National Green Tribunal
Shri Joseph Antonio Dsouza Alias Joseph ... vs State Of Goa Through The Chief Secretary on 28 August, 2020
BEFORE THE NATIONAL GREEN TRIBUNAL
(WESTERN ZONE BENCH)
PUNE
(Video Conferencing)
**********
APPEAL NO. 25 OF 2016(WZ)
M.A. No. 426 of 2016
IN THE MATTER OF:
1. Shri Joseph Antonio D'Souza alias Joseph D'Souza
s/o Joaquim D'Souza Married,
aged 56 years, Indian National, business and his wife
2. SMT. Fabiola D'Souza
d/o Charles Fernandes, Married, aged 53 years, Indan National
Both r/o H. No. 692, D'Mello
Wado, Anjuna, Bardez, Goa .....Appellants
Versus
1. State of Goa
Though the Chief Secretary,
Having office at Secretariat,
Porvorim, Goa
2. Goa Coastal Zone Management Authority,
Through its Chairman,
having office at Dempo Towers,
Patto, Panaji, Goa
3. The Member Secretary,
GCZMA, having office at
Dempo Towers, Patto, Panaji
Goa
4. Union of India,
Through the Secretary, Ministry of Environemnt
And Forests, Paryawaran Bhavan, Lodhi Road,
New Delhi 110001.
5. Ministry of Environment and Forests,
Through its Secretary, having office at Payavaran Bhavan,
CGO Complex, Lodhi Road, New Delhi 110001
6. Collector & District Magistrate (North)
Having office at Collectorate, Panaji, Goa
7. Deputy Collector & Sub Divisional Officer of Bardez,
having office at Collectorate Building Mapusa, Goa
8. Mr. Kashinath Jairam Shetye,
Major of age, r/o 102, Raj Excellency, Ribandar, Goa
9. Dr. Ketan Govekar,
Major of age, r/o Wadji Bldg
St. Inez, Panaji, Goa
1
10. Mr. Desmond Alvares,
Major of age, r/o Wadji Bldg,
St. Inez, Panaji, Goa.
11. Sonia Satardekar,
Major of age, r/o H. No. 605,
Bhutkiwada, Socorro, Bardez, Goa
12. Mr. Surendra Goverkar,
Major of age, r/o H. No. 678/5,
Soratowado, Anjuna, Bardez, Goa.
13. Mr. Sanjay Sarmalkar,
Major of age, r/o Madhuban,
Bldg. 2, St. Inez, Panaji, Goa.
14. Mr. Sandip P. Chimulkar,
15. Mrs. Suhasini Govekar
16. Mrs. Sheetal Dabholkar,
All major of age, Ward
Members of Village Panchayat
Of Anjuna Caisua, Anjuna,
Bardez, Goa .....Respondents
COUNSEL FOR APPELLANT:
Mr. Mr. A.D. Bhobe, Adv. a/w Mr. A. Shivade Adv.
COUNSEL FOR RESPONDENTS:
Mr. Rahul Garg, Adv. For Respondent Nos. 4 & 5
Mrs. Fawia M. Mesquita, Adv. For Respondent No. 1,2 & 3
JUDGEMENT
PRESENT:
Hon'ble Mr. Justice Sheo Kumar Singh (Judicial Member) Hon'ble Dr.Satyawan Singh Garbyal (Expert Member) Reserved on: 14.08.2020 Pronounced on: 28.08.2020
1. Whether the judgment is allowed to be published on the net?
2. Whether the judgment is allowed to be published in the NGT Reporter?
JUSTICE SHEO KUMAR SINGH, (JUDICIAL MEMBER)
1. The appellant has filed this appeal with the relief to quash and set aside the impugned Order dated 02.03.2016, quash and set aside the Show Cause Notices dated 07.11.2014 and 31.07.2015, Direct the Respondent No. 4 to constitute the Goa Coastal Zone Management Authority, direct 2 the Respondent No. 5 to order demarcation of the High Tide Line (HTL) uniformly for the entire State of Goa by the competent authority/agency, in terms of the CRZ Notification, 2011, direct the Respondent No. 1 to prepare the Coastal Zone Management Plan (CZMP) for the State of Goa in terms of the CRZ Notification, 2011, direct the Respondent No. 5 to approve the Coastal Zone Management Plan (CZMP) for the State of Goa after ensuring that the same is prepared in accordance with the provisions of the CRZ Notification, 2011, direct the Respondent Nos. 1 to 5 to classify Anjuna village as CRZ-II while preparing the CZMP, direct the Respondent Nos. 1,2,4 and 5 to consider the grant of permission to the Appellants in terms of the CZMP to be prepared under the CRZ Notification 2011, in accordance with law, in the event the said property falls within CRZ area, stay the effect, operation and implementation of the impugned Order dated 02.03.2016, pending the hearing and final disposal of the present appeal, grant ex party ad-interim relief in terms of prayer Clause (i) above, grant such other and further reliefs, as this Hon'ble Tribunal deems fit and proper.
2. Order under challenge was passed by respondent No. 3 directing demolition of the ground plus two storied structure bearing House No. 692 belonging to the appellant and situated in the said property and ordering the disconnection of power and water supply to the said structure. The order have been challenged on the ground that it is without justification in as much as the property does not fall within CRZ area and hence the respondent no. 2 and 3 have no jurisdiction to pass any order in respect of the said structure.
