Respondent was not delegated with power to constitute any sub-committee. In other words, the Respondent on its own could not have constituted a sub-committee. We may note here that the Respondent's Authority itself was delegated with the powers under the CRZ and CZMP and to take action under Section 5 of the Environment (Protection) Act, 1986. It is well settled that a delegatee cannot delegate its delegated powers to some other sub-committee or Authority. What appears from the record is that probably due to excessive work load, the Respondent decided to delegate the powers to a sub-committee consisting of seven (7) Members. The Respondent in its 40th meeting held on 08.05.2008 took decision to formulate a sub-committee. As per decision in 57th meeting held on 16.12.2010, a sub-committee of seven (7) Members was constituted in this context.

Perusal of the order dated 19.05.2011 passed by the Respondent shows that the Respondent did not refer to any legal provision which empowered itself to form such a sub-committee and delegate its powers to the sub-committee. It is further note worthy that paragraph-2 of the said order clearly shows that in any meeting of said sub-committee presence of atleast five (5) Members was necessary. So also, any decision taken by the said sub-committee of five (5) Members ought to be put up in the subsequent meeting of the main Committee for approval/consideration. Needless to say, the decision taken by the five (5) Members was required to be ratified and approved by the Authority consisting of the twelve (12) Members. So, unless such decision of five (5) Members was vetted by atleast 2/3rd Members of the Authority i.e. eight (8) Members, the decision cannot be termed as legal and proper. Considering the nature of the constitution of the sub-committee, we are of the opinion that the Respondent exceeded the delegated powers. The Respondent could not have validly constituted a sub-committee. The impugned decision was rendered by only five (5) Members who were present in the sub-committee at the time of relevant meeting dated 11.02.2010.

There cannot be two opinion about the legal position that purpose of providing a particular quorum for meeting of quasi-judicial Authority is to ensure contributory decision making process which should be endproduct of appropriate deliberations and discussion. The dictionary meaning of the word "quorum" as shown in the Chambers 21st Century Dictionary is as follows:

"quorum:

the fixed minimum number of members of an organization or society, etc. who must be present at a meeting for its business to be valid."

It is amply clear, therefore, that minimum number of Members of an organization, fixed under any rule or bylaw, who must be present at a meeting for its business to be valid is a required quorum. In absence of such quorum of the meeting, the decision would be illegal.

In Vijay Singh Lamba vs. Punjab University AIR 1976 PH 143 it has been held that in absence of required quorum of the quasi-judicial authority, the decision will be invalid. However, where presence of the particular number of Members is not prescribed and there is no provision for fixing the quorum, the matter would be different. But, when the presence of atleast 2/3rd Members of the Respondent (Authority) has to be ensured, then the only deducible inference will be that for a valid decision making process there must be contribution of atleast eight (8) Members of the committee constituted by the MoEF. When a public duty is imposed on the Respondent, it must be discharged only in the manner as prescribed by the law. The Respondent had no authority to deviate from the procedure envisaged under the Notification of the MoEF. Nor the delegated powers of the Respondent could be further sub-delegated to the sub-committee. The Respondent cannot have transacted business in absence of proper quorum.In Smt. Uma Kumari and others vs. State of Bihar and others 1990 (38) BLJR 975, the Hon'ble Patna High Court held that in absence of quorum as required by law, the decision of the Board was illegal. So also, in State of Andhra Pradesh & Anr. Vs. Dr. Mohanjeet Singh and Anr. 1988 SCC(Supp) 562, the Apex Court held that whether presence of particular Members of a Committee was essential for completing the quorum, absence of that Member in the selection meeting, would render the procedure of selection invalid, notwithstanding ex post facto ratification of the selection by that Member.

It may be mentioned at this stage, that Section 193 of the Company's Act, 1956 gives methodology of Meetings of Board and other meetings. The said provision can be used as guideline for any kind of meeting of the administrative authority or quasi-judicial authority created under any statutory provision. We find that affidavit of Mr. Levinson. J. Martins does not reflect any material to reach conclusion that the the impugned decision could be taken in absence of the required quorum of the Members. The impugned decision rendered by only five (5) Members of the sub-committee is, therefore, bad in law. The minutes of the 59th meeting show following text of the decision:

"Decision: After perusing all the records of the case the documents produced and relied upon by Shri Prakash Sardessai including the orders passed by this Authority dated 27.02.2009 and 25.03.2010 including the order dated 19.10.2010 in W.P. No. 390/2010; the members concluded that there has been illegal reclamation of 3150 sq. mts. by encroaching upon the river Zuari, as confirmed in the report of the Deputy Collector & SDO (Mormugao) the contentions made out by the said Shri Prakash Sardessai regarding reclamation carried out prior to 1991 and use of 9000 sq. mts of river front for the purpose of dry dock have been clearly clarified in GCZMA's earlier order dated 27.02.2009 and 25.03.2010. The earlier decision of the GCZMA is retaliated. Orders to be issued accordingly."

The above quoted minutes do not ascribe specific reasons for arriving at the decision. We feel that the decision must be objective not subjective. The contributory decision making activity is not clear from above decision.

Considering the foregoing discussion, it is manifest that the impugned decision is invalid for want of required quorum as well as for the reason that constitution of the sub-committee was illegal. We make it clear that we have not touched upon the issue regarding illegal reclamation of the part Zuari River by the Applicant. Under the circumstance, the impugned decision will have to be quashed and the matter deserves to be remitted to the Respondent for taking appropriate decision in accordance with law.

In the net result, the Application is partly allowed. The impugned order is quashed. The matter is remitted to the Respondent for the purpose of reconsideration of the material and to take decision afresh by following the Notification of the MoEF after securing the presence of required number of Members for the purpose of contributory decision making process.

The Application is accordingly disposed of with no order as to costs.