1 wp-519.07goabench Ash IN THE HIGH COURT OF BOMBAY AT GOA APPELLATE JURISDICTION WRIT PETITION NO. 519 OF 2007 WITH MISC. CIVIL APPLICATION NO. 617/09 WITH WRIT PETITONS NO.420 & 474 of 2007 WRIT PETITION NO. 519 OF 2007 WITH MISC. CIVIL APPLICATION NO. 617/09 1. Carlos Noronha, ) resident of La Oceana Colony, ) Dona Paula – Goa. ) 2. Antonio Rodriques, ) resident of La Oceana Colony, ) Dona Paula – Goa. ) ( Registered Addresses ) ).. Petitioners Versus 1. Union of India, ) Ministry of Environment & Forest, ) through its Secretary having office at ) Paryavaran Bhavan, C.G. O. Complex, ) Lodhi Road, New Delhi. ) 2 wp-519.07goabench 2. Goa Coastal Zone Management ) Authority, through its Member Secretary,) having office at Secretariat, Porvorim, ) Bardez-Goa. ) 3. Village Panchayat of Taleigao, ) through its Secretary, having office at ) Taleigao – Goa. ) 4. North Goa Planning and Development ) Authority, through its Member Secretary,) having office at Panaji – Goa. ) 5. Fomento Resorts & Hotels Limited, ) Cidade de Goa, Vainguinim Beach, ) Dona Paula – Goa. ) 6. The Goa State Pollution Control Board, ) through its Member Secretary, having ) office at Dempo Towers, Patto Plaza, ) EDC Complex, Panaji – Goa. ) 3 wp-519.07goabench 7. The Dy. Director of Panchayats, ) Government of Goa, having Office at ) Junta House, Panaji – Goa. ) 8. The Addl. Director of Panchayats, ) Government of Goa, having Office at ) Junta House, Panaji – Goa. ) 9. National Coastal Zone Management ) Authority, Paryavaran Bhavan, ) CDO Complex, Lodhi Road, ) New Delhi – 110 003. ).. Respondents -- Shri V.B. Nadkarni, Senior Advocate with Shri M.S. Sonak with Shri P.S.Rao for the Petitioners. Shri C.A. Ferreira, Assistant Solicitor General for Respondent No.1. Shri S.S. Kantak, Advocate General with Shri A. Kamat, Additional Government Advocate for Respondent Nos.2, 7 and 8. Shri A.N. S. Nadkarni, Senior Advocate with Shri H.D. Naik for Respondent No.3. Shri Rafiq Dada, Senior Advocate with Shri M.S. Usgaonkar, Senior Advocate with Shri Sudesh Usgaonkar with Ms S. Kamat and Shri Abhijeet Dessai for Respondent No.5. Shri J. Godinho for Respondent No.6. 4 wp-519.07goabench -- CORAM : A.S.OKA & F.M. REIS, JJ THE DATE ON WHICH ) SUBMISSIONS WERE HEARD ) 17TH AUGUST, 2010. THE DATE ON WHICH JUDGMENT ) IS PRONOUNCED : ) 10TH DECEMBER, 2010 JUDGMENT ( PER A.S. OKA, J ) By this Writ Petition under Article 226 of the Constitution of India, the challenge in substance is to the action of re-classifying certain properties as CRZ-II. A brief reference to the facts of the case will have to be made. FACTS OF THE CASE AND SUMMARY OF PLEADINGS: The Petitioners are citizens of India. Both of them claim to be the residents of La Oceana Colony, Dona Paula, Goa. Their case is that they are holding residential plots in the said La Oceana Colony. It is contended 5 wp-519.07goabench that the proposed project of construction of hotel by the 5th Respondent is coming up behind the said La Oceana Colony and, therefore, the Petitioners will be directly affected by the hotel project. The petitioners have stated that they have a duty in terms of article 51A(g) of the Constitution of India to protect and improve the natural environment including forest lakes rivers and wildlife. 2. The first Respondent is the Union of India. The second Respondent is the Goa Coastal Zone Management Authority (for short “ GCZMA” ) which has been constituted in exercise of powers under Section 3 of the Environment (Protection) Act, 1986 (hereinafter referred to as “the said Act of 1986”). The GCZMA is responsible for monitoring and enforcing the CRZ notification in the State of Goa. The third Respondent is a Village Panchayat of Taleigao established under the Goa Panchayat Raj Act, 1994 (hereinafter referred to as “the said Act of 1994”) The fourth Respondent is a Planning Authority. The 5th Respondent is a Company which desires to set up a project of hotel. The 6th Respondent is the Goa State Pollution Control Board. The seventh and eighth Respondents are the Authorities exercising powers under the said Act of 1994. The ninth Respondent is the National Coastal Zone Management Authority (for short “NCZMA”) constituted under section 3(3) of the said Act of 1986. 