3. Notice was issued to the respondents in compliance thereof Ministry of Environment, Forest and Climate Change, respondent No. 4 and 5 has submitted reply which is as follows:
a) That in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 3 of the Environment (Protection) Rules, 1986, Ministry of Environment and Forest had notified the Coastal Regulation Zone Notification, 1991 on 19th February, 1991, which inter-alia provided classification of CRZ areas and norms for regulating developmental activities therein. This Notification was subsequently amended from time to time.
b) That it is submitted that the Coastal Regulation Zone (CRZ) Notification, 2011 was notified on 6th January, 2011 in supersession of the CRZ Notification, 1991 for regulation of developmental activities along the coastal stretches and to ensure the livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches.
c) That the CRZ Notification, 2011 declares coastal stretches of 500 m from High Tide Line (HTL), the stretch between Low Tide Line (LTL) & HTL and water portion up to 12 nautical miles as Coastal Regulation Zone (CRZ). It also declares 100m or width of the creek and backwater and distance up to which tidal effect of the sea is experienced in rivers, creeks and backwaters as Coastal Regulation Zone.
d) That the CRZ Notification, 2011 provides details for classification of CRZ areas. As per the Notification, CRZ-I are the areas that are ecologically sensitive and the geo-morphological features which play a role in the maintaining integrity of the coast, which inter-
alia includes mangroves, mud flats, national parks, sand dunes, etc. CRZ-II is the areas that have been developed up to or close to the shoreline. The CRZ-II is the areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas (developed and undeveloped) and also areas within municipal limits or in other 4 legally designated urban areas, which are not substantially built up. The CRZ-IV is the water area from the Low Tide Line to twelve nautical miles on the seaward side and also includes the water area of the tidal influenced water body from the mouth of the water body at the sea up to the influence of tide which is measured as five parts per thousand during the driest season of the year.
CRZ-III refers to the areas up to 200 m from HTL on the landward side in case of seafront and 100 m along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as 'No Development Zone (NDZ)'.
e. That as per clasuse 3 (3) (i) of the CRZ Notification, 1991, the coastal State Government and Union Territory Administration were required to prepare, within a period of one year from 19th February, 1991, Coastal Zone Management Plans(CZMPs) indentifying and classifying the CRZs within their respective territories in accordance with the guidelines given in the Notification, and obtain approval of the Central Government. The States could not prepare CZMPs within the timelines given in the Notification. In compliance of the order of Hon'ble Supreme Court dated 10th April 1996 in Writ Petition (Civil) 664 of 1993, this Respondent approved CZMPs prepared by the Coastal States, including CZMP prepared by the Government of Maharashtra on 27th September, 1996.
f. That as per the CRZ Notification 2011, the Coastal States and Union Territories, including the State Government of Maharashtra, were required to prepare within a period of 24 months, the draft CZMPs in 1:25,000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in Annexure-I of the Notification. These draft CZMPs were required to be submitted by the State Government or 5 Union Territory to the concerned Coastal Zone Management Authority (CZMA) for appraisal. Thereafter, the State Government or Union territory CZMA were to submit the draft CZMPs to the Ministry along with its recommendations on the CZMP within a period of six months after incorporating the suggestions and objections received from the stakeholders. The Ministry was to consider and approve the CZMPs within a period of four months from the date of receipt of the CZMPs complete in all respects. g. That the CRZ Notification dated 6th January, 2011, also provides for validity of CZMPs already approved under CRZ Notification, 1991 for a period of twenty four months unless the aforesaid period is extended by MoEF by a specific notification subject to such terms and conditions as may be specified therein.
h. That the Ministry has reviewed the status of preparation CZMPs by the Coastal States/UTs from time to time in the meetings of NCZMA, and asked all the Coastal States/UTs including the State Government of Maharashtra, to expedite preparation of CZMPs under the CRZ Notification, 2011. It may be informed that except UT of Lakshadweep, which has prepared the IIMPs under IPZ Notification, 2011 for ten identified islands, no other Coastal State/ UT has prepared the CZMPs as per the CRZ/IPZ Notification, 2011. Taking this into account and considering requests of the States/UTs, validity of approved CZMPs has been extended on yearly basis, starting from 31st January, 2014 and now valid up to 31st January, 2017.
i. It is submitted that CZMPs are to be prepared in 1:4,000 and in 1:25,000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in the Notification, which involve public consultation. j. I humbly submit that all developmental activities in CRZ areas are required to be regulated in accordance with the Coastal 6 Zone Management Plans (CZMPs) approved by this Respondent and in accordance with the provisions of the CRZ Notification, 2011.
k. That for the purpose of implementation and enforcement of the provisions CRZ Notification and compliance with the conditions stipulated there under, this Respondent has constituted the State/UT Coastal Zone Management Authorities, including that for the State of Goa, called the Goa Coastal Zone Management Authority (GCZMA). The composition, tenure and mandate of State CZMAs, including the GCZMA, have been notified from time to time by the Ministry in terms of orders of Hon'ble Supreme Court in WP No. 664 of 1993.
4. By this Appeal, the Appellants challenge the Order dated 02.03.2016 under Reference No. GCZMA/N/ILLE-COMPL/15-16/57/2966 (herein after referred to as the 'impugned Order') passed by the Respondent No. 3 directing demolition of the ground plus two storied structure bearing House No. 692 (herein after referred to as the 'said structure') belonging to the Appellants and situated in the said property and ordering disconnection of power and water supply to the said structure and further challenge that there is no compliance of natural justice, order passed was without jurisdiction, the very constitution of Goa Coastal Zone Management is not proper and not in accordance with the law and that the GCZMA has not applied the mind.
