1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 459/2006 AND Misc. Civil Application No.641/07 Menino X. Gomes, major, retired, r/o Tonca, House no.464, Near Tonca Bridge, Post Marcela, Goa. ......... Petitioner. v e r s u s 1. The State of Goa, through its Chief Secretary, Secretariat, Porvorim, Goa. 2. Goa Coastal Zone Management Authority, with office at Saligao, Bardez-Goa, through its Member Secretary 3. Village Panchayat Se-Old Goa, Through its Sarpanch, Old Goa. 4. The Director of Panchayats, Through its Director, with office at Junta House, Panaji, Goa. 5. The Collector of North Goa District, with office at Collectorate building, Panaji, Goa. 6. The Executive Engineer, Electricity Division I O&M, Panaji, Goa. 7. The Deputy Town Planner, 2 Town and Country Planning Department, Panaji, Goa. 8. The Deputy Director, Marine Products Exports Development Authority. 9. Shri Estevao D'Souza, major, businessman, Managing Director of Atlas Fisheries Pvt. Ltd., with office at Bainguinim, Old Goa. 10. Smt. Estela D'souza, major, r/o Panaji, Goa. 11. M/s Atlas Fisheries Pvt. Ltd., a company registered under the Companies Regn. Act 1956, Office at Bainguinim, Old Goa. 12. Dauji Ice Plant Proprietorship concern, of the respondent no.9 D-38/1, Survey no.42/3-a 13. Goa State Pollution Control Board, Dempo towers, first floor, E.D.C. Plaza, Patto, Panaji. 14. Directorate of Health Services, Medical officer, Primary Health Centre, Corlim. 15. Assistant Engineer, S.D.1, W.D.V, P.W.D. Panaji, Goa. ............ Respondents. Ms. A. A. Agni, Advocate for the petitioner. 3 Mr. S. S. Kantak, Advocate General with Ms. R. Chodankar, Addl. Govt. Advocate for respondents No.1, 2, 4, 5, 6, 7, 14 and 15. Mr. A. F. Diniz, Advocate for respondent No.3. Mr. R. Dada, Senior Advocate with Mr. M. S. Sonak and Mr. A. D. Bhobe, Advocate for respondents No.9 to 12. Mr. J. Godinho, Advocate for respondents No.13. CORAM : S.C. DHARMADHIKARI & R.C. CHAVAN, JJ. Date of reserving the Judgment : 22/09/3008 Date of Pronouncing Judgment : Date : 26th September, 2008. J U D G M E N T : (Per DHARMADHIKARI, J.) 1. By this petition under Article 226 of the Constitution of India, the petitioner prays for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing respondents No.2, 3, 5 and 7 to take steps for demolition of the buildings which have been constructed in violation of the Coastal Regulation Zone Notification dated 19.2.1991 and the approved Coastal Regulation Zone Management Plan. Further, he prays for a writ or direction, directing respondents No. 3 and 7 to cancel the sanctions/permissions dated 13.1.2006, 25.8.2006 and 17.1.05, granted in favour of respondents No.9 and 10, 4 permitting construction in the property more particularly mentioned in prayer clauses (d), (dd), (ddd), and (dddd) ) and finally they pray that the final order 17.10.2007, passed by respondents No.2 be also quashed and set aside. 2. Respondents No.1, 2, 4, 5, 6, 7 and 8 are the State Authorities, so also respondents No.14 and 15. Respondent No.3-Village Panchayat of Se- Old Goa, through its Sarpanch, Old Goa, respondents No. 9, 10 and 11, so also respondent No.12 are private parties; whereas respondent No.13 is Goa State Pollution Control Board. It is the case the petitioner that he is a public spirited individual and concerned about blatant and gross violations of Coastal Regulation Zone Notification (“CRZ Notification” for short) in the State of Goa. He was earlier working as a Marine Inspector in the Office of Captain of Ports, Panaji, Goa. After the retirement, he is engaging himself in matters of public importance and has taken up social work. He had filed a PIL Writ Petition No.1/2005, bringing to the notice of this Court unauthorised and illegal construction in the agricultural land bearing Survey No. 40/2 of Village Ella, Tiswadi Taluka. He has relied upon the Order passed on 26.9.2005 in that PIL writ petition. 3. It is his case that the Authorities have been turning blind eyes to 5 the blatant and illegal violation of the of laws protecting environment and ecology. It is his case that he has brought to their notice violations while granting permissions to respondent Nos. 9 and 10 in respect of one of the buildings presently used for fish processing plant by respondent No.11, so also violations of the terms and conditions of the sanctioned plans in favour of respondents No.9 and 10 in respect of property bearing Survey No.42/3-A where respondents No.9 and 10 are using the building as ice manufacturing plant and fish processing unit. 4. In para 5 of the petition, the petitioner invited attention of the Court to the CRZ Notification and has contended that the distance from the high tide line applies