3. On 19th February, 1991, The Coastal Zone Regulation Notification (for short “CRZ notification”) was issued by the Central 6 wp-519.07goabench Government in exercise of powers under Section 3(1) and (3)(2)(v) of the Environment (Protection) Act, 1986 ( hereinafter referred to as the “said Act of 1986”) declaring the coastal stretches specified therein as Coastal Regulation Zone ( CRZ ). Under the Notification dated 19th February, 1991, the coastal stretches of seas, bays, estuaries , creeks, rivers and backwaters which are influenced by tidal action (in the landward side ) up to 500 meters from the high tide line(HTL) and the land between the low tide line(LTL) and HTL were declared as CRZ. By the said notification, certain activities were declared as prohibited activities in CRZ. It also provides for regulation of permissible activities in CRZ. Paragraph 6(1) of the CRZ notification classified the Coastal Regulation Zones consisting of coastal stretches within 500 meters of high tide line on the landward side into four different categories named as CRZ-I, CRZ-II, CRZ-III and CRZ-IV respectively. In the present case, we are concerned with the categories of CRZ-II and CRZ-III. In terms of Paragraph 3(3)(i) of the CRZ notification, The Coastal Zone Management Plan (for short “CZMPA”) of the State of Goa identifying and classifying the CRZ areas in the State of Goa was prepared and was submitted on 26th June, 1996. In exercise of powers under Paragraph 3(3)(i) of the CRZ Notification, the Central Government by a communication dated 27th September, 1996 granted approval to the Coastal Zone Management Plan of Goa subject to the various conditions and modifications incorporated therein. Under the said communication, in relation to Panaji and its environs, all areas outside the municipal limits were classified as CRZ-III. The area from Cabo Raj Niwas to Dona Paula 7 wp-519.07goabench Jetty was classified as CRZ –III. The area of Dona Paula cove/bay up to the line of existing authorized developments was classified as CRZ-III. The area from Dona Paula cove /bay to Vainguinim Beach (hereinafter referred to as “the said area”) was also classified as CRZ-III. 4. A communication was issued by the 2nd Respondent dated 1st December, 2000 by which re-classification of the following areas/stretches was sought from CRZ-III to CRZ-II:- (i) 1st stretch- the area from Cabo-Raj Niwas upto Dona Paula cove/bay (Map no.1), (ii) 2nd stretch-the area from Dona Paula Cove/Bay to Vainguinim Beach (Map no. 2), (iii) 3rd stretch-the area from Vaiguinim Beach up to Panaji municipal limit towards Siridao (Map no.3), and (iv) 4th stretch -the entire stretch of land at Ribander (within Panaji Municipal limit)along the Mandovi river (Map no.4 and Map no.5) 8 wp-519.07goabench The aforesaid areas are hereinafter referred to as the 1st stretch, 2nd stretch, 3rd stretch and 4th stretch respectively. 5. By the impugned communication dated 3 rd December, 2001 issued by the Government of India, the said re-classification was allowed and it was directed that the revised CZMP for the aforementioned four coastal stretches shall be prepared and submitted to the Government of India at the earliest. The challenge in this Writ Petition is basically to the said decision. 6. It is alleged in the petition that the re-classification of the aforesaid four stretches was sought in order to sub-serve the interests of Hotel lobby and the builders’ lobby. It is alleged that the reclassification was sought at the cost of ecology and environmental degradation. It is stated that the said four stretches were classified as CRZ-III as the same were relatively undisturbed and were not substantially built-up. It is alleged that re-classification has been sought with the malafide intention and the decision of seeking reclassification was without application of mind and against the purpose for which the CRZ notification was issued. It is alleged that on 19th February 1991 the area forming the four stretches was neither in municipal limits nor was other legally designated urban area. It is alleged that the facilities like drainage, approach road, water supply, sewerage mains were not provided in the said area. It is submitted that re-classification done is against larger public interests and is against 9 wp-519.07goabench the very object and purpose of the said Act of 1986 and the CRZ Regulations. 7. It is stated that the 5th Respondent was proposing to construct a hotel project in Survey No. 246/1 of Village Panchayat of Taleigao. It is contended that the said land is hilly and rocky and is covered by vegetation and the same forms a part of green cover. Reliance was placed on the order passed in Writ Petition No. 474 of 2007 by which the 2nd Respondent was directed to conduct inspection of the site and to measure the distance of the proposed hotel project from high tide line. It is contended that the inspection revealed that the distance between the nearest part of the proposed construction from high tide line is 86.23 metres. It is stated that the 2nd respondent approved the revised plan submitted by the 5th respondent for construction of the proposed hotel on the said land .Another contention raised in the Petition is that the hotel is an industry within the meaning of Clause (2)(i) of the CRZ Notification and, therefore, there is a complete prohibition under the CRZ Notification. It is alleged that the consent in accordance with the provisions of the Air (Prevention & Control of Pollution) Act, 1981, and in terms of 25 and 26 of Water (Prevention & Control of Pollution) Act, 1974 has not been obtained. It is contended that substantial part of the proposed hotel project is not located on the landward side of the existing authorised structure of hotel Cidade de Goa owned by the 5th Respondent. 