5. The Appellants argued that they are the owners in possession of the said property after having purchased the same from its erstwhile owners by way of Deed of Sale dated 16.05.2013. The Appellants state that the said property was purchased by the Appellants along with the said ground plus two structures, which existed therein, and that at the time when the said property was purchased, the erstwhile owners of the said property had given inspection of various documents to the Appellants to 7 demonstrate that the said structure was an old structure. The Appellants state that the said property corresponds to old Cadastral Survey No. 3609 in terms of the survey done in the year 1934. The Appellants state that the plan prepared in terms of the said survey demonstrates the existence of the said structure and a well in the said property. The Appellants state that existence of the said structure is also confirmed by an entry in the Registo De Agrimensor.
6. The Appellants argued that the existence of the said structure in the said property was also reflected in some other documents. The Appellants therefore state that there could not have been any dispute about the fact that there always existed the said structure in the said property much before the CRZ Notification 1991 came into force, and the predecessors- in-title of the Appellants, in the year 1986 carried out of works of repairs and reconstruction as one floor of the said structure was partly damaged. The Appellants have now been informed by the erstwhile owners that the said structure was partly reconstructed by them between February to April 2013 and the same was done under the impression that no fresh permission was required as the structure was an existing structure. The Appellants further state that the erstwhile owners have informed the Appellants that the work could not be completed fully on account of financial difficulties and the said structure remained in an incomplete/ dilapidated state and the plastering was only partially done. The Appellants further state that due to financial distress, the erstwhile owners sold the said property along with the said structure in the same incomplete/dilapidated state and on account of this position, the Appellants managed to strike a good deal with the erstwhile owners and purchased the property for a relatively cheaper price.
7. The Appellants argued that since the said structure was incomplete/dilapidated as the same was not fully plastered, in February and March, 2014, the Appellants undertook the plastering work and gave a new look to the structure by getting the same painted and furnishing 8 the same by getting the interiors done. The Appellants state that the same was done by the Appellants with the long term intention of operating a Guest House, and that in November 2014 the Appellants were surprised to be served with a copy of Show Cause Notice dated 07.11.2014 under Reference No. GCZMA/ N/ILLE-COh4PL/14- 15/153/1500 (herein after referred to as the 'first Notice'). The first Notice was issued purportedly on the basis of a complaint dated 07.10.2014 from the Respondent Nos. 14 to 16.
8. It is argued that the first Notice merely mentioned that the said structure was within CRZ area without specifying what was the distance from the HTL although there was a specific column in the first Notice marked 'distance from HTL'. The same did not even mention which zone of the CRZ the said structure was located in. The appellants state that a reading of the first Notice makes it clear that the same was issued mechanically and without application of mind. The Appellants further state that the first Notice is bad in law in as much as it has been issued by the Respondent 3, who is not authorized in law to issue such notices, and that it is a mandatory requirement of law that before issuance of a Show Cause Notice, there has to be proper application of mind and a prima facie satisfaction that there is any violation by the Noticee. The Appellants state that it is clear on a reading of the first Notice that no such prima facie satisfaction was reached at any meeting of the Respondent No. 2. The Appellants further state that issuance of such Notice without even conducting an inspection and drawing a sketch to notify the Noticee about the alleged violation so as to invite a specific explanation by way of the Show Cause Notice, is an arbitrary and illegal exercise of power by the Respondent No.3.
9. The Appellants argued that upon receiving the first Notice, the Appellants filed their reply dated 18.11.2014 denying any illegalities and pointing out that the said structure was a structure which 9 existed since prior to 1991. The Appellants also relied on certain documents, which showed that the said structure was an existing structure, was an existing structure and subsequently after reply was filed to the first Notice, the Respondent No. 3 issued yet another notice dated 12.03.2015 under Reference No. GCZMA/N/ILLE- COMPL/14-15/153/2301 calling upon the Appellants to produce documents in support of the contentions raised in the reply.
10. It is argued that in response to this notice, the Appellants filed an additional reply dated 26.03.2015 with the Respondent No. 3. The Appellants state that along with this additional reply, the Appellants produced various documents showing the existence of the said structure prior to 1991. The Appellants state that the difficulty faced by the Appellants was that the Appellants had purchased the structure in May 2013 and did not have access to the old records and had to rely solely and entirely on the information given by the erstwhile owners.
11. The affidavit was filed in September 2016 and later on it was reported that the Goa Coastal Zone Management Authority have been constituted in order with the approvals.
This Tribunal vide order dated 21.07.2017 passed an order as follows:
M.A. No.369/2016
This application for deletion of Prayer Clauses (c) to (h) is not pressed. M.A. No.369/2016 stands disposed of accordingly.Appeal No.25/2016
Parties admit that the structure in question stands in Survey No.160/1 of Village Anjuna, Bardez Goa. However, the Appellants question the fact asserted by the GCZMA about the said Survey No.160/1 falling within 200mt - 500mts from the HTL as depicted in Plan of RSI, Hyderabad. We, therefore, direct GCZMA to place before us the Plan of RSI, Hyderabad showing the location of Survey No.160/1 of Village Anjuna, Bardez Goa (both zoom and original version of the Plan) with reference to HTL and LTL and the mechanism resorted to for deciding the location of 10 Survey No.160/1. Interim relief to continue till next date. List this case on 15th September, 2017
12. In compliance thereof GCZMA had submitted the reply that in compliance of the order the matter was referred to RSI Hyderabad. RSI Hyderabad had been submitted a report with regard to location of SY no. 160/1 village Anjuna Bardez Goa with reference to LTL, STL and mechanism resorted for deciding the location of SY no. 160/1 village Anjuna Bardez, Goa.
13. That in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986, Ministry of Environment and Forest had notified the Coastal Regulation Zone Notification, 1991 on 19th February, 1991, which inter-alia provided classification of CRZ areas and norms for regulating developmental activities therein. This Notification was subsequently amended from time to time.
