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1 of 49 (J) Application No.82 of 2015 (WZ)
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE) BENCH, PUNE
APPLICATION NO.82/2013(WZ) CORAM:
Hon’ble Mr. Justice U.D. Salvi, (Judicial Member) Hon’ble Dr. Ajay A. Deshpande (Expert Member)
IN THE MATTER OF:
1. Mr. Sagardeep A. Sirsaikar,
S/o. Adumber Sirsaikar, Major,
R/o. Badem Assagao, Post : Anjuna,
Goa.
2. Mr. Julian Cipriano D’Souza,
s/o. Joan J. D’Souza,
R/o. H.No.371/2, Dabhol Waddo,
Chapora, Anjuna, Bardez-Goa.
……Applicants
Verses
1. State of Goa,
Through the Chief Secretary,
Office at Secretariat, Porvorim,
Goa.
2. Goa Coastal Zone Management Authority,
Through : Member Secretary,
Having Its office at 3rd floor Dempo,
Tower, Patto, Panaji-Goa.
3. Dy. Collector & Sub-Divisional Officer,
2 of 49 (J) Application No.82 of 2015 (WZ)
Bardez, Sub Division, Mapusa, Goa.
4. Town & Country Planning Department
302, Govt. Building Complex,
Mapusa-Goa.
5. Directorate of Archives and Archaeology,
Govt. of Goa, Rua de Qurem,
Mala, Panaji-Goa-403 001.
6. Goa State Bio Diversity Board,
Department of Science,
Technology & Environment,
Opp. Saligao Seminary Saligao,
Bardez, Goa.
7. Director of Mines and Geology,
Government of Goa,
Panaji-Goa.
8. Health Officer,
Primary Health Center
Stolim, Bardez-Goa.
9. Village Panchyat of Anjuna,
Through : Its Secretary,
Office at Ajuna, Bardez, Goa.
10. Diana Buildwell Ltd.
Vagator Beach, Anjuna,
Bardez, Goa.
… Respondents.
Counsel for Applicants
Mrs. Norma Alwares, Adv. a/w.
Mr. Asim Sarode, Adv.
Counsel for Respondent No.1 to 8 :
Mrs. F.M. Mesquita, Adv.a/w.
Sapna Mordekar, Adv.
Counsel for Respondent No.2 & 3 :
Mr. D. Lawande, Adv.
Counsel for Respondent No.9 :
3 of 49 (J) Application No.82 of 2015 (WZ)
Mrs. Supriya Dangare, Adv.
Counsel for Respondent No.10 :
Mr. J.E. Coelho Pareira, Sr. Adv.
Mr. V. Korgaonkar & P. Nernekar, Advs.
Date: November 3rd, 2016.
J U D G M E N T
Per Mr. U.D. Salvi J.
1. 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.
2. 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.
4 of 49 (J) Application No.82 of 2015 (WZ)
3. 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.
4. 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
5 of 49 (J) Application No.82 of 2015 (WZ)
within CRZ-III except area within 100m surrounding
Chapora Fort which is classified as CRZ-I.
5. 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.
No.
Survey
No.
Nature of development Distance
from HTL
(i) 340/1 Excavation of the entire plot (approx.
1.5 m. depth) to lay 33 kv high
tension cable. The Sur.No.is within 30-40 mtr. of the HTL and has sand
dunes.
Within 200
Mtr.
(ii) 354/2 Approx. 20 structures/ cottages
constructed within 30-40 mtr. of the
HTL
Within 200
Mts.
(iii) 354/9 Retaining wall is constructed by
cutting the hill upto 7-8 mtrs.
Partly within
200 Mtrs. and
partly in 200-500 Mtrs.
Construction of approximately
concrete buildings.
Partly within
200 mts. And
partly in 200-
500 mts.
(iv) 355 Construction of sewage treatment
plant and illegal hill cutting to lay sewage system pipelines.
Within 200
Mts.
(v) 356/7 Concrete buildings and wooden
structures.
Partly within
200 mts. And
party in 200-
500 mts.
Helipad Within 200
mtrs.
Concrete steps towards Chapora Fort (CRZ-I)
Within 200 Mtrs.
Barbed wire fencing Within 200
Mtrs.
Hill cutting for construction of 6
Mtrs. wide road towards Chapora
Fort (CRZ-I)
Partly within
200 Mtrs. and
partly in 200-
500 Mtrs.
(vi) 353/5 Excavation of land approxi-
Mately 45 mtr. length and depth of 5-6 Mtrs.
Between 200-
500 Mtrs.
(vii) 356/8 Excavation of land 7-8 mtrs. depth to
construct flyover/hotel building.
Between 200-
500 Mtrs.
6 of 49 (J) Application No.82 of 2015 (WZ)
6. 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.
7. 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.
8. 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
7 of 49 (J) Application No.82 of 2015 (WZ)
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.
9. The Applicants filed additional affidavit dated
12th 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
8 of 49 (J) Application No.82 of 2015 (WZ)
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.
10. 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
9 of 49 (J) Application No.82 of 2015 (WZ)
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.
