1 IN THE HIGH COURT OF BOMBAY AT GOA P.I.L. WRIT PETITION NO. 21/2007 Mr. Atmaram Gopal Parab, H.No.2, Kothambi, Bicholim, Post Pale, Goa. ....... Petitioner. V/s. 1. M/s. Alcon Cement Company, Jetty, Kothambi (Tixim), Goa. 2. State of Goa. 3. Goa Coastal Zone Management Authority, 4. Captain of Ports, Government of Goa, Panaji, Goa. 5. M/s. Bandedkar Brothers Private Ltd. Company, incorporated under the Companies Act, represented by its Managing Director, Mr. Suvarn R. Bandekar, s/o. Late Rajaram Bandekar, and having its registered office at Suvarna Bandekar Building, Swatantra Path, Vasco-da-Gama, Goa. 6. M/s. Vasantram Mehta Pvt Ltd. Company, incorporated under the Companies Act, represented by its Managing Director, 2 Mr. Suvarn R. Bandekar, s/o. Late Rajaram Bandekar, and having its registered office at Suvarna Bandekar Building, Swatantra Path, Vasco-da-Gama, Goa. 7. M/s. D.B. Bandodkar & Sons Pvt. Ltd., incorporated under the Companies Act, represented by its Managing Director and having registered Office at 2nd Floor, Atmaram Commercial Complex, Atmaram Borkar Road, Panaji, Goa. 8. Goa Coastal Zone Management Authority, through its Member Secretary, Department of Science and Technology, Opposite Saligao Seminary, P.O. Saligao, Bardez, Goa. 9. Union of India, through Ministry of Environment & Forests, New Delhi. ........ Respondents. Mr. R. Subramanian, Senior Advocate with Mr. A. D. Bhobe, Advocate for the petitioner. Mr. J.J. Bhat, and Mr. S. D. Lotlikar, Senior Advocates with Mr. Rui Rodrigues and Mr. P. S. Lotlikar, Advocates for respondent No.1. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.2, 3, 4 and 8. 3 Mr. S. G. Dessai, Senior Advocate with Mr. P. Talaulikar, Advocate for respondents no. 5 to 7. Mr. C. A. Fereira, Asst. Solicitor General for respondent No.9. Mr. M. S. Joshi, Advocate for Village Panchayat of Cotombi. CORAM : P.B. MAJMUDAR & U.D. SALVI, J.J. Date of reserving Judgment : 3rd March, 2009. Date of Pronouncing Judgment : 24th March, 2009 J U D G M E N T : (Per MAJMUDAR, J.) It is agreed by both sides that the matter may be heard finally at the stage of admission. The matter is, accordingly, heard at great length and is being disposed off by this Judgment. Accordingly, formal order of Rule is passed. Respective Counsel for the respondents waive service. 2. The construction of a jetty at Kothambi (Taixem), in Bicholim Taluka, in violation of CRZ-III Notification is the subject- matter of this public interest litigation. The petitioner, Atmaram Gopal 4 Parab, addressed a letter to this Court on 23.11.2007, alleging that the Government of Goa and its various Departments have given NOCs to M/s. Alcon Cement Company Private Limited for construction of the jetty in question, without proper inquiry as to congestion in barge traffic, environmental damages and pollution aspects, amongst other points. It is alleged in the said letter that the jetty is being constructed by flouting all the rules, regulations and directions of the Captain of Ports, CRZ Authorities and Government of Goa etc. Along with the letter, some photographs were also annexed. By the said letter, the petitioner requested this Court to intervene in the matter. On the basis of the said letter, the Incharge Registrar prepared a note and ultimately, the letter was ordered to be treated as Public Interest Litigation and the author of the letter Shri Atmaram Gopal Parab has been shown as the petitioner. By order dated 10.12.2007, notices were issued to the concerned respondents. By order dated 21.1.2008, Advocate D. Pangam was requested to appears as an amicus curiae. Thereafter, Mr. A. D. Bhobe put in his appearance on behalf of the petitioner. 3. The question which requires consideration in this PIL writ 5 petition is as to whether the construction of jetty in question is in violation of CRZ Notification ? According to the petitioner, the said jetty has been constructed by respondent No.1 without valid permissions and that the construction of the jetty is not permissible in CRZ-III as per the Regulations in connection with CRZ-III. According to the petitioner, unless environmental clearance is obtained from the Ministry of Environment & Forests (“MOEF” for short), Government of India, New Delhi for construction of a jetty, respondent No.1 cannot be permitted to operate the jetty, in question. It is the case of the petitioner that the construction of the jetty is prohibited under the said Regulations. In order to substantiate his case, the petitioner has relied upon the Notification dated 19th February, 1991, which is issued under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986 and Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986. It is submitted on behalf of the petitioner that if the jetty is required for the purpose