Rudresh Naik vs State of Goa And Ors

The order dated 11th April, 2012 passed by Goa Coastal Zone Management Authority (GCZMA), in exercise of powers conferred upon it under Section 5 of the Environment (Protection) Act, 1986 is assailed in this Appeal. By the said order, GCZMA directed the Appellant to make good of the Geological and Ecological loss caused at the site, by back filling the cut portion and the cavity formed to lands appertaining to survey no. 41/2 of Vaghurme Village, Ponda Taluka and restore the area back to its original status and carry out plantation in the area, within thirty (30) days from the date of receipt of the said order. According to the Appellant, the order suffers from non-consideration of vital and important materials and is based on errors of facts which are apparent on the face of the records.

That the Appellant is the proprietor of "Sudarshan Dry Docks" and also claims to be the partner of the Firm commonly known as "M/s. Swastik Cruises". The said firm is involved in tourism business, mainly in the State of Goa, which includes boat cruises in the rivers of Goa. That in order to carryout the business the firm, it is averred, had engaged three vessels which are routinely used in organising boat cruises.

Further, case of the Appellant is that in order to overcome the difficulties of none availability of dry docks, the Appellant had decided to have his own facility for periodical maintenance and repair of the vessels and had acquired the properties in question situated at Village Vaghurme at Ponda measuring 13,525 sq. mts.

Admittedly, the property abuts the river and is suitable for the purpose of setting up of facilities for inspection, maintenance and repairs of the vessels. In order to facilitate the said purpose a slip-way was proposed to be constructed and other developments were to be made.

Before undertaking the constructions, the Appellant sought permission from GCZMA by filing an application on 10th July, 2009. The respondents, however, adopted dilly-dally tactics in disposing of the application and the Appellant was constrained to move to the Hon'ble High Court of Bombay, at Goa in Writ Petition No. 165 of 2010, inter-alia, praying to direct Respondent No. 2 (GCZMA) to accord necessary permission.

During pendency of said Writ Petition, Respondent No. 2 issued a Show Cause Notice on 9th July, 2010 calling upon the Appellant to show cause as to why appropriate action shall not be taken for the alleged hill cutting and unauthorised felling of the existing trees. After receiving the Show Cause Notice, the Appellant withdrew the Writ Petition seeking liberty to take appropriate action. Consequently, by order dated 24th August, 2010, the Hon'ble High Court dismissed the Writ Petition as withdrawn, granting liberty to the Appellant to take appropriate action.

The Appellant, thereafter, submitted a show cause explaining the position and denying the allegations made. The Appellant also sought for NOC and took other steps for obtaining permission from the Competent Authorities for carrying out the construction over his property. While matter stood thus, the "Captain of the Ports", by notice dated 6th April, 2011 called for an explanation from the Appellant with regard to alleged illegal excavation. It is alleged that on the basis of the pressure put by respondent no. 2 several other proceedings were also initiated against the Appellant and the Appellant was constrained to approach the Administrative Tribunal for redressal of his grievance.

The Member Secretary, GCZMA also issued a Stop Work Order directing the Appellant to stop all the activities including excavation/construction/hill-cutting/levelling and filling of land etc..

According to the Appellant for no fault of his, the authorities made him run from pillar to post. Having no other way out, the appellant once again approached the Hon'ble High Court in Writ Petition No. 383 of 2011 the said Writ Petition was disposed of in 19th July, 2011. The Hon'ble High Court was pleased to set- aside the impugned orders dated 01.06.2011, 27.05.2011, 13.05.2011 and 06.07.2011 passed by the respondent, mainly on the ground that the said orders were passed without affording the petitioner any opportunity of being heard, personally. The mater was reminded back to the Authorities for fresh decision, in accordance with law.

The grievance of the petitioner in this appeal is that, being engaged by the order passed by the Hon'ble High Court, Respondent No. 2 passed the impugned order dated 11th April, 2012 making falls and frivolous assertions which are not only factually incorrect, but also not born out of the records. It is alleged that the allegations made in different paragraphs of the impugned order are factually incorrect and are based on surmises and conjectures. All the allegations levelled in the impugned order and the reasons assigned by Respondent No. 2 are false and without any basis. In short, according to the Appellant, the impugned order has been passed out of vengeance and as there are number of factual errors apparent on the face of the records the same should be quashed.