10 of 49 (J) Application No.82 of 2015 (WZ)
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.
11 of 49 (J) Application No.82 of 2015 (WZ)
11. 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-
12 of 49 (J) Application No.82 of 2015 (WZ)
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
13 of 49 (J) Application No.82 of 2015 (WZ)
Respondent No.4- Town & Country Planning Department
and Respondent No.9- Village Panchayat and
commenced work of construction in the month of
October, 2013.
12. The Applicant filed additional affidavit dated
12th 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.
13. According to the Applicants, re-construction and
expansion of entire hotel s without valid permission from
MoEF.
14. Respondent No.10 Diana Buildwell P. Ltd
contended that the present Application fails to disclose
14 of 49 (J) Application No.82 of 2015 (WZ)
‘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.
15. 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.
16. 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?
15 of 49 (J) Application No.82 of 2015 (WZ)
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?
17. 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.
16 of 49 (J) Application No.82 of 2015 (WZ)
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.
18. 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
26th 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
25th February, 2018.
19. 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
17 of 49 (J) Application No.82 of 2015 (WZ)
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).
20. 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
18 of 49 (J) Application No.82 of 2015 (WZ)
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.
21. 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
19 of 49 (J) Application No.82 of 2015 (WZ)
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.
22. 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.
23. 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
20 of 49 (J) Application No.82 of 2015 (WZ)
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
24. Chief bone of the contention raised by the
Applicants is that NOCs/Clearances purportedly issued
21 of 49 (J) Application No.82 of 2015 (WZ)
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.
25. 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.
26. Thereafter, the GCZMA issued a
Communication dated 28th March, 2014 regarding the
22 of 49 (J) Application No.82 of 2015 (WZ)
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”.
27. 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
23 of 49 (J) Application No.82 of 2015 (WZ)
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.
28. 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
24 of 49 (J) Application No.82 of 2015 (WZ)
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.
29. 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
25 of 49 (J) Application No.82 of 2015 (WZ)
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.
30. 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
26 of 49 (J) Application No.82 of 2015 (WZ)
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:
1. 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.
2. Or the said proposal may please be forwarded to the MoEF
for suitable comments/observations/consideration in light of
the CRZ Notification, 2011.
31. 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
27 of 49 (J) Application No.82 of 2015 (WZ)
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.
32. 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
28 of 49 (J) Application No.82 of 2015 (WZ)
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.
33. 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.
29 of 49 (J) Application No.82 of 2015 (WZ)
34. 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.
35. 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
30 of 49 (J) Application No.82 of 2015 (WZ)
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.
36. 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
31 of 49 (J) Application No.82 of 2015 (WZ)
provisions of CRZ Notification, 2011 and classification of
industries.
37. 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.—
32 of 49 (J) Application No.82 of 2015 (WZ)
(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
33 of 49 (J) Application No.82 of 2015 (WZ)
that matter, GCZMA was not vested with such powers to
issue CRZ clearance.
38. 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.
39. 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.
34 of 49 (J) Application No.82 of 2015 (WZ)
40. 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:
35 of 49 (J) Application No.82 of 2015 (WZ)
41. 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.
42. 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.
36 of 49 (J) Application No.82 of 2015 (WZ)
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 :
1. 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.
2. The kuchcha road and the helipad has been removed by
the M/s. Dyna Buildwell.
3. 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.
43. 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
37 of 49 (J) Application No.82 of 2015 (WZ)
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.
44. 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.
45. 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
38 of 49 (J) Application No.82 of 2015 (WZ)
basement of the banquet hall has been carried out as
per approved plan.
46. 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.
47. 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
39 of 49 (J) Application No.82 of 2015 (WZ)
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.
48. 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
40 of 49 (J) Application No.82 of 2015 (WZ)
strengthening the same in order to get proper access
from the village road.
49. 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.
50. 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.
51. 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
41 of 49 (J) Application No.82 of 2015 (WZ)
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.
52. 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
42 of 49 (J) Application No.82 of 2015 (WZ)
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
53. 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.
54. 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
43 of 49 (J) Application No.82 of 2015 (WZ)
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.
55. 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.
56. 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
44 of 49 (J) Application No.82 of 2015 (WZ)
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”.
57. 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
45 of 49 (J) Application No.82 of 2015 (WZ)
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.
58. 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.
59. 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:
46 of 49 (J) Application No.82 of 2015 (WZ)
“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.”
60. In view of the above discussions, we pass the
following directions:
1. 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.
47 of 49 (J) Application No.82 of 2015 (WZ)
2. 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.
3. 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.
4. The Respondent No.2-GCZMA shall execute
such plan within next three (three) months.
5. 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
48 of 49 (J) Application No.82 of 2015 (WZ)
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.
6. 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.
7. 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
49 of 49 (J) Application No.82 of 2015 (WZ)
facilities in the Coastal area for tourists in
consultation with Respondent No.2-GCZMA.
8. 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.
9. 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.
….…………….………………., JM (Justice U.D. Salvi)
….....…..……………………., EM
(Dr. Ajay.A. Deshpande) Date: November 3rd, 2016 PUNE hkk
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