of water front and foreshore facilities, then under Regulation 3(2), environmental clearance from the MOEF will have to be obtained. It is also the grievance of the petitioner that an area upto 200 metres from the High Tide Line (HTL) has to be earmarked as No Development Zone and construction 6 of a jetty is as such prohibited in CRZ-III. 4. On 26th March, 2008, a Division Bench of this Court passed the following Order. “ The learned Advocate General has placed on record the Sounding Plan which has been prepared by the Office of the Captain of Ports in relation to the relevant area near the proposed jetty. The same apparently discloses that the navigability in the river is to the extent of width of more than 100 meters near the proposed jetty. The learned Advocate for the petitioner states that the petitioner wants to verify the contents of the Sounding Plan and particularly about the available navigability near the proposed jetty. 2. It is apparent that the latter petition was filed complaining about the non-compliance of the provisions of law while granting the permission for construction of the proposed jetty. Even after issuance of the notices and filing of the affidavits by the respondents, the report which was prepared based on which the matter was sought to be argued, nowhere 7 discloses the facts revealed from the Sounding Plan. On the contrary, the report dated 17/12/2007, supposed to have been prepared by the Surveyor, did not disclose the actual navigability available in the river in question and, particularly, near the site of the proposed jetty. It merely stated that the average width of the navigational lane is approximately 1/3rd the width of the river and since the width of the river is about 100 meters, the navigability would be 35 meters. It was known to the Surveyor that the proposed jetty will have length of about 17 meters. Apparently, the report was prepared without taking into consideration the factual aspect of the site near the proposed jetty. Apart from the said point relating to the navigability in the river, and the respondents having filed affidavits along with the Government, disclose necessary licensees stated to have been issued, the petitioner has not been able to point out any provision of law which could be said to have violated, either by granting permission or while obtaining the permission for construction of the proposed jetty. 8 3. At the request of learned Counsel for the petitioner, however, we are inclined to grant last opportunity to the petitioner to verify the contents of the Sounding Plan. It is however made clear that in case the petitioner fails to satisfy the Court about any violation of the provisions of law in relation to the construction of the proposed jetty, the petitioner will have to pay exemplary costs. 4. S.O. 7/04/2008.” Since respondent No.1 pointed out to the Court that in the same vicinity some other jetties are also operating, this Court directed the additional parties to be joined as respondents and accordingly, respondents No.5 and 6 have been joined subsequently in the present proceedings. This Court, at that stage, also granted interim relief, directing respondent No.1 to maintain status quo as regards the construction of the jetty in question and further observed that if it is already constructed, the same shall not be put in use. 5. On 23.7.2008, this Court permitted the petitioner to implead M/s. D.B. Bandodkar and Sons Pvt. Ltd. as an additional 9 respondent. The said respondent was ordered to be joined in view of the submission made on behalf of respondent No.1 that three more jetties which have been constructed within the vicinity of the jetty in question are also put in operation. 6. On 9.9.2008, this Court granted leave to amend and implead the Union of India, New Delhi as Party respondent. On 24.10.2008, a grievance was made by respondent No.1 that its application seeking permission for construction of the jetty is pending consideration with the MOEF and because of pendency of this petition, the Expert Committee for the Infrastructure Development and Miscellaneous Projects is not considering the said application and, therefore, a clarification was sought to the effect that pendency of this petition may not come in the way of the Expert Committee in considering the application moved by respondent No.1. On behalf of the petitioner, a request was made that if respondent No.1's application was to be considered by the Expert Committee, the petitioner would be heard in the matter. In that context, this Court, on the said date, passed the following order : “It is clarified that it shall be open to the Expert 10 Committee for Infrastructure Development and Miscellaneous Projects to consider the application moved by the respondent no.1. We grant liberty to the Petitioner to approach the said Expert Committee with a request to afford an opportunity of hearing to the Petitioner while taking the decision on the application of the Respondent No.1.” It is submitted that since respondent No.1 has now obtained permission from the MOEF, the status quo granted by this Court earlier may be vacated. On 20.2.2009, this Court passed an order that the matter be finally heard at the admission stage on 25.2.2009 and, accordingly, heard at great length. 