IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI CIVIL APPLICATION NO.218 of 2011 IN WRIT PETITION NO.362/2010 George Barreto, Major, R/o H.NO.295/A, Sinquetim, Navelim, Salcete-Goa and 49 others …. Applicants V e r s u s The State of Goa Through its Chief Secretary, Secretariat, Porvorim, Bardez-Goa and 10 others …. Respondents Mr. Nigel Da Costa Frias, Advocate for the Applicants. Mr. S.S. Kantak, Advocate General with Mr. A. Kamat, Additional Government Advocate for Respondents no.1,2,5 to 7 & 11. Mr. D. J. Pangam, Advocate for respondent no. 3. Mr. B. Rodrigues, Advocate for Respondent no.4. Mr. C.A. Ferriera, Advocate for Respondent no.8. CORAM: A.P. LAVANDE & U. V. BAKRE, JJ. Reserved on : 29/11/2011. Pronounced on : 8/12/2011. 2 O R D E R (PER U.V. BAKRE, J): Heard the learned counsel for the parties. 2. This is an application filed by the applicants praying for interim relief thereby restraining the respondents no.1 and 2 from proceeding with the construction of the proposed bridge between Benaulim and Sinquetim in villages Navelim and Benaulim at Salcete Taluka, pending the hearing and final disposal of the petition. 3. In the Writ petition no.362/2010, the petitioners have challenged the alleged illegal construction of the said bridge over River Sal and have prayed for stoppage of the construction. 4. By order dated 3/5/2010 passed in the said Writ petition, this Court ordered that in the event of clearance from 3 the Ministry of Environment and Forests (M.O.E.F) not being obtained by the next date, the petitioners would be at liberty to move an application for a complete stay of the works. It was made clear that any work that is done will be entirely at the risk of the respondents including the Contractor and no equity in respect thereof shall be claimed. It was further ordered that Khazan lands cannot be filled. 5. By order dated 7/10/2010 passed by this Court in Civil application No.155 of 2010 filed in the said Writ petition, a direction was given that the work of construction of the bridge shall not be recommenced until Coastal Regulation Zone (CRZ) clearance is obtained from the M.O.E.F and for a period of seven days thereafter. 6. In the mean time, the CRZ Notification, 1991 was repealed by the CRZ Notification, 2011. In terms of the provisions of CRZ notification, 2011, the M.O.E.F reverted 4 the matter back to the Goa Coastal Zone Management Authority(GCZMA) for its approval. GCZMA examined the matter and decided to approve the proposal from CRZ angle and to refer the same to Goa State Expert Appraisal Committee(GSEAC). The GCEAC by its letter dated 10/8/11 informed that the proposal does not come within the purview of the Environment Impact Assessment (EIA), Notification 2006, but at the same time directed to take certain additional environment measures to be prioritized by the Executing Agency (i.e. PWD). The said environmental measures are as under: i) A green belt/buffer zone/vegetative barrier shall be developed and maintained comprising of native species along the approach road to screen the site effectively from the surrounding local populace. ii) Temporary tin sheets, compound walls or other effective barriers shall be bordered as also approach roads to construction site should be regularly watered during the 5 construction phase to minimize noise/dust pollution. iii) Either banks of the approach road, from both its ends, should be properly terraced or benched with adequate angle of repose to prevent soil erosion, possibility of road sinking. Further, due care should also be taken for slope stabilization with proper structural design for storm water drains. iv) The care should be taken to prevent dumping of construction material, debris, etc. into the surrounding coastal environs, especially during the construction phase, and disturb the ecological set up/biodiversity (i.e. flora/fauna) of the surrounding area. 7. The GCZMA in paragraph 4 of the said approval letter dated 24/8/2011, further directed the Principal Chief Engineer, PWD, Altinho, Panaji as follows: “Accordingly, you are required to submit an undertaking to GCZMA that the Executing Agency (i.e PWD) shall abide 6 by all the conditions as laid down vide GCZMA letter dated 08/05/2008 (referred at (1) above), the conditions as laid down vide GCZMA letter dated 05/10/2010 (referred at (5) above) and specific conditions laid down by Goa-SEAC vide letter dated 10/08/2011 (referred at (8) above), before commencing the work at the site. It is also required that prior approval from Village Panchayat Authority, Goa State Pollution Control Board, Captain of Ports, River Navigation Department and Town and Country Planning Department be obtained.” 8. The GCZMA vide the said letter lastly ordered that any Officer/Authority designated by GCZMA shall inspect/monitor the work being carried out and if at any stage, it is found that the conditions laid down/prescribed are not adhered to, then GCZMA shall forthwith revoke the permission granted. 7 9. Shri Nigel Da Costa Frias, the learned counsel for the petitioners read out the contents of the affidavit-in-reply filed by the Respondent no.4 i.e. the Village Panchayat of Benaulim and pointed out that no prior approval from the said Panchayat has been obtained and that in fact the respondent no. 4 has resolved not to grant approval. Learned counsel further pointed out that the respondent no.3 i.e. the Village Panchayat of Navelim has not even filed any affidavit-in- reply. He then argued that the directions given by GSEAC, which have been incorporated in the approval dated 24/8/2011 by GCZMA, have not been complied with. He further contended that the procedure envisaged in paragraph 4.2 of the CRZ Notification 2011, has not been followed. He also took us through the contents of the letter dated 19/1/2009 written by the Town Planner to the P.W.D Engineer wherein certain conditions have been imposed while giving no objection from the planning point of view. According to Shri Nigel Costa Frias, these conditions are not fulfilled. Thus, 8 Shri Costa Frias, in short, argued that mere permission from Captain of Ports Department, which otherwise is also conditional would not suffice and that both the concerned Panchayats as well as Goa State Pollution Control Board (GSPCB) have not granted permissions and that other conditions imposed by other authorities have not been fulfilled and therefore, this is a fit case to stop the construction pending the final disposal of the writ petition since the same is likely to destroy the fragile eco-system and damage the environment beyond repair. 