14. That it is submitted that the Coastal Regulation Zone (CRZ) Notification, 2011 was notified on 6th January, 2011 in supersession of the CRZ Notification, 1991 for regulation of developmental activities along the coastal stretches and to ensure the livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches.
15. That the CRZ Notification, 2011 declares coastal stretches of 500 m from High Tide Line (HTL), the stretch between Low Tide Line (LTL) & HTL and water portion up to 12 nautical miles as Coastal Regulation Zone (CRZ). It also declares 100m or width of the creek and backwater and distance up to which tidal effect of the sea is experienced in rivers, creeks and backwaters as Coastal Regulation Zone.
16. That the CRZ Notification, 2011 provides details for classification of CRZ areas. As per the Notification, CRZ-I are the areas that are ecologically 11 sensitive and the geo-morphological features which play a role in the maintaining integrity of the coast, which inter-alia includes mangroves, mud flats, national parks, sand dunes, etc. CRZ-II is the areas that have been developed up to or close to the shoreline. The CRZ-II is the areas that are relatively undisturbed and those do not belong to either CRZ-I or II which include coastal zone in the rural areas (developed and undeveloped) and also areas within municipal limits or in other legally designated urban areas, which are not substantially built up. The CRZ-IV is the water area from the Low Tide Line to twelve nautical miles on the seaward side and also includes the water area of the tidal influenced water body from the mouth of the water body at the sea up to the influence of tide which is measured as five parts per thousand during the driest season of the year.
CRZ-III refers to the areas up to 200 m from HTL on the landward side in case of seafront and 100 m along tidal influenced water bodies or width of the creek whichever is less is to be earmarked as 'No Development Zone (NDZ)'.
17. That as per clause 3 (3) (i) of the CRZ Notification, 1991, the coastal State Government and Union Territory Administration were required to prepare, within a period of one year from 19th February, 1991, Coastal Zone Management Plans(CZMPs) indentifying and classifying the CRZs within their respective territories in accordance with the guidelines given in the Notification, and obtain approval of the Central Government. The States could not prepare CZMPs within the timelines given in the Notification. In compliance of the order of Hon'ble Supreme Court dated 10th April 1996 in Writ Petition (Civil) 664 of 1993, this Respondent approved CZMPs prepared by the Coastal States, including CZMP prepared by the Government of Maharashtra on 27th September, 1996.
18. That as per the CRZ Notification 2011, the Coastal States and Union Territories, including the State Government of Maharashtra, were required to prepare within a period of 24 months, the draft CZMPs in 12 1:25,000 scale map identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in Annexure-I of the Notification. These draft CZMPs were required to be submitted by the State Government or Union Territory to the concerned Coastal Zone Management Authority (CZMA) for appraisal. Thereafter, the State Government or Union territory CZMA were to submit the draft CZMPs to the Ministry along with its recommendations on the CZMP within a period of six months after incorporating the suggestions and objections received from the stakeholders. The Ministry was to consider and approve the CZMPs within a period of four months from the date of receipt of the CZMPs complete in all respects.
19. That the CRZ Notification dated 6th January, 2011, also provides for validity of CZMPs already approved under CRZ Notification, 1991 for a period of twenty four months unless the aforesaid period is extended by MoEF by a specific notification subject to such terms and conditions as may be specified therein.
20. That the Ministry has reviewed the status of preparation CZMPs by the Coastal States/UTs from time to time in the meetings of NCZMA, and asked all the Coastal States/UTs including the State Government of Maharashtra, to expedite preparation of CZMPs under the CRZ Notification, 2011. It may be informed that except UT of Lakshadweep, which has prepared the IIMPs under IPZ Notification, 2011 for ten identified islands, no other Coastal State/ UT has prepared the CZMPs as per the CRZ/IPZ Notification, 2011. Taking this into account and considering requests of the States/UTs, validity of approved CZMPs has been extended on yearly basis, starting from 31st January, 2014 and now valid up to 31st January, 2017.
21. That for the purpose of implementation and enforcement of the provisions CRZ Notification and compliance with the conditions stipulated there under, this Respondent has constituted the State/UT Coastal Zone 13 Management Authorities, including that for the State of Goa, called the Goa Coastal Zone Management Authority (GCZMA). The composition, tenure and mandate of State CZMAs, including the GCZMA, have been notified from time to time by the Ministry in terms of orders of Hon'ble Supreme Court in WP No. 664 of 1993.
22. The Ministry has issued Office Memorandum No. 11-70/2006-IA.III dated 7th November, 2008 regarding functioning of the Coastal Zone Management Authorities in coastal States/Union Territories. A copy of the said OM is at Annexure-I. The para 3(ii) of the said OM, inter-alia, clarifies that during transitory period the responsibility of implementation of the notifications vest with the State Government in the Environment Department. The main function of these authorities is to enquire into the cases of alleged violation of the provisions of the CRZ Notification, 1991/2011 and take appropriate decision under Section 5,10 and 19 of the Environment (Protection) Act, 1086. These authorities are empowered to enforce and monitor the provisions of the CRZ Notification, 1991/2011. Further, all such authorities have been issued directions under Section 5 of the Environment (Protection) Act, 1986 regarding identification of violations under the CRZ Notification, 1991 and initiation of action thereon. The Ministry reconstitutes coastal zone management authorities in States/UTs subject to receipt of the proposal from the State Government/UTs in this regard. The tenure of GCZMA constituted vide Notification bearing No. S.O.2264 (E) dated 22nd July 2013 was for a period of three years and it is over on 21st July, 2016. The copy of herein mentioned Notification is at Annexure-II. There has been no proposal from the State Government of Goa for reconstitution of the GCZMA.