7. Mr. Bhat, learned Senior Counsel appearing for respondent No.1 submitted that respondent No.1 has now obtained permission from the MOEF and that the jetty is permissible in CRZ III and to substantiate his say, he has relied upon the Notification in question. Mr. Bhat submitted that it is not a bonafide petition and the same is required to be dismissed. 11 8. The learned Advocate General, has submitted that construction, in question cannot be treated as construction of jetty, as it is offshore facilities and, therefore, it is not necessary to get permission from the MOEF. According to the learned Advocate General, the only permission which is required to be obtained by the concerned respondents is the permission from the Goa Coastal Zone Management Authority (for short “GCZMA”) as it is a construction for the purpose of offshore facilities. The learned Advocate General submitted that so far as construction of jetty is concerned, it is only in harbour and even if it is constructed else where other than the harbour, it cannot be considered as a jetty and and therefore, permissions from local authorities only are required to be obtained. On the other issues, the learned Advocate General has supported the argument of learned Counsel Mr. Bhat and it is submitted that construction of a jetty is a permissible activity even in CRZ-III. 9. We have heard the learned Counsel at length. We have also gone through the voluminous documents forming part of the petition. 12 10. The principal question which is required to be considered in the present PIL Writ Petition is as to whether the construction of jetty carried out by respondent No.1 can be said to be in violation of CRZ-III norms. The question which requires consideration is as to whether before constructing the jetty in question, permission from the MOEF is required to be taken ? During the course of hearing, it is pointed out by respondent No.1 against whom the allegation was initially made by the petitioner that it has not obtained the requisite permission from the MOEF and that the other respondents who are also operating jetties in the nearby vicinity have also not obtained such permission and that they have obtained permission only from the GCZMA. It is also required to be considered in view of the submission of the learned Advocate General as to whether the construction of the jetty can be said to be a jetty or other activity for offshore facilities. 11. It is required to be noted that in the present petition the Court is concerned with the construction that is carried out after 19.2.1991 and the construction prior to that date is not the subject- matter of the petition. As pointed out earlier, pursuant to the letter 13 written by the petitioner, the suo motu proceedings have been initiated by this Court and during the pendency of this petition, respondent No.1 approached the MOEF for granting permission to respondent No.1 and on 4.11.2008, the Additional Director, Ministry of Environment and Forests, Government of India, informed respondent No.1 that it should produce orders of the Court directing it to seek environmental clearance. Subsequently, the Ministry of Environment and Forests considered the proposal submitted by respondent No.1 in connection with the project of respondent no.1 pertaining to construction of twin jetty for barge loading and unloading facility and dredging the river Cotombi in survey Nos. 27/15, 27/14, 27/12 and 27/9 at Tishem of Village Cotombi, Bicholim Taluka, Goa and it was communicated vide order dated 2.2.2009. It is submitted that the Expert Committee, in its meeting held on 19th and 20th December, 2008, recommended the same and, ultimately, after considering the report of the Expert Committee, clearance under Coastal Regulation Zone Notification, 1991 is accorded to the said project, subject to various conditions prescribed in the said order. As per the conditions prescribed in the order, no dredging or dumping shall be carried out and no construction work other than those permitted in Coastal Regulation Zone Notification shall 14 be carried out in the Coastal Regulation Zone area. There are general conditions which are also incorporated in the said Order. It is provided in the said order that any appeal against the environmental clearance, shall lie with