10. Learned Advocate Shri B. Rodrigues on behalf of Respondent no.4 supported the contentions of Advocate Nigel Costa Frias. He further added that the proposal had come from the P.W.D, but the same was not approved by the Panchayat. 11. Learned Advocate Shri D. Pangam, on behalf of 9 Respondent no.3, argued that no permission from Panchayat is required for construction of a bridge. He referred to Section 244-A of the Goa Panchayat Raj Act, 1994 (Panchayat Act) and to Item No. ix of Schedule I, to the Act. 12. On the other hand, learned Advocate General, Shri S.S. Kantak, at the outset, contended that the petition though is filed as Public Interest Litigation is otherwise for obstructing a project which is in public interest and that also without making proper inquiries. He pointed out that the petitioner no.1 has made submissions in paragraphs 5 and 6 of the application alleging that no permissions are obtained from various departments. He further showed that those submissions, as per the verification made, are true to the own knowledge of the petitioner no.1. He read out the entire application and contended that nowhere it is alleged that any inquires were made with the concerned authorities regarding the said permissions/approvals or conditions etc. He thus, 10 contended that statements have been made in air without approaching the authorities and asking them whether permissions have been obtained or not. According to learned Advocate General, as has been stated by the Executive Engineer in the additional affidavit filed, permissions/approvals which are required to be taken by law have been obtained and other alleged permissions pointed out by the petitioner have not been obtained as they are not required by law. He drew our attention to the statement made in the said affidavit to the effect that the department has submitted an undertaking to the GCZMA to abide by all the conditions imposed. 13. Shri C. Fereira, the learned counsel for the respondent no. 8, argued that everything that has been contended is with relation to the environment and under section 14 of the National Green Tribunal Act, 2010, there is remedy to approach the Tribunal, established under the said 11 Act, for settlement of disputes. He further argued that Section 66 of the Panchayat Act is applicable to a “person” and that “State” cannot be termed as person. For the above proposition, he relied upon ”Krishnan V. Krishnaveni [(1997) SCC 241]. 14. Perused the entire material on record. 15. Paragraph 4.2 of the CRZ Notification, 2011 prescribes the procedure for CRZ clearance of the permissible activities concerning all projects attracting this Notification. According to Shri Nigel Costa Frias, the consent given by the GCZMA is not as per the procedure prescribed under the above paragraph 4.2 and the petitioners have averred in paragraph 37 D of the Writ Petition about the same and have prayed for stay of the operation of the permission granted by the respondent no. 7 for construction of the said bridge. First of all, the clearance given by GCZMA is CRZ clearance. It is 12 clear from said the approval given by the GCZMA (respondent no. 7) that no approval from GSEAC is required as the proposal does not come under the purview of the Environment Assessment (EIA) Notification, 2006. Only because GCZMA referred the proposal to it, the GCEAC appears to have put some conditions as environmental measures and they have been incorporated in the approval given by the GCZMA. As has been rightly argued by the learned Advocate General, the first three measures required to be prioritized by the Executing Agency, are to be taken in future and the fourth one is to be taken care during the construction phase. The question whether the above conditions would be fulfilled or not is a question of fact. The respondent no.2 in the affidavit-in-reply has stated that it has given an undertaking to GCZMA to abide by all the conditions imposed by it. Since what is granted by GCZMA is CRZ clearance, it cannot be said that the procedure prescribed under paragraph 4.2 of the CRZ Notification, 2011 13 is not followed. 16. Section 2(2) of the Panchayat Act defines “building” to include a house, outhouse, stable, privy, urinals, shed, hut, wall and any other structure whether of masonry, bricks, wood, metal or any other material, but does not include a temporary structure erected on ceremonial or festive occasion or a tent. Section 66 of the Panchayat Act regulates the erection of buildings. According to Shri Costa Frias bridge is included in the definition of building and permission from Village Panchayat would be required. In this regard, looking to the structures that are included in the definition of building, the expression “any other structure” should be read ejusdem generis to the said structures included earlier and therefore, prima facie a bridge or a road would not come within the said definition. Section 66 of the Panchayat Act prohibits “a person”. The question is whether “State” can be considered as a person. In the case of “Krishnan”(supra), 14 relied upon by the learned Assistant Solicitor General, it has been held that expression “any person” in section 397(3) of Criminal Procedure Code, 1973 includes juridical persons but does not include State. However, the ratio of the judgment in the case of Krishnan (supra) is not applicable in the present case since in Krishnan's case the interpretation of the word “ person “ came up for consideration to find out if the bar for filing second revision was applicable to State. Be that as it may, Section 224-A of the Panchayat Act provides that notwithstanding anything contrary contained in the Act, the Government may, in the public interest, exercise any of the functions enumerated in Schedules I and II appended to the Act for the purpose of carrying out any developmental work in the jurisdiction of the Panchayat without consultation with the Panchayat or Zilla Panchayat. Item No. IX of the Schedule-I to the Panchayat Act pertains to roads, buildings, culverts, bridges, ferries,waterways and other means of communication. Again Item No.XII of the 15 Schedule II includes roads, buildings, bridges, ferries, waterways and other means of communication. From the above, it is clear that no Panchayat permission would be required for the construction of bridge. 17. As far as the approval of GSPCB is concerned, vide letter dated 7/9/2011, the Assistant Environmental Engineer of GSPCB has informed the P.W.D that the activity of construction of bridge is not coming within the purview of the Water (Prevention and Control of Pollution Act), 1974 and the Air (Prevention and Control of Pollution Act), 1981 and therefore, GSPCB cannot issue consent to operate under the said statutes. With regard to the above, learned Advocate Costa Frias contended that the approval of the GSPCB would be required as the construction involves dumping of debris. If that be so, then the GSPCB would have stated so in the said letter dated 7/9/2011. 16 18. Learned Advocate Shri Costs Frias argued that Section 2(10) of the Goa Town and Country Planning Act 1974(GT &CP Act) which defines “development” would include the construction of bridge and therefore permission from the T&CP department would be required. In this regard, as has been rightly argued by the learned Advocate General, the Goa Town and Country Planning Act applies only to the planning area and therefore, not to the present project. 19. Learned Advocate Shri Costa Frias also argued that there is cutting of hill and filling of low lying land for the purpose of this project and Section 17-A of the GT & CP Act puts prohibition on such cutting and filling. With regard to the above, learned Advocate General argued that the object of this provision is to save hill cutting for development activity and not to stop Government work done in public interest. He clarified that for the purpose of laying foundation for 17 construction of the bridge, the Contractor has to dig pits and therefore, cutting of land and filling of low lying land would not come within the said prohibition. In any case, there is a circular dated 25/8/2011 issued by the Town and Country Planning Department which clarifies that Section 17-A of the GT&CP Act would not apply for such public work and legal construction. The Town Planner has otherwise given N.O.C for acquisition of land for construction of the said bridge and for construction of approach roads. 20. As has been contended by learned Assistant Solicitor General, under section 14 of the National Green Tribunal Act, 2010, regarding the questions and rights relating to environment, there is remedy to approach the Tribunal established under that Act. 21. Admittedly, the petitioner no. 1 filed the present application, on 19/10/2011, by making averments from his 18 own knowledge about the absence of permissions/approvals from concerned authorities and without incorporating the subsequent events in the writ petition. The petitioners did not bother to approach the said concerned authorities and to inquire from them as to whether the required permissions are obtained. It was during the course of arguments that learned Advocate Shri Nigel Costa Frias stated that the petitioner no. 1 has written a letter dated 11/11/2011 to the GCZMA and GSEAC, bringing to their notice that the construction of the bridge is going on without compliance of the conditions laid by the GCZMA and without obtaining required approvals and in violation of law and directions, etc. and that no reply has been received by the petitioner. The petitioners ought to have done the said exercise before filing the present application. This is like putting the cart before the horse. The respondent no. 2 filed the affidavit on 14/11/2011 alleging inter-alia that the application is not maintainable for want of pleadings in the main petition. Only thereafter, the petitioners filed the 19 application for amendment which was allowed and accordingly the subsequent events were brought on record. In the affidavit, the respondent no. 2 has explained the facts from the beginning and has stated that the department has submitted the undertaking to GCZMA to abide by all the conditions. The officer of GCZMA would be monitoring the work and if, at any stage, it is found that the conditions laid down are not adhered to, the GCZMA would revoke the permission. 22. In view of the discussion supra, we are of the opinion that the petitioners have failed to make out a case for the interim relief that is claimed. The project is construction of bridge needed in public interest and the same has already been delayed thereby resulting in cost escalation. Further delay will cause further escalation. Balance of convenience does not tilt in favour of the petitioners. 20 23. In the result the application is rejected, with no order as to costs. A. P. LAVANDE, J. U. V. BAKRE, J. Ap/-