23. The respondent had filed a copy of the office memorandum dated 7th November, 2008 with regard to the functioning of the State /UTs Coastal Zone Management Authorities and the Government order was issued for 14 constitution of Coastal Zone Management Authorities including the National Coastal Zone Management Authority and further order was issued on 22nd July 2013 whereby order of Ministry of Environment and Forest no. SO 821 the Central Government has reconstituted the Goa State Coastal Zone Management Authority. In this way the contention of the Learned Counsel for the appellant that the Goa Coastal Zone Management Authority was not properly constituted or there is violation of natural justice or the order was passed without jurisdiction or there was not application of the mind while passing the impugned order is not tenable. As per the version submitted by the respondents and as per documents filed by Goa Coastal Zone Management Authority have been duly constituted, the appellant was given an opportunity of hearing, the appellant filed a reply and he was heard and thus mandatory provisions have been followed by the authority concerned while passing the impugned order. It is further argued by the Learned Counsel for the respondent that the demarcation of HTL and LTL line has been done according to the rules by the competent authority and expert members and that have been put on the website on DSTE and it open in public domain.
24. This Tribunal deals the environment matters and Clause a of the sub- section 2 of the Environment (Protection) Act, 1986 defines environment which reads that the environment includes water, air and land and the interrelationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organisms and property.
"35. Section 3(1) of the said Act of 1986 reads thus:
"3. POWER OF CENTRAL GOVERNMENT TO TAKE MEASURES TO PROTECT AND IMPROVE ENVIRONMENT (1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution."15
36. A notification dated 19 February 1991 was issued by the Government of India which is known as CRZ notification of 1991 in exercise of powers under Section 3(1) and Section 3(2)(v) of the said Act of 1986. The notification lays down what constitutes a "Coastal Regulation Zone" (for short "CRZ"). The material part of the said CRZ notification declaring CRZ reads thus:--
"Now, therefore, in exercise of the powers conferred by Clause (d) of sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986, and all other powers vesting in its behalf, the Central Government hereby declares 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 imposes with effect from the date of this Notification, the following restrictions on the setting up and expansion of industries, operations or processes etc. in the said Coastal Regulation zone (CRZ). For purposes of this Notification, the High Tide Line (HTL) will be defined as the line upto which the highest high tide reaches at spring tides."
37. Clause 3 provides that all other activities except those which are prohibited will be regulated as provided therein. Annexure-I to the CRZ notification deals with Coastal Area Classification and Development Regulations. CRZ-I is defined thus:--
"Category I (CRZ-I):
(i) Areas that are ecologically sensitive and important, such as national parks marine parks, sanctuaries, reserve forests, wildlife habitats, mangroves, corals coral reefs, areas close to breeding and spawning grounds of fish and other marine life, areas of outstanding natural beauty historical heritage areas, areas rich in genetic diversity, areas likely to be inundated due to rise in sea level consequent upon global warming and such other areas as may be declared by the Central Government or the concerned authorities at the State/Union Territory level from time to time.
(ii) Area between the Low Tide Line and the High Tide Line."
38. Thus, mangroves fall in CRZ-I category. Annexure-I further lays down that no new structure shall be permitted within 500 meters from the High Tide Line (HTL) and no construction activities except as listed in sub-clause (xii) of clause 2 of the CRZ notification are permitted in CRZ-I area. Sub-clause (xii) of clause 2 reads thus:--
"(xii) ............... facilities for carrying treated effluents and waste water discharges into the sea, facilities for carrying sea water for cooling purposes, oil, gas and similar pipelines and facilities essential for activities permitted under this Notification; and"
39. The CRZ notification of 1991 was further amended by a notification dated 18th August 1994. The relevant modification is in clause (a) which reads thus:
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"(a) in paragraph 1, for the portion beginning with the words "For purposes of this notification, the High Tide Line" and ending with the words "width of the creek, river or back water whichever is less", the following shall be submitted, namely:--
"For the purposes of this notification, the High Tide Line means the line on the land upto which the highest water line reaches during the spring tide and shall be demarcated uniformly in all parts of the country by the demarcating authority so authorised by the Central Government in consultation with the Surveyor General of India. NOTE:--
The distance from the High Tide Line shall apply to both sides in the case of rivers, creeks and back waters and may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans. However, this distance shall not be less than 50 metres or the width of the creek, river or back-water whichever is less. The distance upto which development along rivers, creeks and back-waters is to be regulated shall be governed by the distance upto which the tidal effect of sea is experienced in rivers, creeks or back-waters, as the case may be, and should be clearly identified in the Coastal Zone Management Plans."
40. Sub-clause (3)(i) of clause 3 of the CRZ notification of 1991 mandated that all coastal States shall prepare a Coastal Zone Management Plan (for short "CZMP") identifying and classifying CRZ areas within their respective territories in accordance with Annexures - I and II to the CRZ notification. Accordingly, CZMP for Maharashtra was submitted to the Government of India on 22nd November 1995. By a letter/order dated 27th September 1996, the Ministry of Environment and Forest of the Government of India communicated to the Chief Secretary of the Government of Maharashtra grant of approval to the CZMP subject to conditions incorporated therein.
Condition No.(xiii) reads thus:--
"(xiii) All mangroves with an area of 1000 square metres or more would be classified as CRZ-I with a buffer zone of at least 50 metres."
