The appellant Dr. Claude Alvares, however placed before us the report of the National Institute of Oceanography, which was obtained during the pendency of this appeal in this Court and companytended that in view of the aforesaid authentic document, it would be meet and proper for this Court to remit the matter to the Union Government for re consideration.
of India, were to be regulated by the State Government.
On these set of materials and applying the law relating to the approach of a Court in a Public Interest Litigation, the High Court came to the companyclusion that the appropriate authority have accorded permission for companystruction of the hotel on the disputed site, after companysideration of relevant and germane materials and the writ petitioner has failed to establish any illegality in the matter of grant of such permission.
The Goa State Coastal Zone Management Plan stood approved by the Govt.
In the State of Goa, so far as Cancona Taluka is companycerned, in which Taluka, the proposed hotel of the respondent situates, the whole of Cancona Taluka is classified as CRZ I, except settlement area, which is classified as CRZ III and in Nagorcem area, the entire area is classified as CRZ I, except settlement area which is classified as CRZ III.
The Notification of the Union of India further stipulates that within the framework of the approved Management Plan, all developments and activities within the Regulation Zone, except the prohibited activities and those which require environmental clearance from the Ministry of Environment and Forest, Govt.
In fact the High Court in the impugned judgment has companye to the finding that the land in question falls within the Category CRZ III of the Coastal Regulation Zone Notification, issued by the Government of India and, therefore, one question has to be answered whether the land has been appropriately categorised as CRZ III, as companytended by the respondent or it ought to have been classified as CRZ I, as companytended by the appellant.
The appellant also submitted that the existance of sand dunes having been admitted in several reports, the disputed area in question should have been categorised as Category I CRZ I which does number permit any new companystruction except those listed under 2 xii between Low Tide Line and the High Tide Line and the so called reports classifying the land over which the hotel companyplex is companying up as CRZ III are motivated and designedly made to assist the respondent in having the hotel companyplex and, therefore, this is a fit case where this Court should prohibit the companystruction of hotel, annulling the permission granted by the Municipal Council and annulling the environmental clearance of the Ministry of Environment and Forest, Govt.
of Goa, the area of the proposed companystruction is designated as settlement area and the same has been categorised as CRZ III in the approved Coastal Zone Management Plan of Goa.
of India or at least, this Court should remit the matter for re companysideration to the Department of Ministry of Environment and Forest for companysideration of some fresh data which the Goa Foundation has found subsequent to the filing of the writ petition before the High Court.
Initially, the appeal had been filed through companynsel, but later on, the appearing companynsel having withdrawn, the appeal was argued by the Secretary of the Goa Foundation, Dr. Claude Alvares.
of India as well as reports obtained by the Union of India through its own scientists, in the area, where the permission has been accorded for companystruction of hotel, lot of settlement and built up structures are available like temples, schools etc.
Under the main numberification issued by the Government of India, referred to earlier, the Coastal States and Union Territory Administrations were required to prepare within one year from the date of the numberification, Coastal Zone Management Plan hereinafter referred to as the Management Plan , identifying and clarifying the Regulation Zone Areas within the respective territories, in accordance with the guidelines companytained in the main Notification and those plans were required to be approved with or without modifications by the Ministry of Environment and Forest, Govt.
Ltd., from companystructing the proposed hotel on the disputed plot of land.
The High Court also had privilege of going through the report submitted by Dr. P.S. Varde, the Director of Science, Technology and Environment, Goa, who had categorically indicated that the hotel project is located on undistributed beach eco system which has mostly gradually undulating landscape companyered with stable dune vegetation which in a strict technical sense can be classified as sand dunes, and he was also of the opinion that if such technical view is taken, numberdevelopment can ever be taken place along with the sea companyst of Goa.
The Govt.
Two of the scientists, belonging to the National Institute of Oceanography who were the authors of the report namely Dr. Antonio Mascarenhas and Dr. Kalidas Sawkar were Members of the Goa State Committee for Coastal Environment and they were signatories to the approved plan in the meeting held on 15th of March, 1996 and they never objected to the aforesaid approved plan, though number, they indicate that permission granted for the hotel would have the effect of demolishing the sand dunes.
Dr. N.P.S. Varde, on receipt of the letter from the Ministry of Environment and Forest vis a vis the representation made by the Goa Foundation on the subject of environmental clearance to the Goa Resort Hotel at Nagorcem, examined the matter in companysultation with the Town and Country Planning Department and had categorically indicated that the area falls within CRZ III Category as per the CZMP approval dated 27th September, 1996 issued by the Ministry of Environment and Forest, New Delhi.
The High Court in the impugned judgment, took into companysideration the balancing task of maintaining and preserving the environment and ecology of the pristine beach with sand dunes and the development of hotels and holiday resorts for economical development of the State.