By order dated 18th May, 2012, after hearing Learned Counsel, notice was issued to the respondents by registered post, acknowledgement due, as well as by dasti, fixing 9th July, 2012 as the date of appearance. On the said date when the matter was taken up none appeared for the respondents. The registry, however, placed a letter issued by Respondent No. 2 praying to grant four weeks time to appear and file their reply for consideration. Writing letters to the Tribunal is generally not entertained, but then as the Tribunal has been constituted recently, taking a liberal view we adjourned the matter to 31st July, 2012 and directed the Appellant to communicate the order to the respondents.

On 31st July, 2012 neither the respondents appeared nor any petition was filed on their behalf. Learned Counsel for the Appellant filed a copy of the notice before us revealing that the order dated 9th July, 2012 was served on the State of Goa and Member Secretary, GCZMA Respondents 1 & 2 respectively on 12th July, 2012. That apart, the orders passed by this Tribunal are displayed, with utmost promptitude, in its website. The Cause lists of cases listed each day in different Benches of the Tribunal are also displayed in the website and Notice Board. That apart, fact remains that the notice issued by this Tribunal was duly received by the respondent authorities. In fact, after receiving the notice time was sought for by the Respondent No. 2. Thus, it was incumbent upon the said respondent to keep watch of the proceedings and appear, and make their submissions.

Respondent No. 1 (The State of Goa) is represented through its Chief Secretary. Respondent No. 2 (GCZMA) is represented through its Member Secretary. Both the respondents are instrumentality of the State, represented by responsible officers. It is rather unfortunate that after receiving the notice they have failed to appear before the Tribunal. The said action reveals that they have scant regard to rule of law. Such action of the responsible officers is not appreciated. We, therefore, direct the said authorities to be more careful in future.

Coming to the case in hand, fact remains that the Appellant claims to be the owner of the disputed land appertaining to survey no. 41/2 of Vaghurme Village, Ponda Taluka. Further, admittedly, the Appellant has applied for permission to carry on certain development over the said lands so as to make it suitable for its use. The perusal of the impugned order dated 11th April, 2012 reveals that several overt acts said to have been committed by the Appellant, but then in the Memorandum of Appeal Appellant has denied all the allegations. The averments made in the Appeal Memorandum are not controverted by filing any reply, though, opportunity was given to the respondents to controvert the same. Thus, the facts stated and averments made in the writ application have to be prima-facie accepted, applying the principles of non-traverse.

Be that as it may, this Tribunal is conscious with regard to any danger caused to the environment by felling of trees and digging portions of sandy hill, thereby affecting the coastal eco system. Felling indiscriminately trees and bushes also have great impact on the ecology. Though, the Appellant repudiates existing of any hill on the site, averments made in the paragraph 15 of the Memorandum of Appeal gives an impression that hills (sand) are existing on the spot.

After going through the records meticulously and hearing the counsel for the Appellant in the absence of any counter submissions, we feel that the order dated 11th April, 2012 passed by the Respondent No. 2 (GCZMA) which is impugned in this appeal, cannot be sustained, more so because the respondents have failed to appear and controvert the allegations made in the memorandum of Appeal.

It appears that the dispute has a chequered career, in as much as it has travelled to the Hon'ble High Court twice and is prolonging for quite some time. Protection of environment being the paramount concern/duty of this Tribunal while setting-aside the impugned order dated 11th April, 2012, we direct the petitioner to deposit a sum of Rs. 1 lakh without prejudice to his rights, and the contentions raised and submissions advanced within a period of three weeks from the date of this order before Respondent No. 2. The said amount shall be kept in Fixed Deposits by Respondent No. 2 in a Nationalised Bank. On depositing the said amount, Respondent No. 2 authorities shall afford an opportunity of hearing to the Appellant and decide the matter once again in accordance with law on its own merits without being influenced by any of the observations made in this judgment. It is needless be said that if the contentions of the Appellant are accepted the amount of one lakh shall be refunded with interest. On the other hand, if the Appellant is found guilty, the amount shall be utilised for restoration of the Environment.

The entire exercise shall be completed within three weeks from depositing of the amount, as directed above. It is made clear that, if the amount of Rs. 1 lakh is not deposited within one month, it would be open for the respondents to implement the impugned order. With the aforesaid observations, this appeal is allowed with cost of Rs. 3,000/- (Rupees Three Thousand).