to both sides in case of rivers, creeks and backwaters and the distance may be modified for the reasons to be recorded. He relies upon the CRZ Notification dated 19.2.1991 which has been amended subsequently on 31.1.1997 and 29.12.1998. He submits that the distance from the high tide line in cases of rivers, creeks and backwaters shall not be less than 100 metres or the width of the creeks, rivers, and backwaters whichever is less. In other words, the minimum distance to be observed from the high tide line is 100 metres in case of rivers, creeks and backwaters. He further elaborates the CRZ Notification and contends that all areas along Bank of River Mandovi having mangrove are classified as CRZ-I and rest of the 6 areas without mangrove and ecologically sensitive are classified as CRZ-III. He has pointed out that respondent No.2 Goa Coastal Zone Management Authority, constituted by the State Government has to monitor the coastal stretch of the State of Goa and has to keep constant vigil to ensure that the provisions of Coastal Zone Management Plan are strictly complied with and there are no violations or breaches thereof. However, it only maintains the record in respect of the complaints with regard to illegal constructions, but does not take any initiative to remove the illegal constructions. He has pointed out that the construction of two huge buildings has been put up by respondents No. 10 and 11, of which respondent No.9 is the Managing Director. 5. In para 10 of the petition, the distances which are at site have been mentioned by the petitioner and he terms the construction as illegal for the reasons set out in the said para. He says that he owns a plot at Daujim – Ella bearing Survey no.40/5, which is at a distance of 50-60 metres from the plot of respondents No.9 and 10 and during one visit thereto, he noted construction activity having commenced by respondents No.9 and 10. That is how he applied for and secured copies of Form I & XIV of Survey No.42/3- A on 16.5.06. In the survey records, the land has been described as cultivable area to the extent of 19028 sq. metres and an area of about 565 sq. metres has 7 been shown as uncultivable land. Thus in all admeasuring 19,593 sq. metres. 6. He has pointed out in para 12 that on the basis of the survey plan, there is no construction activity in any of the surrounding lands, survey Nos. 42, 43, 45, and 41. Survey No.42/3-A is a coconut plantation, consisting of several hundreds of coconut trees and the building has been constructed after cutting the coconut trees, without obtaining any permission under Section 32 of the Goa Land Revenue Code. Violations and breaches have been highlighted in paras 12 and 13 and thereafter, he refers to the permissions granted in the subsequent paras of the petition. He has highlighted the attempts made to obtain the relevant documents and thereafter, his grievance is about the complaints made to the Authorities being not looked into and attended by them. He has relied upon several documents to show that necessary relevant permissions have not been obtained and the construction activity should be termed as violating of law, unauthorized and illegal. 7. It appears that the petition was placed before this Court on 6.11.2006 and leave to amend was granted to the petitioner to place on record additional documents. Thereafter, notice was issued to respondents No.3, 8, 9 and 10. Subsequently, the matter was placed before this Court on 8.1.07. A 8 Misc. Civil Application No.784/06 was moved. That application was allowed. Thereafter, the amendment permitted under the orders passed on that application was carried out and notice was issued to respondents No.12 and 13. 8. The matter had appeared before this Court after notices were issued on 21.3.2007 and after hearing it for sometime, the Court noted that respondent No.11 fairly accepted the fact that even though it has applied for Occupancy Certificate to the Village Panchayat Se-Old Goa, they have not received the same. Thus, the building was occupied without valid permission. A statement was made by respondent No.11 that it will stop all operations in the building in question until further orders. The learned Advocate General made a statement that the request of the Village Panchayat to verify the construction and submit a report for the propose of issuing an Occupancy Certificate, would be complied with. Subsequently, the matter appeared before this Court on 30.4.2007 and a detailed order was passed, referring the matter to the Goa Coastal Zone Management Authority (GCZMA), in view of the contentions of the petitioner and respondents No.9 to 11. The GCZMA was directed to decide the controversy by precisely indicating on a