41. The Mangroves were already included in CRZ-I in the CRZ notification of 19th February 1991. By the aforesaid order dated 27 September 1996, in case of mangroves with an area of 1000 square metres or more, a buffer zone of at least 50 metres along the mangroves was ordered to be included in CRZ-I in addition to mangroves.
42. An order was issued on 19th January 2000 by the Government of India providing that 50 meter buffer zone around mangroves of area of 1000 square meters and above, will not be required on the landward side, provided a road abutting such mangroves was constructed prior to February, 1991. Thus, under the 1991 notification, mangroves were included in CRZ-I. In the CRZ notification of 1991, there was no provision for a buffer zone. The said provision came for the first time by virtue of the order dated 27th September 1996 which was amended by the order dated 9th January 2000.
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43. The CRZ notification of 6th January 2011 was issued under section3(1) of the said Act of 1986 which superseded the earlier CRZ notification of 1991. Relevant part of paragraph 7 reads thus:
"7. Classification of the CRZ - For the purpose of conserving and protecting the coastal areas and marine waters, the CRZ area shall be classified as follows, namely:--
(i) CRZ-I,-
A. The areas that are ecologically sensitive and the geomorphological features which play a role in the maintaining the integrity of the coast,-(a) Mangroves, in case mangrove area is more than 1000 sq mts, a buffer of 50 meters along the mangroves shall be provided;
(b) Corals and coral reefs and associated biodiversity;
(c) Sand Dunes;
(d) Mudflats which are biologically active;
(e) National parks, marine parks, sanctuaries............."
44. Clause (xi) of paragraph 3 provides that all construction activities in CRZ-I are prohibited activities except those specified in paragraph 8. Paragraph 8 lays down the norms for regulation of the activities permissible in CRZ that:
"I. CRZ-I,-
(i) no new construction shall be permitted in CRZ-I except,-
(a) projects relating to Department of Atomic Energy;
(b) pipelines, conveying systems including transmission lines;
(c) facilities that are essential for activities permissible under CRZ-I;
(d) installation of weather radar for monitoring of cyclones movement and prediction by Indian Meteorological Department;
(e) construction of trans harbour sea link and without affecting the tidal flow of water, between LTL and HTL.
(f) development of green field airport already approved at only Navi Mumbai;
(ii) Areas between LTL and HTL which are not ecologically sensitive, necessary safety measures will be incorporated while permitting the following, namely:--
(a) exploration and extraction of natural gas;
(b) construction of dispensaries, schools, public rain-shelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned CZMA.
(c) necessary safety measure shall be incorporated while permitting such developmental activities in the area falling in the hazard zone;
(d) salt harvesting by solar evaporation of seawater;
(e) desalination plants;
(f) storage of non-hazardous cargo such as edible oil, fertilizers and food grain within notified ports;
(g) construction of trans harbour sea links, roads on stilts or pillars without affecting the tidal flow of water."
45. In the Guidelines for preparation for CZMP incorporated in the said notification of 2011, it is stated thus:
"3. Buffer zone along mangrove areas of more than 1000 sq mts shall be stipulated with a different colour distinguishing from the mangrove area.18
4. The buffer zone shall also be classified as CRZ-I area."
46. In 1991 CRZ notification, it was provided that all mangrove areas will fall in CRZ-I. By virtue of the order dated 27 September 1996, in case of mangrove areas of 1000 square meters or more, 50 meter buffer zone abutting it was also included in CRZ-I. By order dated 9 January 2000, it was provided that 50 meter buffer zone will not be required to be maintained, provided a road abutting the mangroves was constructed prior to February 1991 (prior to the date on which CRZ notification of 1991 was issued). Under the 2011 notification, all mangroves area fall in CRZ-I irrespective of its area and in case the said area is 1000 square meters or more, even a buffer zone of 50 meters along the said area shall be a part of CRZ-I. Thus, the buffer zone of 50 meters abutting mangroves having an area of 1000 square meters or more was also included in CRZ-I from 27th September 1996.
47. The CRZ notifications are in the nature of orders or directions issued under the said Act of 1986. Hence, if there is any violation of the provisions of the CRZ notifications regarding mangroves area or its buffer zone or if there is any failure to comply with the same, it will attract the penal provisions under Section 15 of the said Act of 1986 which is attracted in case of the failure to comply with the provisions of orders or directions issued under the said Act of 1986. The conditions imposed in the the letter dated 27th September 1996 will have to be construed as an order or direction under the said Act of 1986 as CZMP is required to be approved by the Central government in view of the clause 3(i) in the CRZ notification of 1991. Hence, if there is any violation of the condition in the letter dated 27 September 1996 about the 50 meter buffer zone, it will attract penal provision of Section 15 of the said Act of 1986."
EFFECT OF THE DIRECTIVE PRINCIPLES OF STATE POLICYAND THE FUNDAMENTAL DUTIES OF CITIZENS
48. Article 48-A in Chapter IV under the title Directive Principles of State Policy of the Constitution of India reads thus:--
"48-A. Protection and improvement of environment and safeguarding of forests and wild life.--The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
49. Article 48-A lays down that it is the duty of the State to make an endeavour to protect and improve environment and to safeguard forests. As stated earlier, environment includes plants. Mangroves are essential part of the environment. The land covered by mangroves is be covered by the concept of forest. Under Article 51(A)(g) of the Constitution, it is the fundamental duty of every citizen of India to protect and improve the natural environment including forests, rivers and wildlife and to have compassion for living creatures. In view of the constitutional mandate under Article 51 (A)(g), it is the fundamental duty of every citizen to protect and improve natural environment including forest which will include mangroves. If this is the obligation of every citizen, the public bodies which are constituted by the citizens are bound by the fundamental duties under Article 51(A). Thus, 19 it is the duty of the State and citizens to ensure that the mangroves are preserved and protected."