10 wp-519.07goabench 8 The Petitioners contended that the approved CZMP clearly lays down that in respect of Panaji and surrounding areas all areas outside the municipal limits are classified as CRZ-II and, therefore, the re- classification is contrary to the approved plan. 9. It must be noted here that on 24th October, 2007 by a detailed order, this writ petition was admitted and interim relief was granted in terms of prayer clauses (e) and (f). The 5th Respondent was restrained from undertaking any construction in respect of the proposed hotel project and the 3rd Respondent was restrained from approving the plans submitted by the 5th Respondent. However, it was clarified that interim relief shall not not relate to the entire stretch of land at Ribander within Panaji Municipal Limits along Mandovi river. It must be stated here that the National Coastal Zone Management Authority (NCZMA) which was added as a Respondent No.9 in its 17th meeting purported to re-consider the issue and came to the conclusion that the re-classification was correct. Accordingly a resolution was passed. By carrying out amendment to the Petition, even the said decision was challenged. On 26th of December 2007, environmental clearance was granted to the hotel project of the 5th respondent. By carrying out amendment, the order granting environmental clearance was challenged in this petition. As the 3rd respondent did not grant construction license to the 5th respondent, an appeal was preferred 11 wp-519.07goabench by the 5th respondent before the 7th respondent. The said appeal was allowed and the 7th respondent directed the 3rd respondent to issue a license to the 5th respondent. The 3rd respondent preferred an appeal before the 8th respondent which has been dismissed by judgment and order dated 31st July 2007. The 3rd respondent has preferred a writ petition being writ petition no. 474 of 2007 challenging the said decision. Thus, the challenge in the petition is to the reclassification from CRZ-III to CRZ-II of the aforesaid four stretches, approval granted by the 2nd respondent to the project of the 5th respondent, the environmental clearance granted to the project of the 5th respondent and the decision taken by the 9th respondent confirming the correctness of the re- classification during the pendency of the petition. Lastly there is also a challenge to the order dated 31st July 2007 by which 3rd respondent was directed to grant license to the 5th respondent for construction of hotel project. 10. The 5th Respondent filed a detailed affidavit-in-reply raising various contentions. It was stated that no public interest is involved in the Petition. It was contended that the Petitioners are not affected by the proposed project. It was contended that the action of filing the petition was mala fide. It was contended that by Notification dated 24th August, 1995, the Village Taleigao was included within the limits of municipal area of Panaji. It was contended that the area falling within the Village Taleigao was already designated as an urban area in the District Census of 12 wp-519.07goabench Towns of North Goa District in the Census Year 1991. It was contended that by a notification dated 19th November 1976, in exercise of powers under section 18 of the Goa, Daman and Diu Town and Country Planning Act, 1974 (hereinafter referred to as the said of Act of 1974), the Village Taleigao was included in Panaji planning area. Therefore, the village was designated as urban area. It was submitted that the classification made under the original approved CZMA was completely erroneous. It was pointed out that from 1995 till 31st March, 2003, the Village Taleigao continued to form a part of municipal area till the constitution of Municipal Corporation of the City of Panaji and at that stage, it was against included in the Village Panchayat. It is submitted that as the area was always an urban area, re- classification made was fully justified. 