plan the manner of measurement of the distance of a structure and particularly the impugned structures from the particular banks of the 9 river Mandovi. This was to be decided by the Authority after hearing the petitioner and respondents No.9 to 11. The Authority should take into account the Coastal Zone Management Plan for River Mandovi. The Court noted that as regard the closure of the Fish Processing Plant and the existing Fish Peeling Unit, the GCZMA declared that the units are not in violation of CRZ Notification. But even that point be reconsidered by hearing both sides. Therefore, this Court rejected the prayer for stoppage of the units of respondents No.9 and 10 and permitted respondent No.11 to restart its unit in view of the undertaking given by them. 9. The matter was, thereafter, adjourned from time to time as the inquiry could not be concluded by the GCZMA. Finally the inquiry was concluded and this court perused the report of 17.10.2007 and by an elaborate order passed on 11.3.2008, held that the report is not at all satisfactory as it does not comply with the directions contained in the order dated 30.4.07. There is no plan annexed to the report and the report, prima facie, appears to be contrary to the situation at site. This Court specifically observed that the finding that “poim” is not a part of the river nor can it be called `tidal stream, creek or backwater’ does not take into consideration the process and modalities of the functioning of the sluice gate and the after movements through it, as well as the effect of the tides on such water movements. The 10 Court noted the arguments that upto the sluice gate there is a tidal effect, whereas beyond the sluice gate and in the “poim” there is no tidal effect on the water in the said “poim”. However, the Court was of the view that the collection of water in a “poim” is always on account of tidal effect and control thereof by the sluice gate. Therefore, the Court considered all aspects and held that the finding of GCZMA that the “poim” is not part of the river because it is not subject to tidal effect, is contrary to the working of the sluice gate and the movement of the water in the “poim” through the sluice gate. Therefore, the Authority was directed to give hearing to the petitioner and allow him to putforth his views and conduct necessary investigation. The Authority was directed to take necessary measurements of the distance between the offending structures and the sluice gate and disclose the same in the plan along with other details. Final orders were not passed by the Authority. Therefore, the matter was adjourned. On 1.7.08, the Court noted that a plan was tendered which is at page 503, but that does not demarcate No Development Zone (NDZ) along the natural contours of the rivers upto the sluice gate and, therefore, the GCZMA was directed to prepare a map which shows measurement of 100 meters all along the natural contours of the river including the sluice gate in order to assess the distance and structure of the units in question from the bank of the river. It is, thereafter, that affidavits were filed and necessary documents placed on record. 11 10. The matter, thus, reached hearing and we have heard it finally at this stage itself. Hence, Rule. 11. The respondents waive notice. By consent, heard forthwith. 12. Mrs. Agni, learned Counsel appearing for the petitioner invited our attention to the Notification, in question, and the note at page 49 of the record paper book. She submits that the lease is of 8000 sq. metres, which is a private land. There are two structures. Elaborating her contentions with regard to applicability of CRZ Notification, further, she states that the Coastal Management Zone Plan is there, but Maps are not there. She invited our attention to page 82(B) and submits that the State of Goa was directed to delineate on the Map Low Tide Line, High Tide Line, 200 metres, 500 metres all along and other lines relevant in respect of creeks, backwaters and rivers, affected by tidal action, so that the distances can be measured whenever required. She submits that in letter dated 27.9.96, addressed to the Chief Secretary, Government of Goa the Government of India, Ministry of Environment and Forest, New Delhi, it is mentioned that the areas at mouth of the river having reserved/protected forests, sand dunes of Caranzalem- Miramar and Nerul and all areas along the bank of river Mandovi having 12 mangrove areas including Nerul, Verem, Ourem, Ribandar, Betim to Britona, outskirts of Mapusa, San Pedro, Banastari, Volvoi and Savoi-Verem are classified as CRZ-I and rest of the areas, without mangroves and ecologically sensitive areas, are classified as CRZ-III. The letter