Hon'ble the Apex Court in 2004 (3) SCC 445, Piedade Filomena Gonsalves vs. State of Goa And Ors. dated 11th March, 2004 held as follows:
"6. The Coastal Regulation Zone Notifications have been issued in the interest of protecting environment and ecology in the coastal area. Construction raised in violation of such regulations cannot be lightly condoned. We do not think that the appellant is entitled to any relief. No fault can be found with the view taken by the High Court in its impugned judgment."
Hon'ble the Supreme Court in 2016 (10) SCC 705, Anil Hoble Vs. Sashinath Sethi held as follows:
"10. We find that when the appellant purchased the subject plot vide registered sale deed dated 3-8-1992, only a small structure at the corner of the said plot was in existence and was used as a garage and which was indisputably within 100 m from the high tide line. On this finding, it necessarily follows, that the structure as it exists now is quite different
-- both in shape, size and location being in the middle of the plot. Obviously, it is an unauthorised structure constructed after 19-2-1991. The CRZ Policy dated 19-2-1991 prohibits any construction up to 200 m from the high tide line. It is to be treated as "No Development Zone", except for repairs of existing "authorised structures" not exceeding specific permissible FSI, plinth area and other norms for permissible activities including facilities essential for such activity under the Notification.
11. The relevant clause in the said Notification, dealing with land area falling within CRZ (III) area reads thus:
"...
CRZ-III
(i) The area up to 200 m from the high tide line is to be earmarked as "No Development Zone". No construction shall be permitted within this zone except for repairs of existing authorised structure not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the Notification including facilities essential for such certificates. An authority designated by the State Government/Union Territory Administration may permit construction of facilities for water supply, drainage and sewerage for requirements of local inhabitants. However, the following used (sic users) may be permissible in this zone: agriculture, horticulture, gardens, pasmres, parks, play fields, forestry and salt manufacturing from sea water.
(ii) Development of vacant plots between 200 and 500 m of high tide line in designated areas of CRZ (III) with prior approval of Ministry of Environment and Forests (MoEF) permitted for construction of hotels/beach resorts for 20 temporary occupation of tourists/visitors subject to the conditions as stipulated in guidelines at Annexure II.
(iii) Construction/Reconstruction of dwelling units between 200 and 500 m of the high tide line permitted so long it is within the ambit of traditional rights and customary uses such as existing fishing villages and gaothans. Building permission for such construction/reconstruction will be subject to the conditions that the total number of dwelling units shall not be more than twice the number of existing units; total covered area on all floors shall not exceed 33 per cent of the plot size; the overall height of construction shall not exceed 9 m and construction shall not be more than 2 floors--ground floor plus one floor. Construction is allowed for permissible activities under the Notification including facilities essential for such activities. An authority designated by State Government/Union Territory Administration may permit construction of public rain shelters, community toilets, water supply, drainage, sewerage, roads and bridges. The said authority may also permit construction of schools and dispensaries, for local inhabitants of the area, for those panchayats the major part of which falls within CRZ if no other area is available for construction of such facilities.
(iv) Reconstruction/Alterations of an existing authorised building permitted subject to (i) to (iii) above."
14. The fact remains that the structure directed to be demolished by the Tribunal, was obviously erected after 19- 2-1991. That being an unauthorised structure within the meaning of sub-clause (i) quoted above, could not be used for any purpose whatsoever and was required to be demolished. Therefore, the finding recorded by the Tribunal and the consequential directions given in that behalf are unassailable.
15. In this view of the matter, it is not necessary for us to dilate on the argument as to whether the CRZ Policy prohibits change of user of the structure which was in existence on 19-2-1991, so as to be used as a restaurant and bar. In our opinion, on the facts of the present case, no substantial question of law much less of great public importance arises for our consideration.
16. Hence, this appeal must fail and the same is, therefore, dismissed with no order as to costs."
In Vamika Island Resorts (P) Ltd. Vs. Union of India, 2013 (8) SCC 760, it was held:
"28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ Notifications are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves V. State of Goa, wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned."21
In Kerala State Coastal Zone Management Authority Vs. State of Kerala 2019 (7) SCC 248, it was held:
"The area in which the respondents have carried out construction activities is part of the tidally influenced water body and the construction activities in those areas are strictly restricted under the provisions of the CRZ notifications. Uncontrolled construction activities in these areas would have devastating effects on the natural water flow that may ultimately result in severe natural calamities. The expert opinions suggest that the devastating floods faced by Uttarakhand in recent years and Tamil Nadu this year are the immediate result of uncontrolled construction activities on river shores and unscrupulous trespass into the natural path of backwaters. The Coastal Zone Management Plan (CZMP) has been prepared to check these types of activities and construction activities of all types in the notified areas. The High Court has ignored the significance of approved CZMP.
As per the appellant, these construction activities are taking place in critically vulnerable coastal areas which are notified as CRZ-III. The Panchayats have issued these permissions in violation of relevant statutory provisions and CRZ notifications. The Vigilance Section of Local Self- Government Department, Government of Kerala detected these violations and anomalies in the issue of building permits and hence directed the bodies concerned to revoke all the flawed building permits exercising its powers under Rules 16 and 23 of the Kerala Municipality Building Rules, 1999 (the 1999 Rules).
It is necessary for the local authority to follow the restrictions imposed by the notification, as amended from time to time. Thus, it was not open to the local authority i.e. Panchayat, in view of the notification of 1991 to grant any kind of permission without the concurrence of Kerala State Coastal Zone Management Authority. Admittedly, Panchayat has not forwarded any such applications for building permissions and there is no concurrence or permission granted by the Kerala State Coastal Zone Management Authority. As such, once a due inquiry has been held by the Committee, there is no escape from the conclusion that the area fell within CRZ- III, it was wholly impermissible and unauthorised construction within the prohibited area. Judicial notice is taken of recent devastation in Kerala which had taken place due to heavy rains compounded by such unbridled construction activities resulting in colossal loss of human life and property due to such unauthorised activity."
12. It is also relevant to take note of Rule 23(4) of the 1999 Rules which is extracted below:
"23. (4) Any land development or redevelopment or building construction or reconstruction in any area notified by the Government of India as a coastal regulation zone under the Environment (Protection) Act, 1986 (29 of 1986) and rules made thereunder shall be subject to the restrictions contained in the said notification as amended from time to time."22
The Court in Vaamika Island (Green Lagoon Resort) v. Union of India , has observed: (SCC pp. 767-68, paras 26-28) "26. The petitioner had effected the construction in violation of the provisions of 1991 and 2011 Notifications as well as Map No. 32-A, so found by the High Court. The factual details of the same and where actually the portion of some of the properties of the petitioner in Vettila Thuruthu will fall, has been elaborately dealt with by the High Court in its judgment in paras 109 to 119. We notice that the High Court has dealt with the issue pointing out that so far as buildings which have been constructed by the petitioner during the currency of the Notification issued in 1991 are concerned, they are clearly in violation of this notification hence, action has to be taken for the removal of the same. The Director of Panchayat also vide letters dated 7-3-1995, 17-7-1996 directed all the Panchayats to strictly follow the provisions of CRZ notification which it was found not followed by granting permission. The High Court has also found on facts that reconstruction work appeared to have been done during the currency of the 2011 Notification and two buildings (193/D and 193/E) were also constructed illegally. The High Court has also noticed another new construction underway. These all are factual findings which call for no interference by this Court. The High Court has clearly noticed that reconstruction work has been done contrary to the 1991 as well as 2011 Notifications and the report of the Expert Committee constituted by the Kerala State Council for Science, Technology and Environment (KSCSTE) was accepted.
27. We are of the considered view that the above direction was issued by the High Court taking into consideration the larger public interest and to save Vembanad Lake which is an ecologically sensitive area, so proclaimed nationally and internationally. Vembanad Lake is presently undergoing severe environmental degradation due to increased human intervention and, as already indicated, recognising the socio- economic importance of this waterbody, it has recently been scheduled under "vulnerable wetlands to be protected" and declared as CVCA. We are of the view that the directions given by the High Court are perfectly in order in the abovementioned perspective.
28. Further, the directions given by the High Court in directing demolition of illegal construction effected during the currency of the 1991 and 2011 CRZ notifications are perfectly in tune with the decision of this Court in Piedade Filomena Gonsalves v. State of Goa, wherein this Court has held that such notifications have been issued in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of such regulations cannot be lightly condoned.
"108. We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the 23 Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument."
17. We find that the view taken by the Kerala High Court in the aforesaid decision is appropriate.
18. In the instant case, permission granted by the Panchayat was illegal and void. No such development activity could have taken place in prohibited zone. In view of the findings of the Enquiry Committee, let all the structures be removed forthwith within a period of one month from today and compliance be reported to this Court."
25. The Learned Counsel for the appellant had submitted that the respondent no. 2 and 3 have not recorded the submission and the contention of the appellant as were urged before the respondent no. 2 or the respondent has not withdrawn the notice as issued or no HTL and LTL has been demarcated by the competent authority or it was not within the knowledge of previous status of construction raised by the previous owner, are not tenable due to the reason that it shows that there is compliance of natural justice and appellant was given an opportunity of hearing, since it is found within the category of violation of CRZ notification thus necessary action have been taken by the authorities concerned. It is further urged that the notified or expert ANC has not demarcated the HTL and LTL line is also not tenable due to the reason that the affidavit has been filed that the demarcation has been done by the competent authority, expert in this field.
26. In Goa Foundation Case directions were issued to the State Authorities to take action against such unauthorized structures and constructions put up on the land falling within CRZ 3 in Goa village a town wise after 19.2.1991 and further that permission can be granted only for repair and renovation of the existing dwelling units in such areas. The Tribunal following that decision observed that the structure other than the original structure exists on 19.02.1991 standing on survey numbers and which are not in compliance which were made in violation of the CRZ notification, the action should be taken according to the rules. In light of 24 the above order, we see that the order passed by the GCZMA is in accordance with the law and show cause notice was issued in accordance with the provisions and after giving an opportunity of hearing the said order was passed. The State has demarcated the High Tide Line and the CRZ notification 2011 is executed. Accordingly, we don't find any merit in the case.
27. The fact remains that the structure directed to be demolished by the authority was found to be unauthorized structure within a meaning of Sub Clause 1 and required to be demolished. Therefore, the finding recorded by the GCZMA and the consequential direction given on their behalf is unassailable. In this view of the matter this is not necessary for us to dilate on the argument as to whether CRZ policy was actually executed but since it was found that the construction as aforesaid was found unauthorized and illegal thus, the order is passed accordingly.
28. We see no irregularity and illegality in the order under challenge. No substantial question of law of great public importance arises for further consideration. Hence, this appeal must fail and the same therefore is dismissed with no order as to cost.
29. The appeal and the M.A. No. 426 of 2016 are decided accordingly.
.............................................. Justice Sheo Kumar Singh (Judicial Member) .............................................. Satyawan Singh Garbyal (Expert Member) Dated: 28st August, 2020 N 25