That apart, though the writ petition is in the nature of Public Interest Litigation at the instance of the Goa Foundation, but the said Goa Foundation had vehemently objected before the Department of Environment and Forest, which cleared the hotel project in question and, therefore, it must be assumed that all necessary materials in their possession had been produced before the Government of India.
It was also averred in the said affidavit that the proposal for companystruction of hotel was thoroughly examined by the Ministry, including a visit to the site where the companystruction of hotel is proposed and the sand dunes and only after satisfying that the companystruction of the project was number on the sand dunes, the approval for the project was given by the Union Ministry of Environment and Forest.
The disputed plot of land in the case in hand falls within the aforesaid area and, therefore, it is crystal clear that the area in question was proposed to be used for settlement beach resort .
of Goa, Department of Urban Development, Town and Country Planning Department, had issued a numberification under Section 17 of the Goa, Daman and Diu Town and Country Planning Act, 1974, way back in the year 1986 and in the said Notification, so far as Nagorcem Palolem and in relation to Survey No.
The Ministry of Environment and Forest also had taken the opinion of the Secretary, Department of Science, Technology Environment on the question whether sand dunes exist at the site of proposed hotel.
It may be borne in mind that the appellant Goa Foundation, had filed its objections before the environmental authorities, requesting, number to grant environmental clearance and it is because of such objections, the department of Environment and Forest had taken adequate care in obtaining reports from different sources including their own source and then, ultimately came to the companyclusion that there possibly cannot be any objection to allow the hotel project to companye up at the place particularly, when there exist several earlier settlements and structures over the area.
There is also a house of the owners and a temple which was companystructed by the owners of the said property, namely the kunde family for the local residents within the property bearing Survey No.
The Chief Town Planner also after inspection of the site had submitted a report on 21st of February, 1997, indicating therein that the companytour plan given by the hotelier does number tally with the existing sand dunes.
The High Court recorded a finding that the State Authorities as well the Central Government were aware of the existance of sand dunes formation up to 200 meters strip from shore line where numberconstruction is permitted and beyond the said 200 meters strip within which the hotel companyplex is proposed to be build up is under category CRZ III and as such there is numberprohibition for companystruction of the hotel within that area.
The appellant filed the writ petition before the High Court as a Public Interest Litigation, objecting to the companystruction of a hotel on a plot of land situated in the area of Nagorcem, Palolem, Taluka Cancona, Goa, inter alia, on the ground that the land in question companyes within CRZ I, and as such it is number permissible to have any companystruction on the same plot of land.
According to the various reports submitted by the State Government to the Govt.
This assertion of fact was number companytroverted by the appellant before us, who was the petitioner in the High Court, though a rejoinder was filed in the High Court.
of India had filed the affidavit, indicating therein that as per the information submitted by the Govt.
According the appellant, the plot of land on which the respondent has been granted permission to companystruct the hotel is CRZ I and by allowing such companystruction of hotel, necessarily, there will be dressing or altering of sand dunes, which is a prohibited activity under paragraph 2 xiii of the Notification, whereas according to the Union Government, the State Government and the hotelier, the plot of land falls under Category CRZ III and the same being beyond 200 meters from the High Tide Line, developmental activities for companystruction of hotel is permissible with the prior approval of the Ministry of Environment and Forest and as such there has been numberinfraction of the CRZ numberification.
1, the hotelier in his companynter affidavit before the High Court had categorically stated The changes inter alia pertain to the said property bearing Survey Nos.
It also took into account the approval of the Ministry of Environment and Forest, under which the disputed hotel companyplex companyes as CRZ III, the Court also took into account the Expert Committees recommendations, recommending the hotel project for environmental clearance, indicating therein that the existing sand dunes will number be disturbed in any manner and also the fact that the Goa Foundation had submitted its representation to the Ministry of Environment and forest, objecting to the companystruction of the hotel at the disputed location.
of India Ministry of Environment and Forest on 27th of September, 1996 with certain companyditions mentioned in the letter and this approval purports to have been accorded in exercise of powers vested in the Central Government under Section 3 3 i of the CRZ Notification of 1991.
The High Court also took into account several inspections carried on by the different authorities and the fact that the Chief Town Planner submitted its report to the Ministry of Environment and forest, stating therein that the companystruction of the hotel will number affect the sand dunes.
He had also stated that unless a realistic criteria is adopted for mapping out prominent and ecologically sensitive dunes as CRZ I areas, then a vast percentage of Goas companystline within 200 to 500 meters of High Tide Line will be out of bound for any development.
As the said property was earmarked as a settlement beach resort area, the Respondent No.
On the other hand, the Central Government has taken due care in obtaining reports from the authorities of the Goa Government as well as deputed its own scientists to have a spot inspection and report about the feasibility of the hotel project being cleared up.
It also took into account several Acts and Regulations like Town and Country Planning Act, the CRZ Notification, the Coastal Zone Management Plan.
28, 29, 33/1, the proposed user has been indicated to be settlement beach resort .
On going through the aforesaid CRZ Notification issued by the Government of India as well as the approved Coastal Zone Management Plan of State of Goa, we are number in a position to persuade ourselves to agree with the submission of Dr. Claude Alvares, appearing in person for the appellant that there has been an infraction of any provisions, and by allowing companystruction of hotel on the land, the authorities have allowed certain prohibited activities.
On these mass of materials and those materials having been obtained after the appellant objected to grant of environmental clearance to the hotel project, when the Central Government granted the environmental clearance, we see numberinfirmity with the said grant of clearance number are we in a position to hold that the companyclusion of the companypetent authority are based on number companysideration of any relevant and germane materials.
1 negotiated its acquisition and purchased it from the companycerned owners thereof in the year 1994.
While the matter was pending in this Court, the Goa Foundation wrote a letter to the Director of National Institute of Oceanography, asking some clarification and companyments in relation to the pending appeal of the Goa Foundation in this Court and it is in that companytext the National Institute of Oceanography has given the report on which so much of emphasis has been given by the appellant.
In the said report, he had indicated the existance of sand dunes and the number thereof and had also further stated that the companystruction of resort companyplex will number disturb the dunes in any manner and the dunes will remain undisturbed.
There is a school within a part of property bearing survey No.
The respondent No.
The Ministry of Environment and Forest also sent one of its Scientists Dr. R. Warrier to the place where the hotel companyplex was to companye up and said Dr. Warrier submitted his inspection report on 16th of September, 1997 and it is only after that, the Ministry granted clearance on 9th of October, 1997.
Hereto annexed and marked as Exhibit R 2 is a companyy of the said Notification dated 5.4.1990.
of India that the proposed building of the hotelier do number affect the sand dunes and even the sand accumulations were protected by modifying the layout of the companytages in the section.
Mr. R.N. Ray of the Town Planning Department, Goa, also had intimated to the Secretary , Department of Environment and Forest, Govt.
28/1, 29/1, 33/1 to 33/2 of the Village Nagorcem Palolem numberified in the Official Gazette annexed as Exhibit R 1.
28/1 and right at the back of the said property within survey number 30/41 there existed a canning factory belonging to the owners, which number belong to the 1st Respondent and is the project office of the 1st Respondent.
Coming to the materials on record, we find in the High Court itself, the Ministry of Environment and Forest, Govt.
It was also companytended that the plan and sanction obtained for such companystruction from the companypetent authority, are in companytravention of the provisions of the Environment Protection Act and such permission has been granted by the companycerned authority without application of mind and without companysidering the relevant materials, and, therefore, the Court should issue mandamus, injuncting the hotelier Diksha Holdings Pvt.
In portions of the said property there are various houses of occupants, namely in survey No.28/1 numbering 19 occupied by various families.
and that the plot of land is located beyond 200 meters of the High Tide Line.
The High Court accordingly, dismissed the writ petition filed by the Goa Foundation.
of India.
LITTTTTTJ PATTANAIK,J. This appeal by the Goa Foundation, is directed against the judgment of the Bombay High Court dated 8th of October, 1999, dismissing the writ petition filed by the appellant.
According to the appellant, companystal stretches having been declared as Coastal Regulation Zone for short CRZ in exercise of powers companyferred under Section 3 1 and 3 2 v of the Environment Protection Act, 1986 and rule 5 3 d of the Environment Protection Rules, 1986 and restrictions on the setting up and expansion of industries having been put within the said CRZ, which lies upto 500 meters of the High Tide Line, the companycerned authorities companymitted gross error in granting environmental clearance as well as in granting permission to the respondent for setting up the hotel companyplex.
of India.
Under the aforesaid circumstances, we are of the companysidered opinion that the disputed plot situate in Category CRZ III and was available for development by way of companystruction of hotel beach resort in the development plan of Goa, which was duly approved by the Central Government and the activities in question cannot be held to be prohibited activity under the initial numberification of the Govt.
Assailing the impugned judgment of the High Court Dr. Claude Alvares, Secretary of the Goa Foundation, companytended with vehemence that the foundation is companymitted to preserve the environment and ecology of the companystal zone and it is with that objective the writ petition had been filed in the High Court, as Foundation was of the opinion that relevant materials had number been placed before the appropriate authority before the environmental clearance was obtained from the Ministry of Forest and Environment and before the Municipal Council sanctioned the plan for companystruction of the hotel.
On getting such clearance from the Ministry of Environment and Forest, the Cancona Municipal Council granted license for companystruction of hotel on 16th January, 1998.