the National Environment Appellate Authority, if preferred within a period of 30 days as prescribed under Section 11 of the National Environment Appellate Act, 1997. So far as the aforesaid order is concerned, the same has been passed by the MOEF during the pendency of this petition. The said order is placed on record at page 402 of the compilation. Relying on the said order of the MOEF, Mr. Bhat, learned Counsel appearing for respondent No.1 vehemently submitted that nothing survives in this so called PIL Writ Petition, inasmuch as respondent No.1 has already taken permission from the MOEF. He, therefore, submitted that the status quo order granted earlier is required to be vacated. Mr. Bhat submitted that there are so many other jetties operating in the area, without getting permissions. As against that, respondent No.1 has already got permission as required by law and in view of that, respondent No.1 cannot be prevented from operating the jetty, especially when other jetties are being operated in the vicinity and that too without seeking permission from the MOEF. 15 12. On behalf of the petitioner, learned Senior Counsel Mr. Subramanian has submitted that even though this Court had permitted the petitioner to apply to the concerned authority, the Expert Committee did not afford any hearing to the petitioner at the time of deciding the application of respondent No.1. It is contended by Mr. Subramanian that even though the petitioner made an application on 1.12.2008 before the MOEF, New Delhi, the petitioner was never afforded an opportunity of being heard in the matter. Mr. Subramanian further submitted that the petitioner is deprived of an opportunity of placing the correct facts before the Expert Committee. It is also submitted by Mr. Subramanian that the said clearance is not in accordance with the CRZ Notification of 1991 and, therefore, the same is illegal. It is submitted that respondent No.1 has not obtained any permission from the Ministry of Surface Transport and, accordingly, it is not in accordance with the CRZ Notification. 13. On behalf of the petitioner, an affidavit has also been filed which is at page 406 of the compilation. In para (7) of the said affidavit, it is stated that he intends to prefer an appeal before the National Environment Appellate Authority under Section 11 of the National 16 Environment Appellate Act, 1997. According to the petitioner, the decision taken by the MOEF dated 2.2.2009 is not in consonance with the CRZ Notification. So far as the argument of Mr. Subramanian that the Order dated 2.2.209 of the MOEF is bad in law, as the petitioner was not given opportunity of hearing is concerned, it is required to be noted that this Court by its order dated 26th March, 2008 has merely permitted the petitioner to apply to the Authority. There is no specific direction as such given to the Authority that the petitioner should be given hearing. 14. Mr. Fereira, learned Asst. Solicitor General also submitted that there is no procedure prescribed for affording opportunity to the objector, as ultimately, the decision is required to be taken on the basis of material produced on record. It is submitted by Mr. Fereira that at the time of processing the application, if the Authority is required to hear all objectors, then it may result into deciding the application as if it is a fullfledged trial and that the Authority may not be in a position to dispose off the applications within a reasonable time. In our view, when the Expert Committee is required to take decisions on the basis of report of the Expert Committee and other documents on record, such 17 proceedings are not required to be converted into fullfledged suit wherein objections of anyone is required to be adjudicated, as it may delay and linger the proceedings. It is true that this Court had permitted the petitioner to apply before the Authority. However, it is clear from the order that this Court had not given any directions that the present petitioner should be heard by the Authority. Accordingly, it cannot be said that the Expert Committee or the MOEF has, in any way, violated the orders passed by this Court, as there is no any directions as such from this Court that the petitioner should be given hearing by the Authority. Considering this aspect, it is not possible to accept the submission of Mr. Subramanian that the order dated 2.2.09 is bad in law as no opportunity is given to the petitioner to represent his case before the Authority. If the petitioner has any grievance against the ultimate decision of the Authority, it is for the petitioner to challenge the said order by way of an appeal if any such right is available in him, in law. 15. Before dealing with the aspect as to whether the construction in question can be termed as “jetty” for