11. The 2nd Respondent GCZMA filed an affidavit of Shri Michael D’Souza in reply to the petition. It was stated by him that the area situated within the limits of the Village Taleigao was not located within the municipal limits. However, the said fact was irrelevant and what was material was whether it was a substantially built up area. It is submitted that the relevant consideration is whether the area is substantially built up and developed and has been provided with the drainage, approach road, water supply, sewerage mains, etc. It is submitted that an area outside the municipal limits can be designated as CRZ-II and the area within the municipal limits can be designated as CRZ-III. It is pointed out that area falling within a particular Municipal Council has been classified as CRZ III 13 wp-519.07goabench as it was not developed. It was contended that the proposed hotel project to be constructed on the land surveyed under Survey No. 246 is on the plateau top which has been classified in the CZMP of 1996 as CRZ-II. It was contended that even without re-classification, the area where the construction is proposed to be carried out was classified as CRZ-II area. It was submitted that after 2001, the Authorities have acted upon the re- classification and have granted various licenses and permissions and the area has been substantially developed. It was submitted that after taking into account the relevant factors, the re-classification has been made. Reliance was placed on the 4th meeting of the GCZMA held on 24th March, 2000 in which this aspect was considered and it was resolved to submit a proposal for re-classification. Reliance was placed on the communication dated 8th May, 2001 as well as the communication dated 19th September 2001 by way of reply to the communication dated 17th August, 2001 issued by the Government of India. It was pointed out that the area was designated as urban area under the Census of 1991. 12. There are various affidavits filed by the 1st Respondent (the Union of India). The 1st affidavit is dated 24th December, 2007 filed by one Dr.U. Shridharan, Additional Director, Ministry of Environment and Forests. It was contended that the area was rightly re-classified as the CRZ-II. There is a further affidavit dated 12th March, 2008 of the same officer which records that the environmental clearance order dated 26th December, 2007 will be subject to the final outcome of the present petition. 14 wp-519.07goabench There is a rejoinder filed by the Petitioners dealing with the reply of the 2nd Respondent. There is a separate rejoinder filed by the Petitioners dealing with the affidavit of the 1st Respondent. There is a separate rejoinder filed by the Petitioners to the reply filed by the 5th Respondent. The added 9th Respondent filed affidavit dated 27th June, 2008 of one Mr.E.Thirunavukkarasu placing on record the decision taken in its 17th meeting of NCZMA approving the re-classification. On 24th September, 2008, the added Respondent filed another affidavit dealing with the allegation of non-application of mind in the Petition. On 24th September, 2008, another affidavit was filed by the 1st Respondent reiterating that the order of environmental clearance will be subject to the final outcome of the present petition. 13. Papers of Writ Petition No.474 of 2007 were tagged along with the present petition where the challenge by the Village Panchayat of Taleigao is to the order dated 31st July, 2007 passed by the 1st Respondent in exercise of powers under Section 66(2) of the said it Act of 1974. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE PETITIONERS 14. The learned Senior Counsel appearing for the Petitioners invited our attention to the relevant provisions of the said Act of 1986. He pointed out that the CRZ Notification of 19th February, 1991 has been 15 wp-519.07goabench issued in exercise of powers under Section 3 of the said Act of 1986. Inviting our attention to the relevant parts of the CRZ Notification, he submitted that the restrictions were imposed from the date of the notification on the user of the lands falling in CRZ. He invited out attention to Paragraph 6 of the Notification and submitted that the classification has to be made as per the situation prevailing on the date of the Notification and as on the said date it will have to be determined whether a particular land falls in CRZ-II or CRZ-III. He invited our attention to the communication dated 27th September, 1996 issued by the Government of India by which the Coastal Zone Management Plan of Goa dated 26th June, 1996 has been approved. He pointed out that under the CRZ Notification, the area falling in CRZ-II is an area which has been already developed up to the shore line. He submitted that the developed area can be an area within the municipal limits or in other legally designated urban areas which are already substantially built up and which have been provided with the drainage and approach road and other infrastructural facilities such as water supply and sewerage mains. He pointed out that Paragraph xiii