states that the plan submitted by the Goa Government on 26.6.1996 is not in conformity with the requirements and modified plan may be sent to the Ministry, is the direction. Mrs. Agni invites our attention to the photographs at pages 158-161 and the affidavit of respondent No.2 and urges that the report of the Dy. Collector was never placed before the Court. She submits that the affidavit does not deal with the important averments about distances. She relies upon further affidavit of respondent No.2 and invites our attention to paras 5 and 6. It is her case that survey No. 42/3-A is the disputed property and it is within the distance stipulated. She invites our attention to pages 438 and 462 which is report and relevant portions thereof at pages 463, 464, 485, 490 and 491. She submits that a perusal of the affidavits, and the reports placed on record from time to time, would reveal that the Authorities are adopting conflicting and contrary postures. The stand of GCZMA is fluctuating. It was directed specifically to take the measurements when tides were noticed, but its finding that the sluice gate mark has no tidal effect, is not correct and supported by record. She submits that the Experts’ opinion should be taken and that is how the order passed by this Court proceeded. However, she submits that 13 measurements have been taken by methods which are devised to suit the structures in question of respondents No.9 to 11. She submits that there was no apparent reason for departing from tangent method to offset method. She submits that in all cases tangent method was adopted. However, shift to offset method is with effect from 8.5.08 and that is clearly indicative of the fact that the Authority is desirous of protecting and shielding the structures in question. Their orders and reports suffer from arbitrariness and discrepancies. They have not obeyed the orders of this Court from time to time. The Maps have not been prepared from 1996. There is no delineation done. She submits that these structures are unauthorized. She relies upon the plan at page 503. For all these reasons, she submits that the petition be allowed and the impugned action be quashed and set aside, so also all licences and permission. 13. Learned Advocate General appearing for the State and the GCZMA submits that the order passed on 11.3.08 has been fully complied with. He submits that the Reports and the Maps would indicate that the area with the “poim” is surveyed under No.44. He invites our attention to pages 490, 491 and 494 of the Paper Book and contends that the Inspection Report read as a whole indicates that the “poim” does not have the tidal effect. He submits that it is erroneous to contend that the state of Goa has not abided by the CRZ Notification. He submits that the Authority is fully aware of its 14 obligation in law. He invites our attention to the fact that the State of Goa has prepared Maps on the Scale indicated in the letter of the Environment Ministry. Therefore, the Map, after hydraulic imaging for the purposes of delineation of high tide lines, was required to be submitted to the Chief Hydrogrpaher, Government of India for demarcation. The State Governments which were not in a position to prepare the Maps, in this manner, should submit them to the Chief Hydrographer for the purpose of vetting. He invited our attention to the fact that the matters are dealt with by the Experts and the methods are adopted, depending upon the situations and requirements. He submits that there is uniform method which has been applied and there is no question of changing the basis or methods only to suit the purpose of respondents No.9 to 11. He submits that despite voluminous material being placed by the Authorities, the petitioner disputes the contents thereof only on the basis of some oral arguments. There is no counter report, much less by any Expert in the field. For all these reasons, the findings and conclusions in the reports of the Authorities should be respected and upheld by this Court and the petition be, therefore, dismissed. 14. Learned Advocate General has invited our attention to the fact that one structure is within the prohibited distance; whereas two others are beyond 100 metres. Therefore, in respect of those no action in law is 15 required, but as far as offending structure is concerned, action will have to be initiated. 15. Mr. Dada, learned Senior Counsel appearing for respondents No.9 to 11 submits that this is not a public interest litigation. The petitioner has a private interest in the matter. He has raised a dispute and in fact, his property is across the road. He filed a suit and sought an interim relief therein against respondents No.9 to 11. His injunction application is dismissed. He has also filed a Public Interest Litigation and that fact is stated by him in this petition, so also he relied upon an order of this Court therein. He submits that there are two structures, one is a fish processing unit and another is fishing peeling unit. He submits that as far as fish peeling unit is concerned, there is construction licence issued way back in 1979. That is issued prior to 19.2.1991. The original record is with the Panchayat. Merely because it states that it is not available now, does not mean that it has not granted any permission. He submits that as far as processing unit is concerned, record of the present petition would itself indicate that there is no illegality committed, so far as that structure is concerned. Mr. Dada has invited our attention to the letter dated 18.9.06 addressed to the Petitioner by the Village Panchayat of Se Old Goa wherein reference is made to Panchayat Resolution dated 16.1.06, Resolution No.5(1), NOC from the Town and 16 Country Planning Department for construction of ice factory in Survey No.42/3-A and he submits that despite all statements in the letter, the construction is said to be unauthorized and illegal. He submits that the Town Planning Department on 22.8.06 has granted NOC for construction of fish processing plant and ice plant. He submits that further the documents would show that the Village Panchayat has issued the construction licence on the basis of the NOC by the Town Planning Department. He further submits that all permissions, including an order of regularization has been passed with regard to the fish processing unit and the ice plant. In such circumstances, that cannot be an unauthorized and illegal activity. He has then referred to the request of the Panchayat on 29.9.06 to issue an occupancy certificate based upon the NOC. Mr. Dada has then invited our attention to the completion certificate. He, therefore, submits that now the petitioner cannot raise the issue of distance of 100 metres once again. All reports and plans demonstrate that the Experts have applied their mind to the relevant aspects and have concluded that there is no violation of the CRZ Notification. Therefore, the petition be dismissed. 16. We have perused the petition, and the affidavits filed in reply and rejoinders, so also the additional affidavits. After the order passed by this Court on 11.3.08, there is an additional affidavit which has been filed on 17 behalf of the Authority and we have to really see the contents thereof. The Order was passed on 11.3.08 and prior thereto there is an elaborate order dated 30.4.07. Since, as per the order of 11.3.08, earlier directions had not been complied with, it would be better to refer to the affidavits filed after 11.3.08. Mr. Michael D’Souza, who is the Member Secretary of the GCZMA, has filed an affidavit and after referring to the Order passed on 11.3.08, pointed out that on 11.4.08, a site inspection was carried out at 16.00 hours at which, the Members of the Authority, the petitioner and the representatives of the private respondents were present. The Authority took assistance of a Field Surveyor, Directorate of Settlement and Land Records to undertake the mapping of the structures and various distances of structures from the river bank and sluice gate and an Electronic Total Station was used for carrying out the survey, mapping and taking measurements. The water level on the river side and water body (poim) sides of the sluice gate were measured at two points and the measurements are indicated in para 4 of the affidavit affirmed on 17.4.2008. It is asserted in para 5 that the water level in the poim side and river side reveals that water level in the poim side does not vary although water level in the river side is mostly varying due to the receding tide. Based on empirical evidence and other studies done on similar effects of poims in the State, the Authorities concluded that the water in the poim is steady and is not affected by the tidal variations on the river side of 18 the sluice gate. The Members of the Authority desired to provide a factual report on the working of the sluice gate movement of water in the poim and rivers and tidal effects with photographic presentation and related studies conducted by scientific institutions like National Institute of Oceanography (NIO). They prayed for time to submit a detailed report. It is also pointed out in the affidavit that written submissions were handed over during the site inspection by the petitioner; whereas respondent Estevam D'Souza submitted to the Authority letter 28.03.2008 from Hydrographic Surveyor/Public Information Officer, Captain of Ports, indicating that the sluice gate