which permission from the MOEF is required or can it be said to be a construction for 18 loading and unloading facility or for other offshore facilities, it is required to be noted that respondent No.1/applicant has also applied for permission considering it to be a jetty. Apart from that, in our view, no restrictive meaning can be given so far as construction of the jetty is concerned. Collins Cobuild Colline Birmingham University International Language Database English Language Dictionary defines the word “jetty” as: “A mole, pier, breakwater, etc., constructed at a harbour entrance or running out into the sea, a lake, a river, etc., esp. for protective or defensive purposes. Also, an outwork protecting a pier. A projecting part of a wharf; a landing pier. A protecting part of a building; esp. an overhanging upper storey. A bulwark, a bastion.” . In fact the concerned applicant has considered it as a construction in the nature of a jetty and even the application made in this behalf refers to it as a jetty. It is, therefore, not possible to accept the submission of the learned Advocate General that the construction, in question, cannot be construed as jetty. Learned Counsel Mr. Subramanian, in his argument also submitted that even the permission was also asked by respondent No.1 considering it to be a jetty and, therefore, it cannot be said that the construction in question is nothing but offshore facilities for loading and unloading of barges. We are not in a position to accept the 19 submission of the learned Advocate General that the construction, in question, are the facilities for loading and unloading of barges and, therefore, the only permission that is required to be taken is from the local authorities and no permission from the MOEF is required to be obtained. In our view, for the construction in question which can be said to be a jetty, permission of the MOEF is required to be obtained as per law. 16. The next point which is required to be considered is as to whether the construction of the jetty carried out by respondent No.1 can be said to be in violation CRZ Notification 1991 and whether the decision given by the MOEF dated 2.2.2009 stands vitiated ? As pointed out earlier, so far as respondents No.5 to 7 are concerned, their jetties are operational and functioning, but they have taken permissions from the local authorities only. No permission is obtained from the MOEF. 17. At this stage, a reference is required to be made to CRZ Notification, 1991, issued by the Ministry of Environment and Forests, issued under Section 3(1) and Section 3(2)(v) of the Environment 20 (Protection) Act, 1986 and Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986. As per the said Notification, the Central Government has declared the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 metres from the High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone; and imposed certain restrictions on the setting up and expansion of industries, operations or processes, etc., in the said Coastal Regulation Zone. 18. As per Regulation 2 of the said Notification, certain activities are declared as prohibited activities, within the Coastal Regulation Zone. Regulation 2(viii) reads as under : “2. Prohibited Activities : (viii)( Deleted) [ Land reclamation, bunding or disturbing the natural course of sea water except those required for construction or modernization or expansion of ports. Harbours, jetties, wharves, quays, slipways, bridges and sea-links and for other facilities that are essential for activities permissible under the notification or for control of coastal erosion and maintenance or ( cleaning of water ways ), channels and ports or for prevention of sand bars or for tidal regulators, storm water drains and structures for prevention of salinity ingress and sweet water recharge; 21 Provided that reclamation for commercial purposes such as shopping and housing complexes, Hotels and entertainment activities shall not be permissible]” The activity as mentioned above is, therefore, a permissible activity under the said Notification. 19. Regulation 3 provides for Regulation of Permissible Activities, which reads as under : “3. Regulation of permissible Activities : All other activities, except those prohibited in para 2 above, will be regulated as under : 1) Clearance shall be given for any activity within the Coastal Regulation Zone only if it requires waterfront and foreshore facilities. [ The assessment shall be completed within a period of ninety days from receipt of requisite documents and data from the project authorities and the decision shall be conveyed within 30 days thereafter]. 2) The following activities will require environmental clearance from the Ministry of Environment and Forests, Government of India, namely: