GOA FOUNDATION GOA Vs. DIKSHA HOLDIANGS PRIVATE LIMITED

JUDGEMENT

(1.) 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filed by the appellant Initially, the appeal had been filed through counsel, but later on, the appearing counsel having withdrawn, the appeal was argued by the Secretary of the Goa Foundation, Dr. Claude Alvares. The appellant filed the writ petition before the High Court as a Public Interest Litigation, objecting to the construction 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 comes within CRZ-I, and as such it is not permissible to have any construction on the same plot of land. It was also contended that the plan and sanction obtained for such construction from the competent authority, are in contravention of the provisions of the Environment (Protection) Act and such permission has been granted by the concerned authority without application of mind and without considering the relevant materials, and, therefore, the Court should issue mandamus, injuncting the hotelier-Diksha Holdings Pvt. Ltd., from constructing the proposed hotel on the disputed plot of land. It was also contended before the High Court that there exist large number of sand dunes and by permitting the respondent to have the hotel complex on the plot of land will ultimately lead to irreversible ecological damage of the coastal area, and, therefore, the Court should prevent such construction. The High Court in the impugned judgment, took into consideration the balancing task of maintaining and perversing 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. It also took into account several Acts and Regulations like Town and Country Planning Act, the CRZ, Notification, the Coastal Zone Management Plan. It also took into account the approval of the Ministry of Environment and Forest, under which the disputed hotel complex comes as CRZ-III, the Court also took into account the Expert Committee's recommendations, recommending the hotel project for environmental clearance, indicating therein that the existing sand dunes will not 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 construction of the hotel at the disputed location. 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 construction of the hotel will not affect the sand dunes. The High Court also had privilege of going through the report submitted by Dr. N.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 land cape covered 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, no development can ever be taken place along with the sea coast of Goa. The Ministry of Environment and Forest also had taken the opinion of the Secretary, Department of Science, Technology and Environment on the question whether sand dunes exist at the site of proposed hotel. The Ministry of Environment and Forest also sent one of its Scientists Dr. R. Warrier to the place where the hotel complex was to come 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, 1977. On getting such clearance from the Ministry of Environment and Forest, the Cancona Municipal Council granted licence for construction of hotel on 16/01/1998. 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 conclusion that the appropriate authority have accorded permission for construction of the hotel on the disputed site, after consideration of relevant and germane materials and the writ petitioner has failed to establish any illegality in the matter of grant of such permission. The High Court recorded a finding that the State Authorities as well the Central Government were aware of the existence of sand dunes formation up-to 200 metres strip from shore line where no construction is permitted and beyond the said 200 meters strip within the hotel complex is proposed to be build up is under category CRZ III and as such there is no prohibition for construction of the hotel within that area. The High Court accordingly, dismissed the writ petition filed by the Goa Foundation.

(2.) ASSAILING the impugned judgment of the High Court Dr. Claude Alvares, Secretary of the Goa Foundation, contended with vehemence that the foundation is committed to preserve the environment and ecology of the coastal 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 not 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 construction of the hotel. According to the appellant, coastal stretches having been declared as Coastal Regulation Zone (for short CRZ) in exercise of powers conferred 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 settting up and expansion of industries having been put within the said CRZ, which lies up to 500 meters of the High Tide Line, the concerned authorities committed gross error in granting environmental clearance as well as in granting permission to the respondent for setting up the hotel complex. 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 not permit any new construction 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 complex is coming up as CRZ-III are motived and designedly made to assist the respondent in having the hotel complex and, therefore, this is a fit case where this Court should prohibit the construction of hotel, annulling the permission granted by the Municipal Council and annulling the environmental clearance of the Ministry of Environment and Forest, Govt. of India or at least, this Court should remit the matter for reconsideration to the Department of Ministry of Environment and Forest for consideration of some fresh data shall the Goa Foundation has found subsequent to the filing of the writ petition before the High Court.

(3.) THE learned counsel, appearing for the Union of India, more or less, reiterated the stand taken by the learned Additional Solicitor General, appearing for the State of Goa.