of the communication dated 27th September, 1996 makes categorization of lands in Panaji and its environs. He pointed out that the area concerned was clearly designated as CRZ-III. He invited our attention to Clause (i) of Paragraph xiii. He submitted that the plateau top is classified as CRZ-II provided it is falling within the municipal limits. He submitted that the 2nd Respondent has come out with a totally incorrect case in the affidavit that the land surveyed under Survey 16 wp-519.07goabench No. 246 where hotel project is to come up is on the plateau and therefore, it is CRZ-II. He submitted that on the relevant date, admittedly the said land was not within the municipal limits. He submitted that the said land will not be covered by the said clause (i). He pointed out that the CZMP of Goa was submitted on 26th June, 1996 and within few months i.e. 28th November, 1996, the Government of Goa moved the Central Government for re-classification only on the ground that the said areas are already highly built up and were included in Panaji Municipal Limits. He submitted that the re-classification was not sought on the ground that it is otherwise legally designated as an urban area. He pointed out that the same stand was reiterated by the Government of Goa in its communication dated 25th July, 1997. He submitted that even Resolution passed by the GCZMA on 24th March, 2000 proceeds on the footing that the re- classification was required as the land was within the municipal limits of Panaji. He invited our attention to the communication dated 17th August, 2001 issued by the Central Government in which it was pointed out that the area was included in the municipal area on 24th August, 1995 and accordingly, the area was rural area as on 19th February, 1991 qualifying the CRZ-III categorization. He pointed out that by the said letter, the Government of Goa was called upon to inform whether the area was designated as the urban area before 19th February, 1991. He pointed out that in the reply a stand was taken that it was designated as the urban area (Census Town) of North Goa District in the Census of 1991. He pointed out that a stand was taken that the area was notified as planning area in 1976. 17 wp-519.07goabench He pointed out that in the letter dated 8th May, 2001, the stand taken by the GCZMA was that the area was falling in Panaji Municipal Area and it was a highly developed area. He submitted that in the proposal for re- classification submitted by GCZMA on 1st December, 2000 on the basis of which re-classification was made, it is not stated that the area was declared as an urban area and in fact the re-classification was sought only on the ground that it was highly developed area. He submitted that even in the 1st affidavit of the 1st Respondent filed on 24th September, 2007, it is not the stand taken that it was within other legally designated urban area. He pointed out that this is a case of complete non-application of mind inasmuch as the re-classification was sought only the ground that the area was falling within the limits of municipal council and that it was a developed area. He pointed out that even in the communication dated 3rd December, 2001, it is not stated as to why the area was re-classified as the CRZ-II. He submitted that the whole issue ought to have been considered in the context of CRZ Notification and the status of the said land as on 19th February, 1991. He submitted that there was no application of mind as to whether the area was a developed area within the municipal limits or that it was other legally designated urban area. He placed reliance on certain decisions of the Apex Court and submitted that the basic challenge in this Petition is to a decision making process and the decision making process shows a complete arbitrariness and non-application of mind. 18 wp-519.07goabench THE SUBMISSIONS OF THE LEARNED ASSISTANT SOLICITOR GENERAL OF INDIA 15. The learned Assistant Solicitor General of India has produced the relevant file before this Court. He pointed out that the Union of India has taken into consideration all the relevant aspects. He pointed out the contents of the letter dated 17th August, 2001. He submitted that the said letter shows that the area was not re-classified on the ground that it was falling within the municipal limits. He pointed out that before taking final decision, a specific query was made by the 1st Respondent to the 2nd Respondent as to whether it was a legally designated urban area. He pointed out that the GCZMA replied on 19th September, 2001 that it was legally designated as urban area in the year 1991. He submitted that taking into consideration all the relevant aspects, the decision was taken to re-classify the land after considering the situation